In response to Roger’s recent survey, many of you called for more international law discussion here at Opinio Juris. In that spirit, here’s an interesting nationality question to ponder as you enjoy your New Year’s Day celebrations:
It was already a packed flight from Amsterdam to Boston, but passengers and crew were more than happy to make room for one extra person this morning when a Ugandan woman gave birth to a baby girl. Two doctors aboard Northwest Airlines flight 59 sprang into action when the call came across the Boeing 757′s public address system for a medical emergency. The physicians found a woman 8-1/2 months pregnant and moaning with severe abdominal pain. She was obviously in labor and the child’s head had already crowned, according to the doctors. As the plane cruised somewhere over Canada, the doctors laid the woman across a row of seats in coach class while a husband and wife from Danvers held up a blanket to create a makeshift delivery room. At about 9 a.m., the woman gave birth to a 6-1/2 pound baby girl she named Sasha. . . . When the flight landed at Logan International Airport at 10:30 a.m., mother and daughter were whisked by ambulance to Massachusetts General Hospital, where they are reported to be doing well. Customs officials said that Sasha was deemed a Canadian citizen, because she was born over Canadian airspace.
So, did U.S. Customs officials get this right? Is Sasha a Canadian citizen? I believe U.S. immigration law recognizes U.S. nationality for babies born in U.S. airspace, but would deny it for babies born outside of U.S. airspace even when the birth occurs on a U.S.-registered aircraft. But does Canada necessarily follow similar rules even if it generally accepts a jus soli approach? For example, does it matter if the “somewhere over Canada” was Canadian territory, territorial waters, or its EEZ? What if the birth had occurred over the High Seas? Finally, although I assume the mother’s Ugandan nationality could afford Sasha Ugandan citizenship, Ugandan law might make even this problematic if she’s already deemed a Canadian citizen, given that country’s only recent (and still hesitant) embrace of dual citizenship. In any case, I’d love to hear what readers make of all this.