62
156. In view of the above, and considering the right to nationality of the children of
migrants in the Dominican Republic according to the pertinent constitutional
provision and the international principles concerning protection for migrants, the
Court considers that:
(a)
The migratory status of a person cannot be a condition for the
State to grant nationality, because migratory status can never constitute
a justification for depriving a person of the right to nationality or the
enjoyment and exercise of his rights;99
(b)
The migratory status of a person is not transmitted to the
children, and
(c)
The fact that a person has been born on the territory of a State is
the only fact that needs to be proved for the acquisition of nationality, in
the case of those persons who would not have the right to another
nationality if they did not acquire that of the State where they were
born.
157. In addition to the foregoing, the Court considers it opportune to refer to
Section V of the Migration Regulations of the Dominican Republic No. 279 of May 12,
1939, in force at the time of the request for late registration of birth in this case.
This establishes clearly that the purpose of the person in transit is merely to pass
through the territory and, to this end, it establishes a temporal limit of no more than
ten days.100 The Court observes that, to consider that a person is in transit,
irrespective of the classification used, the State must respect a reasonable temporal
limit and understand that a foreigner who develops connections in a State cannot be
equated to a person in transit.
158. The Court considers that, under no circumstances, could the State have
applied the exception referring to the children of a person in transit to the Yean and
Bosico children, because the mothers of the alleged victims are Dominican and the
children were born in the Dominican Republic, the latter being the condition
established in article 11 of the Constitution for granting Dominican nationality.
*
*
*
159. The Court will now examine the application of the requirements for the late
registration of birth in the Dominican Republic and their effects on the Yean and
Bosico children in this case.
160. In the Dominican Republic the birth registration procedure is regulated in
articles 39, 40 and 41 of Act No. 659 on Civil Status Acts of July 17, 1944.101 This
99
Cf. Juridical Status and Rights of Undocumented Migrants, supra note 95, para. 134.
100
Section V of the Rules of Procedure of Migration No. 279 of May 12, 1939, stipulates that
“Foreigners endeavoring to enter the Republic with the principal purpose of proceeding through the
country towards another country shall be granted the privileges of “transients.” These privileges shall be
granted even though the foreigner is not admissible as an immigrant, provided his entry is not contrary to
public order and health. The foreigner shall be required to state his destination, the chosen means of
transportation, and the date and place of leaving the Republic. A period of 10 days shall usually be
considered sufficient to be able to pass through the Republic[; and] a foreigner admitted in order to
proceed through the country shall be granted a Landing Permit, valid for 10 days [...]” (file of attachments
to the brief with requests and arguments, attachment 21, folios 364 and 365).
101
Act No. 659 on Civil Status Acts of July 17, 1944, stipulates:
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