Airspace Baby?

by Duncan Hollis

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.

http://opiniojuris.org/2009/01/01/airspace-baby/

8 Responses

  1. I’ve always viewed nationality as a matter of domestic law rather than international law, which explains why different countries can have different rules and can pick and choose amongst jus soli, jus sanguinis etc.

    Canada does grant citizenship for being born in Canada, but when born in a plane, s. 2(a) of the Citizenship Act indicates that this is deemed “born in Canada” if the aircraft is registered in Canada. This seems to suggest a different result for aircraft not registered in Canada. See: http://laws.justice.gc.ca/en/showtdm/cs/C-29

    For me, the interesting question is why did the mother travel so close to due date, and why the airline allowed her to travel so close to due date, and whether there is a rule preventing this given the harm that might occur to the baby. ICAO studied the legal questions arising from births in planes in the late 1950s, but they are rare occurrences these days since most mums follow their doctor’s advice not to travel on a plane close to due date.

  2. The flight was operated by a carrier, Northwest, registered with the FAA as an American airline.  Since the birth occurred on board, does it matter where the aircraft was at the time?  Without access to case law to back up my argument today, I would argue that the baby is an American citizen by virtue of jus soli.  On the other hand, I guess babies born to non-Americans on U.S. military bases outside of the U.S. are not considered citizens of the U.S.

    So even if my argument  -  that Northwest is an American carrier and therefore the baby should be an American citizen  -  does not hold up, I would further argue that because airplanes travel all around the world, including over mid-oceans that belong to no one country or nation, once an aircraft lifts off the ground at its point of departure, it from that moment “belongs” to the country of its next destination.  It would be unfair in such cases to deny the baby citizenship to no country whatsoever when he/she happens to be born over deep ocean or high sea.  Since the U.S. was the “next” destination, the baby should be a citizen, again by jus soli

    Furthermore, the mother intended to come to the U.S. and took actions to attain her goal.  She purchased an airline ticket on Northwest, she got on the plane, she took the necessary steps.  Additionally, the woman was only 8 1/2 months pregnant.  This means that she did not plan or expect to give birth on the flight, thus no fraud or deceit in the works.   We assume that the mother held or holds a valid visa permitting legal entry into the U.S.  The fact that after the plane lifted off, but before touching down in the U.S., she gave birth, this is merely accidental.  Another few minutes or hours, after the plane would have landed, there would have been no question that the baby was a U.S. citizen.

    Bottom line: allow the baby U.S. citizenship by jus soli.

  3. Surely the Netherlands exercises jurisdiction over the aircraft and its occupants until it lands and is disembarked?

    That said, in a competition between Canada’s territorial jurisdiction and The Netherlands’ ‘national’ jurisdiction, the former would win. See Shubber, Jurisdiction Over Crimes on Board Aircraft, 53.

    Edit: having read the above, the competition would seem to be between the United States’ ‘national’ jurisdiction over a flight bearing its flag and Canada’s territorial jurisdiction.

  4. I have been looking for relevant authority on Westlaw for about 20 minutes and for the life of me I cannot figure it out.  However I have found some evidence that the registry of the carrier does not have an impact on citizenship.  Most authority seems to decide the issue based on whether there would have been territorial jurisdiction over the child at the exact time of birth.  Thus, the birth being in Canada, I tend to think the a case for U.S. citizenship would be highly difficult.

  5. Hussein: “Additionally, the woman was only 8 1/2 months pregnant.  This means that she did not plan or expect to give birth on the flight, thus no fraud or deceit in the works.”

    Yes, there was fraud and deceit. Women aren’t permitted to travel by air during their third trimester of pregnancy for this reason…it can trigger labor. She must have lied to obtain permission to travel in the first place.

  6. Michael,

    That seems consistent with the statues; see 8 USC 1101(a)(38) and 8 USC 1401.

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