Identifier
Created
Classification
Origin
06SANTODOMINGO1955
2006-06-12 20:16:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Santo Domingo
Cable title:  

DOMINICAN REPUBLIC EMBRACES IACHR: PLACES JUDGE

Tags:  PHUM KJUS OAS DR HA 
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DE RUEHDG #1955/01 1632016
ZNR UUUUU ZZH
P 122016Z JUN 06
FM AMEMBASSY SANTO DOMINGO
TO RUEHC/SECSTATE WASHDC PRIORITY 5113
INFO RUEHZA/WHA CENTRAL AMERICAN COLLECTIVE PRIORITY
RUEHPU/AMEMBASSY PORT AU PRINCE PRIORITY 4277
RUMISTA/CDR USSOUTHCOM MIAMI FL PRIORITY
RHEFDIA/DIA WASHDC PRIORITY
RUEAIIA/CIA WASHDC PRIORITY
UNCLAS SANTO DOMINGO 001955 

SIPDIS

SENSITIVE
SIPDIS

DEPARTMENT FOR WHA/CAR, WHA/OAS, DRL, IO/RHS

E.O. 12958: N/A
TAGS: PHUM KJUS OAS DR HA
SUBJECT: DOMINICAN REPUBLIC EMBRACES IACHR: PLACES JUDGE
AND ACCEPTS JUDGEMENT


UNCLAS SANTO DOMINGO 001955

SIPDIS

SENSITIVE
SIPDIS

DEPARTMENT FOR WHA/CAR, WHA/OAS, DRL, IO/RHS

E.O. 12958: N/A
TAGS: PHUM KJUS OAS DR HA
SUBJECT: DOMINICAN REPUBLIC EMBRACES IACHR: PLACES JUDGE
AND ACCEPTS JUDGEMENT



1. (U) Long-time Foreign Ministry professional Dr. Radhys
Abreu de Polanco was elected from among 6 candidates during
the recent OAS General Assembly (June 4-6) to serve a term as
judge on the Inter-American Court of Human Rights (IACHR).
She is one of six judges; each has a term of six years with
the possibility of one re-election. Not coincidentally,
during the first day,s private session of heads of
delegation, Dominican Foreign Minister Carlos Morales
Troncoso reaffirmed that the Dominican government would
satisfy the September 2005 IACHR judgment it lost in the case
of Yean and Bosico v. Dominican Republic (Case 130, Inter-Am.
C.H.R. (Sept. 8, 2005)). In that case, the government,s
refusal to award birth certificates was found to have
violated the subjects, rights under international law.

2. (SBU) This reaffirmation shows that the Fernandez
administration responds positively to discrete legal
decisions and reacts rationally when subjected to
international pressure. It should not be read as a signal of
a change in migration policy or as a rethinking of the
treatment of the Dominican Republic,s community of
undocumented Haitian migrants, numbering up to one million
persons in a country officially populated by nine million.
THE CASE

3. (U) In Yean and Bosico, attorneys assisted by the
University of California Berkeley Human Rights Center had
spent several years petitioning the Dominican government and
subsequently the Inter-American Human Rights Commission on
behalf of two minors of Haitian ancestry, born in the
Dominican Republic of Dominican mothers, who were denied the
benefit of "late birth registration." Applicants were denied
birth certificates when their parents proved unable to verify
Dominican citizenship under a stringent 11-point proof of
nationality test governing the late registration of births in
the Dominican Republic. In 2000, when the Commission was
unable to mediate a satisfactory outcome, it referred the
case to the IACHR. The Dominican government summarily issued
the birth certificates in 2001 and declared the case
concluded, but the plaintiffs continued the action in search
of compensation.

4. (U) Following a trial marked by the submission of

numerous amicus curiae briefs, in September, 2005 the IACHR
found that the initial denial of the birth certificates had
violated the girls, rights to nationality, equality before
the law, a juridical personality, a name, and special
protection as enshrined by international law and agreement,
as well as the girls, families, right to personal integrity.

5. (U) While the Court also held that the "in transit"
exception to jus soli citizenship as provided by the
Dominican Constitution could not be read so broadly as to
exclude all undocumented migrants, this holding was not on
point; the girls, mothers, while undocumented, were clearly
not migrants. That is to say, the broader issue of Dominican
citizenship for the children of Haitian migrants was not
before the Court.
THE INITIAL POST-DECISION REACTION...

6. (U) Even so, initial Dominican reaction to this decision
focused overwhelmingly on the impact of the Haitian community
on life in the Dominican Republic, with nationalists
denouncing foreign interference and fear mongering.
Reputable periodicals did, and still do, refer to the
plaintiffs as "Haitians" and the issue as one of "Haitian
immigrants." (See, e.g., Listin Diario, "El pas est en la
mira de los organismos internacionales" (Nov. 4, 2005))

7. (U) Both the PLD-controlled Foreign Ministry and the
opposition PRD-controlled Senate responded negatively. The
Foreign Minister called the decision "unacceptable" and the
Senate passed a non-binding resolution rejecting the
decision. In October 2005, in an unrelated case the
Dominican Supreme Court upheld the 2004 Migration Law that
explicitly adopted the widest possible interpretation of the
Constitution,s "in transit" exception to citizenship. This
essentially ensured that children of migrants without
residence permits would not be eligible for citizenship.
. . . GETS A COMMON SENSE MODIFICATION

8. (SBU) After the furor died down, the Dominican government
found itself with a fairly limited IACHR decision calling for
a series of relatively painless and concrete actions: the
Court,s sentence should be published nationally, a public
act of recognition of responsibility should be made along
with an apology to the plaintiffs, the equivalent of USD
22,000 in compensation should be paid to the aggrieved
parties, and legislative and administrative measures should
be implemented to ensure the non-discriminatory issuance of
birth certificates.

9. (SBU) Recognizing that satisfying the majority of the

Court,s specific demands would be a simpler task than
answering its systemic critiques, the government responded.
The first point has been accomplished, the second point is in
train, and the third point should be accomplished soon, as
well. The fourth point concerning issuance of birth
certificates appears mired in difficulty and is a
long-standing issue for larger Dominican community.
Approximately 30 percent of Dominican citizens live without
citizenship documents, largely because of difficulties and
fees faced by their parents in proving nationality. The
current process for issuing birth certificates results in de
facto discrimination against Haitian migrants, but the
deprived are generally the lowest of the socio-economic
classes, regardless of nationality.

10. (SBU) The Dominican government's response appears not to
set forth an approach to the problem of Haitian migration.
Proposed draft implementing regulations for a 2004 migration
law were first offered for public comment only until November
2005, then quickly disappeared into the Office of the
Presidency without any notable discourse. Those draft
regulations offered an approach to grant amnesty and legal
status to illegal migrants present in the country for a
period of 5 years or more.

11. (SBU) The price for Foreign Minister Morales Troncoso to
commit publicly to carry out the Court,s edict is
essentially zero. The commitment is narrow and scarcely
challenges the views of Dominican nationalists. The only
truly difficult demand made by the Court is the fourth, which
is a long-term concern of Dominican civil society in any case.

12. (SBU) The benefits of compliance were considerable:
affirmation of treaty obligations, international good will,
avoidance of bad press during the OAS General Assembly, and
the success in engineering the election to the IACHR of
Dominican Radhys Abreu de Polanco. In an era where a state's
activities are increasingly judged by the international
community, representation on international judicial bodies
becomes increasingly important. This Embassy sees no reason
to suggest that Abreu de Polanco will be anything less that a
responsible international jurist -- indeed, her twenty years
or more of service in the Foreign Ministry (most recently as
Deputy Chief of the UN/OAS Human Rights Section),coupled
with her academic background evidences a dedication both to
public service and to international human rights. But it is
certain that a Dominican perspective on the IACHR will be
welcomed by this and future administrations.

13. (U) Drafted by Michael Garuckis.
KUBISKE