“Everyone has the right to a nationality”

Jus Soli: A miraculous solution to prevent statelessness?

9 April 2015 | Charline Becker, Hungarian Helsinki Committee

Granting nationality at birth to children born on the territory of a country – the “jus soli” principle – is often seen as an effective tool to prevent statelessness. Jus soli has been hardly used in most European countries for centuries, but in recent decades, an increasing number of European states have introduced limited and/or conditional jus soli provisions in their law. This blog piece tries to explore the impact of this development on statelessness prevention and what Europe can learn from other regions in this respect.

The American continent has often been designated as the leading continent in the fight against statelessness. As recently examined on this blog, it could soon become the first continent to eradicate statelessness, and the main reason for this achievement would lie in two words: Jus Soli. Built on immigration, almost all American countries, from the US to Argentina, have generous jus soli provisions in their law, essentially granting nationality to all children born on their territory (with the usual exception of diplomats’ children and sometimes transiting migrants’ children).

Based on this example, jus soli is frequently referred to as the miraculous solution to solve statelessness and ensure every child a nationality. Even if absolute jus soli no longer exists anywhere in Europe since its abolition in Ireland in 2004, an increasing number of countries have included limited jus soli provisions in their nationality laws, including where children would otherwise be born stateless. These dispositions also facilitate the inclusion of migrants’ children, and taken together, are important steps towards the eradication of statelessness in Europe. However, it needs to be highlighted that jus soli itself cannot prevent all statelessness cases, and that it would be misleading to rely solely on this remedy. Jus soli provisions may contain legal gaps and may not be properly implemented in practice, therefore it should be supported by other strong safeguards against statelessness.

The limitations of jus soli provisions alone (in isolation) are evident in the fact that several thousands of persons born in the Americas still find themselvesin a precarious legal situation, without an established nationality. The best known example of a statelessness situation in the continent is of course the tragic condition of Dominicans of Haitian descent in the Dominican Republic, where the government is using the “exception” in jus soli law (applicable to children of transiting migrants) to arbitrarily and illegally deprive several thousands of Dominican nationals of their nationality. This is a blatant example of an intentionally created, discrimination-based statelessness situation.

But this is not the only challenge the continent has to deal with. Even if it doesn’t immediately result in statelessness, problems related to birth registration poison the life of thousands persons in several countries. Born outside medical institutions, and thus not registered at birth, children may be deprived of fundamental rights, like the right to study or to healthcare. Their situation is worsened when they migrate (often in an irregular manner) to other countries to work; there they find themselves in irresolvable situations. This problem affects for example the Chiriticos (native indigenous Panamanians working in Costa Rica) and certain Mexican ethnic groups (like the oaxaqueños), who are often called the “doubly invisible”, in reference to their situation of lacking a legal status in the country where they live and lacking any proof of their identity or nationality from the country where they were born (and of which they – in principle – acquired the nationality at birth).

Several American countries also lack proper safeguards against statelessness because of the loss of nationality, especially in case of nationality acquired by naturalization. Spending a few years abroad (4 in Mexican law for example) can be enough to lose one’s nationality (acquired through naturalization), with no safeguard for those who would thus become stateless. Finally, some problematic practices (contrary to national law but still applied by authorities) have also been reported. In Ecuador, for example, some state officers used the argument a few years ago that the place of conception, and not the place of birth, has to be taken into account when applying jus soli provisions to irregular migrants’ children (an interpretation without any legal fundament and no longer applied).

These problems do not overshadow the useful efforts made by several American countries in recent years, nevertheless they highlight the fact that generous jus soli provisions do not, per se, guarantee a nationality to everybody in practice.

In Europe, 8 countries (Belgium, Finland, France, Greece, Italy, Netherlands, Spain and the United Kingdom) have strong jus soli dispositions, where children born from foreign parents can acquire nationality quite easily (for example, in France, with a 5 years residency condition), and seventeen states have safeguards allowing otherwise stateless children to acquire the nationality when they are born in the territory. However, gaps and problems remain. For example in Norway, Cyprus, Albania and Romania there are no safeguards at all for otherwise stateless children born on the territory.

In Germany, by way of further example, a specific legal act of 1977 transposed the provisions of the 1961 Convention into national law (instead of the Citizenship Act), including the safeguards for otherwise stateless children born in the country. The country also introduced in 2000 (after long debates) limited jus soli provisions in its nationality law, requiring from the parents 8 years of lawful residency in the country in order for their child to receive German nationality at birth, based on jus soli.  Statistics confirm though that neither the original safeguard managed to effectively prevent statelessness in recent decades, nor the introduction of jus soli improved significantly the overall picture. According to the German Federal Statistical Office, 14 649 stateless persons lived in Germany at the end of 2014, a quarter (!) of whom were born in the country.

Finally, another important problem existing in Europe against which jus soli is often ineffective is the problem of birth registration, disproportionally affecting Roma, Ashkali and Egyptian minorities in the countries of the former Yugoslavia and also in Italy. Undocumented parents (for different reasons, mainly related to the dissolution of Yugoslavia), living in communities, cannot register their children born at home and not in medical institutions. Even if this does not render the children stateless, it places them in a vulnerable situation and at a “high risk of statelessness”. Italian law includes a seemingly generous jus soli provision that grants nationality to all children born in the country who would otherwise be stateless. But in practice, this procedure hardly applies to Roma stateless children, as their birth is often not properly registered and it is difficult to establish – especially in lack of clear procedural guidance and safeguards – who would be “otherwise stateless” (see more about this on the ENS blog here).

We can conclude that jus soli is an effective way to confer nationality in an inclusive manner and to strengthen prevention measures against statelessness at birth. Introducing jus soli-related provisions and safeguards also reflects the way in which European societies have changed in recent decades, and the important role immigration now plays in many countries of the continent. In this respect, Europe can learn a lot from the experiences of the Americas. At the same time, it also would be dangerous to consider jus soli in itself as the ultimate solution to end statelessness. Either conditional or unconditional, jus soli provisions – or their implementation in state practice – often leave gaps that create or maintain statelessness situations at birth.

The fight against statelessness requires states to use more complex and targeted tools, not only pertaining to the acquisition of nationality at birth, but also to the loss or deprivation of nationality as well as directly tackling situations of discrimination. In brief: jus soli is a useful tool but not a magic wand that clears away statelessness.

 

Charline Becker is an intern with the Hungarian Helsinki Committee and a former intern with the UNHCR in Costa Rica.

Register now for the European Network on Statelessness conference “None of Europe’s Children Should be Stateless” which will take place in Budapest on the 2nd and 3rd June 2015. More information is available here.

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