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Chapter Five

The Right to Nationality in International Law

3 min read

The right to nationality is guaranteed in numerous human rights instruments, including the Universal Declaration on Human Rights (Article 15), the Convention on the Rights of the Child (Article 7), and the American Convention on Human Rights (Article 20). While states can regulate the acquisition and retention of nationality, they must respect fundamental human rights norms in doing so. With regard to the Dominican Republic, the Inter­-American Court of Human Rights in the case of Expelled Dominicans and Haitians v. Dominican Republic, explained that, when regulating the granting of nationality, states must avoid rendering persons stateless, and they must not discriminate in the enjoyment of the right to nationality.

Obligation to avoid statelessness

The 1954 Convention Relating to the Status of Stateless Persons (Article 1(1)) defines a stateless person as someone who is not considered a national by any state under the operation of its law. Both the 1961 Convention on the Reduction of Statelessness (Article 1(1)) and the American Convention on Human Rights (Article 20(2)) require states to grant nationality to people born in their territory who would otherwise be stateless. The 1961 Convention on the Reduction of Statelessness (Article 8(1)) goes further and forbids states to deprive people of their nationality if such deprivation would render them stateless. According to the Inter­-American Court of Human Rights in the case of Yean and Bosico Girls v. Dominican Republic, states have the obligation not to adopt practices or laws concerning the granting of nationality if their application fosters an increase in the number of stateless persons. Moreover, in the case of Expelled Dominicans and Haitians v. Dominican Republic (para. 261), the Court explained that, where a state cannot be certain that a child born in its territory can obtain the nationality of another state, either for legal reasons or due to practical obstacles, it must grant nationality in order to avoid statelessness at birth.

Prohibition on discrimination in access to nationality

States cannot deprive people of their nationality on discriminatory grounds. This prohibition is included in the 1961 Convention on the Reduction of Statelessness (Article 9) and in the American Convention on Human Rights (Articles 20(1) and 24). The American Convention on Human Rights (Article 20(3)) forbids any arbitrary deprivation of nationality. According to the Inter­-American Court of Human Rights in the case of Yean and Bosico Girls v. Dominican Republic, these international norms forbid a state, which otherwise grants nationality to everyone born in the territory, from depriving a person of the right to nationality based on the migratory status of his or her parents.

Recent developments in the Dominican Republic

On 23 September 2013, in judgment TC/168/13, the Constitutional Court of the Dominican Republic retroactively stripped more than 200,000 persons of Haitian descent of their Dominican nationality. Pursuant to the Inter­-American Court’s holdings in the case of Yean and Bosico Girls v. Dominican Republic and in the case of Expelled Dominicans and Haitians v. Dominican Republic, by targeting persons of Haitian descent, making the migratory status of a person’s parents a condition for nationality, and depriving people of their nationality in a retroactive manner, the judgment violated the prohibitions on discrimination in access to nationality and on arbitrary deprivation of nationality. Moreover, the judgment entailed a risk of statelessness for hundreds of thousands of persons, as the Dominican Republic had not proven that those affected could obtain Haitian nationality. This is contrary to the object and purpose of the 1961 Convention on the Reduction of Statelessness, of which the Dominican Republic is a signatory.

In 2014, the Government of the Dominican Republic introduced Law No. 169­14, which purports to offer a path towards ‘naturalization’ for those affected by judgment TC0168/13. According to the Inter­-American Court of Human Rights in the case of Expelled Dominicans and Haitians v. Dominican Republic, by treating as aliens persons who had the right to Dominican nationality since birth, the law continues to violate the right to nationality and the right to equal protection of the law.

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