730 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 105:694 and habitually resident in, their territory.247 Major human rights NGOs,248 as well as important political theorists, 249 have highlighted the inherently discriminatory aspects of citizenship regimes based wholly on jus sanguinis. Most countries have come to accept some form of jus soli in the acquisition of citizenship.250 Germany presents the most notable example. Notwithstanding its transformation, along with many other European states, to a country of immigration, Germany had been a holdout in maintaining a strict jus sanguinis regime of birthright citizenship.251 Citizenship was not extended at birth even to those children whose noncitizen parents had been born in Germany.252 The difficulty of naturalization and the lack of any jus soli citizenship gave rise to a significant population of second- and third-generation residents (most of them of Turkish nationality) who lacked German citizenship. Consistent with international trends, the 1999 reforms relaxed the hurdles to German citizenship: the new law provided for jus soli birthright citizenship of non-ethnic Germans who were the offspring of persons born in, or longtime residents of, Germany.253 The significant controversy surrounding the nationality reforms was not framed in international law terms. However, “international pressures” were an important motivating factor.254 Major human rights groups, including Human Rights 247 248 European Convention on Nationality, supra note 117, Art. 6(4)(e). As the Open Society Institute Justice Initiative notes: Jus sanguinis is the principle most subject to abuse. Rather than treating descent as a predictor of the state to which an individual will be tied, and the citizenship that individual will logically need, the worst citizenship policies elevate descent to the sole qualification for state protection—as if having a parent born in another country (which might not even have been a separate country at the time) were proof of fundamental unfitness for belonging to a society. Jus sanguinis is also often a proxy for some other immutable characteristic such as ethnicity, language or religion. If citizenship is based on these, then no amount of loyalty to the state, no number of years lived or social ties or great deeds done will make an individual qualify for citizenship. The greater the individual’s ties to a country, the crueler is denationalization. Open Society Justice Initiative, The Face of Statelessness: A Call for African Norms on the Right to Citizenship 4 (2007), at http://www.citizenshiprightsinafrica.org/Publications/2007/TheFaceofStatelessness.02.07.pdf; see also MANBY, CITIZENSHIP LAWS IN AFRICA, supra note 5, at 11–12 (calling for recognition of right to nationality to include territorial birthright citizenship for children of habitual residents); Human Rights Watch Statement, supra note 215 (“The racially discriminatory aspects of policies to acknowledge nationality on the grounds of blood ties alone ( jus sanguinis), with no provision for nationality to be conferred on the basis of place of birth ( jus soli) or on other grounds, require particular scrutiny. The rigid and exclusive implementation of jus sanguinis, if in practice implemented along racial lines, can serve to deny whole populations of rights in what is often the only country they have ever known.”) 249 See, e.g., BAUBÖCK, supra note 2, at 44 – 45. 250 See de Hart & van Oers, supra note 186, at 320. 251 See also JOPPKE, supra note 152, at 40 (characterizing pre-1999 German regime as “extreme”). 252 On the Germany nationality law before the reforms of 1999, see generally Gerald L. Neuman, Nationality Law in the United States and the Federal Republic of Germany, in PATHS TO INCLUSION: THE INTEGRATION OF MIGRANTS IN THE UNITED STATES AND GERMANY 263– 85 (Peter H. Schuck & Rainer Münz eds., 1998). 253 The reform has been characterized as “represent[ing] nothing short of a revolution, ending Germany’s ‘exceptionalism’ by entrenching the principle of jus soli in German law.” Ingram & Triadafilopoulos, supra note 165, at 356. 254 HOWARD, supra note 5, at 124. As political scientist Marc Howard reports on the basis of an interview with a German Interior Ministry official: As international bodies such as the Council of Europe, the European Court of Justice, and the European Court of Human Rights began to play an increasingly important political, moral, and judicial role in Europe, there was a sense that Germany’s law stood out at antiquated, inhumane, and in need of modernization, all of which had a steady, if subtle, impact on key decision makers. This content downloaded from 82.196.111.31 on Thu, 07 Oct 2021 15:20:30 UTC All use subject to https://about.jstor.org/terms