Abolishing Ius Sanguinis Citizenship: A Proposal Too Restrained and Too…
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of ethnic exclusion and degradation in particular socio-legal contexts, and
work to minimise those effects.4
A proposal too restrained and too radical
To be fair, Dumbrava does not extend his proposal to migration and naturalisation policies that enlist the parent-child relationship; indeed, he would
preserve such migration policies. He speaks only of traditional ius sanguinis
citizenship, and argues that it often fails to map on to the reality of modern
family formation, making it inadequate to ‘deal with contemporary issues
such as advances in assisted reproduction technologies’ (ART), same-sex
coupling and marriage, and the steady rise of nonmarital procreation. The
problems Dumbrava identifies in this regard are important and difficult. But
as a remedy for these problems, abolishing parent-child citizenship transmission is simultaneously too restrained and too radical. It is too restrained
because, after abandoning ius sanguinis citizenship we would still be confronted with the difficulty of determining which parent-child relationships
should count for purposes of regulating migration, derivative naturalisation,
and (in many countries) ius soli birthright citizenship. Moreover, in all of
these contexts, the ‘fundamental normative questions about who should be
a citizen in a political community’ – and about the role that the parent-child
relationship should play in that determination – would persist.
At the same time, Dumbrava’s proposal is too radical. He argues that ius
sanguinis citizenship is not necessary to protect children from statelessness
and ‘adds little to the legal and normative character of the parent-child relationship’. On this point I agree entirely with Bauböck and Scott Titshaw that
Dumbrava underestimates the disruptive potential of his proposal. If all
countries recognised unrestricted ius soli citizenship, Dumbrava’s assertion
that ius sanguinis citizenship is unnecessary to prevent statelessness would
be basically correct. But, in fact, very few ius soli countries go that far.
Instead, as noted, they use ius sanguinis concepts to restrict the operation of
ius soli birthright citizenship, thus leaving some children at a risk of statelessness if traditional ius sanguinis citizenship were abolished. And it is not
just formal statelessness that would increase in a world without ius sanguinis citizenship. Children whose citizenship does not align with that of their
4
A particularly notable example of how ius sanguinis principles can operate as
tools of ethno-racial exclusion is the 2013 ruling of the Constitutional Tribunal
of the Dominican Republic, TC/0168/13, which effectively expatriated
ethnic-Haitian individuals born and residing in the D.R., leaving hundreds of
thousands of people stateless.
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