In September 2013, the Dominican Republic’s Constitutional Court ruled that Juliana Deguis Pierre, who was born in the country to Haitian parents in 1984 and registered as Dominican at birth under Dominican law in effect at the time, should be retroactively deprived of Dominican nationality due to her parents’ migratory status. The decision touched off a political and humanitarian crisis that stretches beyond the island nation’s borders and deep into its political, economic and social history. By judicial fiat, thousands if not hundreds of thousands of undocumented individuals like Pierre were definitively stripped of Dominican nationality, with no immediate indication of an alternative protective status and no further recourse. As in many countries, the lack of documents like birth certificates and identity cards exposes them to immigration control measures, including the risk of detention and expulsion, and severely restricts their access to rights in the Dominican Republic.
The court rendered its decision in the form of a collective action, ordering the national agency in charge of birth registration to examine all birth registries dating back to 1929 and to identify for denationalization all persons who were allegedly improperly registered. President Danilo Medina worked with lawmakers after the ruling, presenting and ultimately securing the May 2014 passage of legislation designed to respond to the political and humanitarian fallout. Unfortunately, the law failed to fully remedy the situation, leaving thousands of those affected in a state of legal uncertainty.
The ruling, along with key aspects of the implementing law, was deemed contrary to the American Convention on Human Rights by the Inter-American Court of Human Rights (IACHR) a few months later. The Dominican Constitutional Court then declared unconstitutional the instrument by which the Dominican Republic recognized the regional body’s competence, in what some consider a swift and politically motivated response to the IACHR decision.
The legal complexities and political brinksmanship between national and regional actors poses important questions concerning the rule of law and the integrity and clout of the legal systems at play. But as the political drama unfolds, the future of thousands of individuals whose lives are severely imperiled by the September 2013 ruling still hangs recklessly in the balance.
One Island, Two Nations
The island of Hispaniola, the second-largest island in the Caribbean, is politically divided between two nations. The Spanish-speaking Dominican Republic is located on the eastern half of the island, while French-speaking Haiti makes up the western portion. The two nations share a history of colonialism, slavery and dictatorship, and race has played a prominent role in the island’s history. However, the history of racial politics in each country followed distinct and markedly inverse trajectories.
Haiti was founded as the first independent nation of Latin America and the Caribbean by African slaves revolting against French rule. All the leaders of Haiti’s first government were former slaves, led by the iconic Gen. Toussaint Louverture, and as such blackness has always been an important part of Haitian national identity. The Spanish colonization period, on the other hand, brought to the Dominican Republic sugar, slavery and early notions of racial prejudice. A white Spanish elite controlled the colony’s administration and ruled for a longer period over a mixed population of creoles and slaves.
For nearly a century, Haitians have migrated to the more prosperous Dominican Republic in search of work. In the beginning, most migrant workers were lured either by force or under false expectations to cross the border and work in sugar plantations, serving in underpaid positions as cane cutters under atrocious conditions and living in barracks in settlements on the sugar estates called “bateyes.” Sugar companies directly managed the necessary importation of labor, and they did so primarily from Haiti but not exclusively. However, with the arrival of the long-time Dominican dictator Rafael Trujillo, most of the Dominican sugar industry was nationalized, and laborers were mostly contracted through agreements between the two governments.
For some sociologists, this is the first indication of a double standard in the migration and documentation policies of the Dominican government. On the one hand, the Dominican Republic benefits from the cheap labor provided by the Haitian workers that allowed it to keep sugar prices low and competitive. On the other hand, the government obstructs the regularization of the migratory status of those workers wishing to settle in the country, mainly through measures such as the impediment to obtaining residence, but also through mass deportations.
According to Bridget Wooding, an expert on migration and Dominican-Haitian relations, control of migrant labor in the Dominican Republic has two main objectives: first, to ensure that large labor flows are directed toward specific production niches, with the initial direction of these flows to the sugar economy; and second, to maintain the profitability of economic activity to which such cheap labor was linked, first of the sugar industry, then agriculture in general and finally in the urban economy, especially in the construction sector and the informal sector. Historically, these objectives were advanced through the exclusion of migrant workers from civil, economic and political rights, ultimately creating a sizable marginalized alien minority.
In October 1937, Trujillo ordered the killing of thousands of Haitian migrant workers and their families along the Haitian border. Though numbers have never been confirmed, estimates range from 5,000 to as many as 30,000 individuals who were hacked to death with machetes in only five days. The slaughter has been called an act of genocide targeting the Haitian-origin population. During the massacre, Haitians were distinguished from the rest of the population—many of whom, like most Haitians, were people of African descent—by having to pronounce the word perejil, the Spanish word for parsley. Those who rolled the letter “r” were presumed to be native Spanish-speakers; those who gargled the “r” were presumed to be speakers of Haitian Creole, and thus sentenced to death.
Some explain the 1937 massacre as the product of a culturally and historically embedded prejudice against the Haitian population, deeply rooted in the Dominican collective consciousness. However, prominent scholars have concluded that the anti-Haitian racist ideology only fully emerged and became more politically relevant after the events of 1937. The massacre could be construed as the beginning of an anti-Haitian ideology infused with twisted theories about skin-color and hateful implications of blackness promoted by Trujillo. As UCLA Professor Robin Derby put it in her study of the role of anti-Haitianism in official nationalism under Trujillo, “The massacre was not driven by Dominican nationalism; on the contrary, it was the state violence that led to nationalism; the massacre then became a new national identity, not the culmination of one.”
The mantle of Trujillo’s racism was taken up and amplified by his successor, the lesser-known—though equally cruel—Joaquin Balaguer, who ruled the Dominican Republic for the better part of three decades after Trujillo’s assassination in 1961. In fact, it may have been Balaguer and his inner circle that first forged the link between racial politics and nationality policy—setting the stage for the present crisis. A document recently unearthed by a historian from the national archives revealed that the rationale for nationality denialwas developed by key government actors at Balaguer’s request in the 1970s.
These racially infused political dynamics endure today and may have even been more inflamed in recent years, as right-wing Dominican nationalists staked their political survival on the notion that all evils are explained by the Haitian presence. Haitian immigrants and their descendants have been and continue to be the perennial political scapegoat.
After a 2007 visit to the Dominican Republic, Doudou Diene, U.N. special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, and Gay MacDugall, U.N. independent expert on minority issues, found that “there is a profound and entrenched problem of racism and discrimination in Dominican society, particularly targeted at Dominicans of Haitian descent and Haitians and more generally affecting all blacks.”
With the growth and diversification of the Dominican economy, and the long-term economic, political and environmental crisis in Haiti—exacerbated by the 2010 earthquake that killed more than 100,000 people—migration of Haitians to the other side of the island in search of work has continued and even increased in recent decades. Haitians now find work in the dwindling but still powerful sugar plantations, as well as in other agricultural sectors, construction, the tourist industry, domestic service and various forms of informal trade.
Irrespective of their line of work or the migration wave that brought them, many Haitian migrants have settled and raised families in the Dominican Republic, resulting in a significant second- and third-generation of “Haitian-Dominicans” or “Dominicans of Haitian descent”—that is, people of Haitian descent who were born in the Dominican Republic.
“Foreigners in the Land Where They Were Born”
The exclusion of Dominicans of Haitian descent from the enjoyment of their right to nationality is not a new phenomenon, as the refusal to recognize their nationality has played an important role in the country’s long history of institutional discrimination against Haitian migrants and their descendants.
International treaty-monitoring bodies and human rights agencies have long expressed concerns about the Dominican Republic’s discrimination against Dominicans of Haitian descent in access to nationality, and have urged successive governments to reform the country’s nationality regime.
As in most countries in the Americas, the Dominican Republic granted Dominican nationality to all children born on national territory, with only two exceptions: children born to diplomats or to parents who were “in transit.” Under this jus soli regime (nationality attributed by birth on the territory, or “soil”), many children born in the Dominican Republic to Haitian migrant parents were registered as Dominicans.
However, discriminatory and arbitrary practices within the national registration system led to the creation of a multi-generational class of permanently undocumented Dominicans of Haitian descent. Individuals of Haitian descent consistently reported denial of birth registration and national identity cards on account of their Haitian appearance, accent or surname, a phenomenon that grew increasingly routine and widespread throughout the 1990s and 2000s.
The Dominican Republic is party to the American Convention on Human Rights. The bodies charged with implementing the convention—the Inter-American Commission and Inter-American Court of Human Rights—have both confirmed the right to a nationality and upheld the prohibition on racial discrimination in access to nationality.
In 1999, for example, the situation of “permanent illegality” to which many Dominicans of Haitian descent had been consigned was so acute that it prompted close attention by the Inter-American Commission on Human Rights. In its country report on the Dominican Republic issued that year, the Commission noted that the situation of illegality of Haitian parents was often passed down to children even when they were born in the country:
In September 2005, the IACHR issued a landmark judgment in Yean and Bosico v. Dominican Republic. The case involved two young Dominican girls of Haitian descent who were denied access to birth certificates recognizing them as Dominican citizens. The court ruled that discriminatory application of the constitution, citizenship and birth registration laws and regulations rendered children of Haitian descent born in the Dominican Republic stateless and unable to access other critical rights such as the rights to education, recognition of juridical personality, a name and equal protection before the law.
In defiance of the court’s ruling, in the past decade, successive Dominican governments have actively pursued policies of deprivation, denial and discrimination in access to nationality. Starting with a 2004 migration law, the Dominican Republic has implemented a series of legislative, judicial and administrative changes designed to make obtaining documentary proof of Dominican nationality a legal and bureaucratic impossibility for thousands of Dominicans of Haitian descent. In early 2010, a revised constitution that fundamentally altered the right to Dominican nationality entered into force, making the stateless status of Dominicans of Haitian descent permanent and irreversible.
The legal maneuvers centered on restricting access to citizenship by birth on the territory, targeting the large and growing population of Dominicans of Haitian descent who should have benefited from this provision. The mechanism was the exception to jus soli citizenship for children born in the country whose parents were “in transit” at the time of the birth. The 2004 migration law, for example, 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.
These formal legal revisions transpired in tandem with ongoing denial of documentary proof of identity to thousands of Dominicans of Haitian descent through the same discriminatory practices of the national civil registry offices condemned by the IACHR in the Yean and Bosico case.
Although the 2004 migration law was intended to be applied prospectively, the Dominican civil registry agency soon began retroactive implementation, declaring even those whose Dominican nationality had been recognized for decades to be non-citizens and foreigners. The vast majority of those affected were Dominicans of Haitian descent. The legal rationale was that their right to Dominican nationality was a fiction, even a fraud perpetrated against the Dominican state, and was therefore void of any effect.
The civil registry began refusing to give Dominicans of Haitian descent identity documents such as passports, national identity cards and birth certificates. Without access to these documents, many Dominicans of Haitian descent found it impossible to attend school, vote, travel, get married, acquire property, access social services, register the birth of a child or even access the judicial system.
On Jan. 26, 2010, the Dominican Republic formally adopted a new constitution. The new nationality provision accords citizenship only to children of “legal residents.” Under the 2010 constitution, acquisition of Dominican nationality for the children of foreigners is now explicitly and constitutionally dependent on their parents’ migration status—a direct contravention of the IACHR decision in Yean and Bosico.
In light of the civil registry’s retroactive application of the 2004 migration law, the question of retroactivity loomed large with respect to the new constitution. Would it, too, supplant the previous constitutional order that had for so many years attributed Dominican nationality to Dominicans of Haitian descent born on the territory, irrespective of their parents’ immigration status?
The Court’s Decision and the Ongoing Backlash
On Sept. 23, 2013, the Constitutional Court of the Dominican Republic answered in a resounding affirmative, to the dismay of the many affected persons and the civil society groups advocating on their behalf.
The court said that the appellant, Juliana Deguis Pierre, who was born in the Dominican Republic in 1984 to Haitian parents, had been wrongly registered as Dominican at birth. It decided that Deguis Pierre’s parents, who, it was claimed, could not prove their regular migration status in the Dominican Republic, were “foreigners in transit” for the purposes of Dominican domestic legislation. Deguis Pierre was never entitled to Dominican citizenship and must now be stripped of it.
Treating the case as a collective action, rather than limiting its examination to the individual case of Deguis Pierre, the court went on to order the national agency in charge of civil registration and personal identification—the Central Electoral Board—to thoroughly examine all birth registries since 1929 and remove from them all persons who were, according to the court’s ruling, wrongly recognized as Dominican citizens. It should be noted that this decision to treat the case as a collective action runs against the constitution, the law and the court’s own precedents. The Dominican Constitution and the law of constitutional procedures distinguish between collective actions and private ones, and the constitution states in Articles 66 and 67 which rights can be protected through collective actions. The right to nationality is not among them, according to Dominican constitutional lawyer Nassef Perdomo.
This decision transformed the legal landscape and retroactively justified the discriminatory practices of local authorities. It also sent shockwaves throughout the country, the region and the wider human rights community. Statements of concern were issued by UNHCR, UNICEF, the United States and the European Union. The strongest reaction, however, came from the Caribbean Community (CARICOM), which saw the measure as an affront to one of its members and thus suspended consideration of the Dominican Republic’s application to join the grouping. CARICOM further demanded that the situation be discussed, twice, in the Organization of American States Permanent Council. The IACHR visited the country for the second time ever and recommended that restoration and guarantee of citizenship be provided to all those affected by the ruling.
In the face of national and international pressure, President Danilo Medina promised to create a pathway to citizenship for those affected by the ruling. The Ley de Regimen Especial y Naturalizacion 169-14 was passed unanimously in May 2014. The law addresses the basic problem in the wake of the Constitutional Court’s decision: that potentially hundreds of thousands of individuals, many of them former Dominican citizens, now have no legal identity, compounded by the pre-existing inability to prove the basic facts of their existence.
In line with the ruling, the May 2014 law is framed as a legal concession, essentially granting civil amnesty to children whose parents are held to have defrauded the state by registering them as Dominicans to begin with. The fiction that the affected individuals were never Dominican nationals is maintained, and their denationalization is therefore retroactive to their birth; the law does not in any way purport to provide restoration of pre-existing rights. It has been widely criticized as insufficient and in violation of human rights norms. Implementation of the law has been slow, with the responsible authorities unable to meet the needs of the many thousands of affected persons.
The IACHR entered the fray again in October 2014. Its decision in the Expelled Dominican and Haitian People v. Dominican Republic case found that the September 2013 ruling by the Dominican Constitutional Court, as well as the May 2014 legislative scheme to address the problem of documentation, breached the Dominican Republic’s human rights obligations.
In a prompt response and escalation, the Dominican government offhandedly rejected the ruling. Two weeks later the Constitutional Court declared unconstitutional the instrument by which the Dominican Republic recognized the IACHR’s competence.
As political stakes escalated over the course of 2014, with no promise of abating, the Dominican government—and its highest court—forced an uncomfortable confrontation between national prerogatives and the regional human rights system. High-level dialogues continue to grapple with important questions, including the power of the Inter-American system to deliver on the vision of the American Convention and the existence and meaning of rule of law in the wake of the Dominican Republic’s defiance. But the international standoff also threatens to obscure the humanitarian crisis that still simmers within Dominican borders, as thousands of individuals await a remedy that will restore access to essential services and basic rights.