CHAPTER IX
RIGHT TO NATIONALITY
American Declaration: Article XIX. Every person has the right to the nationality to which he is entitled by law and to change it, if he so wishes for the nationality of any other country that is willing to grant it to him.1
1. The press throughout the hemisphere gave considerable coverage last year to the action taken by the Government of Chile in depriving Mr. Orlando Letelier del Solar, ex-Minister of Foreign Affairs of that country, of his nationality. This action took place shortly before he was assassinated, while living in Washington, D.C. Around the same time, other publications of various kinds published reports that the same drastic sanction has been imposed on a number of other Chileans. These reports induced the Commission to write to the Government of Chile, in one of several notes dated November 30, 1976, asking the following question:
How many Chilean citizens have been deprived of their nationality? Have these individuals had any means of defense against the application of this measure?
2. In its note Nº 12, dated January 12 of this year, which has been quoted several times before, the ministry of Foreign Affairs of Chile replies to this matter:
Chilean citizens deprived of their nationality.
This sanction has been applied to only five persons, namely: Anselmo Sule Candia, Hugo Vigorena Ramírez, Orlando Letelier del Solar, Volodia Teitelboin Volosky and Juan Suárez Bastidas.
They have all been able to appeal the application of this measure before the Supreme Court of Justice, within thirty (sic) days of the date of the publication of the respective decree in the Diario Oficial; the filing of such an appeal has the immediate effect of suspending the measure until such time as judgment is rendered on the petition.
It should be pointed out that none of the persons against whom the measure was directed has made use of this appeals procedure, which is embodied in the Political Constitution of the State.
3. An investigation of the legal grounds that might be used to support this extraordinary sanction, which is tending to become a practice has led to the following findings:
a) According to the Political Constitution of Chile (Article 6), nationality of origin is only lost: a) by naturalization in a foreign country, and b) by serving in the armed forces of a country that is an enemy of Chile, or of an ally of such a country, in time of war.
b) Through decree Nº 175 issued on December 3, 1973, the Junta de Gobierno of Chile established a new reason for loss of nationality, which is “Seriously damaging from abroad the essential interests of the State during the states of emergency established in Article 72, Nº 17 of this Political Constitution.” (The Junta de Gobierno has, as is well known, appropriated to itself the role of exercising the Constitutive Power, and by virtue of this power, is making frequent amendments and reforms, by decree, to the Basic Charter).
c) The penalty of loss of nationality on these new grounds is imposed by means of a Supreme Decree, issued and signed by all the Ministers of State. The Ministry of Foreign Affairs must make a written report on the matter, on the basis of information obtained from Chilean diplomatic or consular missions, or other trustworthy sources, and the Government acts on the basis of the conclusions of this report.
d) An appeal against the measure may be filed with the Supreme Court of Justice within 90 days from the date of publication of the measure in the Diario Oficial (the note from the Ministry of Foreign Affairs states that this period is only 30 days). The Court must give the matter preferential treatment, and render a fair judgment. These procedural rules are contained in Legislative Decree 1301, of December 23, 1975.
e) On January 26, 1976, the Supreme Court itself issued a Resolution providing more detailed rules to govern this appeal. According to these regulations, the Government cannot be a party to the appeal. The report of the Ministry of Foreign Affairs is also considered. The interested party is given ten days to present his observations, and to produce any background material or evidence that he deems necessary. When these ten days are up, the opinion of the Attorney General is sought. A plenary session of the Court then decides whether there should be further proceedings to furnish additional evidence, or whether to proceed to hear and pass judgment on the question. Judgment must be rendered within the ten days following the aforementioned decision. The effect of filing the appeal is to suspend implementation of the measure until final judgment is rendered on the appeal.
4. Elsewhere in this report, a rather detailed account is given of the important collection of legal measures recently enacted by the Government of Chile, by means of decrees given the character of “Constitutional Acts,” which are part of its purpose of giving the country “a new institutional structure” and providing it with “a new juridical order.”2
5. One of these Acts (number 3) is concerned with matters related to protecting and guaranteeing the basic rights of man. It sets forth nearly all the rights appearing in the American Declaration, together with the prohibitions, safeguards and other measures established to protect them and ensure observance of them. Significantly, the only right that is not mentioned is that of nationality.
6. However, Constitutional Act Nº 4, which regulates the so-called “states of emergency,” Article 1 of which begins by declaring that it is only during such exceptional emergency states that “the rights and guarantees assured to every person under Constitutional Act Nº 3 may be affected,” does discuss this right, although only to determine the circumstances under which a citizen may be deprived of the right to his nationality. The Act in question makes the following provision:
Article 4. On declaring a state of assembly, the President of the Republic is empowered to deprive Chilean Citizens of their nationality, under the provisions of number 4 of Article 6 of the Political Constitution of the Republic, and to suspend or restrict all or part of the rights and guarantees set forth in Constitutional Act Nº 3, to the extent that such a measure is strictly necessary to avert threat or occurrence of the emergency that originates such declaration, with the exception of the rights contemplated in numbers 1 and 10 of the first paragraph of Article 1 of that Act.
7. Article 5 establishes that: “On declaring a state of siege, the President of the Republic is empowered to deprive Chilean citizens of their nationality, under the provisions of number 4 of Article 6 of the Political Constitution of the Republic, and to suspend or restrict personal freedom and the right of assembly.”
8. This simple listing of the provisions adopted by the Junta de Gobierno of Chile to regulate the application of this severe penalty shows quite clearly that such a method of application is openly incompatible with the very nature of the right affected. The penalty in question is applied only “in exceptional cases”—according to the addition to Article 6 of the Constitution—or “in cases or states of emergency,” according to Article 1 of Constitutional Act Nº 4. However, all emergencies, (whether a state of external war, in which a “state of assembly” is declared, a state of internal war, in which a “state of siege” is declared, a state of latent subversion, in which the “state of defense” is declared, or an event of public disaster, in which a ”state of catastrophe” is declared) are by definition, transitory. An emergency may not last more than six months, at least in principle, (Article 3.3), but of course, this is without prejudice to the successive extensions permitted by the Acts for specific cases. In any event, one cannot see how, within the strict limits of a state that is de natura transitory and that can last only a few days, weeks or months, it is possible or necessary to take measures of an irreversible nature, that will affect a citizen and his family for the rest of their lives; not is it clear how, or for what useful or legitimate purpose the completely opposite measure could be employed, that is, depriving a person of his nationality for the days, hours or weeks that the emergency might last, and then restoring to him full use of this prerogative, perhaps automatically, ipso jure, as soon as the disturbance is over.
9. In accordance with the constitutional amendment enacted by means of decree 175, any loss of nationality would require a Supreme Decree, issued and signed by all the Ministers of State. Pursuant to Constitutional Act Nº 4, this power is reserved to the President of the Republic alone, whenever the country is “in a state of siege or assembly.”
10. It is immediately obvious that the Constitutional Acts further confuse the matter, adding new factors of instability and uncertainty to the question of respect for and inviolability of this right we have been discussing, which is properly considered to be one of the most important rights of man, after the right to life itself, because all the prerogatives, guarantees and benefits man derives from his membership in a political and social community—the State—stem from or are supported by this right. Because of its unique nature, there is almost no country in the world where the law uses or applies loss of nationality as a penalty or sanction for any kind of crime, much less for activities of a political nature. It is generally considered that since nationality of origin is an inherent attribute of man, his natural right, and is not a gift or favor bestowed through the generosity or benevolence of the State, the State may neither impose it on anyone by force, nor withdraw it as punishment or reprisal.
11. The deprivation of nationality is at times a move in a political battle, but it always has the effect of leaving a citizen of a country without a land or home of his own, forcing him to take refuse in an alien country. That is, it inevitably impinges on another jurisdiction, and no state may take upon itself the power to adopt measures of this sort. If the practice of taking nationality away from citizens were to become generalized, for whatever reasons, and for whatever purposes, a novel method of producing stateless persons would have been introduced into the world. This would happen precisely at the time when a world-wide crusade is under way to alleviate the pitiful status of the thousands of ex-patriates and refugees who have been displaced from their home-lands by political violence, armed conflicts or other publicized catastrophes that have afflicted a large part of humanity in recent years, and who have been obliged to seek sanctuary in a foreign land. For these and many other reasons that need not be explained here, the Commission believes that this penalty—anachronistic, outlandish and legally unjustifiable in any part of the world—is a thousand times more odious and reprehensible when applied in our own Americas, and should forever be banned from being applied by governments everywhere.
12. It is superfluous to say, in ending this chapter, that the severity of this punishment is in no way attenuated, nor is any contribution whatever made to the solution of the various problems it inevitably produces abroad, by the fact that an appeal against it is allowed. The very nature of the penalty, and the particular circumstances in which it is imposed (i.e., when the victim is outside his own country), make it impossible or completely futile to make use of such a recourse. The aside in the note from the Ministry of Foreign Affairs, to the effect that none of the five citizens affected by this measure to date has made use of this measure, is sufficiently eloquent on this point.
Notes_____________________
1 On account of their relevance here, the following articles from other international instruments dealing with the same question are given below:
American Convention on Human Rights
Article 20
1. Every person has the right to a nationality.
2. Every person has the right to the nationality of the state in whose territory he was born if he does not have the right to any other nationality.
3. No one shall be arbitrarily deprived of his nationality or of the right to change it.
Universal Declaration of Human Rights
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.