THE RISK OF STATELESSNESS
74
YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017
[Vol. 19
lege, automatically), to avoid a situation of statelessness at birth,
pursuant to Article 20(2) of the American Convention. This obligation
also applies in the hypothesis that the parents cannot (owing to the
existence of [de] facto obstacles) register their children in the State of
their nationality.182
By taking this step, the Court asserted two new potential violations of
the right to nationality under the Convention. First, the Court introduced
the idea that a state must be sure that a child born in its territory has access
to another nationality before it is relieved of the obligation to extend its
own, but failed to provide clarity concerning the degree of certainty
required for such relief. Second, the Court established that a person could
be a national under the law of another jurisdiction at birth while not being
able to access that right in fact, a factor which would inform the foregoing
certainty calculation. Notably, in articulating these standards, the Court
relied on a set of UNHCR statelessness guidelines on state obligations
under the 1961 Convention to ensure a child would not be stateless at
birth.183
With regard to the equal protection of the law, the Court noted that
both direct and indirect practices of discrimination are impermissible under
international human rights law. Violations of this obligation may arise in
cases of “indirect discrimination reflected in the disproportionate impact of
laws, actions, policies or other measures that, even though their wording is
or appears to be neutral, or has a general and undifferentiated scope, have
negative effects on certain vulnerable groups.”184 The Court emphasized
that states must “abstain from establishing discriminatory regulations or
regulations that have discriminatory effects on different groups” when
devising the mechanisms for granting nationality.185 Furthermore, the
Court reiterated its prior conclusion that the obligation not to discriminate
binds states “irrespective of a person’s migratory status, and this obligation
extends to the sphere of the right to nationality.”186
In applying these standards to the victims in Expelled Dominicans and
Haitians, the Court considered the situation of persons who were born in
the Dominican Republic but who had never been registered as
Dominican.187 Among others, the Court reviewed the situation of Victor
Jean and his three children, Victoria, Natalie, and Miguel, all of whom were
born in Dominican territory but were never registered or issued nationality
documents and were subsequently expelled from the country.188 The Court
182. Id. ¶ 261 (emphasis in original).
183. Id. (citing UNCHR Guidelines on Statelessness No. 4, supra note 84, ¶ 26).
184. Id. ¶ 263 (citing Case of Nadege Dorzema et al. v. Dominican Republic, Merits,
Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 251, ¶ 234 (Oct. 24, 2012)).
185. Id. ¶ 264.
186. Id. (citing Case of the Girls Yean and Bosico v. Dominican Republic, Preliminary
Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 130, ¶¶
155-56 (Sept. 8, 2005)).
187. See id. ¶ 126.
188. Id. ¶ 277.
Electronic copy available at: https://ssrn.com/abstract=3111529
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