Ius soli is a principle of citizenship based on the child’s place of birth, regardless of whether the parents are Indonesian citizens, who are governed by ius sanguinis, causing the child to have dual citizenship. The dual citizenship position can cause difficulties in issuing birth registration for children, granting constitutional rights by both countries, as well as other obstacles related to legal protection in obtaining inheritance when the testator has died.

Article 1 of Law No. 12/2006 on citizenship defines citizenship as all matters relating to citizens. In line with this, Article 1 point 1 of the Citizenship Law defines a citizen as a citizen of a country that is determined based on statutory regulations.

Citizenship status is of utmost importance as part of an individual’s identity, but in practice it is possible for a person to have dual citizenship (bipatride) or have no citizenship (apatride).

Dual citizenship can be caused by the principles adopted by a country in determining citizenship, with each country possessing the authority to determine the principle of citizenship.

The principle of citizenship itself is divided in two; the principle of birth – ius soli, or law of the soil – is the determination of citizenship status based on a person's place or area of ​​birth. This principle was first recognized with the assumption that someone born in a country’s territory automatically and logically becomes a citizen of that particular country.

Meanwhile, the principle of descent – known as ius sanguinis or law of the blood – establishes citizenship based on parentage.

Article 4, letter l of the Citizenship Law stipulates that a child born outside of Indonesian territory to a father and mother of Indonesian citizenship who has been granted citizenship of that country by merit of birth there, is a citizen of Indonesia.

Furthermore, it explicitly states that the Citizenship Law does not recognize dual citizenship or statelessness.

However, the statement is an exception as a manifestation of the principle of limited dual citizenship. With this exception, children with dual citizenship have the opportunity to determine their choice of citizenship in accordance with Article 6 paragraph (1) of the Citizenship Law.

When a child has reached 18 years of age or has married, they are obligated to determine their nationality. The freedom of choice in Article 6, paragraph 1 of the Citizenship Law is a form of legal certainty and justice. In this case, it does not cause the loss of state constitutional rights so that the child still has constitutional rights of foreign citizenship.

Various types of land rights are regulated in Article 16 of the Basic Agrarian Law (UUPA), Article 53 of the UUPA and in Government Regulation No. 40/1996 on cultivation rights, building use rights and land use rights. Land rights include freehold titles (hak milik), the right to cultivate (HGU) the right to build (HGB), the right to use (hak pakai), rental rights for buildings, land clearing rights, forest product collection rights, pawn right and profit sharing business rights.

Based on Article 21 of the UUPA, only Indonesian citizens are allowed to hold property rights, meaning that foreign nationals are unable to have property within Indonesian territory. This creates legal problems if a dual nationality child who is not yet 18 years of age or unmarried receives an inheritance in the form of property rights.

Article 20, paragraph 2 of the UUPA allows the transfer of ownership rights to land from the owner to another party due to a legal event, which can be in the form of birth, marriage or death.

In the case of death, property rights can be transferred to the heirs, as regulated in Article 830 of the Civil Code stating that inheritance can only take place due to death.

There are three elements of inheritance in the Civil Code as an absolute requirement for an inheritance event to occur. Inheritance elements include heirs; people who die and leave their property to other people; people replacing the heir in their position of inheritance, either in whole or in certain parts; and inheritance, or all assets and debts left by the deceased.

The requirement to become an heir is to have the right to the inheritance as a legal child or child born outside marriage as regulated in Article 832 of the Civil Code. The status as a heir becomes active with the death of the testator according to Article 2 in conjunction with Article 836 of the Civil Code, and the heirs do not include persons who have been declared undeserved, incompetent or who have refused inheritance.

Based on this, the child has fulfilled the elements as heirs, but in the case of inheritance in the form of property rights, the inheritance of the child is in conflict with the provisions of Article 21 of the UUPA. The UUPA stipulates that only Indonesian citizens and legal entities can hold property rights.

If the child is 18 years of age or has married during the dual citizenship period and has not yet chosen his or her citizenship, then based on Article 21, paragraph 4 of the UUPA, the land and/or property is forfeited to the state within one year.

The Citizenship Law, which regulates dual citizenship, is in conflict with Article 21, paragraph 4 of the UUPA, which prohibits foreign nationals and individuals with dual citizenship from holding property rights. In addition, the individual also cannot be subject to the title holder's citizenship status.

Dual citizenship status does not abolish the right to inherit, but there are restrictions on the right to inheritance in the form of property rights regulated by Article 852 of the Civil Code.

Children with dual citizenship who are not yet 18 years of age or not yet married are unable to obtain property rights due to dual citizenship status and incompetence due to age. In their stead, all legal actions need to be carried out with the appointment of a guardian in accordance with Article 51 of the Marriage Law.

The existence of a guardian to carry out legal actions initially is to obtain a Certificate of Inheritance (SKW), which acts as a strong evidence of the existence of a transfer of rights to an inheritance from the testator to the heirs.

Article 111, paragraph 1, letter c of Agriculture Ministerial Regulation No. 3/1997 on provisions for Government Regulation (PP) No. 24/1997 on land registration stipulates that proof of inheritance for Indonesian citizens of Chinese descent is a certificate of inheritance rights from a notary.

To obtain the services of a notary for a Certificate of Inheritance, Article 39, paragraph 1 of Law No. 30/2004 on the position of a notary stipulates that the party must be at least 18 years old or married. This means that children will require the presence of a guardian, which can be appointed and determined by the court.

The guardian is responsible for the child's personal well-being and property, with the ability to take legal action on behalf of the child. In this case, the guardian is responsible for the inheritance of the child until he or she is 18 years old or has married. Furthermore, if the child is capable and can carry out legal actions, control of the property is transferred to the child.

After a dual national child has picked a nationality, the legal consequences for the chosen citizenship will apply. If they have chosen to be an Indonesian citizen, they will be able to inherit land rights with freehold title status, whereas those who have chosen foreign citizenship are still entitled to inherit from their parents but cannot control the freehold title.

Legal protection for children who choose foreign citizenship allows them to take legal action on their inheritance. Based on Article 21, paragraph 3 of the UUPA, foreign nationals who obtain property rights due to inheritance are required to relinquish the rights within one year from obtaining the rights, after which it becomes state land if not relinquished.

Legal actions that can be carried out can take the form of buying and selling. The sale and purchase of the land and/or property has the legal consequence of transferring ownership to the new owner, so a dual national child who has inherited a freehold title can go to a notary with the assistance of a guardian and change the ownership rights into right to use.

Writers:

*Putu Ayu Sriasih Wesna

*assistant Professor and Secretary of the Master Notary Program Postgraduate Law Studies at Warmadewa University

**Josephine Carene Andrea

**Student of Master Notary Program Postgraduate Law Studies at Warmadewa University

Popular

Luhut confirms Jakarta-Surabaya high-speed rail project will continue

TNI protection details for prosecutors spark overreach fears

Nuclear option: Indonesia seeks to grow energy, cut emissions