Appendix 23-3 Report of the Law Library of Congress on Haitian Nationality Legislation.

Report of the Law Library of Congress

on Haitian Nationality Legislation

LOC Rpt No. 99-1104

Haitian nationality appears to be governed by Title II of the 1987 Constitution, 1 which was reinstated by the Decree of March 26, 1990, 2 and by the Decree of November 6, 1984, on Haitian Nationality 3 . However, the legal material available at the Law Library is incomplete, and the Library has received no new legal material on Haiti since the beginning of 1997. This report is divided into two parts. Part I provides a translation from French into English of the main provisions of the law. Part II covers the specific questions listed in the request.

PART I: TRANSLATION

Constitution

The Constitution sets forth the following principles:

Article 11: All persons born of a Haitian father or a Haitian mother -- who are themselves native-born Haitians and have never renounced their nationality -- possess Haitian nationality at the time of birth.

Article 12: Haitian nationality may be acquired by naturalization.

Article 12-1: After five (5) years of continuous residence on the territory of the Republic, any foreigner may obtain Haitian nationality by naturalization, in conformity with the regulations established by the Law.

Article 13: Haitian nationality is lost by:

a) naturalization acquired in a foreign country;

b) holding a political post in the service of a foreign government;

c) continuous residence abroad for three (3) years by a naturalized Haitian without a duly granted authorization from a competent authority. Anyone who loses his nationality in this manner may not reacquire it.

Article 14: A Haitian who took another citizenship by naturalization may recover his Haitian nationality by meeting all the conditions and formalities imposed on aliens by the Law.

Article 15: Dual Haitian and foreign nationality is in no case permitted.

Decree of November 6, 1984

The Decree covers the following: (1) nationality of origin; (2) naturalization: effects and formalities; and (3) loss of Haitian nationality.

Nationality of Origin

Article 1: The Haitian nationality may be acquired by birth, naturalization, or by special favor of the law.

It may be proved by civil status certificates, the possession of Haitian status, and any other legal means.

Article 2: The following categories of persons possess Haitian nationality at birth:

Any person born in Haiti of a Haitian father or a Haitian mother;

Any person born abroad, of a Haitian father and mother;

Any person born in Haiti, of a foreign father or, if not recognized by his father, of a foreign mother, so long as he is descended from the black race.

The recognition of the individual by a foreign father at a later date will not affect his nationality.

Article 3: The Haitian woman who marries a foreign national does not lose her Haitian nationality.

Article 4: The Haitian woman whose husband takes a foreign nationality after the marriage keeps her Haitian nationality unless she takes an other nationality by naturalization.

Children born before the naturalization nevertheless remain Haitian.

Any person born in Haiti of an unknown father and mother or of known father and mother whose nationality is unknown acquires Haitian nationality by virtue of the declaration of his birth before the Official of the Civil Status.

However, he is considered to have never acquired Haitian nationality, if, before he reaches his majority, it is established that his father and mother or either one of them is a foreign national and that neither of them is descended from the black race.

Article 5: Those are also Haitians who up to this date have been recognized as such.

Article 6: Any person born in Haiti, of a foreign father and mother who are not descended from the black race, any person born in Haiti, of a foreign father and mother who are themselves native of Haiti and are not descended from the black race, any person not recognized by his father, born in Haiti, of a foreign mother who is not descended from the black race may acquire Haitian nationality by means of a simple declaration at the Parquet (Prosecution Department) of the Civil Tribunal of his residence during the year of his majority.

In his declaration the individual renounces his foreign nationality and adopts Haitian nationality.

Article 7: The child born in a foreign country of a foreign father and of Haitian mother will retain his foreign nationality until the year of his majority, at which time, he may acquire the Haitian nationality by means of a declaration at the Prosecution Department of the Civil Tribunal of his residence.

Article 8: The child born in a foreign country, of a foreign father and an Haitian mother may during the year of his majority, if he resides in Haiti or if he just moved there, acquire the Haitian nationality by means of a declaration at the Prosecution Department of the Civil Tribunal of his residence.

Article 9: The Haitian woman married to a foreigner who loses her nationality in conformity with paragraph 3 of article 26 of this decree will recover her Haitian nationality by a declaration at the Prosecution Department of the Civil Tribunal of her residence, if her husband acquires Haitian nationality.

The children of this naturalized foreigner, who have reached the age of majority, even though they be born outside Haiti, may, if they request it, acquire Haitian nationality, without a probation period, either by a presidential decree granting Haitian nationality to their father or by declaration at the Prosecution Department of the Civil Tribunal of their residence in conformity with the terms of article 6 of this Decree.

Minor children born in a foreign country have the option, during the year they reach their majority, to acquire Haitian nationality by the same declaration.

Article 10: Minor children of a surviving father or surviving mother who has become a naturalized Haitian will benefit from the same privilege, under the same conditions.

Article 11: A foreign woman married to a foreigner who became Haitian by naturalization becomes Haitian by means of a simple declaration at the Prosecution Department of the Civil Tribunal of her residence.

Article 12: The Haitian woman whose Haitian husband acquires another nationality by naturalization after their marriage shall retain her Haitian nationality, unless she herself acquires another nationality by naturalization.

Children born before the naturalization remain Haitian.

Article 13: For young people who by law have the option during the year of their majority, to become Haitian without a probation period, the fact to join the Haitian army or to take part in the draft, and in general to exercise the rights and/or to undertake the obligations attached to the Haitian nationality, without advancing their alien status, will be equivalent when they reach their majority to the declaration provided by the present Decree and will exempt them from such declaration.

Article 14: When the declaration provided by the present Decree is not made within the prescribed time period, at the competent Prosecution Department, it is left to the discretionary power of the President of the Republic, based on reasons that in his sovereign estimation warrant it, to authorize its admission at a later date, when the individual concerned was not able to act on time due to reasons beyond his control.

Naturalization and Its Effects

Length of Residence

Article 15: Any foreigner may after lawfully residing for five (5) years on the territory of the Republic acquire Haitian nationality in conformity with the rules established by the present Decree.

Article 16: The required time of residency prescribed in article 15 above may be reduced to two years for any foreigner who: has married a Haitian woman, will have rendered important services to Haiti, will have brought distinguished talents, or introduced an industry, a trade, an art or a useful invention, or created an industrial or agricultural enterprise.

For reasons that in his sovereign estimation warrant it and in the interest of the country, even before the residency requirement deadline, the President of the Republic may grant Haitian nationality to any foreigner who requests it.

Article 17: The foreigner who accepts a civil or military post and keeps it for five years acquires Haitian nationality, unless he declares in a document served to the Prosecution Department of the Civil Tribunal of his residence his intent to retain his nationality.

Article 18: Individuals who became Haitian by naturalization may exercise their political rights ten (10) years after their naturalization.

Procedure

Article 19: The naturalization request is addressed to the Ministry of Justice. The following documents must be attached to the request:

a) the applicant's residency permit;

b) his identification card;

c) a residency certificate signed by a local magistrate or a Justice of the Peace;

The foreign national who is exempt from the formalities concerning the residency permit must replace this document with any other relevant papers or documents.

Article 20: After a background check by the Ministry of Interior concerning the moral character of the foreigner, the Minister of Justice forwards, with its reasoned opinion, the request and the supporting documents to the President of the Republic.

Article 21: The President of the Republic signs a Decree for each naturalization. The decree is published in the Official Gazette.

Article 22: Before the publication [in the official gazette], the individual must take the following oath before the Senior Judge of the competent Civil Tribunal:

"I renounce all motherlands other than Haiti."

On the cases envisioned in the second paragraph of article 16 of the present Decree, the documents mentioned in article 19 are not necessary.

Article 23: A special fixed fee of 5000 Gourdes (approximately US$ 300) is due when the Ministry of Justice advises the applicant that the President of the Republic has acceded to his naturalization request.

Unless exempted from the fee by the President of the Republic, the naturalized individual cannot claim any privilege or advantage resulting from Haitian nationality until he pays the fee.

Article 24: Declarations to opt for Haitian nationality are made at the Prosecution Department of the Civil Tribunal of the applicant's residence.

The declarations are subject to a fee of 250 Gourdes (approximately US$15)

The Ministry of Justice gives its approval at the bottom of the page when all the conditions are meet (sic).

After receiving the above mentioned fee, the Ministry of Justice will publish a notice in the Official Gazette stating that the option is regular and valid.

Article 25: Any individual wishing to make known that he meets all the conditions required by law to benefit from Haitian citizenship must address a request to that end to the Ministry of Justice with a fee of 100 Gourdes (approximately US$6). The supporting documents must be attached to this request.

After the necessary verifications, if the request is granted, the Ministry of Justice will publish a notice in the Official Gazette stating that the individual is a citizen of Haiti.

Loss of Haitian Nationality

Article 26: Haitian nationality is lost by:

1) naturalization in a foreign country, unless there exist between Haiti and the new country of adoption of the individual concerned a convention on dual nationality, according to the provisions of article 18 of the Constitution; 4

2) abandoning the motherland at a time of imminent danger;

3) by making an obvious choice or by actively benefitting from a foreign nationality in cases of conflict of nationalities;

4) rendering services or dealing with the enemies of the Republic;

5) taking arms or inciting people to take arms against the Republic;

6) continuous residence abroad, for at least three years of a naturalized Haitian without duly granted authorization by a competent official. Anyone who loses his nationality in this manner may not reacquire it.

Article 27: When a Haitian, be he by origin or naturalization, is convicted by a definitive and adversary judgment to severe, life-time [affictives et infamantes], he loses the privileges of citizenship while remaining a Haitian national.

Article 28: The naturalized Haitian who return to Haiti may be prosecuted for crimes and offenses committed before his naturalization, unless the statute of limitation has run out.

Article 29: No Haitian may be denaturalized in Haiti. He must previously have resided in a foreign country. Otherwise, the denaturalization act does not have any legal effect in Haiti.

By the same token, the registration for naturalization of a Haitian in one of the legation or consulates established in Haiti does not have any legal effect in Haiti.

Article 30: The loss of Haitian nationality is established by a decree of the President of the Republic and is published in the Official Gazette.

PART II: SPECIFIC QUESTIONS

Citizenship Through Birth Jus Soli :

1. Are all persons born within the territory of Haiti deemed to be citizens?

No. Two categories of individuals possess Haitian nationality at birth based solely on their birth on Haitian territory:

· Any person born in Haiti of a foreign father or, if not recognized by his father, of a foreign mother, so long as he is descended from the black race; 5

· Any person born in Haiti of unknown father and mother or of known father and mother whose nationality is unknown acquires the nationality by virtue of the declaration of his birth before the Official of the Civil Status. However, he is considered to have never acquired the Haitian nationality, if, before he reaches his majority, it is established that his father and mother, or either one of them, is a foreign national and that neither of them is descended from the black race. 6

For other persons born in Haiti, the law requires that at least one of the parents be Haitian. 7

2. What type of documentation is issued to a person deemed to be a citizen at birth jus soli ?

The Haitian Civil Code provides that declarations of birth shall be made within one month of the delivery to the Official of Civil Status of the place of residence of the mother or the place of birth of the child. The certificate of birth shall be drawn up immediately in the presence of two witnesses. It will be entered in the births register. 8

Under civil law, Acts of Civil Status such as birth, marriage, and death certificates are entered in special registers. These registers are kept in duplicate. Mention of any modification of a person's status (e.g., marriage, divorce, adoption, change in name) shall be made in the margin of the birth certificate in order to centralize all information regarding the status of that person.

The certificate of birth shall state the day, hour, and place of birth, the sex of the child and the first names given to him, the first names, last names, ages, professions, and domicile of the father and mother, and the names of the witnesses. 9

Extracts from the registers may be delivered to any person requesting them. 10

When a birth has not been declared within the legal period of time, the Official of the Civil Status may relate it in the births register only by virtue of a judgment rendered by the Civil Tribunal of the place of birth of the child or of his domicile. 11

The Decree of September 21, 1987 12 establishing a national system of identification for all persons living in the territory of the Republic requires that each person be identified at the time of his birth or when admitted to the territory. The fundamental elements of the identification are: the family name, first names, sex, nationality, age, names of father and mother, and any particular visible marks.

This identification is done by the Office National d'Identiflcation .

At age 18, each person must apply for an identification card. The applicant is given a number that he will retain all his life. Haitians by birth must provide their birth certificate, which can be replaced by an affidavit. Haitians by naturalization must present the Official Gazettes in which their naturalization decrees were published. The identification card must be renewed every ten (10) years.

3. Is such documentation standardized throughout the country?

Yes. This documentation is standardized throughout the country.

Citizenship Through Birth Jus Sanguinis :

1. Does Haiti confer citizenship at birth to persons born outside the country to parents who are citizens?

Yes. The 1984 decree provides that "any person born abroad of a Haitian father and mother possesses the Haitian nationality at birth," 13 13 and the Civil Code states that "any person born in Haiti or abroad of a Haitian father or a Haitian mother is Haitian." 14

2. If so, what requirements, if any, must the citizen parents meet in order to pass on citizenship?

Article 11 of the 1987 Constitution requires that the parents be natives of Haiti and have never renounced their nationality. This text is silent as to the place of birth of the child. These requirements are not found in the 1984 Decree or the Civil Code.

3. Can citizenship be passed from just one Haitian parent, or must both parents be citizens?

Citizenship can be passed from just one parent when the child is born in Haiti. It appears also that citizenship can be passed from just one Haitian parent when the child is born abroad. Article 11 of the 1987 Constitution, which provides that "any person born of a Haitian father or a Haitian mother--who are themselves native-born Haitians and have never renounced their nationality--possesses Haitian nationality at the time of the birth," is silent as to the place of birth. The Code Civil states that "any person born in Haiti or abroad of a Haitian father or a Haitian mother is Haitian," and refers to Article 11 of the Constitution. Only the 1984 Decree requires that both parents be Haitian.

4. Must someone who is a dual national make a statement of allegiance at a particular age in order to retain citizenship in Haiti?

Haiti does not recognize dual citizenship. The 1984 Decree provides for a list of individuals who have the right to opt for Haitian citizenship when they reach their majority. 15

5. What type of documentation is issued to a person deemed to be a citizen at birth jus sanguinis ?

A person deemed to be a citizen at birth jus sanguinis receives the same documentation that a citizen at birth jus soli receives.

6. Is such documentation standardized?

Yes.

7. Are consulates outside Haiti empowered to make determinations and issue documentation regarding birth jus sanguinis ?

Haitian consuls are empowered with the competence of the Officials of the Civil Status. In that capacity, they record births in conformity with the provisions of the Civil Code stated above, and forward copies of these certificates to the Foreign Affairs Ministry in Haiti. In addition, they deliver passports. 16

The Civil Code provides that any act of the civil status concerning a Haitian citizen that is drawn abroad in conformity with the law of that country is valid. 17

Citizenship Through Naturalization

1. What are the requirements for applying for citizenship?

Any foreigner, after lawfully residing for five (5) years on the territory of the Republic, may apply for Haitian citizenship. This required time of residency may be reduced to two years for any foreigner who has married a Haitian woman, has rendered important services to Haiti, has brought distinguished talents, or introduced an industry, a trade, an art or a useful invention, or created an industrial or agricultural enterprise.

In addition, the President of the Republic may grant Haitian citizenship before the residency requirement deadline for reasons that in his sovereign estimation warrant it and are in the interest of the country. 18

2. Is there an examination for becoming a citizen?

No. The Ministry of Interior conducts a background check on the moral character of the applicant.

3. Is there a fee for applying for citizenship?

Yes. There is a fee of 5000 gourdes (approximately US$ 300). The fee is due when the Ministry of Justice informs the applicant that the President of the Republic has acceded to his request. Unless exempted from the fee by the President of the Republic, the naturalized individual cannot claim any privilege or advantage resulting from Haitian nationality until he pays the fee. 19

4. Are there special requirements for persons who are married to a citizen of the country?

It appears that there are no special requirements.

5. Who has the authority to confer citizenship?

The President of the Republic confers citizenship by decree. 20

6. What, if any, is the ceremonial procedure at which one naturalizes?

The individual must take the following oath before the Senior Judge of the competent Civil Tribunal:

"I renounce all motherlands other than Haiti." 21

7. What type of documentation is issued to a person deemed to be a naturalized citizen?

The naturalization decree is published in the Official Gazette. 22

Expatriation

1. Under what conditions may someone lose Haitian nationality?

Haitian nationality is lost by 23 :

a) naturalization acquired in a foreign country;

b) holding a political post in the service of a foreign government;

c) abandoning the motherland at a time of imminent danger;

d) making an obvious choice or actively benefitting from a foreign nationality in cases of conflict of nationalities;

e) rendering services or dealing with the enemies of the Republic;

f) continuous residence abroad, for at least three years of a naturalized Haitian without duly granted authorization by a competent official;

g) taking arms or inciting people to take arms against the Republic.

2. Is expatriation automatic upon taking of certain actions or must there be a specific and individual finding of expatriation?

The law provides only that the loss of Haitian nationality is established by decree signed by the President of the Republic. 24

3. Who is empowered to make determination on expatriation?

The law states only that the President of the Republic signs the decree establishing the loss of the nationality. The law is silent as to the procedure used. 25

4. What type of documentation is issued?

The decree is published in the Official Gazette. 26

Prepared by Nicole Atwill

Senior Legal Specialist

Western Law Division

Library of Congress

November 1998