Jus soli

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Jus soli (Latin: right of the soil),[1] is the right of anyone born in the territory of a state to nationality or citizenship.[2]

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[edit]

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.[3]

An early form of partial jus soli dates from Cleisthenes' reforms of ancient Athenian law. It developed further in the Roman world, where citizenship was extended to all free inhabitants of the Roman Empire, especially with the Constitutio Antoniniana (Edict of Caracalla).[3]

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.[3]

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.[3]

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 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.

Lex soli[edit]

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.[4]

Blurred lines between jus soli and jus sanguinis[edit]

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.[5]

Jus soli around the world[edit]

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.[6][7][8][9] As is shown clearly on the map, the jus soli is mainly in use in “the new world” — the Americas. Since 2004, no European country grants unconditional birthright citizenship.[10][11]

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).[8]

Jus soli around the world

States that observe jus soli include:

Modification of jus soli[edit]

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.[8] Modification of jus soli has been criticized as contributing to economic inequality, the perpetuation of unfree labour from a helot underclass,[5] and statelessness. Jus soli has been restricted in the following countries:[21]

Abolition of jus soli[edit]

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.[32]

Maltese nationality law changed the principle of citizenship to jus sanguinis on 1 August 1989 in a move that also relaxed restrictions against multiple citizenship.[33]

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.[citation needed]

United States United States[edit]

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.[34]

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.[35]

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.[36] 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.[37] Citing their numbers and concerns over "anchor babies", some lawmakers and activists have proposed abolishing jus soli in the United States.[5][38] 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.[39]

Hong Kong Hong Kong[edit]

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)).[40] 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.[41] 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.[42][43]

See also[edit]

References[edit]

  1. ^ jus soli, definition from merriam-webster.com.
  2. ^ Vincent, Andrew (2002). Nationalism and particularity. Cambridge; New York: Cambridge University Press. 
  3. ^ a b c d w:fr:Droit du sol
  4. ^ Guimezanes, Nicole. "What Laws for Naturalisation?" The OECD Observer. Paris: June/July 1994. , Iss. 188; pg. 24, 3 pgs (Cites legislation for Australia, Austria, Belgium, Canada , Denmark, Finland, France, Ireland, Italy, Japan, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom and the United States)
  5. ^ a b c d e f g Mancini, JoAnne; Finlay, Graham (September 2008). "'Citizenship Matters': Lessons from the Irish citizenship referendum". American Quarterly (American Quarterly) 60 (3): 575–599. doi:10.1353/aq.0.0034. 
  6. ^ Chicago Tribune: "Birthright citizenship benefits the country" by Ronald D. Rotunda September 16, 2010
  7. ^ Texas Tribune: "Repeal Birthright Citizenship — and Then What?" by Morgan Smith August 16, 2010
  8. ^ a b c Feere, Jon (2010). "Birthright Citizenship in the United States: A Global Comparison". Center for Immigration Studies. 
  9. ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac ad ae af "Nations Granting Birthright Citizenship". NumbersUSA. Retrieved 6 September 2009. 
  10. ^ Migration Policy Institute: "Citizenship in a Globalized World" By Greta Gilbertson January 2006
  11. ^ Vink, M. and G.R. de Groot (2010). Birthright Citizenship: Trends and Regulations in Europe. Comparative Report RSCAS/EUDO-CIT-Comp. 2010/8. Florence: EUDO Citizenship Observatory, pp. 35.
  12. ^ Under Article 4(2)(a) of the 1996 Nationality Law. See "Law on Nationality of 20 August 1996 (unofficial translation)". United Nations High Commission for Refugees. Date of translation unknown. Retrieved 2012-06-22. 
  13. ^ CITIZENSHIP LAW OF CANADA: PART I THE RIGHT TO CITIZENSHIP: Persons who are citizens Section 3. (1) Subject to this Act, a person is a citizen if (a) the person was born in Canada after February 14, 1977...
  14. ^ Constitution of the Republic of Chile, chap. II, art. 10, par. 1 (Spanish text; English version without recent changes)
  15. ^ 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..."
  16. ^ Fiji Constitution, chap. 3, sec. 10
  17. ^ The Constitution of Lesotho, chap. IV, sec. 38
  18. ^ UN Refugee Agency: Pakistan Citizenship Act, 1951 Section 4.Citizenship by birth: "Every person born in Pakistan after the commencement of this Act shall be a citizen of Pakistan by birth."
  19. ^ 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
  20. ^ 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.
  21. ^ NumbersUSA: "Nations Granting Birthright Citizenship" retrieved October 22, 2011
  22. ^ Human Rights Brief: "The Constitution and the Right to Nationality in the Dominican Republic" October 29, 2010
  23. ^ Soros.org: "Deprivation of Citizenship for Dominicans of Haitian Descent" retrieved October 22, 2011
  24. ^ Huffington Post: "Dominican Republic To End Citizenship Of Those Whose Parents Entered Illegally" By EZEQUIEL ABIU LOPEZ and DANICA COTO September 27, 2013
  25. ^ "Civil Code of Iran (last amended 1985)". United Nations High Commission for Refugees. Retrieved 2012-06-23. 
  26. ^ New Zealand Visa Bureau: "1000 kids face deportation or being orphaned for breaching New Zealand visa rules" October 7, 2011
  27. ^ "Thailand". Republic of the Philippines: Office of the Solicitor General. Retrieved 2012-06-22. 
  28. ^ Yang, Bryant (2009). "Life and Death Away from the Golden Land: The Plight of Burmese Migrant Workers in Thailand". Thailand Law Journal 12 (1). Retrieved 2012-06-22. 
  29. ^ "Amendments to the Nationality Act 2008". Government Gazette of Thailand 125. 2008-02-27. Retrieved 2012-06-22. 
  30. ^ 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
  31. ^ Jon Feere, "Birthright Citizenship in the United States: A Global Comparison," Center for Immigration Studies, http://www.cis.org/birthright-citizenship
  32. ^ Sadiq, Kamal (2008). Paper Citizens: How Illegal Immigrants Acquire Citizenship in Developing Countries. Oxford University Press. p. 10. ISBN 978-0-19-537122-2. 
  33. ^ Bauböck, Rainer; Bernhard Perchinig, Wiebke Sievers (2007). Citizenship policies in the new Europe. Amsterdam University Press. p. 247. ISBN 978-90-5356-922-1. 
  34. ^ Schultz, Jeffrey D. (2000). Encyclopedia of Minorities in American Politics: Hispanic Americans and Native Americans. Greenwood Publishing Group. p. 621. ISBN 978-1-57356-149-5. 
  35. ^ Ryan, John M. (27 August 2009). "Letters: U.S. citizenship". Silver City Sun-News. Retrieved 6 September 2009. 
  36. ^ Pew Hispanic Center: "Unauthorized Immigrants and Their U.S.-Born Children" August 11, 2010
  37. ^ Jon Feere, "Birthright Citizenship in the United States: A Global Comparison," http://www.cis.org/birthright-citizenship
  38. ^ "GOP mulls ending birthright citizenship". The Washington Times. 3 November 2005. Retrieved 6 September 2009. 
  39. ^ See Raoul Berger, Government by Judiciary, The Transformation of the Fourteenth Amendment, 64-66 (Indianapolis: Liberty Fund 1997) (1977).
  40. ^ Basic Law of Hong Kong
  41. ^ Chen, Albert H. Y. (2011). "The Rule of Law under 'One Country, Two Systems': The Case of Hong Kong 1997–2010". National Taiwan University Law Review 6 (1): 269–299. Retrieved 2011-10-04 
  42. ^ "Babies Born in Hong Kong to Mainland Women". Hong Kong Monthly Digest of Statistics. September 2011. Retrieved 2011-10-04 
  43. ^ "內地來港產子數目5年急增25倍 香港擬收緊綜援". People's Daily. 2008-03-10. Retrieved 2011-10-05