By Jules Lepoutre (EUI), GLOBALCIT collaborator. This study is supported by the European Research Council Starting Grant (# 716350).
On the afternoon of 20 July 1993, the members of the Conseil constitutionnel joined together to discuss the constitutionality of several amendments to the nationality law, passed a few days before by the French Parliament, and in particular deliberate over significant revisions to the ius soli. To date, because of the confidentiality of judicial deliberations, no one but the members of the Conseil constitutionnel knew the substance of these discussions, or the questions and doubts faced by the judges. With the recent release in January 2019 of the archives related to this decision, everyone can now get first-hand insights about this case. Hence, a close look into these discussions reveals that some members of the Court supported the existence of an unwritten constitutional principle ultimately safeguarding the existence of ius soli in France. This contribution aims to describe the grounds and the perspectives of this recent finding.
Before tackling the core of the debate, it is necessary to explain briefly the legal context of nationality law and constitutional law in France. During the revolutionary period in the late 18th century, the rules for the acquisition of nationality were contained in the successive constitutions. This era came to an end in 1804 with the adoption of the civil code, moving these legal rules from the constitution to ordinary law. It is now a longstanding principle: Ius soli – among all the provisions regarding nationality law – is part of ordinary law, now provided for in articles 21-7 and seq. of the civil code.
Moreover, longstanding principles established by ordinary law can sometimes be transformed by the judges into unwritten constitutional principles. These constitutional principles are called ‘principes fondamentaux reconnus par les lois de la République’ (‘fundamental principles recognised by the laws of the Republic’). There is no written list of these principles, no constitutional catalogue; they are exclusively established through case-law. A ‘fundamental principle recognised by the laws of the Republic’ must be a principle found in the law and continuously implemented by all Republican regimes in France, without any exception. These are necessary but not sufficient conditions for such a principle to be ‘discovered’ by the judges. If it happens, which is rare, the principle goes beyond the realm of ordinary law to become part of the constitutional legal order. Accordingly, the French Parliament will no longer be qualified to revise it, and future modifications will only be possible via constitutional amendment.
What was the issue for the Conseil constitutionnel in 1993? At that time, a debate raged between two opposite conceptions of the ius soli. The debate did not concern automatic acquisition of French citizenship iure soli by the third generation (the so-called ‘double droit du sol’, or ‘double ius soli’), applying to those with a foreign national parent already born in France, but ius soli for the second generation around the age of majority. On the political left, the members of Parliament were in favour of automatic acquisition of nationality, following an inclusive conception of nationality; on the political right, members were in favour for acquisition through an act of will by the individual, following an elective conception of nationality. In the end, the new law adopted by Parliament on the 24 June 1993 repealed the century-long automatic acquisition. Instead, it implemented new provisions asking every individual born and raised in France to “express the will” to get nationality between the age of 16 to 21 – should they want to become French. It was in this particular debate that the Conseil constitutionnel had to take a stand: Should ius soli operate automatically? Or should it follow the expressed wishes of individuals?
The applicants bringing judicial review before the Conseil constitutionnel argued that automatic ius soli acquisition was a ‘fundamental principle recognised by the laws of the Republic,’ protected per se from legislative abridgement. The claim was that the Parliament had no jurisdiction to ask individuals to prove their will to become French through ius soli. The Conseil constitutionnel did not follow this reasoning, holding that the ‘fundamental’ part of this potential principle was lacking. For the Court, this automaticity of the ius soli was due to historical necessity: It was for the sake of equality before conscription. Indeed, one of the goals of Parliament implementing automatic ius soli in the 19th century was to make sure that foreign people born and raised in France would be subject to military duty, just as young French people, with whom they were sharing day-to-day existence. In this way, the President of the Conseil constitutionnel, Robert Badinter, explained to his fellow-judges during the deliberations, that automatic ius soli was the result of “ad hoc legislations” (lois de circonstance), a way of saying that no fundamental principle was at stake. In other words, the automaticity of ius soli was not crucial enough, or too contingent, to become a constitutional matter.
However, the new window into the archives highlights a point which was not exposed in the legal decision. What emerges from these deliberations was that the members of the Conseil constitutionnel discussed the inherent constitutional value of the ius soli principle, regardless of its automaticity. Answering this question was not required to solve the case, so the comments are somewhat short or indirect. However, they certainly are of value to the further study of ius soli. During the meeting of 20 July 1993, the verbatim of the deliberations first shows that Robert Badinter emphasized the legal question of automatic ius soli: “Can we reckon that the automatic acquisition of French citizenship based upon settlement on French soil, rather than on ius soli – which is outside the scope of the present case – may be regarded as some kind of timeless constitutive principle of our republican legal order?” This restrictive way of asking the question may indirectly stress the importance of ius soli. And indeed, after this reflection, another member of the Court, Noëlle Lenoir, declared with more intensity: “For me, ius soli seems to be a fundamental principle recognised by the laws of the Republic.” Robert Badinter soon echoed this statement: “If the legislator had repealed ius soli, the question would have definitely constituted an issue.” For Robert Badinter and (especially) Noëlle Lenoir, it may be inferred from the deliberations that they both believed that ius soli was per se a constitutional principle.
Ius soli is constant in French Republican law, and more broadly is part of French law for six centuries at least. But the question is, for how much longer? The withdrawal of ius soli is clearly backed by far-right movements in today’s France – as shown for instance by a recent draft bill tabled in 2016 by Gilbert Collard and Marion Maréchal-Le Pen. In the medium term, the Parliament might thus question the very existence of ius soli. Then, the declarations of eminent judges during the afternoon meeting of 20 July 1993 would be of great help to safeguard this right.