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Jus sanguinis

Jus sanguinis (Latin: right of blood) is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state. Children at birth may automatically be citizens if their parents have state citizenship or national identities of ethnic, cultural, or other origins.[1] Citizenship can also apply to children whose parents belong to a diaspora and were not themselves citizens of the state conferring citizenship.[citation needed] This principle contrasts with jus soli (Latin: right of soil).[2]

Modern development

At the end of the 19th century, the French-German debate on nationality saw the French, such as Ernest Renan, oppose the German conception, exemplified by Johann Fichte, who believed in an "objective nationality", based on blood, race or language. Renan's republican conception, but perhaps also the presence of a German-speaking population in Alsace-Lorraine, explains France's early adoption of jus soli.

Mixed standards

Many nations have a mixture of jus sanguinis and jus soli, including the United States[3] Canada, Israel, Greece, the Republic of Ireland, and recently Germany. Today French nationality law narrowly applies jus sanguinis, but it is still the most common means of passing on citizenship in many continental European nations.

Complications due to imposed boundaries

Some modern European states which arose out of the dissolved Austro-Hungarian or Ottoman empires have huge numbers of ethnic populations outside of their new 'national' boundaries, as do most of the former Soviet states. Such long-standing diasporas do not conform to codified 20th-century European rules of citizenship.

In many cases, jus sanguinis rights are mandated by international treaty, with citizenship definitions imposed by the international community. In other cases, minorities are subject to legal and extra-legal persecution and choose to immigrate to their ancestral home country. States offering jus sanguinis rights to ethnic citizens and their descendants include Italy, Greece, Turkey, Bulgaria, Lebanon, Armenia and Romania. Each is required by international treaty to extend those rights.[citation needed]

Jus sanguinis states today

  •  Austria: Austrian nationality law
  •  Armenia: Armenian nationality law
  • Brazil
  •  Canada: Under Canadian nationality law any person born to a Canadian citizen parent is automatically a Canadian citizen.[4] An exception to this was introduced in 2009 to limit citizenship by descent to one generation born outside Canada: those born outside Canada within one generation of a native-born or naturalized citizen parent are Canadian citizens by descent, but their children are no longer granted citizenship by descent.[5]
  •  China: Nationality law of the People's Republic of China
  •  Colombia: Colombian nationality law
  •  Czech Republic
  •  Denmark: Danish nationality law
  •  Estonia: Article 8 of Estonian constitution states every child with one parent who is an Estonian citizen shall have the right, by birth, to Estonian citizenship.
  •  Finland: Finnish nationality law
  •  Germany: Article 116(1) of the German Basic Law confers, within the confines of the laws regulating the details, a right to citizenship upon any person who is admitted to Germany (in its borders of 1937) as "refugee or expellee of German ethnic origin or as the spouse or descendant of such a person." At one time, ethnic Germans living abroad in a country in the former Eastern Bloc (Aussiedler) could obtain citizenship through a virtually automatic procedure.[6] Since 1990 the law has been steadily tightened to limit the number of immigrants each year. It now requires immigrants to prove language skills and cultural affiliation. Article 116(2) entitles persons (and their descendants), who were denaturalised by the Nazi government, to be renaturalised if they wish. Those among them who took their residence in Germany after May 8, 1945, are automatically to be considered as Germans. Both regulations, (1) and (2), provided for a considerable group of Poles and Israelis, residing in Poland and Israel, who are concurrently Germans.
  •  Haiti: Every child born to a Haitian father or mother, no matter where he or she was born, is Haitian by the Haitian Constitution. This has been a big issue in the current Dominican nationality law; because of this and other factors, illegal migrants' children born in the DR of Haitian origin are considered non-Dominicans, and therefore Haitians.
  •  Hungary: A person acquires Hungarian citizenship at birth if at least one parent is a Hungarian citizen. The place of birth is irrelevant. Furthermore, Section 4(3) of the Act on Nationality permits ethnic Hungarians (defined as persons "at least one of whose relatives in ascendant line was a Hungarian citizen") to obtain citizenship on preferential terms after one year of residence. In addition, the "Status Law" of 2001 grants certain privileges to ethnic Hungarians living in territories that were once part of the Austro-Hungarian Empire. It permits them to obtain an identification card but does not confer the right to full Hungarian citizenship. According to the latest Citizenship Law adopted in 2010, anybody, possessing certain evidences (certificates, documents) of his or her Hungarian roots from around the World can apply for Hungarian citizenship. The interview is led in Hungarian either in Hungary or at one of the Consulates abroad.
  •  Iceland: Icelandic nationality law
  •  India: A child born in India must have at least one parent who is an Indian citizen to be conferred citizenship. Earlier, people born in India were given citizenship regardless of the citizenship held by parents, but this was changed on 3 December 2004, in response to illegal immigration from Bangladesh. Persons with at least one Indian grandparent may apply for a Person of Indian Origin card, provided that neither the applicant nor any ancestor has ever been a citizen of Pakistan, Bangladesh, Nepal, Sri Lanka, Afghanistan, or China. The government may add other countries to the list. This card is a travel document and permits the holder to enter and stay in India without a visa, work, start a business, own land, and attend educational institutions, but it does not give the right to vote or hold office. In addition, persons of Indian origin who are nationals of countries not on the list may apply for Overseas citizenship of India, which confers similar rights and also permits the holder to apply for full Indian nationality after one year of residence.
  •  Ireland: Under Irish nationality law, any person with an Irish grandparent can become an Irish citizen by being registered in the Foreign Births Register at an Irish embassy or consular office, or at the Department of Foreign Affairs in Dublin. Such an individual may also pass his entitlement to Irish nationality on to his children by registering in the Foreign Births Register, provided he or she registered as an Irish citizen with the Foreign Births Register before the birth of those children. The minister may also waive the usual requirements for naturalisation as an Irish citizen for those of "Irish descent or Irish associations" although this power is rarely used.
  •  Iran: According to the Iranian nationality law the following persons are considered to be Iranian subjects: (1) All persons residing in Iran except those whose foreign nationality is established; the foreign nationality of such persons is considered to be established if their documents of nationality have not been objected to by the Iranian Government. (2) Those born in Iran or outside whose fathers are Iranian. (3) Those born in Iran of unknown parentage.(4)Persons born in Iran of foreign parents, one of whom was also born in Iran. (5) Persons born in Iran of a father of foreign nationality who have resided at least one more year in Iran immediately after reaching the full age of 18; in other cases their naturalization as Iranian subjects will be subject to the stipulations for Iranian naturalization laid down by the law. (6) Every woman of foreign nationality who marries an Iranian husband. (7) Every foreign national who has obtained Iranian nationality.[7]
  •  Israel: Israeli nationality law confers citizenship upon all children of Israeli citizens born in Israel, as well as the first generation of descendants of Israeli expatriates living abroad.
  •  Italy: Italian nationality law
  •  Japan:[8] Japanese nationality law
  •  Malta: Maltese nationality law grants citizenship to any person descended from "an ascendant who was born in Malta of a parent who was also born in Malta."
  •  Mexico The Mexican Constitution (Article 30) indicates that Mexicans are also persons born abroad, to a parent or parents who at that time were Mexicans born in Mexican territory. Also, a person born abroad is also Mexican, if at the time of birth either or both parents were Mexicans by naturalization. Mexico’s Constitution considers them Mexicans by birth.
  •  Norway: Norwegian nationality law
  •  Nigeria: According to the Nigerian Constitution, Chapter 3, section 25 1C
  •  Philippines: The Philippine nationality law is based upon the principles of jus sanguinis (Latin: right of blood) and therefore descent from a parent who is a citizen or national of the Republic of the Philippines is the primary method of acquiring Philippine citizenship.
  •  Poland: The definition of Polish citizenship has been based for years on article 34 of the Polish Constitution; this article is based on a jus sanguinis right to citizenship.[9] Moreover, any child born by Polish parent(s) is a de jure citizen of Poland. In 1967–1968 the Communist State issued to Jews emigrating from Poland to Israel, instead of passports, a so-called travel document which granted them the right to exit Poland but not of re-entering it, in effect taking away their Polish citizenship on the assumption that, in emigrating or traveling to Israel, they renounced it themselves. In a 2005 verdict, the Supreme Administrative Court of Poland ruled that this action was illegal based on the state of law at that time. Consequently, it is now assumed the Jews who emigrated after 1968 have remained Polish citizens and their citizenship will be certified on request.[10]
  •  Romania: Romanian nationality law
  •  Slovakia: Persons with at least one Slovak grandparent and "Slovak cultural and language awareness" may apply for an expatriate identity card entitling them to live, work, study and own land in Slovakia. Expatriate status is not full citizenship and does not entitle the holder to vote, but a holder who moves his or her domicile to Slovakia may obtain citizenship under preferential terms. Slovakia grants full Slovak citizenship to children of Slovak parents (one or both parents) irrespective of the place of birth.
  •  South Korea: South Korean nationality law
  •  Sweden: Swedish nationality law
  •   Switzerland: Swiss nationality law is exceptionally restrictive: someone who was born in Switzerland and has spent their entire life there has no automatic right to Swiss citizenship if neither of their parents are Swiss citizens, even if their parents are permanent residents or have themselves spent their entire lives in Switzerland. In fact, the citizenship criteria are simpler for a foreigner with no previous ties to Switzerland who marries a Swiss citizen, than for people born and raised in Switzerland but with foreign parents. Due to Switzerland's high immigrant population, there are more than a million people who were born and have spent their entire lives in Switzerland but are not Swiss citizens due to their parents being immigrants. Some Swiss-born third-generation immigrants even have Swiss-born parents but are not Swiss citizens if neither of their parents have naturalised. To obtain Swiss citizenship, people in this position must undergo naturalisation proceedings, which have a high bar to satisfy the "integration" criterion. The unusual rules hit international headlines in 2017 when a woman born in Switzerland to Turkish parents, who is a native Swiss-German speaker and has spent her entire life in Switzerland, had her citizenship application denied by the local municipality on "integration" grounds as she could not name enough Swiss mountains, cheeses and retail brands, and was deemed not to have gone skiing often enough.[11] The decision was overruled by the cantonal government several months later.[12] In 2017, Swiss voters in a nationwide referendum agreed to relax the citizenship criteria for third-generation immigrants: although they will still not be Swiss citizens at birth and will need to apply for citizenship, they will no longer have to take naturalisation tests or interviews if their parents and grandparents are long-time permanent residents.[13][14]
  •  Thailand: Thai nationality law
  •  Tunisia: When one of the parents is Tunisian, a child is considered Tunisian regardless of the child’s place of birth or whether the child has acquired the nationality of another country. Children with at least one Tunisian parent, no matter where they are born, are considered Tunisian citizens, and must travel to and from Tunisia only with a Tunisian passport.
  •  Ukraine: Article 8 of the Law on Citizenship of Ukraine permits any person with at least one Ukrainian grandparent to become a citizen upon renunciation of the former nationality.
  •  United Kingdom: By birth abroad, which constitutes "by descent" if one of the parents is a British citizen otherwise than by descent (for example by birth, adoption, registration or naturalisation in the UK). British citizenship by descent is only transferable to one generation down from the parent who is a British citizen otherwise than by descent, if the child is born abroad.
  •  United States: United States nationality law states that a child born abroad is given United States citizenship if at least one parent is a citizen or national, subject to certain conditions.[15]

Leges sanguinis states today

Many countries provide citizenship on preferential terms to individuals with ethnic ties to these countries (so-called leges sanguinis):

  •  Afghanistan: Connection to the Afghan diaspora. There have been controversial proposals to people of Pashtun origin.
  •  Armenia: Article 14 of the Constitution of the Republic of Armenia (1995) provides that "individuals of Armenian origin shall acquire citizenship of the Republic of Armenia through a simplified procedure."[16] This provision is consistent with the Declaration on Independence of Armenia, issued by the Supreme Soviet of the Republic of Armenia in 1989, which declared at article 4 that "Armenians living abroad are entitled to the citizenship of the Republic of Armenia".
  •  Bulgaria: Article 25 of the 1991 constitution specifies that a "person of Bulgarian origin shall acquire Bulgarian citizenship through a facilitated procedure." Article 15 of the Law on Bulgarian Citizenship provides that an individual "of Bulgarian origin" (ethnicity) may be naturalized without any waiting period and without having to show a source of income, knowledge of the Bulgarian language, or renunciation of his former citizenship. This approach has been a tradition since the new constitutional foundation of Bulgaria in 1879, following the liberation from Ottoman yoke in 1878, when large numbers of ethnic Bulgarians remained outside of the state borders. Bulgaria and Greece were subject to a population exchange following the Second Balkan War. The conditions of the treaty settlement mandated that they accept individuals claiming respective ethnic origin.
  •  Croatia: Article 11 of the Law on Croatian Citizenship allows emigrants and their descendants to acquire Croatian nationality upon return, without passing a language examination or renouncing former citizenship. In addition, Article 16 allows ethnic Croats living outside Croatia to "acquire Croatian citizenship" by making a written declaration and by submitting proof of attachment to Croatian culture.
  •  Finland: Finnish law provides a right of return to ethnic Finns from the former Soviet Union, including Ingrians. Applicants must now pass an examination in one of the official languages of the country, Finnish or Swedish. Certain persons of Finnish descent who live outside the former Soviet Union also have the right to establish permanent residency, which would eventually entitle them to qualify for citizenship.
  •  Greece: Ethnic Greeks can obtain Greek citizenship by two methods under the Code of Greek Nationality. Article 5 allows ethnic Greeks who are stateless (which, in practice, includes those who voluntarily renounce their nationality) to obtain citizenship upon application to a Greek consular official. In addition, ethnic Greeks who join the armed forces acquire automatic citizenship by operation of Article 10, with the military oath taking the place of the citizenship oath. This position arises from the fact that approximately 85% of known ethnic Greeks were outside the boundaries when the country was formed, and 40% remained outside the final boundaries at the beginning of World War I. Most were de jure stripped of their host country citizenship with the outbreak of war if the host country was at war with Greece. In the late 19th century, Greece had a wider diaspora because of poverty and limited opportunities.
  •  Ireland While the child or a grandchild of an Irish citizen parent is automatically Irish, Section 16(a) of the Irish Nationality and Citizenship Act permits the Minister of Justice, at their discretion, to waive the residence requirements for a person "of Irish descent or associations".
  •  Israel: The Law of Return confers an automatic right to citizenship on any immigrant to Israel who is Jewish by birth or conversion, or who has a Jewish parent, grandparent or spouse or who is the spouse of a child of a Jew or the spouse of a grandchild of a Jew. Certain exceptions can be made for those considered by the Minister of Interior to be a threat to the welfare or security of the state. Israeli law also recognizes the descendants of Israeli emigrants living abroad as Israelis; this applies only to the first generation born abroad. All other immigrants can be naturalized as citizens after five years' of residency and acquisition of a basic knowledge of Hebrew.
  •  Italy: The nationality law of Italy bestows citizenship jure sanguinis. There is no limit of generations for the citizenship via blood. However, the first citizens of the modern Italian state were alive on 17 March 1861 when the state was officially formed, and for this reason all claims of Italian citizenship by jure sanguinis must stem from an ancestor who was living after 16 March 1861. Each descendant of the ancestor through whom citizenship is claimed jure sanguinis could pass Italian citizenship to the next generation only if this descendant was entitled to Italian citizenship at the time of the birth of the next person in the line. So if any person in the line lost the Italian citizenship and then had a child, that child did not inherit Italian citizenship jure sanguinis, except if the child could inherit the citizenship from the other parent. Cases of dual citizenship were possible, which is to say, for example, that a person in the line could have had Italian and Canadian citizenship concurrently. Minor children of Italian citizens were at risk of losing Italian citizenship if the child's parent naturalized in another country, unless the child was subject to an exception to this risk—and children born and residing in a country where they held dual citizenship by jus soli were subject to such an exception since 1 July 1912. Until 1 January 1948, Italian law did not generally permit women to pass on citizenship. Persons born before that date are in most cases not Italian citizens jure sanguinis if their line of descent from an Italian citizen depends on a female at some point before 1948. On several occasions, this limitation of deriving Italian citizenship only from fathers before 1948 has been successfully challenged in court.
  •  Kiribati: Articles 19 and 23 of the constitution provides, "Every person of I-Kiribati descent... shall... become or have and continue to have thereafter the right to become a citizen of Kiribati.... Every person of I-Kiribati descent who does not become a citizen of Kiribati on Independence Day... shall, at any time thereafter, be entitled upon making application in such manner as may be prescribed to be registered as a citizen of Kiribati."
  •  Liberia: the Liberian constitution allows only Negros (regardless of cultural or national affiliation) to become citizens, though people of other races may live in Liberia as permanent residents.[17]
  •  Lithuania: The Constitution of Lithuania grants a right to citizenship to foreigners of ethnic Lithuanian origins.[18]
  •  Rwanda: The Rwandan constitution provides that "[a]ll persons originating from Rwanda and their descendants shall, upon their request, be entitled to Rwandan nationality."
  •  Serbia: Article 23 of the 2004 citizenship law provides that the descendants of emigrants from Serbia, or ethnic Serbs residing abroad, may take up citizenship upon written declaration.
  •  Spain: A Spanish law passed in 2015 allows individuals who can prove descent from the Sephardic Jews who were exiled in 1492 following the Alhambra Decree and who can show a "special link" to Spain to apply for dual citizenship. Spain had previously allowed application for such individuals but had required that they give up their citizenship from their other country. The new law has no such requirement.[19]
  •  South Korea: South Korean nationality law grants special status to ethnic Koreans and their descendants in the Korean diaspora. Under the Constitution of South Korea, North Korea is part of Republic of Korea. Therefore, North Korean citizens are also recognized as South Korean nationals. All North Koreans of good conduct are granted citizenship upon arrival to South Korea.
  •  Turkey: Turkish law allows persons of Turkish origin and their spouse and children, to apply for naturalization without the five-year waiting period applicable to other immigrants. Turkey and Greece reciprocally expelled their minorities in the early 1920s after World War I. They were mandated by international treaty to accept incoming populations as citizens based on ethnic background.

See also

Sources

  1. ^ Kostakopoulou, Dora (2008). The Future Governance of Citizenship. Cambridge University Press. pp. 26–27.
  2. ^ Vink, Maarten Peter; de Groot, Gerard-René (November 2010). "Birthright Citizenship: Trends and Regulations in Europe" (PDF). Florence: European University Institute. p. 35.
  3. ^ Gansallo, Ayodele; Bernstein-Baker, Judith (2016). Understanding Immigration Law and Practice. Wolters Kluwer Law & Business. p. 570. ISBN 9781454850380.
  4. ^ Branch, Government of Canada, Immigration, Refugees and Citizenship Canada, Communications. "Acquisition of citizenship". www.cic.gc.ca. Archived from the original on 10 March 2017. Retrieved 1 March 2017.
  5. ^ Branch, Government of Canada, Immigration, Refugees and Citizenship Canada, Communications. "Changes to citizenship rules". www.cic.gc.ca. Archived from the original on 3 March 2017. Retrieved 1 March 2017.
  6. ^ The Federal Expellee Law (German: Bundesvertriebenengesetz), § 6, specifies that also foreign citizens of states of the Eastern Bloc (and their desdendants), who were persecuted between 1945 and 1990 for their German ethnicity by their respective governments, are entitled to become Germans. The argument was that the Federal Republic of Germany had to administer to their needs because the respective governments in charge of guaranteeing their equal treatment as citizens severely neglected or contravened that obligation.
  7. ^ "Nationality Law: Article 976". Iran Data Portal: Princeton University. 2015. Retrieved 6 October 2015.
  8. ^ "Tokyo court upholds deportation order for Thai teenager born and raised in Japan". 2016. Retrieved 6 December 2016.
  9. ^ English translation Archived 7 October 2009 at WebCite of the Polish Constitution.
  10. ^ "Emigrantom z 1968 roku zostaną zwrócone obywatelstwa" [Polish citizenship reinstated to emigrants from 1968]. Wprost (in Polish). 4 March 2008. Retrieved 6 October 2015.
  11. ^ "Das Einbürgerungs-Protokoll: Diese 92 Fragen musste Funda Yilmaz beantworten". az Aargauer Zeitung (in German). Archived from the original on 6 April 2018. Retrieved 6 April 2018.
  12. ^ agencies, swissinfo.ch and. "Decision to deny citizenship to Turkish woman reversed". SWI swissinfo.ch. Archived from the original on 7 April 2018. Retrieved 6 April 2018.
  13. ^ "Swiss vote for relaxed citizenship laws". BBC News. 12 February 2017. Archived from the original on 16 June 2018. Retrieved 6 April 2018.
  14. ^ Council, The Federal. "Federal Decree on the Simplified Naturalisation of Third-Generation Immigrants". www.admin.ch. Archived from the original on 6 April 2018. Retrieved 6 April 2018.
  15. ^ "Acquisition of U.S. Citizenship by a Child Born Abroad". travel.state.gov. Retrieved 19 March 2018.
  16. ^ "Constitution of the Republic of Armenia". International Constitutional Law Project. 5 July 1995. Retrieved 6 October 2015.
  17. ^ Tannenbaum, Jessie; Valcke, Anthony; McPherson, Andrew (2009-05-01). "Analysis of the Aliens and Nationality Law of the Republic of Liberia". Rochester, NY. SSRN 1795122.
  18. ^ "Constitution of Lithuania: Article 32(4)". International Constitutional Law Project. 25 October 1992. Retrieved 6 October 2015.
  19. ^ Chu, Henry. "Welcome home, 500 years later: Spain offers citizenship to Sephardic Jews".