Price on Jus Soli and Statelessness in the Americas

Polly J. Price, Emory University School of Law, has posted Jus Soli and Statelessness: A Comparative Perspective from the Americas, which appeared in Citizenship in Question: Evidentiary Birthright and Statelessness, edited by Benjamin N. Lawrance and, Jacqueline Stevens (Duke University Press 2017):

The New World is comparatively generous in the law’s provision of citizenship to all persons born within national boundaries, including the children of undocumented persons and temporary visitors. A striking feature of citizenship practices in the Americas is the near uniformity of reliance on jus soli. Indeed, the jus soli principle “has primarily become a Western Hemisphere tradition.” The predominance of jus soli is said to account for the relatively low rate of statelessness in the Americas compared with other parts of the world. But the definitions of “stateless” in international law instruments and in practice lack precision and thus confound easy measurements of political, civic, and economic status.

Even jus soli laws that are meant to ensure that people are not born stateless depend on the willingness of a marginalized population to register a birth or for nations to recognize that birth based on the time that undocumented parents reside in the country. In this lead chapter I explore the limitations of the international legal definition of statelessness in order to illustrate two points. First, what should be termed “effective statelessness” is a necessary adjunct to the concept of de jure statelessness. Without this conceptual pairing, we cannot judge the actual relationship between a state and those who belong to it. In the Americas, as I will show, a substantial number of persons entitled to citizenship cannot prove it, or such proof is disregarded by government officials. At the same time, these persons do not qualify for protection under international law because they are not legally “stateless.”

Second, without some measure of “effective statelessness,” claims that the Americas should be viewed as a relative success story because of the jus soli norm are questionable. Jus soli prevents statelessness only where it is accompanied by meticulous and generally recognized documentation. Effective statelessness can exist in any nation, and it is a hidden problem in the Americas, jus soli notwithstanding.

Effective statelessness occurs due to poor documentation of births and administrative ineptitude, as well as intentional discrimination. In the Americas, including the United States, the predominant reasons for effective statelessness include inability to prove nationality, as well as the failure of countries to document or recognize their own citizens. International law treaties on statelessness fail to provide a sufficient safety net and thus offer no meaningful remedy to the problems of ineffective citizenship addressed here.