Santo Domingo, Dominican Republic December 5th, 2014. Mr. José Miguel Insulza, Secretary General of the Organization of American States (OAS). Sesión Ordinaria del Consejo Permanente de la OEAI read that you, as Secretary General of the Organization of American States (OAS) has stated that all Latin American countries are obliged to submit to the jurisdiction of the Inter-American Court of Human Rights (IACHR), as all, according to your statement, signed the Convention of Human Rights of 1969. For Dominicans it remains puzzling statements, for coming precisely from an authority of inter-American system called to guide on track harmonious coexistence among the American states; for two reasons, which I think are very important in the discussion that is taking place both in the territory of the Dominican Republic and abroad, regarding the decision of the Dominican Constitutional Court to declare the instrument of acceptance of the jurisdiction of that court as illegal. a) Your approaches obviate, I do not know if deliberately, the clarity with which Article 62 of the American Convention on Human Rights, which states with high precision that the State Party may declare that it accepts the jurisdiction of the Inter-American Court of Human Rights, which means in a good reading of the law, the fact to ratify the Convention itself does not mean accepting the jurisdiction of the Court. Is an optional act of State to declare their acceptance or not. In that part of Article 62 of the Convention agree with Article 36 of the Statute of the International Court of Justice and the Optional Clause Annexed to the Protocol, which reads: “Members of society and the States listed in Annex the Covenant may, either at the time of signature or ratification of the Protocol, which is next to this text, or as subsequently declare recognize now as compulsory by the fact itself and without special agreement in respect of any other member or State accepting the same obligation, the jurisdiction of the Court … “ Coincidentally the Statute of the International Court of Justice stated in Article 36, paragraph 2, that: “The States Parties to the present Statute may at any time declare that they recognize as compulsory by the fact itself and without special convention, with respect to any other State accepting the same obligation, the jurisdiction of the Court in all disputes … “ However, the texts quoted in no time rule compliance requirements established domestic law to accept the jurisdiction of those courts. For that reason the delegate of the Dominican Republic declared September 30th, 1924 in Geneva, Jacinto R. de Castro, the following: “On behalf of the government of the Dominican Republic, and subject to ratification, recognize right and without special agreement in respect of any other member of society or State accepting the same obligation, that is on condition of reciprocity, the jurisdiction of the Court, pure and simply”. The ratification of the jurisdiction of the International Court of Justice is done through Resolution No. 584, dated December 13th, 1926, published in the Official Gazette No. 3824 dated December 13th, 1926, of the Dominican Republic. Also, I have to say that the Dominican Republic assumed the jurisdiction of the International Criminal Court, the Dominican Congress approved by Resolution No. 117-05, which ratifies the Convention on the Rome Statute of the International Criminal Court. As such, the legal behavior of the Dominican Republic, following firm established by national law, is incomprehensible to the country that wants to establish the jurisdiction of the Courts said yes warranted to be sent to Congress for ratification, while the jurisdiction of the Inter-American Court of Human Rights did not require such a procedure. Why the jurisdiction over the Dominican Republic of International Court of Justice and the International Criminal Court warranted the ratification by the Congress and the jurisdiction of the Inter-American Court of Human Rights not warranted? Ratification by the Dominican Congress of the declaration accepting the jurisdiction of the International Court of Justice could serve as a basis for accepting the compulsory jurisdiction of the International Court of Justice, as paragraph 5th of Article 36th of the Statute of the International Court Justice states: “Statements made in accordance with Article 36th of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, for the parties to the present Statute as acceptance of the compulsory jurisdiction of the Court International Justice for the period that still remains in force and in accordance with the terms of such statements. “ In this sense, not recognizing the legal practice of the Dominican Republic in assuming jurisdiction of international courts is serious, from the perspective of the sovereignty of the nation. Article 5th of the Convention on Treaties, adopted by Resolution of the National Congress of January 23rd, 1932 says: “Treaties are obligatory only after ratification by the contracting States, although this condition is not stipulated in the full powers of the negotiators not included in the Treaty itself.” It is precisely this Convention which will be applied to the instrument of acceptance of the jurisdiction of the Inter-American Court of Human Rights signed by the Dominican government in 1999, because the Vienna Convention on the Law treaty was not in force in Dominican Republic at that time. You can argue, as have unfortunately made some domestic sectors, the instrument of acceptance of the IACHR is not a treaty and therefore does not apply that Article; however, that would give improper reading of Article 62nd of the American Convention on Human Rights; that article is the expression of the will of the parties that the principle Pacta Sunt Servanda, which allows the option right of States to decide whether to accept the jurisdiction prevails; that is, that the statement with its features is an international agreement. As you can also, like have done some within the Dominican Republic, argue that by ratifying the American Convention on Human Rights in 1978, the Dominican Congress also ratified Article 62nd of that international instrument and consequentially the acceptance the jurisdiction of Inter-American Court; such an approach would be legally unsustainable by the force of events. Why if already in 1978 the Dominican Republic had accepted the jurisdiction of the Inter-American Court had to be made an instrument of acceptance of that jurisdiction in 1999? For the simple reason that Dominican Republic had not done before; neither in 1978, nor earlier date to 1999. It is a very painful act that some sectors of the international community have provided to tread upon the sovereign right of the Dominican Republic as a member of the international community in general, and American in particular sense. The Dominican Republic has not been treated with the degree of reciprocity has performed against other members of the international community. It is known for the concert of sisters nations the respect and consideration with which the Dominican State has been linked and has treated all members of the international community through history. You, Mr. José Miguel Insulza, is who else is called to ensure that the American Community of Nations maintain a relationship based on friendliness and goodwill whose main support is respect for the sovereignty of each of its components. It seems that instead of being an administrator of the destinations of the American community, you have become a promoter of ignoring the sovereign rights of the Dominican State, and practically considered guilty of something it has not done. As Dominicans, we have been accused of generating statelessness, particularly that supposedly befalls the children of Haitians born in the territory of the Republic, and this has violated the most basic legal procedure to determine statelessness of a person; because according simple definition a stateless person who is not a national of where born, nor the nationality of origin of parents. Is that the case of the children of Haitians born in the territory of the Dominican Republic? You know the answer is not. To determine the condition of statelessness of children of Haitians only have to do an exercise in comparative constitutional law, it goes without difficulty the result that the children of Haitian nationals are entitled to Haitian nationality. But why the children of Haitian nationals are stateless supposedly only in the territory of the Dominican Republic? If the children of Haitians are born in a state where the Jus Sanguinis is applied, would be stateless? No, you and the international community know that. Why insisting on accusing and harassing the Dominican Republic on alleged statelessness does not exist? Why the OAS has not bothered and deigned to make an investigation of the legal structure of the Haitian Republic to determine the status of the children of Haitian nationals born outside of Haiti? The superficial attitude that some members of the international community have acted highlights the fact that there is no interest in asking the Haitian State and his government to do everything possible to prevent children from their national confront difficulties at birth a stranger to his country. Haiti as State also has the responsibility to prevent statelessness of the children of their nationals who were born in a different country from their parents; the Republic of Haiti cannot facilitate international mess trying to foist its population to another State because it clashes with the sovereign discretion of a State essentially consists of four components that are inalienable: a territory, a population, a government and also the international recognition. Why the international community does not require to the Republic of Haiti to develop a reorganization plan to recognize the nationality to persons born outside of Haiti daughters of their nationals? I am writing to you and the international community because there is a clear decision to bind the Dominican Republic to lower the flag of their sovereignty to seek a solution to case Dominican Haitian state. It is clear that what is at issue is not an immigration problem, but the geopolitical decision to force Dominicans to take the Haitian case in front the inability of the international community to respond to the serious difficulties of a State, as Haiti, which has shown signs of being very important to have failed. You as Secretary General of the OAS should pay close attention to this reality, keep pushing because the situation could be driving the creation of the basis for respond in the way of Caribbean people know and create a conflict of incalculable magnitudes; especially understand that there Dominicans, who as they have done throughout history their ancestors, are willing to embrace, keeping the distance of the reasons, the circumstances, the method and manner of painful outcome, the idea of Getulio Vargas when he said : ” Calmly I take the first step on the road to eternity and leave life to enter history.” The intelligence with which must move the international community on the Dominican-Haitian case must be oriented to avoid a conflict that generates instability on the island that could affect not only over 20 million citizens living in this land, but that could upset all Latin Americans, and particularly to Cuba, Puerto Rico, Venezuela and South America, Central America… The awkwardness with which domestic sectors in the Dominican Republic and some members of the international community have handled the Dominican-Haitian problem could sprout very costly to the Caribbean and Latin America. Thinking that Dominicans will accept without resistance the destruction of their State is unaware that the Dominican people have men and women who prefer to make 48 thousand square kilometers one Numancia in the Caribbean; is to disregard the glory of battle in Cachimán, The Memiso, 19th March, 30th March, The Estrelleta, Beller, Number, Santomé, Cambronal, Restoration…; is forgetting the heroism of Juan Pablo Duarte, Gregorio Luperón… and the courage and nobility with which Dominicans defended their flag and the State in 1916 and 1965. Ignoring the characteristic of the Dominican people can be one of the worst mistakes of those who have understated heroism, glory and patriotism of Dominicans. No American who fought fervently for the construction of the Patria Grande (Great Homeland) has ever dared to thwart the sovereign environments that support the existence of our countries. Therefore, the same preparation documents Amphictyonic Congress convened by Simon Bolívar, with unquestionable clearly established the need for partnerships without withering sovereign existence of each of the republics; for this reason the Treaty between the Republic of Colombia and the State of Peru to form the Assembly Plenipotentiary of July 6th, 1822 Article 6th says: “This Pact union, league and perpetual confederation will not disrupt in any way the exercise national sovereignty of each of the contracting parties as well so look to its laws and establishing the form of their government, and with respect to its relations with other foreign nations… “. Similarly, the Treaty of Union, League and Confederation between the Republic of Colombia and the State of Chile from October 21st, 1822, Article 16th states: “The Covenant of Union, League and Confederation not interrupt so any exercise of national sovereignty of each of the contracting parties as well so look to its laws and establishing the form of their government, and with respect to its relations with other foreign nations… “ Being also reaffirmed that criterion in the Treaty of Friendship, league and confederation between the Chilean State and the State of Peru of 23rd December 1822 establishing, in Article 15th: “The Covenant of Union, League and Confederation will not disrupt in any way the exercise of national sovereignty of each of the contracting parties as well so look to its laws and establishing the form of their government, and with respect to its relations with other foreign nations… “. These agreements referred to acquire special importance if one takes into account that were stimulated by Simón Bolívar and bilateral agreements that would serve as support Amphictyonic Congress of 1826, making it clear that sovereignty was not committed to the creation of an American agreement self-defense against old colonizer, Spain. Is notable the importance of such criteria, because in the case of the Dominican Republic has sparked an anarchic internationalism that disrespects criteria based on sovereignty, under the allegation that is best overall to be clinging to a criterion that collapses, which is that of sovereignty, as these poor criteria. It seems that this deplorable trial has taken shape in some international circles that have been expressed by some structures of the inter-American system, as the Court and the Inter-American Commission on Human Rights. No one in America can put in doubt the undisputed internationalist and respect for American values of Dominican vocation; being provisional president of the Dominican Republic in 1880 Gregorio Luperon resolutely reject the dishonorable proposal by the Spanish government to expel of the Dominican soil the known Bronze Titan of Cuba Antonio Maceo, and earlier in 1873 in the conflict Luperon paid funeral to Mayor Ignacio Agramonte who had fallen on May 11th of that year in the War of Cuba. It is not unknown to anyone in the history of the heroic participation of Dominican independence of Cuba; nor the gallantry with which the Dominican Gregorio Urbano Gilbert joined the army of Sandino in Nicaragua to support the general of free men in the struggle for independence that part of America. The limited space of this paper does not allow further expand on the examples given by the Dominican people of Americanism while an impregnable attachment to patriotic and sovereign ideas so you cannot claim that the Dominican Republic could be walking the path of self-isolation of the American community as defending its sovereignty. Has already been reflected the fact that the American system needs serious reformulations to ensure the strengthening of the American Public International Law which serves as support. The Inter-American Court of Human Rights can never be a sword against the sovereign integrity habitat of Latin American peoples. It is more than urgent reformulation of the instruments established in the American Convention on Human Rights; and the American Treaty on Pacific Settlement (Pact of Bogotá); because if it is true that the person is a subject under international law regarding human rights, the main component of international subjectivity is the State, and cannot have a Court or a committee in which the State lacks procedural initiative to defend their rights, which only has life procedural prerogative of the individual. It is essential that within reformulations to be carried in the American system is the creation of an American Court of Justice which can be subdivided into two rooms: a room related to human rights, and the other to take care of the rights of the States, so prevent the implementation of human rights and the right of States is unknown, and, equally, in applying the law of States the right of individuals is unknown. The Inter-American Court of Human Rights and the Inter-American Commission on Human Rights cannot function as supranational powers that overlap the sovereignty of American States. The decisions of the Inter-American Court of Human Rights and the Commission are all unilateral lights and often loaded with prejudices against a State, as is the case of the Dominican Republic. b) The decisions of the Inter-American Court of Human Rights in relation to the Dominican Republic are not only inapplicable because the instrument of acceptance was not made under domestic law, but also because the Court has issued rulings that sends ignore the Constitution of the Republic, to the extent that calls for the establishment of a system of nationality, not the regime of nationality in the country can only be changed by a referendum. Therefore it is not only unconstitutional instrument of acceptance, but also own judgment and the Inter-American Court of Human Rights overstepping falls in the degree of unconstitutionality. So, Mr. José Miguel Insulza, Secretary General of the OAS, goodbye to you from a Dominican who within their human rights is that of having a State and a nationality, but nevertheless national and international sectors want to ruin that State and that nationality; I have the right to Dominican nationality, but some want to destroy by dismantling the Dominican State to make a single state in union with Haiti, the Dominican-Haitian State. Best regards, Professor Juan Manuel Rosario
Posted on: Tue, 09 Dec 2014 02:10:04 +0000
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