Following a decade of restrictive measures on migration and nationality matters, in late 2013 the Constitutional Tribunal in Santo Domingo issued a ruling, which effectively denationalised over 130,000 Dominicans of mainly Haitian ancestry. At the turn of a new decade, two developments - the COVID-19 pandemic, and a new government - provide new opportunities and challenges for addressing statelessness in the Dominican Republic.
Following a decade of restrictive measures on migration and nationality matters, in late 2013 the Constitutional Tribunal in Santo Domingo issued a ruling, which effectively denationalised over 130,000 Dominicans of mainly Haitian ancestry. Despite some limited pushback achieved by civil society actors and their allies at home and abroad, this egregious violation of human rights remains a blot on the national landscape. Compared with international norms for addressing statelessness, the legal framework that has been in place in the Dominican Republic since 2014 is inadequate but gives human rights defenders some room for manoeuvre to restore the rights of nationality-stripped persons.
At the turn of a new decade, two new developments have altered the policy environment. Clearly, the pandemic has aggravated pre-existing inequalities, highlighting the plight of stateless persons, along with other groups in vulnerable situations. Secondly, during the global health crisis, a new government came to power in the Dominican Republic, interrupting almost two decades of hard-line responses on migrant and nationality questions on the part of the outgoing administration. In this complex context, the challenge remains to intensify advocacy in a way that means civil society and human rights activists may address statelessness more effectively than has been done so previously.
How did we get here?
In 2013, a judgement of the Constitutional Tribunal in Santo Domingo attempted a mass denationalisation of Dominicans, mainly of Haitian ancestry. UNHCR noted that over 130,000 Dominican citizens were affected. This builds on a century of Haitian labour migration to the neighbouring Dominican Republic and well-documented abuses of human rights of migrants and their descendants born in the Dominican Republic. Modest pushback by Dominican civil society organisations and their allies abroad influenced the Dominican Congress’ approval of Law 169, the so-called ‘naturalisation law’. This was intended to remedy the situation for both those registered and who had been stripped of Dominican papers going back to 1929; and those never registered but who had the right to Dominican nationality under the Constitution when born.
The Dominican authorities assert that there is no statelessness in the Dominican Republic and that the legal framework in place suffices to cover those at risk of statelessness. When UNHCR convened States at the High Level Segment on Statelessness in late 2019 to discuss statelessness and attaining their campaign goal of eradicating statelessness by the end of 2024, the Dominican representation in Geneva reiterated this mantra.
However, an official 2018 study on the descendants of migrants born in the Dominican Republic reveals that individuals with two Haitian parents experience significant difficulty in integration because some 37% do not have identity documents. Official figures in country suggest that the operation of the so-called naturalisation law has been sluggish at best. Under 30,000 denationalised persons have been authorised to regain their Dominican papers and none of those who had the right to Dominican nationality but had never been registered, have been naturalised as prescribed by the law.
This timid implementation of the law is in part due to pressures from ultra-nationalists who espouse anti-Haitian sentiments and use the so-called “Haitian question” as a perennial distraction from domestic problems, such as rampant corruption. Moreover, the operation of the law coincided with a national regularisation plan for foreigners with an irregular migratory status. Thus, those who do not favour the right to nationality for those born to Haitian immigrants in the Dominican Republic confuse, conveniently for their purposes, the rights of Haitian migrants born in Haiti, and the rights of their children born in the Dominican Republic.
Nevertheless, the outgoing administration (whose PLD party had been in power for the better part of two decades) engaged in a magnanimous gesture, as they would see it, in a decree issued a week before the new government took power. This presidential decree of President Medina authorised a path to naturalisation for some 750 children of Haitian descent who applied to be naturalised and submitted their files accordingly.
A new government amid a health crisis and ongoing challenges
On August 16th 2020, the incoming government of President Abinader’s PRM party stepped into a challenging context where the Dominican Republic is both the single largest case of statelessness in Latin America and the Caribbean and the epicentre of the pandemic in the Caribbean.
There is a new window of opportunity with this political change, although it will not be plain sailing to try to override entrenched positions of ultra-right groups. Theoretically, the transition gesture on the naturalisation front enables the incumbent government to move forward, while sidestepping ultra-nationalist pressure to backslide. However, this is not a given, not least since there has already been a legal challenge to the decree from these groups, alleging it is anti-constitutional. President Abinader has tried to make light of this strategic litigation but it will require some clever legal footwork to ensure that the decree can indeed be materialised.
Furthermore, exceptional Covid-19 measures inherited from the previous government continue until the end of the year and protection gaps facing stateless and other groups in vulnerable situations ineligible for State aid will continue to be visible. Lack of documentation is a barrier to obtaining official social protection. Affected persons lack medical insurance and clean drinking water, while conditions are dire in impoverished communities. Small, overcrowded housing with shared toilet facilities work against social distancing. Likewise, the cost of renting is high meaning that many feel obliged to go out and earn a living despite quarantine and a state of emergency (with curfew) in place.
Many Dominicans of Haitian ancestry who are beneficiaries of Law 169 have their files in process and are unable to apply for assistance from the central government established under Covid-19. They are excluded from Quédate en casa (Stay at Home), a humanitarian aid programme to benefit families in vulnerable situations affected by Covid-19 measures; the FASE programme providing monetary assistance to employees in the private sector who have been suspended; and Pa Ti, a government programme for informal sector workers.
Civil registry disruption during Covid-19 has exacerbated barriers to birth registration, and will have lasting effects in the future. Reports show a differential negative impact on women, according to testimonies on intra-family violence and gender-based violence under confinement conditions. In the island context, some scapegoating and discrimination of those of Haitian origin is occurring, although Haiti so far has a far lower rate of Covid-19 infection and mortality than the Dominican Republic.
All these difficulties will require attention from the new Government. Additionally, the Government is committed to examining the regularisation plan for foreigners (2014-2020) that has failed according to its stated aims. Were it to have achieved residency status for the majority of those who applied, this could potentially reduce statelessness, since they could register their children born in the Dominican Republic as Dominicans.
A way forward for civil society
Strong strategic alliances at home and abroad are required to leverage pressure on the Dominican Republic to assume better protection standards and a domestic legal framework with which to effectively address statelessness. Dominican civil society must engage with the government on the 750 children whose naturalisation has been authorised, while international allies must focus on the inadequacies of the Dominican Republic’s legal framework. Accordingly, civil society can keep the door open for continuity with the previous Administration regarding the operationalisation of the naturalisation law, whilst also attempting to pave the way for dialogue with the new authorities on sustainable solutions to statelessness more generally.
Under pressure from the “usual suspects”, President Abinader’s Government started up cross-border deportations on September 21st, interrupting the suspension in place since the pandemic started. Civil society is contesting this premature “back to normal” measure, since Covid-19 is far from being contained or controlled nationally. On the one hand, undocumented Dominicans of Haitian ancestry may be unwittingly subjected to arbitrary detention, and potentially expelled from “their own country”. On the other, inter-State health protocols between the Dominican Republic and Haiti are absent but should be indispensable given the ongoing pandemic.
An ongoing and onerous task continues to be the need to document the pre-existing inequalities worsened by the pandemic. Pre-COVID, some 1.5 million Dominicans were beneficiaries of social protection programmes, for all of which, stateless people are by definition excluded due to their lack of a Dominican ID. International aid has filled some gaps caused by the State’s negligence of certain groups for whom expansive social assistance has not been forthcoming under Covid-19. However, civil society should not let the authorities off the hook for populations on their territory for whom they are responsible and for whom they have a historic debt.