Ius Filiationis: A defence of Citizenship by Descent
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Yet small children are in any case dependent on their parents’ migration
decisions. This is a an equally strong reason why they also have a claim to
share their parents’ citizenship, since they risk otherwise to remain stranded
in their country of birth or be treated as foreigners in their parents’ country
of nationality. Dumbrava suggests preventing this by ‘conferring full migration rights to children of citizens’. But would migration rights become more
secure if they are disconnected from the legal status of citizenship that is the
only one obliging states to unconditionally admit them? Alternatively, he
suggests to ‘establish a universal status of (legal) childhood that confers
fundamental rights regardless of their or their parents’ citizenship or migration status’. This is what the Children’s Rights Convention, which is one of
the mostly widely signed and ratified human rights documents, aims to do.
The question is not only whether states are willing to respect these rights,
but whether they can be held responsible for protecting them. For this, children need not only human rights, they also need their parents’ citizenship.
Delayed citizenship for all?
Dumbrava has, however, a much more fundamental objection that targets
both ius sanguinis and ius soli: Citizenship as membership in a political
community should not depend on ‘contingent facts of birth (descent or place
of birth)’. This is a common critique that always leaves me puzzled.7 My
very existence depends on these contingent facts. Humans cannot will themselves into being but are thrown into the world without choosing where to be
born and to which parents. What is morally arbitrary is not that states use
these fundamental features of personal identity to determine membership in
political communities, but that in our world citizenship provides individuals
with hugely unequal sets of opportunities. This is not an inherent feature of
birthright citizenship but of the global economic and political (dis)order. If
we want to overcome it, we have to address the causes of global inequality
directly instead of attributing them to those rules that make individuals equal
in status and rights as citizens of a particular state.
Dumbrava’s critique focuses, however, on another birthright puzzle that
has bothered republican theorists. Shouldn’t membership in a self-governing
political community be based on consent? And does it not presuppose cer-
7
For nuanced critiques of birthright citizenship based on this idea see Carens,
J. H. (2013), The Ethics of Immigration. Oxford: Oxford University Press;
Shachar, A. (2009), The Birthright Lottery. Citizenship and Global Inequality.
Cambridge, MA: Harvard University Press.
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