Court/Judicial body:Inter-American Court of Human Rights
Date:September 8, 2005 CRC
Provisions: Article 7: Name and Nationality
Other international provisions:American Convention on Human Rights ( Article 3: Right to juridical protection; Article 5: Right to humane treatment; Article 8: Right to fair trial; Article 12: Freedom of conscience and religion; Article 17: Rights of the family; Article 18: Right to a name; Article 19: Rights of the child; Article 20: Right to nationality; Article 24: Right to equal protection; Article 25: Right to judicial protection)International Covenant on Civil and Political Rights ( Article 24: Children’s rights)International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ( Article 29. Rights of Children of Migrant Workers to Name and Nationality)Universal Declaration of Human Rights ( Article 15: Right to Nationality)American Declaration of the Rights and Duties of Man ( Article 19: Right to Nationality)
Background:Dilcia Yean and Violeta Bosico were girls of Haitian descent born in the Dominican Republic to Dominican citizen mothers. The Dominican Registry Office, however, refused to issue birth certificates for the children even though the Dominican Constitution recognises that every child born in Dominican territory is a Dominican citizen. The Inter-American Commission on Human Rights filed an application with the Inter-American Court of Human Rights, alleging that the Dominican government’s discriminatory policies had rendered Yean and Bosico stateless and forced them to live in very vulnerable circumstances. The Commission alleged numerous violations of the American Convention on Human Rights, and presented evidence that – among other things – Bosico had been unable to attend school for one year because she did not have an identity document. Issues and resolution:Statelessness; birth registration; discrimination. The Court found that the Dominican Republic had violated the children’s rights in denying them citizenship from birth, and urged the Dominican government to adopt laws that guarantee a simple and accessible route to nationality.
Court reasoning:The Court found that the Dominican Republic had acted arbitrarily and contrary to the best interests of the child in denying Yean and Bosico birth certificates, which amounted to a violation of their rights to a nationality and to equal protection under Articles 20 and 24 of the American Convention on Human Rights. Moreover, because the children did not have a nationality, the Court looked to the CRC for interpretive guidance and found that the children’s rights to protection under Article 18 of the American Convention had also been violated as they were not recognised by the country they lived in and hence could not receive social assistance. Finally, the Court ruled that in violating these rights, the Dominican Republic had further exposed Yean and Bosico’s families to a great deal of uncertainty and insecurity, and had hence violated family members’ right to humane treatment under Article 5 of the American Convention.
Excerpt citing CRC and other relevant human rights 134. This Court has stated that the cases in which the victims of human rights violations are children are particularly serious. The prevalence of the child’s superior interest should be understood as the need to satisfy all the rights of the child, and this obliges the State and affects the interpretation of the other rights established in the Convention when the case refers to children. Moreover, the State must pay special attention to the needs and the rights of the alleged victims owing to their condition as girl children, who belong to a vulnerable group. … 185. In addition to the above, the Court considers that the vulnerability to which the children were exposed as a result of the lack of nationality and juridical personality was also reflected, in the case of the child Violeta Bosico, by the fact that she was prevented from attending day school at the Palavé School during the 1998-1999 school year. It was precisely because she had no birth certificate that she was forced to study at evening school, for individuals over 18 years of age, during this period. This fact also exacerbated her situation of vulnerability, because she did not receive the special protection, due to her as a child, of attending school during appropriate hours together with children of her own age, instead of with adults (supra paras. 109(34), 109(35) and 109(36)). It is worth noting that, according to the child’s right to special protection embodied in Article 19 of the American Convention, interpreted in light of the Convention on the Rights of the Child and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, in relation to the obligation to ensure progressive development contained in Article 26 of the American Convention, the State must provide free primary education to all children in an appropriate environment and in the conditions necessary to ensure their full intellectual development. From Separate Opinion of Judge A.A. Cançado Trindade:8. The right to nationality is effectively a right inherent in the human being, embodied as a non-derogable right in the American Convention on Human Rights (Articles 20 and 27), as emphasized in this judgment (para. 136). It is also protected under the 1966 United Nations International Covenant on Civil and Political Rights ( Article 24(3)), the United Nations 1989 Convention on the Rights of the Child ( Article 7), and the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ( Article 29), and also in the Universal Declaration of Human Rights ( Article 15) and the American Declaration of the Rights and Duties of Man ( Article 19) of 1948.
Follow up:In October 2005, the Senate of the Dominican Republic issued a resolution rejecting the decision of the Inter-American Court. In December of that year, the country’s Supreme Court issued a decision in direct defiance of the judgment of the Inter-American Court by upholding a law that deemed undocumented migrants as being “in transit” and hence not officially present in the territory. In July 2009, amendments were passed to the Dominican Constitution to delete provisions automatically granting citizenship to all children born in Dominican territory, to take effect at a later date.
CRIN comments: CRIN believes that this decision is consistent with the CRC. Under Article 7 of the Convention, children “shall be registered immediately after birth” and have the right to a name and to acquire a nationality. These obligations are even stronger “where the child would otherwise be stateless”, as was the case in the circumstances around this case. CRIN also believes that the steps taken by the Dominican Senate and Supreme Court run contrary to the CRC, and strongly urges the government to recognise all children born in the territory as full citizens.
Citation:Case of the Yean and Bosico Children v. The Dominican Republic, Inter-American Court of Human Rights (IACrtHR), 8 September 2005
Link to full judgement: http://www.corteidh.or.cr/docs/casos/articulos/seriec_130_%20ing.pdf