Jus soli, meaning ‘right of soil’, is the right of anyone born in the territory of a state to nationality or citizenship. Also commonly referred to as birthright citizenship in some Anglophone countries, it is a rule defining a person’s nationality based on their birth in the country’s territory. Jus soli was part of the English common law, in contrast to jus sanguinis (‘right of blood’), which derives from the Roman law that influenced the civil-law systems of mainland Europe.
In 1776, when the US gained independence, citizenship was largely governed by the laws of individual states. However, there was a common understanding that citizenship could be extended to all born within US territory. The original US Constitution (ratified in 1788) recognised the concept of “natural born citizens” in Article 2. Although this term was not defined, the Constitution framers likely meant it to include both “jus soli—for persons born within the country—and jus sanguinis—for persons born outside the country to American fathers,” according to Thomas H. Lee, professor at Fordham Law School (US) (‘Natural Born Citizen’, 2017).
However, this right was not available equally to everyone. In Dred Scott v. Sandford (1857), the US Supreme Court (SCOTUS) ruled that slaves brought to the US and their descendants could not be considered citizens.
The Dred Scott decision was rectified in 1866 when Congress passed the 14th Amendment to the Constitution after the American Civil War (1861-1865) ended. The Amendment said, “All persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” However, the Amendment did not end the debate on birthright citizenship as the phrase “subject to the jurisdiction” of the US led to some uncertainty. The SCOTUS addressed this in United States v. Wong Kim Ark (1898).
Interpretations of the 14th Amendment
The case involved Wong Kim Ark, who was born in the US to Chinese parents and occasionally visited China. However, upon his return from one of these visits in 1890, he was denied entry under the Chinese Exclusion Act of 1882, which prohibited Chinese immigration into the US.
In its ruling, SCOTUS held that laws passed by Congress, such as the Chinese Exclusion Act, “cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution.” The court also said regardless of the citizenship status of Wong’s parents, he was “subject to the jurisdiction” of the US and qualified for citizenship as a child born in the country. The court concluded that “the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.”
Since then, this verdict has remained the supreme law in the United States. It will likely be Trump’s biggest obstacle to ending birthright citizenship. The SCOTUS has also reaffirmed the verdict in future decisions.
For instance, in Plyler v. Doe (1982), the court affirmed citizenship rights for children of undocumented immigrants, ruling that they have a right to education. It said that according to the 14th Amendment, there was “no plausible distinction” between immigrants who entered lawfully and those who entered unlawfully, as both were subject to the civil and criminal laws of the State they resided in.
Birthright citizenship around the world
Newborn children acquire citizenship by “right of blood” or “right of soil.” In the first case, it is based on the parents’ citizenship, and in the second case, it depends on the country of birth. In some countries, both of these principles apply. We explain these concepts in detail.
These countries grant citizenship to kids born on their soil, subject to a few other conditions.
France: At least one parent must be born in France. If both parents are foreigners, the child can get citizenship when they turn 13 if other residency conditions are met.
United Kingdom: Citizenship is granted by birth if at least one parent has permanent residence in the UK.
Cambodia: Parents must be living in the country legally at birth, for example, on a residence permit.
Pakistan: All children born in the country, apart from those of diplomats.
Germany: At least one parent has been a permanent resident for 3 years and at least 8 years before the birth of the child.
Greece: If parents are unknown or have lived in the country for at least 5 years before birth of child.
Ireland: Parents must have permanent residence in the country or have legally resided there for at least 4 years before the child is born.
Canada: Like its southern neighbour, Canada offers unrestricted jus soli citizenship. Any child born on Canadian soil, including in Canadian airspace or waters, automatically becomes a Canadian citizen, except for children of diplomats.
United States: Automatically, except for children of diplomats until January 21, 2025, when the US’s 47th President, Donald Trump, signed an executive order attempting to end birthright citizenship—a right guaranteed by the US Constitution and affirmed by the Supreme Court more than 125 years ago. However, a federal judge on Thursday (January 23) temporarily blocked President Trump’s executive order aimed at curtailing the right to birthright citizenship in the United States.
Argentina: Automatically, except for children of diplomats.
Brazil: The country offers unrestricted birthright citizenship to anyone born in the country, with no exceptions. The constitution guarantees this right to all newborns, regardless of their parents’ immigration status.
Australia: At least one parent should have permanent residency or if the child lives in Australia up to age 10.
New Zealand: At least one parent has permanent residence in New Zealand or Australia, or the child cannot get citizenship of any other country.
Conclusion
Jus soli offers a distinct path to citizenship, granting children born within a country’s borders the chance to access unique opportunities. While it is more common in the Americas, European and African nations have varied approaches, often adding restrictions.
Parents must understand each country’s laws, as birthright citizenship can come with responsibilities, including potential dual citizenship issues. As global migration evolves, jus soli policies may change, so staying informed and seeking legal guidance when necessary to maximise your child’s benefits is essential.
