THE RISK OF STATELESSNESS
84
YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017
[Vol. 19
about the situation of statelessness in Hispaniola. A review of Haitian
nationality law between 1929 and 2010—the period during which birthright
nationality in the Dominican Republic was qualified by the “in transit”
exception—reveals three distinct legal regimes whose potentially
overlapping operation creates some level of uncertainty.248
First, as the Inter-American Court noted in its brief review of Victor
Jean’s nationality claim, there are certain constitutions that reserve the right
to jus sanguinis nationality acquisition for those born to Haitian fathers.249
The 1946 Constitution provided that a Haitian father could pass on his
Haitian nationality to a child born in foreign territory, and that a Haitian
mother could pass on her Haitian nationality to a child if the father did not
recognize the child.250 By its terms, this rule would prevent a Haitian
mother from transferring her Haitian nationality to a child born in foreign
territory if her foreign partner recognized the child.251 This same rule was
reasserted in the 1957 Constitution,252 and that regime remained in place
until the 1964 Constitution provided a basis for jus sanguinis nationality
acquisition for children born to a Haitian father or mother, regardless of
whether the father recognized the child.253 The gender distinction in the
1946 and 1957 Constitutions was once again made law by a 1974 Decree,254
248. While not appropriately considered a legal regime, it is important to note that prior to
1946 there is virtually no guidance on jus sanguinis rules of Haitian nationality acquisition. The
Haitian Constitution of 1918 only mentions citizenship or nationality requirements on one
occasion: “The rules governing nationality shall be determined by law.” 1918 CONSTITUTION DE
LA REPUBLIQUE D’HAITI [1918 CONSTITUTION OF THE REPUBLIC OF HAITI], June 19, 1918, art. 3,
translated in U.S. DEP’T OF STATE, PAPERS RELATING TO THE FOREIGN RELATIONS OF THE UNITED
STATES, 1918, at 487 (1918). However, no nationality laws are publically available from this
period, so there is very little clarity about what it meant to hold nationality under the law.
Further, the 1928 constitutional amendments did not address nationality. See generally
CONSTITUTION DE 1918 DE LA REPUBLIQUE D’HAITI AMENDÉE PAR LE PLÉBISCITE DES 10 ET 11
JANVIER 1928 [1928 AMENDMENTS TO THE 1918 CONSTITUTION OF THE REPUBLIC OF HAITI], Jan.
10-11, 1928, art. 3. While the 1935 Constitution made an important distinction between
“Haitians by origin” and “Haitians by naturalization,” see 1935 CONSTITUTION DE LA
REPUBLIQUE D’HAITI [1935 CONSTITUTION OF THE REPUBLIC OF HAITI], June 2, 1935, art. 6
(translation on file with author), neither the text of that Constitution nor constitutional
amendments in 1944 defined these terms.
249. Expelled Dominicans and Haitians ¶ 297.
250. 1946 CONSTITUTION DE LA REPUBLIQUE D’HAITI [1946 CONSTITUTION OF THE REPUBLIC
OF HAITI], Nov. 22, 1946, art. 4.
251. Article 4 of 1946 Constitution of the Republic of Haiti provides that “[o]ne is a Haitian
by origin if he is born to a father who was himself born Haitian. Or, one is a Haitian by origin
if he is not recognized by his father but he was born to a mother who herself was born
Haitian.” Id. (translation on file with author).
252. 1957 CONSTITUTION DE LA REPUBLIQUE D’HAITI [1957 CONSTITUTION OF THE REPUBLIC
OF HAITI], June 14, 1957, art. 4.
253. 1964 CONSTITUTION DE LA REPUBLIQUE D’HAITI [1964 CONSTITUTION OF THE REPUBLIC
OF HAITI], May 25, 1964, art. 4.
254. Décret du 27 Février 1974 sur la Nationalité et la Naturalisation [Feb. 27, 1974 Decree
on Nationality and Naturalization], art. 2, Le Moniteur No. 20, Mar. 14, 1974 (Haiti). The legal
force of this Decree is uncertain, inasmuch as it contradicts the Constitution in force at the
time, even though there is no public guidance available on this apparent inconsistency in the
law. The 1974 Decree also introduced, for the first time, rules for loss of Haitian nationality.
Most important, Article 17 states that Haitian nationality is incompatible with all other
nationalities and no one may hold a double nationality where one of the nationalities is
Electronic copy available at: https://ssrn.com/abstract=3111529
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