As the Supreme Court ponders the legality of restrictions President Trump is attempting to impose on “birthright citizenship” in the United States (expect a decision the day the justices leave town for the summer), one unique royal birth at an Ottawa hospital in the depths of World War II offers an exception to the jus soli laws in our neighbor to the north, which mirror our own. The question is whether it could be replicated in this country should the High Court not rule in the administration’s favor.
The Flight of the Dutch Royal Family
At the outset of the Second World War in September 1939, the Dutch government chose a principle of strict neutrality in the conflict, but as the Anne Frank House explains:
On 10 May 1940, the German army invaded the Netherlands. It was the start of five days of fighting that resulted in the occupation of the Netherlands.
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The planned attack on the Netherlands was part of a larger plan of attack, of which the code name was Fall Gelb. The goal of the Germans was to conquer France. They wanted to bypass the French defence line at the eastern border by going through the Netherlands and Belgium. Their occupation of the Netherlands would also prevent England from setting up a base of operations on the European mainland.
Unlike her neighbor, Leopold III, king of the Belgians (who fought the German invasion of his country, surrendered, and remained in Brussels for the rest of the war until the Nazis spirited him off to Austria, triggering a “postwar conflict”), Dutch Queen Wilhelmina, her ministers, and family left the Netherlands and went to England.
From there, her daughter and heir, Princess Juliana, took refuge in Canada, where she lived in Ottawa at Stornoway, now the official residence of the Canadian leader of the opposition.
The Royal Crisis
A royal crisis arose, however, when Juliana became pregnant with her third child.
Under part 1, section 1(a) of the Canadian Naturalization Act of 1914, “any person born within His Majesty’s [King George VI, at the time] dominions and allegiance” was “deemed to be a natural-born British subject”.
If that sounds familiar, it’s likely because from some point in the 1940s up until Trump issued Executive Order (EO) 14160, “Protecting the Meaning and Value of American Citizenship” (and possibly beyond, depending on how the Supreme Court rules), that has been the accepted definition of jus soli — i.e., “birthright citizenship” — in the United States.
In fact, here’s how Justice Gray, writing for the majority in U.S. v. Wong Kim Ark (the leading precedent on U.S. birthright citizenship) explained the common law principles he followed in determining that Wong, who was born in San Francisco to lawful permanent residents from China, was a U.S. citizen by birth:
The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom.
Note that while Juliana already had two children (Princesses Beatrix and Irene), if her third child was a boy, he would have directly followed his mother in the royal line of succession under Dutch law — and sonograms and other modern tools used to determine sex in utero weren’t a thing yet.
The key problem was that under Netherlands’s law, an heir to the throne must have been born Dutch and not have any other citizenship.
Or, as historian Adam Bunch explained this royal pickle, a putative son and heir must have been “solely Dutch and not have dual citizenship with another country. So being Canadian would have been a problem if they [Princess Juliana and her husband, Prince Bernhard] had given birth to a little prince.”
George VI to the Rescue
Sneaking into the Nazi-held Netherlands to give birth wasn’t an option, so in yet another example of the truth of Mel Brooks’ famous axiom, “It’s good to be the King”, George VI came riding to the rescue.
On November 27, 1942, with Princess Juliana’s delivery fast approaching, he issued a proclamation under the Canadian War Measures Act “to provide an extra-territorial character to any place in which the heir presumptive to the throne of the Netherlands may be confined and in which an heir to such throne may be born”.
Note that the War Measures Act, a 1914 law that also “gave the [Canadian] federal government the power to suspend all rights” and “transferred power from Parliament to Cabinet”, has gotten a bad rap of late, but when wielded by the current British monarch’s grandfather, it was just the tool for the job.
Consequently, when young Princess Margriet entered the world at the Ottawa Civic Hospital on January 19, 1943, no country claimed the room where she was born, and she derived Dutch citizenship through jus sanguinis thanks to her parents’ (royal) blood — and provided a much-needed fillip to her new fellow countrymen back home.
Should you go to Ottawa today, the tulips you’ll see everywhere (during the summer) are in part a way for the Dutch government to thank Canadian soldiers for the role they played in the liberation of the Netherlands and in part a reminder of the fact that Margriet was born there (Canada sent Wilhelmina a maple tree for her return to her palace).
Would It Work Here?
The question is whether a similar scheme could be replicated in this country to limit birthright citizenship to the newborn children of U.S. citizens and lawful permanent residents by declaring any place children are born of other parents as “extra-territorial”.
Legally, it’s a longshot, but keep in mind that: (1) when King George issued his proclamation, nobody knew where Princess Juliana would give birth, and thus extraterritoriality followed her wherever she went before giving birth; (2) that proclamation was issued and effective under the same common law principles the Court relied on in Wong; and (3) it is a precedent, albeit a unique and foreign one.
As for the first — and key — point, consider the following question from Justice Barrett during the oral argument in Trump v. Barbara, the pending birthright citizenship case, to the attorney opposing the president’s EO on the accepted principle that there’s an exception to U.S. birthright citizenship for the children of diplomats:
[I]f you look at the diplomatic exception almost like diplomats and their children have little bubbles around them, like the embassy is really the territory of that country, and even when they're traveling around, they're all not subject to the jurisdiction by virtue of this territorial fiction, are those just applications of the rule?
Princess Juliana wasn’t subject to a diplomatic exception (she was a refugee, not a diplomat), but the king’s proclamation created a “bubble” around the heir-apparent wherever she went up to the time of Princess Margriet’s birth in much the same way as the diplomatic bubble described by Justice Barrett applies.
Here, in part, is how counsel responded to the question: “So the thing that all of the exceptions have in common, again, is this sense that the — the person is — has this fiction of extraterritorial — extraterritoriality around them.”
If the accepted exceptions to birthright citizenship (the former one for Indians, and the current ones for children of diplomats, and children born in zones of enemy occupation and on foreign ships) have a “fiction of extraterritoriality around them”, what impact would an actual presidential declaration of “extra-territoriality” have?
To ask that question is to answer it, but it begs a second question: Can the president, acting on his own, declare parts of the United States to be “extraterritorial” for the brief moments that children of those who are not citizens or green card holders are born there?
Does a 1942 proclamation by the British monarch, issued to avoid a potential succession crisis in the Dutch royal house, offer a precedent an American president could follow to bar the children of aliens here illegally and/or temporarily from automatically receiving U.S. citizenship? It’s a question the White House may want to ask, assuming the Supreme Court gives him bad news on its way out of town.