Chapter 2 The Right to Nationality and Judgment TC/0168/13 of the Constitutional Court | 99
the Dominican Republic to parents with irregular migratory situation, the
Commission concludes that the judgment is incompatible with the American
Convention as it involves a violation of the rights to nationality, recognition as a
person before the law and name, recognized in Convention articles 20, 3 and 18, and
in relation to such rights, the right to identity and the right to equal protection
before the law, recognized in Article 24 of the American Convention, all as a function
of the failure to comply with the obligations established in Article 1(1) and the duty
to adopt domestic legislative measures established in Article 2 of the Convention.
1.
The arbitrary and retroactive deprivation of the right to
nationality of Dominicans of Haitian descent
228. Persons affected by judgment TC/0168/13 and civil society organizations told the
Commission that the judgment meant that children and descendants of migrants
with an irregular migratory situation, the majority of whom have historically been of
Haitian descent, were arbitrarily deprived of their nationality by virtue of the fact
that the judgment classified persons who have lived in the Dominican Republic for
decades as “foreigners in transit.” The judgment retroactively applied the criterion
established by the Supreme Court in its December 14, 2005 judgment in which it
declared the 2004 General Immigration Law constitutional. That law had equated
the expression “foreigners in transit” with foreigners with an irregular migratory
situation. 235 The retroactive effect of this judgment lead to the mass
denationalization of more than 200,000 Dominicans of Haitian descent who, because
they have no other nationality, have been left stateless. Furthermore, this judgment
sanctioned the violations that these individuals suffer in the effective enjoyment of
their civil, political, economic, social and cultural rights.
229. With regard to judgment TC/0168/13, the Commission observes that the crux of the
Constitutional Court’s reasoning is based on the provision that applies in this case,
which is Article 11(1) of the 1966 Constitution of the Dominican Republic, which
defines Dominicans as “[a]ll persons born in the territory of the Republic with the
exception of the legitimate children of foreigners resident in the country in
diplomatic representation or in transit.” In its interpretation of this provision, the
Court brings up the problem of how the expression “or in transit” should be
interpreted. To resolve that problem, the Court harkens back to the 1939
Immigration Law, which draws a distinction between immigrant foreigners and
nonimmigrant foreigners. Under the latter group, the 1939 law distinguishes four
different groups, one of which was that of “temporary day workers and their
families”. This is an important classification, since immigrant foreigners “may reside
in the Republic indefinitely,” whereas those classified as nonimmigrants under the
law “will be granted only temporary entry.” The 1939 law provides that in the case
of this last category of nonimmigrants, “temporary workers will be admitted into
Dominican territory only when farm businesses request that they be brought in, and
then only in the number and under the conditions that the Secretariat of State of the
235
In this regard, see also, JORGE PRATS, Eduardo, Derecho Constitucional. Volume I. Santo Domingo: Ius Novum,
2013, p. 624.
Inter-American Commission on Human Rights | IACHR
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