B - Case example: Contested impact of the Inter-American Court of Human Rights decisions concerning the Dominican Republic The two states of the Dominican Republic and Haiti share the same Caribbean Island, and inter-twined histories. One of the strands of their relationship is the contested status of the children of Haitians who have migrated to work on sugar plantations in the Dominican Republic. Under the constitution in force until 2010, Dominican nationality was granted to “all persons born in the territory of the Republic, with the exception of legitimate children of foreigners resident in the country in diplomatic representation or in transit.” The “in transit” exception was legally applicable only to persons who were in the country for a period of 10 days or less. The births of the children of Haitian parents, however, were often not registered even if the parents were habitually resident in the Dominican Republic. In 1998, a case was initiated against the Dominican Republic before the Inter-American human rights system by the International Human Rights Law Clinic at the University of California, Berkeley, in collaboration with the Center for Justice and International Law (CEJIL), Washington, DC, and the Movimiento de Mujeres Dominico-Haitianas (MUDHA). The case was brought in the name of Dilcia Yean and Violeta Bosico, two children born in the Dominican Republic, whose mothers had also been born in the Dominican Republic and had documents proving their Dominican nationality, but who were of Haitian descent. The mothers had been refused birth certificates for their children unless they produced a list of documents that were impossible to obtain. In 2005, the Inter-American Court of Human Rights issued a ground-breaking judgment in the case, in which it affirmed the right to a nationality under the American Convention and in international law generally. The Court stated, more clearly than any other international human rights court or treaty body at that time, that discriminatory denial of nationality based solely on a parent’s migration status violates human rights. The Yean and Bosico judgment is widely cited across jurisdictions in relation to the right to a nationality, and represented a real step forward in international law and condemning practices in the Dominican Republic. There was, however, also a backlash; both to the litigation itself and surrounding advocacy, and especially once the judgment was issued. In 2004, a new migration law was passed that expanded the definition of “in transit” to include all “non-residents”, a broad category which included undocumented migrants as well as people who could not prove their lawful residency in the country. According to this law, children of “non-residents” were not eligible for Dominican nationality. Dominican authorities soon began to invoke the new migration law to retroactively revoke the nationality even of Dominicans of Haitian descent who had previously held identity documents recognising nationality. In 2007, a new circular instructed the civil registry not to issue copies of identity documents when the applicants are children of “foreign parents.” The situation of Dominicans of Haitian descent deteriorated, with widespread refusal to recognise or renew existing birth certificates or identity documents. Finally, in 2013, the Dominican Constitutional Court issued a judgment (Sentencia TC 168–13) which extended the denial of nationality to all those born in the Dominican Republic dating back to 1929, who could not prove that their parents had a regular immigration status. This judgment itself provoked international outrage. In response, and providing a partial remedy, the Dominican Congress adopted a “special naturalisation law” the next year (ley 169-14) that provided a route to recognition of nationality for some of those affected by the retroactive denial of rights. This legislation separated the persons affected by the Constitutional Court judgment (los afectados) into two groups: Group A, who had a birth certificate, and Group B, whose births had never been registered. Several tens of thousands of people who had previously held birth certificates and identity documents were able to benefit from the law and recover their Dominican nationality; although several tens of thousands of others had no remedy other than applying for “naturalisation”, despite the strong arguments that the procedural lack of birth registration should not affect a substantive right to nationality. In order to achieve this partial solution to the exclusion of people of Haitian descent born or resident in the Dominican Republic, there had been a need to shift the analytical framework from general racial discrimination and violations of the rights of sugar plantation workers, to consider the rights of different groups: those who were themselves migrants (born in Haiti, even if very long-term residents in the Dominican Republic); those who had been born in the Dominican Republic, but had no paperwork of any kind to prove it; those who had birth registration (only); and those who had, or whose parents had (previously) also held a national identity card (cédula) and/or passport. These distinctions enabled advocacy for the specific remedies necessary to resolve each type of case. An emphasis on the assault on the rule of law—represented by the arbitrary denial of nationality to people whose nationality had previously been recognised and documented—undermined arguments from the Dominican government and political elite that nationality is a matter of state sovereignty not subject to international constraint. 26 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S