The Parliamentary Opinion of Dr. Jaime Ruben Sapolinski, Dra. Claudia Arrigo, and Dr. Micaela Prieto regarding Uruguayan Nationality: Argumentum ad Antiquitatem
There are times when we encounter long documents that sound, on first inspection, erudite. Upon reflection and examination based on rigorous methodologies and principles of simple logic and argumentation, however, the veneer of authority can evaporate from seemingly complex documents. We often realize that the complexity was merely a distraction from the lack of substance or support for the claimed positions within.
Such is the case with an opinion provided by Dr. Jaime Ruben Sapolinski, Dra. Claudia Arrigo, and Dr. Micaela Prieto, professors at the law school of the University of the Republic. These three otherwise distinguished law professors submitted their opinion on October 31, 2023, to the Committee on Constitution, Codes, General Legislation, and Administration concerning a draft law titled "Freedom of Movement for Legal Uruguayan Citizens."
Dr. Sapolinski and his colleagues assert a fallacy that it is a Constitutional fact that Uruguayan nationality is acquired solely by birth in the territory. However, their "opinion" is primarily supported by references to traditional interpretations or historical legal opinions without contemporary evidence or reasoning.
The opinion is presented without substantial support or evidence and relies primarily on historical assertions or traditional beliefs. This type of argument is often referred to as an appeal to tradition or argumentum ad antiquitatem. It claims that something is true or correct simply because it has always been believed to be so, without providing concrete evidence or reasoning to support the claim.
This fallacy asserts that something is correct or better because it is older or has always been done that way. It relies on the premise that historical precedent alone is sufficient to justify the truth of the claim. Such an argument does not provide empirical evidence or logical reasoning but instead leans on the idea that "it has always been this way." This type of argument refers to the beliefs or practices of people from the past as somehow consecrating and making real errors in logic and faults in ethnic discrimination simply because they are antique. Sapolinski and his colleagues make this error and seek to confuse the public and legislators by simply suggesting that the long-standing acceptance of an idea is proof of its validity.
Let us take Dr. Sapolinski's attempt at constructing a defense of the current denial of nationality to Uruguayan legal citizens seriously. Dr. Sapolinski and his colleagues posit that the Uruguayan Constitution clearly distinguishes between nationality and citizenship. According to their interpretation, nationality is acquired by birth in the territory, while citizenship is a status that allows participation in civic rights, such as voting and holding public office. The concept of "natural citizenship" refers to individuals born in Uruguay, whereas "legal citizenship" can be acquired by foreigners through residency and registration but does not confer nationality. They argue that the Uruguayan legal framework does not provide for naturalization as a means to acquire nationality. The constitution does not allow for naturalization, thus preventing legal citizens from becoming nationals. Legal citizens, even those who voluntarily acquire citizenship, cannot be considered nationals as the constitutional norms do not support this. They support their arguments with the opinion of distinguished legal scholars such as Justino Jiménez de Aréchaga, who interpreted the Constitution to mean that nationality is strictly acquired by birth in the territory and cannot be obtained through naturalization or legal citizenship. There is, however, no analysis whatsoever of how Jimenez de Arechaga arrived at that conclusion. It is accepted on faith.
Allegedly, such prestigious doctrines within Uruguayan constitutional law consistently maintain the separation between nationality (tied to birth) and legal citizenship (which can be acquired through residency and other conditions).
We know that the Constitution in its text does not speak of nationality except to indicate, through an addition from 1934, that it is not lost by subsequent naturalization. Legal citizenship, according to this addition from that year, is lost by subsequent naturalization. Otherwise, the Constitution speaks only of natural citizens and legal citizens. There is nothing more and nothing less. The opinion submitted to Parliament is mostly smoke and mirrors to cover up this fact.
What facts does the opinion offer to support the assertion that only natural citizens are nationals? Dr. Sapolinski and his coauthors point out that the Uruguayan legal system does not provide a mechanism for naturalization that would allow a foreigner to become a national. This absence, they claim, supports the conclusion that nationality is reserved for those born in the territory.
We may respond that it is obvious the Uruguayan legal system does not currently provide a naturalization mechanism. That is due to the unfounded and unsupported opinion of scholars like Justino Jimenez de Arechaga, not the Constitution itself.
This all boils down to an assertion that certain concepts are "implicitly" enshrined in the Constitution, even though it is, according to the authors, "confusing." Sapolinski and the coauthors use words such as "evident." When Constitutional arguments that should be based on rigorous methodology are reduced to concepts which are implicitly evident and not objectively provable, we should be nervous.
Why does it matter? Dr. Sapolinski gladly excludes legal citizens, who are apparently "naturalized" because they are subject to "subsequent" naturalization, from the nation. Legal citizens are not, he states, within "the protectorate of compatriots that the State grants." Legal citizens, the opinion claims, do not participate in the collective life of the nation, from which the authors expel them.
Dr. Sapolinski is a die-hard defender of this distinction, claiming that "one is national by the fact of being born in the territory. Later, the legislator took some liberty around this issue and expanded the universe beyond what was provided by the Magna Carta." What he means by this is that Law No. 16021, Law No. 18858, and Law No. 19362 granted "nationality" beyond the limits of the Constitution. Children of Uruguayans born abroad and grandchildren should take care that fundamentalists like Dr. Sapolinski and his coauthors do not someday gain control of reversing these laws. If they do, legal citizens will not be the only citizens denied the right to be protected by the State and to participate in the life of the nation.
In short, the opinion is vacuous, illogical, unsupported, and a classic example of argumentum ad antiquitatem. The best strategy when presented with such argumentation is to move on without needing to refute it. Matters of faith, in comparison to matters of acdemic debate, cannot be changed by reason. Perhaps the most we can hope to do is identify this type of argument and separate it from respected future discourse on the topic.
I have argued in a published legal journal article and in other fora that Uruguayan legal citizens (naturalized citizens) should be considered nationals of Uruguay. In doing so, I emphasize the necessity of employing a logical-systematic-teleological method for constitutional interpretation, which involves checking the clarity of the constitutional text, considering the context within the entire constitutional framework, and understanding the teleological (purpose-oriented) intent of the constitutional provisions. I have pointed out that previous interpretations were influenced by outdated notions of ethnicity and race and did not adhere to this rigorous methodology.
One of the most important fallacies set forth by the opinion submitted to Parliament concerns Article 81 of the current Constitution, which states that nationality is not lost by naturalization in another country and differentiates between natural and legal citizens. The convoluted wording of the article has led to misreadings, and the Article can easily be interpreted as granting nationality to both natural and legal citizens. When we examine the historical constitutional provisions, we see that the 1830 Constitution equated citizenship with nationality, the 1918 Constitution reiterated the loss of citizenship by naturalization but provided a path for regaining it, and the 1934 Constitution introduced the distinction between the suspension of citizenship rights and the retention of nationality. Reliance on Justino Jiménez de Aréchaga is misplaced because he set forth no rigorous methodology in his interpretation of nationality and citizenship and instead relied on racial and ethnic essentialism.
But I am not alone in deciding the time is upon us to ignore and work around arguments like the ones supplied by Dr. Sapolinski and his colleagues who signed the opinion. I am not alone because Dr. Sapolinski and the other constitutional scholars completely ignore international human rights law, the American Convention of Human Rights, and the doctrine of conventionality control.
Under the control of conventionality, binding on Uruguay through its solemn state undertaking, the argument presented in the opinion is irrelevant. Dr. Sapolinski and the others present a "heads legal citizens win and tails legal citizens also win" scenario. If the Constitution endorsed discrimination and violation of the fundamental and non-derogable right to nationality, recognized explicitly by the Inter-American Commission of Human Rights, Uruguay would be required to ignore and make inoperative such provisions until the Constitution was modified to conform to international law.
Dr. Martín Risso Ferrand also provided a response to the Comisión de Constitución, Legislación General y Administración de la Cámara de Representantes, addressing the "libertad de circulación de los ciudadanos legales uruguayos" project. He acknowledged the technical imprecisions in the Uruguayan Constitution regarding nationality and citizenship, which have led to various doctrinal theories. Risso Ferrand, however, emphasized that these discussions have become sterile and that the alignment of the Constitution with International Human Rights Law, particularly the American Convention, demands interpretations that favor the broadest protection of rights.
Dr. Sapolinski and his coauthors seem to have written nearly eight pages of text without once mentioning the requirement that the interpretation they are advocating must meet international human rights standards. It is not optional. The complete void in the Sapolinski opinion on this topic is both telling and disturbing.
Dr. Risso Ferrand does much better in aligning Uruguay with international standards. He supported the new proposed law's approach to resolving issues faced by legal Uruguayan citizens abroad, who encounter difficulties using Uruguayan documents. The proposed law would grant legal citizens the same rights and prerogatives as nationals for identification, diplomatic protection, and free circulation, as well as ensuring equality and non-discrimination. Dr. Risso Ferrand believes this approach is legally sound and avoids unproductive theoretical debates.
In addition, the most positive recent development in law within Uruguay is the new Manual of Human Rights published by Dr. Mariana Blengio Valdés. In the realm of Uruguayan human rights law, Dr. Mariana Blengio Valdés presents a refreshingly different perspective on the distinction between nationality and citizenship. Dr. Blengio Valdés argues that nationality and citizenship, while distinct, are interconnected concepts influenced by historical legal traditions and the interpretations of scholars like Justino Jiménez de Aréchaga. She notes that the Uruguayan Constitution distinguishes between nationality, derived from birth (ius soli) or blood (ius sanguinis), and citizenship, a legal status tied to political rights and duties. Historical interpretations, particularly those by Aréchaga, emphasize nationality as a natural bond from birth or blood, while citizenship is juridical. Laws such as the 1989 Law No. 16021 and its 2015 amendment have extended nationality to descendants of Uruguayans born abroad, yet still maintain a distinction between natural and legal citizens. Dr. Blengio Valdés critiques the traditional approach, arguing for a more flexible understanding that accommodates international norms and practical realities.
Dr. Blengio Valdés' conclusion is clear:
"Nationality and citizenship are inherent rights recognized by the state. One is a national and a citizen, both natural and legal. What determines the distinction between legal and natural is the individual's history and how they arrived at this natural bond with the Nation, which is derived from 'birth, blood, or a voluntary act' according to Jiménez De Aréchaga. And the voluntary act is precisely to reside, form a family, or practice art, science, or industry; ultimately, it is an act by which the person clings to that nationality that motivates them to stay in the place and actively participate in political, social, cultural, and environmental life."
She adds, correctly, that denying nationality to legal citizens and especially to those found to be stateless in Uruguay under the statelessness convention by CORE is a denial of the fundamental right to identity.
“Nationality is part of a person's identity. Therefore, the citizenship rights that are exercised by being a national are part of the person's identity, recognized as an inherent right by both internal and international law. The distinction between national and citizen could logically lead to the denial of a person's identity through a legal disquisition that refers only to form and not to essence.”
Most scholars below the most senior levels in the Uruguayan legal academy refuse to allow Uruguay to continue to be embarrassed internationally by outdated, unsupported, essentialist arguments for what is "evident" and "implicit" in the Constitution. I do not believe that rigorous Uruguayan constitutional interpretative methodology applied to the text of the Constitution supports the opinion of Dr. Sapolinski and his coauthors. But even if it did, other legal scholars like Dr. Risso Ferrand, Dr. Diego Gamarra, and many others, understand that the Constitution of Uruguay cannot be interpreted in a way that violates a fundamental human right. It simply cannot be and will not be so long as Uruguay remains a member state in the Inter-American System. It matters not what Constitutional legal scholars like Dr. Sapolinski think about the merits of that choice. It has already been made and there is no going backwards on human rights.
