THE RISK OF STATELESSNESS
82
YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017
[Vol. 19
Generally, the literature on statelessness has accepted van Waas’s
contention that statelessness protection is inappropriate in cases of
ineffective nationality, and that this challenge is better raised with the
country of nationality as a violation of human rights.239
Meanwhile, the other two de facto statelessness scenarios where
citizenship is disputed or cannot be established echo the “risk of
statelessness” that triggered statelessness protection in the Inter-American
Court decision. In that case, the Inter-American Court highlighted the
ambiguity in how different rules under Haitian constitutions and decrees
would be resolved, raising concerns about the need to establish filiation in
order to qualify for nationality.240 This is clearly a case of disputed
nationality, which falls into the second category of de facto statelessness
described by van Waas. According to van Waas, the appropriate next step
would be a statelessness determination to decide whether international
protection under the law of statelessness is appropriate.241 Similarly, the
charge in the cases of “risk of statelessness” would be to complete a
statelessness determination.
When the Inter-American Court extended statelessness protection to
persons who were arguably de facto stateless, it extended the protection of
that body of law beyond its well-settled limits. The next step for the InterAmerican Court after identifying the Jeans’ “risk of statelessness” should
have been to make a determination of statelessness. If it had found the
Jeans to be stateless at birth, then the Dominican Republic—by its own
admission—would have been obliged to provide them with nationality
documents. As an explanation for why it did not take this course of action,
the Inter-American Court only noted that the Dominican Republic had the
burden to prove that the Jeans could acquire Haitian nationality, and had
failed to meet this burden due to potentially conflicting, or ambiguous,
Haitian laws.242 The Court thus fell short of disproving Haitian nationality,
or explicitly demonstrating statelessness. As such, it lacked the proper basis
under the international law of statelessness to compel Dominican
nationality.
The next section provides a framework for considering the statelessness
determination that the Inter-American Court failed to make. The goal of
this section is both to advance the argument that a statelessness
determination is necessary in order to extend statelessness protection to
Dominican-born persons of Haitian descent, and to recognize the potential
Senior Legal Advisor at UNHCR Geneva, who writes that “there is no need for a special
statelessness regime to address the problem of denial of rights attached to nationality as such
problems are already covered by the international human rights regime.” Massey, supra note
28, at 39.
239. See e.g., Tucker, supra note 224, at 277-278; Massey, supra note 28, at 39-40.
240. Case of Expelled Dominicans and Haitians v. Dominican Republic, Preliminary
Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 282, ¶ 297
(Aug. 28, 2014).
241. VAN WAAS, supra note 80, at 25-26.
242. Expelled Dominicans and Haitians ¶ 297 (finding that the Dominican Republic had not
proven that the Jeans were able to obtain Haitian nationality as a matter of fact).
Electronic copy available at: https://ssrn.com/abstract=3111529
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