What does a Nation's Air Space Constitute ?

[George Wallace]

OK.  I really don't know why a woman who was 8 1/2 months pregnant was permitted to fly, but this does raise some interesting quandaries as to "Nationality" of the newborn:

Reproduced under the Fair Dealings provisions of the Copyright Act.

Article LINK

Baby's right to Canadian citizenship is up in the air

Girl was born on plane flying over Canada

By Andrew Duffy January 3, 2009


Is Baby Sasha, the child born to a Ugandan woman during an international flight over Canada on New Year's Eve, a Canadian citizen?

That question now rests with Immigration Department lawyers, who must determine whether Canadian citizenship rights that apply on the ground also apply in the air.

"I don't expect I'll have an answer for you before early next week," Karen Shadd, a spokeswoman for Citizenship and Immigration Canada, told the Citizen yesterday.

A child born in Canada to a foreigner has a citizenship right.

It's not clear, however, if a baby born in the air to a foreigner shares that same right to citizenship.

"That's the question they're dealing with," said Ms. Shadd.

Baby Sasha was delivered on a crowded Northwest Airlines flight from Amsterdam to Boston on New Year's Eve.

The mother, 81/2 months pregnant, went into labour about six hours into the eight-hour flight.

An appeal was made on the Boeing 757's public address system for help with a medical emergency and two doctors -- a radiology oncologist from Minneapolis, Dr. Natarajan Raman, and Dr. Paresh Thakker, a family physician from Massachusetts -- came forward, according to accounts in U.S. papers.

The doctors laid the woman across a row of seats in coach class; a blanket was rigged around the seats to create a makeshift delivery room.

Dr. Thakker told the pilot that it was too late for an emergency landing since the baby had already crowned.

Sasha was born without complications about 10 minutes later, at 9 a.m., as the flight passed through Canadian airspace. The baby weighed just over six pounds.

"She (Sasha) looked perfect," Dr. Thakker told the Boston Globe. "She opened her eyes and was very happy. She was so calm: she didn't cry at all."

The entire plane erupted in applause when the baby was handed to her relieved mother.

After the Northwest Airlines flight landed at Boston's Logan International Airport at 10:30 a.m., the woman and her new daughter were taken to Massachusetts General Hospital.

U.S. officials deemed Baby Sasha a Canadian for customs' purposes, but it remains unclear whether the child is, in fact, Canadian.

Some European countries do not allow a baby born on their soil (or in their airspace) to automatically gain citizenship rights.

The name of the woman has not been released by the airline. It's not clear why she was travelling to the U.S. or why she decided to fly so late in her pregnancy.

A spokesperson for Delta Air Lines, which owns Northwest, said the company does not impose travel restrictions on pregnant women. It does, however, recommend that women in their final month of pregnancy consult a doctor before flying.

© Copyright (c) The Ottawa Citizen


__________________________________________________________________________________________________


This is indeed an unusual situation.  Does the child have the nationality of the nation from which his mother most recently departed, the nation to which she arrived, the nation of the carrier (in this case a US Airliner), the nation over which the aircraft was at the moment of birth (Canada), the nation of the mothers citizenship, or are we going to be left with a "Person of No Nationality"?  What are the Laws of the Sea when it comes to births aboard ship?  Do they apply in this type of incident?

 

[Monsoon]

What are the Laws of the Sea when it comes to births aboard ship?  Do they apply in this type of incident?

The Law of the Sea doesn't apply - ships are deemed to be the territory of the flag state, so a birth aboard a U.S. ship would yield an American baby. I have a hunch that a close reading of the Montreal Convention (or whichever of the air conventions apply) would yield a similar result, though maybe not. In any case, I suspect the mother will have trouble convincing any province to issue the baby a birth certificate.

 

[George Wallace]

The Law of the Sea doesn't apply - ships are deemed to be the territory of the flag state, so a birth aboard a U.S. ship would yield an American baby. I have a hunch that a close reading of the Montreal Convention (or whichever of the air conventions apply) would yield a similar result, though maybe not. In any case, I suspect the mother will have trouble convincing any province to issue the baby a birth certificate.

That is one of the questions I posed; it was aboard an American Carrier (Northwest Airlines).  Would that apply as it would at Sea?

 

[Michael OLeary]

Perhaps the answer to this question would have relevance: "If a murder had occurred in the aircraft, whose jurisdiction would it be in?"

 

[Blackadder1916]

While international law (treaties) may determine the interaction between states, they do not necessarily ensure that a specific state adopts or amends (internal) legislation all the same way.  Therefore the application of those international agreements may be considerably different in different states.

This case will probably highlight the significant difference between Canadaian and United States citizenship law.  As noted in the article, US Customs and Immigration officials automatically took the stance that the child was not a US citizen (even though born on a US flagged carrier).  This is the standard US practice as there is no specific US legislation conferring US citizenship as a birthright in these circumstances (or similarly aboard ship).

http://www.law.cornell.edu/uscode/8/1401.html

§ 1401. Nationals and citizens of United States at birth
The following shall be nationals and citizens of the United States at birth:

  (a) a person born in the United States, and subject to the jurisdiction thereof;

  (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

  (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

  (d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

  (e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

  (f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

  (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person
      (A) honorably serving with the Armed Forces of the United States, or
      (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

  (h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

There are no other qualifying sections or interpretations/defintions that I was able to find.

Canada's citizenship legislation, on the other hand includes this.

http://laws.justice.gc.ca/en/showdoc/cs/C-29/bo-ga:s_2//en#anchorbo-ga:s_2

Interpretation

(2) For the purposes of this Act,
(a) a person is deemed to be born in Canada if the person is born on a Canadian vessel as defined in section 2 of the Canada Shipping Act, 2001, or on an aircraft registered in Canada under the Aeronautics Act and regulations made under that Act;

 

[PMedMoe]

In this CTV news story from Sep 2006, it would seem that a precedence may have already been set for a baby born in Canadian air space.

Because she was born in Canadian airspace, baby Nadine will have Canadian citizenship.

I was always under the impression that the first place the plane lands after the birth become the "birth place" of the baby.

 

[J.J]

Here is a link with the Citizenship Laws of the World.

http://www.multiplecitizenship.com/worldsummary.html

My professional opinion is that the child will be granted Canadian citizenship. We hand those out like prizes in cereal box!  :

 

[PMedMoe]

WR, looks like you were right!

Mile-high Baby Sasha declared Canadian citizen

Article Link

Canada has its first mile-high baby: the federal government has granted citizenship to Sasha, the child born to a Ugandan woman on an international flight over Canada.

The six-pound (2.2 kilogram) baby was delivered at 30,000 feet on a crowded Northwest Airlines flight from Amsterdam to Boston on New Year's Eve.

The mother, who was eight-and-a-half-months pregnant when she boarded, went into labour about six hours into the eight-hour flight and delivered the child as the plane crossed through Canadian airspace.

Alykhan Velshi, communications director for Immigration Minister Jason Kenney, told the Citizen that under the law, almost anyone born here is a Canadian citizen.

That general rule, he said, has select exceptions, one of which means that children born to foreign diplomats in this country are not Canadian citizens.

But it's the government's opinion, he said, that the rule does apply to someone born in an airplane over Canada.

"Our government believes that Canadian territory -- and, as a result, the full reach of Canadian sovereignty -- extends to our airspace," Mr. Velshi said. "This means that a child born in Canadian airspace is a Canadian citizen."

More on link

 

[The Bread Guy]

Given that the LAW says CAN citizenship is linked to the REGISTRATION of the plane (in this case, USA)....

(2) For the purposes of this Act,
(a) a person is deemed to be born in Canada if the person is born on a Canadian vessel as defined in section 2 of the Canada Shipping Act, 2001, or on an aircraft registered in Canada under the Aeronautics Act and regulations made under that Act;

how much of this:

"Our government believes that Canadian territory -- and, as a result, the full reach of Canadian sovereignty -- extends to our airspace ....  This means that a child born in Canadian airspace is a Canadian citizen."

might be part of maintaining the "Canadian-ness" of our airspace?

Anybody know of any other situations where this sort of "declaring dibs" might be considered precedent-setting (I'm thinking some of the legal wrangling in the northern areas, for example)?  Or are we talking apples & oranges here?

 

[Blackadder1916]

Given that the LAW says CAN citizenship is linked to the REGISTRATION of the plane (in this case, USA)....

how much of this:might be part of maintaining the "Canadian-ness" of our airspace?

Anybody know of any other situations where this sort of "declaring dibs" might be considered precedent-setting (I'm thinking some of the legal wrangling in the northern areas, for example)?  Or are we talking apples & oranges here?

It is not so much a unique case of "maintaining" the Canadian-ness of our airspace as it is continuing an already accepted principle - everything that is above the territorial limits of Canada (land and sea and the sky above) is "in Canada".  The USA also follows the same principle.  If it had been a birth in US airspace aboard an Air Canada plane, the child would (could) have acquired USA citizenship (the continuance of which maybe subject to other operation of law in later years), the child would also have a claim of Canadian citizenship as a result of the quoted item of the Canadian Citizenship Act.  And most likely also the same citizenship  as its parents.

It is not "cut and dried" that Canadian citizenship is linked to the registration of the aircraft (or ship); it is only linked if it is a Canadian registered aircraft.  That interpretation in the Canadian Citizenship Act deems (for the purpose of the act) that a Canadian registered ship or aircraft is Canadian "territory" (wherever in the world that ship or aircraft is at the moment of birth).  This puts it in harmony with the primary international legal instrument that deals with statelessness (and thus nationality and citizenship).  Canada is a party to this convention, the USA is not.

1961 Convention on the Reduction of Statelessness
http://www.unhcr.org/protect/PROTECTION/3bd7d3914.html

Article 3.  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.

This baby gets Canadian citizenship subject to this article of The Canadian Citizenship Act.
http://laws.justice.gc.ca/en/ShowFullDoc/cs/C-29///en

PART I
THE RIGHT TO CITIZENSHIP
Persons who are citizens

3. (1) Subject to this Act, a person is a citizen if

(a) the person was born in Canada after February 14, 1977;