Case of Expelled Dominicans and Haitians v. Dominican Republic

Parties (including notable third parties)

Summary of Facts

This case concerned the Dominican Republic’s mass expulsion of persons presumed to be Haitian or Dominicans of Haitian descent based on their skin colour in the 1990s and 2000s. The case was brought by the Inter-American Commission on Human Rights and non-governmental organisations and legal clinics representing 24 presumed victims of the State’s conduct. The presumed victims included Dominican citizens, Haitian citizens who had established permanent residence in the Dominican Republic, and children and other persons born in the Dominican Republic who had been prevented from having their births registered and were therefore at risk of statelessness.

• Medina family: Mr Medina was born and lived in the Dominican Republic with his companion, Lilia Jean Pierre, who was born in Haiti, and his three children, Awilda, Luis and Carolina, who were born in the Dominican Republic and have birth certificates. In November 1999 or January 2000, State officials detained the Medina family. Mr Medina stated that the officials tore up his identity card and birth certificate when he presented them. Awilda stated that during their detention they received no food or water. The Medina Family was taken to the border with Haiti and expelled.
• Fils-Aimé family:Mr Fils-Aimé was born in the Dominican Republic and lived there with his companion Janise Midi who was born in Haiti and had a Haitian identity card. Mrs Midi’s children were born in the Dominican Republic, but she registered them in Haiti because they needed documents to go to school. In 1999, Mr Fils-Aimé and Mrs Midi and her children were arrested and expelled to Haiti.
• Bersson Gelin: Mr Bersson Gelin was born in the Dominican Republic. He does not have a Dominican birth certificate or identity card, but he does have a Haitian birth certificate and identity document. He has lived in Haiti since 1999 with his companion and three children. In 1999, Mr Gelin was expelled to Haiti and separated from his son, who was born in the Dominican Republic.

• Sensión Family: Antonio Sensión was born in the Dominican Republic and has a Dominican identity card. He lives with Ana Virginia Nolasco, who was born in Haiti and has a Haitian identity card. They have two daughters, who were born in the Dominican Republic and have Dominican identity cards. The Sensión family lived in the Dominican Republic.In 1994, Mrs Nolasco and her daughters were detained and expelled to Haiti.

• Rafaelito Pérez Charles:Mr Pérez Charles was born in the Dominican Republic and has a Dominican identity card. In 1999, Mr Pérez Charles was arrested because he did not have his documentation with him and was not permitted to retrieve it from his home. He was detained in a detention centre with many other Haitians, not provided with food or water, and expelled to Haiti. Mr Pérez Charles returned to the Dominican Republic on foot, but lost his job. Rafaelito stated ‘they arrest you because you are dark, because you are black.’ (paragraph 221)

• Jean family:Victor Jean was born in the Dominican Republic and lived there with Marlene Mesidor, who was born in Haiti and has a Haitian passport, and his four children. His eldest child, Markenson, was born in Haiti and has a Haitian passport, and his three younger children, Victoria, Miguel and Natalie were born in the Dominican Republic but did not have birth certificates. Ms Mesidor stated that she was told she could not register them because she did not have Dominican documents. In 2000, the Jean family was detained and expelled to Haiti.

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Legal Arguments

Legal Arguments of the Commission and the Representatives

The Commission contended that, despite the State’s observance of jus soli and the lack of legal provisions explicitly prejudicial to Haitians and those of Haitian descent, the State engaged in a generalised practice specifically aimed at persons of Haitian descent and those with the darkest skin colour. The State’s discriminatory practices created obstacles in the registration for Dominicans of Haitian descent and grant of nationality to persons born in the Dominican Republic constitute arbitrary deprivation of nationality. It also contributed to the detention and possible deportation of Dominican nationals.

The Commission argued that State agents arbitrarily detained the presumed victims without arrest warrant or judicial proceedings. They were not informed of the charges that led to their detention and were expelled within 24 hours to Haiti. The expulsion meant they lost all their property in the Dominican Republic which constituted unlawful deprivation of property with no compensation.

The Commission contended that the State violated the right to juridical personality and the right to nationality (Articles 3 and 20 of the American Convention on Human Rights (‘the Convention’)), the right to personal liberty (Article 7), the right to freedom of movement and residence (Article 22(1)), the prohibition to expel nationals (Article 22(5)), the prohibition of the collective expulsion of aliens (Article 22(9)), the right to equal protection of the law (Article 24), and the rights to judicial guarantees and to judicial protection (Articles 8(1) and 25(1)), the obligation to respect the rights of the Convention without discrimination (Article 1(1)) and the rights of the child (Article 19).

In relation to the presumed victims who had Dominican identity documents, the representatives argued that the State disregarded their juridical personality and right to a name by not requesting the documents, not receiving them when provided, or taking the documents away from them.

In relation to the State’s arguments that Decree No. 327-13 and Law No. 169-14 provided a procedure for persons to regularise their status, the representatives stated that the requirements of this procedure were impossible for the vulnerable situation that most of the irregular Haitian population are in. They also highlighted that the naturalisation process provided in Law No. 169-14 ignores jus soli and treats children of foreign parents born in Dominican territory as aliens.

Legal Arguments of the State

The State argued that the procedure for the acquisition of nationality is an attribute of State sovereignty and is exclusively a matter for domestic law, limited only by respect for human rights, including statelessness and discrimination.

With regard to the presumed victims who did not have Dominican identity documents, the State contended that it was not obliged to grant them nationality because they would not become stateless since they could be Haitian nationals through Haiti’s system of jus sanguinis.

The State contended that the exceptions to the acquisition of Dominican nationality in the Constitution were reasonable because they were established by law, they sought a legitimate purpose, and they complied with the requirements of suitability, necessity and proportionality. The State also contended that the children born of mothers who entered the country irregularly would not have a right to Dominican nationality because ‘irregularity does not give rise to a right’ (paragraph 248).

In relation to the alleged violation of the right to a name, the State indicated that where the presumed victims were foreign, it was not for the Dominican Republic to guarantee them the right to a name.

Finally, the State pointed to procedures which it had established in accordance with decisions of the Constitutional Court, Decree No. 327-13 and Law No. 169-14 to allow persons to regularise their status.

Outcome

The Court found that the State had violated the presumed victim’s rights under the Convention, and ordered the State to pay reparations and to take administrative and legislative actions to remediate the presumed victim’s situation and to ensure these violations did not re-occur.

Obligation to Prevent Statelessness

The Court considered that while States have the power to determine nationality, they must exercise it in accordance with their obligation in international law to prevent statelessness. The Court stated:

‘States have the obligation not to adopt practices or laws on the granting of nationality whose application contributes to increasing the number of stateless persons. Statelessness makes it impossible for individuals to enjoy their civil and political rights, and places them in a situation of extreme vulnerability.’ (paragraph 257)

Rights to a Nationality, to Recognition of Juridical Personality, to a Name and to Identity

The Court found that by refusing to consider and destroying identity documents, the State violated the victims’ rights to name, to recognition of juridical personality, to nationality and to identity in violation of Articles 3, 18 and 20 of the Convention.

The Court found that by not providing identifying documents, the State violated the victims’ right to nationality, to recognition of juridical personality, to a name, and to identity in Articles 3, 18 and 20 of the Convention.

The Court considered that Article 20 of the Convention should be interpreted to mean that a State must grant a child born in its territory nationality unless it is certain that the child can obtain the nationality of another State. The Court rejected the State’s argument that it was not obligated to grant Dominican nationality to the Haitian-born presumed victims because they would not be made stateless as Haiti recognised jus sanguinis. This is because, under Haitian law, children born abroad of a Haitian mother and a foreign father could not acquire Haitian nationality until they came of age, and then only if they settled in Haiti.

In addition, the State’s actions discriminated against the victims on the basis of their presumed Haitian origin, and the State’s actions in respect of the children did not take the best interests of the child into consideration in violation of Articles 1 and 19 of the Convention.

Obligation to Adopt Domestic Legal Provisions to Ensure the Effective Exercise of the Rights in the Convention

The Court considered that the State’s legal process assumed that those born in Dominican territory who are the children of aliens in an irregular situation, are aliens, and therefore retroactively deprived them of the nationality which they should have had since birth. The Court found this legal process violated Article 2 of the Convention by hindering the victims’ access to their other rights.

The deprivations of liberty of the presumed victims were illegal under Dominican domestic law and they violated Article 7 of the Convention because they were conducted due to racial profiling and without due process or judicial oversight. The Court rejected the State’s argument that Law No.5353 on Habeas Corpus entitled presumed victims to question the lawfulness of their detention on the basis that remedies must not only exist formally, but must be effective.

The Court also found that the State’s expulsions violated the right to freedom of movement and residence (Article 22), the respect for basic procedural guarantees (Article 8), the right to the privacy (Article 11), right to protection of the family (Article 17), and the rights of the child (Article 19).

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	American Convention on Human Rights (ACHR)	Articles 1-3, 5, 7, 8, 11, 17-19, 20-22, 24, 25, 27, 63
Regional	American Declaration of the Rights and Duties of Man	Article XIX
International	Universal Declaration of Human Rights	Article 15
International	International Covenant on Civil and Political Rights (ICCPR)	Articles 12, 24
International	Convention on the Rights of the Child	Articles 2, 7, 8
International	International Convention on the Elimination of All Forms of Racial Discrimination	Article 5
International	International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families	Article 29
International	Convention on the Reduction of Statelessness	Articles 1, 9
International	Vienna Convention on the Law of Treaties	Article 28
International	Vienna Convention on Consular Relations	Article 36.1
Regional	African Charter on the Rights and Welfare of the Child	Article 6
Regional	African Charter on Human and Peoples’ Rights	Articles 7 and 12
Regional	European Convention on Nationality	Articles 4, 5
Regional	European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)	Article 13, Protocol No. 4 Article 3, Protocol No. 7 Article 1(1)
International	United Nations, Committee on the Rights of the Child, General Comment No. 6	Paragraph 18 (Treatment of unaccompanied or separated children)
International	United Nations, Committee on Economic, Social and Cultural Rights, General Comment No. 20	Paragraph 10(b) (Non-discrimination in economic, social and cultural rights)
Regional	OAS, Rules of Procedure for the Legal Assistance Fund of the Inter-American Human Rights System	Article 1(1)
Regional	OAS, Rules of Procedure of the Inter-American Court of Human Rights	Articles 2(3), 5, 12, 25, 28(1), 31, 32, 40, 43, 44(1), 46(2), 48(2), 50, 53, 57, 58, 65, 67
Regional	OAS, Inter-American Convention to Prevent and Punish Torture	Articles 1, 6, 8
Regional	OAS, Convention on Forced Disappearance of Persons	Article I, Article II
Domestic	Constitution of the Dominican Republic	Articles 8(2), 10(c), 11(1), 18
Domestic	Immigration Law No. 95 of 1939	Article 10(c), 13
Domestic	Immigration Regulations No. 279 of 1939	Sections V, 10(d), 13
Domestic	Law No. 5353 on Habeas Corpus of 1914	Articles 1, 4, 7
Domestic	Law No. 1494 of August 9, 1947 (Contentious-Administrative Jurisdiction)	Articles 1, 9
Domestic	Law No. 4658 of March 24, 1957	Articles 6, 8, 11
Domestic	Law No. 169-14 of May 23, 2014	Articles 3, 6, 8, 11, 12, 13
Domestic	Decree No. 327-13 of November 29, 2013	Articles 1
Domestic	Decree No. 250-14 of July 23, 2014	General reference
Domestic	Resolution 02-07 of the Central Electoral Board	General reference
Domestic	Circular No. 017 of March 29, 2007, Administrative Chamber, Central Electoral Board	General reference
Domestic	Resolution No. 12-07 of December 10, 2007, Central Electoral Board	General reference
International	Memorandum of Understanding on Repatriation Mechanisms (2 December 1999) between Dominican Republic and Haiti	General reference
Domestic	Haiti’s Nationality Decree of 6 November 1984	General reference
Domestic	Law No. 659 of July 17, 1944	Articles 39

UNHCR Statelessness Guidelines cited

UNHCR Guidelines on Statelessness No. 4

Key paragraphs of the Guidelines referred to

Paragraphs 25, 26

Court's application of Guidelines

The Court cited paragraph 25 in support of the proposition that a State must be certain that a child born in its territory may truly acquire the nationality of another State immediately after its birth in order to not grant the child nationality.

The Court cited paragraph 26 in support of the proposition that this obligation applies where obstacles prevent parents from registering their children in the State of their nationality.

Available commentary

David C. Balurate, ‘The Risk of Statelessness: Reasserting a Rule for the Protection of the Right to Nationality’ (2017) 19 Yale Human Rights and Development Law Journal 47

• The Court extended the well-established rule for states to guarantee the nationality of children born stateless in their territory, to also apply to children who were at risk of statelessness. This means that where there is uncertainty as to whether a child can acquire another nationality, the State of birth is obliged to grant nationality.
• Balurate considered this expansion to be a ‘notable normative development’ but argues that it unnecessarily extends the previous rule and that it may have unforeseen negative consequences, including that it could ‘chill’ the growing support among states for protection for stateless persons.

Jonathan Bialosky, ‘Regional Protection of the Right to a Nationality’ (2015) 24(1) Cardozo Journal of International and Comparative Law 153

• According to Bialosky, ‘the Court offered its most expansive interpretation of the right to nationality to date’ by highlighting the effect that a lack of access to nationality had on other rights.
• By defining the right to identity as encompassing nationality, the Court strengthened protection of the right to a nationality.
• Bialosky considered that the right to a nationality has been strongly articulated and protected in the Americas through the jurisprudence of the Inter-American Commission and the Inter-American Court, in this and other cases.