Sep 24

Sep 24 Space born Baby: What’s Your Citizenship?

Citizenship Tree For the Space Born Baby | Alex S. Li

“I love these little people; and it is not a slight thing when they, who are so fresh from God, love us.”

— Charles Dickens

With SpaceX’s recent announcement of the first lunar space tourist, a voyage deep into Outer Space is no longer the exclusive realm of astronauts: it is now open to the “common folks” (well that is if you have the dough…).

As we take our initial steps into an era where, one day, space travel might be as common as air travel, the thought of passports made me think of the still-hypothetical situation of a baby being born outside of Earth. Specifically, what would the baby’s citizenship be if the birthplace were a space station, space craft, the futuristic moon base, or the Mars colony?

While no existing laws specifically address “space-born babies,” I believe citizenship laws that govern extraterritorial birth could be relevant. And how these regulations would apply will depend largely on the nation that controls the facility that served as the birth-ground in Outer Space.

Jurisdictional Laws Related to Outer Space

Like a court, before we can get into the substantive question of citizenship, we must figure out the jurisdiction and the laws we should apply. Therefore, we must first define what territory constitutes “Outer Space.” Located at an altitude of 100 kilometers, 62 miles, or 330,000 feet above Earth’s sea level, the Kármán Line is the most widely accepted demarcation point for the start of Outer Space (**February 2019 Update: though this might change, see my post on Redefining the Kármán Line: Drawing the Boundary for Outer Space**). Named after Theodore von Kármán, anything above this altitude would be considered above a nation’s air space and in the international arena of Outer Space.

Under Article II of the seminal Outer Space Treaty, no nation may lay any sovereign claims “by means of use or occupation, or by any other means” to Outer Space and any celestial bodies. Hence, jurisdictionally-speaking, territories in Outer Space act like international waters with no ownership rights and the ability to operate freely. Therefore, by being born in a territory owned by no one, the individual born in Outer Space would appear to be stateless at birth.

However, if a birth were to occur in Outer Space, it will likely take place in a spacecraft, a space station, or a space base. Here, Article VIII of the Outer Space Treaty states that the nation “whose registry an object launched into Outer Space is carried shall retain jurisdiction and control over such object, and any personnel thereof, while in outer space or on a celestial body.” Therefore, as suggested in an earlier post, for all practical purposes, a nation would still be able to “claim” useful territories within Outer Space as its own as humans cannot live in a vacuum. Hence, that baby might not be stateless if the nation “controlling” the birthplace has laws that automatically grant citizenship for babies born in its territories.

But, as detailed in this post, not every country applies this doctrine of Jus Soli—citizenship based on soil. Additionally, for some countries whose laws are based on this concept, an “outlying territory” might be excluded from the automatic grant of citizenship. For instance, United States’ State Department’s Foreign Affairs Manual explicitly notes, in 8 FAM 301.1-3, that “[d]espite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States . . . . A child born on the premises of such a facility is not born in the United States and does not acquire U.S. citizenship by reason of birth.” The manual also states that a child born on a U.S.-registered aircraft outside U.S. airspace also does not acquire U.S. citizenship by reason of the place of birth. Since a space station or a spacecraft could be considered a facility abroad or an aircraft, this rule arguably could exclude a baby born in Outer Space from outright citizenship.

So for these individuals whose citizenship can’t be conferred based on jurisdictional principles alone, we will need to explore how citizenship could be granted.

The Two Principle Doctrines: Soil vs. Blood

Before we explore how modern-day citizenship laws might apply to space-born babies, it will be helpful to look at the two theories that form the backbone to most of the world’s citizenship laws: Jus Soli (Latin for “Right of Soil”) versus Jus Sanguinis (Latin for “Right of Blood”).

Jus Soli: Land-based Citizenship

As previewed earlier, jurisdictions that trace the origins of their citizenship laws to the concept of Jus Soli will grant citizenship based on the land where the baby was born: a person would automatically have citizenship of that country if that individual is born within the nation’s territory. A part of the English common law, Jus Soli-based citizenship laws can be found in most countries that trace their origins from English colonies.

While the Jus Soli concept seems very black and white (you are either born in the territory or not), over time, countries with this doctrinal background have made their citizenship laws more restrictive. For instance, as explored above, the United States does not consider its oversea facilities as a part of its territories.

Jus Sanguinis: Blood-based Citizenship

Meanwhile, nation-states that apply Jus Sanguinis form of citizenship laws would look to the citizenship status of the baby’s parents to determine whether the baby would qualify for that country’s citizenship. This concept of “blood lineage” can be traced back to Roman law which forms the legal foundation of many countries that subscribe to civil-law based systems.

As a side, while beyond the topic of this post (and the blog), the interaction between the rise of restrictive Jus Soli and Jus Sanguinis citizenship laws has caused a rise in statelessness.

O Baby! Where do You Belong?

With this background, we can now turn to the main question: how would a space-born baby acquire citizenship? Unsurprisingly, like most legal answers, it really depends on the circumstances. In this case, it is a decision-tree analysis that starts with the simple question: which nation controls the birthplace facility?

Citizenship of a Space-born Baby under “Jus Sanguinis Territory”

If the baby is born on a space station/ship/base of a country that operates under the Jus Sanguinis model, that baby will most likely inherit the citizenship of his or her parents. Since citizenship is “soil-independent,” the Outer Space birthplace, while unique, should have no bearing on that baby’s citizenship status. However, even for countries operating under the “Right of Blood,” there could be some limitations to this automatic grant of citizenship.

For instance, under newly revised Canadian citizenship laws, individuals that are born outside of Canada can only obtain Canadian citizenship if they are the first generation to be born outside of Canadian land. So, if the space-born baby’s parents were Canadian citizens solely by the “first generation” rule, then the baby would not qualify for Canadian citizenship, and could become stateless.

Citizenship of a Space-born Baby under “Jus Soli Territory”

If the baby were born on a space station/ship/base of a country that applies the Jus Soli theory and such nation does not have any restrictions for such territories, then that baby would automatically obtain that country’s citizenship under the “Right of Soil.” But, if there are restrictions, then we would need to figure out if the baby would be to obtain citizenship through other citizenship laws of this country or whether the baby could get the parents’ citizenship through the land-independent Jus Sanguinis doctrine.

For example, a baby born in a U.S.-flagged spacecraft would likely not have automatic U.S. citizenship via “right of soil” due to regulation FAM 301.1-3. In this case, we will next look at the baby’s parents’ citizenship status. If the baby’s parents are U.S. citizens, then under U.S. laws, this would turn on the martial status of the baby’s parents. If the parents are married, then the rules of 8 U.S. 1401 would apply, but if the baby was born out of wedlock, then the procedures under 8 U.S. 1409 would apply. If the baby’s parents have citizenship in a country that applies Jus Sanguinis doctrine, then we would look to see if the baby can satisfy that country’s citizenship-by-birth requirements.

A New Frontier

So while Outer Space does not belong to any nation, the exact birthplace, and which country controls that space, still matters. Should an Outer Space-born baby fail to qualify for any country’s citizenship, then that individual could become stateless. In this case, the United Nations Treaty on the Convention Relating to the Status of Stateless Persons should come into play and provide protections for the stateless space-born baby. However, the treaty has only been signed by 23 nation-states, and most of them do not possess space crafts nor have send individuals into Outer Space.

Yet if such a birth were to occur and given that a space-born baby could be a mini celebrity in his/her own right, instead of being stateless, I am confident that nation-states would be jumping over one other to quickly revise their citizenship laws so that they all can claim such an unique baby as one of their own.