Nationality of the Child Born Onboard a Ship: the “Right of Blood” and the “Right of Soil” Approach

Globalisation leads to an increase in the migration of people around the world. The development of international tourism and business contacts between citizens of different countries leads to a significant increase in the number of foreign nationals in different states. At the same time, the development of the cruise industry has led to the situation where citizens of third countries spend long time (days, weeks) on cruise ships flying the flag of a third-party state (a state foreign to these citizens). The issue of determining the citizenship of the child born onboard such a ship is of current interest. Modern legal doctrine distinguishes two grounds for obtaining of citizenship: “right of blood” and “right of soil”.¹

The essence of the “right of blood” is that the newborn child is a citizen of the state of which its parents are citizens. Most states in the world follow the “right of blood” approach to determine the nationality of the child and, on the face of it, the child’s place of birth is not legally relevant under this approach. The implementation of the concept of “right of blood” leads to limitations in the naturalisation process of immigrants, as it does not allow their children to automatically acquire the citizenship of the state using the “right of blood”, nor on the basis of the “right of soil”.

European countries have completely abandoned the “right of soil”. The last European country to change its citizenship legislation in this part was Ireland, which in 2005 stopped regarding all born on its territory as citizens. Since then, the citizenship of the parents and the link to Ireland, such as the period of residence in the country (parents must prove that they have lived in the country for at least four years before the birth of the child) are relevant for the determination of the child’s citizenship. This solution protects against mass migration of aliens pursuing citizenship in another country.

Thailand in the first half of the 20th century gave citizenship to people by “right of soil”. But faced with a wave of Chinese migrants, it imposed restrictions in 1956, which were tightened in 1972 when it feared the immigration of refugees from Burma. As a result, Thailand switched completely to the “right of blood” doctrine.

A number of other states, such as the US, profess a “right of soil”.² After the US Civil War in 1868, the 14th Amendment to the US Constitution was passed, a section of which declares all those born on US soil its citizens regardless of the citizenship of their parents. However, in 2018, US President Donald Trump announced that he planned to abolish the right to US citizenship for foreign children on the grounds that they were born in the United States. “We’re the only country in the world where a person comes in, has a baby, and the baby essentially becomes a US citizen for 85 years with all the benefits... It’s ridiculous. It’s ridiculous and it has to end”, – Trump said on Axios on HBO.

The above approach has repeatedly led to people born at sea being left without any citizenship, pursuant to the limited interpretation of the “right of soil” doctrine.³

Acquisition of citizenship in the Russian Federation

In the Russian Federation, the principle of the “right of blood” is enshrined as the main principle for the recognition of citizenship. Thus, according to part 1st of Article 12 of the Federal Law “On Citizenship of the Russian Federation”, a child acquires citizenship of the Russian Federation at birth, if on the day of birth both of his parents or his only parent have citizenship of the Russian Federation (regardless of the place of birth of the child). It is on the basis of the above legal norm that citizenship is obtained by most citizens of the Russian Federation.

A detailed analysis of the legislation of the Russian Federation allows us to establish that the principle of the “right of blood” in determining a child’s citizenship is not absolute. Thus, in accordance with Article 12 of the Federal Law “On Citizenship of the Russian Federation”, if one of the parents of a child is a citizen of the Russian Federation and the other parent is a citizen of a foreign state, the child is a citizen of the Russian Federation if he is born in the territory of the Russian Federation.⁴

At the same time, according to Article 67 (1) of the Russian Constitution, the territory of the Russian Federation includes the territories of its constituent entities, internal waters and territorial sea, and the airspace above them. Relevant provisions can also be found in the Federal Law of 31.05.2002 № 62-FZ (ed. from 30.12.2020) “On Citizenship of the Russian Federation”, Article 12, the RF Law “On the State Border of the Russian Federation” from 01.04.1993 № 4730-1, the Federal Law “On internal sea waters, territorial sea and contiguous zone of the Russian Federation” from 31.07.1998 № 155-FZ, the Federal Law “On exclusive economic zone of the Russian Federation” from 17.12.1998 № 191-FZ, the Federal Law “On continental shelf of the Russian Federation” from 30.11.1995 № 187-FZ etc.

Acquisition of nationality by a child born onboard a ship

The modern understanding of state territory is derived from its definition as the space to which the legal provisions of a given state apply, where the public authorities have the right to lawfully enforce and comply with legal provisions. Among the existing definitions of state territory, the prevailing understanding is that it is “the terrestrial space within which the inherent supremacy (territorial supremacy) of the state operates, in other words, the space within which the state exercises supreme power and which it disposes of by organising it in administrative (for the purposes of administration) terms and by establishing its legal regime (in whole and in part)”.⁵

It would seem that this approach does not allow a warship, much less a civilian vessel, to be regarded as the territory of the State, on the basis that the State, although exercising supreme authority over the object in question, such an object is not an immutable “terrestrial space” and therefore has a fundamentally different status as compared to the constitutional and legal status of a territory. At the same time, however, there is no doubt that the national status of a warship or military aircraft is virtually indistinguishable from that of a territory. Naval vessels and aircraft in such a case have extraterritoriality, i.e. are fully subject to Russian jurisdiction.

Thus, from the literal interpretation of Article 67 of the Constitution of the Russian Federation, as well as taking into account the doctrinal definition of this term, a child born on a cruise ship flying the flag of the Russian Federation outside the territorial sea of the Russian Federation cannot be considered a citizen of the Russian Federation on the above-mentioned basis. An exception is if the parents of the newborn have the citizenship of the Russian Federation, as the “right of blood” applies, which derives from the Federal Law from 31.05.2002 № 62-FZ (ed. from 30.12.2020) “On Citizenship of the Russian Federation”.

Despite the fact that the law of the flag (lex fori) does not confer extraterritoriality rights over a ship, the rules of international maritime law in fact confer full jurisdiction over the ship of the flag state in question on the high seas. According to Article 28 (1) of the UN Convention on the Law of the Sea, a ship must fly the flag of only one State and, apart from exceptional cases expressly provided for in international treaties or in this Convention, be subject to its exclusive jurisdiction on the high seas.

The exclusivity of state jurisdiction over a vessel of its nationality on the high seas, is evidenced by the fact that not only civil, but also criminal law norms apply to the above vessel (Article 11 of the Criminal Code of the Russian Federation). At that, the above-mentioned criminal law norms apply both to citizens of the Russian Federation and to foreign nationals.

The above provisions show that there is an extremely strong legal link between a ship on the high seas and the State of flag she is flying. This is the case both in civil (private) relations and in relations of a public law nature.

The principle of the bond between the child and the state

Nationality, by its very nature, is the strongest link between a person and a particular state. It seems correct that when a person is born on a cruise ship that flies the flag of the Russian Federation on the high seas, the same rules should apply to such a child as if the child had been born on the Russian territory, given the legal bond between the Russian Federation and the child, expressed both through the nationality of one of its parents and through the law of the flag.⁶

It should also be noted that the stated principle of a strong bond between the flag country and the birth child is established from international law.

According to Article 1(3) of the UN Convention on the Reduction of Statelessness, a child born in wedlock in the territory of a Contracting State and whose mother was a national of that State acquires this nationality at birth if she would otherwise be stateless.⁷

In addition, according to Article 1 (3) of the aforementioned Convention, any Contracting State shall grant its nationality to any person who would otherwise be stateless and who cannot acquire the nationality of the Contracting State in whose territory he was born as a result of leaving the age at which he could have applied for it, or if he has not satisfied the required conditions of residence, if at the time of his birth either of his parents had the nationality of the first of the Contracting States mentioned above. If his parents did not have the same nationality at the time of his birth, the question whether the person concerned should acquire the nationality of his father or the nationality of his mother shall be determined by the national law of that Contracting State. If the acquisition of such nationality requires the making of an application, the application shall be made to the appropriate authority by or on behalf of the applicant in accordance with the procedure prescribed by that national law.

The birth of a child on the high seas where one of the parents is a Russian citizen is likely to result in the child becoming stateless. Consequently, the problem of a large number of stateless persons leads to the need to address at the international level the situation of possible statelessness of a person born on the high seas. This is precisely the problem that the above-mentioned rule of the Convention addresses, creating a legal obligation on the state to grant a person the nationality of his or her father or mother if the person has no legitimate expectation of any other nationality.

The rights of stateless persons

Article 3 of the UN Convention on the Reduction of Statelessness explicitly requires that births on a ship or aircraft be deemed to have taken place, respectively, in the territory of the State whose flag the ship flies, or in the territory of the State in which the aircraft is registered.

It should be noted that the Russian Federation has not ratified the UN Convention on the Reduction of Statelessness and has no legal obligations in this context.⁸ At the same time, it should be noted that persons born on the high seas and who are consequently stateless, in this case absolutely unjustified, face serious restrictions on their rights.

For example, on 18 April 2017, the Constitutional Court of the Russian Federation examined in a public session a case concerning the constitutionality of Articles 31.7 and 31.9 of the Code of Administrative Offences of the Russian Federation. The case was brought on the complaint of a stateless person, Noe G. Mshiladze.

Noe Mshiladze, a native of Georgia residing in St. Petersburg, has been repeatedly tried for a number of crimes. In 2014, the Russian authorities decided that he was undesirable and deported from the Russian Federation. Mkhiladze was therefore placed in a special facility for the temporary detention of foreign nationals. However, the Georgian side refused to accept the compatriot because Mshiladze, being a stateless person, does not have Georgian citizenship, so he was released from the special facility in August 2015.

In December 2015, Noe Mshiladze was prosecuted under Article 18.8(3) of the Code of Administrative Offences of the Russian Federation. He was sentenced to an administrative fine and expulsion from Russia. Mshiladze was placed in the detention centre for foreign nationals of the Russian Federal Migration Service in St. Petersburg and the Leningrad Oblast, where he has been held, since neither Georgia nor any other country has expressed a willingness to accept him. All attempts to obtain a stay of execution of Noe Mshiladze’s expulsion order and his release from the detention facility, initiated both by the applicant himself and by officials of the Russian Federal Migration Service, were rejected by the courts. In their decisions, they referred to the fact that the contested legal provisions, while setting a two-year limitation period for the execution of any administrative penalty, did not provide for the review of the administrative expulsion decision and the termination of its execution because there was no actual possibility of such an expulsion of a particular person.⁹

The Constitutional Court found the provisions of Articles 31.7 and 31.9 of the CAO of the Russian Federation to be incompatible with the Constitution of the Russian Federation.¹⁰ The Constitutional Court has spoken out against the indefinite and aimless confinement of foreigners and stateless persons if their expulsion from the Russian Federation is effectively impossible. Similarly, the Constitutional Court has demanded the adoption of amendments that would provide for a procedure for releasing such persons and a time limit for their detention in the Temporary Detention Centre for Foreign Nationals. Such amendments have not yet been submitted to the State Duma.

Statelessness is a negative phenomenon for both stateless persons and the state, as the former cannot claim the political protection of any state and are also restricted in their rights. A person who is stateless cannot enjoy the full range of rights inherent in a citizen. Stateless persons enjoy the same scope of rights as foreign nationals. For example, stateless persons cannot be members of political public associations, cannot hold public office in the governing bodies of the Russian Federation, and they cannot be subject to military service.¹¹ Thus, although it is unlikely that this is a mass phenomenon, minors with a de facto strong connection to the Russian Federation (part 3 of Article 1 of the UN Convention on the Reduction of Statelessness, the Federal Law “On Citizenship of the Russian Federation”) are in a disadvantaged legal position due to the above-mentioned gap in legal regulation.

Conclusion

The norms set out in the UN Convention on the Reduction of Statelessness seem logical, aimed at preventing an increase in the number of stateless persons. The provisions of the aforementioned Convention do not violate or contradict the norms of the Russian Constitution, given that the Russian Constitution does not directly regulate the principles of acquisition of Russian citizenship (unlike, for example, the US Constitution, which indicates the “right of soil” as a basis for acquisition of United States citizenship). It seems important, in order to fill the gaps in Russian legal regulation, for the Russian Federation to accede to the UN Convention on the Reduction of Statelessness and to implement the norms of the Convention into Russian legislation, including by introducing appropriate point-by-point amendments to a number of laws and by-laws.

The Russian Federation’s accession to the Convention and the implementation of its norm in national legislation is possible in the longer term. For the time being, it seems necessary to expand the interpretation of “territory” in the text of Article 12 of the Federal Law “On Citizenship of the Russian Federation” and extend it to sea, river and air vessels flying the Russian Federation State Flag, based on a systemic interpretation of Russian law, or to supplement the said article with a note reading as follows: “For the purposes of the said article, sea, river and air vessels flying the Russian Federation State Flag are also considered as the territory of the Russian Federation”. ■

Notes