SSRN Id3958442
SSRN Id3958442
SSRN Id3958442
SCOTT TITSHAW
I. INTRODUCTION .......................................................................... 2
II. DEFINING CITIZENSHIP ....................................................................... 6
III. DEFINING INHERITANCE AND FAMILIAL STATUS .................................................. 8
A. Reacting to Modem DNA Parentage Testing Technology ............................ 11
B. Reacting to Assisted Reproductive Technology and Surrogacy....................12
C. The Twist of Two-Tiered Systems ................................................................ 14
IV.INHERITED CITIZENSHIP LAWS AROUND THE WORLD ........................................ 17
A. Primary Inherited Citizenship Systems..........................................................20
B. Dual Birthright Citizenship Systems ............................................................. 26
C. Hybrid Citizenship Systems...........................................................................30
1. Countries Limiting Birthplace Citizenship Based on Parental Status.....31
2. Countries Adding Limited Birthplace Citizenship Based on Parental
Status................................................................................. ........... .35
V. PURPOSES OF PROPERTY INHERITANCE .............................................................. 37
* Associate Professor of Law at Mercer University School of Law. I thank Rainer Baub6ck, Cos-
tica Dumbrava, and Iseult Honohan for reading and providing excellent comments on an earlier draft of
this paper. I thank the European University Institute's GLOBALCIT project, which was integral to my
comparative citizenship research. 1also thank the Fulbright Commission and the European Commission's
Directorate General for Education and Culture for the Fulbright-Schuman Fellowship that supported the
first step of my work on this topic. Finally, I thank Steve Murray for his patience and support and Virginia
L. Titshaw for teaching me the meaning and importance of family since the day I was born.
1
58 STAN. J. INT'L L. 1 (2022)
I. INTRODUCTION
Leaders ranging from Churchill and Hitler to Obama and Putin have inspired
personal sacrifice by appealing to citizens' love of and duty to the "fatherland," the
"mother country," or "the homeland." Even the word describing this, "patriotism,"
evokes family ties. Of course, this all makes sense. The ideas of family and home
have had primal emotional resonance since people began protecting their families
and homes from outsiders, long before states were invented. The metaphors also are
apt because the actual ties binding citizens most profoundly to one another and to the
state are often those of family or of place, usually both.
Most of us are born, live, and die in the country where our parents were born.
We become citizens on the day of our birth without doing anything further. Some
states consider us citizens because of where we were born, regardless of who our
parents are; others award citizenship at birth only to the children of citizen parents.2
This distinction has no practical consequence for most people, but it can be essential
to those who do not qualify in both categories. It also reveals a great deal about the
history and values of the state in question.
The most common form of citizenship acquisition stems from status as the
child of a citizen parent. In fact, citizens of virtually every nation on earth can trans-
mit citizenship status to their children.3 This inherited citizenship doctrine is a form
of descent-based citizenship transmission traditionally called jus sanguinis, Latin for
"blood-right." As its Latin moniker hints, inherited citizenship is as old as the concept
of citizenship itself.4 Yet, it raises cutting edge issues today, ranging from the mean-
ing of citizenship in a world of more convenient and affordable international trans-
portation, communication, and relocation, to the definition of parentage for children
conceived through assisted reproductive technology (ART) and surrogacy.'
This Article uses the term "inherited citizenship" rather than the more tradi-
tional terms "citizenship by descent" and "jussanguinis citizenship" to describe the
status automatically transmitted from a parent to a child at the time of birth. "Inher-
ited citizenship" clearly signals the analogy to property inheritance that is described
in detail below.6 It is more specific than "citizenship by descent," which also encom-
passes subjects generally beyond the scope of this Article such as, for example, trans-
mission of citizenship long after birth, or ethnocentric laws recognizing birthright
citizenship for distant descendants of prior citizens. 7 The termjus sanguinishas been
useful historically, but the concept of a "blood-right" to legal status is misleading in
an age of accurate DNA testing, assisted reproductive technology, surrogacy, paren-
tal presumptions, adoption, and equitable parentage. It has too often been taken liter-
ally and misused to justify a genetic essentialist view of citizenship transmission that
is exclusionary and inappropriate in modern contexts.!
U.S. citizens in 2015 was 290,749,100). Until relatively recently, a woman could gain or lose citizenship
with her marriage in many countries. Scott Titshaw, Throwing the Baby Out with the Patriarchy,33
BERKELEY J. GENDER L. & JUST. 179, 179 (2018); see Kristin A. Collins, IllegitimateBorders: Jus San-
guinis Citizenshipand the Legal Constructionof Family, Race, and Nation, 123 YALE L.J. 2134 (2014).
Of course, exceptional circumstances have occasionally created citizens in other ways. For instance, the
Fourteenth Amendment of the U.S. Constitution provided citizenship for previously enslaved non-citi-
zens, and political revolutions and shifting international boundaries quickly change the citizenship of
masses of people.
3 Jean-Frangois Mignot, By Soil and Blood: CitizenshipLaws in the World, BOOKS & IDEAS (Oct.
24, 2019), https://perma.cc/ELY5-NJYW. One very unusual exception to universal recognition of inher-
ited citizenship may be the Holy See (Vatican City), whose citizenship is based mainly on church office
or papal authorization. The World Factbook, CIA, https://perma.cc/G8TF-KLV5 (archived Feb. 16,
2022). Yet, it is unclear whether the Holy See, which has no permanent population, is a state at all.
4 Kristin Henrard, The Shifting Parametersof Nationality, 65 NETH. INT'L L. REV. 269, 273-74
(2018) (tracing ideas of citizenship from permanent settlements following the Neolithic revolution,
through ancient Greece, Rome, and the Middle Ages, into the modern era).
5 See discussion infra Part III-B.
6 See discussion infra Parts V and VI.
7 See, e.g., 8 U.S.C. § 1431 (providing automatic citizenship by descent to children born abroad
to parents, who later become U.S. citizens through naturalization prior to the children's eighteenth birth-
days, as well as to adopted children of U.S. citizens); see infra Part III (listing Chinese, French, Israeli,
and Italian examples of ethnocentric laws of citizenship by descent).
S In the past, the U.S. State Department and Canada consistently took this "law of blood" out of
context to deny citizenship to children conceived through ART. See Scott Titshaw, Sorry Ma'am, Your
Baby Is an Alien: OutdatedImmigrationRules andAssisted Reproductive Technology, 12 FLA. COASTAL
L. REv. 47, 104-05 (2010); Scott Titshaw, ART, Surrogacy, Federalism, and Jus Sanguinis Citizenship
in the US, Australia, and Canada, 3 ASIAN Y.B. HUM. RTS. & HUMANITARIAN L. 151, 160-62 (2019).
Both countries have recently changed their policy to recognize certain children whose citizen parent is
There are very few rules of law as universally recognized as inherited citi-
zenship, and global agreement on a rule of inherited citizenship is particularly re-
markable because each individual state's sovereignty is near its apex when identify-
ing its own citizens.' Whether a despot and his subjects are defining the protection
and allegiance each owes the other or most citizens in a democracy are determining
its membership criteria, outsiders have traditionally not interfered with citizenship
priorities."
As the legal philosopher Felix Cohen pointed out seventy years ago, the uni-
versal adoption of a rule likely indicates a critical mass of important reasons support-
ing it." This Article seeks to identify and understand the critical mass of important
reasons supporting inherited citizenship's universal acceptance. It also illuminates
the concept's development and manifestations in divergent contexts by exploring and
comparing its role in birthright citizenship laws around the world. Moreover, it shows
how these reasons and the history of inherited citizenship both echo the purposes and
origins of property inheritance and how both doctrines reflect family law definitions
and purposes.
Although universally recognized, inherited citizenship is not the only form
of birthright citizenship used today. There are three broad categories of birthright
citizenship systems. Most nations, including the vast majority of states in Africa,
Asia, and Europe, rely primarily on inherited citizenship to create new citizens at
birth. A smaller group of around three-dozen countries, including Brazil, Canada,
Mexico, the United States, and most other American nations, rely primarily on birth-
place citizenship (jus soli, or "law of the soil," in Latin)." Yet, all these states sup-
plement birthplace citizenship with extensive inherited citizenship rules for children
born to citizens abroad. Finally, a significant number of countries that rely primarily
on inherited citizenship also have adopted hybrid rules granting citizenship to some
additional domestically born children based upon their parents' status at the time of
their birth. This includes nations like the United Kingdom and Australia, which
not a biological parent. See Press Statement, Ned Price, Spokesperson, U.S. Dep't of State, U.S. Citizen-
ship Transmission and Assisted Reproductive Technology (May 18, 2021), https://perma.cc/9GG5-
AEFB; Government of Canada, Changes to Rules on Citizenship by Descent (July 15, 2020),
https://perma.cc/6PTA-BS8W.
9 See Convention on Certain Questions Relating to the Conflict of Nationality Laws, openedfor
signatureApr. 12, 1930, art. 1, 179 L.N.T.S. 89 ("It is for each State to determine under its own law who
are its nationals."); see also Rainer Baub6ck, Epilogue: InternationalNorms for Nationality:An Elusive
Goal?, 65 NETH. INT'L L. REv. 497, 497 (2018).
10 Of course, modern republics only indirectly reflect the will of most citizens. There have been
notorious examples of troubling abuse of this sovereignty, such as the U.S. Supreme Court's holding in
Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857) (enslaved party), superseded by constitutional
amendment, U.S. CONST. amend. XIV, that an African American man could not be a citizen, and the
German Nuremberg Laws of 1935 that stripped citizenship from Jews and others not considered to have
"German or kindred blood." See, e.g., Gesetz zur Anderung des Strafgesetzbuchs [Law to Amend the
Penal Code], June 28, 1935, RGBL I at 1146. Yet, although nationality has long been a concern of inter-
national lawyers, there are still few restrictions on state sovereignty in this area.
" Felix S. Cohen, Dialogue on PrivateProperty, 9 RUTGERS L. REv. 357, 368-69 (1954) (arguing
that the widespread and long-standing adoption of the livestock property rule of increase regarding off-
spring of livestock is owed to the fact that all important policy considerations-productivity, certainty,
efficiency, enforceability, natural habits, and fairness-support its adoption). Significantly, perhaps, the
rule of increase, like inherited citizenship, relates to parent-offspring connections.
12 Likcjus sanguinis,this Article avoids the Latin term jus soli in favor of "birthplace citizenship,"
and the term "birthright citizenship" is used here to indicate any citizenship at birth, whether based on
birthplace or inheritance.
it explores the relevance of whether the rules play a primary or supplemental role in
defining a nation's citizenry.
Some form of birthright citizenship is necessary to promote stability and in-
tergenerational continuity. Current citizens may prefer to rely exclusively on inher-
ited citizenship for that purpose if they harbor unitary ethnic and socio-religious ideas
of citizenship or desire to perpetuate privileged citizenship status to their progeny.
Most states follow this path. Yet, others do not. This Article focuses particularly on
countries that recognize both birthplace and inherited citizenship rules to isolate the
specific rationales for inheritance that are distinct from the purposes of birthright cit-
izenship generally and from the reasons for opposing birthplace citizenship. This ap-
proach suggests the important effect of inherited citizenship upon the loyalty and
civic investment of existing citizen parents, which mirror and magnify the purposes
of property inheritance. It frames citizenship as the ultimate immigration status and
underscores its importance in ensuring family unity in an increasingly global world.
The newer hybrid rules complicate these comparisons, but both they and the trend
they illuminate are also revealing.
Finally, Part VII summarizes the interlinking family concepts and purposes
of property and citizenship inheritance, provides additional context, and presents con-
clusions.
The word "citizen" is tied to both ancient and modern concepts of self-gov-
ernance through representative institutions, and it fits nicely within the framework of
modern republics, which generally treat all citizens as legal equals. However, its
meaning can be convoluted in the context of historical monarchies and modern gov-
ernments that do not recognize formal legal equality among their people.
Many concepts of citizenship, in fact, trace their origin to rules defining the
subjects of kingdoms hundreds of years ago. For instance, the origin of modern birth-
place citizenship often is traced to "subjects" of European royalty in systems orga-
nized around maximizing fealty and obedience to a sovereign rather than rights or
benefits of the subjects. A monarch would naturally be more likely to prefer uncon-
ditional birthplace membership rules in the context of "subjects" under his or her
jurisdiction, whose status provided more duties than rights.
Beyond distinctions between subjects and citizens, the terms "citizen" and
"national" sometimes are used differently. "Citizenship" describes status and rights
in terms of the particular state while "nationality" is an international law term that
20
concerns status and rights in terms of international law. In 1948, the Universal Dec-
laration of Human Rights stated that "[e]veryone has the right to a nationality" and
that "[no] one shall be arbitrarily deprived of his nationality, nor denied the right to
change his nationality."" Because nations have not always adhered to this idea, dip-
lomats and statesmen have reiterated the basic right to nationality in a number of
international conventions, including the 1954 Convention Relating to the Status of
Stateless Persons, the 1961 Convention on the Reduction of Statelessness, the 1997
European Convention on Nationality, and the 1966 International Covenant on Civil
and Political Rights, which asserts that "[e]very child has the right to acquire nation-
ality."" The consequences of statelessness-obstacles to education, healthcare, em-
ployment and freedom of movement-are so grave that the U.N. High Commissioner
for Refugees has undertaken a campaign to end statelessness by 2024.23
Some countries draw fine distinctions between "citizenship" and "national-
ity," which also "defines the status of membership to a community. ... "24 For exam-
ple, the People's Republic of China (P.R.C.) recognizes Taiwanese citizens as P.R.C.
25
"nationals," but not P.R.C. "citizens," with the additional rights citizenship entails.
The United States distinguishes between "citizens" and "nationals" born on the terri-
tory of "an outlying possession of the United States," i.e., American Samoa or the
Swains Island.26 Yet, even these status distinctions often reflect family inheritance.
Although this Article uses the terms "subject" or "national" to distinguish a given
status from that of "citizen" in a few specific instances, it generally employs the term
"citizen" despite its imprecision in order to more naturally compare and contrast his-
toric developments and the formal legal requirements for acquiring membership sta-
tus based on inheritance.
Nations also may distinguish among those they recognize as "citizens." In
addition to its distinction regarding non-resident ethnic Chinese "nationals," the
P.R.C. distinguishes political rights among native urban and rural Chinese citizens.27
These distinctions, too, reflect inherited status, since they generally stem from the
citizenship, residence, registration, and other statuses of a child's parents.28
Nigeria's 774 local governments distinguish between "indigenes" with local
ancestral roots in a particular community and "settlers" or "non-indigenes" without
such roots, no matter how long they and their families have resided in the area. 29 As
this example demonstrates, the meaning of "citizenship" in many post-colonial states
in Africa and Asia is particularly complex due to inherited boundaries drawn with
too little concern for social, ethnic, religious, or historic distinctions. Some of the
relatively young states in Africa also fail to adhere to clear legal rules in making
individual citizenship decisions or deny recognition to persons based on ethnicity,
religion, and gender. 30
Therefore, while the inherited citizenship principle may be universally rec-
ognized, the specific rules and their contexts in a state birthright citizenship regime
can differ significantly. The remainder of this Article broadly outlines general cate-
gories, comparisons, and contrasts among the various regimes, but readers should
bear the caveat above in mind.
The Federal Republic of Germany once provided citizenship for many ethnic
Germans based on their "German blood,"" a law popularly derided as the "German
Shepherd law" because granting citizenship to persons generations after their ances-
tors last set foot on German territory seemed so arbitrary that it was likened to citi-
zenship for anyone who had ever owned a German shepherd.32 This rule was a par-
ticular source of consternation for second- and third-generation non-ethnic-Germans,
who remained "foreigners" under the same German law. Although it seemed arbitrary
to many, this example also demonstrates the complexity of citizenship politics in a
dynamic world. Like multiple Koreas and Chinas, the shrunken and divided state of
postwar Germany provided an understandable reason for recognizing citizens trapped
behind moving, yet often impenetrable, borders such as those between the western
Federal Republic of Germany and its neighbors to the east.
In 2000, a reunited Germany eliminated the citizenship of most distant Ger-
man descendants and created a hybrid birthplace option for some German-born chil-
dren of long-term non-citizen residents of Germany.33 However, other countries con-
tinue to recognize very generous rules of citizenship by descent. For instance,
children born anywhere in the world with at least one Irish-born grandparent may
become citizens upon entry in Ireland's Foreign Birth Registry.34 Jews, their spouses,
children, and grandchildren born anywhere in the world may ordinarily exercise the
35
"right to return" to Israel and obtain citizenship there. The People's Republic of
36
China recognizes Chinese nationality for non-resident ethnic Chinese. French citi-
zens residing abroad can transmit citizenship through an infinite number of genera-
tions so long as the descendants register with French authorities." And Italy awards
citizenship by descent without a generational limit for descendants of emigrants from
the distant past, so long as their "latent Italian" citizenship has not been expressly
renounced.38 In theory, if Italy had been united in the fifteenth century when Christo-
pher Columbus visited the Caribbean, American descendants of any children he left
behind would be "latent Italians."
Unlike the particularly liberal citizenship regimes of these divided states and
nations that have lost significant population numbers to emigration over time, some
other countries do not even allow all parents to transmit citizenship to their children.
U.S. law has always allowed fathers to transmit citizenship to their foreign-born chil-
dren, but it denied that ability to citizen mothers until 1934.39 Today, many Muslim
states still only allow children to inherit citizenship from their fathers, not their moth-
ers, which-like the earlier U.S. requirement-results in stateless children."
Once lawmakers in a particular state decide when to recognize inherited cit-
izenship from parents to their children, definitional questions arise regarding who
count as "parents" and "children." For example, some biological parents may not be
recognized as "parents"under inherited citizenship provisions. Egypt and Iran have
recently liberalized their patrilineal citizenship laws to allow children of citizen
mothers greater citizenship opportunities.4' Yet, statelessness may still be a problem
in these countries. Muslim women have traditionally been prohibited from marrying
non-Muslim men,4 and states like Iran and Jordan still refuse to recognize such mar-
riages." Some interfaith marriages in those states may raise questions about "legiti-
macy" and rights of the couple's children."
The modern developments that have raised the most definitional questions
regarding legal parentage, by far, are the scientific advances resulting in accurate new
genetic parentage tests, assisted reproductive technology, and surrogacy, as well as
changing social mores and innovations in family law such as those related to same-
sex marriage, defacto parentage, and the legal possibility of more than two parents
(poly-parenting).1
39 Scott Titshaw, A Modest Proposal to Deport the Children of Gay Citizens, & etc.: Immigration
Law, the Defense of Marriage Act and the Children of Same-Sex Couples, 25 GEO. IMMIGR. L.J. 407,
442 (2011). Some residence conditions have been attached to this transmission. See infra text accompa-
nying note 158.
40 U.S. Dep't. of State, Bureau of Democracy, H.R. and Lab., 2020 Country Reports on Human
Rights Practices: Jordan 36 (2021); U.S. Dep't. of State, Bureau of Democracy, H.R. and Lab., 2020
Country Reports on Human Rights Practices: Kuwait 30 (2021); U.S. Dep't. of State, Bureau of Democ-
racy, H.R. and Lab., 2020 Country Reports on Human Rights Practices: Oman 13, 17 (2021).
41 Audrey Macklin, Delphine Perrin & Matthew Carrieri, Migration, Mobility, and Citizenship, 6
MIDDLE E. L. & GOVERNANCE 167, 170 (2014) (stating that Egypt became the first country in their
region to allow women to transmit citizenship to their children); U.S. Dep't. of State, Bureau of Democ-
racy, H.R. and Lab., 2020 Country Reports on Human Rights Practices: Egypt 53 (2021); U.S. Dep't. of
State, Bureau of Democracy, H.R. and Lab., 2020 Country Reports on Human Rights Practices: Iran 47,
50 (2021) (noting that a 2019 amendment of Iran's civil code allows Iranian women to transmit citizen-
ship to children upon application and approval, but fathers' children gain citizenship automatically at
birth).
42 Imen Gallala-Arndt, The Impact of Religion in Interreligious Custody Disputes: Middle Eastern
and Southeast Asian Approaches, 63 AM J. COMP. L. 829, 832 (2015); GLOBAL LEGAL RESEARCH
DIRECTORATE, LAW LIBRARY OF CONGREsS, PROHIBITION OF INTERFAITH MARRIAGE 1 (2015),
https://perma.cc/6PKQ-QEVC.
43 GLOBAL LEGAL RESEARCH DIRECTORATE, LAW LIBRARY OF CONGRESS, supra note 42; U.S.
Dep't. of State, Bureau of Democracy, H.R. and Lab., 2020 Country Reports on Human Rights Practices:
Jordan, supra note 40; U.S. Dep't. of State, Bureau of Democracy, H.R. and Lab., 2020 Country Reports
on Human Rights Practices: Kuwait, supra note 40.
44 U.S. Dep't. of State, Bureau of Democracy, H.R. and Lab., 2020 Country Reports on Human
Rights Practices: Jordan, supra note 40, at 12 (The Jordanian government has "deemed some children,
including children of unmarried women or interfaith marriages involving a Muslim woman and converts
from Islam to another religion, 'illegitimate' and denied them standard registration").
4s Scott Titshaw, ART, Surrogacy, Federalism, and Jus Sanguinis Citizenship in the US, Australia,
and Canada, 3 ASIAN Y.B. HuM. RTS. & HUMAN. L. 151 (2019) (describing these issues in three coun-
tries, including recognition of more than two parents in U.S. jurisdictions); Lois Harder, How Queerl?:
Until late in the twentieth century, the definition of "parentage" seemed sta-
ble and relatively simple. Everyone had a biological mother, who carried and gave
birth to her own genetic child. Everyone had a biological father, whose sperm was
used in conception. So long as the mother was married to one man, her husband was
presumed to be the child's father, and there was seldom clear proof to the contrary.
The primary controversy related to "illegitimate" children-those whose biological
parents were not married to each other at the time of their birth.
Things are now much more complicated. Accurate modern DNA parentage
tests have made it much easier to determine genetic parentage, clarifying factual
questions related to paternity generally and to age-old legal distinctions between chil-
dren born in and out of wedlock. But the possibility of genetic clarity itself raises
serious questions regarding privacy, intent, and the relative importance of genetic
paternity and a biological mother's marriage.
It now is possible to conceive a child in vitro using the egg of a woman other
than the one who carries and gives birth to the child. A child may have different
genetic, gestational, intended, and presumed mothers, as well as different genetic,
intended, and presumed legal fathers.46
In the complex new world of assisted reproductive technology, surrogacy,
and other recent developments in family building, traditional legal rules and pre-
sumptions are often insufficient to adequately determine parentage for citizenship
transmission or most other purposes. Family law has been wrestling with these par-
entage issues for decades. Despite some notable successes, that law still lags far be-
hind technical and social progress. In many places, immigration and nationality laws
have lagged even further behind their domestic family law counterparts. Cross-border
ART and international surrogacy complicate matters even more.
Genetic science has progressed beyond DNA testing. It now is also possible
to conceive a child in vitro using the egg of a woman other than the one who carries
and gives birth to the child. Over eight million babies have been born after conception
through assisted reproductive technology," and more than half a dozen people may
have theoretical claims to be a child's parents in these cases. The child may have
different genetic, gestational, and intended mothers, as well as different genetic, in-
tended, and presumed legal fathers, including the husbands of the genetic, gesta-
tional, and intended mothers.54 Same-sex marriage and poly-parenting in some juris-
dictions open up even more options. The traditional assignment of legal parentage to
the woman who gives birth and her husband is not always appropriate in this complex
new world of ART, surrogacy, and other recent developments in family building.
Norway, Switzerland, Sweden, the U.K., and the U.S.); Titshaw, supra note 8, at 144 (describing U.S.,
Canadian, and Australian use of DNA testing for parentage).
49 Vladedie Oray & Sara H. Katsanis, Ethical Considerationsfor DNA Testing as a Proxyfor Na-
tionality, 32 GLOB. BIOETHICs 51, 52-53 (2021).
50 U.S. Dep't of State, Bureau of Democracy, H.R. and Lab., 2020 Country Reports on Human
Rights Practices: Kuwait 21 (2021).
51 See Rachel Silber, Eugenics, Family & ImmigrationLaw in the 1920s, 11 GEO. IMMIGR. L.J.
859, 869-74, 878-84 (1997) (describing widespread acceptance of eugenics in the 1920s and its influence
on the U.S. immigration acts of 1921 and 1924).
52 See Oray & Katsanis, supra note 49, at 61-62 (warning against use of DNA tests
as a proxy for
nationality while recognizing their value in verifying family relationships and supplementing other evi-
dence regarding nationality); Catherine Lee & Torsten Voigt, DNA Testing for FamilyReunification and
the Limits of Biological Truth, 45 SCI., TECH. & HUM. VALUES 430 (2020) (recognizing the utility of
DNA tests in verifying family relationships but warning about the need for social validity to "define what
a true family is").
5 Susan Scutti, At Least 8 Million IVF BabiesBorn in 40 Years Since HistoricFirst, CNN HEALTH
(July 3, 2018, 6:04 AM), https://perma.cc/RQ3N-SNYS.
54 Cases can easily involve five people: an egg donor, a sperm donor, a surrogate, and an intended
mother or father, or both. The number could reach seven if the husbands or partners of gestational mothers
or egg donors assert legal presumptions of paternity. Harder, supranote 46, at 113.
Some countries have added to the existing social and technological complex-
ity, attempting to enforce their public policies against ART or surrogacy by refusing
inherited citizenship to children whose parents employed these tools. For instance,
France has attempted to enforce several such laws since the turn of the millennium."
Countries like France might justify denying a child's parentage for family-
based citizenship or other purposes to deter aspiring parents from evading domestic
prohibitions through international surrogacy. Such policies might be effective. They
might even emphasize the consequence of legal rules and promote respect for the rule
of law on some level. However, it is inappropriate to borrow the tools of criminal law
in this context, where innocent children bear the brunt of punishment as they are
denied citizenship and potentially separated from their families.
Like now-abandoned laws disadvantaging children born out-of-wedlock,
these new laws punishing children for the "sins" of their parents have been con-
demned on both sides of the Atlantic. U.S. law has long recognized that it was im-
proper to punish "illegitimate" children or undocumented children to discourage
56
adult activity. The European Court of Human Rights recently addressed the French
laws described above and held that refusing parentage to children to deter interna-
tional commercial surrogacy violates the European Convention for the Protection of
Human Rights and Fundamental Freedoms and the UN Convention on the Rights of
the Child.57 Governments may be able to accomplish their goals through criminal
laws punishing adult residents for their actions, but the primary subjects of parentage
or inherited citizenship laws are the child citizens, and they do not deserve punish-
ment.58 The Court sketched out the right to "respect for private life" under Article 8
of the European Convention to include an individual right of children to establish the
9 Be-
essential aspects of their identity, including their legal parent-child relationship.
cause of this right, the Court held that the genetic father of a child conceived through
ART and carried to term by a surrogate must be recognized as a legal parent in Europe
60
if he was legally recognized as the father in the place of the child's birth. Addition-
ally, that father's wife, who also was recognized as a legal parent in the country of
birth, has the right to promptly and effectively establish legal parentage of the child
6
in Europe, whether she is a biological parent or not.
55 See Mennesson v. France, 2014-Ill Eur. Ct. H.R. 255, 1 99; Labassee v. France, App.
No. 65941/11, ¶¶ 97-101 (2014), https://hudoc.echr.coe.int/eng?i=001-145180 [https://perma.cc/AHG4-
2ZUJ].
56 32 Op. Att'y. Gen. 162, 164 (1920) (recounting that U.S. discrimination against illegitimate chil-
dren in order to discourage illicit relations between the sexes had "been abandoned"); Scott Titshaw,
Sorry Ma'am, Your Baby Is an Alien: OutdatedImmigration Rules and Assisted Reproductive Technol-
ogy, 12 FLA. COASTAL L.R. 47, 52 (arguing that U.S. citizenship and immigration law lagged behind
family law in this area); Plyler v. Doe, 457 U.S. 202, 230 (1982) (holding that undocumented children
are "persons" with a right to public education).
57 See Mennesson v. France, App. No. 65192/11, supra note 55; Labassee v. France, App.
No. 65941/11, supra note 55.
5 Id.
59 See Advisory Opinion Concerning the Recognition in Domestic Law of a Legal Parent-Child
Relationship between a Child Born Through a Gestational Surrogacy Arrangement Abroad and the In-
tended Mother, Request No. P16-2018-001, Eur. Ct. H.R. (2019), https://hudoc.echr.coe.int/eng?i=003-
6380464-8364383 [https://perma.cc/E7A3-VQ87] [hereinafter Mennesson Advisory Opinion]; Mennes-
son v. France, App. No. 65192/11, supra note 55.
60 Mennesson v. France, App. No. 65192/11, supra note 55.
61 Mennesson Advisory Opinion, supra note 59.
Inherited citizenship sits at the intersection of family law and nationality law.
This convergence is often harmonious in nations that regulate familial status consist-
ently at the same level of government for all purposes. Yet, it causes problems in a
few states with federal government structures, including the U.S., Canada, and Aus-
tralia.
Federal States generally regulate immigration and citizenship at the higher,
federal level of government. The alternative, as the United States before 1868 and
the current European Union have discovered, can create serious difficulties in subdi-
vided territories without internal borders or other significant constraints on mobility. 65
If a State regulates immigration and citizenship at the federal level, but fam-
ily law at the state, provincial, or territorial level, that can create serious discrepancies
in the defmition of parentage for real world families. Fortunately, the vast majority
of federal States avoid this problem by regulating both family law and citizenship at
the federal level. For instance, Argentina, Brazil, and Germany have adopted a uni-
form family law code either at the federal level or in every individual state or province
individually." However, three large, developed countries - Australia, Canada, and
62 Id at¶ 40.
63 Id. These reasons are reflected in the purposes asserted below in Part VI-D.
4 Id. at ¶ 49.
65 A race to the bottom and reactions against it could be seen
when Malta and Cyprus began to
"sell[]" their citizenship, and thus E.U. citizenship, to wealthy investors "for pre-determined payments
or investments without any genuine link," thereby allowing these automatic new E.U. citizens "all rights
linked to this status, such as the right to move, reside and work freely within the EU" and certain local
and E.U. voting rights. See European Commission Press Release IP/20/1925, Investor Citizenship
Schemes: European Commission Opens Infringements Against Cyprus and Malta for "Selling" EU Citi-
zenship, (Oct. 20, 2020). See Gerald L. Neuman, The Lost Century ofAmerican ImmigrationLaw (1776-
1875), 93 COLUM. L.REv. 1833, 1870-71 (1993) (describing the early U.S. experience with state control
over migration and citizenship, including rules governing the movement of enslaved and free black peo-
ple that led to the U.S. Supreme Court decision in DredScott and, eventually, to the U.S. Civil War).
66 Alfredo M Vitolo, The Argentine Federal Legislative System,
in FEDERALISM AND LEGAL
UNIFICATION 71, 78 (Daniel Halberstam & Mathias Reimann eds., 2014); Jacob Dolinger & Luis Roberto
Barroso, Federalismand Legal Unificationin Brazil, in FEDERALISM AND LEGAL UNIFICATION 153, 155
(Daniel Halberstam & Mathias Reimann eds., 2014), Jurgen Adam & Christoph Mtillers, Unification of
Laws in the FederalSystem of Germany, in FEDERALISM AND LEGAL UNIFICATION 237, 241 (Daniel
Halberstam & Mathias Reimann eds. 2014).
67 See Titshaw, supra note 8, at 144.
68 Bernieres v Dhopal (2017) 57 Fam LR 149 (Austl.); see infra note 78 and accompanying text.
69 8 U.S. DEP'T OF STATE, FOREIGN AFFAIRS MANUAL § 304.3 (2020). It also considered a child
to be born "out of wedlock" if the child's biological parents were not married to each other. Id. at
§§ 304.1-2(c), 304.3-2; see Canada (Citizenship and Immigration) v. Kandola, 2014 CanLII 85 (Can.
Fed. Ct. App.); see also Harder, supra note 46, at 120-21.
70 See Government of Canada, Changes to Rules on Citizenship by Descent (July 15, 2020),
https://perma.cc/M67L-8MM2; Press Statement, Ned Price, Spokesperson, U.S. Dep't of State, U.S. Cit-
izenship Transmission and Assisted Reproductive Technology (May 18, 2021), https://perma.cc/FX9P-
KQ9L.
71 See, e.g., CAL. FAM. CODE § 7613(a) (West 2021) (providing that an "intended parent is treated
in law as if that intended parent is the natural parent of a child" conceived through assisted reproduction
based on the intended parent's pre-conception intent); see also UNIF. PARENTAGE ACT §§ 703-704
(UNIF. L. COMM'N 2017).
72 Louise Johnson, Eric Blyth & Karin Hammarberg, Barriersfor Domestic Surrogacy and Chal-
lenges of TransnationalSurrogacy in the Context ofAustralians UndertakingSurrogacy in India, 22 J.L.
& MED. 136, 139 (2014).
73 Family Law Act 1975 (Cth.) s 60HB(1) (Austl.). Most surrogacy cases in Australia are actually
transnational because "commercial surrogacy" is a crime throughout Australia, but state and territorial
law may be silent regarding cases of foreign birth. Emily Jackson, Jenni Millbank, Isabel Karpin & Anita
Stuhmcke, Learning from Cross-Border Reproduction, 25 MED. L. REv. 23, 28 (2017); Jenni Millbank,
Responsive Regulation of Cross-Border Assisted Reproduction, 23 J.L. & MED. 346, 352-53 (2015)
(finding that only between six to twenty babies are born annually to surrogates in Australia while hun-
dreds of Australians use surrogates abroad).
74 Family Law Act 1975, supra note 73, at s 16(2). If the parent does not meet residence require-
ments, the child may still qualify if the parent has never been a national of another country, or if the child
would otherwise be stateless. Michelle Foster, Jane McAdam & Davina Wadley, Part Two: The Preven-
tion andReduction of Statelessness in Australia -An Ongoing Challenge, 40 MELB. U.L. REv. 456, 471,
479-80 (2016).
75 Titshaw, supra note 8.
76 AUSTL. Gov'T, DEP'T. IMMIGR. & BORDER PROT., SUBMISSION 45: INQUIRY INTO SURROGACY
(2016), https://perma.cc/L9U6-CSDY. This response to a parliamentary inquiry by the Standing Com-
mittee on Social Policy and Legal Affairs describes the Department's "case-by-case" determination of
citizenship stemming from international surrogacy arrangements, including "applications where there is
no biological link with an Australian intended parent .... " Absent a biological connection, "it is suffi-
cient that, at the time of birth, an Australian citizen is a 'parent' as that word is understood in ordinary
usage which includes consideration of social, legal, and biological factors." Id. at 6.
77 See, e.g., International Surrogacy Arrangements, AUSTL. GOv'T, DEP'T HOME AFF.,
https://perma.cc/DJ9J-XHXY (archived Feb. 17, 2022).
78 Titshaw, supra note 8, at 164. Australia's apparent flexibility regarding family law considera-
tions may stem from its abandonment of birthplace citizenship. It must theoretically determine parentage
in all citizenship cases, including those of children born and residing in Australian states and territories
that legally recognize the parent-child relationship for other purposes. Id. at 164-65.
79 Bernieres v Dhopal (2017) 57 Fam LR 149, 11 7-8, 66 (describing approval of an Australian
Certificate of Citizenship by Descent based on DNA testing despite later denial of a declaration of par-
entage under the law of the State of Victoria).
80 Id. at 1162, 65.
81 Id. at ¶¶ 53-54, 69.
Fortunately, most countries avoid the issue of conflicting federal and re-
gional definitions by defining parentage consistently for citizenship and other pur-
poses. Yet, they still must determine whose parent-child relationships qualify under
their single definition. This requires lawmakers to answer difficult questions posed
by rapidly changing social and scientific contexts involving DNA tests, ART, surro-
gacy, same-sex marriage, and other developments addressed in Subparts A and B
above. Part IV describes and categorizes the existing birthright citizenship regimes
within which these questions will be answered.
Every country in the world provides for inherited citizenship, but it plays
different roles in different birthright citizenship systems. Although the specific rules
and their contexts differ significantly, these systems can be sorted into three broad
categories: (1) primary inherited citizenship systems, which rely almost exclusively
on this form of birthright citizenship, (2) dual birthright citizenship systems, which
use extensive inherited citizenship to supplement generous birthplace citizenship
rules, and (3) hybrid birthright citizenship systems, which combine both factors in
hybrid rules to supplement inherited citizenship. The subsections below survey na-
tions employing each system, commencing with an historical overview of citizenship
innovations in Europe, where the concept of the modem nation-state and its inherited
citizenship originated.
Both inherited citizenship and birthplace citizenship have long pedigrees. In
2
ancient Greece, Athenian citizenship was inherited from a child's parents. Accord-
ing to legend, ancient Rome once had an open-borders policy, welcoming anyone
who chose to immigrate.83 But not all Romans were citizens, and the requirements
84
and significance of Roman citizenship changed substantially over time. By 212 CE,
the emperor Antoninus Caracalla departed from a citizenship regime relying on
power-based family relationships to confer Roman citizenship on all inhabitants of
85
the Roman Empire, thereby establishing a territorial idea of citizenship. During the
reign of Constantine the Great, the right to reside as a citizen in a region of the Eastern
86
Empire was a matter of birthplace and inheritance. These precedents regarding
birthplace and inherited citizenship have influenced European scholars and lawmak-
ers from the medieval era through the present.
By the dawn of the early modern era, birthplace citizenship was the preemi-
nent mode of acquiring nationality in Western Europe. As nation states emerged, they
began systematically adopting birthplace-based rules for royal subjects. When Ferdi-
nand and Isabella united Spain, they continued to recognize the existing Castilian rule
82 David Scott FitzGerald, The History of Racialized Citizenship, in THE OXFORD HANDBOOK OF
CITIZENSHIP 129, 132-33 (Ayclet Shachar, Rainer Baubock, Irene Blocmraad & Maarten Vink eds.,
2017); CHRISTIAN H. KALIN, IUS DONI IN INTERNATIONAL LAW AND EU LAW 23,40 (2019).
83 Carlos Amundtegui Perell6, Race and Nation: On Ius Sanguinis and the Origins of a Racist
NationalPerspective, 24 FUNDAMINA 4 (2018).
8 See, e.g., Myles Lavan, The Army and the Spread of Roman Citizenship, 109 J. ROMAN STUD.
27, 47-49 (2019).
85 Perell6, supra note 83, at 3-4.
86 Id. at 5.
that "a man was a natural citizen of the place where he was born."" Louis X and,
later, the Parliament of Paris recognized that "whoever was born in France, was to be
a Frenchman." 8 Great Britain eventually followed suit. After the union of the English
and Scottish crown under King James I in 1603, the Court of King's Bench was re-
quired to determine whether a Scottish-born man could inherit property in England
although "aliens" could not. The Court held that he could in Calvin's Case, which
established that birth within the king's territory rendered him a British subject.89
Of course, royal "subjects" are not republican "citizens." And in an age when
borders moved frequently and the imposition of duties and taxes on subjects was
significantly greater than corresponding rights and benefits, lawgivers may have been
inclined toward broad rules defining subjecthood for all persons born within a king's
or queen's realm. 90 Yet inheritance-based legal status did not disappear during this
era. The importance of familial inheritance was at its apex during the medieval and
early modern periods when almost every aspect of one's life, from estates in land to
one's profession and guild membership, could be inherited. Inheritance remained sig-
nificant in the determination of nationality as well.
Scholars and lawmakers have long tended to treat birthplace and inherited
citizenship as if they were mutually exclusive alternative categories.' This is not true
today, and it was not true in the past. English law had recognized a rule of inherited
citizenship for foreign-born children several centuries before Calvin's Case.92 France
too recognized inherited citizenship for Frenchmen born abroad by the sixteenth cen-
tury.93 These supplemental inherited citizenship rules may have been overlooked his-
torically for the same reasons they are today. In a pre-modern world of more difficult,
costly, and dangerous transportation, an even greater percentage of the population
may have been born in their parents' country of origin, rendering foreign-born sub-
jects even more exceptional. Yet, inherited citizenship coexisted with birthplace rules
and was important to those relying on it.
The traditional binary juxtaposition of birthplace and inherited citizenship
systems remains inaccurate today. There are no exclusive birthplace citizenship re-
gimes. The real contrast is not between birthplace citizenship regimes and inherited
citizenship regimes, but between regimes recognizing both rules and those rejecting
birthplace citizenship in favor of an exclusive, or nearly exclusive, focus on inherited
citizenship. The situation has been further complicated by recent movement in some
jurisdictions to supplement primary reliance on inherited citizenship with hybrid
birthplace citizenship rules for children, whose parents have favorable status or situ-
ations. This trend, described as a third category below, provides another reason to
87 Id. at 7. Even under the reigns of queens, several centuries would pass before
women were rec-
ognized independently as citizens or subjects.
88 Id.
89 Calvin v. Smith (1608) 77 Eng. Rep. 377 (KB).
90 For an interpretation of how birthplace citizenship fits into medieval European feudal theory, see
John W. Salmond, Citizenship and Allegiance, 18 L.Q. REv. 49,49-54 (1902).
91 See ROGERS BRUBAKER, CITIZENSHIP AND NATIONHOOD IN FRANCE AND GERMANY (1992)
(contrasting state-centered French birthplace citizenship with ethnocultural German inherited citizen-
ship).
92 Polly J. Price, NaturalLaw and BirthrightCitizenship in Calvin's Case (1608), 9 YALE J.L.
HUMAN. 73, 83 (1997) (citing De Natis Ultra Mare 1350, 25 Edw. 3 c. 2 (Eng.)).
93 Perell6, supra note 83, at 8.
avoid a bright line binary contrast between birthplace and inherited citizenship re-
gimes.
Of the three types of birthright citizenship system, most states today fit in
the first category, relying almost exclusively on inherited citizenship as the tool for
ascribing citizenship at birth. Countries in this category normally recognize citizen-
ship for persons born within their jurisdiction only if they have citizen parents. There
may be exceptions, however, for abandoned children of unknown parents ("found-
lings") or for others who would otherwise be stateless.
Some scholars have relied on these two exceptions to argue that birthplace
and inherited citizenship are consolidating with most states applying a mixture of
both. 94 While the hybrid regimes discussed in Subpart C may indicate a trend toward
consolidation in some jurisdictions, the nature and minor role of more common
foundling and statelessness-based exceptions cannot carry so much weight. Found-
lings generally may be presumed to be unidentified citizens' children, who would
qualify under inherited citizenship rules if proof were available; their inclusion is a
practical evidentiary exception. 95 Children who would be stateless if the jurisdiction
of their birth refused them citizenship likely comprise a small number of prospective
96
citizens, and providing them birthplace citizenship is required by international law.
This exceptional category has more in common with relief for refugees and other
97
humanitarian remedies than with the defining aspects of a state's citizenship system.
The second category discussed below comprises dual birthright citizenship
systems, which rely primarily on a child's place of birth. It is less common than the
first category, but it includes large and important countries throughout the Americas
such as Brazil, Canada, Mexico, and the United States. Because of the liberality and
relative evidentiary simplicity of demonstrating place-of-birth, most citizens in these
jurisdictions trace their status to their birthplace, no parental records or DNA tests
required. Yet, inherited citizenship is essential to children born abroad to citizens of
these states.
The final, hybrid category is of more recent vintage. Over the past few dec-
ades, there has been a trend among a minority of states in each of the categories de-
scribed above to move toward a hybrid system, primarily relying on inherited citi-
zenship for children, but supplementing that rule with limited recognition of
birthplace citizenship for third-generation immigrants or children of non-citizens
with lawful permanent resident status. Because they are dynamic and indicate con-
solidation in their results, these systems reveal a lot about the purposes of inherited
and birthplace citizenship rules.
98 See, e.g., Salmond, supra note 90, at 53 (describing how birthplace citizenship was "the common
law of all feudal Europe," the unconditional law of France until the Code Napoldon, and the unconditional
law of Britain and Spain as of 1902).
99 D.O. McGovney, French Nationality Laws Imposing Nationality at Birth, 5 AM. J. INT'L L. 325,
326 (1911).
100 Patrick Weil, From Conditional to Secured and Sovereign: The New Strategic Link Between the
Citizen and the Nation-State in a Globalized World, 9 INT'L J. CONST. L. 615, 617 (2011).
101 See BRUBAKER, supra note 91; see also DIETER GOSEWINKEL, EUR. PARLIAMENT
DIRECTORATE-GEN. INTERNAL POLICIES, NATION AND CITIZENSHIP FROM THE LATE NINETEENTH
CENTURY ONWARDS: A COMPARATIVE EUROPEAN PERSPECTIVE (2008), https://perma.cc/88AU-8RJ6.
102 FitzGerald, supra note 82, at 136-37.
103 Patrick Weil, Access to Citizenship: A Comparison of Twenty-Five Nationality Laws, in
CITZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES 17, 19 (T. Alexander Aleinikoff & Doug-
las B. Klusmeyer eds., 2001); Perell6, supra note 83, at 1.
During the age of imperialism, France was not the only European nation to
discover the advantage of a more expansive dual birthright citizenship system for
acquiring financial resources and military conscripts, for maintaining loyalty from
citizens as they settled into overseas colonies, and for legitimizing imperial control
over far-flung territory." The U.K., which had never abandoned its birthplace citi-
zenship rule, enjoyed this advantage as well. Similarly, during the mid-twentieth cen-
tury Cold War, the United States liberalized its immigration and citizenship regime
as it and the U.S.S.R. worked to sell and expand their competing universalist ideo-
logical worldviews. Like its earlier amelioration of anti-Asian immigration laws
while allied with China in war against Japan, it likely was no coincidence that the
United States finally opened itself to a more racially diverse population by ending its
longtime national origin immigration quotas at the height of the Cold War in 1965.
It may, therefore, be no surprise that the United States has encountered increasing
anti-immigrant and anti-birthplace-citizenship sentiments since the Cold War
5
ended.1
The benefits of liberal birthright citizenship policies also became less per-
suasive within European powers as their imperial ambitions dwindled and died. The
United Kingdom eventually limited citizenship to the children of citizen parents in
order to avoid being "overwhelmed" by "reverse colonization" from the mass popu-
lace of former colonial subjects around the world, who greatly outnumbered descend-
ants of the original "mother" country. The population of the United Kingdom could
have been increased many times over if British subjects from its vast empire were
allowed and inclined to settle in Great Britain. Small Portugal could have been
swamped by Brazilians under similar circumstances. These fears were likely in-
creased by the fact that many former subjects and their descendants were ethnically,
racially, religiously, and even linguistically different from the original populations of
the former imperial powers.
06
Today, European states rely primarily on inherited citizenship.' Most pro-
vide unconditional citizenship to children of their citizens regardless of birthplace.'07
Those that do not impose fairly modest additional restrictions, such as a registration
requirement or avoidance of dual citizenship."' Russia, however, takes its aversion
104 Marc Marjd Howard has argued that the humanizing aspect of France and Britain's imperial
"civilizing mission" developed empathy and more inclusive conceptions of citizenship, but this is an
unlikely explanation for birthplace citizenship rules given the timing of their adoption. MARC MARJE
HOWARD, THE POLITICS OF CITIZENSHIP IN EUROPE 38-42 (2009).
105
See discussion infra Part VI-B.
106
The only European State with a general birthplace citizenship regime is Moldova. See discussion
infra Part VI-B.
107 MERVE ERDILMEN & ISEULT HONOHAN, TRENDS IN BIRTHRIGHT CITIZENSHIP IN EU 28: 2013-
2020, at 3-5 (Mar. 2020), https://perma.cc/752F-4UB7 (listing Austria, Bulgaria, Czech Republic, Den-
mark, Estonia, France, Greece, Hungary, Italy, Lithuania, Luxembourg, Netherlands, Poland, Romania,
Slovakia, Slovenia, Spain, and Sweden); COSTICA DUMBRAVA, COMPARATIVE REPORT: CITIZENSHIP IN
CENTRAL AND EASTERN EUROPE 1-2 (Apr. 2017), https://perma.cc/Q7RR-INDB (listing Belarus, Bul-
garia, Czech Republic, Estonia, Georgia, Hungary, Lithuania, Moldova, Poland, Romania, Slovakia, and
Ukraine).
108 ERDILMEN & HONOHAN, supra note 107, at 3-5 (Belgium, Cyprus, Germany, Ireland, Malta,
Portugal, and the United Kingdom require registration; Croatia, Latvia, and Slovenia have dual-citizen-
ship restrictions); DUMBRAVA, supra note 107, at 1-2 (Croatia, Latvia, and Slovenia). Finland and Malta
place additional restrictions on children born out-of-wedlock to a citizen father. ERDILMEN & HONOHAN,
supra note 107, at 3-5. There are two more general exceptions: Armenia requires parental consent, and
Russia excludes children born abroad with access to another citizenship. DUMBRAVA, supra note 107, at
1-2.
9
" Id. at 19-20.
120 Id. at 1-3, 14-17.
121 OLIvIER VONK, COMPARATIvE REPORT: CITIZENSHIP IN AsIA §§ 2, 3.1.2 (Dec. 2017),
https://perma.cc/Z3UX-KKBF.
122 Id. § 3.1.1, tbl. 2 (listing Bangladesh, China, India, Indonesia, Japan, Laos, Mongolia, Myanmar,
Nepal, North Korea, Philippines, Singapore, South Korea, Sri Lanka, Vietnam, and-maybe-Pakistan);
id. at tbl. 3 (listing Bangladesh, India, Myanmar, Pakistan, Philippines, and Thailand as states that do not
make exceptions for foundlings or otherwise stateless children born on their territory).
23 Id. § 3.1.2, tbl. 2.
124 Low, supra note 25, § 2.
25
Id. § 2.1.
126 Id. §§ 2.2, 3.4.
birthplace citizenship law, Taiwan does ease naturalization for third-generation Chi-
nese and others born in Taiwan to Taiwanese domiciled foreign national parents. 130
Like Taiwan, the P.R.C. has maintained an almost exclusive focus on inher-
ited citizenship, granting citizenship to children born to citizen parents unless they
are permanently settled abroad.'31 The only children of non-citizens who obtain citi-
zenship upon birth in the P.R.C. are the children of stateless parents settled in
China. 32 As described in Part II above, it may be misleading to use the term "citizen-
ship" in the P.R.C. context, where "citizens" are subject to substantial distinctions
among rights of naturalized and birthright Chinese citizens, as well as among rural
and urban citizens.' Yet the theory of inherited status is so deeply engrained in the
Chinese system that it permeates even the household registration system, which priv-
ileges "urban citizens" over "rural citizens" by relying mainly on the person's par-
ents' status. 3"4
Other Asian countries primarily rely on inherited citizenship laws as well
but often with some restrictions on foreign born children.' 3 While states such as East
Timor, Philippines, South Korea, and Thailand provide unconditional inherited citi-
zenship to children regardless of their birthplace, many others impose additional re-
strictions on citizenship transmission to children born abroad."' For example, Af-
ghanistan, Laos, Mongolia, and Vietnam require that both parents must be citizens
for a child to gain automatic citizenship upon birth abroad.1 37 India, Bangladesh, Pa-
kistan, and Singapore restrict transmission to children born abroad if their parents
also were born abroad, and Indonesia, Japan, North Korea, and Singapore restrict
dual citizenship."'
Like their European and Asian counterparts, most African states rely exclu-
sively, or almost exclusively, on inherited citizenship. Very few recognize uncondi-
tional birthplace citizenship as well.'39 Some African states, discussed in Subpart C
below, have adopted hybrid regimes, providing for "third-generation" birthplace cit-
izenship. 40 More than twenty make an exception for foundlings or to avoid stateless-
ness."' Still, political, racial, ethnic, religious, and gender-based discrimination are
prevalent enough to leave hundreds of thousands of Africans stateless, a profound
problem for purposes of peace, stability, and the enjoyment of basic human rights.4 2
Part VI-B below describes modern U.S., French, and Fijian anti-birthplace-
citizenship movements that were not permanently successful. However, successful
130 Id
131 Id § 3.1.
132 Id.
13 Id. § 3.4.
14 Id. § 3.4 (Oct. 2016).
13 VONK, supra note 121, at 9-11.
136 Id.
"7 Id.
138 Id.
139 MANBY, supra note 30, at 2-3 (listing Lesotho, Tanzania, and Chad).
140 Id. at 3. For an explanation of the third-generation citizenship, see discussion infra Part IV-C-2.
'4' Id.; see, e.g., PATRICIA JERONIMO, REPORT ON CrnZENsHIP LAW: ANGOLA
22-30 (Apr. 2019),
https://perma.cc/RL7W-EZQL (describing Angolan constitutional provisions providing birthplace citi-
zenship in cases of foundlings and children who would be stateless).
142 MANBY, supra note 30, at 1-5.
movements to abandon birthplace citizenship often reflected similar desires for ra-
cial, ethnic, and religious homogeneity.
After independence and partition from Pakistan, India's initial law regarding
prospective citizenship closely echoed the colonial British rule of Calvin's Case,
providing automatic citizenship upon birth within Indian territory with minor excep-
143
tions for children of diplomats and of "enemy alien" fathers. Later, however, the
Indian parliament reacted to the growing political influence of immigrants from Ne-
pal and Bangladesh by restricting birthplace citizenship to Indian-born children with
an Indian citizen parent at the time of birth.'" In 2003, the Indian citizenship law was
limited further so that children born on Indian territory only become citizens if one
45
of their parents is a citizen and the other is not an illegal migrant at the time of birth.
These and other, more controversial, changes to Indian citizenship and nationality
laws appear to have been motivated by a desire to limit the numbers and political
rights of immigrants and particularly of Muslim families from Pakistan and Bangla-
desh."
Unlike India, Pakistan still nominally recognizes a birthplace citizenship
law, but it appears to have eliminated its application in fact. Like its Indian contem-
porary, the Pakistan Citizenship Act 1951 reflected the birthplace holding of Calvin's
Case by indicating that "any person born in Pakistan ... shall be a citizen of Paki-
47
stan," except for a child of a father who was a diplomat or "an enemy alien."' This
Act is still nominally in effect, but its interpretation has been miserly at best. Alt-
hough not apparent from the text of the Act, authorities seem to agree that children
of refugees are excluded from birthplace citizenship." Beyond that limitation, there
appears to be judicial and scholarly disagreement regarding whether a child born to
49
anyone other than a Pakistani parent becomes a citizen when born in Pakistan.1 If
the Act's birthplace and inherited citizenship provisions actually combine to recog-
nize birthplace citizenship only for children of Pakistani nationals, as one provincial
143 ASHNA ASHESH & ARUN THIRUVENGADAM, REPORT ON CITIZENSHIP LAW: INDIA §§ 2.1-3.1
(July 2017) (citing The Citizenship Act, 1955 (India)), https://perma.cc/GL7C-FDZB.
144 Id. § 3.1.
145 The Citizenship Act, 1966 (India), §3(1)(c) (a child born in India after 2003 "shall be" an Indian
citizen if "(i) both of his parents are citizens of India; or (ii) one of whose [sic] parents is a citizen of
India and the other is not an illegal migrant at the time of his birth," and so long as neither parent is a
diplomat or "enemy alien"); see ASHESH & THIRUVENGADAM, supra note 143.
146 ASHESH & THIRUVENGADAM, supra note 143, § 3.1 (contrasting the treatment of these refugees
with the reception of Tamil Hindus). Hindu nationalists in India recently have moved to further limit
birthplace citizenship by stripping the citizenship of some Muslims whose families have lived in India
since Bangladesh gained independence from Pakistan in 1971. K. ALAN KRONSTADT, CONG. RSCH.
SERv., IF 11395, CHANGES IN INDIA'S CITIZENSHIP LAWS 1 (2019).
147 The Pakistan Citizenship Act, No. 2 of 1951, PAK. CODE (2d ed. 1967), ¶ 4; see also Syed
Nadeem Farhat, Citizenship Laws ofPakistan:A CriticalReview, 16 POL'Y PERSPECTIVES 59,65 (2019).
148 FARYAL NAZIR, REPORT ON CITIZENSHIP LAW: PAKISTAN 5-6 (Dec. 2016),
https://pcrma.cc/DHN7-VB2T (arguing that courts agree in this regard, even in the context of Afghan
families who have been in Pakistan since the Soviet invasion in 1979); Farhat, supra note 147, at 66-67
(arguing similarly and calling on Parliament or the Supreme Court of Pakistan to carefully consider the
plight of second and third-generation refugees and immigrants and their parents).
149 Compare Farhat, supranote 147, at 65-67 (arguing that opinions of two different provincial high
courts differ starkly regarding whether children of non-Pakistani parents inherit citizenship based on their
Pakistani birthplace), with Nazir, supra note 148, at 5 ("[C]hildren born to aliens [i.e., not Pakistanis or
citizens of another Commonwealth country] in Pakistan are not accorded the privilege of citizenship.").
high court has held,"' Pakistan has eliminated defacto the birthplace citizenship rule
that is still on its books.
Other former British colonies and protectorates have experienced confusion
similar to that of Pakistan with old jus soli labels used to describe what have become
inherited citizenship regimes. For instance, reputable sources list The Gambia and
Tanzania as dual birthright citizenship systems with unconditional birthplace citizen-
ship rules.'5 Yet, The Gambia's constitutional provision headed "birth" now appar-
ently only provides for citizenship when the child born in Gambian territory has a
citizen parent.' 2 Likewise, a child born in the United Republic of Tanzania apparently
only is a citizen where one of her parents is as well.'
The states that provide automatic birthplace citizenship also recognize in-
herited citizenship rules as expansive as those described above. Yet, because an in-
fant's place of birth is initially more obvious than her parentage, birthplace citizen-
ship rules are the primary tool for demonstrating citizenship in these states. Proving
parentage is only necessary when a child was not clearly born within the State's ter-
ritory. Inherited citizenship rules, therefore, play a secondary role in these nations,
supplementing the primary birthplace citizenship rule for citizens whose children are
born abroad.
The United States, Canada, Brazil, Mexico, twenty-six other countries in the
Americas and the Caribbean, Moldova, Fiji, and Lesotho rely on unconditional birth-
place citizenship supplemented by inherited citizenship."4 These countries are all for-
mer colonies of European powers, and most originally inherited their birthplace citi-
zenship rules or established them in a treaty with those powers.
Canada, the U.S., and other former English territories initially followed the
common law rule established for English subjects in Calvin's Case.' 5 Everyone born
on British territorywas a subject of the King with very limited exceptions for children
of diplomats and occupying enemy forces.1 56
151 Farhat, supra note 147, at 65-66 (citing Ghulam Sanai v. Assistant Director, National Registra-
tion Office, (1999) 51 PLD (Peshawar) 18).
151 GLOBAL LEGAL RESEARCH DIRECTORATE, LAW LIBRARY OF CONGRESS, BIRTHRIGHT
CITIZENSHIP AROUND THE WORLD 35,46 (2018), https://perma.cc/BU5B-KDDW (listing Tanzania with
a caveat about future changes); CIA, supra note 3 (listing The Gambia as a dual birthright citizenship
system).
1s2 GAYE SOWE & MARIA SAINE, REPORT ON CITIZENSHIP LAW:
THE GAMBIA 6 (Mar. 2021),
https://perma.cc/2DTS-7W2W.
'53 CAROLINE NALULE & ANNA NAMBOOZE, REPORT ON CITIZENSHIP LAW: TANZANIA 12 (Apr.
2020), https://perma.cc/B6SZ-UFFU.
1s4 GLOBAL LEGAL RESEARCH DIRECTORATE, LAW LIBRARY OF CONGRESS, supra note 151, at I;
CIA, supra note 3; Katherine Culliton-Gonzalez, Born in the Americas: Birthright Citizenship and Hu-
man Rights, 25 HARv. HUM. RTS. J. 127, 135-36 (2012) (citing laws of thirty out of thirty-five countries
in the Western Hemisphere, and listing as exceptions Bahamas, Colombia, the Dominican Republic,
Haiti, and Suriname).
'5s Calvin v. Smith (1608), 77 Eng. Rep. 377, 397 (KB).
156 Id
U.S. Citizen parents,6 ' or (2) they derive citizenship if they are adopted by a citizen
or their parent becomes a citizen while the child is still a minor and living in lawful
permanent residence status in the United States.' 67
The Canadian Nationals Act from 1921 replaced the status of "British sub-
ject" with that of "CanadianNational."'68 Then, following World War II, the Citizen-
ship Act of 1947 provided for Canadian citizenship, including both birthplace and
inherited citizenship rules.' 9 This followed the rule of Calvin's Case, which the U.K.
would continue to recognize until the 1980s.17'0 Like the U.S., today Canada recog-
nizes birthplace citizenship for almost every person born in its territory, supple-
mented by a robust inherited citizenship regime for children born to its citizens
abroad.'7
Upon independence in the nineteenth century, many Latin American states
modeled their new constitutions on the Spanish Cadiz Constitution of 1812.12 This
included unconditional birthplace citizenship as well as supplemental rules of inher-
ited citizenship for children born abroad.' Like their North American counterparts,
these Latin American states generally have not wavered from birthplace citizenship
laws that tended to integrate the progeny of immigrants into the societies where they
would likely spend their lives.'74 They also all recognize some form of supplemental
inherited citizenship rules to cover children born to citizens abroad.'"
Like Spanish colonies in Latin America, Brazil inherited a colonial regime
that recognized birthplace citizenship on Brazilian territory. 176 As a country with in-
stitutionalized slavery, however, it excepted from citizenship anyone who was "free"
or "freed" as well as the child of a foreign father "in the service of his Nation.""
166 8 U.S.C. § 1401 (general provision covering birth abroad to one or more U.S. citizen parent); 8
U.S.C. § 1409 (regarding children born "out of wedlock").
167 8 U.S.C. § 1431 (some other categories of children of U.S. citizens are eligible to apply for
citizenship after birth abroad); see 8 U.S.C. §1432.
168 ELKE WINTER, EUDO CITIZENSHIP OBSERvATORY REPORT ON CITIZENSHIP LAW: CANADA 3-
5(2015).
169 Id.
170 See discussion infra Part IV-C.
171 Citizenship Act, R.S.C. 1985, c C-29, s 3(1)(b) (exemplifying that Canada's inherited citizenship
regime became slightly less robust in 2009 when it began excluding second-generation Canadians born
abroad); GOV'T OF CANADA, CHANGES TO CITIZENSHIP RULES 2009 TO 2015 (Apr. 29, 2020), at
https://perma.cc/52T2-5QRB (detailing recent changes that led to Canada's citizenship regime today).
172 DIEGO ACOSTA, REGIONAL REPORT ON CITIZENSHIP: THE SOUTH AMERICAN AND MEXICAN
CASES 2 (Sept. 2016), https://perma.cc/PW72-YSGB.
173 I use the English term "citizenship" for purposes of simplicity, but there was actually a distinc-
tion between terms describing "nationality" and the smaller group of nationals with full "citizenship"
rights in South American countries in the nineteenth century, a distinction still followed in several coun-
tries. Id. (explaining that several countries still distinguish between "nationals" and "citizens," who have
reached the age of majority and are able to exercise political rights).
174 Mignot, supra note 3, at 4 (arguing that most Latin American countries have applied uncondi-
tional inherited citizenship rules since independence in order to "populate and promote their territory,"
ensure loyalty, and terminate interference from European countries of origin).
175 ACOSTA, supra note 172, at 2-6.
176 PATRICIA JERONIMO, REPORT ON CITIZENSHIP LAW: BRAZIL 3-5 (Jan. 2016),
https://perma.cc/B6XN-TLPB (the new Brazilian law recognized unconditional birthplace citizenship,
removing paternal domicile and residence requirements inherited from Portuguese colonial law).
177 Id.
178 Id.
179 CONSTITUICAO FEDERAL [C.F.] [CONSTITUTION] art. 12(l)(a) (Braz.).
180 JERONIMO,supra note 176, at 19-27.
81 ERDILMEN & HONOHAN, supra note 107, at 2-4, 6-8 (stating that no E.U. Member State recog-
nizes birthplace citizenship without parental status or residence requirements); VIORELIA GASCA,
COUNTRY REPORT: MOLDOVA 7-12 (Apr. 2010), https://perma.cc/QGM2-A9ZQ; DUMBRAVA, supra
note 107, at 2-3 (Moldova is the only European country recognizing unconditional birthplace citizenship
and the only country in Central and Eastern Europe with "(any) general rules" of birthplace citizenship).
182 Gerard-Rend de Groot & Olivier Vonk, Acquisition of Nationality by Birth on a ParticularTer-
ritory or Establishment by Parentage:Global Trends Regarding Ius Sanguinis and lus Soli, 65 NETH.
INT'L L.REv. 319, 331 (2018).
183 See CHARLES C. MANN, 1491: NEW REVELATIONS OF THE AMERICAS BEFORE COLUMBUS
(2006) (describing devastating effect of European arrival in the Americas, including estimated population
destruction of around ninety-five percent); Alexander Koch, Chris Brierley, Mark M. Maslin & Simon
L. Lewis, Earth Systems Impacts of the European Arrival and Great Dying in the Americas after 1492,
207 QUARTERNARY SCI. REVIEWS 13 (2019) (providing recent account of the "Great Dying" of native
peoples in the Americas following first contact with Europeans and Africans and estimating a native
population decrease of between 5 and 60 million, resulting in abandonment of so much cleared land it
created a detectable impact on atmospheric carbon dioxide and global surface air temperatures for two
centuries).
1 See Dan Bilefsky, The Reawakening of Quebec's Nationalism, N.Y. TIMES, Nov. 1, 2019,
https://perma.cc/T3Z3-M9BX; but see Julia Preston, Mexico's Overtures to the Zapatistas Bring Ten-
sions in Chiapas to a New Boiling Point, N.Y. TIMES, March 6, 1998, at A8 (describing the smaller
Zapatista movement in Chiapas, Mexico, which expressed concern for self-determination of indigenous
people in that Central American region).
185 See discussion supra Part IV-A.
European weapons, diseases, and policies wiped out most of the native people and
institutions on these territories.' Enticing European immigrants was both a reason
for this genocide and a necessity resulting from it. Newly independent states in the
Americas sought to attract European immigrants to encourage their loyalty to their
new nations, and to end their allegiance to and protection from their countries of
origin through laws promising that any "white" men born in a state's territory would
be full-fledged citizens.' This incentive enticed adventurous people seeking land,
fortune, freedom, social status, and opportunities they were unlikely to ever enjoy in
their homelands. Without it, the American states would have had hardly any citizens
of their own, only native people they wanted to exclude and settlers with various
foreign national allegiances.
Both primary inherited citizenship systems and dual systems that include
unconditional birthplace citizenship face serious criticism. Inherited citizenship fo-
cused rules arguably promote unethical, ethnocentric, sectarian, or racist policies and
create permanent underclasses of noncitizen inhabitants, whose parents and grand-
parents also lived in the jurisdiction, while simultaneously recognizing citizens who
have never even visited the country of their citizenship. Unconditional birthplace cit-
izenship, on the other hand, has been said to create "accidental" unintentional citizens
and to allow foreigners to sneak into a jurisdiction without permission to have what
critics call "anchor babies," eventually providing citizenship benefits to the chil-
dren's other family members.
A third group of countries has been trying to eliminate some of these per-
ceived problems. Seeking a middle ground, they create hybrid forms of limited birth-
place citizenship, depending on the status of a child's parents, to supplement inherited
citizenship rules. This includes a slowly growing number of countries that have mod-
ified their original birthplace citizenship laws to add limitations based on inheritance
or other conditions." The examples of the U.K., Australia, Ireland, New Zealand,
and the Dominican Republic are discussed below.
Another group of states that originally relied exclusively on inherited citi-
zenship have added birthplace citizenship options for children whose parents have
some specified status or experience. States such as Germany and Belgium now grant
citizenship to children whose non-citizen parents have been legally resident there for
a specified period. The most widespread hybrid rules, however, are "double jus soli"
or "third-generation" citizenship laws, providing citizenship to children born within
89
the state if their noncitizen parents also were born there.1 In addition to the European
90
countries listed above, some African and Asian states also recognize this rule.'
189 Id. at 322 (labelling these "double ius soli," and categorizing them as a type of "conditional ius
soli").
190 MANBY, supra note 30, at 3 (stating that more than twenty African states have laws either rec-
ognizing third-generation birthplace citizenship or allowing naturalization of children born in the state to
foreign parents if the children reside there until they attain the age of majority).
191 Calvin v. Smith (1608), 77 Eng. Rep. 377, 397 (KB) (England also continued to recognize in-
herited citizenship in the context of a subject's child born abroad); Price, supra note 92, at 83 (citing De
Natis Ultra Mare 1350, 25 Edw. 3 c. 2 (Eng.)).
192 Charles Blake, Citizenship, Law and the State: The British NationalityAct 1981, 45 MODERN L.
children, who are not citizens at birth, also have a conditional right to "register" as
citizens if they manage to reside in the U.K. for the first ten years of their lives.196
Fears of overpopulation and of racial minorities, complicated by Britain's
expansive colonial legacy, appear to have motivated the 1981 Act.19 1 As the Home
Office Minister responsible for proposing changes to British immigration laws at the
time explained: "We have got finally to dispose of the lingering notion that Britain is
somehow a haven for all those whose countries we once ruled."' 8 A Conservative
party resolution demanded less immigration because "Britain is a small and over-
crowned [sic] island and great care is needed to ensure that the future identity of the
nation is not overwhelmed by outside influences .... "99
Britain's uncommonly extensive, but dissolving, colonial footprint has com-
plicated the modern evolution of its citizenship laws. Yet, its retreat from birthplace
citizenship to a more limited, inheritance-focused regime is not uncommon among
its former colonies or other colonial powers.
When the British Nationality Act 1981 came into effect, it ended birthplace
citizenship in several British Overseas Territories as well as the U.K.200 Other mem-
bers of the British Commonwealth soon followed this example. Australia adopted the
new British template for limiting birthplace citizenship in the Australian Citizenship
Amendment Act 1986. Now, it provides automatic citizenship upon a child's birth
on its territory "only if ... a parent of that person is an Australian citizen, or perma-
nent resident, at the time" or if the child is a foundling. 20' Further echoing the U.K.
law, a child may gain automatic Australian citizenship after birth through adoption202
or through ten years as an "ordinarily resident" there.203 Although its basic citizenship
rules are similar to the British model, its determination of parentage for citizenship
purposes are complicated by Australia's federal family law structure.2 4
Like in the U.K., the Australian law may have stemmed from a fear of
masses of outsiders, particularly non-white outsiders. Proponents of the 1986 bill
across the political spectrum expressed anxiety of what American immigration re-
strictionists label "anchor babies," that is, "pregnant women coming from overseas,
having a child in Australia" who can later sponsor the parents' applications for per-
manent residency. 20 The Minister of Immigration and Ethnic Affairs explained, the
"generosity of [Australia's birthplace citizenship law] can be exploited by visitors
196 British Nationality Act 1981, c. 1, § 1.4; see also U.K. HOME OFFICE, REGISTRATION AS A
BRITISH CITIZEN: CHILDREN OF BRITISH PARENTS (Aug. 9, 2019), https://perma.cc/T6H5-P7FL.
197 Leonard Downie, Jr., British Conservatives Urge Thatcher to Cut Nonwhite Immigration Fur-
ther, WASH. POST, Oct. 12, 1979.
198 Blake, supra note 192, at 182.
199 Downie, supra note 197.
200 British Nationality Act 1981, c. 61; see also GLOBAL LEGAL RESEARCH DIRECTORATE, LAW
LIBRARY OF CONGRESS, supra note 151 (noting changes in Anguilla, Bermuda, British Indian Ocean
Territory, the Channel Islands, the Falkland Islands, Gibraltar, Montserrat, Saint Helena, and Turks and
Caicos).
201 Australian Citizenship Act 2007 (Cth), ss 12(1)(a), 14.
202 Id. s 13. The Act came into effect in 1983.
203 Id. s 12(1)(b).
204 See discussion supra Part III-C.
205 PETER PRINCE, PARLIAMENT OF AUSTRALIA, WE ARE AUSTRALIAN-THE CONSTITUTION AND
THE DEPORTATION OF AUSTRALIAN-BORN CHILDREN 18, n.67 (Nov. 24, 2003), https://perma.cc/NFZ6-
TX5K (quoting Opposition Spokesman for Immigration and Ethnic Affairs, Liberal Alan Cadman, in
support of the government's bill).
and illegal immigrants who have children born [t]here in order to seek to achieve
residence in Australia." 206 The Australian press expressed fear of a "growing army of
illegal immigrants." 207 Although calls to increase the percentage of immigrants from
European countries was rejected by Australia's Labor Prime Minister, it is reasonable
to assume that racial anxiety played a significant role in the shift away from birth-
place citizenship at a time when Asian immigrants surpassed the dropping number of
U.K. immigrants within a decade after elimination of the longtime "White Australia"
policy. 208
In 2004, Ireland also followed the U.K.'s example, backing away from un-
conditional entitlement to Irish citizenship for "every person born in the island of
Ireland." 209 In a referendum that year, the Constitution of Ireland was amended to
exclude citizenship for any Irish-born person "who does not have, at the time of ...
birth ... , at least one parent who is an Irish citizen or entitled to be an Irish citizen
... unless provided for by law." 2 0 The Irish Nationality and Citizenship Act of 2004
then extended citizenship transmission to Irish-born persons with a parent who was
a permanent resident of Ireland or Northern Ireland, who was a British citizen, or
who otherwise had been resident in Ireland for at least three of the four years imme-
diately preceding the birth. 2
As in Britain and Australia, the limitations on birthplace citizenship in Ire-
land seemed to stem from fear of mass immigration and of undocumented immi-
grants' establishing citizenship through an "anchor child," complicated by Ireland's
position as the only remaining E.U. Member State with an unconditional birthplace
citizenship law.2 2 The familiar ethnic factor was particularly clear in the case of Ire-
land, which maintains a generous law of citizenship for descendants of long-past Irish
emigrants. As one scholar has pointed out, this citizenship by descent opens the door
to a much larger pool of possible immigrant citizens less familiar with Ireland than
citizenship for children of its current residents.2 3
Finally, New Zealand followed its commonwealth cousins when in enacted
the Citizenship Amendment Act of 2005, replacing a general birthplace citizenship
206 Id. at 16. These claims were made despite Australian High Court decisions that families in such
circumstances could be deported with no additional rights due to the children's citizenship status. See id.
(citing Kioa v West (1985) 159 CLR 550).
207 Id. (citing Illegal Visitors Find Gap in Law, SYDNEY MORNING HERALD, May 7, 1985, at 3).
208 RAYNER THWAITES, REPORT ON CITIZENSHIP LAW: AUSTRALIA § 2.5.2 (May 2017),
https://perma.cc/6YR5-Y9TK (describing the gradual abandonment of the White Australia Policy);
MICHAEL KLAPDOR ET AL., PARLIAMENT OF AUSTRALIA, AUSTRALIAN CITIZENSHIP: A CHRONOLOGY
OF MAJOR DEvELOPMENTS IN POLICY AND LAW 11-12 (Sept. 11, 2009), https://perma.cc/EKY5-7KJP
(describing the immigration trends leading to the 1986 Act).
209 CONSTITUTION OF IRELAND 1937 art. 2. This provision was inserted in 1998 following the Bel-
fast Agreement and multi-party negotiations in Northern Ireland. See Siobhan Mullally, Citizenship and
Family Life in Ireland:Asking the Questions Who Belongs, 25 LEGAL STUD. 578, 579 (2005).
210 CONSTITUTION OF IRELAND 1937 art. 9(2).
211 Irish Nationality and Citizenship Act 2004 (Act No. 38/2004), s. 4, https://perma.cc/3EP2-
WBLB.
212 Mullally, supra note 209, at 590.
213 Id. at 587, 590. The Constitution of Ireland expressly recognizes the importance of its emigration
history, expressly stating "the Irish nation cherishes its special affinity with people of Irish ancestry living
abroad who share its cultural identity and heritage." CONSTITUTION OF IRELAND 1937 art. 2. Unlike Italy,
however, Ireland requires non-resident citizens by descent to register before transmitting citizenship to
the next generation abroad. JOHN HANDOLL, COUNTRY REPORT: IRELAND § 3.1 (Oct. 2012)
https://perma.cc/FSH7-WQ9Y.
rule with a hybrid rule looking to the status of its parents to determine whether a child
born in New Zealand would be a citizen."' The parent must be either a citizen, per-
manent resident, or other legal resident."' New Zealand also recognized the usual
exceptions for foundlings and children who otherwise would be stateless."'
Reasons for the change in New Zealand followed the familiar pattern of con-
cern about the growing immigration of "foreigners." As in Australia, there were
anecdotal stories and a popular belief that foreign over-stayers were having children
in New Zealand in order to prevent their deportation,' although the legal reality did
not necessarily support such widespread fear in either country. 2 ' In addition to the
usual fear of cheats and change, New Zealand's shifting citizenship regime seems to
have been influenced by the trend established in other commonwealth countries, in-
cluding the U.K., Australia, and Ireland.22 o
While it still appears to consider itself to follow a dual birthright citizenship
system, the Dominican Republic (D.R.) also recently shifted to a hybrid regime sim-
ilar in theory to those in the U.K., Australia, New Zealand, and Ireland. The D.R.
adopted its current constitution in 2010, providing Dominican nationality to persons
born on Dominican territory, except the children of diplomatic personnel and of "for-
eigners in transit or residing illegally in the Dominican territory."2 2 1 The Constitution
specifies that "[a]ny foreigner ... defined as such in the Dominican laws is consid-
ered a person in transit .... "22 2 This broad language has been interpreted expansively
by the Dominican Constitutional Court to encompass whatever the relevant officials
wish, even retroactive application to strip citizenship from previous citizens.22 3
The Dominican change from a robust birthplace citizenship regime to one
where this birthright depends on a child's parents' status seems to have stemmed
from racial and cultural fears focused mainly on people of Haitian background. Haiti
had once occupied the neighboring Dominican Republic in the early nineteenth cen-
tury. Now, some Dominican nationalists envisioned Dominicans of Haitian origin as
"a menacing alien force bent on retaking the Dominican Republic one immigrant
and one baby - at a time."22 4 By 2013, the Dominican Constitutional Court held that
the term "foreigners in transit" was expansive enough to cover descendants of Haitian
immigrants who had entered as "temporary" workers any time since 1929. This ret-
roactive redefinition of "foreigners in transit" rendered many thousands of second-
214 KATE MCMILLAN & ANNA HOOD, REPORT ON CITIZENSHIP LAW: NEW ZEALAND § 2.5 (July
2016), https://perma.cc/7W7L-XP3Z.
215 Id
216 Id
217 Id
218 Id
219 Id.
220
Id.
221 CONSTITUCION DE LA REPUBLICA DOMINICANA (2010), art. 18 (transl. by author).
222 Id.
223 See Tribunal Constitucional [T.C.] [Constitutional Tribunal] Sept. 23, 2013, "Sentencia
TC/0168/13," 2013 ANUARIO TRIBUNAL CONSTITUCIONAL DE LA REPiJBLICA DOMINICANA 319,
https://perma.cc/B8WK-RDG2.
224 Ediberto Roman & Ernesto Sagis, Birthright Citizenship Under Attack: How Dominican Na-
tionality Laws May be the Future of U.S. Exclusion, 66 AM. U.L. REv. 1383, 1390 (2017).
2
and third-generation Dominicans of Haitian descent stateless. It has been con-
demned by the Inter-American Court of Human Rights and other international organ-
izations.2 26
While the states described above have been adopting new hybrid rules lim-
iting their original birthplace citizenship regimes based on the parents' status, another
group of nations has adopted similar hybrid birthplace citizenship rules to expand
their original exclusive inherited citizenship regimes. Particularly in continental Eu-
rope, there has been a move to recognize "third-generation" birthplace citizenship for
2
children born in the same state as their noncitizen parents. " Luxembourg and Spain
do so automatically and unconditionally; other countries provide conditional birth-
place citizenship, requiring particular terms or status of residence for the child's par-
ents. 2 Some European countries also recognize birthplace citizenship for children
whose parents have been legally resident in that state for a given period or who have
become lawful permanent residents.22 9
Spain was an early adopter of the third-generation principle. Surprisingly,
perhaps, it was in 1954 under the Franco dictatorship that Spain first amended its
civil code to include a hybrid citizenship rule, albeit in the limited case of foreign
parents who were both born in Spain and "resident" in Spain at the time of the child's
birth.230 In 1982, democratic leaders expanded this rule to include the children of only
one Spanish-born parent regardless of whether the parents were Spanish "residents"
at the time of birth.23' Today it covers all Spanish-born children of non-citizen second-
22
generation parents.
In 1991, Belgium supplemented its primary reliance on inherited citizenship
by adding paths to citizenship for certain children born to non-citizens in Belgium.
Now, Belgium automatically grants citizenship to a third-generation child born there
to a foreign national parent, who was also born in Belgium and who has lived in
23
Belgium for at least five of the ten years immediately preceding the child's birth.
Belgian-born children whose foreign parents were not born on Belgian territory can
225 Id. at 1392 (explaining that these Dominican-born people were not Haitian citizens and estimat-
ing their number at 200,000 or more); see also ERNESTO SAGAS, REPORT ON CITIZENSHIP LAW:
DOMINICAN REPUBLIC (Nov. 2017), https://perma.cc/4XG5-ARJT.
226 See Expelled Dominicans and Haitians v. Dominican Republic, Inter-Am. Ct. H.R. (ser. C) No.
282, (Aug. 28, 2014); see also Amnesty International, 'Where Are We Going to Live?' Migration and
Statelessness in Haiti and the Dominican Republic 6-7 (June 2016), https://perma.cc/38UL-BRXB (call-
ing for respect of international human rights obligations); Randal C. Archibold, Dominicans ofHaitian
Descent Cast Into Legal Limbo by Court, N.Y. TIMES, Oct. 24, 2013 (describing criticism by the Open
Society Justice Initiative and the U.N. High Commissioner for Refugees).
227 ERDILMEN & HONOHAN, supra note 107, § 4(ii) (listing Belgium, France, Greece, Luxembourg,
Netherlands, Portugal, and Spain).
228 Id. Belgium, Greece, Netherlands, and Portugal fit in the latter category.
229 Id. § 4(i) (listing Belgium, Germany, Ireland, Portugal, and the United Kingdom).
230 RUTH RUBIO MARIN ET AL., COUNTRY REPORT ON CITIZENSHIP LAW: SPAIN § 3.3 (Jan. 2015),
https://perma.cc/JD4Z-KTMA.
231 Id. § 3.4.1.
232 Id. § 4.1.
233 MARIE-CLAIRE FOBLETS ET AL., COUNTRY REPORT: BELGIUM § 3.1 (Sept. 2013),
https://perma.cc/S77L-TC3J.
also qualify if they reside in Belgium for ten years after their birth and a "declaration"
statement is made to the official registrar. 3 4
Greece has liberalized its well-established inherited citizenship acquisition
law by adding birthplace citizenship components hinging on the parents' status. The
Greek rules, like those in Belgium, include a third-generation provision." Also,
Greece simplifies later citizenship by "declaration and application" for a Greek-born
child who enrolls in the first grade of a school implementing the Greek mandatory
curriculum and whose parents were lawful permanent residents for five years prior
to the child's birth or ten years in total.236
The Netherlands attempts to avoid awarding citizenship to a child whose
birth there was "accidental" by requiring that both the child and its parents had their
"principal place of residence" in the territory of the Netherlands or one of its three
Caribbean territories. 237
Although Germany traditionally has been considered a classic example of
the exclusive inherited citizenship model, its laws have evolved over the last two
decades to supplement that system with hybrid birthplace citizenship rules. The Ger-
man Nationality Law of 1913, with its exclusive focus on inherited citizenship, sur-
vived the German Empire, the Third Reich, and the divided Cold War period. How-
ever, a decade after German reunification, the 1913 Act was replaced by the German
Nationality Act of 2000, adding a qualified birthplace citizenship rule to supplement
inherited citizenship.238 Now, German-born children of foreign nationals acquire cit-
izenship if a parent has been a lawful habitual resident of Germany for at least eight
years and if that parent is either an E.U. Citizen or maintains a German settlement
permit.23 9 Leaders like Helmut Kohl once adamantly denied that Germany was a
"country of immigration"-but apparently there has been a belated realization that
the country has now actually become exactly that. The change was necessary in order
to avoid creating a permanent underclass of non-citizen inhabitants and to recognize
the German self-identity of native children of long-time legal residents.
The movement to supplement inherited citizenship with a limited hybrid rule
for domestically born citizens is not limited to Europe. Malaysia and Thailand now
recognize automatic birthplace citizenship if the parents have lawful permanent res-
idence status, and Cambodia now offers automatic third-generation birthplace citi-
zenship rights for children if both of their parents also were born in Cambodia. 240
Over a dozen African countries, almost all former French colonies, also rec-
ognize third-generation birthplace citizenship rights for children with a parent born
on their territory.24 Yet, unlike the European developments described above, this is
not a new trend in Africa. Many of these African states were first subject to third-
234 Id
235 DIMITRIS CHRISTOPOULOs, COUNTRY REPORT: GREECE § 3.2 (Jan. 2013),
https://perma.ce/5LGB-MCNQ.
236
Id; see MINISTRY OF THE INTERIOR, How CAN I BECOME A GREEK CITIZEN,
https://perma.cc/U6D6-2DMT (archived Feb. 19, 2022).
237 de Groot & Vonk, supra note 182, at 322-23.
238 FARAHAT & HAILBRONNER, supra note 33, § 1.
239 Id § 3.1. Among
other things, settlement permits require German language skills. Id
240 VONK, supra note 121, §§ 2, 3.1.2.
241 MANBY, supra note 30, at 1, 38 (listing Benin, Burkina Faso, Cameroon, Congo Republic,
Ga-
bon, Ghana, Guinea, Mali, Mauritania, Mozambique, Niger, Senegal, and Tunisia; all except Mozam-
bique were French colonies or protectorates).
Laws defining familial status and those providing for property and citizen-
ship inheritance have closely linked purposes and histories, and essential parallels
remain apparent today. The European Court of Human Rights recently found that
parentage and citizenship are essential components of a person's identity; it also
found that rights to continued personal relationships with, and property inheritance
24
from, one's parents are essential aspects of the legal recognition of these rights.
These links are fundamental, and the purposes of property inheritance described in
this Part illuminate the purposes of inherited citizenship described in Part VI.
242 See, e.g., EUGENE ARNAUD YOMBO SEMBE, REPORT ON CITIZENSHIP LAW: CAMEROON § 2.2
(May 2021), https://perma.cc/HG5W-U7XB; HEATHER ALEXANDER, REPORT ON CITIZENSHIP LAW:
MALI §§ 2.1, 2.3 (June 2020), https://perma.cc/9YJP-SBKT; IBRAHIMA KANE, RAPPORT SUR LE DROIT
DE LA NATIONALITE: SENEGAL §§ 2.1, 2.2.1 (July 2021), https://perma.cc/Z7SA-724B.
243 See, e.g., SEMBE, supra note 242, §§ 2.2, 3.2.1; ALEXANDER, supra note 242, § 2.3, 3; KANE,
supra note 242, §§ 2.2.1, 3.1.
244 BERTOSSI & HAJJAT, supranote 37, § 3.1.
245 CHRISTINE HOBDEN, REPORT ON CITIZENSHIP LAW: SOUTH AFRICA (Feb. 2018),
https://perma.cc/JH2A-DVDL.
246 See supra text accompanying notes 62-64.
intestate succession. 2 1 Yet the status-based theories of title, estates, and rights of in-
heritance continue to be important tenets of property law.
The modem rules and purposes of property and citizenship status generally,
and their intergenerational inheritance specifically, are functionally and logically
similar in addition to their shared historical and conceptual origins.
Like ethical arguments for open borders and the abolition of citizenship sta-
tus, some scholars and activists have questioned the very foundation of private own-
ership of property. As with citizenship, however, the democratic will of citizens in
modem republics clearly favors legal recognition and state enforcement of private
property rights. 25 s This Article, therefore, assumes the continued existence of private
property rights as well as of privileged citizenship. Of course, this assumption does
not predetermine what happens to a property right when the titleholder dies. Follow-
ing the owner's death, should private property rights continue in some form of private
inheritance? If so, should the will of the dead owner, the existence of surviving family
members, or something else determine the disposition of a deceased titleholder's
property?
These questions have been debated for centuries. Just as the inherited citi-
zenship of "natural born" citizens often has been accepted a priori, some prominent
early thinkers argued that testators have a "natural right" to bequeath property, which
29
they "by necessary implication" have "an absolute right to control . . . forever."
Others disagreed, reasoning that the law only protects the living, and laws of descent
are merely the statutory inventions of legislators based on utilitarian or functional
considerations.260 In his 1894 Harvard commencement speech, a future First Circuit
Court of Appeals judge cited Hale, Blackstone, Coke, Montesquieu, Mill, Bentham,
Ely, and Virginia and Massachusetts Supreme Court opinions for the proposition that
laws regulating the inheritance of private property "rest on nothing deeper than stat-
26
utory law" and the policies on which those laws are formulated. 1The U.S. Supreme
Court also has long endorsed the rationale that the freedom of descent "has always
been considered purely a creature of statute and within legislative control." Modem
2
257 Id. at 259 (noting that most U.S. states abandoned primogeniture before the American Revolu-
tion, and England finally discarded it in 1925).
258 The seventy-year experiment of the U.S.S.R. and other communist countries tested the repeal of
some traditional property law with results lending support to assertions that private property is practically
necessary.
259 Adam J. Hirsch & William K.S. Wang, A Qualitative Theory of the Dead Hand, 68 IND. L.J. 1,
3 (1992) (citing Richard A. Epstein, Pastand Future: The TemporalDimension in the Law of Property,
64 WASH. U. L.Q. 667, 704-05, 710-23); Id. at 6 (citing JOHN LOCKE, THE TWO TREATISES OF
GOVERNMENT 305-06, 329 (Peter Laslett ed., 2d ed. 1970) (1690) and HUGo GROTIUS, DE JURE BELLI
AC PACTS LIBRI TRES 265 (Francis W. Kelsey trans. 1925) (1625)). This "natural" understanding of in-
heritance seems to be a source for those classifying the estate tax as a "death tax." That is, of course,
wrong. Liberal modern societies are organized around persons as individuals, not as generational embod-
iments of familial or tribal rights in relation to property. Taxes upon the transfer of property at death are
levied on the beneficiaries or heirs as new owners, not on the property's dead former-owner, who no
longer has use for it.
260 Hirsch & Wang supranote 259, at 63 (citing WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE
LAWS OF ENGLAND 10-11 (1765-69)); Jeremy Bentham, Anarchical Fallacies, in THE WORKS OF
JEREMY BENTHAM 501 (John Bowring ed. 1962); Stanley N. Katz, Republicanism and the Law ofInher-
itance in the American Revolutionary Era, 76 MICH. L. REv. 1, 7-8 (1977).
261 James M. Morton, Jr., The Theory ofInheritance, 8 HARV. L. REV. 161, 161-63 (1894).
262 United States v. Perkins, 163 U.S. 625, 627 (1895).
263 See Mark Glover, Freedom ofInheritance, 2017 UTAH L. REv. 283, 289 (2017).
264 See, e.g., Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017) (finding a provision of the U.S.
inherited citizenship statute unconstitutionally discriminatory on the basis of gender, but refusing to grant
citizenship as a remedy because of the apparent Congressional intent to require a longer parental physical
presence requirement as a general rule for transmission of inherited citizenship upon birth abroad);
DAVID MILLER, STRANGERS IN OUR MIDST: THE POLITICAL PHILOSOPHY OF IMMIGRATION 62 (2016)
(asserting "the right of a political community to close its borders in order to preserve a meaningful range
of policy choices").
265 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND-BOOK II: OF THE
RIGHTS OF THINGS 10 (1766).
266 Id.
267 Katz, supra note 260, at 1, 3 n. 3 (describing unsuccessful attempts to eliminate or cap property
inheritance in 1918 and 1948 in the U.S.S.R., which eventually settled for an inheritance tax rate lower
than that in many capitalist countries).
268 See supra note 11 and accompanying text.
269 RESTATEMENT (THIRD) OF PROPERTY: WILLS AND DONATIVE TRANSFERS § 10.1 cmt. a (AM.
L. INST. 2003); See also Robert K. Sitkoff, Trusts and Estates:Implementing Freedom ofDisposition, 58
ST. LoUiS U. L.J. 643, 643 (2014).
270 Sitkoff, supra note 269, at 656.
271 Id. at 645.
to inherited citizenship, this Part will focus on these more common, family-based
statutory distribution schemes. Unlike U.S. testators, citizens universally have very
273
limited personal choices regarding who can inherit their citizenship status.
The functional policies underlying rules requiring and ranking family mem-
bers for property inheritance purposes are similar to the policies underlying citizen-
ship inheritance rules. They provide for intergenerational continuity and stability,
practical peace and efficient predictability, and current status-holder's happiness in
providing security for family members. They also maximize societal wealth by:
providing an incentive to the current generation to work hard, save, and invest in the
future, even if they accumulate more than they will personally consume; encouraging
family ties, younger generations' support, and caregiving for older generations; and
coinciding with popular democratic preferences in favor of these traditional arrange-
ments.
Statutes that provide for inheritance by spouses and lineal descendants argu-
ably promote intergenerational continuity and stability. Prominent scholars have
found that rules of inheritance of property are generally "indispensable in any soci-
ety," providing for order in redistributing property after death and "establish[ing] the
terms of the relationship that tie generations together-thus facilitating the seamless
27
continuity of the social fabric over time." As detailed in Part VI-A, birthright citi-
4
272 Ray D. Madoff, The Law of the American Dead, 3 SAvANNAH L. REv. 1, 2 (2016) ("in some
countries, as much as eighty percent of a person's property must be distributed to the spouse and chil-
dren"); THE OXFORD HANDBOOK OF COMPARATIVE LAW 1077, 1085-86 (1st ed. 2008) (describing the
requirements of civil law countries in Europe and South America, as well as Japan).
273 Interesting proposals to allow wide personal choice in the immigration context have not been
adopted. see Jessica Feinberg, The Plus One Policy: An Autonomous Model ofFamily Reunification, 11
NEv. L. J. 629 (2011).
274 Adam J. Hirsch, Inheritance: United States Law, in OXFORD INTERNATIONAL ENCYCLOPEDIA
OF LEGAL HISTORY 235, 235 (Stanley N. Katz ed. 2009). As future Judge Morton explained, "Mill, Ben-
tham, and even Professor Ely ... all agree on certain general principles" that the law of succession should
"consider the wishes of the former owner; . . . secure adequate provision to his family and those depend-
ent on him; [and] . . . promote the equalization of fortunes" to support democracy by avoiding overcon-
centration of wealth. Morton, Jr., supra note 261, at 163. The latter principle is reflected in estate tax
laws that redistribute some portion of inherited property.
275 BLACKSTONE, supra note 265, at 10.
276
Id. at 11-12.
when he is sure that the reward of his services will not die with himself, but
be transmitted to those with whom he is connected by the dearest and most
tender affections. 27
In asserting that property inheritance directly promotes the attributes of good citizen-
ship, Blackstone anticipates one of the stronger arguments in favor of inherited citi-
zenship-that it motivates civic responsibility and investment out of a desire to support
one's children and their children.27
If Blackstone is right that property inheritance rules positively affect the
property owner's behavior prior to death, these rules could help maximize societal
wealth and happiness. Although allowing people to transfer property at death to
whomever they please may be the method to achieve this goal, laws providing for
spouses and lineal descendants also motivate the living to save, plan and invest
wisely, and utilize their property responsibly. Thinkers from thirteenth-century jurists
to modem social scientists have argued that inheritance laws incentivize continued
industry and savings beyond what a living person will ever personally consume. 2 7
Without inheritance, wealthy persons might be more likely to spend their fortunes on
travel to the moon, cryogenics, or wild parties. Yet not everyone is convinced. Some
scholars have placed more emphasis on other motivations, such as ego, prestige,
power, and habit, for working to accumulate more wealth than one can personally
consume. 8 0
In addition to motivating beneficial behavior before death, dividing property
among surviving relatives after death both supports those survivors and strengthens
family relationships as basic societal building blocks, motivating various forms of
intergenerational caregiving and support. Similar arguments can be made regarding
inherited citizenship as a motivator for younger generations to support their elders,
as well as for older generations to support their progeny.2
Of course, there are also compelling arguments against property inheritance.
Most people do not inherit any significant property, and-in the words of de Toque-
ville-inheritance "collects, concentrates, and aggregates property, and before long,
power as well." 2 s2 Property inheritance, therefore, likely perpetuates and magnifies
the gap between rich and poor, which can destabilize rather than pacify societies and
undermine prosperity.2 " Of course, for many in power, this perpetuation of
277 Id at 11.
278 See infra Part VI-C.
279 BLACKSTONE, supra note 265, at 8 (suggesting genetically programed nepotism and social in-
teraction-related altruism as possible sources of satisfaction stemming from bequeathing property to oth-
ers); HENRY DE BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND 182 (Samuel E. Thome trans.,
Belknap Press 1968) (1230); see JOHN STUART MILL, PRINCIPLES OF POLITICAL ECONOMY 221 (Colo-
nial Press 1899) (1848).
280 Hirsch & Wang, supra note 259, at 8. Also, in the context of property, incentives for the be-
queathing generation might result in fewer incentives for heirs in future generations. Id. at 9.
281 See infra Part VI-C.
282 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 54 (Arthur Goldhammer
trans., Library of
America 1st ed. 2004) (1835); see also Brian Nolan, Juan C. Palomino, Philippe Van Kerm, & Salvatore
Morelli, The Intergenerational Transmission of Wealth in Rich Countries, Vox EU, Sep. 19, 2020,
https://perma.cc/A94P-WK4N (finding only one-third of households in seven developed nations report
receiving intergenerational wealth).
283 See RICHARD WILKINSON & KATE PICKETT, THE SPIRIT LEVEL: WHY GREATER
EQUALITY
MAKES SOCIETIES STRONGER 135, 173-174 (2009) (asserting that inequality leads to substantial societal
intergenerational wealth and status is the whole point of property inheritance. This
critique can also be extended to inherited citizenship in a world of vast international
inequality; yet, the obvious answer in that context, open borders, has generally been
rejected. 28 4
Whatever its policy merits or demerits, property inheritance tends to closely
align with popular opinion in most countries, as Soviet leaders learned when they
attempted to abrogate it. 285 In the case of testamentary freedom, one scholar explained
that "[t]he desire to dispose of property by will is very general, and very strong. A
286
compelling argument in favor of it is that it accords with human wishes." Assuming
a choice between familial descent and some other state-devised alternative, the same
strong public opinion likely supports familial inheritance. This also applies to citi-
2
zenship inheritance.
As described in Part VI below, the policy rationales for recognizing property
inheritance rights tend to apply to the laws of inherited citizenship as well. For ex-
ample, the parent whose citizenship is transferred to her children is more likely to be
faithful to the state she shares with them. She is more likely to invest wealth, assert
effort, and exemplify loyalty to the state where her children and their children will
likely be citizens.2 s' Families also can be strengthened by common citizenship and
values.
This comparison of inherited property to inherited citizenship is obvious but
imperfect. Citizenship is-at least in theory-a public good transferred by the state,
rather than a private good transferred by parents. Yet, the state automatically recog-
nizes this transfer of status based on relationships resulting from its citizens' actions.
More consequentially, tangible property is rivalrous: its use by one owner
reduces the ability of others to use it. Citizenship is not rivalrous. If a living citizen
has twelve children who all inherit her citizenship, they will comprise thirteen equal
citizens with the same benefits and duties of citizenship as a childless neighbor who
has no one to inherit his citizenship.2 s' Parents and children can enjoy their common
28
citizenship simultaneously during their lifetime.
These distinctions mean the advantages of inherited citizenship are distrib-
uted more broadly among current citizens and their families than are the advantages
of property inheritance. Unlike most people, who have not accumulated substantial
wealth, most citizens are capable of transmitting citizenship to their children. Thus,
problems, including poor physical and mental health, teenage pregnancy, violence and homicide, mass
incarceration, and lower literacy scores).
284 See infra Part VI-C.
285 Katz, supra note 260, at 1, 3 n. 3.
286 Hirsch & Wang, supranote 259, at 14 (quoting LEWIS M. SiMES, PUBLIC POLICY AND THE DEAD
HAND 21 (1955)).
287 See infra Part VI-F.
288 Knights and other vassals felt bound for generations to their lords and kings, and transfer of
intergenerational family interest and loyalty can still intensify patriotic feelings toward a state.
289 This point is where Ayelet Shachar goes astray in analogizing inherited citizenship and the me-
dieval "fee tail." AYELET SHACHAR, THE BIRTHRIGHT LOTTERY: CITIZENSHIP AND GLOBAL
INEQUALITY 38-42 (2009). Fee tail interests were created to maintain landed estates united in one family.
Successful fee tail planning combined with the idea of primogeniture, requiring one person in each gen-
eration (usually the eldest son) to maintain complete ownership of the rivalrous property. Lucy A. Marsh,
The Demise of Dynasty Trusts: Returning the Wealth to the Family, 5 EST. PLAN. & CMTY. PROP. L.J.
23, 50 n. 186 (2012).
290 This is the basis for the family unity discussion in Part VI-D below.
rich and poor citizens of each country can agree on the intergenerational perpetuation
of inequality between internal "citizenship-haves" and external "citizenship-have-
nots." Thus, inherited citizenship rules may represent an even more insurmountable
political third rail than property inheritance rules.
In summation, the purposes of property inheritance described above closely
resemble the purposes of citizenship inheritance discussed below. From the state's
perspective, both forms of inheritance perpetuate intergenerational continuity, stabil-
ity, and predictability. From a parent's perspective, they provide assurance that their
children will maintain the privilege they have enjoyed, and they motivate hard work
and investment beyond what the parents will personally reap. They also encourage
family ties and intergenerational care and support. Finally, it is practically important
that both forms of inheritance are traditional arrangements, which coincide with pop-
ular democratic preferences.
Part VI will expound on these purposes and their importance in the context
of the citizenship systems described in Part III above. It will also add some unique
additional purposes stemming from family law and the need to maintain both family
unity and the best interests of children.
291 See, e.g., Costica Dumbrava, Bloodlines and Belonging: Time to Abandon lus Sanguinis?,
in
DEBATING TRANSFORMATIONS OF NATIONAL CITIZENSHIP 73-82 (2018) (arguing for birthplace
citizenship without inherited citizenship, which is "historically tainted, [] increasingly inadequate and []
normatively unnecessary"); SHACHAR, supra note 289, at 16 (proposing "jus nexi" political membership
based on actual "connection, union, or linkage").
292 See Baubock, supra note 9, at 501 (ranking circumstances of birth, residence, and choice hierar-
chically in attributing citizenship).
293 Montevideo Convention on the Rights and Duties of States art. 1(a), Dec. 26, 1933, 49 Stat.
3097, 165 U.N.T.S. 3802; see also Vink & Baubock, Citizenship Configurations:Analysing the Multiple
Purposes of Citizenship Regimes in Europe, 11 COMPAR. EUR. POL. 621, 622 (2013) (noting that states
require a permanent population along with a defined territory and capacity to enter relations with other
states). Citizens also play an essential role in another of the four constituent elements of a republic, its
government.
inherited citizenship. There must be other reasons for why most states eschew birth-
place citizenship, as well as why states relying on birthplace citizenship all recognize
inherited citizenship.
The remaining subparts attempt to identify and explain these reasons from
the perspectives of the inheriting citizens and others in the community, including
citizen parents. Many of these purposes coincide with purposes of property inher-
itance identified above.
Subparts B and C focus on some reasons why most nations rely primarily on
inherited citizenship rather than dual or hybrid regimes, that is, why they reject birth-
place citizenship rights. Exclusive inherited citizenship has a popular symbolic value
for promoting continuity and stability by furthering ethnic, religious, and social ho-
mogeneity. 294 Subpart B demonstrates that this preference for homogeneity is a prin-
cipal reason why many states have elected to rely exclusively on inherited citizen-
ship.
Subpart C examines the purposes of inherited citizenship from the perspec-
tive of citizen parents. These current citizens may prefer this rule because it perpetu-
ates their privilege. Thus, exclusive inherited citizenship may be the likely product
of popular will and perceived self-interest, at least in democratically governed
states."' It also may further selflessness by motivating current citizens to sacrifice
now for the benefit of future generations.
Nations that rely primarily on birthplace citizenship for population mainte-
nance and continuity also provide inherited citizenship for children of citizens born
abroad. Thus, there must be important purposes for this rule beyond homogeneity
and a citizens' desire to perpetuate privilege. The motivation of citizen parents to
support future generations, which is covered in Subpart C, is one purpose of inherited
citizenship rules even in the context of a dual birthright citizenship system. Subparts
D through F suggest several additional purposes. For example, inherited citizenship
provides secure shared status for family members, who can enter and remain together
in their common country of citizenship. In addition to motivating current citizens to
sacrifice for their children, inherited citizenship can encourage younger citizens to
support their elders.
Of course, the state is promoting its own interest when it implements rules
furthering the interests of its citizens. Both the state and childless citizens gain from
increased community investments from those within their jurisdiction, and the shared
intergenerational links of family members and friends can further solidarity and loy-
alty to the state and community as well.
Finally, Rainer Baub6ck has noted that deriving citizenship from unchosen
features of one's identity, such as the citizenship of one's parents, "creates a quasi-
natural equality of status .. . and signals that membership is linked to responsibilities
296
for the common good and for future generations." The appearance and widespread
acceptance of a rule as fair and legitimate-importantly-promotes order, stability,
and-sometimes-efficiency.
294 The widespread assumption that inherited citizenship promotes homogeneity often is not actu-
ally empirically sound.
295 MILLER, supranote 264, at 62.
296 Rainer Baub6ck, Ius Filiationis: A Defence of Citizenship by Descent, in DEBATING
TRANSFORMATIONS OF NATIONAL CITIZENSHIP 83, 89 (Rainer Baub6ck ed., 2018). Of course, this
applies to birthplace citizenship as well.
297 See, e.g., Vink & Baubtck, supra note 293, at 621 (delineating a citizenship regime typology
based on various state purposes served by citizenship laws).
298 Id. at 622 (citing 1933 Montevideo Convention on the Rights and Duties of States, art. I(I), Dec.
26, 1934, 165 U.N.T. 19).
Thirty years ago, Rogers Brubaker posited that states like Germany base
their concept of nationhood on ethnicity and tend to rely on inherited citizenship,
while states like France have civil and territorial concepts of statehood and are more
299
likely to rely on birthplace citizenship rules. In addition to the misleading dichot-
omy, this argument has been criticized because countries with unconditional birth-
300
place citizenship, including the United States, have pursued notoriously racist immi-
gration and citizenship policies and because Brubaker's examples (France and
30 Bru-
Germany) have both moved toward a hybrid birthrightcitizenship regime. ' Yet
baker's basic insight is still useful. Modern political movement away from birthplace
citizenship has been based on appeals to nationalism, racism, and religious intoler-
ance, indicating a desire to "return" to the "special links" of a more ethnically, reli-
02
giously, and socially homogenous citizenry.
Political arguments for abolishing or limiting birthplace citizenship often in-
volve populist anxiety about "the other," whether persons of different races, ethnici-
ties, or linguistic and religious traditions. For example, India's current Hindu nation-
alist government has begun disclaiming the citizenship of Muslims whose families
33
have lived in India for generations. The United Kingdom walked away from its
four-century-old birthplace citizenship regime in 1981 based on public anxiety about
incorporating migrants from its far-flung global empire, including persons from Asia,
Africa, and the Middle East. 304 Ireland, Australia, New Zealand, India, Pakistan, and
the Dominican Republic also began abandoning birthplace citizenship as part of pop-
00
ulist movements against increasingly diverse immigrants and "anchor babies." The
following discussion illustrates some of the same political forces at work in ulti-
mately unsuccessful recent movements in the United States, France, and Fiji.
During the 2016 U.S. election, presidential candidate Hillary Clinton con-
troversially stated that half the supporters of her opponent, Donald Trump, belong in
a "basket of deplorables" with "racist, sexist, homophobic, xenophobic, [or] Islama-6
phobic [sic]" views, and she accused him of empowering those "deplorables.""
While there may be disagreement about the characterization of these voters, in both
his "America First" campaign and administration, Trump certainly relied on racist,
xenophobic, and Islamophobic sentiments when he called for eliminating birthplace
314
Id. at 118.
315 IRA J. KURZBAN,
IMMIGRATION LAW SOURCEBOOK 1667-75 (13th ed. 2012).
See infra Part VI-C.
316
317 Editorial, Republicans'Anti-Immigrant Race, N.Y. TIMES, Aug. 20, 2015, at A20 (listing Rick
Santorum, Rand Paul, Ben Carson, Chris Christie, Lindsey Graham, and Bobby Jindal).
318 Id.
319 A Migration Policy Institute study concluded that, without birthplace citizenship, by 2050 there
would be 4.7 million unauthorized persons in the United States, one million of whom would have two
U.S.-born parents. MICHAEL Fix & JENNIFER VAN HOOK, THE DEMOGRAPHIC IMPACTS OF REPEALING
BIRTHRIGHT CITIZENSHIP 7 (2010).
320 Tim Donnelly, The GOP'sBirthrightCitizenship Flip-Flop:Republicans are Divided on Birth-
right Citizenship, One of Their Party's Greatest Achievements, POLITICO (Aug. 23, 2015)
https://perma.cc/YXV2-PUL3 (quoting Senator Cowan).
32' Matthew Haag, Steve King Says Civilization Can't Be Restored with 'Somebody Else's Babies',
N.Y. TIMES, Mar. 13, 2017, at A14 (containing the above-mentioned quote as well as Rep. King's prior
contention that "for every successful child of undocumented immigrants, there were 100 others who were
drug mules with 'calves the size of cantaloupes' from hauling marijuana").
322 See Solsvik & Knudsen, supra note 308 and accompanying text.
323 Jenna Johnson, Trump Callsfor 'Total and Complete' Shutdown ofMuslims Enteringthe United
States, WASH. POsT (Dec. 7, 2015, 7:43 PM), https://perma.cc/2EML-2QTT (describing how Trump's
statement focused on the danger of "horrendous attacks by people that believe only in Jihad," but he cast
suspicion broadly, linking that fear to polls showing "a sizable segment of the Muslim population has
'great hatred towards Americans."').
324 US. Muslims ConcernedAbout Their Place in Society, but Continue to Believe in the American
Dream, PEW RESEARCH CENTER (July 26, 2017), https://perma.cc/46HL-JPA5.
325 Perell6, supra note 83, at 1.
326 Id. at 8-17.
327 de Groot & Vonk, supra note 182, at 320.
328 Bertossi & Hajjat, supra note 37, at §§ 2.7-2.8.
329 Id. at §§ 2.9-2.10.
330 Even before 1993, French birthplace citizenship was, however, delayed and conditional. Auto-
matic citizenship there only became final when the French-born child of foreign nationals turned eighteen
after having lived in France for the previous five years.
331 Documentation of Eurostat'sDatabase on InternationalMigration:Acquisition of Citizenship,
at § 6.5 (2001), https://perma.cc/98FY-5NQJ.
the French." 3 2 Le Pen blamed immigration for French economic decline generally,
as well as unemployment, insecurity, urban overpopulation, "the Babelization of
33
schools," and social security deficits.
As the 1993 French election approached, leaders of one mainstream party
after another joined Le Pen in calling for restrictions on immigration and citizenship.
Jacques Chirac, a former prime minister and perpetual presidential candidate, began
4
by diagnosing the problems of France as an "overdose" of immigrants." Valdry Gis-
card d'Estaing, a former president vying for a return to power, described French im-
migration as an "invasion" and adopted some National Front proposals for restricting
French citizenship, including the elimination of France's delayed birthplace citizen-
ship rule in favor of an inherited citizenship "right by blood.""
The National Front won over twelve percent of the vote in 1993. However,
the mainstream center-right parties' embrace of the Front's restrictionist immigration
and citizenship policies was credited for the popular shift in their direction when the
336
mainstream parties won elections that year. The new National Assembly voted 473
to 92 to eliminate automatic delayed birthright citizenship for children born to for-
eigners in France, as well as automatic citizenship without delay for French-born
37
children of certain citizens of Algeria and other former French colonies. The Justice
Minister vowed to crack down on "fraudulent" acquisition of citizenship by the chil-
338
dren of undocumented immigrants. Polls at the time showed that three in four
3 39
French approved of the new law.
In the end, France was exceptional in that much of its movement away from
birthright citizenship was short-lived. After left-leaning parties won the 1997 elec-
34 0
tions, many controversial changes were revoked. Yet, the ethnic, religious, and so-
cial politics of this French movement to abolish birthright citizenship rules echoed
those in other countries, as French opposition to birthplace citizenship grew in the
face of increased undocumented immigration and growing diversity in the country's
citizenry. The official number of immigrants to France had not increased since World
War II, but there were a significant number of undocumented immigrants, and the
332 Delia Dumitrescu, Up Close andPersonal:The New FrontNational Visual Strategy Under Ma-
rine Le Pen, 15 FRENCH POLITICS 1, 9 (2017); Roger Cohen, Invective Flavors Election in Marseilles,
N.Y. TIMES, Mar. 20, 1992, at A11.
333 Ian Davidson & William Dawkins, The Militant Beneath the Bourgeois; A Conversation with
the One-Eyed Ex-ParatrooperWho Runs France'sNational Front, THE GAzETTE (Montreal), Jan. 11,
1992, at B6.
334 Rone Tempest, FranceIs the ImmigrationLitmus Test, L.A. TIMES, Oct. 1, 1991, at World Re-
port 1 (describing Chirac's commiserations with the deep anger of a hypothetical French worker and
family man, whom he imagined living in a Paris suburb "across the hall" from an immigrant "father,
three or four wives and a score of kids drawing . . . social welfare payments-not to mention the racket
and the smells.").
33s Id.; Sharon Waxman, FranceDebates Immigration Rules, CHI. TRIB., Sept. 29, 1991, at 22.
336 Matthew Fraser, ManipulatingNationalism; The Parallelsin Franceand Quebec, THE GAZETTE
(Montreal), Aug. 7, 1994, at B1.
337 Lawmakers Approve ControversialBill to Tighten Citizenship Code, ASSOCIATED PRESS, May
14, 1993; Bertossi & Hajjat, supranote 37, at § 2.8.
338 Alan Riding, FrenchParliamentApproves Tighter Immigration Controls, N.Y. TIMES, May 14,
1993, at A8.
339 Id.
340 Bertossi & Hajjat, supra note 37, at § 2.9.
ethnic composition of the country's new citizens was shifting from European to Af-
rican. 34' There was also a dramatic increase in the number of Muslim immigrants.342
On the opposite side of the world and of the legacy of colonialism, Fiji pro-
vides another example of a short-lived revocation of birthplace citizenship laws in
favor of exclusive inherited citizenship. Upon independence from Britain, Fiji inher-
ited a birthplace citizenship law, which it reaffirmed in 1987.343 Then, in 1990, it
adopted a new Constitution, providing citizenship to a child only if one of the child's
parents was a citizen. 3" In 1997, it removed this requirement and reinstituted recog-
nition of birthplace citizenship."'
Well before the 1987 coup that led to the limitation of birthplace citizenship
in the 1990 Constitution, an ethnocentric Fijian Nationalist Party had gained influ-
ence under the slogan "Fiji for the Fijians" and a promise to deport the Fijian popu-
lation of Indian descent. 34 Fiji's population was about equally divided between in-
digenous Fijians and Fijians of Indian origin, with a small minority of Europeans,
Chinese, and other Pacific Islanders. 4 7 After the coup, the new Constitution ensured
an indigenous Fijian Prime Minister, Police Service Commission Chairman, and ma-
jority in the House of Representatives, and revoked birthplace citizenship.34 Yet
when Indo-Fijians emigrated in large numbers, Fiji faced other difficulties, and its
political actors began negotiating to reach a "compromise between the civic and Fi-
jian-supremacy conceptions of the nation[,]"34 9 ultimately resulting in more power
sharing and the return of birthplace citizenship.
350
tremendous privilege to others based solely on who their parents are. Citizenship
status can create tremendous advantages or disadvantages, determining access to an
extensive array of rights and responsibilities in a world where economic, political,
and social opportunities differ tremendously from one state to the next. These dis-
crepancies motivate millions of people to risk the dangers that annually kill thousands
who cross the desert to reach the United States or the sea to reach Europe or Aus-
tralia."'
There is now a market for citizenship status, and a set of rankings and in-
2
dexes that reflect the values of various national citizenship statuses." In a world
where citizenship has so much value, it is only natural that current citizens want their
children to inherit the same advantageous citizenship status they have enjoyed. This
desire mirrors the popular demand for property inheritance that has been cited as a
35 3
main reason for that institution's universal acceptance. Of course, citizenship is not
rivalrous like tangible property. Yet, that does not eliminate the impulse to limit cit-
izenship. In a world of limited resources, those with a preferred status may be inclined
to want to maximize the competitive advantages this status provides them and their
children in relation to others. Citizens of France (the top-ranked citizenship in the
most recent index) may not want to dissipate the value of their children's citizenship
by allowing "too much" access to French citizenship. And the perception of "too
much" can be very subjective, perhaps including all birthplace citizenship. Even
French citizens less anxious to limit the number of new citizens would likely want
their own children to enjoy inherited French citizenship.
As various scholars have pointed out, this codification of self-interest and
perpetuation of inherited inequality through "birthright lottery" is neither fair nor eth-
35
ical." 4 Carens describes citizenship inheritance as an unethical feudal remnant. Sha-
char points out that the inheritance of citizenship and property are the only modern
rules by which the intergenerational transfer of resources is still mainly governed by
hereditary entitlement. 356 She illustrates the unfair material consequences of inherited
citizenship by comparison to property, quoting de Toqueville's insight that "the
350 See Joseph Carens, Aliens and Citizens: The Case for Open Borders, in GLOBAL JUSTICE:
SEMINAL ESSAYS (Oliver Schmidtke & Saime Ozeurumex eds. 2008), and JOSEPH H. CARENS, THE
ETHICS OF IMMIGRATION (2013); see also SHACHAR, supranote 289.
351 Migrant Deaths and Disappearances, MIGRATION DATA PORTAL (May 7, 2021),
https://perma.cc/GS3W-TEKM (reporting 33,686 missing/dead migrants between January 1, 2014, and
October 22, 2019, including 18,997 in the Mediterranean and 2,243 at the U.S.-Mexico border).
352 See Andrej Pfivara, Citizenship-for-Sale Schemes in Bulgaria, Cyprus, and Malta, 16
MIGRATION LETTERS 245 (2019); see also Shirin Jaafari, There's big business behind rankings ofpass-
ports and citizenship, THE WORLD (Oct. 31, 2018), https://perma.cc/ZPN8-FYQB (describing indirect
international market of investment-based citizenship and residence acquisition and referencing the Hen-
ley Partners - Kochenov Quality of Nationality Index, which ranks "the quality of nationalities based"
on "internal factors (such as economic strength, human development, and peace and stability) and the
external factors (including visa free travel and the ability to settle and work abroad ... )." The U.S. ranked
25 out of the 167 countries in the General Quality of Nationality Index. See KALIN AND KOCHENOV'S
QUALITY OF NATIONALITY INDEX (QNI), https://perma.cc/7R9A-SVKN (archived Feb. 20, 2022).
3 See supra Part V.
54 In addition to Shachar and Carens, Lois Harder finds this argument "morally bereft," pointing
out that citizens can "continue to care about the future . . . even if, or precisely because, our political
membership is limited by our mortality." Lois Harder, Citizenship Without Magic, in DEBATING
TRANSFORMATIONS OF NATIONAL CITIZENSHIP 109, 112 (2018).
3ss Carens, supra note 350, at 226-28.
356 SHACHAR, supra note 289, at 21 (arguing also that birthplace citizenship is subject to the same
criticism as arbitrary and unfair).
357 Ayelet Shachar, Earned Citizenship: PropertyLessons for ImmigrationReform, 23 YALE J.L.
HUMAN. 110, 114-15 (2011).
358 Carens, supra note 350, at x, 3 (describing how Carens' ethical arguments get at an important
truth without being a practical policy proposal since other priorities and questions of political feasibility
are also important).
359 MILLER, supra note 264, at 62-63.
36 See supraPart V.
361 See supra Part V.
362 See MILLER, supra note 264, at 63.
generations to support and provide care for older generations. While this may be more
likely in cases where testators have the freedom to select to whom they devise their
property, it remains true in jurisdictions where intra-familial inheritance is required
by law. A parallel purpose likely holds true in the case of inherited citizenship. Like
older generations whose tax dollars pay for future schools and infrastructure, younger
generations tend to fight wars and pay taxes for healthcare and social security for
their elders as well. It may be easier to motivate such sacrifice if some of these elders
include close family members.
This all explains why citizens of France may want to recognize inherited
citizenship. Yet one suspects that many parents in Egypt, the 123rd ranked passport
in a recent index, may be just as anxious to ensure their children inherit Egyptian
citizenship. The subparts below explain this phenomenon by describing other practi-
cal advantages of common citizenship for family members, as well as the emotional
pull citizens often feel to preserve ties to the country of their ancestors, which only
seems "natural."
Both state family law and international human rights law have long at-
363
tempted to promote family unity and the best interests of children. Domestic family
law follows the "best interests of the child" standard as its lodestar for issues ranging
from establishing parentage and naming a child, to custody, visitation, and emanci-
pation determinations. 3" This standard is also important under national and interna-
tional law in promoting child welfare and family reunification and in preventing
stateless children. 365
Family reunification and maintaining family unity are common reasons for
3 66 The same concerns underlie inherited citizenship as well. 367
immigration laws.
Keeping a minor child together with a loving parent who wants to care for the child
368
may be important enough to justify citizenship ascription. The European Court of
Human Rights looked to the possible difficulties of children remaining in .their
mother's country of residence if denied access to her citizenship when it recently held
363 DOUGLAS E. ABRAMS, NOEMI R. CAHN, CATHERINE J. ROsS & LINDA C. MCCLAIN,
CONTEMPORARY FAMILY LAw 795-96 (5th ed. 2019) (tracing U.S. adherence to this standard from the
1830s).
36 See, e.g., id., at 702, 794-96, 910, 925, 939.
361 See United Nations Convention on the Rights of the Child, arts. 3, 12, Nov. 20, 1989, 1577
U.N.T.S. 27531 (mandating that decisions affecting children follow the "best interests of the child"); see
also Mennesson Advisory Opinion, supra note 59, at 3.
36 See, e.g., Reform ofLegal Immigration: HearingBefore the Subcomm. on Immigration ofthe S.
Comm. on the Judiciary, 104th Cong. 13 (1995) (in which INS Commissioner Doris Meissner testified
that "[fWamily reunification has been the centerpiece of our [U.S.] legal immigration system for decades,
and it should remain so.").
367 Family separation due to divergent citizenship statuses would conflict with the right to family
life under the European Convention for the Protection of Human Rights and Fundamental Freedoms.
David Armand Jacques Gdrard de Groot, Law of Blood or Blood by Law, in DEBATING
TRANSFORMATIONS OF NATIONAL CITIZENSHIP 127, 127 (2018); see also Mennesson Advisory Opinion,
supra note 59.
368 IsCult Honohan, Limiting the Transmissionof Family Advantage: Jus Sanguinis with an Expira-
tion Date, in DEBATING TRANSFORMATIONS OF NATIONAL CITIZENSHIP 139-41 (Springer 2018).
3" Id
378 Id.
parent could register the child after birth, triggering the loss-under the law of many
states-of the first citizenship.379
In addition to the inter-family problems that would be exacerbated without
common citizenship status, there are other problems common to non-citizen immi-
grants that can be aggravated in mixed-status families. Some of those are described
in the following subpart.
perhaps-only if each non-citizen child is still a minor and if no family member has a
criminal record, disease, or other basis for inadmissibility.383 Once the children be-
come adults, these options could vanish even if everyone is healthy and has always
behaved in an exemplary manner.
Obviously, things could be dire if one or both parents die, which might fore-
close one of the nationality options for the widowed spouse and children. Of course,
divorce could create immigration problems as well. Under modern notions of "best
interests of the child," fit parents generally share legal custody, and they often share
physical custody or visitation rights as well." Yet, even if the couple wants to main-
tain physical proximity to share care and custody for their children, states do not
normally have dependent visa categories or paths to citizenship for the ex-spouses of
their citizens. And minor children may be unable to petition on behalf of their par-
ents. 385
Even absent death, divorce, or unemployment, the family might find it dif-
ficult to remain together due to their divergent citizenship statuses. Schools can be
more expensive for non-citizens, employment may be impossible, and there may be
obstacles or financial disadvantages in property inheritance when one parent dies.
But the worst problems might occur if a family member runs into problems with the
law. For instance, if a teen in this family is convicted of shoplifting, she might be
deported to her country of citizenship, and her conviction might bar her, as a non-
citizen, from entering the countries of her parents' citizenship as well.386 Again, the
family could be separated without recourse.
Only in a world of open borders or one of fungible nations and loners 'with
no family or other relationships could citizenship be divorced from immigration con-
cerns. Once people encounter discrimination based on their citizenship or lack of
citizenship, borders matter, and citizenship opens or closes those borders.
Since at least 1955, when the International Court of Justice published its de-
cision in Nottebohm (Lichtenstein v. Guatemala), discussions of citizenship have of-
ten centered on the concept of "effective and genuine links" between a citizen and
state. If young citizens live within the territory of their state of citizenship or even
spend time with other citizens abroad, their bond with co-citizens other than their
own family is likely to increase. They may develop school friends or other colleagues
and enjoy the fruits of taxpayer investments in their education or even their consular
383 See Immigration and Nationality Act § 212(a), 8 U.S.C. § 1182(a) (listing numerous
criminal,
health-related, "public charge," immigration violations, or other grounds of U.S. inadmissibility). Similar
grounds also tend to make current non-citizens "removable" once they have been admitted. See Immigra-
tion and Nationality Act § 237, 8 U.S.C. § 1227.
384 ABRAMS ET AL., supra note 363, at 877.
385 See, e.g., 8 UtS.C. § 1151 (b)(2)(A)(i) (defining "immediate relatives" exempt from immigrant
visa quotas to include parents, but only if the citizen child is at least twenty-one years old).
386 See Guillermo Diaz-Lizarraga, 26 I. & N. Dec. 847 (U.S. Bd. of Immigr. Appeals 2016) (viola-
tion of Arizona's shoplifting statute constitutes a "crime involving moral turpitude" triggering removal
under INA § 237(a)(2)(A)(ii)).
support abroad. They may serve in the state's military or support it through taxes.
They may see their future in that state. These would be "effective and genuine links."
There is, however, a danger that states could rely too much on inherited cit-
izenship, requiring no further link for families who live abroad for generations.
Someday, if enough "latent" Italians with no contacts to Italy beyond a Sicilian great-
grandparent try to "return" to Italy, there could be an "Italian shepherd" backlash like
that which led to changes in the German citizenship law in 2000.'x'
As this illustrates, birth to citizen parents, or birth within a state's territory,
do not ensure "effective and genuine links." Rather, the situations of birth are mere
proxies for "effective and genuine links," which may develop over time. Yet, in sys-
tems that require baby citizens in order to perpetuate the citizenry over time, these
are reasonable proxies that make it more likely genuine links will develop as the cit-
izens grow up.
They are also widely accepted proxies. Most people, born in the country
where their citizen parents have lived, seldom question their citizenship or think of it
as a status over which they have made a choice. This aprioricertainty about our legal
citizenship status and corresponding personal identity comes naturally to birthright
citizens. Yet, it is not clear whether that natural birthright is due to birthplace or fam-
ily inheritance. In the case of citizens' children born abroad or children born in a
state's territory to non-citizens, the nature of this birthright may be less evident. Yet,
inherited citizenship clearly seems "natural" to lawmakers in every country, and this
foundational sense of inevitability likely inspires loyalty, investment, and hope that
may be reinforced by knowledge that one's parents, one's children, and their chil-
dren's children will likely share the same status and identity.
Inheriting citizenship of one's parents seems "natural" and signals that status
388
is linked to others in the community and even future generations. The widespread
perception of a rule as fair and, perhaps, even "natural" is a primary principle that
has long supported recognition of property inheritance.389 As Oliver Wendell Holmes
once pointed out, "[t]he law can ask no better justification than the deepest instincts
of man." 39' The appearance and widespread acceptance of a rule as fair and legitimate
is valuable because it promotes order, stability, and-sometimes-efficiency. In the
end, this widespread acceptance of inherited citizenship as legitimate, fair, or "natu-
ral" may be as good a reason as any to continue to follow it.
While inherited citizenship, like property inheritance, may seem like a "law
of nature," it is not. It relies, instead, on policy justifications. Yet, given its universal
adoption, these policy objectives should be extremely compelling, and they are. This
Part reveals those objectives by showing how some sort of birthright citizenship is
necessary to meet the essential requirement of maintaining a State's intergenerational
continuity, but that purpose can be served by either inherited or birthplace citizenship.
Many countries have moved away from birthplace citizenship to pursue goals of eth-
nic, religious, or social homogeneity, but the recognition of inherited citizenship rules
387 See supra note 32. Such a backlash may become more likely with increasing acceptance of mul-
tiple citizenship.
388 See supranote 296 and accompanying text.
389 See supra Part V.
3" Oliver Wendell Homes, The Path ofthe Law, 10 HARv. L. REV. 457, 477 (1897). Of course, one
must be careful that universality and "natural" acceptance are not hiding systemic blindness as they did
with the widespread treatment of wives or women in general. See, e.g., supra note 2.
by all the dual system countries indicates there are additional reasons for the rules.
Citizen parents, like parents with property, tend to want to perpetuate their privilege
to their children, and this desire may carry more political weight in the citizenship
context because the value of citizenship is more widely and equally distributed than
property within a state. Yet, there are several reasons why even parents with citizen-
ship that entails little privilege relative to that of other states want to transmit it to
their progeny. Regardless of the relative value of a specific citizenship status, it is
valuable for family members to maintain the same citizenship. Mixed status families
can suffer the discrimination that distinguishes citizens from non-citizens, or-in the
worst cases-they may be temporarily or permanently separated from their family and
other loved ones.
VII. CONCLUSION
Millions of people risk death every year seeking something citizens of the
U.S., the E.U., and Australia take for granted. Yet, every nation on earth recognizes
inherited citizenship, the legal principle on which this distinction is primarily based.
In spite of its significance and universal prevalence, there has been less writ-
ten about inherited citizenship than about the laws governing naturalization and birth-
place citizenship, which have been the subject of intense public debate and scholarly
discussion. Inherited citizenship has been neglected, particularly in the context of the
dual birthright citizenship regimes in the Americas. Perhaps its ubiquity has made it
seem self-evident. Yet, that same universal nature makes it an important subject for
study.
Inherited citizenship fits differently within the three broad categories of cit-
izenship attribution at birth. First, the largest group of states, including most nations
in Europe, Asia, and Africa, sometimes recognizes birthplace citizenship in very lim-
ited cases for "foundlings" or children who would otherwise be stateless. Otherwise,
these states rely exclusively on inherited citizenship systems as the birthright rule to
perpetuate citizenship from one generation to the next. Second, the dual birthright
citizenship systems, mainly located in the Americas, rely on birthplace rules for that
purpose, but use supplemental inherited citizenship rules for children born to citizens
while abroad. Finally, a small, but growing, number of states rely primarily on inher-
ited citizenship, but supplement it with limited hybrid rules such as third-generation
birthplace rules to avoid the perpetuation of a disadvantaged class of multigenera-
tional non-citizen residents.
Five hundred years ago, the first nation-states in Europe adopted dual sys-
tems, relying mainly on birthplace citizenship, but the pendulum has shifted over the
last two centuries. Now, most countries around the world rely mainly on inherited
citizenship. During the period when this shift occurred, however, there has been
countervailing pressure, particularly for expansionist states during the age of imperi-
alism and the ideological competition of the Cold War.
Prior study of property inheritance, another universal legal doctrine, reveals
purposes that also apply in the context of inherited citizenship: intergenerational con-
tinuity and stability, maximization of societal wealth and investment in the future by
exploiting current status-holders' interest in perpetuating their privilege to their prog-
eny, loyalty and sacrifice for the benefit of older generations. These purposes also