Jus soli

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For issues specific to the U.S., see Birthright citizenship in the United States of America.

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.

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.

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[edit] 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.

[edit] 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.

[edit] Specific national legislation

Jus soli is common in developed countries that wished to increase their own citizenry. It is also recognized in some developing countries, most notably Pakistan. Some countries that observe jus soli include:

[edit] 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:

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.

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

[edit] 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:

[edit] United States

Heightened concern over Illegal immigration to the United States has prompted some moves to abolish jus soli but these have been unsuccessful - largely because they are certainly unconstitutional. U.S. Constitution, Amendment XIV 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."

Clearly, the Constitution 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 also excluded Aboriginal Americans because they were not considered subject to the jurisdiction of the United States and, thus, were not American citizens. Congress extended citizenship to Aboriginal peoples in 1924, but not all accepted it (the Mohawk being noteworthy for refusing to accept either American or Canadian citizenship)..

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 was subject to U.S. jurisdiction at the time he was born, because his parents - although foreign born (and having actually returned to China) - had no immunity from U.S. jurisdiction.

So, for jus soli to be abolished in the United States, the Fourteenth Amendment would need to be modified by further Constitutional amendment (which would require ratification of three-fourths of the states). A partial reversal of the Supreme Court's decision in Wong Kim Ark, to change the meaning of "subject to the jurisdiction [of the United States]," would be ineffective in regard to illegal immigrants - because if they were not subject to U.S. jurisdiction, it would be unlawful to deport them (since the act of deportation is an exercise of U.S. jurisdiction).

Thus, it is unlikely the United States will abandon the jus soli basis of citizenship.

[edit] See also

A minor, quite improper use of the term jus soli refers to the jurisdiction: in this case it would indicate that the law to use is the law of the nation-state in whose territory the evaluated fact happened. But, as said, it is not considered a correct use of the term, or at least it is considered misleading.

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