The Right to Have Rights: A Debate on Nationality in Colombia
Dejusticia June 6, 2020
En Colombia, el artículo 96 de la Constitución Política establece que la nacionalidad se puede obtener por nacimiento o por adopción. / In Colombia, citizenship may be obtained by birth or adoption under Article 96 of the Political Constitution. | Elías L. Benarroch, EFE
The measures the National Civil Registry and the Congress promoted to recognize the nationality of children born in Colombia to Venezuelan parents are a significant breakthrough. Still, their scope is limited compared to statelessness prevention international standards due to their exceptional and transitory nature. The Constitutional Court must urgently clarify how to interpret these requirements for children of foreign parents.
On August 5, the Government of Colombia announced that it would naturalize born in Colombia to Venezuelan parents between August 19, 2015, and up to two years after the enactment of the resolution. Two weeks later, the Congress of the Republic passed a bill with the same effects, albeit with some differences regarding the effective date. Although these measures have a significant impact —to benefit an estimate of 24,000 children— its scope is limited due to its exceptional and transitory nature..
A more profound discussion on the importance of the right to nationality, its requirements in Colombia, and whether the resolution of the National Civil Registry and the Law of the Congress are in line with these requirements has been ignored amidst the news of this important development.
First, it is vital to understand that nationality is a fundamental human right; it allows individuals to establish a connection with a State who has the duty of protecting them and safeguarding their rights. Imagine if you were unable to access essential services such as healthcare or education, not being authorized to work, vote, or even register your marriage or the birth of your children. Therefore, nationality is considered as the right to have rights. Thus, not having a nationality implies the risk of becoming stateless, and being stateless is just like being invisible.
In Colombia, citizenship may be obtained by birth or adoption under Article 96 of the Political Constitution. It is acquired by birth if any of the parents is Colombian or, as foreigners, one of them is domiciled in Colombia.
In the case of children born in Colombia to foreign parents, the heart of the matter is precisely to understand the domicile requirement. Law 34/1993, which regulates the right to citizenship, provides that in this cases, the correct form of interpreting the domicile is under the Civil Code, that is, as the physical residence and the intention to stay there. Neither the Constitution nor Law 43 provide that the domicile is equivalent to a regular migratory status.
Before the approval of the National Civil Registry and Congress’ regulations naturalizing children of Venezuelan parents in a transitory and exceptional manner, they could not receive the Colombian citizenship because their parents did not have a visa and therefore did not meet the domicile requirement. Although the measures implemented by the Colombian State recognize that these children are at risk of statelessness, they are still based on that the foreign parents require a regular migratory status to meet the domicile requirement for their children born in Colombia to be naturalized.
This interpretation of the domicile requirement is unconstitutional as it sets a higher standard (have a visa) than required under the Political Constitution and Law 43/1993, that is, to have a physical residence in Colombia and the intention to stay in the country. Even if they do not have a regular migratory status, many Venezuelans meet this requirement, as 83.5% of the people registered in the Administrative Venezuelan Migrants Registry (RAMV) mentioned that they intend to stay in Colombia.
The fact that the parent’s domicile requirement is interpreted as having a visa seems to have motivated the transitory nature of the measures promoted by the Congress and the Government, that is, only the children born in Colombia to Venezuelan parents between 2015 and 2021 will be naturalized. However, this poses the question of what will happen with children born outside of these dates and with the children of migrants of other nationalities. The exclusion of these cases would be discriminatory and could put these children at risk of statelessness. Furthermore, the resolution and the law fail to resolve the need for an effective procedure to recognize the stateless status, both for people born in Colombia and those who, for other reasons, live in the country and do not have a nationality.
Therefore, there should be a thorough debate on the right to nationality in Colombia beyond the law and the resolution mentioned here. The Constitutional Court is currently reviewing two cases for the protection of fundamental rights on the matter. This is the case of a boy and a girl, of Venezuelan parents who had a Special Stay Permit (PEP) and who were not naturalized. Although the plaintiffs of these cases could be naturalized under the resolution and the law, the Court must clarify its interpretation of the domicile requirement under the Constitution.
Over ten human rights organizations an appeared before the Constitutional Court asking it to adopt the definition of domicile contained in the Civil Code, as provided in the Political Constitution and Law 43/1993. This way, children born in Colombia to foreign parents will be naturalized if the parents meet the requirements of physical residence and intention to stay in the country without requiring a visa. We also ask the Court to order the competent bodies to create effective procedures to recognize statelessness. We hope the Court agrees with us on the need for a more profound discussion on the right to nationality and the prevention of statelessness in our country.