YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017]
The Risk of Statelessness
VOL. XIX
83
significance of the risk assessment suggested by the Inter-American Court
in making that determination.
B. Returning to the Statelessness Determination
A statelessness determination is a complex matter that may involve
scrutinizing evidence from multiple jurisdictions and assessing that
evidence under different legal frameworks.243 While a statelessness
determination should be necessary to extend the protection of the
international law of statelessness to Dominicans of Haitian descent, there
are substantial challenges. First, determining whether a person is “not
considered as a national of any state under the operation of its laws”
requires 1) identification of the appropriate legal framework of each
jurisdiction;244 and 2) a determination of how state authorities apply that
law in practice. Inasmuch as one of the central critiques of this Article is
that the Inter-American Court extended statelessness protection in Expelled
Dominicans and Haitians without completing such a determination, 245 the
following discussion will explore some of the challenges that may have
deterred the Court.
With regard to the inquiry into the relevant law of each jurisdiction,
UNHCR guidance provides that “laws” include not just legislation, but also
“ministerial decrees, regulations, [and] orders,” as well as case law and
customary practice where appropriate.246 Of particular importance in this
regard is that some laws operate automatically, while others do not. In
essence, automatic nationality acquisition is triggered by the mere presence
of a circumstance or event, “such as birth on a territory or birth to nationals
of a state,” whereas non-automatic modes of acquisition require an
additional act of an individual or the state.247
While the analysis of both the Inter-American Court and Dominican
courts into Dominican law has been quite detailed, the analysis of Haitian
law by these courts has been superficial. However, a detailed review of
Haitian nationality law is absolutely necessary if there is to be any clarity
243. UNHCR, Handbook on Protection of Stateless Persons, ¶¶ 18, 23 (June 30, 2014),
http://www.unhcr.org/dach/wp-content/uploads/sites/27/2017/04/CHUNHCR_Handbook-on-Protection-of-Stateless-Persons.pdf [https://perma.cc/6S5L-W2FK]
[hereinafter UNHCR Handbook on Protection of Stateless Persons].
244. A preliminary step, not addressed here in detail, is to identify all those States with
which an individual has a “relevant link, in particular by birth on the territory, descent,
marriage, adoption or habitual residence.” Id. ¶ 18. Guidance by the UNHCR does not
elaborate on what constitutes a “relevant link,” but the clear implication is that “relevant” is a
fairly low standard, such that a country should be considered if there is some articulable
connection between that jurisdiction and the individual seeking a determination of
statelessness.
245. See Expelled Dominicans and Haitians ¶ 297 (noting that the Court was not, “in this
context, examining the laws of Haiti”); id. ¶ 279 (finding it unnecessary “to verify factual
aspects relating to the alleged obstacles to obtain documents, or the alleged ‘refusal’ of the
authorities to grant these”).
246. UNHCR Handbook on Protection of Stateless Persons, supra note 243, ¶ 22.
247. Id. ¶ 26.
Electronic copy available at: https://ssrn.com/abstract=3111529
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