ACA believes that all U.S. Citizens deserve the same human rights under the laws of the United States, no matter where they live

• Background:
  American parents living overseas face a number of hardships in the human rights area today due to laws and regulations of the U.S. Government. This makes Americans wary of living and working abroad because by doing so they will create problems for their families and children. This should be redressed. As a minimum, overseas Americans would like to be assured that 1994 will be the last year that any American child will ever be born stateless. No action would be more in keeping with the highest traditions of American respect for human rights for everyone.

• The Problem:
  Each year, 40,000 children are born overseas to a U.S. citizen parent. Of these, 90% acquire U.S. citizenship at birth while 10% do not. Since the right to a nationality at birth is the most fundamental human right of all, as it opens the door to membership in our society and all of other rights that derive therefrom, it is obvious that 4,000 children each year are getting short rations. They deserve better treatment.

• It Wasn't Supposed to Happen Anymore:
  The United States inspired and helped draft several UN human rights instruments which give detailed descriptions of the basic rights that all individuals are supposed to share without discrimination of any kind. This includes the right of every child to acquire at birth a name and a nationality. Why, if the United States supported these international conventions, does it not implement them?

• Catch-22:
  Despite careful drafting, these UN instruments contain a major lacuna. There was no clear definition of which government is supposed to assume the responsibility for its citizens who live away from home. It was nowhere stated whether it should it be the country where the person came from, the country where the person was living, or perhaps both. If a citizen's home country and its overseas host country both refuse to protect this human right, there can be a legislative vacuum in which children are ignored by everyone and may find themselves stateless.

• Missing Leadership by Example:
  The U.S. Government should have taken the initiative long ago to address and resolve this ambiguity. This would have had an impact not only on Americans overseas but on other expatriate communities who could have used the American example to show to their home governments that they too should be fulfilling the promise that at birth all children have the right to a name and nationality. If human rights have any fundamental virtue they surely should be universal and not just valid up to a country's territorial limits. Why The Problem Arises: In general, the right to acquire citizenship at birth derives from two distinct legal traditions. The first is "jus soli", an Anglo-Saxon concept, that is used by Great Britain, the United States, and others. The second is "jus sanguinis", a fundamentally different concept, which dates at least to Roman times and is used by most of the other countries of the world. The two are not congruent and therefore do not cover all of the same individuals in every circumstance. Care must be taken to ensure that no one is left out.

• Jus Sanguinis:
  Under "jus sanguinis" the nexus that is recognized by the law is the link between the parent and the child. A birth brings an automatic continuity of the citizenship of the parent to the child by virtue of this blood (sanguinis) tie. The place of birth, therefore, does not create any legal problem in the continuity of citizenship. No principle, other than "jus sanguinis", needs to be invoked for human rights to be transmitted equally and ubiquitously, unless, of course, a government chooses to endow only expatriates of one sex with this "jus sanguinis" right.

• Jus Soli:
  In "jus soli" countries the nexus recognized by the law is that between the child and the location of birth. The place of birth alone qualifies the child to automatically receive that country's citizenship, normally irrespective of the citizenship or nationality of the parents when the child is born.

• Those Left Behind:
  Overseas citizens from countries with "jus soli" legislation can face difficulties when they reside and have children in countries with "jus sanguinis" laws. Unless the laws of their home country also offer "jus sanguinis" provisions to protect them while they are away from home, some of their children can find themselves stateless. How liberally a "jus soli" country extends "jus sanguinis" provisions to its overseas citizens will determine how much human rights deprivation, if any, they will have to suffer.

• A Compromise Dating to the Fourteenth Century:
  The English royal family realized the inconvenience of establishing citizenship law exclusively on the basis of "jus soli" already in the fourteenth century. In November 1365, King Edward III wrote to his daughter Isabella in France promising her that all of her children male or female born abroad would be capable of inheriting lands in England and considered "as fully naturalized as though they were born in the realm."

• The Wisdom of the American Founding Fathers:
  The founding fathers of the United States carried on this tradition of adding "jus sanguinis" provisions to the basic "jus soli" citizenship legislation. They knew that U.S. citizens were going to be living and establishing families outside of the United States. To protect the rights of such children and promote the integrity of their families the First Congress in 1790 decided that U.S. citizenship would be automatically acquired at birth by any child born abroad to a U.S. citizen father, provided only that the father had previously "had a residence" in the United States. For the following 150 years, a U.S. citizen father could transmit citizenship to a child born abroad by meeting this very simple requirement. This same rule was subsequently extended to U.S. citizen mothers in 1934.

• A Big Step Backwards in 1940:
  In 1940, however, human rights for overseas Americans took a big step backwards. A strict new requirement of ten years of prior residence in the United States was imposed before an American parent married to an alien could transmit citizenship to children born abroad. With this change, the United States actually took away a basic family-building human right that its citizens had previously enjoyed for 150 years. American children started finding themselves stateless. Congress has recently attenuated the effects of this discriminatory law but further redress is still urgently needed.

• This Human Right Does Not Adhere to Individuals:
  A peculiarity of the present law is that the right to transmit citizenship to a child at birth is not a right given to an American citizen as an individual. This human right can be lost by the wrong choice of a spouse, or employer, or even marital status. As a result, the present law gives more protection to the integrity of some American families than to others.

• A Preference for Unwed Mothers:
  Today, it is five times easier for an unwed U.S. citizen mother to transmit U.S. citizenship to her child at birth than it is for the same mother if she had chosen to marry her alien spouse before the child was born. Whatever this human right was, she somehow lost it when she married. It is nice and proper for the U.S. government to be compassionate toward unwed mothers overseas. Why, however, should children of unwed American mothers have more human rights than the children of American mothers who are married? What is the purpose of this discrimination?

• Jumping Through Hoops:
  The present law confronts some American parents with the delicate choice of marriage and thereby having stateless children, or avoiding marriage and thereby ensuring that a child will have U.S. nationality at birth. Or one can try to jump through hoops. One is for the U.S. citizen parent to get divorced each time a pregnancy occurs to thereby qualify to transmit citizenship to the child as an unwed parent. Then, the American can remarry after each birth to rebuild the family unit again. Another option is for the expectant mother to get on an airplane to fly to the United States before each birth to qualify under the "jus soli" rules. Is anything really useful being accomplished by such antics? It may please the fastidious who want to insist on some "nexus" tests to be a "true American". But in return we all play a high price in compromised human rights equality.

• Human Rights as a Government Fringe Benefit:
  An overseas American who works for the U.S. Government, or for specially designated international organizations, can count time spent abroad as if he/she were still in the United States for purposes of meeting the prior physical presence requirements for citizenship transmission abroad. So can their children living in their households overseas. Their next-door American citizen neighbors, who work in the private sector, are denied this same opportunity, and so are their children. Today, this most fundamental of human rights has been reduced to a federal government employee's fringe benefit.

• Discouraging Exports and Human Rights Orphans:
  The United States needs a strong overseas community to promote American exports in today's highly competitive world markets. Americans contemplating the challenge of living and working abroad must now, unfortunately, also take into consideration that their government expects them to surrender some of their human rights when they live abroad. Some Americans, no matter how patriotic they might be, and no matter how meritorious their conduct overseas, will be caught in this trap of having children or grandchildren who will be "human rights orphans". Is this a proper way to encourage exports?

• Solving This Problem:
  The legislative language which would do away with this problem was introduced in the 102nd Congress by former Congressman Bill Alexander. The changes he proposed would grant equal human rights to all American citizen parents and thereby mobilize U.S. law to reinforce rather than threaten the sacred and intimate ties that bind all children to their parents, at home and abroad. Mr. Alexander believes that the U.S. Government should encourage more Americans to live and work overseas. One good way to do this is by giving equal support to maintaining the integrity of all American families, without any more destructive human rights discrimination against those living abroad.

• Widespread Support for These Changes:
  Mr. Alexander is not alone. During the last two decades pledges of support for better protection of the human rights of overseas Americans and their children have come from many other Members of Congress, the White House, the State Department, the Justice Department and the Democratic National Committee.

• Some Additional Tidying Up:
  While this reform is being enacted, it would be opportune to also address a number of related citizenship and immigration difficulties faced by Americans living abroad. These are:
  • Redress for Past Discrimination Against Women:
    Prior to 1934, a U.S. citizen mother married to an alien did not have the right to transmit U.S. citizenship to a child born abroad. In the 102nd Congress, Congressman Norman Mineta introduced legislation "to provide the children of female United States citizens born abroad before May 24, 1934, and their descendants, with the same rights to citizenship at birth as children born of male citizens abroad".

  • Expeditious Nationalization of Children Adopted Abroad:
    The immigration act should be amended to enable American parents living abroad to have their natural and adopted children, who are not U.S. citizens, naturalized during a brief trip to the United States rather than having to return as permanent residents to qualify. Legislation was introduced in the 102nd Congress for this purpose.

  • Restoration of Citizenship to Certain Individuals:
    Changes to the immigration act in 1978 eliminated a provision whereby some U.S. citizens born abroad could lose their citizenship for failure to return to live in the United States for a specified period of time, but the change was not retroactive. Legislation was introduced in the 102nd Congress to make the elimination of this "condition subsequent" retroactive to when it was first established.

ACA

                    
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