Servio Tulio vs Jottin Cury David: The U.S.-Dominican Republic Preclearance Agreement

Lawyers and specialists Olivo Rodríguez Huertas and Servio Tulio Castaños, together with Constitutional Court emeritus magistrates Jottin Cury, Wilson Gómez and Katia Miguelina Jiménez, expressed different points of view on the preclearance issue, in conversations they held at different times with Acento. Magistrate Leyda Margarita Piña, also emeritus, signed the document warning against preclearance, but did not grant an interview.

Although controversial because it has been going on for almost five years in a tug-of-war in the Constitutional Court, it has not been analyzed in detail by the media, nor have its protagonists wanted to make statements, apart from the letters already referred to by this newspaper or superficial statements that have been made to certain journalists.

Servio Tulio Castaños Guzmán, executive vice-president of Finjus
The Institutionality and Justice Foundation (Finjus), through its executive vice-president, Servio Tulio Castaños Guzmán, agreed to talk to Acento about the issue, because he considers it positive, but without having gone into the details of the agreement.

Castaños Guzman said that he respects and values the four magistrates who have criticized the pre-authorization agreement, but absolutely rejects their criteria.

Servio Tulio’s version against the myths that have been created.

To dismantle myths, he said, the first thing to look at is the background of this agreement. He explained that the decision of the Constitutional Court rejecting the agreement with the US embassy (Sentence TC 0315/15), to offer protection to officials of the US embassy, motivated the government to create a commission of jurists to shield the new agreements.

He said that to avoid another rejection the government signed the pre-clearance agreement after a commission of jurists reviewed it. Among the commissioners were Flavio Dario Espinal, Cesar Dargan, Olivo Rodriguez Huertas and Nassef Perdomo, “any of them can perfectly be president of the Constitutional Tribunal”.

He clarified that it is the Dominican State and not the Puntacana Group who is seeking the pre-checking agreement, because the previous government had the policy of attracting 10 million tourists per year, and most of these tourists come from the United States.

He said that North American tourists are forced to fly from small towns to cities such as New York or Miami in order to travel to the Dominican Republic. And the same thing happens to them on their return trip. With the agreement, he informed, this difficulty is solved, because travelers could travel from small airports directly to the Dominican Republic, as a local flight, and on their return it would be the same, without having to go to a hub such as New York or Miami.

He explained that in the United States there would be 56 airports that could value the Dominican Republic, and that in order to sign as was done in December 2016, “a feasibility study was done”.

On the annex contained in the agreement, and which deals bilaterally with the handling of refugees, Servio Tulio said that it is not in violation of sovereignty as denounced by the emeritus judges. “The first thing is that all agreements have annexes, and that annex does not violate Dominican sovereignty, because what the annex contains is exactly the same as what the international convention on refugees to which we have been a party since 1978 says,” said the Finjus vice-president.

The DR has the strongest relationship with the United States

He valued as special the relationship of the United States with the Dominican Republic, and differentiated it from the one it has with Spain or South Korea. “We have in the US more than three million Dominicans.”

He said that the most beneficial aspect of the agreement is that the US authorities, since they have more resources, information and technology, will be able to determine if there are terrorists or undesirable persons for that country who are in the Dominican Republic, they will deliver the information to the authorities so that this person can be apprehended in the country. “That is a great advantage for the Dominican Republic,” said the Finjus vice president.

He said that there is a study on the increase of passengers in the places where the pre-check is applied. Although he did not have with him the study, he revealed that the increase in passengers was 40 and sometimes up to 50% in relation to places without the agreement.

He said that if there are disadvantages for airports not included in the agreement, taking the signed document, “what they should do is to ask the US authorities to include them in the agreement”.

He was informed that since 2014 Aerodom and La Romana airports made requests to be included, with no response from the United States. “Imagine you, that would have to be asked to the United States,” he responded. “We have a unique relationship with the United States. That is why I am saying that this is a cooperation agreement” of the United States with the Dominican Republic, he said.

He said it is not up to the Dominican Republic to decide who enters the United States, but to decide who leaves our territory. He does not believe that there is any cession of sovereignty, as the four judges who left the Constitutional Court have said.

We are not ceding anything in exchange for the agreement

“We are not ceding anything. And we are not ceding anything for a simple reason: because those spaces are inside an airport administered by Dominican authorities, where all the requirements to leave are going to have to be fulfilled before pre-check-in. If there is any problem, it is going to be solved by the Dominican authorities. What is it that we are ceding?” said and wondered Servio Tulio Castaños Guzmán.

“What is being created, I understand, is a mechanism that ultimately benefits this country. Hopefully, the AILA will request and be approved immediately”. For the lawyer, here there has been an attempt to confuse the spaces that are being reserved for the U.S. authorities as if it were a space similar to that of the consulates. Far from reality, according to him.

Jottin Cury says that we give up everything in exchange for nothing

Consulted on these issues, Jottin Cury David, judge emeritus of the Constitutional Court said that the agreement violates the Dominican Constitution in its articles 3, 6 and 252, but it also violates the Vienna Convention in its article 53, which obliges the States to keep certain reciprocity in their relations and pacts. This article declares null and void those conventions that violate the norms of public international law, as is the case when it refers to the principle of self-determination. International relations would be illusory if this article of reciprocity did not exist.

For Cury, this is what is happening with this agreement, a powerful country with a small country, in practice forcing it to make a unilateral cession of sovereignty, in violation of the United Nations Charter.

Jottin Cury David, judge emeritus of the Constitutional Court
They would be expanding their borders towards us to protect themselves from terrorism and undesirable persons, so that they do not penetrate their territory, but it is violating Dominican sovereignty, because we would be allowing U.S. agents to come and take charge of the migration and customs processes in our country. We would have to bear the costs of that, he said.

Sovereignty is exercising authority within a concrete physical space, and in this case we would be allowing the United States to come to our territory to exercise its authority. In this case, the agreement would start with Punta Cana but would be extended to the other airports that they admit, if they comply with the demands of the United States.

Refugees: the most serious issue, according to Cury

Jottin Cury said that the most serious issue in the agreement, and the main reason why it should be rejected, is that of refugees. “The agreement foresees that there would be designated points of contact between the two countries. And that we would have to consult with the Americans on our refugee policy. If that agreement had been approved, President Abinader would not have been able to send soldiers to the border with Haiti without consulting the Americans”, when the so-called Operation Gavion was decided, after the assassination of President Jovenel Moïse last July 7, according to the jurist.

After the approval of this agreement, the guardianship of our sovereignty by the United States would come into effect, and in this sense, any movement of troops to the border would have to be reported and agreed with the United States.

For Cury there is no relation between a greater number of tourists and this agreement. He said that in no way will our trade balance with the United States be changed as a result of this agreement.

“Every day we are seeing information that there is an extraordinary increase of tourists in our country. That agreement has nothing to do with an increase in tourism, because tourism increases spontaneously on its own, because of what our natural resources are, because of the warmth of the Dominican. That is the bait, that this would increase tourism. I wonder where are the studies that prove this increase in tourism,” said Jottin Cury.

Punta Cana in the agreement of the two States

The emeritus judge of the TC said that he does not know the reasons why the agreement starts with the Punta Cana airport, and then extends to the other entry and exit points of the country. For him it is not possible to apply this agreement through any airport, and for the Dominican Republic to do what many other countries did, such as Spain and Korea, which rejected the U.S. proposal precisely for sovereignty reasons. He said that in the case of Spain it was considered “a poisoned gift”. “I understand the same thing, here we have to reject that agreement, especially with the issue of refugees, I reiterate that it is the most serious, and also because it violates sovereignty in multiple aspects, and because it violates the precedent of the TC 315/15 ruling.”

He declared that the Dominicans have absolutely nothing to gain by signing this agreement, and that probably the one who would gain the most would be the United States, which has promoted the initiative and has handed it over to various countries.

Punta Cana International Airport
He warned that the TC would look very bad and would contravene its own decisions if it were to approve the agreement, and that the National Congress would look equally bad if it were to validate an agreement that is clearly contrary to the Constitution.

“It would look bad because that is what is going to evidence a painful subordination of a colonialist stage happily overcome. Then why are we the Dominican Republic? Let’s take away the name of Republic. All domestic flights, as in Puerto Rico, would be internal flights, and we are going to operate with a governor, and we are going to cede our sovereignty. That is why I understand that this cannot be approved neither in the TC nor in the Congress”, declared Jottin Cury.

In the TC there were discussions and rejections

Cury revealed that as soon as the pre-check agreement arrived at the TC, in 2017, there was much rejection, resentment, discussions, and on the multiple occasions that it was submitted to the plenary of the body it never obtained approval.

To be approved an issue it is necessary that at least 9 nuts agree, of the 13 that are part of the TC. Jottin Cury understands that in the present composition of the organism it will not be possible for it to obtain the majority it needs to pass.

For Cury what President Luis Abinader should do is to remove the project from the TC, through a formal withdrawal, revise the agreement and eliminate the aspects of unconstitutionality, and resubmit it so that it can be validated.

He suggests that the agreement be reciprocal, that the refugee issue be eliminated, that the prerogatives of U.S. personnel be eliminated, among other aspects, in addition to the prerogatives on the advantages of doing business in the Dominican Republic, which would remain in the hands of the United States.

If the agreement is approved, the Dominican Republic would become a dumping ground, a place where terrorists that the United States rejects stay. “They protect their security and we become a dumping ground for terrorists, refugees and undesirable people that they do not want in their territory and we would have to carry them. And many of them would not necessarily be Dominicans, they could be Italians, Swiss or any other nationality. That is an issue that is convenient for them, but not for us.

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