Consequently, it is pertinent to consider judgment TC/0168/13 as a supervening fact and,
therefore, to examine its juridical consequences for the case sub examine. 353
311. Regarding judgment TC/0168/13, it should be recalled that, in its case law, the
Inter-American Court has established that it is aware that the domestic authorities are
subject to the rule of law and, therefore, are obliged to apply the laws that are in force. 354
However, when a State is a party to an international treaty such as the American
Convention, all its organs, including its judges, are also subject to that treaty, which
obliges them to ensure that the effects of the provisions of the Convention are not
impaired by the application of norms that are contrary to its object and purpose. The
judges and organs involved in the administration of justice at all levels are obliged to
exercise ex officio a “control of conventionality” between domestic laws and the American
Convention; evidently within the framework of their respective jurisdictions and the
corresponding procedural regulations. In this task, they must take into account not only
the treaty, but also its interpretation by the Inter-American Court, ultimate interpreter of
the American Convention. 355
312. In judgment TC/0168/13, the Constitutional Court indicated that it was legal,
according to the text of article 11(1) of the 1966 Constitution (which, as already indicated
is very similar to the provisions of the Constitutions of 1955 and 1994, supra para. 280
and footnote 330), and of Dominican constitutional law as of 1929, in general, to apply
the fact that the parents of the persons born in Dominican territory were aliens living
irregularly in the country as an exception to the acquisition of Dominican nationality by ius
soli. 356 Based on this understanding, the Constitutional Court decided the following in the
fifth operative paragraph of judgment TC/0168/13:
FIFTH: TO ESTABLISH, also, that the Central Electoral Board implement the following
measures:: (i) Conduct a thorough audit of the birth records of the Civil Registry of the Dominican
Republic from (June 21, 1929,) to date, within one year of notification of this judgment
(renewable for a further year at the discretion of the Central Electoral Board), to identify and to
incorporate into a documentary and/or digital list, all the aliens registered in the birth records of
the Civil Registry of the Dominican Republic; (ii) Make a second list of the aliens who are
registered irregularly because they lack or do not meet the requirements set out in the
exercise and enjoyment of the treaty-based rights of these persons is verified, or they represent an obstacle or
an impediment to the due observance of the corresponding State obligations. (This is revealed by the analysis
made by the Court in the Case of García Lucero et al. v. Chile, paras. 156, 157 and 160).
353
In addition, as already indicated, on June 9, 2014, the State presented as “supervening facts” norms
relating to judgment TC/0168/13. These are “Decree No. 327-13 of November 29, 2013,” and “Law No. 169-14
of May 23, 2014” (supra para. 13). First, it should be noted that the State’s presentation of these facts to the
Court means that the State considers them relevant to the case sub examine, even though it did not present
arguments on how they impact it. The Court notes that the said norms consider judgment TC/0168/13 to be one
of their justifications, and Law No. 169-14 accords it an important place in its “Consideranda.” This reaffirms
that, even though, at one time the State was opposed to the Court examining this Constitutional Court judgment,
it is relevant to this case.
354
Case of Almonacid Arellano et al. v. Chile. Preliminary objections, merits, reparations and costs. Judgment
of September 26, 2006. Series C No. 154, para. 124, and Case of García Cruz and Sánchez Silvestre v. Mexico.
Merits, reparations and costs. Judgment of November 26, 2013. Series C No. 273, footnote 76.
355
Cf. Case of Liakat Alibux v. Suriname, para. 87.
356
With regard to Dominican constitutional law, it should be placed on record that the representatives
indicated that the criterion for interpretation of the term “in transit” in article 11 of the 1994 Constitution, which,
in their opinion, created an unjustified distinction in treatment, was incorporated textually in the 2010
Constitution, which excludes the children of those who “reside illegally in Dominican territory” from the right to
nationality (supra para. 238). Despite this, they did not argue that the Constitution has been applied to or has
had any impact on the enjoyment of the rights of the presumed victims, and they have not alleged the possible
violation of Article 2 of the American Convention, or of other provisions of this treaty, based on the 2010
Constitution. Moreover, the facts of the case do not reveal that a direct application of the 2010 Constitution to
the presumed victims has been proved, or any other type of direct impact of this Constitution on their situation.
101
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