“Trump, The Dominican Republic and Nationality”, an article by Dr. Leonel FernándezNovember 14, 2018
During the midterm elections held in the United States on November 6, President Donald Trump stated that he would end, through an Executive Order, the issuance of U.S. citizenship simply for having been born in the country.
In the United States, ever since the introduction of the Constitution’s 14th Amendment, in 1868, the principle of jus soli –the mechanism that issues the right to nationality or citizenship depending on the
place where the person is born— has been the prevailing norm.
In reaction to President Trump’s statements, journalist and specialist in cultural affairs, Taylor Hoskin, in an article published online, argued – referring to the Dominican Republic – that when our country “put an end to the right of nationality in light of the (Jus Soli) birth right, the situation provoked a disaster, creating a humanitarian
We understand the legitimate motivations that journalist Taylor Hoskin may have had to express her clear and vehement opposition to the pretensions of President Donald Trump to eliminate the right to U.S. nationality through the jus soli principle.
However, in spite of all that’s been written against this proposal, it is not the case of the Dominican Republic. The Dominican Republic, through its
Constitutional history, has issued its nationality to individuals through the jus sanguini principle, or right of blood; the jus soli, in certain cases; and through the naturalization process.
In our country, however, our mechanisms are different from those of the United States. The right to nationality was never awarded, in an absolute and unconditional manner, in relation to the territory where the individual was born.
This means that the Dominican Republic is not a good example to compare with the United States.
In the land of Abraham Lincoln, the issuance of nationality depending on the place where the person was born was a consequence of the struggles carried out by the African descendants for five years after the end of the Civil War – or War of Secession – between 1865 and 1870, through the Reconstruction Amendments.
The abovementioned Amendments are the
13th , which abolished slavery and involuntary servitude; the 14th Amendment, which covered the rights of citizens and equality to all before the law; and the 15th Amendment, which prohibited discrimination against citizens who wanted to vote based on "race, color, or previous condition of servitude.”
NATIONALITY BASED ON THE RIGHT OF BIRTH
As a result of this process, the first legal text that provided a definition of U.S.
nationality was the 1866 Civil Rights Act, which established: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States…”
The exclusion of the rights of citizens was reinforced by the famous ruling issued by the U.S. Supreme Court in the Dred Scott vs. Sandford case, which ruled that Americans of African descent, whether free or slave,
were not American citizens.
The jus soli principle was not considered part of U.S. Constitutional Law until 1868 when it was finally introduced, as previously stated, through the 14th Amendment, one of several “Reconstruction Amendments.”
The original writers of the U.S. Constitution, even though they had mentioned nationality or citizenship, did not explain how such terms were defined nor to who they extended
In absence of a specific reference to the matter in the Constitution or in Federal statutes, the issue of U.S. citizenship was based on English customary law which, in the case of the United Kingdom until 1981 granted English citizenship to all those born within the country.
The climate of exclusion regarding the right to nationality that predominates in the United States and that was established during the second half of the 19th century, was
reinforced by other legal rules such as the “Black Codes” which were laws passed by various U.S. southern states with the intent and effect of restricting the freedom of African Americans.
The relentless struggles carried out by the African Americans to reach absolute freedom and full recognition of their rights as U.S. citizens was the impetus for the introduction of the 14th Amendment to the U.S. Constitution in 1868.
rule gave African descendants the right to nationality or citizenship simply for having been born in U.S. territory.
This is how, in the great nation founded by George Washington, the right to nationality or citizenship was issued unconditionally by the Constitution simply for having been born on U.S. soil.
JUS SOLI AND COMPARATIVE LAW
The proposal made by the President of the United States, Donald Trump,
to modify through an Executive Order the mechanism that issues unconditional U.S. citizenship or nationality through jus soli, or the principle of granting citizenship for having been born in U.S. territory, has generated a strong debate at the international level.
These debates have provoked various comparisons between the way nationalities are issued in the U.S. and the way nationality is issued in other nations, including the Dominican
The absolute jus soli currently in place in the United States is a mechanism used by very few nations in the world. According to the U.S. Central Intelligence Agency’s World Factbook, only 30 out of the 193 member nations of the United Nations system use this model to issue citizenship to individuals born in a specific territory. This corresponds to only 16% of the total countries.
According to data
provided by the United States’ Center for Immigration Studies, of all the developed nations only Canada and the United States still use the unconditional jus soli mechanism.
This U.S. organization highlights that in Europe there are no nations that issue citizenship based on the criteria of birthright, without demanding other requirements.
Ireland was the last of the European nations to abandon this tendency, through
a Constitutional Referendum held in 2005 that received support from 79% of voters.
The majority of the Latin American and Caribbean nations share the U.S. model of recognizing nationality. It is currently the only region in the planet where unconditional or absolute jus soli is in place.
However, this commonality between the United States and other nations in our region is what has led some to wrongfully believe that the same
occurs in our country.
However, this is not the case. In the Dominican Republic, according to the 2010 Constitution, those individuals that, although were born in our national territory, are the descendants of foreigners that are members of diplomatic and consular missions or are foreigners who are in transit or reside illegally in the country and thus are not granted Dominican nationality.
Therefore, nationality by right of jus soli
principle alone does not exist in the Dominican Republic. In order for this principle to be applied requires that the parents of the child be Dominicans or reside legally in Dominican territory.
Confusion regarding how nationality is issued in the Dominican Republic has generated serious criticism against our country, which has been accused of being racist, xenophobic and of having withdrawn the nationality of former citizens.
But none of this is true.
The same confusion is what has been experienced by journalist and specialist in cultural affairs, Taylor Hoskin. She has validly questioned the pretension of President Trump to eliminate, in his country, the right to citizenship based on unconditional jus soli.
However, it is unacceptable that she maintains the argument that the Dominican Republic, by not adopting absolute or unconditional jus soli “created the
greatest population of stateless individuals in the Western Hemisphere.”
This, of course, is false. There are no stateless individuals in the Dominican Republic. Foreign descendants, with an irregular immigration status, can declare their offspring in the Consular offices of their respective nations.
There is no reason to accuse the Dominican Republic of using a racist ideology and use that as a reference to oppose the aspirations of President
Trump to suppress, in the United States, the right to nationality or citizenship through unconditional jus soli, when there are 163 nations that share our same method of recognizing nationality.
As is the case in those other nations, the Dominican Republic has the sovereign right to decide who their citizens are.