Citizenship: Birth over International Waters and the Refugee Crisis

This article dives into the subject of citizenship in complex situations such as refugee crises and the birth of a child over international waters. Muskan Kalra explicates various laws pertaining to citizenship and the idea of statelessness.

I. Introduction

We hear the word “state” very often. Bluntschli defines the state as “the politically organised people of a definite territory”. Thus, the state is sovereign and provides certain rights to its population, but what if we were born over international waters– would we get the same rights? The concept of international waters, the circumstances that would have prevailed if we were born over international waters and the concept of statelessness, etc., are discussed below.

II. What is meant by International waters?

Before understanding the meaning of International Waters, we should focus on the term territorial waters. It is defined as waters up to 12 nautical miles from shore under the sovereign jurisdiction of the state and here the state can punish violations of its customs, fiscal, immigration, or any other policy.

The Law of Sea Convention also provides one more maritime zone, Exclusive Economic Zone (EEZ), up to 200 nautical miles offshore. A coastal nation can claim “an exclusive economic zone” and in this zone, countries can only exercise limited jurisdictions. If territorial waters or exclusive economic zones of the two countries overlap each other, then both the countries need to agree and can set a limit of each other’s claims

Therefore, international waters can be defined as waters outside the territorial waters of any state.

III. What if you were born over international waters?

For instance, if a pregnant American woman boards a plane to Germany and as the plane passes 37,000 ft. above Karachi, she goes into labour. As soon as the baby takes birth, the first question will be- what will be the citizenship of the child? The question of citizenship is crucial because it confers certain basic rights to an individual such as protection by the state, right to vote, right to hold public offices. In short, it defines the relationship of an individual and the state.

Here, it can be decided by two criteria- Jus Soli or Jus Sanguinis. Jus soli is a Latin term, meaning the law of the soil, commonly known as birthright citizenship. It means that an individual’s citizenship will be determined by the place where the individual was born. It is the most common way to acquire citizenship.

For example, if a child of an immigrant is born in a country which follows the Jus Soli system, then the child will get the citizenship of the country of immigration. Jus Soli is common in the USA, Argentina, Canada, Brazil, Pakistan, Mexico etc.

Jus Sanguinis means the “right of blood” when a person acquires citizenship through descent i.e., through their parents or ancestors (independent of where he/she is born). For example, the grandmother could be enough for a blood relative to qualify a current generation for citizenship

If we talk about India, according to the Ministry of Home Affairs, there are four ways in which Indian citizenship can be acquired- by birth, descent, registration and by naturalisation listed under Sec 3, 4, 5(1), 5(4) of the Citizenship Act, 1955.

• By birth

1. Every person born in India on or after 26.01.1950 but before 01.07.1987 is an Indian citizen irrespective of the nationality of his/her parents.
2. Every person born in India between 01.07.1987 and 02.12.2004 is a citizen of India given either of his/her parents is a citizen of the country at the time of his/her birth.
3. Every person born in India on or after 3.12.2004 is a citizen of the country given both his/her parents are Indians or at least one parent is a citizen and the other is not an illegal migrant at the time of birth.

• By registration

Citizenship can also be acquired by registration. Some of the mandatory rules are:

1. A person of Indian origin who has been a resident of India for 7 years before applying for registration.
2. A person of Indian origin who is a resident of any country outside undivided India.
3. A person married to an Indian citizen and ordinarily resident for 7 years before applying for registration.
4. Minor children of persons who are citizens of India.

• By descent

1. A person born outside India on or after January 26, 1950, is a citizen of India by descent if his/her father was a citizen of India by birth.
2. A person born outside India on or after December 10, 1992, but before December 3, 2004, if either of his/her parents was a citizen of India by birth.
3. If a person born outside India or after
   December 3, 2004, has to acquire citizenship, his/her parents have to declare that the minor does not hold the passport of another country and his/her birth is registered at an Indian consulate within one year of birth.

• By naturalisation

A person can acquire citizenship by naturalisation if he/she is ordinarily resident of India for 12 years (throughout 12 months preceding the date of application and 11 years in the aggregate) and fulfils all qualifications in the third schedule of the Citizenship Act.

IV. Statelessness

What if you were born over international waters and you didn’t get recognised by any state?

Under international law, there is a concept of a “stateless person”. It refers to an individual who is not recognised as a national by any state under the operation of its law. Thus, if there is no link between an individual and a country, then that individual is termed “stateless”.

Causes of Statelessness

Statelessness can result in varied circumstances. Some of them are:

• Conflict of law

The problem of statelessness can arise due to the conflict of laws (Jus Soli and Jus Sanguinis).

For example, George was born in state A but state A grants nationality only by descent (Jus Sanguinis), whereas George’s parents are nationals of state B and state B grants nationality based on Jus soli.

In some states, individuals are allowed to renounce their nationality without the acquisition of another. This can also result in statelessness.

• Administrative process

Sometimes even if individuals are eligible for citizenship, there can be a presence of excessive administrative fees, deadlines that cannot be met or an inability to produce the required documents.

• Discriminatory Practices

In some countries, when a woman gets married, her nationality status gets automatically altered and in some states, a child cannot get nationality based on the nationality of the mother. The woman can also become stateless if she receives her husband’s nationality at the time of marriage but thereafter, if the marriage gets dissolved, it can also lead to statelessness. There can also be the presence of racial discrimination based on race, colour descent, etc.

The United Nations’ take on statelessness

There were various conventions adopted by the UN to overcome the crisis of statelessness:

• 1951 Convention relating to the status of refugees

This convention has highlighted the legal obligations of the states towards the protection of refugees. It stated that refugees should not be sent back to the countries where they have the fear of persecution until they are dangerous to the security of the state. The refugees are also required to maintain public order. It also includes:

Article 21 – the right to have a house

Article 26 – the right to move freely within the territory

Article 31 – the right to not be punished for illegal entry while in the territory of a contracting state.

• 1954 Convention relating to the status of the stateless person

In this convention, the meaning of a stateless person was defined and it also provided the guidelines related to the basic rights and everyday problems faced by them. Some of its provisions are:

Article 5 – the right to freedom of religion.

Article 22 – The right to education.

Article 27 – A stateless person not having a travel document to be issued with identity papers by the contracting state.

• 1961 Convention on the Reduction of Statelessness

This convention came with the agenda of the right to nationality for all and it gave effect to Article 15 of the Universal Declaration of Human Rights to eradicate the crisis of statelessness. Some of its provisions are:

Article 1 – Subject to certain conditions, granting nationality to all stateless children born in their state, automatically or upon application.

Article 2 – granting nationality to those children that are found abandoned in their state.

Agencies working towards statelessness

• UN High Commission for Refugees (UNHCR)

It is the agency of the UN with the motto to eradicate statelessness by 2024 and it states that if they get political and public support, this dream can become a reality. It assists refugees in getting basic needs such as food, shelter, etc. It named this campaign as #iBELONG.

To ensure that no child is brought into the world stateless, some of its measures were:

1. Resolving the current statelessness situation.
2. Elimination of gender discrimination law.
3. Preventing statelessness in the event of state succession.
4. Facilitating naturalization of stateless migrants.
5. Ensuring birth-registration.
6. To accede to the UN Convention relating to statelessness.

• Institute on Statelessness and Inclusion (ISI)

It is a global NGO working to eradicate statelessness and to provide refugees with basic human rights. It has also launched a strategic plan 2018-2023 to create awareness about statelessness and to find solutions for it.

• European Network on Statelessness

It is a civil society alliance established to protect stateless people in Europe and to avoid unnecessary detention of stateless people. Its motto is “Everyone has the right to a nationality”.

Recent situations regarding statelessness in the Indian Context

Migration is a phenomenon of human civilisation and recently, the Indian government introduced the Citizenship Amendment Act (CAA), which also led to a massive influx of people

This Act is one of the major steps regarding the state of refugees in India. This act amended the Sec 2(b) of the Citizenship Act of 1955 which defines ‘illegal immigrants’ – by excluding persons belonging to minority communities, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians belonging to Afghanistan, Bangladesh and Pakistan, from the ambit of ‘illegal immigrants’.

Furthermore, the amendment adds a new section, 6B, which reduces the period of naturalisation for such group of persons from 6 years to 5 years, while maintaining the period of naturalisation for Muslim immigrants at an unchanged 12 years. This act has been termed discriminatory in nature.

V. Conclusion

The state and its population share a unique bond. The state plays an important role in the life of an individual and it provides us with the right to vote, right to education, etc. but most importantly, it acts as a watchman safeguarding the rights of an individual. If due to some circumstances, an individual remains stateless, then it can be a hindrance to various rights and it can lead to various complications. Therefore, steps should be taken to combat statelessness.

Law along with proper implementation is one of the wheels which can help society to conquer such problems and can show the way ahead. Hopefully, there will come a day when the refugee crisis will be minimal or will no longer exist- a way to a peaceful world.

Refugees are human beings too.

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By – Muskan Kalra

The author is Studying Law at DES Law college (Fergusson), University of Pune

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1. International Law; Notes, Case Laws and Study Material
2. Aliens; Admission, Expulsion and Rights under International Law