En español

Washington, D.C., April 14th, 2009

Dr. Leonel Antonio Fernández Reyna
President of the Dominican Republic

Dr. Reinaldo Pared Pérez
President of the Senate

Lic. Julio César Valentín
President of the House of Representatives

Dr. Julio César Castaños Guzmán
President of the Central Elections Board (Junta Central Electoral)

REF: Artículo 16 del Proyecto de Reforma Constitucional

Dear Representatives of the Dominican Government,

The Center for Justice and International Law (CEJIL), the Robert F. Kennedy Center for Justice and Human Rights, and Refugees International, are non-governmental organizations that work to promote and defend human rights in the American hemisphere. We write to express our concern with regard to draft Article 16 of the proposed Constitutional reform, which is currently being debated in the Dominican National Assembly.

Article 16 proposes the establishment of a new nationality regime that could be inconsistent with the international protection of human rights. Although the signing organizations recognize that all States have the right to legislate in matters of immigration and nationality, it is also true that international human rights law has imposed limits on that right: specifically, the duty to respect the fundamental rights of each individual. Therefore, we consider it necessary to submit for your consideration observations on certain provisions of the draft of Article 16, which, if adopted, would result in violations of international human rights norms. It is important to remember that in the Case of the Girls Yean and Bosico, the Inter-American Court of Human Rights ("Inter-American Court") clearly established the limits within which the Dominican State should construe its internal legal framework.

Our analysis is limited to two precise issues regarding provision (b) of draft Article 16, specifically the terms: "illegal residence" and "in transit."

Provision (b) of Article 16 establishes that: "Dominicans are those born in the national territory, with the exception of children of foreign members of diplomatic delegations and consulates or children of foreigners in transit or residing illegally in Dominican territory." We believe that the inclusion of the phrase "or residing illegally in Dominican territory" in the Constitution will make the Dominican legal framework incompatible with the international legal regime adopted by the Dominican Republic through the American Convention on Human Rights and other treaties and international agreements, in which the right to nationality and the right to equal treatment before the law are consecrated. Article 16’s incompatibility with this international legal regime is evidenced by the Inter-American Court’s jurisprudence, which has clarified these rights, establishing that "the migratory status of a person cannot be a condition for the State to grant nationality, because migratory status can never constitute a justification for depriving a person of the right to nationality or the enjoyment and exercise of his rights," and that "the migratory status of a person is not transmitted to the children."

Thus, if Article 16 were adopted by the Dominican Constitution in its current form, provision (b) would violate international law in two fundamental respects: i) it would make one’s migratory status, in this case one’s illegal residence, a basis for denying Dominican nationality; and ii) it would create a legal regime through which the illegal residence of one’s parents would be transferred to their children. Additionally, this language would likely permit the retroactive application of such rules to all those persons that could fall into this category. The fact that no implementing legislation for the Migration Law of 2004 has been enacted in the past four years has created a legal vacuum that increases the risk of the retroactive application of the proposed provision (b).

Therefore, we believe that the elimination of the phrase "or residing illegally in Dominican territory" from provision 16(b) of the draft Article is necessary for the Dominican Republic’s legal regime to remain in compliance with the international law.

Additionally, we recall that the Inter-American Court has also established that the phrase "in transit" must be interpreted as a reasonable time period. With regard to this particular point, the Court has held that "to consider that a person is in transit, irrespective of the classification used, the State must respect a reasonable temporal limit and understand that a foreigner who develops connections in a State cannot be equated to a person in transit."

Thus, we believe that the Congress should ensure the enactment of implementing legislation for the Migration Law of 2004 so that the government officials charged with enforcing immigration laws and birth registries have a clear legal framework that establishes the manner in which one determines whether persons are properly considered "in transit," and, particularly, that makes clear that persons who are living in the country cannot be considered as "in transit," regardless of their origin or immigration status.

We hope that the suggestions and observations included herein are useful in your consideration of the Constitutional reform.

Respectfully yours,

Viviana Krsticevic
Executive Director
CEJIL

Monika Kalra Varma
Director, Center of Human Rights
Robert F. Kennedy Center for
Justice & Human Rights

Kenneth H. Bacon
President
Refugees International