MINELRES: IACHR Affirms the Human Right to Nationality and Upholds the International Prohibition on Racial Discrimination in Access to Nationality

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Fri Oct 21 18:09:46 2005


Original sender: Justice Initiative <info@justiceinitiative.org>


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INTER-AMERICAN COURT OF HUMAN RIGHTS AFFIRMS THE HUMAN RIGHT TO
NATIONALITY AND UPHOLDS THE INTERNATIONAL PROHIBITION ON RACIAL
DISCRIMINATION IN ACCESS TO NATIONALITY

New York, October 17, 2005 - The Inter-American Court of Human Rights
issued a landmark decision on October 7, 2005, affirming the human right
to nationality as the gateway to the equal enjoyment of all rights as
civic members of a state. The Court's ruling in Dilcia Yean and Violeta
Bosico v. Dominican Republic marks the first time that an international
human rights tribunal has unequivocally upheld the international
prohibition on racial discrimination in access to nationality.

This case was brought by two girls of Haitian descent who were born on
Dominican territory and have resided there their whole lives but were
denied Dominican nationality in contravention of the country's
constitution. As a result, they could not obtain birth certificates or
enroll in school, and they remained vulnerable to expulsion from their
home country.

The Inter-American Court concluded that the Dominican Republic's
discriminatory application of nationality and birth registration laws
and regulations rendered children of Haitian descent stateless and
unable to access other critical rights such as the right to education,
the right to recognition of juridical personality, the right to a name,
and the right to equal protection before the law (all enshrined in the
American Convention and numerous other international human rights
instruments).

The Court observed that:

 Nationality is the legal bond that guarantees individuals the full
enjoyment of all human rights as a member the political community.

 Although states maintain the sovereign right to regulate nationality,
states' discretion must be limited by international human rights
standards that protect individuals against arbitrary state actions.
States are particularly limited in their discretion to grant nationality
by their obligations to guarantee equal protection before the law and to
prevent, avoid, and reduce statelessness.

 In granting nationality, states must abstain from producing and
enforcing regulations that are discriminatory on their face or that have
discriminatory effects on different groups within a population.

 States have an obligation to avoid adopting legislation or engaging in
practices with respect to the granting of nationality whose application
would lead to an increase in the number of stateless persons.
Statelessness makes impossible the recognition of a juridical
personality and the enjoyment of civil and political rights, and
produces a condition of extreme vulnerability.

 States cannot base the denial of nationality to children on the
immigration status of their parents.

 The proof required by governments to establish that an individual was
born on a state's territory must be reasonable and cannot present an
obstacle to the right to nationality.

The Court ordered the Dominican Republic to reform its birth
registration system and create an effective procedure to issue birth
certificates to all children born on the territory regardless of their
parents' migratory status; open its school doors to all children,
including children of Haitian descent; publicly acknowledge its
responsibility for the human rights violations within six months of the
sentence date; widely disseminate the sentence; and pay monetary damages
to the applicants and their families.

The Justice Initiative submitted an amicus curiae brief to the
Inter-American Court in this case, arguing that racial discrimination in
access to nationality is a violation of human rights and asking the
Court to uphold the international prohibition on racial discrimination
in access to nationality. The Court's binding decision comes after seven
years of litigation by the Association of Women of Haitian Descent
(MUDHA), the International Human Rights Clinic at the University of
California, Berkeley, School of Law, and the Center for Justice and
International Law (CEJIL).

Racial discrimination in access to nationality is a global problem. This
ruling is an important contribution to international jurisprudence on
non-discrimination and the right to nationality.

More Information To learn more about the case of Dilcia Yean and Violeta
Bosico v. Dominican Republic, and get a copy of the ruling, visit:
http://www.justiceinitiative.org/db/resource2?res_id=103001

The URL for this page is:
http://www.justiceinitiative.org/db/resource2?res_id=103001 

___________________ 

The Open Society Justice Initiative, an operational program of the Open
Society Institute (OSI), pursues law reform activities grounded in the
protection of human rights, and contributes to the development of legal
capacity for open societies worldwide. The Justice Initiative combines
litigation, legal advocacy, technical assistance, and the dissemination
of knowledge to secure advances in five priority areas: national
criminal justice, international justice, freedom of information and
expression, equality and citizenship, and anticorruption. Its offices
are in Abuja, Budapest, and New York. 

www.justiceinitiative.org

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