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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 
 
 
¶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