Dominican Birth Certificate by kez13588

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									 P.O. Box 5675, Berkeley, CA 94705 USA


             Committee on the Elimination of Racial Discrimination
                  2008 Review of the Dominican Republic
1.        There are an estimated 800,000 Haitians living in the Dominican Republic,1 which
include 280,000 Dominican-born individuals of Haitian descent that lack documentation and a
nationality.2 Due to poor conditions and the lack of stability in Haiti, these numbers will
probably increase in the future.3 This is a very tense situation, as the Dominican Republic is a
poor nation, with 30% of its population living below poverty.4 Many Dominicans feel that
Haitians are a burden to the country and have expressed frustration with efforts to aid Haitians
when so many Dominicans are in need.

2.        Traditionally, Haitian migrants have been needed to work on sugarcane plantations –
grueling work that Dominicans cannot or will not do. When the demand for sugarcane was
low, there was no work for Haitian migrants, and the Dominican government often ordered that
thousands of Haitian migrants be immediately repatriated back to their country. Who was
chosen to be expelled was always arbitrary. Many of those expelled were lawful residents, but
were judged based on the color of their skin or language spoken. This cycle of ordering
Haitians in during a cane crop and out years later at the whim of the political leader occurred
on a regular basis, always without notice or legal process.

3.        Today, the sugar market has plummeted and the Dominican economy is shifting to
other agricultural production and tourism. Migrants are still needed, but many Haitian
migrants and their descendents are under or unemployed. Haitians migrants tend to live in
communities together, isolated from Dominican communities, in constant fear of being
assaulted, arrested, repatriated or scapegoated in some way. I have visited several of these
isolated Haitian communities. They told me that many of them were brought over as migrants
to work on the sugarcane plantations 20 or more years ago, but have not been given the
opportunity to apply for legal residence. Many of their children were born in the Dominican
Republic, but were not issued birth certificates and have no way of getting Dominican

 1
   International Rescue Committee Women’s Commission for Refugee Women and Children, Dominican
 Republic Delegation (February 15-18, 2005), 1-18, 5, http://www.womenscommission.org/pdf/Ht_Do.pdf
 (accessed August 6, 2007).
 2
   Amnesty International USA Action Alert,
 http://takeaction.amnestyusa.org/site/c.goJTI0OvElH/b.2117787/k.9FD7/Protect_the_rights_of_children_in
 _the_Dominican_Republic.htm
 3
   Id.
 4
   United States Agency for International Development, Dominican Republic Overview,
 http://www.usaid.gov/pubs/cbj2003/lac/dr/ (accessed August 6, 2007).
identification cards to become legal residents. Many of these communities do not have access
to potable water or sewer systems. In 2006, one community told me that before the 2005
UNICEF training, their children were always sick with preventable parasites. Without the
assistance from nongovernmental organizations, these Haitian communities have virtually no
access to medical care or education.

 4.       In sum, the Dominican Republic has reacted to the presence of Haitians within their
country by denying them access to certain basic rights, including nationality, health care and
education (violations of CERD Articles 4 and 5(d) and (e)). Although internationally the
Dominican Republic has signed on to treaties and agreements that are meant to protect those
rights, the Dominican government has not complied with its own legal obligations and has
adopted policies which conflict with these treaties.

Dominican Children of Haitian Parents Denied Birth Certificates and Citizenship,
Education and Healthcare
5.        Children of Haitian parents born in the Dominican Republic are not issued birth
certificates and therefore are not granted citizenship or nationality upon birth, in violation of
CERD Articles 5(d). Depending on the hospital, they are occasionally given a “pink”
document, which acknowledges the date of the birth and the parents’ names, but does not grant
nationality, legal status, or record the birth officially. Without an official “white” birth
certificate, children cannot obtain a “cedula” or national identification card. The “cedula” is
required to obtain government services including education and health services.

6.        The Dominican Constitution Article 11 states that any person born on Dominican soil
(“jus solis”) is entitled to Dominican citizenship.5 But the Constitution contains an “in transit
exception,” which exempts those traveling through the country and the children of diplomats
from acquiring citizenship as they are only temporarily in the country. For years the
Dominican government has used the “in transit exception” to exempt Haitians and children
born to Haitians from obtaining a birth certificate and therefore Dominican nationality. In
2004 the “in transit exception” was codified into the General Law on Migration 285-04,
providing that only children of “residents” born on Dominican soil are entitled to Dominican
nationality. 6 The new law defines “non-residents” broadly to include temporary workers,
those who entered the country legally but have overstayed their visas, undocumented migrants,
and persons who cannot otherwise prove their legal residence in the Dominican Republic.7



 5
   Constitution of the Dominican Republic, art. 11 (2002), available at
 http://pdba.georgetown.edu/Constitutions/DomRep/domrep02.html (accessed Aug. 6, 2007). In Spanish,
 the Constitution reads: “Todas las personas que nacieren en el territorio de la República, con excepción de
 los hijos legítimos de los extranjeros residentes en el país en representación diplomática o los que están de
 tránsito en él.”
 6
   Ley de Migración No. 285-04, Capitulo III, Sección III, Art. 28, available at
 http://www.seip.gov.do/consejo_nacional_migracion/ley/ley.pdf (stating that if the mother is foreign or
 lacks Dominican documents than the child will not be given a birth certificate but will be given a pink
 certificate listing the mother’s name and date, will be recorded in a book of foreigners and then will be
 referred to the consulate for her country of origin in order to register the birth of the child and obtain
 citizenship for the child there. ).
 7
     Ley General De Migración No. 285-04, Article 36.


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7.        Interpreting Article 11 of the Dominican Constitution to apply to Haitians within the
Dominican Republic fails to recognize that many people of Haitian descent have been in the
Dominican Republic for generations or were born there. This constitutional interpretation
gives people who have spent the majority, if not all of their lives in the Dominican Republic,
the same status and rights as casual and temporary visitors with regard to the nationality of
their children

8.        In 2005, the Inter-American Court ruled that the Dominican Republic’s system of
registration for citizenship defied the country’s own constitution and violated the human rights
of two children named in the case who had been denied birth certificates because their parents
could not show they were Dominican residents. Without a Dominican birth certificate, the two
children not allowed to go to school, as happens to so many children of Haitian descent. The
Court then ordered the Dominican Republic to open its schools’ doors to all children, aiming to
end rampant discrimination in the nation’s education system against its Haitian minority. 8 The
Dominican government has refused to implement the decision nationally and has made recent
legislative and judicial attempts to override it. The country’s Vice-President denied the
validity of the decision.9 The Dominican Senate passed a resolution rejecting the decision.
The Supreme Court followed up by issuing a decision that defies the Inter-American Court’s
ruling.10

9.        Without documentation, individuals of Haitian descent live in fear of being deported
to Haiti, where they may not have any family, community, or cultural ties. Without
documentation and nationality an individual’s freedom of movement is curtailed. This confines
the individual to a life of permanent illegality, without the ability to take affirmative action to
create a better life.


Repatriation and Expulsion of Haitians
10.       Another important issue is the illegal repatriation and expulsion of Haitians from the
Dominican Republic. In May 2005, in response to rumors that a Dominican woman had been
murdered by a couple of Haitians, the government expelled approximately 2,000 Haitians
including women, children, and those with legal status in the Dominican Republic. As is
always the problem with mass expulsions in the Dominican Republic, law enforcement
officials go through communities of Haitians and Dominicans, and summarily decide who
should be put on the large buses back to Haiti. Victims are often legally in the Dominican
Republic, but are ordered onto the buses before they can prove their identity. Several
individual who were unlawfully repatriated filed a petition with the Inter-American
Commission on Human Rights in 2005, and the petition is still pending.11


 8
   Case of the Yean and Bosico Children v. The Dominican Republic, Case 130, Inter-Am. C.H.R. (Sept. 8,
 2005), available at http://www.corteidh.or.cr/seriec_ing/seriec_130_ing.doc (accessed February 27, 2008).
 9
   David C. Baluarte, Inter-American Justice Comes to the Dominican Republic: An Island Shakes as
 Human Rights and Sovereignty Clash, 13 NO.2 Hum. Rts. Brief 25 (2006).
 10
    Id.
 11
    Inter-American Commission on Human Rights, REPORT Nº 68/05; PETITION 12.271.Petition available
 http://www.cidh.org/annualrep/2005eng/DominicanRep.12271eng.htm (accessed February 27, 2008).


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11.       People were randomly selected for expulsion based on the color of their skin and
whether they spoke Spanish (the national Dominican language) or Creole (spoken by many
Haitians). Many of the expulsions took place without notice, in the middle of the night, and
resulted in the separation of families.
12.       Dominican law states that expulsions are to be conducted according to current laws
and ratified agreements.12 These expulsions were in violation of the American Convention on
Human Rights, which expressly prohibits the collective expulsion of foreign nationals. 13 The
Dominican Republic signed and ratified the treaty and is therefore bound by its provisions.14
The expulsions were also in direct violation of the Protocol of Understanding on the
Mechanisms of Repatriation with the Haitian government in December of 199915 and Article
13 of the International Covenant of Civil and Political Rights.16 The mass expulsion also
violated CERD Articles 4(a), 5(b), and 5(d). None of these victims had a right to legal redress
or reparation for their unlawful expulsion, violating CERD Article 6.
13.       Similar expulsions of Haitian communities has occurred for decades. In 1991,
President Balaguer ordered in Directive 233-91 the immediate expulsion of all undocumented
Haitians less than 16 years old and more than 60 years old. An estimated 35,000 people were
repatriated, without any legal proceedings.
14.       Any incident of repatriation reminds Haitians of the 1937 massacre, when President
Trujillo ordered that all undocumented Haitians be executed. Military officials were ordered to
use machetes rather than bullets so that the human rights community would think that the
massacre was a result of a civilian uprising, and not an order of the President. An estimated
10,000-30,000 Haitians were killed. The river separating the Dominican Republic and Haiti on
the North end of the island, appropriately named El Massacre, was red with the blood of
Haitians.


Precedent Legal Conclusions Concerning Dominicans of Haitian Descent
15.      Structural and social discrimination in the Dominican Republic against individuals of
Haitian descent has been widespread for many years and addressed by several treaty bodies.

16.       In 1999, the CERD Committee’s Concluding Observations showed concern with the
large number of Haitians living in the Dominican Republic who (in particular women and
children) are often unable to enjoy the most basic economic and social rights, such as housing,


 12
     Ley de Migración 285-04, supra note 5, at Capitulo VI, Section 3 Art. 26.
 13
     Article 22.9 of the American Convention on Human Rights (1969), available at
 http://www.oas.org/juridico/english/treaties/b-32.html (accessed August 6, 2007).
 14
     Signatories and Ratifications of the American Convention on Human Rights,
 http://www.oas.org/juridico/english/sigs/b-32.html. (accessed on August 6, 2007) (Dominican Republic
 signed the treaty on September 7, 1977 and ratified it on January 21, 1978).
 15
     Amnesty International, Open Letter to the President of the Dominican Republic, Online Documentation
 Archive, http://web.amnesty.org/library/Index/ENGAMR270012006?open&of=ENG-2M5 (March 8,2006).
 16
    International Covenant on Civil and Political Rights, available at
 http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (prohibits the expulsion of legal residents from the
 Dominican Republic without be given a chance to challenge the expulsion and being given the chance to
 have the case reviewed by a competent authority).


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education and health services. The Committee urged the State party to take measures to ensure
Haitians of equal economic and social rights.17

17.       In 2001, the Committee on the Rights of the Child was concerned with
discrimination against Haitian children of origin born in the State party's territory or belonging
to Haitian migrant families, especially their limited access to housing, education and health
services. The CRC also commented on denial of registration and ID cards by Haitian children
who are then denied certain rights. The CRC recommended that the State party strengthen its
data collection practices to include Haitian children in its census statistics.18

18.       In 2001, the Human Rights Committee expressed concern about the expulsion of
ethnic Haitians, failure to protect Haitians living or working in the Dominican Republic from
serious human rights abuses such as forced labor and cruel, inhuman or degrading treatment.19
In 1993, the Human Rights Committee expressed concern over the lack of protection
afforded to Haitians living or working in the country from forced labor and cruel, inhuman or
degrading treatment. The Committee also expresses concern over the degrading living and
working conditions of Haitian labourers and the tolerated practices that effectively restrict their
freedom of movement. The Committee urged the State party to ensure the implementation of
laws concerning labour standards, including adequate monitoring of working conditions. The
Committee emphasized the necessity of strengthening the capacity of the labour inspectorate to
effectively monitor the working conditions of Haitian labourers, with a view to ending their
slave-like exploitation.20

19.       In 2004, the Committee on the Elimination of Discrimination Against Women
expressed “concern about the discriminatory nature of the definition of nationality, which
directly affects one of the most vulnerable groups in the country, namely Dominican women
and girls of Haitian descent.” The Committee urged that the then proposed General Law on
Migration 285-04, which has not been adopted, comply with article 9 of the Convention
through elimination of all the provisions that discriminate against Dominican women and girls
of Haitian descent. 21

20.       In 1997, the Committee on Economic, Social and Cultural Rights welcomed the
establishment of a bilateral commission by the Dominican Republic and Haiti Governments
related to granting temporary work permits for Haitian seasonal sugar cane cutters during the
next harvest, in order to give them a legal status and to protect them from the exploitation
related to the lack of such status. The Committee also expressed concern about the situation of
Haitian illegal workers and by the situation of their children.22 In 1996, the Committee on
Economic, Social and Cultural Rights expressed concerned about the exploitation of
Haitians and their unacceptable living conditions in the bateyes, especially women workers
whose presence there is not administratively recognized and who therefore become vulnerable

 17
    CERD/C/304/Add.74 (26 Aug 1999).
 18
    CRC/C/15/Add.150: (Feb 2001).
 19
    CCPR/CO/71/DOM (26 April 2001).
 20
    CCPR/C/79/Add.18 (5 May 1993).
 21
    CEDAW/C/DOM/5 (11 April 2003); A/59/38(SUPP) (18 Aug 2004).
 22
    E/C.12/1/Add.16 (12 Dec 1997).


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to extreme exploitation. The Committee also expressed concern about the arbitrary
confiscation of identity cards called "cedulas" and the illegal deportation of persons of Haitian
origin born in the Dominican Republic during the 1995-1996 presidential campaign. The
Committee suggested that the government adopt clear legislation on nationality, which would
procure legal security to persons of Haitian origin born in the Dominican Republic and to their
children; which would require the authorities to register births without discrimination; and
which would allow Haitians to obtain Dominican nationality through naturalization under the
same conditions.23

Anti-Haitian Sentiment is Getting Worse

21.       It was been well documented that the long-standing anti-Haitian sentiment, which has
led to a violent and painful repression of Haitians, is fueled by racism. Racial prejudice in the
Dominican Republic runs deep. With independence back in the 1800s, Dominican nationalists
began constructing a separate Dominican identity, one that was defined in large part in
solidarity against the perceived Haitian threat. Labeling themselves "Hispanic" and Haitians
"black," a distinction motivated rooted in racial prejudice that ignores the Dominican
Republic's racial diversity, Dominican nationalists emphasized their racial and cultural distance
from Haiti.24

22.       Despite the recommendations by these various international bodies, the structural
discrimination and anti-Haitian sentiment has worsened – the 2004 codification of the second-
class pink birth certificate process (General Law on Migration 285-04) and the 2005 unlawful
repatriation of 2000 individuals of Haitian descent as the most notable examples.


Proposed Questions

1.       Discuss the reasoning behind listing the color of an individual’s skin on government
         issued identification cards (“cedulas”).

2.       Are children of undocumented Haitians permitted to attend public schools in the
         Dominican Republic? If so, until what level of education are they permitted? What
         mechanisms are in place to assure that public schools allow children of
         undocumented Haitians to enroll in school? Has the State government attempted to
         comply with the ruling of the Inter-American Human Rights Court in Yean and
         Bosico Children v. The Dominican Republic of 2005, which ordered the State
         government to open its schools to all children in the Dominican Republic? This also
         appears to be in conflict with Article 5(e)(v) of CERD. Do you intend to address this
         conflict?

3.       Are undocumented Haitians able to access medical care, such as urgent care and
         routine exams?

  23
    Available at: E/C.12/1/Add.6 (12 June 1996).
  24
    Human Rights Watch 2002 Report entitled "ILLEGAL PEOPLE": Haitians And Dominico-Haitians In
  The Dominican Republic, citing. Sagás, Race and Politics, p. 36.


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4.    There is concern about repatriation of several hundred Haitians in 2005, for which a
      petition has been filed in the Inter-American Commission on Human Rights. Please
      explain the situation behind this mass expulsion, and whether any of the people
      expelled were given the opportunity to judicial review before being expelled. What
      was the criteria used in selecting who was repatriated? How much notice were people
      given before being expelled? Was any precaution taken to care for the children
      remaining in the Dominican Republic when their parents were expelled to Haiti?

5.    There is concern about the State government’s recent implementation of Law on
      Migration No 285-04, which narrows the Dominican Constitution’s jus solis principles
      by denying children born in the Dominican Republic birth certificates if their parents
      cannot prove they are legal residents in the Dominican Republic. Without proof of
      legal residence, many of these children are denied the right to nationality, which
      seems conflict with Article 5(d)(iii) of CERD. Do you intend to address this conflict?

6.    What is the State party’s position on the Committee’s General Recommendation 30,
      requiring that state parties provide rights to non-citizens?

7.    If a person of Haitian descent is accused of violating a crime, is she or he provided
      with the right to judicial process in a Dominican court? If yes, and if that person is
      convicted, will that person be repatriated to Haiti or maintained in prison in the
      Dominican Republic?

8.    Are there any statistics on the rate of violence against Haitian women by Dominican
      men? Are any of the crimes investigated and the male perpetrators punished?

9.    How many political representatives are there in office in the Dominican Republic that
      are of Haitian descent?

10.   Is the State party aware of are any programs aimed at teaching cultural and racial
      acceptance of Haitians?




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