In his Nobel Prize speech in December 1982, Gabriel García Márquez described the heterodox habits of colonial conquerors, generals and dictators as the roots of “the solitude of Latin America.” During the laureate ceremony at the Swedish Academy, he made no mention of the Dominican Republic. He also refrained from pointing out examples of judges’ heterodox conduct, probably because he was a writer, not a lawyer. But if García Márquez were alive in November 2014, he might consider TC-0256-14, the recent ruling by the Dominican Republic’s Constitutional Tribunal, to be a perfect example of “the solitude of Latin America” in the mindset of judicial officials in the Spanish-speaking Caribbean.
Adopted on November 4, TC-0256-14 concluded that the Dominican Republic’s acceptance of the Inter-American Court of Human Rights’ (IACt-HR) jurisdiction in March 1999 by then-President Leonel Fernández marked a breach of Article 37, numeral 14 of the Constitution, which states that the National Congress is empowered to “approve or disapprove the treaties and international conventions signed by the Executive Branch.”
It is worth mentioning that although the Dominican Congress ratified the American Convention on Human Rights on January 21, 1978, the country did not formally accept the IACt-HR’s jurisdiction until February 19, 1999. Over the past 15 years, the IACt-HR issued four judgments on the merits of cases and granted three provisional measures in the Dominican Republic, whose government had never challenged the jurisdiction of the Court on the grounds of the alleged supremacy of its national constitutional provisions. Indeed, the current Dominican Constitution was enacted in July 2002, three years after the acceptance of the IACt-HR’s jurisdiction—raising serious questions about whether national norms that regulate the ratification of international treaties can be applied retroactively.
Up until now, the only other country to attempt to withdraw the instrument of acceptance of the IACt-HR’s jurisdiction was Peru in July 1999. Can the Dominican justices who handed down the recent ruling be proud of sharing the same sense of commitment to human rights as Alberto Fujimori? They should at least be credited with authoring the Western Hemisphere’s first-ever judicial attempt to reject the IACt-HR’s jurisdiction. TC-0256-14 was passed only two months after the IACt-HR ruled that the Dominican Republic’s attempt to deny citizenship to Dominicans of Haitian ancestry violated articles 3, 18, 20 and 24 of the American Convention of Human Rights (Caso de Personas Dominicanas y Haitianas Expulsadas v. República Dominicana of August 28, 2014, paragraph 325). In brief, this IACt-HR’s judgment challenged the Dominican Constitutional Tribunal’s September 2013 ruling (TC-0168-13) and related laws passed by the National Congress that prevent persons of Haitian ancestry born in the Dominican Republic from exercising their basic civil, political and social rights.
TC-0256-14 could be the title of an amusing story for those accustomed to laughing at the absurd behavior of statesmen and their solitude. It’s more appalling than laughable, though: the members of a tribunal tasked with ensuring constitutional rights are effectively diminishing access to justice and the scope of international protection for anyone who suffers abuses within the Dominican Republic. But there are legal and political reasons for believing that the November 4 ruling will prove to be a short-lived judicial fluke. The legal reason is evident in the IACt-HR’s reaction to Peru’s attempt to withdraw its acceptance of the Court’s jurisdiction, lead by then-de facto President Alberto Fujimori:
The American Convention is very clear that denunciation is of “this Convention” (Article 78) as a whole, and not denunciation of or “release” from parts or clauses thereof, since that would undermine the integrity of the whole. Applying the criteria of the Vienna Convention [Article 56(1)], it does not appear to have been the Parties’ intention to allow this type of denunciation or release; nor can denunciation or release be inferred from the character of the American Convention as a human rights treaty (IACt-HR, Case of Ivcher-Bronstein v. Peru, judgment of September 24, 1999, par. 51).
In a press release on November 6, 2014, the Inter-American Commission on Human Rights (IACHR) reached the same conclusion, and emphasized that “the American Convention does not establish the possibility that a State that continues to be a party to the treaty can release itself from the jurisdiction of the Inter-American Court.” It is important to stress that the IACHR’s visit to the Dominican Republic in December 2013 and its subsequent investigation of discrimination toward persons of Haitian descent have been praised by the majority of delegations in the Permanent Council of the Organization of American States and other political bodies of the OAS.
Politically, TC-0256-14 is a clumsy move, because diplomatic pressure and public disapproval are certain if the Dominican government decides to formally—but unlawfully—withdraw from the IACt-HR’s jurisdiction. President Danilo Medina can either detach himself from the cascade of criticism that is currently descending upon the members of the Constitutional Tribunal, or he can turn the Dominican State into a pariah in the eyes of the international community and thus ensure his country’s diplomatic solitude.