The countries of North, Central, and South America for the most part share a common tradition of attribution of citizenship based on birth in the territory, known as the jus soli rule. Notwithstanding some caveats, this rule broadly provides protection against statelessness and means that the continent as a whole has the lowest number of stateless people compared to other regions of the world. Therefore, in most of these countries, it is likely that the majority of those who are stateless are migrants – that is, those affected have themselves moved from another country.
However, some countries have used restrictions to the jus soli rule to exclude significant numbers from citizenship, including the descendants of migrants over several generations, while lack of birth registration leaves the status of others in doubt. Mapping of statelessness in the continent is limited, but national studies have begun to highlight the previously hidden situation of stateless individuals: a 2012 study of statelessness in the US, for example, highlighted the plight of stateless asylum seekers and migrants, many of them held in immigration detention. They may face particular challenges both as members of ethnic, religious or linguistic minorities in their country of origin and within the US and also as stateless individuals. Research in Canada has shown a similar picture. For the region as a whole, UNHCR reported a total of 136,585 stateless persons in the Americas as of 2015, almost all of them (133,770) in the Dominican Republic. In its 2016 Global Trends report, however, the figure for the Dominican Republic was left blank to reflect efforts underway to resolve this situation – though the problem of statelessness in the country is far from being resolved.
Indeed, the ongoing statelessness crisis in the Dominican Republic remains the most important in the region. The situation primarily affects the descendants of Haitian migrant workers in the sugarcane industry, and is at least partly based on racism against people of African descent. Under the 1929 Constitution, children born in the country were automatically attributed Dominican nationality, unless their parents were diplomats or ‘in transit’, a condition historically interpreted as meaning present in the country for only a few days. From the early 1990s, however, the Dominican government implemented a series of administrative, legislative and judicial measures aimed at restricting access to Dominican nationality.
In 2004, a new migration law formally designated temporary foreign workers and undocumented migrant workers as foreigners ‘in transit’, followed in January 2010 by a new Constitution which provided that children born in the Dominican Republic whose parents were irregular migrants no longer had the automatic right to Dominican nationality. In 2013, the Constitutional Court gave an extraordinary judgment that ruled that children born in the Dominican Republic to foreign parents who did not have regular migration status had never been entitled to Dominican nationality – a judgment applied retrospectively to people born since 1929. Although a new law was adopted under international pressure in May 2014 to restore access to nationality for some, it did not automatically benefit those born before the 2010 Constitution came into effect, though it provided some limited rights for them to apply to (re-)acquire Dominican nationality. Tens of thousands of people remained stateless, some of whom had been deported to Haiti but were not recognized there as nationals.
The government’s crackdown on the Dominico-Haitian population can only be fully understood in the broader context of their extreme discrimination as a minority within the country, a long history of exploitation and persecution that included periodic attacks against them, including the notorious 1937 ‘Parsley massacre’ where thousands of ethnic Haitians were murdered by Dominican soldiers.
People of Haitian descent are also at risk of statelessness in the Bahamas, where perhaps up to one quarter of the population are of Haitian origin. Though many are citizens, some have faced difficulties in asserting rights in the Bahamas although they have lost any connection to Haiti. Unlike most other countries in the Americas, the Bahamas generally attributes citizenship on the basis of descent, while gender discrimination persists in nationality law, creating additional barriers to citizenship.
Other countries in the region ensure that the children of migrants are able to access nationality, providing a contrast to the Dominican Republic. In Chile, for example, after some years of political controversy in the interpretation of the meaning of a parent being ‘in transit’, the Civil Registry stated in 2014, in line with a series of decisions by the Supreme Court, that it would record the Chilean nationality of children born in the country, with exceptions only for children of short-term visitors. Those most impacted by previous restrictions were the children of low-income migrants, especially those of African descent.
Another group at risk of statelessness in the Americas are members of indigenous populations living in border regions. In countries with a legal framework providing citizenship on the basis of birth in the country, birth registration is especially important for proof of citizenship, since it is the only legally accepted proof of location of birth. Those living in remote areas are least likely to access civil registration, and some may even actively avoid contact with state services. Problems related to statelessness among indigenous peoples resulting from lack of birth registration are not well studied, but have been reported in a number of Latin American countries, including Brazil, Chile, and Columbia. Among these groups are Aymara living on the border of Chile and Peru, as well as Wayuu residing in a zone extending across the national borders of Colombia and Venezuela. Children of undocumented migrants or displaced people, or generally those from poor families, are also more likely not to have their births registered, leaving them at risk of various forms of exclusion, including statelessness.
Photo: Dominican man of Haitian Descent – still taken from MRG’s film ‘Our Lives in Transit’.
