Jus soli

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Jus soli (Latin: law of ground) or birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state.^[1] 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 2000). 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 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 the country.

Lex soli

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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

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,^[2] or that the child be a foundling found on the territory of the state in question.^{[citation needed]} 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.^[2]

Specific national legislation

Jus soli is common in developed countries that wish to increase their own citizenry, as well as in countries of the Western Hemisphere who sought to increase their populations through settlement. It is also recognized in some developing countries, most notably Pakistan.

States that observe jus soli include:

• Antigua and Barbuda^[3]
• Argentina^[3]
• Barbados^[3]
• Belize^[3]
• Bolivia^[3]
• Brazil^[3]
• Canada^[3]
• Chile^[4] (children of transient foreigners or of foreign diplomats on assignment in Chile only upon request)
• Colombia^[3]
• Dominica^[3]
• Dominican Republic^[3]
• Ecuador^[3]
• El Salvador^[3]
• Fiji^[5]
• Grenada^[3]
• Guatemala^[3]
• Guyana^[3]
• Honduras^[3]
• Jamaica^[3]
• Lesotho^[6]
• Mexico^[3]
• Nicaragua^[3]
• Pakistan^[3]
• Panama^[3]
• Paraguay^[3]
• Peru^[3]
• Saint Christopher and Nevis^[3]
• Saint Lucia^[3]
• Saint Vincent and the Grenadines^[3]
• Trinidad and Tobago^[3]
• United States^[3]
• Uruguay^[3]
• Venezuela^[3]

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^[2]
• Republic of Ireland on 1 January 2005^[2]
• New Zealand on 1 January 2006^[2]
• South Africa on 6 October 1995^[2]
• 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.^[2]

Modification of jus soli has been criticized as contributing to economic inequality, the perpetuation of unfree labour from a helot underclass,^[2] and statelessness.

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.

Children born to foreign diplomats are usually not granted nationality of the country they were born in, even in countries that practice jus soli.

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 Muslim neighbors Pakistan and Bangladesh, though jus soli was progressively weakened since 1987.^[7] Malta also changed the principle of citizen to jus sanguinis on 1 August 1989, in a move that also relaxed restrictions against multiple citizenship.^[8]

United States

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." This makes citizens of all persons born in the United States, provided they are subject to U.S. jurisdiction at the time of their birth - that is, they are not the children of foreign diplomats and like persons who, having diplomatic immunity, are not subject to U.S. jurisdiction while they are in the country for diplomatic purposes.

At the time the Fourteenth Amendment was ratified (1868), it excluded Aboriginal 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 1924, which was realized in 1968 with the Indian Civil Rights Act.^[9]

This interpretation of "subject to the jurisdiction" of the United States was formally established in 1898 by a 6-2 decision the Supreme Court in United States v. Wong Kim Ark 169 U.S. 649 (1898). In that case, the Court found the petitioner had been born in the United States and therefore became a U.S. citizen. This could not be revoked because his parents were not American citizens at the time of his birth, or because they made several trips to China after it.^[10]

However, the Supreme Court has never explicitly ruled on whether children born in the United States to illegal immigrant parents are entitled to birthright citizenship via the 14th Amendment,^[11] although it is generally assumed that they are.^[12] Heightened concern over illegal immigration to the United States has prompted some moves to abolish jus soli,^[2][13] but these have so far failed.

See also

Philosophy portal

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

References