tors pushing Colombians into a condition of “unconfirmed nationality” (personas en
confirmación de nacionalidad).328 People in this condition are not stateless, but are unable
to prove their nationality. According to UNHCR, the designation “unknown” or “pending clarification” places children at risk and may have effects into adulthood.
Case Law
Colombian high courts heard cases in 2005, 2008, 2010, 2013, and 2015 in relation to
the right to nationality and guarantees under the statelessness safeguard. These cases
point to two sets of issues: the difficulty of harmonizing domestic legal frameworks
with specific international obligations related to statelessness, and gaps between law
and practice in issuing identity documents. Taken together, the five cases suggest the
Constitutional Court is more concerned about erroneously extending Colombian nationality than about addressing statelessness.
In 2005 the Colombian State Council, the highest court in the administrative
jurisdiction, responded to a request by the Ministry of Foreign Affairs seeking clarity
on the interpretation of the meaning of domicile for the purposes of the nationality law.
The council determined that domicile required a resident visa.329 Thus the court clarified that nonresident visas and attestations of the desire to reside do not serve as proof
of domicile, because they do not demonstrate an intention to reside in the country
permanently.330
This interpretation does not result in an effective and full realization of the prevention of statelessness.
In 2008, the Constitutional Court, Colombia’s highest court within the constitutional jurisdiction and the final appellate court for matters involving the interpretation of
the Constitution, 331 heard the case of an 18-year-old man who was born near Colombia’s
southern border. 332 His birth was registered in Leticia, the capital of Amazonas state,
and his birth certificate states his biological parents were nationals of Peru. The records
do not state that they were domiciled in Colombia at the time of his birth. The applicant
was raised by Colombian nationals; he could not remember his biological parents, and
he was unaware of their whereabouts. The Civil Registry Office denied him a citizenship
identity card on the grounds that he was not a national of Colombia. The court affirmed
the registry’s decision that because the applicant could not prove his birth parents’
domicile at the time of his birth, he was not Colombian. This decision runs counter
to the statelessness safeguard and left the plaintiff’s nationality undetermined.333 The
court thus did not live up to its obligation as set forth by UNHCR’s guidance in the
Statelessness Handbook, and Article 20 of the American Convention on Human Rights,
BORN IN THE AMERICAS
75
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents