Jus soli

Jus soli (Latin: right of the soil),is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state. At the turn of the nineteenth century, nation-states commonly divided themselves between those granting nationality on the grounds of jus soli (France, for example) and those granting it on the grounds of jus sanguinis (right of blood) (Germany, for example, before 1990). However, most European countries chose the German concept of an "objective nationality", based on word, race or language (as in Fichte's classical definition of a nation), opposing themselves to republican Ernest Renan's "subjective nationality", based on a daily plebiscite of one's belonging to one's Fatherland. This non-essentialist concept of nationality allowed the implementation of jus soli, against the essentialist jus sanguinis. However, today's increase of migrants has somewhat blurred the lines between these two antagonistic sources of right.

Countries that have acceded to the 1961 Convention on the Reduction of Statelessness will grant nationality to otherwise stateless persons who were born on their territory, or on a ship or plane flagged by that country.

History

At one time, Jus sanguinis was the sole means of determining nationality in Europe (where it is still widespread in Central and Eastern Europe) and Asia. An individual belonged to a family, a tribe or a people, not to a territory. It was a basic tenet of Roman law.

An early form of partial jus soli dates from the Cleisthenes' reforms, and developed further in the Roman world where citizenship was extended to all free inhabitants of the Empire, especially with the Constitutio Antoniniana (Edict of Caracalla).

But it was much later, when the independence of the English colonies in America, and the French Revolution, laid the foundations for jus soli. With the social and economic development of the 19th and 20th centuries, and above all, the massive migrations to the Americas and Western Europe, that jus soli was established in a greater and greater number of countries.

The geographer Jared Diamond has calculated that if the application of jus soli since 1850 were abolished, 60% of Americans and 80% of Argentinians would lose their citizenship, and 25% of British and French.

Lex soli

Lex soli is a law used in practice to regulate who and under what circumstances an individual can assert the right of jus soli. Most states provide a specific lex soli, in application of the respective jus soli, and it is the most common means of acquiring nationality. A frequent exception to lex soli is imposed when a child was born to a parent in the diplomatic or consular service of another state, on a mission to the state in question.

Blurred lines between jus soli and jus sanguinis

There is a trend in some countries toward restricting lex soli by requiring that at least one of the child's parents be a national of the state in question at the child's birth, or a legal permanent resident of the territory of the state in question at the child's birth.

Jus soli around the world

Jus soli is observed by a minority of the world's countries. Of advanced economies (as defined by the International Monetary Fund), Canada and the United States are the only countries that observe birthright citizenship. No European country grants unconditional birthright citizenship.

In an August 2010 report, the Center for Immigration Studies, through direct communication with foreign government officials and analysis of relevant foreign law including statutory and constitutional law, was able to confirm that 30 of the world's 194 countries grant automatic birthright citizenship (although they were not able to obtain definitive information from 19 countries).

Jus soli around the world

States that observe jus soli include:

• Antigua and Barbuda
• Argentina
• Barbados
• Belize
• Bolivia
• Brazil
• Cambodia
• Canada
• Chile (children of transient foreigners or of foreign diplomats on assignment in Chile only upon request)
• Colombia
• Costa Rica (Children born to non-Costa Rican citizens obtain citizenship if registered as a Costa Rican by the will of either parent during minority or by his own will up to the age of twenty-five)
• Dominica
• Ecuador
• El Salvador
• Fiji
• Grenada
• Guatemala
• Guyana
• Honduras
• Jamaica
• Lesotho
• Mexico
• Nicaragua
• Pakistan
• Panama
• Paraguay
• Peru
• Saint Christopher and Nevis
• Saint Lucia
• Saint Vincent and the Grenadines
• Trinidad and Tobago
• Tuvalu
• United States
• Uruguay
• Venezuela

Modification of jus soli

In a number of countries, to discourage illegal immigration, automatic birthright citizenship has been repealed by imposing additional requirements (such as requiring that at least one of the parents be a legal permanent resident or that the parent has resided in the country for a specific period of time). As a result, the children of immigrants do not have automatic citizenship conferred upon their birth. Modification of jus soli has been criticized as contributing to economic inequality, the perpetuation of unfree labour from a helot underclass, and statelessness. Jus soli has been changed in the following countries:

• Australia: The law was changed on 20 August 1986 so that a person born in Australia acquires Australian citizenship by birth only if at least one parent was an Australian citizen or permanent resident or upon the 10th birthday of the child born in Australia regardless of their parent's citizenship status (see Australian nationality law).
• Dominican Republic: The constitution was amended on 26 January 2010 to exclude most Dominicans of Haitian origin from citizenship, even those previously recognized by the Dominican state. The new constitution broadened the definition of the 2004 migration law to exclude individuals that were "in transit" to include "non-residents" (including individuals with expired residency visas and undocumented workers).
• France: Children born in France (including overseas territories) to at least one parent who is also born in France automatically acquire French citizenship at birth. Children born to foreign parents may request citizenship depending on their age and length of residence (see French nationality law).
• Germany: An exception to the increasing restrictiveness toward birthright citizenship, Germany, prior to 2000, had its nationality law was based entirely on jus sanguinis. Now, children born on or after 1 January 2000 to non-German parents acquire German citizenship at birth if at least one parent has a permanent residence permit (and had this status for at least three years) and the parent was residing in Germany for at least eight years.
• New Zealand: The law was changed on 1 January 2006 to require at least one of the parents to be a New Zealand citizen or permanent resident to confer citizenship (see New Zealand nationality law)
• Republic of Ireland on 1 January 2005 - requiring that at at least one of the parent's be an Irish citizen; a British citizen; a child of a resident with a permanent right to reside in Ireland; or be a child of a legal resident residing three of the last four years in the country (excluding students and asylum seekers)(see Irish nationality law).
• South Africa: Children born in South Africa to South African citizens or permanent residents are automatically granted South African citizenship since 6 October 1995 (see South African nationality law).
• United Kingdom: since 1 January 1983, at least one parent must be a British citizen or be legally "settled" in the country (see British nationality law)).

The Barbados Ministry of Labour & Immigration recently proposed ending automatic birthright citizenship, noting in a recent report: "It is the Department's view that the legislation should be amended to stipulate that (as in the United Kingdom and the Bahamas) children born in Barbados will not be deemed to be citizens of Barbados, unless at least one parent at the time of the birth, has permanent status in Barbados. In addition persons born in Barbados should not be deemed to be citizens where the parents are residing illegally in Barbados."

Similarly, an official from Antigua and Barbuda told the Center for Immigration Studies that the country's current effort to tighten immigration policies may include an end to automatic birthright citizenship for children of illegal immigrants.

Abolition of jus soli

Some countries which formerly operated jus soli have moved to abolish it entirely, only conferring citizenship on children born in the country if one of the parents is a citizen of that country. India did this on 3 December 2004, in reaction to illegal immigration from its neighbor Bangladesh, though jus soli was progressively weakened since 1987. Malta also changed the principle of citizen to jus sanguinis on 1 August 1989, in a move that also relaxed restrictions against multiple citizenship. Ireland abolished jus soli, which was enshrined in the constitution, in favour of jus sanguinis as a result of the 2004 referendum on citizenship, as a reaction to a perceived influx of asylum seekers.

United States

Main article: Birthright citizenship in the United States of America

The 14th Amendment to the United States Constitution reads, in pertinent part, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Its wording was initially interpreted to exclude Native Americans because they were not considered "subject to the jurisdiction" of the United States and, thus, were not American citizens. Congress declared it policy to extend citizenship to all Aboriginal peoples in the Indian Citizenship Act of 1924. In the 1898 case United States v. Wong Kim Ark 169 U.S. 649 (1898), the U.S. Supreme Court held that the "subject to the jurisdiction thereof" restriction applied only to two additional categories: children born to foreign diplomats and children born to enemy forces engaged in hostile occupation of the country's territory. The Court also rejected the government's attempt to limit Section 1 of the 14th Amendment by arguing it was intended solely to allow former slaves and their descendants to become citizens. The Court thus held that the petitioner, a child of subjects of the Emperor of China whose parents were lawfully living in the United States where he was born, was a U.S. citizen by birth. Notwithstanding the Chinese Exclusion Act of 1882, his citizenship status could not be revoked even if his parents were not American citizens at the time of his birth and all three made several trips to China afterwards.

The Pew Hispanic Center determined that according to an analysis of Census Bureau data, about 8 percent of children born in the United States in 2008 (about 340,000) were offspring of unauthorized immigrants, with a total of 4 million U.S.-born children of unauthorized immigrant parents residing in the country in 2009. The Center for Immigration Studies determined that up to 400,000 children are born annually to illegal immigrants, representing about 10 percent of all children born in the United States. Citing their numbers and concerns over "anchor babies", some lawmakers and activists have proposed abolishing jus soli in the United States. Other commentators have argued that the Supreme Court's interpretation of the 14th Amendment was incorrect, and should be narrowed to only establishing the civil rights, privileges and immunities of the freed slaves.

Hong Kong

A modified form of jus soli is provided by the Basic Law of Hong Kong. According to Article 24(1) of the Basic Law of the territory, in force since the July 1997 transfer of sovereignty over Hong Kong, all citizens of the People's Republic of China born in the territory are permanent residents of the territory and have the right of abode in Hong Kong. Furthermore, according to Article 24(5) of the same law, non-citizens born to non-citizen permanent resident parents in Hong Kong also receive permanent residence at birth. Other persons must "ordinarily reside" in Hong Kong for seven continuous years in order to gain permanent residence (Articles 24(2) and 24(5)). In Hong Kong, most political rights and eligibility for most welfare benefits are conferred to permanent residents regardless of citizenship; conversely, PRC citizens who are not permanent residents (such as residents of mainland China and Macau) are not conferred these rights and privileges.

Hong Kong's Immigration Ordinance initially restricted the application of Article 24(1) to babies whose parents had the right of abode at the time of the baby's birth. However, the Court of Final Appeal struck down this portion of the Immigration Ordinance in the 2001 case Director of Immigration v. Chong Fung Yuen. As a consequence, many women from mainland China began coming to Hong Kong to give birth; by 2008, the number of babies in the territory born to mainland mothers had grown to twenty-five times the number five years prior.

See also

• Anchor baby
• Birth tourism
• Citizenship
• Citizenship in the United States
• History of citizenship
• Jus sanguinis
• Nationality law
• Native-born citizen
• Natural-born citizen – a specific requirement for the office of President of the United States
• Stateless person