Jus soli

Jus soli (Latin for "right of the soil" or, somewhat figuratively, "right of the territory"), or birthright citizenship, is a right by which nationality or citizenship can be recognised 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). However, most European countries chose the German conception of an "objective nationality", based on "blood", "race" or language (as in Fichte's classical definition of a nation), opposing themselves to republican Ernest Renan's "subjective nationality", based on an every-day plebiscite of one's appurtenance to his Fatherland. This non-essentialist conception of nationality allowed the implementation of jus soli, against the essentialist jus sanguinis. However, today's massive increase of refugees has somewhat blurred the lines between these two antagonistic sources of right.

Lex soli

Usually a practical regulation of the acquisition of nationality or citizenship of a state by birth on the territory of the state is provided by a derivative law called lex 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

Some countries are 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, or that the child be a foundling found on the territory of the state in question. The primary reason for imposing this requirement is to limit or prevent people from travelling to a country with the specific intent of gaining citizenship for a child. The 27th amendment to the constitution of the Republic of Ireland was passed by referendum in 2004 for this purpose.

Specific national legislation

Jus soli is common in countries in the New World that wanted to develop and increase their own citizenry. It is also recognized in some Old World nations. Some countries that observe jus soli:

Modification of jus soli

In a number of countries, the automatic application of jus soli has been modified to impose some additional requirements for children of foreign parents, such as the parent being a permanent resident or having lived in the country for a period of time. Jus soli has been modified in the following countries:

United Kingdom on 1 January 1983
Australia on 20 August 1986
Republic of Ireland on 1 January 2005
New Zealand on 1 January 2006
France also operates a modified form of jus soli

German nationality law was changed on 1 January 2000 to introduce a modified concept of jus soli. Prior to that date, German nationality law was based entirely on jus sanguinis.

Modification of jus soli has been criticized as contributing to the growing global problem of statelessness, along with the creation of social underclasses and various legal challenges in countries like Australia. For example, in Australia, children must wait ten years before they are considered equal in the eyes of the law to their peers.

On the other hand, in places like the United States, jus soli is credited with the nation's ability to integrate various nationalities and with much less social strife and difficulties than other countries. Although jus soli was formally stated in the Fourteenth Amendment, judicial authorities recognize that the philosophy was integral at the conception of the country's constitution.

Abolition of jus soli

Some countries which formerly operated jus soli have moved to abolish it partially, only conferring citizenship on children born in the country if one of the parents is a citizen (or has been a legal resident for a number of years) of that country. These include:

United States

Recently, due to the influx of illegal immigrants, there have been moves (though unsuccessful, thus far) to abolish it in the United States. Amendment of US citizenship law to remove jus soli would require either a Constitutional amendment or a reversal by the Supreme Court. That is because the Fourteenth Amendment, as established in United States v. Wong Kim Ark, guarantees and protects the citizenship of any individual born in the United States.