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Global Birthright Citizenship Laws: How Inclusive?

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Abstract

The principal way in which formal citizenship status is acquired is on the basis of birth, whether by descent (ius sanguinis) or territory of birth (ius soli), and most people retain their citizenship of birth for life. Yet birthright citizenship laws have received less attention than naturalisation procedures. Drawing on GLOBALCIT data on citizenship laws in 177 countries in 2016, and indicators of birthright citizenship laws constructed from these, we analyse how global provisions for birthright citizenship vary across the world. We examine the extent to which provision is automatic and unconditional or subject to conditions or restrictions, and the implications for inclusion, in particular of immigrants. Almost all states provide for ius sanguinis citizenship, although with varying restrictions, especially for those born to citizens abroad. Ius soli is unconditional in a small minority of countries, but in half the countries studied it is limited to foundlings and children who would otherwise be stateless, and it is entirely absent in some. Different levels of conditionality of ius soli citizenship exclude the children of immigrants from citizenship of the country in which they live, and can also produce statelessness. Notwithstanding international laws and conventions, some birthright provisions also explicitly exclude on the basis of the marital status of parents, and on gender, racial, ethnic, religious or cultural grounds—all with potentially significant impact on immigrants. Finally, birthright citizenship laws display clearly differentiated geographical patterns, and ius soli is by no means always strongly provided in countries with the largest immigrant populations.

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Notes

  1. UNDHR Art. 15(1). Following substantial academic precedent, we use the term ‘citizenship’ rather than ‘nationality’ to describe the status of formal membership of a state. Usages differ—with nationality more commonly used with respect to the legal bond between the individual and the state in an international context, and citizenship used with respect to the relationship between the individual and the state, but with respect to birthright there are no material differences.

  2. Legal citizenship status remains distinct from, though related to, other dimensions of citizenship, including political rights and activity, and sense of belonging.

  3. Tunis and Morocco Nationality Decrees case, PCIJ Ser.B., No. 4 (1923).

  4. In the USA ‘birthright citizenship’ is often used to mean specifically ius soli birthright citizenship, but we follow the more widespread practice of using it to refer to citizenship acquired on the basis of birth by either descent or place of birth.

  5. GLOBALCIT (2017a).

  6. GLOBALCIT (2017b). See ‘Appendix’ for the countries included in the indicators.

  7. There are certain exceptions; where there are contradictions between the laws, or the laws and the constitution, we code for the effective law.

  8. See Bloemraad (2017).

  9. FitzGerald (2017), p. 141 points out that ethnic and racial conditions, now less evident in birthright laws, are more prevalent in other areas of citizenship law (naturalisation and provisions for loss) and in immigration policies.

  10. FitzGerald (2017), pp. 135–137; Weil (2001), pp. 18–19.

  11. But see discussions in Dumbrava and Bauböck (2015).

  12. Bauböck (2017), pp. 69–70.

  13. See Bauböck (2017) p. 71.

  14. Weil (2001).

  15. But three countries, Cuba, St Kitts & Nevis, and Sierra Leone, have extremely restrictive profiles: they have no ius sanguinis in country and almost totally exclusive provisions for births abroad.

  16. UNCRC has been ratified by all states except the USA. (UNCRC Art. 7.1 also requires states to register births immediately.) UNCMW has neither been signed nor ratified by any leading immigration state.

  17. Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930, Art. 1.

  18. ICJ Reports 1955 (4), p. 23.

  19. Explanatory report on ECN Art. 6, nos. 65 and 66.

  20. Recommendation R 99(18) of the Committee of Ministers of the Council of Europe on the avoidance and the reduction of statelessness, adopted on 15 September 1999 (rule II A, sub a): ‘Exceptions made with regard to children born abroad should not lead to situations of statelessness’.

  21. The African Charter has been ratified by 47 and signed by all 53 African states (Manby (2016), p. 12). The protocol on Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa has been under discussion since 2015.

  22. Vonk (2017) p. 26.

  23. See Acosta (2018); see also Vonk (2014) on case law in the Americas.

  24. Vonk (2014) p. 54.

  25. Although children born in the country are not in fact immigrants, we here follow the conventional use of the term ‘second’ and ‘third’ generations to designate respectively children born to immigrants, and children born to parents themselves born in the country to immigrants.

  26. As countries may provide for more than one mode of ius sanguinis and ius soli, these numbers add to more than 177. A further mode of ius soli after birth (ASOL05) is available in 56 countries, but is not part of the indicators studied here as it is often a form of facilitated naturalisation at or before majority, and coding would require more detailed information than currently available on naturalisation modes.

  27. From the initial assumption of unconditional provision (= 1), we apply deductions of − 0.25, − 0.50 or exceptionally, − 0.75, according to the strength of the obstacle to the individual’s gaining citizenship under than mode; for example, we deduct − 0.25 for requirements of registration, or shorter residence requirements, and − 0.50 for gender, racial, religious or ethnic, etc. exclusions, or for very long residence requirements. In some restrictions on ius sanguinis, there are procedures available for overcoming these obstacles, and here the deductions are reduced by a multiplier. For details of the coding methodology see Jeffers et al. (2017).

  28. ASOL02a scores range from 0.25 to 1, with a global mean of 0.26.

  29. i.e. Belgium, Portugal and Mozambique, the first two having in fact some provisions for all four modes of ius soli.

  30. ASOL02b scores range from 0.25 to 1, but the mean is very low at 0.11.

  31. For those with provision, scores are no lower than 0.50. The global mean for ASOL03a is 0.64.

  32. Where provision exists, scores range from 0.25 to 1. The global mean for ASOL03b is 0.36.

  33. Flaim (2017).

  34. i.e. over 0.70.

  35. 0.91.

  36. 0.70.

  37. Though this was deemed unconstitutional by the US Supreme Court in 2017: Sessions v. Morales Santana 582 US 2017.

  38. UNICEF (2017). The highest proportion of unregistered births is in Bolivia, the largest numbers in Mexico.

  39. Mean scores for ASOL02 and ASOL02b are 0.10 and 0.15 respectively.

  40. Mean scores for foundlings and otherwise stateless are 0.91 and 0.67 respectively.

  41. Mean ius sanguinis scores for Asia are 0.84 (in-country) and 0.73 (abroad).

  42. Vonk (2017), pp. 11–12.

  43. Mean scores for ASOL02a and ASOLO2b for Asia are very low at 0.07 and 0.08 respectively.

  44. The mean is 0.70 for foundlings, 0.32 for otherwise stateless.

  45. UNICEF (2017). In addition, as a matter of policy ius soli has not been applied to the children of Bangladeshi and Afghan refugees, https://www.aljazeera.com/news/2018/09/imran-khan-pledges-citizenship-afghan-bangladeshi-refugees-180917080954619.html.

  46. Mean ius sanguinis scores for Africa are 0.89 (in country) and 0.87 (abroad).

  47. Manby (2016) p. 48.

  48. Mean score for ASOL02a and ASOL02b are 0.11 and 0.19 respectively.

  49. Mean scores for foundlings and stateless in Africa are 0.55 and 0.25 respectively.

  50. UNICEF (2017).

  51. It should be noted that where unconditional ius soli is present, the children born to immigrants will normally be counted as nationals, whereas they would be counted as non-nationals in other countries, so that comparisons are not strictly like with like.

  52. United Nations (2017).

  53. United Nations (2017).

  54. Shachar (2009).

  55. This principle is sometimes termed ‘singularity’, which, could, however, imply a difficulty with multiple citizenship. See Vink and Bauböck (2013), p. 626.

  56. Bauböck (2017), pp. 71–72; Honohan (2015).

  57. Bauböck (2017), p. 72.

  58. Vink and Bauböck (2013), p. 626.

  59. See GLOBALCIT database on acquisition for legal provisions on naturalisation (A06) and the less common socialisation-based mode for those who immigrate as children (A07).

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Authors and Affiliations

  1. UCD School of Politics and International Relations, University College Dublin, Belfield, Dublin 4, Ireland

    Iseult Honohan

  2. Institut des Sciences Sociales, Université de Lausanne, Bâtiment Géopolis, 1015, Lausanne, Switzerland

    Nathalie Rougier

Authors
  1. Iseult Honohan
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  2. Nathalie Rougier
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Correspondence to Iseult Honohan.

Appendix

Appendix

List of countries by continent:


AFRICA (53)—Algeria; Angola; Benin; Botswana; Burkina Faso; Burundi; Cameroon; Cape Verde; Central African Rep; Chad; Comoros; Congo-Brazzaville; Congo-Kinshasa; Côte d’Ivoire; Djibouti; Egypt; Equatorial Guinea; Eritrea; Ethiopia; Gabon; Gambia; Ghana; Guinea; Guinea-Bissau; Kenya; Lesotho; Liberia; Libya; Madagascar; Malawi; Mali; Mauritania; Mauritius; Morocco; Mozambique; Namibia; Niger; Nigeria; Rwanda; Senegal; Seychelles; Sierra Leone; Somalia; South Africa; South Sudan; Sudan; Swaziland; São Tomé & Principe; Tanzania; Togo; Uganda; Zambia; Zimbabwe.


AMERICAS (35)—Antigua-Barbuda; Argentina; Bahamas; Barbados; Belize; Bolivia; Brazil; Canada; Chile; Colombia; Costa Rica; Cuba; Dominica; Dominican Republic; Ecuador; El Salvador; Grenada; Guatemala; Guyana; Haiti; Honduras; Jamaica; Mexico; Nicaragua; Panama; Paraguay; Peru; Saint Kitts & Nevis; Saint Lucia; St Vincent-Grenadines; Suriname; Trinidad & Tobago; United States of America; Uruguay; Venezuela.


ASIA (44)—Afghanistan; Armenia; Azerbaijan; Bahrain; Bangladesh; Bhutan; Brunei; Cambodia; China; East Timor; Georgia; India; Indonesia; Iran; Iraq; Israel; Japan; Kazakhstan; Kuwait; Kyrgyzstan; Laos; Lebanon; Malaysia; Mongolia; Myanmar; Nepal; North Korea; Oman; Pakistan; Philippines; Qatar; Saudi Arabia; Singapore; South Korea; Sri Lanka; Syria; Taiwan; Tajikistan; Thailand; Turkmenistan; U. A. Emirates; Uzbekistan; Vietnam; Yemen.


EUROPE (43)—Albania; Austria; Belarus; Belgium; Bosnia; Bulgaria; Croatia; Cyprus; Czech Republic; Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Iceland; Ireland; Italy; Kosovo; Latvia; Liechtenstein; Lithuania; Luxembourg; Macedonia; Malta; Moldova; Montenegro; Netherlands; Norway; Poland; Portugal; Romania; Russia; Serbia; Slovakia; Slovenia; Spain; Sweden; Switzerland; Turkey; Ukraine; United Kingdom.


OCEANIA (2)—Australia; New Zealand.

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Honohan, I., Rougier, N. Global Birthright Citizenship Laws: How Inclusive?. Neth Int Law Rev 65, 337–357 (2018). https://doi.org/10.1007/s40802-018-0115-8

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