Statelessness Working Paper Series No. 2017/03
1. Introduction
Article 10 of the Chilean Constitution grants Chilean nationality to all persons born within its
territory, save for the children of foreign diplomats and of ‘transient foreigners’ (hijos de
extranjeros transeúntes). However, starting in 1995, a flawed administrative interpretation of
the meaning of ‘transient foreigners’ resulted in the denial of nationality to many thousands of
locally born children whose birth certificates were marked “child of transient foreigner” (CTF) at
the time of registration. These children consequently found themselves at risk of being stateless.
In 2015, the Immigration and Refugee Law Clinic at the Diego Portales University (UDP) Centre
for Human Rights and the Immigration Law Clinic at the Alberto Hurtado University (UAH) School
of Law joined efforts with the Jesuit Migrant Service (SJM) to address the plight facing these
children. The object of this collaboration was to coordinate advocacy, research, community
outreach and strategic litigation 1 initiatives so as to secure as broad a solution as possible, and
to ensure the recognition of Chilean nationality to all the children whose nationality had been
denied at birth. The project raised numerous legal, social, ethical, and financial issues. While
some were foreseen from the onset, many more emerged in the process.
This article reviews the flaws in the interpretation of the right to a nationality by the Chilean
authorities, the threats faced by the thousands of children at risk of statelessness, and the design
and implementation of the strategic litigation approach that followed to address these
challenges. Finally, the article describes the project that arose after the case that was litigated
before the Supreme Court, which included not only the civil society organisations originally
involved in the claim, but also the collaboration and support of the United Nations High
Commissioner for Refugees (UNHCR), the National Institute on Human Rights, the Department
of Migration and the Civil Registry.
2. The Right to a Nationality: Recognition, Violation, and Interpretation in Chilean and
International Law2
The right to a nationality is a fundamental human right. Nationality legally links an individual to
a nation-state in a connection that is reciprocal: Its nationals submit to the State’s laws and
authority, and are in turn entitled to its protection.3 While it is within the rights of a sovereign
state to set requirements for the acquisition of nationality, these powers are limited under
international law, notably its human rights commitments.4
1
Strategic litigation is often understood as “...litigation designed to reach beyond the immediate case and the
individual client, that seek to change the law or how it is applied, in a way that will affect society as a whole. Public
interest litigation persuades the judicial system to interpret the law and apply existing, favourable rules or laws that
are otherwise underutilized or ignored”. For the purpose of this article, public interest litigation or strategic litigation
not only persuades the judicial system to interpret the law but also seek - through the court decisions- to address the
wrongdoings of government and society and to help those who suffer from them. In other words, having an impact
on policy, and State practice. Public Interest Law Initiative in Transitional Societies, Columbia University School of
Law, 2001 p.81, Pursuing The Public Interest. A Handbook for Legal Professionals and Activist.
2 Drawn from “Nacionalidad en la jurisprudencia de la Corte Suprema”, Colecciones Jurídicas de la División de Estudios
de la Corte Suprema, by the same authors, and from Contribution to the Joint General Comment on the Human Rights
of Children in the Context of International Migration by, inter alia, the UAH Law Clinic, the UDP Center for Human
Rights, and the Jesuit Migrant Service.
3 Herdegen, Matthias. Derecho internacional público. Konrad Adenauer Stiftung – UNAM, 2005, p. 193.
4Brotóns, Antonio Remiro. Derecho internacional (Tirant Lo Blanch) 2007, p. 822: “…Some scholars have suggested,
albeit without extensive support in government practice, that international human rights standards, by deeming
nationality a fundamental human right, impose new limits on the ability of States to legislate on this matter”.
1