At one time, jus sanguinis (right of blood) 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.
But it was much later, when the independence of the English colonies in America, and the French Revolution, laid the foundations for jus soli and 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.
At the turn of the 19th 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 (Germany, for example, before 1990). However, most European countries chose the German concept of an "objective nationality", based on race or language (as in Fichte's classical definition of a nation), opposing themselves to republicanErnest 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.
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 citizen, national, or legal permanent resident of the state in question at time of the child's birth.
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).
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)
In a number of countries, to discourage illegal immigration, automatic citizenship by jus soli has been withdrawn or restricted by imposing additional requirements, such as requiring that at least one parents be a legal permanent resident or that a parent has resided in the country for a specific period of time. 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 restricted in the following countries:
Australia: Since 20 August 1986, 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 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 foreign 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 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. Under the current law, which restricts dual citizenship, children of non-EU and non-Swiss citizens must usually choose between German and foreign citizenship when they are 23 years old ("Optionspflicht" = the duty to choose one citizenship). Failing to make a choice can result in the loss of the German citizenship. There are exceptions made for citizens of countries that do not allow their citizens to renounce their citizenship (e.g. Argentina, Bolivia, Brazil, Costa Rica; The following jus-soli countries allow renunciation only if the citizenship was acquired involuntarily by birth there to non-citizen parents: Dominican Republic, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Uruguay), or if the renunciation process is too difficult/humiliating/expensive (e.g. Afghanistan, Algeria, Angola, Cuba, Eritrea, Iran, Iraq, Lebanon, Morocco, Nigeria, Syria, Thailand, Tunesia) or, rarely, in individual cases, if it means enormous disadvantages for the concerned person. Children of German citizens who acquire a second citizenship by birth in a jus-soli country that allows dual citizenship, such as the United States of America or Canada, can usually keep both citizenships for a lifetime. The same goes for children from binational marriages (one German parent and one foreign parent). Otherwise, Germans wanting to become citizens of a non-EU country (except Switzerland) must first apply for a permit to maintain their German citizenship ("Beibehaltungsgenehmigung"), or they will lose their German citizenship automatically when acquiring the foreign one. Changes of the dual-citizenship law are being discussed.
Iran: Article 976(4) of the Civil Code of Iran grants citizenship at birth to persons born in Iran of foreign parents if one or both of the parents were themselves born in Iran. See Iranian nationality law.
Ireland: On 1 January 2005, the law was amended to require that at least one of the parents 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).
Thailand: Thailand operated a system of pure jus soli prior to 1972, but afterwards, due to illegal immigration from Burma, the Nationality Act was amended to require that both parents be legally resident and domiciled in Thailand for at least five years in order for their child to be granted Thai citizenship at birth. Furthermore, someone who has Thai citizenship by sole virtue of jus soli may be stripped of Thai citizenship under various conditions (such as living abroad) which do not apply to people who have Thai citizenship by virtue of jus sanguinis.
Barbados: 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."
Antigua and Barbuda: 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 observed jus soli have moved to abolish it entirely, conferring citizenship on children born in the country only 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; jus soli had already been progressively weakened since 1987.
Ireland abolished jus soli, which had been enshrined in the constitution, in favour of jus sanguinis in the 2004 referendum on citizenship, as a reaction to a perceived influx of asylum seekers.
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 many Native Americans because they were not considered "subject to the jurisdiction" of the United States and, thus, were not American citizens. However, Congress later extended 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 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 that 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.
In an analysis of Census Bureau data, the Pew Hispanic Center found that 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 asserted 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.
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 (PRC) 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 basic law, non-PRC citizens born to non-PRC citizen permanent resident parents in Hong Kong also receive permanent residence at birth. Other persons must have "ordinarily resided" 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 benefits are conferred to permanent residents regardless of citizenship; conversely, PRC citizens who are not permanent residents (such as residents of Mainland China and Macao) 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 provision in 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 China mothers had grown to twenty-five times the number five years prior.
^The Constitution of Costa Rica: Title II Article 13 retrieved February 13, 2012. The Constitution of Costa Rica: Title II ARTICLE 13. The following are Costa Ricans by birth: ...2. A child born abroad to a born Costa Rican father or mother, who is registered as such in the Civil Register by the will of the Costa Rican parent during its minority, or by his own will up to the age of twenty-five..."
^Constitution of Tuvalu retrieved February 13, 2012. Constitution of Tuvalu Part III Section 45. Citizenship by birth: "(1) Subject to subsections (3) and (4), a person born in Tuvalu on or after the date on which this Constitution took effect is a citizen of Tuvalu by birth." Note: section 3 pertains to children of foreign diplomats and section 4 pertains to children of belligerants at times of war
^Constitution of the United States retrieved June 11, 2013. Constitution of the United States Amendment XIV Section 1. 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.
^www.foreign.gov.bb/Userfiles/File/IMMIGRATION%20POLICIES.pdf; see also, Jon Feere, "Birthright Citizenship in the United States: A Global Comparison," Center for Immigration Studies, http://www.cis.org/birthright-citizenship