1 Birthright citizenship
Citizenship should indicate a genuine link between a state and a person. This doctrine was famously formulated by the International Court of Justice in its 1955 Nottebohm decision:
According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties (ICJ Reports 1955 (4), p. 23).
The citizenship law of a state provides rules determining under which conditions the citizenship of the state involved is attributed by operation of law to persons who are deemed to have a genuine link with this state or can be acquired, by registration, declaration or by naturalisation, by persons who claim that they have a genuine link with a country, based on birth, marriage, residence, etcetera. Citizenship laws also specify how citizenship is lost, automatically, by voluntary renunciation, or by withdrawal (see De Groot and Vink 2010 for a comparative overview on the loss of citizenship).
In line with the Universal Declaration of Human Rights, Art. 15 (1), everyone is entitled to a nationality. However the Universal Declaration does not indicate which conditions entitle a person to a certain citizenship (see Marescaux 1984 : 18-24). The fact that most, if not all, citizenship laws typically start with setting out the rules of attribution of citizenship at birth, and only later on in these documents specify rules concerning, for example, declaration and naturalisation procedures, and loss of citizenship, signifies a hierarchy of importance. Birthright citizenship is the main allocation mechanism to ensure that everybody is a citizen of at least one state. Within the international state system, citizenship laws, and specifically the birthright provisions, function as a key classifying mechanism and they determine, in principle for all persons born into this world, to which state each person ‘belongs’. In practice this system is not without significant anomalies, as indicated by the phenomena of statelessness (no citizenship) and multiple citizenship (two or more citizenships). Yet within the current system, where each state is sovereign to determine its own citizenry, the global set of birthright citizenship regulations comes closer to meeting the ‘empty’ citizenship guarantee of the Universal Declaration than anything else.
This does not mean, of course, that birthright provisions are normatively straightforward. From the ‘genuine link’ perspective mentioned above, this system works as a self-fulfilling prophecy: the mere fact that citizenship is an exclusive social good produces the outcome where most persons will indeed remain very closely tied during their whole life to the same political community to which they were ‘allocated’ at birth. Even in today’s mobile and globalised world, most people die in the same country in which not only they are born, but their parents as well. From a more abstract normative point of view, however, this distribution may appear relatively arbitrary, in the sense that the place where one happens to be born, or the citizenship that one’s parents happen to have, determine the fundamental status of one’s citizenship, usually for the remainder of one’s life. Given that citizenship is an instrument of social closure, in terms of determining access to the scarce social goods of welfare and security, the consequences of the accidental circumstances of birth, or ‘the birthright lottery’, can hardly be overstated (Shachar 2009).
Rather than a normative discussion of principles of birthright citizenship, however, this study aims to present a comparative analysis of the rules across European countries on the acquisition of citizenship by virtue of birth, either by descent from a citizen or by birth at the territory of a state. Systematic comparative analysis of existing rules is a basis for informed debate on the underlying principles. The study also aims to present legislative trends during
RSCAS/EUDO-CIT-Comp. 2010/8 - © 2010 Authors