Sunday, 26 May 2013

What citizenship if birth occurs mid-flight?

The premise

I once heard that if a baby was born mid-flight that there was a Treaty that allowed the mother of the child to choose the citizenship of the child being one of the following:

1)      the country from which the flight came,

2)      the country to which the flight was going, or

3)      the country over which the flight was at the time of birth.

I was never sure if it was just a myth or there was something to it so I decided to do some research.

Of course, many airlines don’t allow expectant mothers to fly in their last trimester but that doesn’t mean that mothers don’t go into labour and give birth during flights. Birth during a flight can occur for a number of reasons including premature births to the airline not being aware of the mother’s pregnancy.

The relevant international treaties

Article 3 of the United Nations Convention on the Reduction of Statelessness (1961) is set out as follows:

For the purpose of determining the obligations of Contracting States under this Convention, birth on a ship or in an aircraft shall be deemed to have taken place in the territory of the State whose flag the ship flies or in the territory of the State in which the aircraft is registered, as the case may be.

The problem is that this only applies to countries who are State parties to it - the United States of America is a significant exception to it. So if birth occurs on an American registered aircraft, the birth is not deemed to have occurred on American soil and as such the child does not automatically acquire American citizenship unlike if the child had been born there.
The countries to which it does apply are set out at:

Conversely, Australia is a country to which Article 3 does apply. However, Australian citizenship is not an automatic entitlement which stems from birth on Australian territory, unlike American citizenship. That is being born on an Australian registered aircraft only enlivens Australian citizenship laws, it does not mean an automatic grant of citizenship.

With QANTAS which is an Australian registered airline, if a child is born on a QANTAS aircraft then Article 3 means that the birth is deemed to have occurred on Australian territory. However, birth in Australia is not sufficient to acquire Australian citizenship. Australia does not provide citizenship on the basis of jus soli, unlike the United States of America, which is well-known for doing so.

In fact, the United States has in recent years started to attract what is labelled “birth tourism”, that is expectant mothers travelling to the United States for the sole purpose to giving birth to a child in the USA so that the child automatically acquires American citizenship.

Article 17 of the Convention on International Civil Aviation (“CICA”) sets out that:

Aircraft have the nationality of the State in which they are registered”.

There are 191 State parties to the CICA.

What does all of this mean?

It means that what I had heard was not completely accurate.

1)      If the birth occurs on board a plane, which is registered to a country which is a State party to the Convention on the Reduction of Statelessness, the birth will be deemed to have occurred on the territory of that country and accordingly its citizenship laws will apply – if birth on the soil of that country is sufficient to acquire citizenship (that is the jus soli principle applies) the child will acquire that country’s citizenship;

2)      Of course, the country to which the aircraft is registered will often be either the country of departure or the country of destination, in which case as mentioned in 1) above, the law of that country will apply. However it is possible to be on an aircraft that is registered to a country, which is neither the country from which you have left or are headed, in which case the citizenship laws of a fourth country will come into play.

3)      If the birth occurs mid-flight over a country’s territory, that country’s citizenship laws will apply – for example, a baby born in 2006 on a flight from London to Boston while over Canadian airspace was granted Canadian citizenship;

So in short:

1)      There is no question of choice of citizenship – if a country does not automatically grant citizenship solely by reason of birth on its territory, the child will not be automatically entitled to the citizenship of that country even if the child is born either over that country’s airspace or if the child is born on board an aircraft registered to a country which is a party to the Convention on the Reduction of Statelessness.

2)      The citizenship laws that will apply to the child will be:

a.       the laws of the country in which the aircraft is registered;

b.      the laws of the country over which the birth occurred (if any); and

c.       the laws of the country/ies of citizenship of the parents of the child.

3)      There may be conflicts between the laws set out in 2)a. to c. above, in which case the complex legal area of Conflict of Laws will come into play.

Readers, do you know any people who were born on an aircraft and who were granted a citizenship other than that of their parents?