A Draft of a Constitutionally Valid Proposed Law on Nationality and Citizenship in Uruguay

The Restoration and Modernization of Uruguayan Nationality and Citizenship Law

Various commentators in Uruguay have indicated that the Uruguayan State can only comply with its treaty commitments to provide the stateless a path to nationality and allow long-term residents to become nationals by holding a “plebiscite.” I propose that following Uruguay’s domestic Constitutional interpretative methodology does not require a plebiscite or a Constitutional amendment. I have drafted a model law implementing the right to nationality through interpretative legislation. I encourage you to review it and determine whether this draft interpretative law violates any terms of the Uruguayan Constitution. A table of the various Constitutional provisions concerning citizenship and nationality is included in the document for ease of reference.

Before starting the review, it is crucial to remember that the Inter-American Human Rights Commission provided the standard definition of nationality accepted in international law in Resolution 2/23. It is also essential to recall that the Uruguayan State provides immigrants with voting rights, which it calls citizenship, but denies the stateless and all long-term residents any path to nationality.

NATIONALITY: It is the fundamental human right that establishes the essential legal bond between a person and the State, by virtue of which a person belongs to the political community that a State constitutes under domestic and international law. This link allows acquiring and exercising rights and responsibilities inherent to belonging to a political community. Furthermore, it is a non-derogable right in accordance with Article 27 of the American Convention on Human Rights. Some countries use the word nationality, while others refer to the word citizenship to denote this legal bond. In international human rights law, both terms are used interchangeably.

The full draft law, a statement of motives, a consolidated draft of Law 16.021 showing the changes made, an academic review of the basis for the interpretative law, an FAQ or question-and-answer section on its impacts, and a table of constitutional provisions are included in the document published here:

https://www.nacionalidad.uy/downloads/Proyecto_Ley_Andrew_Nacionalidad_Oct2024.pdf

The proposed "Restoration and Modernization of Uruguayan Nationality and Citizenship Law" aims to reform Uruguay's nationality framework to address ambiguities in distinguishing between natural and legal citizens and to align with international human rights standards. Key elements include:

1. Clarification of Nationality: All citizens, natural or legal, are recognized as nationals. Nationality equates to being Uruguayan and applies uniformly to all citizens.
2. Descent Rights: Children of citizens, regardless of birthplace, may inherit nationality. Legal citizens' foreign-born children are also granted rights to claim nationality upon meeting residency requirements.
3. Constitutional Interpretation: Articles 74 and 81 are reinterpreted to clarify legal residency and nationality transmission.
4. Clarification of Dual Nationality: Citizens may retain Uruguayan nationality when acquiring another nationality, although dual nationals lose political rights (like voting) if they naturalize abroad.
5. Standardization of Identification Documents: Official documents must uniformly reflect Uruguayan nationality, reducing issues in international travel and diplomatic protection.
6. International Compliance: The law aligns with international norms to prevent statelessness, protect children's rights to nationality, and fulfill treaty obligations.

The Statement of Motives explains that the proposed law addresses critical ambiguities in Uruguay's Constitution regarding nationality and citizenship, especially the need for more clarity in distinguishing between citizenship and the modern concept of nationality. These issues have led to actual harm, including denying nationality to legal citizens and those found to be stateless, which affects access to identification, travel, and diplomatic protections. Additionally, the current framework contravenes Uruguay's commitments under international human rights law, as it fails to protect against statelessness and does not ensure the right to nationality for all citizens.

Historically, Uruguay’s interpretation, influenced by legal scholar Justino Jiménez de Arechaga, has viewed nationality as applicable only to natural citizens. This has left legal citizens in a “gray zone” without full recognition as nationals. This has caused significant issues, such as the misidentification of Uruguayan citizens as foreigners in official documents, including passports, resulting in travel difficulties and the denial of fundamental rights. Fortunately, Alberto Pérez Pérez, perhaps Uruguay’s most well-respected international lawyer, published an entirely different interpretation of the Uruguayan Constitution, opening two competing interpretative schools with differing opinions on whether the current Constitutional text classifies legal citizens as “foreigners.”

The law aims to correct these injustices by reinterpreting constitutional articles to recognize all citizens as nationals and ensure equal treatment across various legal and social domains. This includes enabling children of both natural and legal citizens to inherit nationality regardless of birthplace, aligning Uruguayan nationality law with international human rights obligations, and addressing longstanding discrimination and obstacles legal citizens and the stateless in Uruguay face. The statement emphasizes that this reform is necessary not only to uphold democratic values but also to ensure Uruguay’s legal obligations are met and to protect the dignity and rights of all its citizens.

The English translation of Law 16.021, as it would stand if amended by the proposed interpretative law, is provided here for you to look over.

Law Nº 16.021 Amended by the RESTORATION AND MODERNIZATION LAW OF URUGUAYAN NATIONALITY AND CITIZENSHIP

Article 1

All citizens of Uruguay are nationals of the Oriental Republic of Uruguay. The condition of Uruguayan nationality is synonymous and interchangeable with the condition of being Oriental.

Article 2 If one of their parents is or was a natural Uruguayan citizen born in Uruguay, a legal citizen of Uruguay, or a citizen of Uruguay who established residence in Uruguay and registered in the Civic Registry at any time before the birth of the child, such a child of any national of Uruguay, also known as Oriental, born anywhere, is considered a national of the Oriental Republic of Uruguay and has the right to become a natural citizen. The citizenship rights corresponding to being natural citizens of Uruguay are available to children born abroad only by the fact of settling in the country and registering in the Civic Registry upon reaching or after reaching the age of 18.

Article 3 The minor child of a legal citizen born before the granting of the citizenship certificate is considered a national of Uruguay unless they choose to retain a previous nationality and make this choice as prescribed by law or regulation.

• A) Such choice may be made by the joint decision of the child's parents or guardians and only if the child possesses at least one other nationality.
• B) The act of becoming a national of Uruguay under this section for such a child does not require the renunciation of any previous nationality or nationalities.
• C) Any child subject to this section may obtain the status of a legal citizen of Uruguay and the rights of citizenship upon reaching or after reaching the age of 18 by residing in the country and registering in the Civic Registry.

Article 4 It is interpreted that Article 74 and 81 of the Constitution of the Republic should be understood as settlement being the performance of acts that unequivocally demonstrate the person's intention in that regard, such as, for example:

• A) Staying in the country for a period exceeding three months.
• B) Renting, promising to acquire, or acquiring a property to live in.
• C) Establishing a business or industry.
• D) Obtaining employment in the public or private sector.
• E) Enrolling and attending a public or private educational institution for a minimum period of two months.
• F) Any other similar act demonstrating the aforementioned intention.

Article 5 [Maintains its current wording according to Law No. 19.362] The justification of the required conditions in the preceding Article 4 shall be made before the Electoral Court, which, once it verifies the fulfillment of at least two of the requirements (literals A, B, C, D, E, or F), shall proceed without further delay to the registration in the corresponding register.

Article 6 To ensure the rights arising from the previous articles, the identification documents (identity card and passport) of all Uruguayan nationals, whether natural citizens, legal citizens, or children of such citizens with Uruguayan nationality according to this law, must indicate the Uruguayan nationality, using the same name, representation, or international identification code, although the type of citizenship or the nature of the nationality may be specified further in notes if space is available.

Article 7 Nothing in this law shall be interpreted as affecting the distinctions between natural citizens and legal citizens found in the Constitution of the Oriental Republic of Uruguay, except as specifically provided in this law. Without limitation, those distinctions not affected by this law are those found in Articles 90, 98, 235, 242, 245, 247, and 264.

Article 8 The granting of a letter of citizenship to an individual applying to be recognized as a legal citizen of Uruguay under Article 75 of the Constitution may be denied based on the conditions set forth in Article 80 of the Constitution. This denial of legal citizenship based on the elements of Article 80 is permitted even though Article 80 describes the conditions under which the citizenship rights for those who already possess natural and legal citizenship may be suspended. Article 75 is interpreted as incorporating the same criteria established in Article 80.

Article 9 The rights here identified as citizenship rights are identified as the right to vote actively and passively originating from registration in the Civic Registry.

• A) Citizenship rights are subject to Article 75(c) in which it is established that these citizenship rights are exercisable by legal citizens three years after the granting of the citizenship certificate.
• B) Article 80 is interpreted here as describing the suspension of citizenship rights and not the suspension of nationality status.

Article 10 The condition of being a national of Uruguay is never lost by a natural citizen through subsequent naturalization in another nation, although citizenship rights are lost at the time of such naturalization. Citizenship rights for natural citizens who subsequently naturalize can be recovered by establishing residence in the Republic and registering in the Civic Registry.

Article 11 The status of being a national of Uruguay is never lost for a legal citizen through subsequent naturalization in another nation, although the citizenship rights derived from legal citizenship are lost at the time of such naturalization. The citizenship rights for legal citizens who subsequently naturalize can be recovered by establishing residence in the Republic and registering in the Civic Registry.

Article 12 Because every person has the right to a nationality and the right to change nationality, the status of being a national of Uruguay can be voluntarily renounced in a manner prescribed by law or regulation.

• A) The renunciation of Uruguayan nationality includes the loss of citizenship rights corresponding to the status of natural citizenship. The renunciation of Uruguayan nationality will not serve as a prohibition for such individuals to seek recognition as legal citizens subject to the Constitution and laws of Uruguay.
• B) The renunciation of legal citizenship, whether carried out by a renunciation effected by law or regulation, or by a subsequent act of naturalization, includes the loss of citizenship rights corresponding to the status of legal citizenship. The renunciation of Uruguayan nationality shall not serve as a prohibition for such individuals to seek recognition as legal citizens subject to the Constitution and laws of Uruguay.
• C) Uruguay will only accept the renunciation upon substantial evidence, as determined by law or regulation, that the natural or legal citizen seeking to renounce has obtained or will obtain a nationality that will be in effect or will come into effect at the time of the renunciation of Uruguayan nationality.

Article 13 This law shall come into force from the date of its promulgation by the Executive Power.