Tag Archives: Court

A step towards progress between Haiti and the Dominican Republic?

Alicia Nicholls

The news this week of progress in the talks at Jimani between Haiti and the Dominican Republic to address, inter alia, the long-standing migration issue between the two countries is welcomed news. The fragile diplomatic relationship between the Dominican Republic and Haiti took a sharp turn for the worse in the latter part of last year following a controversial ruling by the DR’s Constitutional Court  on September 23.

The DR’s Constitutional Court had been called on to consider an application made by Ms. Juliana Deguis Pierre that the Electoral Office be ordered to issue her with a national ID card which she had been denied on the basis that she was the child of Haitian parents and not Dominican. Ms. Pierre was born and raised in Los Jovillos, an area in Yamasa municipality (in Monte Plata province) where many persons of Haitian origin live. Denying her request, the Court ruled that Ms. Pierre was not a Dominican citizen but a child born of ‘foreigners in transit’. Using the case as an opportunity to elaborate on Dominican nationality law, the Court applied the restriction on the jus soli principle per Article 18 of the 2010 Constitution, holding that under Dominican law birth on Dominican soil did not automatically confer citizenship on an individual and that for a person born after 1929 to be deemed a citizen of the Dominican Republic, he or she must have been born to at least one parent with legal status in the country. All other persons who did not meet this criterion would be classified as being ‘extranjeros en transito” (foreigners in transit) and therefore as never having had Dominican citizenship.  A copy of the court’s judgment can be read here (in Spanish).

The principle in Dominican immigration law of “foreigner in transit” is not new as it was included in the Constitution of 1929 and in subsequent constitutional reforms, including as recently as in Article 18.3 of the reformed constitution of January 26, 2010. However, prior to the 2010 Constitution, citizenship in the Dominican Republic was conferred on an absolute jus soli basis as evidenced by the language used in previous constitutions, which excluded any reference to the requirement of being born of Dominican parentage. The Court’s retroactive ruling which applies the jus sanguinis principle, established in Article 18 of the 2010 Constitution, to those born after 1929 (and not just to those born after 2010) leaves several generations of Dominicans of foreign descent in a legal limbo as to their status. The retroactive application by the Court of Article 18 to this case seems especially harsh given that the 2010 constitution itself does not indicate that it is meant  to apply retroactively, evidenced by Article 18.2. which states that “Dominicans [also] include those who enjoyed nationality before the entry into force of the Constitution”. A copy of the 2010 Constitution may be found here (in Spanish).

While persons born to parents of other nationalities will be affected, it is persons of Haitian descent who make up the overwhelming majority of persons to whom this ruling would apply.  Some human rights groups estimate that as many as 200,000 persons of Haitian descent may be affected by the ruling. Haiti and the Dominican Republic, which share the Caribbean island of Hispaniola, have always had a tense and complicated relationship which has its roots in the colonial era and in subsequent historical events. These events include the 22-year Haitian occupation of the Dominican Republic in the immediate post-colonial period before the latter attained its independence, and the slaughter of thousands of Haitians by the Trujillo dictatorship in 1937. The socioeconomic disparities between the two states and their cultural, religious, linguistic and racial differences, a legacy of colonialism, have only helped to further deepen the gulf between these two sister nations. A constant source of tension between the two states has been undocumented Haitian migration to the Dominican Republic. Ever since the 1920s when Haitian workers were actively recruited to work in the Dominican Republic’s sugar industry, the Dominican Republic has been an attractive employment market for seasonal and long-term Haitian workers searching for a better life for themselves and their families. Many of those affected by the ruling include Haitians who had been brought in to work on Dominican farms during the 1920s and their descendants born and raised in the DR.

Haitian emigration to the Dominican Republic has helped to foment anti-Haitian sentiment among some Dominicans, a sentiment which is also boosted because of the Dominican Republic’s own racially stratified society where darker skin is still synonymous with being poor and uneducated.

The immigration policy of states is always a touchy subject because of the importance it has for national security. Indeed, it is no doubt that inherent in being a sovereign nation is the right of the state to protect its borders. Both customary international law and the Montevideo Convention of 1933 provide that no state has the right to intervene in the internal or external affairs of another. Further, international law gives states the right to dictate their own policies in regards to conferring nationality.

However, these rights are not absolute as they are subject, inter alia, to the various international human rights treaties which States, like the DR, have acceded to, and by which they agree to respect human rights and to be held accountable for any violation thereof. The human rights implications of the constitutional court’s ruling cannot be overlooked on the basis that the ruling is solely in the province of the DR’s internal affairs. The ruling has been condemned by CARICOM states (of which Haiti is a member) and by various human rights groups as being ‘racist’ and ‘xenophobic’ in nature and with potentially devastating human rights consequences.

Although Dominican authorities deny that the ruling leaves anyone stateless and argue that a plan for naturalisation of affected persons would be implemented, the Court’s retroactive application of Article 18 of the 2010 Constitution does have the effect of stripping those affected of citizenship, depriving them of the rights inherent with nationality, such as the right to vote, the ability to get married and the right of access to basic services such as education, employment and health care, and bringing with it the possibility of expulsion from the land of their birth. Like Juliana Deguis Pierre, many of those three generations of Haitians who are affected were born in, and have lived in the Dominican Republic all their lives, have little or no ties to Haiti and speak no Haitian creole.  In light of the ruling, CARICOM has agreed to indefinitely defer consideration of the Dominican Republic’s longstanding application to accede to CARICOM.

Happily, it appears tentatively that some progress is being made to address this unfortunate state of affairs. Both countries have agreed to establish a Joint Commission to discuss not just issues relating to migration, but also matters of trade, the environment, security, among others. The Dominican Republic has stated that it will as shortly as February 27th bring legislation to address the situation of those born in the Dominican Republic but who currently have no documentation. It is hoped that such legislation will undo the human rights injustice which this ruling portends, affirming the right of those affected to Dominican nationality and being a needed step towards addressing and correcting  the discrimination which many native born Dominicans of Haitian  descent continue to face.

Alicia Nicholls is a trade policy specialist and law graduate. She can be followed on Twitter at @Licylaw. 

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Myrie case going to the Caribbean Court of Justice – Some thoughts

Alicia Nicholls

The Myrie case is heading for the region’s highest court early next year.  For those of you who do not know the unfortunate details involved, this case concerns a young Jamaican lady, Shanique Myrie, who was allegedly subjected to a degrading body cavity search at the Grantley Adams International Airport here in Barbados earlier this year. I use the term alleged because in the absence of any substantive information by the two Governments involved, many of the details in this case remain shrouded in a fog of uncertainty and speculation.

In its original jurisdiction the Trinidad-based Caribbean Court of Justice has compulsory and exclusive jurisdiction to hear and determine disputes concerning the interpretation and application of the Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single Market and Economy. Naturally therefore, it would be within the Court’s competence to deal with the main issue involved here, that is, the freedom of movement of Community nationals, which is one of the pillars of the CARICOM Single Market and Economy (CSME).

An intriguing aspect of the CCJ is that per Article 222 of the Revised Treaty, a  person (whether a private individual or company) can, with special leave of the Court, commence proceedings in the Court as a private entity, as opposed to having to rely on its respective State to bring a claim on its behalf.  Outside of investor-state dispute settlement, claims brought by private persons in international dispute settlement fora remain a rarity in international law. However, from a quick perusal of the list of judgments on the CCJ’s website, it seems so far that bringing a  claim as a private entity is the preferred avenue for commencing proceedings in the CCJ in its original jurisdiction (see the most recent case of Hummingbird Rice Mills Ltd v Suriname for example). This lack of preference for State-to-State dispute settlement was also noted by The Honourable Sir Dennis Byron, President of the CCJ in his recent paper.

Turning back to the case at hand, it appears that this is probably the avenue that counsel for Ms. Myrie’s will be taking. While this may be the more expensive route for the Myrie team, it would arguably prevent the more politically unpalatable and potentially divisive alternative of having two CARICOM States (Barbados and Jamaica) seemingly at loggerheads in our highest regional tribunal. Without doubt, it is regrettable that diplomatic means of dispute settlement have failed to resolve this issue.  After all, this case remains a sore point in the relations between the two countries concerned. Moreover, the victim would have to wait longer for justice. However, from an academic standpoint, this case will present an opportunity to see the Court’s treatment of the issue of freedom of movement of CARICOM nationals, as well as the development of the Court’s jurisprudence.

Alicia Nicholls is a trade policy specialist and a law student at the University of the West Indies. You can contact her by email and follow her on Twitter at @Licylaw.