Applying the article "Is the Constitution Unconstitutional? Introductory Study" by Ximena Medellín Urquiaga and José Luis Caballero Ochoa to Uruguayan Nationality Doctrine
This opinion about the Constitution makes Uruguay's Constitution "unconstitutional" as it would require the Uruguayan Constitution to violate the American Convention on Human Rights
The so-called majority opinion in Uruguay that the Constitution implies, through the intent of the framers and by indirect reference to the impossibility of losing nationality, that only natural citizens (and their children or grandchildren) are or can be "nationals" of Uruguay, violates the American Convention on Human Rights. This determination is made explicit through Resolution 2/23 of the Inter-American Commission on Human Rights and the recent hearing at which Uruguay was summoned before the Inter-American Commission on Human Rights on March 1, 2024. This opinion about the Constitution of Uruguay, currently attributed to Justino Jiménez de Aréchaga in his 1946 text and simply repeated by many since that date, does not pass the conventionality control test and places Uruguay in clear violation of its human rights obligations regarding the nationality of its legal citizens.
If this opinion about the Uruguayan Constitution is correct, which is doubtful according to any reasonable historical and legal review, the Uruguayan Constitution is "unconstitutional" because it violates conventionality control, meaning that the Constitution itself violates an international convention that Uruguay adopted through constitutional means.
This paradox highlights a fundamental conflict where the national Constitution, supposedly the supreme law, is in direct contravention with international human rights norms to which Uruguay is bound. The principle of conventionality control requires that national laws, including constitutional provisions, comply with international obligations, particularly those related to human rights, as articulated in the American Convention on Human Rights. The doctrine, reinforced by the Inter-American Court of Human Rights, states that states must ensure that their national laws and constitutional norms do not contravene their international commitments. Therefore, maintaining a constitutional interpretation that excludes certain individuals from nationality contradicts Uruguay's international obligations and requires a profound legal reevaluation to reconcile domestic constitutional law with binding international human rights standards.
The questionable but widely accepted opinion in Uruguay that legal citizens are not nationals, based not on the text of the Constitution but on opinions arising during the anti-immigration movements of the 1930s, violates a fundamental human right. According to the article "Is the Constitution Unconstitutional? Introductory Study" by Medellín Urquiaga and Caballero Ochoa, the role of the Inter-American Court of Human Rights (IACHR) is crucial in evaluating the compatibility of national constitutional norms with international treaties. This opinion contradicts the obligation established in Article 2 of the American Convention on Human Rights (ACHR), which mandates states to adopt legislative measures to ensure the rights and freedoms recognized in the Convention.
The IACHR has determined, in specific cases, that incompatibilities between national constitutional norms and international obligations result in the international responsibility of the state and require the modification of the infringing norm as reparation. Jurisprudence illustrates that international norms have equivalence with national norms, subjecting both to scrutiny for compliance with international obligations without hierarchical distinction.
In cases of absolute incompatibility, where there is an irreconcilable conflict between national constitutional norms and international obligations, the IACHR mandates the modification of the constitutional norm. The article also recognizes the criticism of the democratic legitimacy of international courts overturning national norms, but emphasizes that ratification and compliance with international treaties are sovereign decisions made by democratic states.
Fortunately, Uruguay can assert that there is no absolute incompatibility between its Constitution and the American Convention on Human Rights. An alternative, more academically and internationally accepted opinion about the Uruguayan Constitution is presented by Alberto Pérez Pérez in his work "Legal Citizens Are Not Foreigners." This perspective, based on human rights rather than outdated concepts of natural law, offers Uruguay a viable option to harmonize its Constitution with the American Convention on Human Rights. The dialogue has already begun, as evidenced by the hearing before the IACHR on March 1, 2024, and the comments from the Commission. Uruguay must act, or its constitutional interpretation will become one of the main examples of a Constitution declared unconstitutional and violating international human rights and conventionality control.
Uruguay apparently cannot rely on its courts to properly apply conventionality control to the denial of nationality to legal citizens. A recent opinion on the application of conventionality control to the questionable practice of denying nationality to legal citizens demonstrates the absolute failure of the judiciary in Uruguay to effectively or knowledgeably apply conventionality control. The opinion issued by the Court of Appeals of Montevideo on May 8, 2024, in the case "PRADA GARCIA, JUAN v. NATIONAL DIRECTORATE OF CIVIL IDENTIFICATION" (Judgment No. 120/2024), does not effectively apply the doctrine of conventionality control, particularly regarding the right to nationality. Juan Prada, a Uruguayan citizen born in Cuba, sued the National Directorate of Civil Identification for damages after his passport listed his nationality as Cuban, preventing him from traveling to Germany. Prada argued that as a legal citizen of Uruguay, his nationality should be recognized as Uruguayan. However, the court upheld the lower court's decision, stating that Prada's nationality is Cuban by birth and that his status as a legal citizen of Uruguay does not grant him Uruguayan nationality. The court distinguished between nationality and citizenship, referring to various legal scholars and national laws. Despite Prada's arguments referencing international human rights treaties, the court prioritized national legal interpretations over international obligations, thus failing to align with the principles of conventionality control.
The ruling in "PRADA GARCIA, JUAN v. NATIONAL DIRECTORATE OF CIVIL IDENTIFICATION," issued by Dr. Sylvia Márquez, Dr. Carlos E. Gaona, and Dr. Juan Carlos González, demonstrates a significant failure in applying the doctrine of conventionality control. This doctrine, emphasized by the Inter-American Court of Human Rights (IACHR), mandates that national laws, including constitutional provisions, must comply with the human rights treaties to which the state is a party. The court dismisses the relevance of international human rights treaties in favor of national legal interpretations, which contradicts the principle of conventionality control. By not aligning its interpretation with Article 20 of the ACHR, which guarantees the right to nationality, the court overlooks Uruguay's international commitments. The court's strict distinction between nationality and citizenship, relying solely on national scholars and ignoring broader human rights perspectives, restricts the recognition of legal citizens as nationals. This narrow interpretation disregards the inclusive approach mandated by international human rights norms, which advocate for the right to nationality for all legal residents to prevent statelessness and ensure full recognition of their rights. Additionally, the court does not engage in a dialogic interpretation that considers the entire normative environment, including international obligations. The preference should be to harmonize national laws with international human rights standards rather than rigidly adhering to outdated national doctrines. This lack of judicial caution results in a decision that is not only legally questionable but also violates the fundamental human rights principles recognized by the ACHR. The decision starkly contrasts with the doctrine of conventionality control mandated by the Inter-American Court of Human Rights.
By dismissing the application of international human rights treaties and strictly adhering to a narrow interpretation of national laws, the court's decision fails to protect the fundamental right to nationality for Uruguay's legal citizens. This failure underscores the need for judicial systems to integrate international human rights standards into their legal frameworks to ensure comprehensive protection of individual rights and compliance with international obligations.
If the courts cannot be trusted to correctly apply the American Convention on Human Rights, it falls to the Legislative Branch to ensure that Uruguay complies and adopts an interpretation of its Constitution that does not violate its international obligations. Otherwise, time is running out for a determination that the Uruguayan Constitution is itself unconstitutional due to its direct violation of the fundamental and non-derogable right to nationality, a key provision in all conventionality control reviews.
