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Summary: This report extracts mentions of children's rights issues in the reports of the UN Special Procedures. This does not include reports of child specific Special Procedures, such as the Special Rapporteur on the sale of children, child prostitution and child pornography, which are available as separate reports. Scroll to: ______________________________________________________________________________ Special Rapporteur on Racism and Independent Expert on Minorities Relevant international obligations: The Dominican Republic is party to all major international human rights instruments including, of particular relevance to the mandates on racism and minority issues, the International Covenant on Civil and Political Rights and its first Optional Protocol, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol. The Dominican Republic is not a party to the International Convention on the Protection of All Migrant Workers and Members of Their Families or the 1961 Convention on the Reduction of Statelessness. (Paragraph 10) The experts urge the Government to fully conform with its obligations under the Convention on the Rights of the Child for all children, irrespective of nationality, race or ethnic origin. Particular attention in this regard should be paid to children in vulnerable circumstances including those living in the bateyes or plantations, or otherwise in conditions of poverty and disadvantage. (Paragraph 134) Education: Representatives of the Ministry of Education and the National Council for Childhood and Adolescence (CONANI) highlighted that the right to education for all children is provided for in article 4 of the General Education Act, No. 66-97. This article states that "(a) Education is a permanent and inalienable human right. To ensure its effective enjoyment, everyone has the right to comprehensive education allowing the development of his or her personality and the performance of a socially useful activity in accordance with his or her aptitudes and with the local and national interest, without any discrimination on the grounds of race, sex, belief, economic and social status or any other basis". It was emphasized that the universal right to education is also provided for in Act No. 136-03, establishing the Code for the System of Protection of the Fundamental Rights of Children and Adolescents, which provides that "The provisions of this Code apply equally to all children and adolescents without any discrimination whatsoever on the grounds of race, colour, sex, age, language, opinion, conscience, religion, belief, culture, political or other views, economic status, social, ethnic or national origin, disability, illness, birth in a high-risk situation, or any other circumstance of the child or adolescent, his or her parents, representatives or guardians or of his or her family members". (Paragraph 19) Racist acts: Government officials acknowledged the possibility that sporadic, individual acts of racism may take place, though emphasizing that such cases would be the result of the motivation of private individuals and, therefore, could not in any case be attributed to an official policy of the Government. Mention was made in this regard of two allegedly racially discriminatory incidents that occurred in the past months in Santo Domingo: in the first one, in which an African-American US Embassy employee was denied access to a nightclub, the experts were told that relevant State authorities had formally complained to the owner of the nightclub; in the second one, in which a female student was killed following an incident in which a black young woman was denied access to another nightclub, State officials indicated that the national district first investigative judge ordered the temporary closure of the club premises in order to allow for a proper investigation of the facts. (Paragraph 24) Documentation: The official birth certificate is required for registering for schools, obtaining health insurance and for accessing other public services. It is also required in order to obtain a passport up to the age of 18. Upon the birth of a child in the Dominican Republic parents receive a document from the hospital, clinic or midwife called constancia de nacimiento (declaration of birth) which must be submitted to the registration office, which in turn registers the birth and issues a birth certificate. At the age of 18 it becomes necessary for individuals to obtain a cédula de identidad. The cédula is a vital document for adults in both public and private spheres, including for enrolment in university and obtaining lawful employment, for eligibility for health insurance and social security, and for the right to vote. It is also necessary for purchasing property, getting married and for registering and baptizing children. The cédula is valid for four years after which it must be renewed. (Paragraph 53) Without identity documents verifying their lawful presence in the country, they are left vulnerable to deportation or expulsion to Haiti, even as Dominican citizens with no or limited connection with Haiti. Those who were born in the Dominican Republic assert that they are being denied or deprived of their right to Dominican citizenship under article 11 of the Dominican Constitution, which is based on the principle of jus soli "except in the case of the legitimate children of foreign diplomats resident in the country or those whose parents are considered to be in transit". (Paragraph 56) In addressing the question of the legal status of long-term undocumented workers and the nationality of children born to Haitian parents in the Dominican Republic, the Inter-American Commission on Human Rights noted that while many countries grant citizenship or permanent resident status after lengthy periods of residency, this is not the case for Haitians in the Dominican Republic. In consideration of this issue, the Commission recommended in 1999 that the Dominican Republic adopt measures aimed at improving and regularizing the situation of undocumented Haitian workers by distributing work permits and residency cards and legalizing the situation of their children in keeping with article 11 of the Dominican Constitution. The Commission further observed that: "it is not possible to consider persons who have resided for several years in a country in which they have developed innumerable contacts of all types to be in transit." (Paragraph 57) The domestic jurisprudence in relation to the question of the nationality of children born to Haitian parents in the Dominican Republic is limited. Two cases with similar characteristics resulted in radically different court decisions. (Paragraph 58) The first case concerns the Maytime-Mondesir family, Haitian migrants living in Santiago de los Caballeros, whose three children, born in the Dominican Republic, were denied registration in the civil registration office on the grounds that they were Haitian. An appeal of this decision before the Court of First Instance in October 2002 was rejected on the grounds that the parents were illegally in the country and thus considered "in transit". In May 2003, this case was brought to the Supreme Court, but no ruling has been issued yet. (Paragraph 59) Two children of the Saint Jean-Bazil family in Santo Domingo, born in the Dominican Republic, were denied registration on the same grounds as in the above case. In December 2003, the Court of First Instance ordered the registration of the children in the civil registry office noting that: "1) For the purposes of the case, the court is indifferent to the situation of supposed illegality of the parents who are acting in representation of their minor children, who are in fact those that may be negatively affected or may benefit from the outcome of the recurso de amparo (amparo proceedings); 2) The court considers inappropriate to qualify as "in transit" the parents of the minors, on the grounds that Dominican legislation establishes that persons "in transit" are those persons entering the Dominican Republic with the principal purpose of continuing on to another destination outside the country, setting a period of ten days that applies for the qualification of "in transit", which is not the case of petitioners who are permanently in the country; 3) the court establishes that the principle of effective nationality must be recalled, which notes that nationality is characterized by the real and effective bond of the minors with the Dominican State, on the basis of permanent link, place of living, including education". The Central Electoral Board appealed the decision, but the Supreme Court has not yet pronounced itself on the case. (Paragraph 60) In August 2004, the Dominican Senate approved Migration Law No. 285-04, which inter alia introduced substantive and procedural changes to the regime for registering the births of children born on Dominican territory. Law No. 285-04 is being implemented de facto, notwithstanding that its accompanying regulations have not yet been approved by the President. (Paragraph 61) Law No. 258-04 creates the categories of "resident migrants" and "non-resident migrants." The latter category includes those temporary workers residing in the Dominican Republic and those who are illegal. Under this law, the category of "non-resident" is conflated with the concept of "in transit" status, thus all non-resident migrants and undocumented migrants are considered to be "in transit" and their children born on Dominican soil are denied citizenship. Further the assumption is being made that if you have no documents and appear to be or have a name that is Haitian, you are an illegal migrant. While the Government reports that a large percentage of all Dominicans have no identification documents, in practice, this presumption of illegality is applied only to people with dark skins and Haitian features. (Paragraph 62) Civil society groups claim that Law 258-04 is discriminatory in both purpose and effect. They claim that it is unconstitutional in that it contravenes article 11 of the Dominican Constitution. 8 In effect the law means that children born to parents of Haitian heritage who have no legal documents are not granted Dominican citizenship or nationality, despite being born in the Dominican Republic, their parents being born there or the fact that their parents may, in some cases, have been settled in the Dominican Republic for decades. Thus, the undocumented status of Haitians is inherited by their children. (Paragraph 63) Birth registration: The Government previously allowed Dominican birth certificates to be issued to children of Haitian workers who declared their children on the basis of fichas. Haitian migrant workers employed by sugar companies were previously issued with a ficha, a document which gave them limited temporary permission to remain in the Dominican Republic on the basis of their employment contract. Despite the fact that these children were registered as Dominican nationals, they are now unable to obtain cédulas, copies or renewals of identity documents, due to new laws and policies that are seeking to retroactively change their civil status. (Paragraph 65) Under article 28 of Law No. 258-04, children of non-legally resident mothers are now subject to a separate birth registration regime under which they are provided with a pink declaration of birth (constancia de nacimiento) - white declarations of birth are assigned to all other children born on Dominican territory. Such cases are entered in the "foreigners' book", operational since August 2007. 9 If the father is Dominican, the child can be registered as Dominican with the local registry office. But, if the father is not Dominican, the mother must then register the child with the relevant foreign embassy rather than the Dominican registry office. (Paragraph 66) Civil society organizations expressed concern that this procedure has been established for the purpose of denying such children a Dominican birth certificate. Since the creation of the foreigners' book, only two hospitals have begun issuing such documents and only two foreigners (one American and one Chilean) have been registered in it. The Central Electoral Board states that the system should be functioning in 35 hospitals in six months. Concerns exist that many children of Haitian parents or Dominicans of Haitian descent, who may have no other possibility than to be officially registered under this regime, may be left unregistered and effectively stateless. (Paragraph 67) A legal case of pivotal significance was concluded before the Inter-American Court of Human Rights in 2005. Yean and Bosico vs. the Dominican Republic concerns the children, Dilcia Yean and Violeta Bosico, born in the Dominican Republic in 1996 and 1985 respectively and having grown up and lived exclusively in the Dominican Republic. The children's mothers were Dominican and their fathers Haitian. The Inter-American Commission on Human Rights submitted the case to the Inter-American Court alleging refusal by the State to issue birth certificates in conformity with the constitutional principle of jus soli, thus producing a situation of continued illegality and social vulnerability. The Commission argued that the children were denied their right to Dominican nationality and were effectively stateless and consequently suffered the effects, including the inability to attend school due to lack of identity documents. (Paragraph 68) The Inter-American Court of Human Rights found that the Dominican Republic had violated the rights of children of Haitian ancestry and rendered them stateless by refusing to issue birth certificates and denying basic citizenship rights on the grounds of race. The Court recognized the right to nationality as the gateway to the enjoyment of all other rights and found that children who are denied birth certificates are also denied membership of a political community. The Court ordered the Government to: pay damages to the Yean and Bosico children; issue a public apology and publish the sentence; provide human rights training for State officials and adopt legislative and administrative measures to ensure equal access to birth certificates and school enrolment for all children in the country. As of December 2007, the Government had paid damages but had failed to comply with the other parts of the Court's order. (Paragraph 69) The Dominican Government, in its consideration of the legal status of children born to Haitian parents, highlights the decision of the Dominican Supreme Court of 14 December 2005 in response to an appeal brought by a group of NGOs challenging the constitutionality of the Migration Law. This was equally considered to be a response to the Inter-American Court decision in the Yean and Bosico case. The Supreme Court held inter alia: "That the Constitution does not grant Dominican nationality indiscriminately to all persons born on Dominican soil, as the jus soli provision, which establishes the system to grant Dominican nationality, together with the jus sanguini, has two exceptions, which exclude the legitimate children of foreign diplomats and the children of foreigners in transit"; ..."this implies that persons in transit have been in some way authorized to enter and stay for a certain period of time in the country; in this circumstance, which is obviously legitimate, the child of a foreign mother giving birth on national soil, as established by the Constitution, is not Dominican by birth..."; "Considering that the only case in which the Dominican Republic could be forced to grant Dominican nationality to a foreigner who is in breach of the law with respect to his/her situation in the country or a person that is born in the Dominican territory, who otherwise would be stateless, would be in application ... of the Convention on the Reduction of Statelessness, adopted by the United Nations on 30 August 1961, which is not applicable in this case, as the persons concerned have, through the provision of jus sanguini, the nationality of their country, which excludes any possibility foreseen by the above-mentioned Convention with respect to statelessness, and thus the obligation on the Dominican State to grant its nationality to those citizens in the hypothesis set out in the Convention; that, in that respect, article 11 of the Haitian Constitution establishes categorically that 'Any person born in Haiti, or in a foreign country, of a Haitian father or Haitian mother, is Haitian'". (Paragraph 70) On 29 March 2007, the Central Electoral Board issued a document entitled Circular 017 to all civil registry officers requesting them to remain vigilant for fraudulent documents, abstain from issuing, signing or providing copies of such documents and to refer any such cases to the Administrative Chamber of the Central Electoral Board in Santo Domingo, on the grounds of "complaints indicating that some civil registry offices had in the past issued birth certificates in an irregular manner to children of foreign parents that did not prove their legal status or residence in the Dominican Republic". (Paragraph 71) Many NGOs and community members indicated that, on the basis of this circular, cédulas have been denied to children of Dominicans of Haitian descent in possession of a Dominican birth certificate – even to those that had obtained a birth certificate through late registration, a procedure which requires approval and signature from a judge of first instance. Numerous cases were also reported to the experts of the refusal by the Central Electoral Board to renew documents or provide copies of previously issued documents, even to Dominicans of Haitian descent in possession of Dominican birth certificates, cédulas and electoral identification documents, attesting to their Dominican citizenship. (Paragraph 74) In a meeting with judges of the Central Electoral Board, the experts were informed about false claims, and high numbers of fraudulent papers which complicate the task of distinguishing legal residents from illegal migrants. The judges explained that the Central Electoral Board is only legally allowed to issue a cédula to those in possession of valid documents including a birth certificate, and that thousands of investigations are currently underway. The judges noted that the Dominican Republic has a legal procedure for the granting of nationality and that they maintain the principle that "illegality" in respect to parents cannot produce "legality" in respect to the status of a child born in the Dominican Republic. (Paragraph 76) The experts submitted in writing to the Central Electoral Board the cases of individuals they had encountered during the visit. These cases included denial of cédulas to Dominicans of Haitian descent who have Dominican birth certificates due to their parents having declared them with fichas; denial of constancias de nacimiento to children of Dominican mothers of Haitian descent who have a Dominican birth certificate; denial of birth certificates to children born in the Dominican Republic to Dominican parents of Haitian descent; and denial of copies or renewals of identity documents to Dominicans of Haitian descent. The judges undertook to examine these cases before presentation of this report to the Human Rights Council. (Paragraph 77) Measures undertaken by the Government and implemented by the Central Electoral Board, including via the establishment of a separate birth registration regime for newborns of Haitian descent, onerous requirements for late registration of births, or denial or revocation of cédulas belonging to people born in the Dominican Republic, constitute acts which deny constitutionally granted citizenship to persons belonging to this minority group, along with their children, thus rendering them stateless Other administrative measures currently employed in the Dominican Republic to deny or challenge on a discriminatory basis the status of others of Haitian descent also violates their rights and leaves them in legal limbo. (Paragraph 110) In accordance with article 11 of the Dominican Constitution, the Government of the Dominican Republic should recognize the right of all persons born on Dominican territory, including the children of a Haitian parent, to Dominican citizenship without discrimination on the grounds of the nationality or status of the parents. Considering that it is the State's obligation to grant citizenship to those born on its territory, the Government must adopt all necessary positive measures to guarantee that Dominican-born children of Haitian heritage can access the late registration procedure in conditions of equality and non-discrimination and fully exercise and enjoy their right to Dominican nationality. The requirements to prove birth on Dominican territory should be reasonable and not represent an obstacle for acceding to the right of nationality. (Paragraph 125) The experts call upon the Government of the Dominican Republic to fully comply with the judgment and findings of the Inter-American Court of Human Rights in the case of Yean and Bosico vs. the Dominican Republic. In particular the Dominican Republic should implement both legislative and administrative measures to ensure non- discriminatory issuance of birth certificates and access to schools. (Paragraph 130) The situation of multiple discrimination facing minority women, particularly those who are black or of Haitian heritage, presents specific challenges, including in the fields of education, employment and housing, which require targeted attention and dedicated resources within relevant ministries and local and regional authorities. The Government should take immediate steps to eliminate the gender bias in the Migration Law that denies Dominican women the ability to pass their nationality on to their children unless the father is Dominican. All women should have equal rights to work, including those whose status is dependent on their migrant husband. (Paragraph 132) Deportations/expulsions: Civil society representatives and community members highlighted a number of serious concerns regarding Government deportation practices of people they claim are illegal migrants. Particularly in border areas, a degree of chaos is permitted by security and border guards because it gives cover to their discriminatory actions and corrupt practices. The colour of one's skin is the primary determinant of the ease with which you can cross the border without documents or fall victim to deportation or expulsion. There is consistent testimony of indiscriminate and arbitrary deportations, lacking in the protection of due process. Dominican citizens of Haitian descent and long-settled Haitians are as likely as recent migrants to be deported without adequate opportunity to argue any distinctions. Deportations occur so rapidly that family members are not informed. Parents are deported leaving children unaccompanied. Ill-treatment and abuse during deportation is reportedly common. Legitimate identification documents, including cédulas and birth certificates are confiscated by authorities conducting deportation "sweeps" and deportees are generally not given opportunities to secure their housing and property. Accounts are given of deportations being arranged between employers and authorities to enable employers to avoid paying wages. Particular concern was expressed at the practice of collective or mass expulsions. (Paragraph 79) Education: Numerous young people of Haitian descent, born in the Dominican Republic reported that it is not possible for them to obtain the required cédula, and hence impossible for them to pursue their education beyond the sixths grade or enter university. There is also some indication that a birth certificate is requested of students who register for primary school. Some expressed deep frustration, noting that they wanted to study, gain skilled work and make a full contribution to Dominican society as Dominicans, but were being prevented from doing so, with implications for their sense of identity as Dominicans, despite having spent their lives in the Dominican Republic. (Paragraph 82) A student of Haitian descent in Santo Domingo reflected a concern raised by numerous individuals: "I have asked for a cédula several times. My father is Haitian but legally in the country for 35 years. My mother is Dominican and I was born here. I want to go to university and work but I can't without a cédula. I don't know any more whether I am Dominican or Haitian". (Paragraph 83) Representatives of the Ministry of Education and the National Council for Childhood and Adolescence highlighted the legal framework governing the right to education for all children in the country under the General Education Act, No. 66-97. Representatives of the Ministry highlighted that the same provisions were applied everywhere in the Dominican Republic. The Ministry of Education acknowledged that at the age of 18 years a cédula is required to continue in formal education and to enter university. They noted that the lack of documentation necessary for university entrance is a problem that also affects many undocumented Dominicans and that the Government is working to address such documentation issues. (Paragraph 84) The independent expert, while recognizing the Government's achievements in offering education to all children up to the sixth grade, considers that Dominicans of Haitian descent are being denied equal treatment and discriminated against in regard to their access to higher education and university, since they are unable to obtain the required cédula. Dominicans of Haitian descent who are unable to obtain documents are also effectively excluded from skilled labour markets and relegated to irregular jobs in such fields as agriculture, construction or domestic service. (Paragraph 111) ______________________________________________________________________________ Independent Expert on Human Rights and Extreme Poverty Gendered issues: Following a visit to a bateye neighbourhood and some poor districts, it was clear to the independent expert that the situation of women in these areas remains difficult. Many are teenagers when they first become pregnant and they subsequently bear large numbers of children. The hold which the Catholic Church exerts on society accounts for the continuing ban on abortion, which encourages recourse to backstreet abortions and explains the half-heartedness of family planning initiatives. Prostitution is a source of income for many young women who cannot find work. (Paragraph 6) Identity documents: Document fraud relates mainly to departure for the United States of America, including the recruitment of Dominican boys (under 16 years of age) to play on North American baseball teams. In recent years, the Central Electoral Board has devised a special programme in conjunction with the North American Baseball Federation1 to combat this form of trafficking and the abuses peculiar to this type of migration. (Paragraph 17) The Dominican civil status authorities issue a computerized identity card which also serves as a voter registration card. The independent expert checked in a number of health centres that the card was not asked for and that everyone who presented themselves, whether Dominican or Haitian, received proper medical attention. As far as schools and the right to attend school are concerned, however, national identity was formerly a crucial factor in excluding the children of Haitians, even those born in the Dominican Republic. At the invitation of the United Nations Children's Fund (UNICEF), among others, the new Government has recently started a policy of admitting all children to school, without restrictions. However, a birth certificate is still required to obtain a copy of the results achieved in the school-leaving examination. (Paragraph 18) Shortly before the independent expert's mission, a long-time resident Haitian family brought a case before a court of first instance, which upheld: (a) the right of two children born of illegal resident parents to enrol in school; and (b) the Dominican nationality of the Haitian couple's children. (Paragraph 19) Poverty: In late December 2002, the President's Anti-Poverty Plan will be put forward for nationwide consultations with the poor and NGOs and will thereby gain universal credibility. This very ambitious plan takes a holistic approach to poverty and contains a variety of measures focusing on education (nutritional breakfasts for children, free stationery, more nurseries, etc.); housing (construction of hard-floored dwellings, provision of corrugated iron sheeting); health care (free clinics); and micro-credit, support for small-scale farmers and market access facilities. Two observations could be made about the plan: the wider application of its measures throughout the country will require far greater resources than those currently available and there is a risk that the funds allocated to the President's Plan and the sometimes parallel structure of the ministries responsible for these areas could result in duplication or high administrative costs that would compromise the sustainability of these undertakings. It is nevertheless important to welcome the initiative shown by the Dominican authorities and their desire to translate into action the promises made to the poor. To take one example, it is to be noted that, despite the disastrous electricity supply situation throughout the country, residents of poor districts enjoy free electricity for 18 hours a day, entirely paid for by the State. The rest of the population has to endure frequent power cuts and only the most well-off and enterprises can afford generators. (Paragraph 22) The independent expert considers that there has been a real reduction in poverty owing to economic growth in general and the considerable efforts that have been made to tackle poverty. The choices made by the authorities focus on the root causes of poverty and some good practices have been implemented (the law on social security, civil status, access to health care, housing facilities, allowances for mothers with children in school, title deeds for the poorest members of society, micro-credit programmes). (Paragraph 25)
Please note that the language may have been edited in places for the purpose of clarity.
Doudou Diène and Gay McDougall, respectively
(A/HRC/7/19/Add.5 and A/HRC/7/23/Add.3 )
Country visit: 23 - 29 October 2007.
Report published: 18 March 2008
Ms. A.-M. Lizin
(E/CN.4/2003/52/Add.1 )
Country visit: 3 December to 6 December 2001
Report published: 16 January 2003