Birth aboard aircraft and ships
Encyclopedia
The subject of birth aboard aircraft and ships is one with a long history in public international law. The law on the subject, despite the provisions of Article 3 the 1961 Convention on the Reduction of Statelessness
, is complex, because various states
apply differing principles of nationality
, namely jus soli
and jus sanguinis
, to varying degrees and with varying qualifications.
and death
s aboard an aircraft
registered to that state are considered to have occurred on national territory, and thus the nationality laws of that territory apply. One such was § 32(5) of the British Nationality Act 1948
. However, this did not solve the problems caused by dual citizenship and conflicts with other states claiming equal competence through the application of the jus sanguinis
principle.
, articles 17–21, all aircraft have the nationality of the state in which they are registered, and may not have multiple nationalities. For births, the law of the aircraft's nationality is applicable, and for births that occur in flight
while the aircraft is not within the territory of any state, it is the only applicable law. However, if the aircraft is in or flying over the territory of another state, that state may also have concurrent jurisdiction, and the locus in quo
principle may apply to the exact position of the aircraft when the birth occurred.
There are still very few Member States that are party to the 1961 Convention. Furthermore, conflicts of laws still exist, in particular between the laws of North and South American states, which typically adhere to the jus soli
principle, and the laws of European states, which usually adhere to the jus sanguinis
principle.
are U.S. citizens. An important exception to this rule is that children born to people who (in line with the Fourteenth Amendment to the United States Constitution
) are not "subject to the jurisdiction" of the United States (e.g. diplomat
s accredited with the United States Department of State
) are not automatically U.S. citizens. Despite a common misconception to the contrary, birth on board a U.S.-flagged ship, airliner, or military vessel outside of the 12-nautical mile (22.2 km) limit is not considered to be a birth on U.S. territory, and the principle of jus soli
thus does not apply.
1961 Convention on the Reduction of Statelessness
The Convention was originally intended as a Protocol to the Convention Relating to the Status of Refugees, while the 1954 Convention Relating to the Status of Stateless Persons was adopted to cover stateless persons who are not refugees and therefore not within the scope of the Convention Relating...
, is complex, because various states
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
apply differing principles of nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
, namely jus soli
Jus soli
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
and jus sanguinis
Jus sanguinis
Ius sanguinis is a social policy by which citizenship is not determined by place of birth, but by having a parent who are citizens of the nation...
, to varying degrees and with varying qualifications.
Historical background
Prior to the 1961 Convention, quite a number of states expressly provided, in their laws, that birthsChildbirth
Childbirth is the culmination of a human pregnancy or gestation period with the birth of one or more newborn infants from a woman's uterus...
and death
Death
Death is the permanent termination of the biological functions that sustain a living organism. Phenomena which commonly bring about death include old age, predation, malnutrition, disease, and accidents or trauma resulting in terminal injury....
s aboard an aircraft
Aircraft
An aircraft is a vehicle that is able to fly by gaining support from the air, or, in general, the atmosphere of a planet. An aircraft counters the force of gravity by using either static lift or by using the dynamic lift of an airfoil, or in a few cases the downward thrust from jet engines.Although...
registered to that state are considered to have occurred on national territory, and thus the nationality laws of that territory apply. One such was § 32(5) of the British Nationality Act 1948
British Nationality Act 1948
The British Nationality Act 1948 was an Act of the Parliament of the United Kingdom that created the status of "Citizen of the United Kingdom and Colonies" as the national citizenship of the United Kingdom and its colonies....
. However, this did not solve the problems caused by dual citizenship and conflicts with other states claiming equal competence through the application of the jus sanguinis
Jus sanguinis
Ius sanguinis is a social policy by which citizenship is not determined by place of birth, but by having a parent who are citizens of the nation...
principle.
Contemporary laws
Under the 1944 Convention on International Civil AviationConvention on International Civil Aviation
The Convention on International Civil Aviation, also known as the Chicago Convention, established the International Civil Aviation Organization , a specialized agency of the United Nations charged with coordinating and regulating international air travel...
, articles 17–21, all aircraft have the nationality of the state in which they are registered, and may not have multiple nationalities. For births, the law of the aircraft's nationality is applicable, and for births that occur in flight
Flight
Flight is the process by which an object moves either through an atmosphere or beyond it by generating lift or propulsive thrust, or aerostatically using buoyancy, or by simple ballistic movement....
while the aircraft is not within the territory of any state, it is the only applicable law. However, if the aircraft is in or flying over the territory of another state, that state may also have concurrent jurisdiction, and the locus in quo
Locus in quo
Locus in quo means, in British common law, the "scene of the event", orThe phrase comes from the Latin language, meaning "The place in which"....
principle may apply to the exact position of the aircraft when the birth occurred.
There are still very few Member States that are party to the 1961 Convention. Furthermore, conflicts of laws still exist, in particular between the laws of North and South American states, which typically adhere to the jus soli
Jus soli
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
principle, and the laws of European states, which usually adhere to the jus sanguinis
Jus sanguinis
Ius sanguinis is a social policy by which citizenship is not determined by place of birth, but by having a parent who are citizens of the nation...
principle.
United States
U.S. law holds that natural persons born on foreign ships docked at U.S. ports or born within the limit of U.S. territorial watersTerritorial waters
Territorial waters, or a territorial sea, as defined by the 1982 United Nations Convention on the Law of the Sea, is a belt of coastal waters extending at most from the baseline of a coastal state...
are U.S. citizens. An important exception to this rule is that children born to people who (in line with the Fourteenth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
) are not "subject to the jurisdiction" of the United States (e.g. diplomat
Diplomat
A diplomat is a person appointed by a state to conduct diplomacy with another state or international organization. The main functions of diplomats revolve around the representation and protection of the interests and nationals of the sending state, as well as the promotion of information and...
s accredited with the United States Department of State
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
) are not automatically U.S. citizens. Despite a common misconception to the contrary, birth on board a U.S.-flagged ship, airliner, or military vessel outside of the 12-nautical mile (22.2 km) limit is not considered to be a birth on U.S. territory, and the principle of jus soli
Jus soli
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
thus does not apply.