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Jus soli - Citizenship by birth and statelessness

For many years now Jus soli has been seen as a miraculous way to reduce the number of stateless persons around the world. Despite this, there still exist a variety of conditions that make eradication of statelessness a long and bumpy ride. This article will examine how Jus soli is practiced in some countries around the world and how this legal principle may help to eliminate statelessness.

 

The principle of Jus soli or “the right of soil” is a legal principle according to which all children born on the territory of a country have a right to claim citizenship of that country. For this reason, lawyers and practitioners often see Jus soli as a solution to statelessness.  

 

Statelessness itself represents a person who is not considered as a national by any country in the world. Statelessness can happen due to various factors such as gender or ethnic discrimination, emergence of new States and gaps in legal system of the country (Refugees, n.d.) . Being stateless means that person does not have basic identity documents and access to education, medical and social services (Baluarte, 2017). Without citizenship people are excluded from the political life of the country they live in as they cannot vote and statelessness, in general, deprives them of a sense of national identity and belonging.

 

To this day the principle of Jus soli is not widely practiced around the world mostly because it carries a lot of negative factors that may compromise the state's legal and political system. However, Jus soli is also used as a way of granting citizenship to people born on disputed territories, like on Falkland Islands. And still there are several countries in the world that do in fact practice Jus soli. Some of them provide citizenship based on so-called unconditional Jus soli, and others require a number of conditions.

 

Most of the countries of North, Central and South America operate an unconditional Jus soli system, when citizenship is granted to children of aliens born on their territory. This system originates from English and Spanish colonization of the region and Jus soli was kept as a way of integration enslaved population and attraction of European migrants (Mignot, n.d.)

 

In the modern setting, the United States, for example, provides citizenship to children born on their land. It uses the 14th Amendment to the US Constitution that states that “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.”

 

Same pattern is applied by Canada, Mexico, Argentina, Brazil and other countries of the Americas. It is important to note that still not all children can enjoy this principle. According to constitutions of these countries, children born to parents employed at diplomatic service jobs or international organizations that give them the same diplomatic status cannot claim citizenship of the country they were born in. 

 

Conditional Jus soli is applied in some countries of Western Europe and Oceania. In this case, a family needs to meet certain conditions to secure their child’s citizenship, such as residence in the country for a certain period of time or even presence of permanent residence. These conditions vary from country to country and below we will discuss some examples.

 

Countries like France possess strict Jus soli rules, when citizenship is granted to second generation migrants based on their residence status. Thus if the child was born to immigrant parents s/he will only obtain French citizenship at the age of 18 (Mignot, n.d.). Subsequently, third generation migrants are granted French citizenship with any conditions. 

 

The United Kingdom along with Germany, provides citizenship to children born on their land only if parents meet residency and citizenship requirements. In the UK, parents must have been living in the country legally (hold a permanent residence) or one of the parents is a UK national (“Is citizenship of the country you are born in an absurd privilege?,” 2018). Important to note that this rule is only applied to children born after 1983. 

 

Japan on the other hand represents itself as a strict Jus sanguinis country. However, Article 2 of the Nationality Act lists three conditions under which a child can be granted with Japanese citizenship: 1) one of the parents must be a Japanese citizen; 2) if child is born abroad to Japanese parent and lives in Japan for 20 years; and 3) if child is born to unknown or stateless persons on Japanese land (“THE NATIONALITY LAW,” n.d.).

 

Currently it is hard to say how many people are stateless around the world. UNHCR provides official data of 3.9 million people, however it admits that statistics are underestimated and assumes that real numbers are close to 10 million people (“Better statistics to help end statelessness,” 2020). It may seem that adoption of legal practice of Jus soli like in Japan will help eliminate statelessness within several decades. In fact, Jus soli is not the only solution to the problem. International cooperation and willingness of states to resolve the issue will play a major role in eradication of statelessness around the world. Jus soli in this equation will only help to avoid statelessness at birth. 

 

With countries adopting conditional Jus soli system, the number of stateless children will drop dramatically, however proper migration management and careful recordings of births will speed up this process.

 

 

Alima Kassenova

 

Baluarte, D.C., 2017. The Risk of Statelessness: Reasserting a Rule for the Protection of the Right to Nationality 19, 49.

Better statistics to help end statelessness, 2020. . UNHCR Blog. URL https://www.unhcr.org/blogs/better-statistics-to-help-end-statelessness/ (accessed 11.2.20).

Is citizenship of the country you are born in an absurd privilege? | Arwa Mahdawi [WWW Document], 2018. . the Guardian. URL http://www.theguardian.com/commentisfree/2018/aug/29/birthright-citizenship-privilege-canada-america-policy (accessed 11.2.20).

Mignot, J.-F., n.d. By soil and blood: Citizenship laws in the world 11.

Refugees, U.N.H.C. for, n.d. Ending Statelessness [WWW Document]. UNHCR. URL https://www.unhcr.org/ending-statelessness.html (accessed 11.2.20).

THE NATIONALITY LAW [WWW Document], n.d. URL http://www.moj.go.jp/ENGLISH/information/tnl-01.html (accessed 11.2.20).


 

05 November 2020

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