Is Uruguay violating humans rights by not conceding the right to nationality?

Question

Myanmar and Uruguay are currently the only countries in the world that deny immigrants any path to naturalization. Uruguayan legal citizenship has special characteristics. A person who acquires it retains their nationality of origin, which is determined by Uruguayan law to be that of their country of birth and therefore, is immutable. Legal citizens acquire political rights but do not acquire Uruguayan nationality as natural citizens do. According to Uruguayan law, those born in Uruguay or whose parents or grandparents are Uruguayan natural citizens are considered to be Uruguayan nationals.

The Uruguayan State defined nationality in this way based on an interpretation of the Constitution made by the jurist Justino Jiménez de Aréchaga in the mid-twentieth century. Jiménez de Aréchaga's interpretation, found in one of Uruguay's fundamental academic interpretative texts, states: "In the first place, nationality is presented to us as a natural bond, derived from birth, from blood". Likewise, this jurist believed that "nationality corresponds to a certain sociological or psychological reality". Speaking on behalf of the drafters of the Constitution of 1830, this jurist concluded: "The quality of nationality thus depends on one fact: birth in the territory of the State". Finally, "nationality is irrevocable".

According to Uruguayan law, the concepts of nationality and citizenship are distinguishable, the first being of a real or sociological nature and the second of a legal nature.

He argued that nationality and citizenship are two completely different individual conditions. According to Aréchaga's view nationality is a permanent state of the individual, which does not suffer any alteration whatever the point of the earth they inhabit, and citizenship is, on the contrary, variable and alters with the different domiciles that men acquire in the different societies into which mankind is divided.

The source of citizenship, he added, is in the actual domicile and not in nationality.

Therefore, he says: "each state feels who its nationals are, and declares it by its law; on the other hand, each state decides who its citizens are, and it disposes of them by its law, for nationality corresponds to a certain sociological or psychological reality." (JUSTINO JIMÉNEZ DE ARECHAGA, La Constitución Nacional. Volume II pg. 186)

As a result of Uruguay's unusual distinction between citizenship and nationality (it's the only country in the world that recognizes the right to citizenship without being a national), legal citizens have encountered problems with their Uruguayan passports at airports around the world since 2015. This is due to recommendations in the seventh edition of Doc. 9303 of the International Civil Aviation Organization (ICAO), which requires that travel documents issued by participating states include the "Nationality" field. The lack of a naturalization path means that the Nationality field in legal citizens' passports indicates their country of birth, which Uruguay assumes to be their nationality of origin. Many countries do not accept passports issued by a country that declares the holder to be a national of another country. As a consequence, it has severely curtailed legal citizens' exercise of the right to free movement, as their travel abroad is often difficult or downright impossible.

Due to its current and narrow definition of nationality, Uruguay could be violating the sovereignty of other countries by assigning foreign nationalities in its official documents, thus overriding their powers. Some Uruguayan legal citizens may even, as a result of the application of a national law of a third nation and this Uruguayan interpretation, become de facto stateless.

Answer 1

This seems similar to a lot of other countries. For example, in U.S. Law, only natural born U.S. Citizens can be President or Vice President, whereas immigrant Citizens can hold any other elected or appointed office in the U.S. Government.

In New Zealand, New Zealand Citizens living aboard cannot vote in New Zealand election, because living aboard means they have no stake in elections.

As to your passport concerns, it's generally accepted that a nation that a validly issued passport by a nation is a validly issued passport for the point of crossing the boarder. In nations that allow dual citizenship, people who have dual citizenships may own passports from both nations and nations may issue passports to non-citizens for numerous reasons (One famous example was Canadian Caper, in which Canada issued valid Canadian passports to six American diplomats who managed to flee the seizure of the U.S. Embassy in Tehran during the Iranian Hostage Crisis and were being hidden within the residents of the Canadian Ambassador to Iran. While the CIA managed to bring the passports to the escapees, it was only the six ambassadors who received valid Canadian Passports, while the CIA agent on the mission had to forge a Canadian Passport.).

Answer 2

The United Nations Universal Declaration of Human Rights (which in many countries is viewed as aspirational and is not enforceable law) states with regard to nationality:

Article 15

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The core Human Right of "Nationality" (including the one found in Article 15(1) and the first part of Article 15(2) ("No one shall be arbitrarily deprived of his nationality") is normally viewed as a right not to be "stateless", rather than a right of an immigrant who has a nationality to acquire the nationality of the place where they reside. As Wikipedia explains at the link above:

An important measure to prevent statelessness at birth bestows nationality to children born in a territory who would otherwise be stateless. This norm is stipulated in the 1961 Convention on the Reduction of Statelessness; appears in several regional human rights treaties, including the American Convention on Human Rights, the European Convention on Nationality, and the African Charter on the Rights and Welfare of the Child; and is implicit in the United Nations Convention on the Rights of the Child.

But if the parents' nationality or nationalities can be passed onto a child born outside the country or countries of the parents' nationality, then this human rights protection is not implicated.

On the other hand, if neither of the parents could under the law of their nationality pass their nationality onto their child born in Uruguay, for example, that would be considered a human rights violation if the child could not obtain Uruguayan nationality either.

Also, while the law of Uruguay distinguishes between citizenship and nationality, a grant of citizenship from Uruguay would suffice to meet the human rights requirement of affording someone a right to some "nationality." The way that the term is used in the law of Uruguay and the way that this term is used in human rights treaties is not identical.

U.S. immigration and nationality law treats nationality as a second class form of citizenship. But, the law of Uruguay treats nationality more as a descriptive fact as opposed to treating it purely as a legal status.

In the same vein, one can imagine a system of family law that has different terms of natural born children and adopted children that is used, for example, in incest statutes. But this wouldn't necessarily be a denial of a right to have parent-child relationship for purposes of human rights treaties or laws.

The problem seems to be with the recommendations of the seventh edition of Doc. 9303 of the International Civil Aviation Organization (ICAO) in 2015, which produce inappropriate results in the case of two countries whose citizens are treated unfairly over a semantic issue, and not with the countries denying human rights to people, per se.

The second part of the United Nations Declaration of Human Rights Article 15(2) states (emphasis added):

No one shall be arbitrarily . . . denied the right to change his nationality.

This certainly doesn't mean that someone has a right to become a citizen or national of any country that he or she wants.

It seems to be primarily aimed at laws of a country with an old nationality denying someone the right to take a new nationality with the permission of the new nation, or an imposition of a requirement for citizenship that compromises another human right (e.g. allowing only members of a particular religion to take on a new nationality) but I actually haven't seen much discussion of this provision and it is not frequently the subject of human rights claims compared to some of the other rights.

Another possibly application, in relation to the issue of statelessness may apply to people who are denied an ability to change their nationality when their own nation ceases to exist.

This portion of the right is not called out, for example, in a recent U.N. Human Rights report related to nationality except insofar as it applies to the possibility that children are left stateless.