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CHAPTER IX SITUATION OF HAITIAN MIGRANT WORKERS AND THEIR
FAMILIES
313. Thousands of Haitians participate in the Dominican sugar harvest every year, contracted by the State Sugar Council (CEA: Consejo Estatal de Azúcar) for the harvest. Historically, the conditions of the migrant laborers and the treatment accorded them have given rise to several complaints. Consequently, the United Nations Committee on Economic, Social and Cultural Rights, the International Labor Organization, and the IACHR have included this topic in their reports, presenting an evaluation on compliance with the international standards and treaties that govern in this situation. 314. International concern has gone beyond the question of labor rights alone, as non-governmental human rights organizations have published reports that denounce the participation of the police and military forces in the recruiting of migrant laborers and the abusive practices of the CEA authorities during and outside of the harvest season.173 315. The historical roots of this situation are found in the comparative advantage enjoyed by the Dominican sugar industry from the availability of a large source of cheap labor, which cointains, if not driving down, wage levels. The sugar industry of the Dominican Republic began its major expansion after the Second World War, and found a near-by source of labor in the contracting of Haitians for cane-cutting during the sugar harvest.174 316. Haitian labor is cheap due to the economic and market conditions and the abuse from the lack of alternatives, including with respect to the conditions of extreme poverty. 317. Historically it has been denounced that Haitian workers who cross the border to work in the sugarcane harvest in the Dominican Republic have been the victims of a whole array of abuses by the authorities, from assassinations, abusive treatment, massive expulsions, exploitation,175 deplorable living conditions, and the failure to recognize their labor rights.176 318. The migration question in the Dominican Republic has also evolved in conjunction with the political situation between the Dominican Republic and Haiti, which has affected Haitian workers who cut cane, and which has now expanded to sectors other than sugar, including the coffee, rice, and cacao harvests. In addition, Haitian immigrants have become engaged in various types of work in the urban area, such as tourism construction and domestic services. The participation of Haitians in these activities in the Dominican economy has been on the rise in recent years.177
319. On June 11, 1991, the non-governmental organization Americas Watch denounced to the House of Representatives of the United States of America the human rights violations affecting Haitian cane cutters employed in the Dominican Republic, noting, in particular, what it considered to be a forced labor regime affecting Haitian children on the plantations of the State Sugar Council. 320. Days after the renewed denunciations of mistreatment of Haitians and after a U.S. television network178 broadcast images of the deplorable living conditions of Haitian cane cutters, President Balaguer issued Decree 233, of June 13, 1991, by which undocumented Haitians under 16 years of age and over 60 years of age who were in the Dominican Republic were to be repatriated. 321. Beginning June 18, 1991, the Government of the Dominican Republic carried out massive expulsions of Haitian sugar cane workers, which numbered in the thousands; they were alleged to include practices in violation of the American Convention on Human Rights. 322. In the wake of the complaints received by the Commission over the massive expulsions of Haitians or persons considered Haitian, even though they had been born in Dominican territory, on July 24, 1991, the IACHR requested the authorization of the Government of the Dominican Republic to make an on-site visit for the purpose of observing the deportations. 323. The observation visit took place from August 12 to 14, 1991. As a result of that visit, the Commission published a report on the Situation of Haitians in the Dominican Republic in its Annual Report for 1991, and recommended to the Government of the Dominican Republic that it:
324. After the on-site visit, the Government of the Dominican Republic informed the Commission of its decision to suspend the expulsions as of September 30, 1991.
325. During the on-site visit of the IACHR in June 1997, it received denunciations of massive expulsions of Haitians and even of some Dominicans of Haitian origin during the first three months of that year. Human rights groups that work on the issue met with the Commission and reported that during January and February the Government had deported some 25,000 Haitians. 326. In addition, those groups informed the IACHR that the deportations were continuing, though in much smaller numbers. In most cases the Government had denied the deportees the opportunity to show that they were residing lawfully in the Dominican Republic. Nor were they given the opportunity to prove how much time they had been in the country, nor their situation of employment or family ties with the country. 327. The complaints submitted to the Commission note that the violent and hurried manner in which the deportations are carried out does not allow the migrant workers to take their belongings, nor to collect their wages. It has been noted that some companies, especially the sugar mills, profit from the deportation of their workers, as they simply fail to pay the wages owed. 328. As was denounced, the deportees are held in establishments in which they receive little or no food during their days of confinement, and in some cases they have been beaten by the Dominican authorities. At no time are they allowed to inform their family members of their expulsion. The Commission was repeatedly informed that children were taken by force from their homes when the parents were working. In addition, wives were deported while their husbands were away from home. In some cases, the massive expulsions are alleged to have entailed the forced separation of families, with the consequent detrimental impact on children. 329. On the occasion of the 1996 presidential elections, the Commission received several complaints indicating that the Dominican authorities had carried out roundups, destroying the identification cards and identification documents of Haitian workers and had forced them to return to Haiti. In several cases denounced, the persons expelled had been born in the Dominican Republic, where they had lived for many years, and they had the right to nationality by the terms of the Constitution. The Commission also received complaints on deportations carried out in communities on the outskirts of the National District, such as Palave, Palmarejo, Duquesa, Guarícano, Guanuma, and the bateyes of the Ingenio Ozama, San Luis, Matamamón, Boca Chica, and Batey Muñoz, at Puerto Plata, in July and August 1998. 330. Even though the Government has noted that it is carrying out the Agreement on the procedures for the expulsion of Haitians, entered into by the Dominican Republic and Haiti on February 2, 1997, non-governmental organizations--such as the Movimiento de Mujeres Domínico-Haitianas, National Coalition for Haitian Rights, and the Human Rights Clinic of the University of California have indicated that the procedure agreed upon is not respected, and that they Dominican authorities frequently fail to provide adequate notification of deportations to the Haitian authorities. For example, the list of persons expelled, provided by the Government, is generally imprecise: the number of deportees who travel in the busses is greater than appears on the list; and the names are incorrect, as is the date and destination of the bus.179 In many cases, the Haitian authorities are simply not advised of the deportations. 331. The IACHR was informed of the cases of Thomas Saint-Vil and Israel Joset, expelled from the Dominican Republic in 1997 and 1998; it is noted that these are not exceptional cases:
332. The Commission should note that Decree 233,182 which authorized the expulsion of more than 35,000 Haitians in 1991, is still in force, and as noted by human rights organizations, it poses a latent threat to Haitian workers.183 The Government has justified the massive expulsions by the failure of the Haitian authorities to enforce the immigration laws. Nonetheless, Decree No. 417, promulgated on October 15, 1990, whose objective was to legalize the status of Haitian migrant workers, has not been adequately enforced, and very few Haitians have been able to obtain legal status. In practice, the authorities only recorded Haitians as workers, but did not legalize their migratory status. 333. The IACHR should recall that Article 22(5) of the Convention provides that "[n]o one can be expelled from the territory of the state of which he is a national...," while Article 2(9) prohibits the expulsion of aliens. In addition, Article 22(6) does not allow the deportation of residents without due process of law, which in this case would provide an opportunity to prove that they are not in violation of Law No. 95, on Immigration. 334. The laws of the Dominican Republic provide that one who is going to be deported must have the opportunity to be heard and to present arguments on his or her behalf. The immigration statute and its regulations spell out a procedure for deportations in which it is established that no foreigner may be deported without having been informed of the specific charges justifying such a measure, and without having been given an opportunity to refute the charges (Articles 13 and 11(e) of Law 95, modified by Law 1559 of 1947).
335. The working and living conditions in the bateyes are extremely difficult. According to the technical assistance mission from the Committee on Economic, Social and Cultural Rights of the United Nations to the Dominican Republic: "The cane cutters are often subjected to abuses by migration and military authorities and children and women have no legal status."184
336. During its on-site visit, human rights groups that work on this issue indicated to the Commission that the situation of Haitian migrant laborers had improved slightly under the present Administration; nonetheless, they later indicated that as of 1998, Haitian workers and Dominican workers of Haitian origin, like their wives and children, continued being the victims of racial discrimination and human rights violations.185 "The Haitian workers on the sugar cane plantations continue facing restrictions on their freedom of movement. This includes the presence of armed guards in the cane fields, who oversee the migrant laborers to ensure they not flee the plantations."186 337. As was indicated by the Commission, the CEA keeps a record of Haitians contracted, and on some occasions issues them an identification document valid within the batey, and for the harvest period.187 Nonetheless, this is not done systematically, and upon the conclusion of the harvest, the workers still lack legal status and are unable to go elsewhere. 338. In its observations on the Draft Report, the Government reported that in 1998, identification documents were distributed to 15,485 Haitian workers to work in the sugar industry, and in 1999 they were given to 12,390 cane cutters. 339. With respect to the contracting of Haitians, the Dominican authorities reported that the labor contracts were being drafted in Spanish and Creole, to facilitate their understanding; nonetheless, there is no guarantee that the workers who accept these contracts are in agreement with their terms, as the vast majority are illiterate.188 340. The Movimiento de Mujeres Domínico-Haitianas and Anti-Slavery International denounced to the Commission that in some places, cane cutters continued being paid with vouchers, not with money. These vouchers were not accepted in places of commerce; they could only be used at the company store.189 The wages were very low and the workers and their families had a difficult time getting by. Their remuneration was likened to that of an agricultural day-laborer, and they were paid RD$42.00 Dominican pesos (approximately US$ 3.00) per ton of sugar cut, and the total amount depended on the worker's ability. 341. The Commission was told that the weighing of the cane would determine the amount of the payment. In the past it was denounced that the balances were fixed and the migrant laborers did not get the cane weighed fairly. During the IACHR's visit in June 1997, the migrants workers noted the presence of Haitian-Dominican inspectors during the weighing of the cane, which gave them a certain measure of security. Nonetheless, recently non-governmental organizations indicated that in the last harvest, the CEA authorities had expelled the Haitian-Dominican inspectors, and the workers had no one to represent them, nor did they have access to the process of weighing the cane.190 Complaints resurged that they had not been credited for the full amount of cane cut. Given the lack of inspectors, the migrant laborers lacked any effective mechanisms for finding a solution to their complaints.191
342. During its on-site visit, the IACHR visited four bateyes: San Joaquín, Culata, and Mata los Indios, near Santo Domingo, and batey No. 5, in the province of Barahona. The Commission found some advances under the new Administration, such as electrification of some bateyes, and plans for improving roads and establishing schools, of which there are few at present. 343. In general, the Commission observed the precarious conditions of the bateyes, enclaves where the cane cutters live. Even though the accommodations are free of charge, they are inadequate, lacking electricity and sewerage. The overcrowding, the lack of hygiene, of drinking water, and of latrines are all very serious problems. These shortcomings create conditions for diseases such as diarrhea, malaria, and tuberculosis. 344. The Commission also observed that there were no medical dispensaries. Several children had symptoms of malnutrition, and most did not go to school, instead helping their parents to eke out an impoverished existence.192 This created a tragic cycle in which a future of poverty is practically inescapable.193 345. Upon the conclusion of its on-site visit, the Commission indicated that it was aware of the conditions of poverty that affected other sectors of the population in the Dominican Republic. Nonetheless, the IACHR wanted to specially highlight the situation of the workers in the bateyes, since they work for the state and reside on state-owned properties, which makes the working conditions, housing, health, education, and security of the workers and their families a direct responsibility of the state.
346. Haitian women in the bateyes are even more vulnerable, as their presence in the bateyes is not acknowledged, nor their presence in the cane fields. Commonly, it is believed that only men go to work as migrant workers in the Dominican Republic. Consequently, Haitian women do not have, on their own account, the right to housing, nor to health services, however limited they may be. 347. The work done by Haitian women in the cane fields is discriminated against. Approximately 5% of the cane cutters are women, who are paid half of what the men receive. As indicated, the State Sugar Council has no record of the women who live in the bateyes, and the only function they attribute to them is to guarantee the presence of the migrant workers in the subsequent harvests. 348. Thus, Haitian immigrant women, as they are not acknowledged, cannot obtain documentation or any other type of benefit or service, and consequently they and their offspring are condemned to a situation of illegality and permanent exploitation. The same situation arises if the husband dies or is deported: the woman and family enjoy no protection whatsoever. 349. According to the Movimiento de Mujeres Domínico-Haitianas, when alone, Haitian women are victims of sexual exploitation, and have no one to recur to, as even the chiefs of the bateyes, camp guards, and migration agents abuse them, threatening to deport them or their family members if they do not accede to their demands.
350. The migration authorities have indicated that approximately 500,000 to 700,000 Haitians are in Dominican territory, and only about 5% of these have identification documents.194 One of the main problems of this sector of the population is to be found in the situation of permanent illegality in which they live. A large number of Haitians have lived in the Dominican Republic for 20, 30 or more years, without ever having legal status. Many countries grant citizenship after lengthy periods of residency, while other countries recognize at least permanent resident status, yet this is not the case of the Haitians in the Dominican Republic. 351. Most Haitians entered the Dominican Republic without having documents that prove their identity, nor are they registered in the Haitian Embassy or Consulate. On the one hand, they are not recognized as Dominican citizens or residents, while on the other hand they and their children have lost their contacts with Haiti. 352. The situation of illegality is passed on to the children, even when they have been born in the Dominican Republic. The children do not have documents because their parents have none.195 It is practically impossible to obtain them, either because the officers of the hospitals or civil registries refuse to issue a birth certificate or because the relevant authorities refuse to enter them in the civil registry. The argument usually given by government officials is that the parents do not possess the document identifying them as temporary workers, placing them in the category of foreigners in transit--even though they have lived in the Dominican Republic for years. 353. This situation appears to breach Article 11 of the Constitution of the Dominican Republic, which enshrines the principles of jus soli, and which indicates:
354. Human rights groups that work on the issue have pointed out to the Commission that there is a government policy of prohibiting the registration of the children of Haitian immigrants.196 The Dominican authorities impose on Haitian parents the burden of showing documents that are not expressly required by Law No. 659 on Acts of Civil Status.197 For example, the offices of the Civil Registry, in general, require that Haitian parents present an identity document in order to register their children, even though the law does not set forth any such requirement.198 355. The human rights groups that work on these cases indicate that requiring documents such as "a national identity card or a voter registration card from the parents" not only makes it impossible for Haitian parents to register their children, but is illegal, given that the law establishes no such requirement.199 356. As was denounced to the Commission, on August 5, 1997, a group of Haitian parents residing in the bateyes of Ingenio Monte Llano and Amistad, assisted by the Movimiento de Mujeres Domínico-Haitianas and the Comité Dominicano de los Derechos Humanos, went before the officers of the civil registry of Puerto Plata for the purpose of requesting the late registration of their children born in the Dominican Republic. An official from the Civil Registry rejected the applications, telling the attorney for MUDHA that the Central Electoral Board and "high-level authorities" had given instructions not to issue any certificate of a late declaration for children born in the Dominican Republic to the children of Haitian immigrants.200 In response to the refusal, the request for "late declaration" was submitted to the Central Election Board on September 2, 1997; to date there has been no response. 357. In the case of Tesius Pierre: On August 5, 1997, Tesius Pierre tried to register his four minor children. He presented the civil registry official with the identity cards that had been issued to him and his wife by the State Sugar Council (CEA), as well as hospital declarations and certifications attesting to the birth of his children in the Dominican Republic. The official refused to register the births, indicating that he and his wife were not in the country legally. The official rejected the identity cards issued by the CEA as proof of identity for the purposes of registration, and told the parents that they needed to have Dominican national ID cards (cédulas).201 358. On September 11, 1997, MUDHA and the CDDH requested of the Public Prosecutor of the Court of First Instance of the Judicial District of the Province of Monte Plata to authorize the "late declaration" of 20 children from the community of Batey Verde Sábana Grande de Boya:
359. Ten months later the Public Prosecutor resolved: "to refuse the request for late declaration of birth, for it is not protected in the documentation and procedure that govern in such matters."202 360. During its visit to the Dominican Republic, the Commission was informed by the government authorities of the preliminary immigration bill that was under study. As noted above, the Constitution stipulates that all persons born in Dominican territory, except for those in transit, are Dominicans. The preliminary bill proposes changing the status of undocumented persons, who are illegal immigrants, to that of "persons in transit," independent of the time they have resided in the Dominican Republic. This could mean that the children of Haitians, who have lived in the Dominican Republic for decades, and have been born in the Dominican Republic, would no longer be able to become Dominican citizens.203 In the Commission’s view, the concept of "transit" should reflect the reality, such that the law is violated when it is given a restrictive and formalistic interpretation that fails to acknowledge this reality. 361. In its observations on the IACHR’s Draft Report, the Government emphasized that the situation of Haitians in the Dominican Republic was truly a cause for concern, which is why a strategic alliance had been created between the Dominican Republic and Haiti, with a view to developing common projects aimed at improving the economic plight of Haitian nationals.204 362. In the same communication, the Government noted that in order to regularize the entry of foreigners, a preliminary bill had been drawn up to amend the Migration Act of 1939, which was to be submitted to the National Congress in short order. In the same context, the Government reported that a bilateral commission made up of Haitian and Dominican authorities was studying the situation of the undocumented workers.205
363. The Commission observes that some 500,000 undocumented Haitian workers reside in the Dominican Republic. In several cases these persons have lived in the Dominican Republic for 20 to 40 years, and many were born there. Most of them confront permanent illegality, which is passed on to their children, who cannot obtain Dominican nationality, because according to the restrictive interpretation by the Dominican authorities of Article 11 of the Constitution, they are the children of "foreigners in transit." It is not possible to consider persons who have resided for several years in a country in which they have developed innumerable contacts of all types to be in transit. Consequently, numerous children of Haitian origin are denied fundamental rights, such as the right to nationality of the country of birth, access to health care, and access to education. 364. The Commission urges the Dominican state to adopt measures aimed at improving and regularizing the situation of undocumented Haitian workers by distributing work permits and residency cards; and to legalize the situation of their children, in cases that proceed pursuant to the principle of jus soli, in keeping with Article 11 of the Constitution. 365. The Commission reiterates its concern for the precarious and unhealthy conditions in which Haitian workers and their families live, and recommends to the state that it adopt measures aimed at guaranteeing the economic, social, and cultural rights of those workers, with no discrimination whatsoever. In particular, the Commission points to the need to improve living conditions in the bateyes and that they be provided basic supplies such as drinking water, electricity, medical services, and educational programs. 366. The Commission also expresses its concern over the massive expulsions of Haitian workers. Collective expulsions are a flagrant violation of international law that shocks the conscience of all humankind. Individual expulsions should be carried out in accordance with procedures that offer a means of defense that is in line with the minimal rules of justice, and that prevent errors and abuses.
173 Organizations such as the National Coalition for Haitian Rights, Human Rights Watch, Lawyers Committee for Human Rights, Movimiento de Mujeres Domínico-Haitianas (MUDHA), Comité Québécois pour la reconnaissance des droits des travailleurs en République Dominicaine (CQRDTHRD), the Clinic at the University of California law school, together with church authorities, have sought international solidarity in denouncing the abuses of the CEA and the failure of the Government of the Dominican Republic of take action. 174 National Coalition for Haitian Rights, Beyond the Bateyes, April 1996. See also Moya Pons, Frank, El Batey: Estudio Socioeconómico de los Bateyes del Consejo Estatal del Azúcar, Fondo para el Avance de las Ciencias Sociales, Inc., Santo Domingo, 1986, p. 244. 175 See Report of the ILO, 1983; Manuel Mandruga, Trabajadores Haitianos en la República Dominicana, p. 147. 176 See Annual Report of IACHR 1991, OEA/Ser.L/V/II.81, doc. 6, rev.1, of February 14, 1992, pp. 271-295. 177 Ubiera, Pedro, Derecho y Políticas de Migración, Santo Domingo, 1996, p. 1. 178 Prime Time Live, ABC, May 2, 1991. 179 International Human Rights Law Clinic, School of Law, Boalt Hall, University of California. A delegation from the Clinic travelled to the Dominican Republic in May 1998 to observe the situation of Haitian workers. 180 Information submitted by the International Human Rights Law Clinic, School of Law, University of California. 181 Id. 182 Decree 233, of June 13, 1991, orders the "repatriation" of all foreign workers under 16 years of age and over 59 years of age who have been working as migrant agricultural workers in the state-owned bateyes. 183 Beyond the Bateyes, op. cit., p. 55. 184 Report of the technical assistance mission to the Dominican Republic of the Committee on Economic, Social and Cultural Rights of the U.N. Doc. E/C.12/1997/9, January 27, 1998, p. 19. 185 The National Coalition for Haitian Rights notes: "the situation of Haitians in the Dominican Republic appears to have no solution for a series of historical, political, and economic considerations. We analyze in considerable detail the historical sources of anti-Haitian sentiment and the transformation of the colonial antagonism into virulent racism for political purposes by Trujillo and his political descendants, a racism that presently permeates a large part of Dominican society." Beyond the Bateyes, p. 55. 186 Movimiento de Mujeres Domínico-Haitianas and Comité Dominicano de Derechos Humanos. Hearing before the IACHR, October 7, 1998. 187 The organization Anti-Slavery International, in its October 1998 report, noted: "The official figures on the number of persons employed on sugar plantations is not easy to come by. At present, however, there are 400 bateyes providing support on the plantations and 12 sugar refineries, and the number of residents of each batey is 3,000 to 4,000 in the largest and 300 to 400 in the smallest. This means there may be as many as 300,000 workers on the plantations, or working in sectors such as agriculture, construction, and performing several tasks in the economy...." Trabajo forzado en Plantaciones de Caña de Azúcar de la República Dominicana, p. 8. 188 Haitians and Dominicans of Haitian Origin in the Dominican Republic. Report by a delegation from the British and Irish churches. Christian Aid. March 1998. 189 Anti-Slavery International has noted: "the workers continue to be paid with two types of vouchers: tokens for cutting and loading the cane, and coupons for weeding the cane. The tokens can be converted to cash at a 20% discount. The coupons from specific supervisors can only be used in the stores chosen by the supervisors." 190 Anti-Slavery International, MUDHA, and the Comité Dominicano de Derechos Humanos. 191 Op. cit., Doc. E/C.12/1997, January 27, 1998. 192 MUDHA indicated to the IACHR that 95% of the children of Haitian origin born in the Dominican Republic could not attend school because they lacked documentation. Hearing before the IACHR, October 7, 1998. 193 Press release of the IACHR, June 20, 1997. 194 It is difficult to refer to exact figures, because neither the state authorities or the non-governmental organizations can give an exact figure for the number of Haitians in the Dominican Republic. 195 Although there are no official figures, it is estimated that approximately 250,000 children of Haitian origin have been born in the Dominican Republic. See André Corten, "Política Migratoria y Sociedades de Renta," Santo Domingo, pp. 209-210. 196 Movimiento de Mujeres Domínico-Haitianas (MUDHA) and the Comité Dominicano de los Derechos Humanos. 197 Law No. 659, of July 17, 1944, establishes the procedures for obtaining birth certificates that are required to prove one's place of birth and right to citizenship. The law provides that the registry of birth of a child before the Civil Registry be done within 30 days of birth (Article 39). If the declaration of birth is outside this period, the Civil Registry may order an investigation to determine the veracity of the information (Article 40). The Civil Registry is required to issue a copy of a late declaration to the District Prosecutor, who may instruct a court to carry out an investigation to establish whether the birth should or should not be registered (Article 41). 198 Most Haitians does even have identification documents. In addition, some offices of the Civil Registry require certain identity documents, such as cédulas (national identity cards), which can only be obtained by foreigners with legal residency. This makes it practically impossible for Haitian parents to be able to register their children born in the Dominican Republic. 199 Movimiento de Mujeres Domínico-Haitianas and Comité Dominicano de los Derechos Humanos. 200 Movimiento de Mujeres Domínico-Haitianas (MUDHA), Comité Dominicano de los Derechos Humanos (CDDH), and the human rights clinic at the University of California law school. 201 Information submitted by the human rights clinic of the University of California law school. 202 Resolution of the Office of the Public Prosecutor for the Judicial District of Monte Plata, of July 20, 1998. The documents requested are:
203 Id. 204 Observations of the Government of the Dominican Republic to the Draft Report of the IACHR, September 10, 1999, p. 5. 205 Id. |
