Nationality and Citizenship in Uruguayan Constitutional Doctrine

It is essential for the English-speaking world and the broader international legal community to understand the current legal framework separating nationality and citizenship in Uruguay. I start with one of the leading and honored experts in Uruguayan Constitution Law and International Law, Dr. Ruben Correa Freitas. Dr. Correa Freitas published the sixth edition of Derecho Constitucional Conemporaneo in 2019.

Dr. Correa Freitas indicates that nationality and citizenship hold significant legal-political implications, involving domestic Public Law, specifically Constitutional Law, and International Law. The complex historical context and evolving global landscape, including migratory flows and political events, have impacted the study and regulation of these concepts. Consequently, analyzing nationality and citizenship through Comparative Law, he writes, is crucial for identifying common criteria recognized by the international community to address the legal-political aspects of this phenomenon.

Moreover, if one can assert that Constitutional Law is the science of freedom, I believe that nationality and citizenship hold a position as significant as that, for it would be futile for an individual to be free if they lack a nation or are unable to actively participate in the political life of their state as a citizen.

To those trained in international law in jurisdictions other than Uruguay, the following will initially appear foreign and somewhat confusing. The experience may be one of finding oneself in an unfamiliar city with a map that has a legend, but the words on the legend, while used in other cities of the world, have a different meaning for the authors of this particular map. The map's author and the person using it think the words in the legend have a clear meaning. But the world and Uruguay, the person using the map and the author of the map in my metaphor, do not mean the same thing by the exact words.

It is easy to get lost when that is the case. But what follows is a clear and precise explanation of the Uruguayan legal doctrine.

Dr. Correa Freitas argues that it is crucial to distinguish between nationality and citizenship, as they are different concepts that sometimes need clarification. Nationality is an original link between a person and a State or Nation, established by birth or blood connection with parents. On the other hand, citizenship is a political relationship between an individual and a State, conferring certain rights and duties. International law emphasizes the right to nationality and the right to change nationality while asserting that no person can have more than one nationality. Nationality is opposed to foreignness, and citizenship is divided into natural and legal citizenship. Consequently, it is essential to differentiate between nationality and foreignness, as well as natural and legal citizenship.

In Comparative Law, Dr. Corre Freitas indicates, the distinction between nationality and citizenship is well-established. Various constitutions, such as those of Costa Rica, Venezuela, and Peru, distinguish between nationals and foreigners and regulate citizenship separately. They address the rights and duties of citizens, focusing on aspects such as age and political qualifications. This distinction highlights the importance of understanding the differences between nationality and citizenship in a legal context.

It is worth noting, and perhaps marking for later discussion, that the examples provided in this text do not support an assertion that any of the listed nations deny nationality to naturalized citizens. The examples do provide information on how each nation addresses the differences between being a national and having the right to participate in the political life of the State.

Continuing to review the outstanding explanation of this view of the Uruguayan Constitution, Dr. Correa Freitas informs that in the 1967 Uruguayan Constitution, nationality and citizenship are regulated in Section III, with natural citizens being those born in the country or children of Oriental parents who settle and register in the Civic Registry. Nationality is not lost even by naturalizing in another country and can be regained by settling in the Republic and registering in the Civic Registry. The Constitution adopts "ius soli" and "ius sanguinis" criteria for nationality, with Oriental nationality being irrevocable and allowing for dual nationality. However, confusion exists between nationality and natural citizenship, as demonstrated by the illogical provision of suspension of citizenship for not reaching eighteen years of age.

The conclusion on the doctrine of Uruguayan nationality and its comparison to citizenship can then be summarized.

In summary: applying the logical-systematic interpretation criterion, it can be concluded that in the 1967 Uruguayan Constitution, a distinction is made between nationals and foreigners on one hand, and natural citizens and legal citizens on the other hand. According to the constitutional text, nationality and natural citizenship are synonymous, meaning that every man or woman born in Uruguay, strictly speaking in the territory of the Republic, or a child of an Oriental father or mother who settles and registers in the Civic Registry, is a natural citizen (Article 74) and therefore, national, irrevocably according to Article 81.

In 1989, Law No. 16,021 was enacted to regulate nationality in Uruguay due to confusion in the existing Uruguayan Constitution. The law recognizes the criteria of "jus soli" (place of birth) and "jus sanguinis" (blood ties with father or mother), granting Uruguayan nationality to those born in the Republic's territory and their children, regardless of birthplace.

Initially, Law No. 16,021 didn't grant natural citizenship to children of persons born abroad who were granted Uruguayan nationality. Law No. 19,362, enacted on December 31, 2015, corrected this by granting natural citizenship to such children.

Law No. 16,021 also interprets Article 74 of the Constitution, defining "avecinamiento" (settlement) and its requirements for obtaining Uruguayan nationality. Amended by Law No. 18,858 on December 23, 2011, "avecinamiento" occurs when actions unequivocally demonstrate a person's intention, such as living in the country for over three months, renting or acquiring property, establishing a business, obtaining employment, or enrolling in an educational institution for a minimum of two months. Two of these requirements must be presented before the Electoral Court, which verifies the information and proceeds with registration (Article 5, as amended by Law No. 19,362 of 12/31/15).

The summary of Uruguayan law on this matter is stated succinctly.

After analyzing the Uruguayan constitutional system and considering comparative law, the following conclusions can be drawn:

a) The Uruguayan Constitution confuses the concepts of nationality and citizenship, particularly between nationality and natural citizenship.

b) There is a significant trend, especially in Latin American constitutionalism, to separately and rigorously regulate nationality and citizenship.

c) Generally, the criteria of "jus soli" and "jus sanguinis" are accepted as means of acquiring nationality, without prejudice to admitting naturalization.

d) It is advisable to promote the signing of international treaties that regulate the acquisition and loss of nationality and conflicts of dual nationality.

e) In a future constitutional reform in the Oriental Republic of Uruguay, provisions related to nationality and citizenship should be modified to adapt them to modern trends in doctrine and comparative constitutional law.

Dr. Correa Freitas leaves the possibility that the Uruguayan Constitution could be subject to a reform to adapt to modern trends and states that there is no prejudice in admitting naturalization as a source of nationality in such a reform.