These stories make great headlines but frankly they are a very silly reaction to a very serious subject. They ignore both the complex contexts that arise when nation-state laws conflict and a much better argument against jus soli which addresses a very fundamental question of whether or not a state can confer citizenship on an individual involuntarily. This is a legitimate question because it has real world consequences for ordinary people.
For every case of "birth tourism" there are many more cases where the birth of a child outside of the home territory was pure chance - a conjunction of events like temporary expatriation for business, studies abroad or tourism. And, unless the parents themselves are stateless, this child already has a nation, a nationality, a citizenship conferred by jus sanguinis (blood). By what right does the United States of America confer citizenship on a child of another nation-state without the consent of the parents, the child himself or the other state?
And the answer is quite simply that all nation-states have the right to make their own citizenship laws and confer citizenship as they wish where they wish. Any one of you reading this blog with the most tenuous link to another country could wake up tomorrow and discover that you are now considered a citizen of state X in addition to whatever citizenship you already have and regardless of where you are living.
It's just that odd. And it might remain an oddity that merely causes occasional inconvenience if it were not for the concrete duties and responsibilities that a citizen can be required to perform in the service of a nation-state. And here is where U.S. citizenship takes on a very interesting twist.
The United States of America is one of of the only countries in the world that taxes its citizens on their worldwide income. Any U.S. citizen living and earning income in any country of the world is required to file a yearly tax return with the Internal Revenue Service. The fact that an individual was not aware of this does not cut much ice with the IRS - if they find a U.S. citizen abroad (regardless of where, when and how his citizenship was acquired) they can go after that person for U.S. taxes. Even someone who is the citizen of another nation-state and has never lived or worked on U.S. soil.
So perhaps the Right-wing parties in the States and their friends can console themselves with the fact that with "birth tourism" not only does the U.S. gain citizens via the Fourteenth amendment, it also is acquiring future U.S. taxpayers. This could be very interesting if one of these children grows up to be the Chinese equivalent of Bill Gates.
Up until very recently this all was quite academic since in the past the U.S. did not seriously try to enforce these laws outside the U.S. This has changed. The U.S. Internal Revenue Service is starting to be very aggressive in chasing dual U.S./Other citizens in all countries around the world. They and the Obama administration seem to think that there are vast quantities of wealth out there to be gained in the larger project of filling the giant hole in the budget. This has some interesting implications:
- As more people learn about this little-known aspect of U.S. law, U.S. citizenship will lose some of its attractiveness. If having U.S. citizenship (through birth or naturalization) means a lifelong relationship with the American Internal Revenue Service, some people are going to think twice. Perhaps in addition to the counsel against pregnant women flying in the last trimester of pregnancy, airlines should also issue a warning that they should not fly anywhere near the U.S. border at this time since U.S. citizenship will be conferred on their children without their consent in the event the plane has to make an emergency landing in a U.S. airport and they go into labor on U.S. soil.
- This has all the makings of a huge international incident since many of the people impacted by this are dual citizens and they are going to look to their other government for protection. There is a very nice piece in the New York Times by Ronald Sokol here which describes a hypothetical situation where the U.S. government goes after a French citizen for back taxes and that citizen takes his case to the European Union. This month the Canadian Finance Minister expressed his deep concern over recent extensions to U.S. tax law that negatively impact dual U.S./Canadian citizens. Other countries outside the U.S. are paying close attention to this and it could get quite unpleasant.
And finally you have to wonder if some countries might decide that turnabout is fair play and that perhaps the Americans are onto something. The U.S. is not the only country that needs money right now - last time I looked Greece and Ireland were in rather bad shape. What if both these countries declared that every U.S. citizen in the United States of America with a Greek or Irish grand-parent (or even great-grandparent) or who was inadvertently born on their soil is a full Irish or Greek citizen and then they change their tax law to make these people liable for taxes in their ancestral homelands? Given that the United States is a multi-ethnic country of immigration the idea that other countries could get into the "tax the diaspora" game with U.S. citizens as easy targets is a real possibility and would probably be very popular with voters in the home countries.
And that would really put the cat among the pigeons, wouldn't it?