Abstract
Traditionally citizenship by birth (Jus Soli) and Citizenship by Descent (Jus Sanguinis) are two main kinds of acquiring citizenship. However, with the advent of globalization, movement of people across borders have increased due to various socio-economic reasons. This has led to the problem of illegal immigrant and statelessness. Developed nations are reluctant to give citizenship to these immigrants as they have crossed the border as illegal immigrants.
In order to deal with this crisis, Professor Aylet Shachar argues that citizenship should be given on the basis of ‘rootedness’ or ‘real and effective connect’ with the community. This concept is based on the argument that citizenship is akin to ‘Property’ and it needs to be ‘earned’ rather than acquired through birth or descent[1]. Under this model, a person acquires citizenship if he can show a long-term commitment and loyalty to a particular polity. This is despite the fact that he entered the country as an illegal immigrant. In order to establish ‘real and effective connect’ the actual conduct of the individual should be looked into account, this could be in the form of length of residence, family ties, employment history, community participation[2].s
By taking the example of the Law of Returns in Israel and the citizenship status of the Bihari community in Bangladesh, this Paper argues that Jus Nexi citizenship might not be helpful in every case of illegal immigration especially when the State is formed based on a common identity. Further, it is no way advisable to replace Jus Soli citizenship with Jus Nexi citizenship. Rather, it will be better if States incorporate Right to Nationality and the process of naturalization in its citizenship laws as a protection against Statelessness.
Introduction
In his seminal essay What is a Nation, Ernest Renan, says that a nation’s existence is based upon a ‘daily plebiscite’.[3] This ‘daily plebiscite’ implies that there needs to be an unwritten agreement between the nation-state and its people. This agreement is even more necessary in a heterogenous nation because its existence is not based upon a common language, religion or race, but a willingness to live together.
Based upon this ‘consent theory’, scholars started questioning the two notions of citizenship i.e. jus soli and jus sanguinus. Scholars argue that these concepts ignore the aspect of consent as it is based upon birth or descent, both of which are not in the control of an individual. Finally, Ayelet Shachar came up with the idea of ‘Jus Nexi’ citizenship which takes into account the ‘real and effective’ attachment with the polity[4]. Although the concept is worthy considering globalization has created lots of illegal and undocumented migrants, it has its limitations too if we consider it to be a substitute for jus soli citizenship as suggested by Shachar[5]. I would discuss the limitations of the concept by giving the example of Israel’s Law of Return and the status of Bihari community in Bangladesh.
[1]Ayelet Shachar, Earned Citizenship: Property Lessons for Immigration Reforms, Yale Law Journal, https://law.yale.edu/sites/default/files/documents/pdf/SHACHAR_Earned_Citizenship_YJLH.pdfLast Seen: 29.11.2024
[2]Matter of Martin (1978 Board of Immigration Appeals)
[3]Ernest Renan, What is a Nation?, http://ucparis.fr/files/9313/6549/9943/What_is_a_Nation.pdfLast Seen: 29.11.2024
[4] Anna Moltchanova, The Birthright Lottery: Citizenship And Global Inequality, The Journal of Carnegie Council for Ethics In International Affairs, Winter 2010 (24.4) (Review), https://www.ethicsandinternationalaffairs.org/journal/the-birthright-lottery-citizenship-and-global-inequality-by-ayelet-shachar#:~:text=%22The%20Birthright%20Lottery%22%20puts%20forward%20an%20account%20of,to%20alleviate%20global%20inequalities%20of%20wealth%20and%20opportunity Last Seen: 29.11.2024
[5] Ayelet Shachar, The Birthright Lottery: Citizenship And Global Inequality, Harvard University Press, 2009