288. In this regard, the Constitutional Court stated that:
[In the] paragraph transcribed, the [Inter-American] Court causes confusion by considering the
time frame of 10 days granted to the transient alien as if it also corresponded to the alien in
transit, which is a flagrant error of interpretation, given the distinction that exists between the
two categories of aliens, as explained previously (bold and italics in the original text) 337
289. The foregoing reveals, first, that the Constitutions of 1955 and 1994, as well as that
of 1966, did not state literally that those born in Dominican territory who were the
children of aliens in an irregular situation could not acquire Dominican nationality based
on this circumstance; nor that, in relation to the acquisition of Dominican nationality,
there was a parallel between migratory irregularity and the concept of a person who “is in
transit in [Dominican territory].” In addition, judicial interpretations existed prior to the
enactment of the Migration Law of August 27, 2004, stating that the concept of “transit”
was not the same as the “illegal status of the alien” (supra para. 281).
290. Second, the foregoing also reveals that, in 2005 and 2013 – in other words, following
the birth of the presumed victims and, in general, the facts of this case – the Supreme
Court of Justice and the Constitutional Court, respectively, interpreted article 11(1) of the
Constitutions of 1994 and 1966, as well as the similar provision included in “all the
Dominican Constitutions as of […] 1929” (supra paras. 283 and 285 to 288). According to
these judicial interpretations, individuals whose parents are aliens residing irregularly in
Dominican territory cannot acquire Dominican nationality. Thus, in the words of the
Constitutional Court cited above, “these persons may not claim that their children born in
the country have a right to obtain Dominican nationality under article 11(1) of the 1966
Constitution cited above” (supra para. 285), the wording of which is almost identical to
that of the Constitutions of 1955 and 1994 (supra para. 280 and footnote 330). And this
is, even though, as previously mentioned, the constitutional texts do not include an
explicit statement in the sense indicated. 338
291. Third, it should be underscored that the express inclusion in the Dominican
constitutional provisions of the “illegal residence” of the parents of persons born in
Dominican territory as grounds for denying them Dominican nationality was included only
in 2010. Thus, article 18(3) of the Constitution, resulting from the constitutional
amendment published on January 26, 2010, indicates that the persons born on national
territory who are “children […] of aliens who are in transit or reside illegally in Dominican
territory” shall not be Dominicans. 339
292. Regarding the above, it should be pointed out that the Dominican Republic’s
assertion that the inclusion of requirements for the acquisition of nationality by birth in the
State’s territory is not discriminatory per se is true (supra para. 247). Nevertheless, as
granted privileges of transients. These privileges shall be granted even though the alien is inadmissible as an
immigrant, if his entry is not contrary to public health and order. The alien shall be required to declare his
destination, the means he has chosen for his transport, and the date and place of his departure from the
Republic. A 10-day period shall normally be considered sufficient to be able to pass through the Republic. (b) An
alien admitted for the purpose of continuing his journey across the country shall be granted a Landing Permit
valid for 10 days […].”
337
Constitutional Court, judgment TC/0168/13 of September 23, 2013, p. 70.
338
The 2004 Migration Law had established that “[n]on-residents are considered to be persons in transit for
the purposes of the application of article 11 of the Constitution.”
339
Even though this was a new exception, the State alleged before the Court that the purpose of the said
“addition” “was to explain the legal consequences established following the 1934 constitutional reform in relation
to persons born in national territory whose parents were in transit in the country. Therefore, [it considered that]
this rule was applicable from 1934 to date.”
94
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