So long, jus soli

President Donald Trump’s executive order to end birthright citizenship in the US has sparked several legal challenges and some anxiety among immigrant families. For nearly 160 years, the 14th Amendment of the US Constitution has established the principle that anyone born in the country is a US citizen. But as part of his crackdown on migrant numbers, Trump is seeking to deny citizenship to children of migrants who are either in the country illegally or on temporary visas. The move appears to have public backing. A poll by Emerson College suggests many more Americans back Trump than oppose him on this.

But how does this compare to citizenship laws around the world?

“It’s ridiculous. We are the only country in the world that does this with the birthright, as you know, and it’s just absolutely ridiculous,” said the 47th president of the United States as he questioned a principle that some of his opponents say lies at the very heart of what it means to be called an American. For more than 150 years, the 14th Amendment of the Constitution has granted automatic citizenship to any person born on US soil. As the courts moved to temporarily block his order, various media outlets pointed out that the president’s remarks were not entirely accurate. According to the Law Library of Congress, more than 30 countries across the world recognise birthright citizenship on an unrestricted basis — in which children born on their soil automatically acquire the right regardless of their parent’s immigration status. Unrestricted birthright citizenship applies to more than 30 countries globally. A child born in the territory of any of these countries automatically acquires citizenship of the country — known as ‘jus soli’ or birthright citizenship — without any added conditions, such as requiring parents to be citizens or permanent residents. Strikingly, nearly all of those countries recognizing unrestricted birthright citizenship are in the Western Hemisphere, in North, South, and Central America.

The vast majority of countries in the rest of the world either do not recognise the ‘jus soli’ (Latin for ‘right of soil’) principle on which unrestricted birthright citizenship is based or if they do, do so only under certain circumstances — often involving the immigration status of the newborn child’s parents. In North America, the ‘right of soil’ was introduced by the British via their colonies, according to “The Evolution of Citizenship” study by Graziella Bertocchi and Chiara Strozzi. The principle had been established in English law in the early 17th century by a ruling that anyone born in a place subject to the king of England was a “natural-born subject of England.” When the US declared independence, the idea endured and was used – ironically for the departing Brits – to keep out foreign influence, such as in the Constitution’s requirement that the President be a “natural-born citizen” of the US. Still, it was not until the 1820s that a movement led by Black Americans — whose citizenship was not explicitly guaranteed at the time — forced the country to think seriously about the issue. The principle would be debated for decades until it was finally made law in 1868 after the Civil War, which resulted in the freedom of enslaved Black Americans, and formalised by the 14th Amendment, which states: “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.” But it wasn’t just the British in North America. Other European colonial powers introduced the idea in countries across Central and South America, too. Driving the practice in many of these areas was an economic need. Populations in the Western Hemisphere were at the time much smaller than in other parts of the world that had been colonised and settlers often saw bestowing citizenship as a way to boost their labour forces. Later, just as the idea of the ‘right of soil’ was turned against the Brits in North America, a similar reversal of fortunes took place in the European colonies to the south. In Latin America, many newly formed countries that had gained independence in the 19th century saw ‘right of soil’ citizenship as a way to build national identity and thus further break from their former colonial rulers. Without that principle, some experts also reasoned, Spain could have claimed jurisdiction over people with Spanish ancestry who were born in former colonies like Argentina.

So what about all those countries in other parts of the world that were also colonised by Europeans but today do not recognise the ‘right of soil’?

Many of them — particularly those in Asia and Africa – also turned to citizenship laws to send their former rulers a message. However, in most cases, these countries turned toward a different type of birthright citizenship that has its roots in European law: jus sanguinis (‘right of blood’), which is generally based on one’s ancestry, parentage, marriage or origins. In some cases, this system was transplanted to Africa by European powers that practiced it, Strozzi and Bertocchi wrote in their study. But in other cases newly independent countries adopted it on their own accord to build their nations on an ethnic and cultural basis. Doing so was a relatively easy change. As has been pointed out by experts, in many of these places the ‘right of soil’ had never become as ingrained as it had in the Americas, partly because their large native populations had meant the colonisers did not need to boost their workforces. Jettisoning the ‘right of soil’ sent a message to the former colonists that “they didn’t want to hear any more of it,” said Bertocchi, while embracing the ‘right of blood’ ensured descendants of colonisers who remained in Africa would not be considered citizens. “They all switched to jus sanguinis,” said Bertocchi. “It seems paradoxical, right? This time, to build a national identity, you needed to adopt this principle.”

In recent years, several countries have revised their citizenship laws, tightening or revoking birthright citizenship due to concerns over immigration, national identity, and so-called “birth tourism” where people visit a country in order to give birth. India, for example, once granted automatic citizenship to anyone born on its soil. However, over time, concerns over illegal immigration led to restrictions. Since December 2004, a child born in India is only a citizen if both parents are Indian, or if one parent is a citizen and the other is not considered an illegal migrant. Many African nations, which historically followed ‘jus soli’ under colonial-era legal systems, later abandoned it after gaining independence. Today, most require at least one parent to be a citizen or a permanent resident. Citizenship is even more restrictive in most Asian countries, where it is primarily determined by descent, as seen in nations such as China, Malaysia, and Singapore. Europe has also seen significant changes. Ireland was the last country in the region to allow unrestricted ‘jus soli’. It abolished the policy after a June 2004 poll, when 79 per cent of voters approved a constitutional amendment requiring at least one parent to be a citizen, permanent resident, or legal temporary resident. The government said change was needed because foreign women were travelling to Ireland to give birth in order to get an EU passport for their babies. Over the years, the colonial powers that once followed the ‘right of soil’ have since moved either to abolish or restrict its use, much like some of their former colonies. In the UK, it was scrapped by the British Nationality Act of the 1980s, which put in place several conditions to qualify for British citizenship – including some that relate to parentage, as in jus sanguinis. Experts say the driving force for those changes – in Britain and elsewhere in Europe – was the concern that migrants could take advantage of the system by entering the country with the intent of giving birth to a child with automatic citizenship. In other words, the same concern is being voiced by many of Trump’s supporters in today’s United States.

Views expressed are personal