YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017]
The Risk of Statelessness
VOL. XIX
75
approached their lack of documentation as an “omission” by the
Dominican Republic, and examined whether such an omission constituted
a violation of the state’s human rights obligations.189
The Dominican state had argued to the Court that Victor Jean and his
children were not entitled to Dominican nationality or documentation, and
that they would not become stateless because they were entitled to Haitian
nationality.190 The Inter-American Court considered that the state’s posture
made it unnecessary “to verify factual aspects relating to the alleged
obstacles to obtain documents, or the alleged ‘refusal’ of the authorities to
grant these.”191 Indeed, the Jeans had made factual allegations that they
were denied their right to register their children’s births and obtain identity
documents.192 However, the Dominican State argued that they had no right
to those documents, thereby implicitly affirming the alleged abusive actions
of unnamed civil registry officials. Accordingly, the Court cut directly to
the legality of the state’s position.193
The Inter-American Court began this analysis by considering the Jeans’
right to Dominican nationality under the 1955 Dominican Constitution,
which was in place when Victor Jean was born, and under the 1994
Dominican Constitution, which governed at the time of his three children’s
births.194 The Court acknowledged that the two constitutions included the
same “in transit” exception,195 and recalled that the 2003 appeals court
decision that found this exception did not encompass irregular migrants.196
The Court observed, however, that the 2004 immigration law had included
irregular migrants within the “in transit” exception,197 and that this
legislation had been subsequently upheld in 2005 by the Dominican
Supreme Court of Justice.198 The Court noted that the Dominican
Constitution itself was amended in 2010 to exclude the children of
unauthorized migrants as nationals,199 and that the Constitutional Court in
2013 interpreted the provisions of every constitution dating back to 1929 in
a manner consistent with the standard set forth in the 2010 Constitution.200
The Court noted that the state’s argument with regard to the alleged
discriminatory effects of the broadened and retroactively applied “in
transit” exception was consistent with the 2005 Supreme Court decision
and the 2013 Constitutional Court decision.201 It further acknowledged that
such legal developments were not discriminatory per se.202 The Court then
189. Id. ¶ 278.
190. Id. ¶ 279.
191. Id.
192. Id. at 74 n.258.
193. Id. ¶ 279.
194. Id. ¶¶ 280, 297.
195. Id. ¶ 280
196. Id. ¶ 281.
197. Id. ¶ 282.
198. Id. ¶ 283.
199. Id. ¶ 284.
200. Id. ¶¶ 285-88.
201. Id. ¶ 293.
202. Id. ¶¶ 289-92.
Electronic copy available at: https://ssrn.com/abstract=3111529
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