Introduction

This article seeks to answer the question of whether International Law sufficiently protects the right of
foundlings to a nationality. In particular, it focuses on the issue of whether International Law affords
foundlings the right to be considered nationals of the State in which they are found, and whether States
have a binding obligation to confer their nationality on foundlings found in their territory.
As used in this article, a foundling is a child of unknown parentage found abandoned on the territory of a
State.[2] It must be an infant at the time it was found abandoned. The Blacks Law Dictionary defines
a foundling as a deserted or abandoned infant; a child without a parent or guardian, its
relatives being unknown.[3] The Oxford English Dictionary also uses the term infant in
defining foundling, thus an infant that has been abandoned by its parents and is discovered
and cared for by others.[4] The word infant, on the other hand, is defined as a very young child
or baby.[5]
This article will argue that there are gaps in International Law that result in inadequate protection and
implementation of the right of foundlings to a nationality. In particular, this article will show that the
obligation of a State to confer its nationality upon a foundling in its territory exists only as a matter of treaty
obligation in International Law.
This article is structured as follows: The first section will talk about nationality and discuss the different
principles of acquiring a nationality and the corresponding obligations of States. The second section will
talk about statelessness and the measures taken States to reduce it. The third section will examine the
rules that confer nationality on foundlings in international conventions and treaties, and determine the
scope of their coverage and their binding nature. The fourth section will determine if the existing practices
or rules that confer nationality on foundlings have attained the status of customary international law and,
therefore, binding upon all States.
For purposes of this article, the terms nationality and citizenship shall be used interchangeably and
without distinction. Most States consider citizenship, which is the term that is commonly used in
municipal or national law, as synonymous with nationality, which is the term used in International Law.
The United States (U.S.) and Russia are two of the notable exceptions. Under U.S. law, not all U.S.
nationals are U.S. citizens. For example, the inhabitants of American Samoa and Swain Island are
considered nationalsfor International Law purposes but are not considered citizens for purposes of the
U.S. Constitution and its laws.[6] Under Russian law, the term nationality is associated with the ethnicity
of a person, while the term citizenship refers to the legal bond between an individual and the State.[7]
Nationality
Nationality is generally understood as the legal bond that connects a person to a particular State. It
constitutes his membership in the particular State. It makes him a national (or acitizen in the point of
view of municipal law) of that State.

Nationality creates reciprocal obligations between the citizen and the State. It imposes upon the citizen
the duty to render allegiance to the State and subjects him to the obligations created by the laws of that
State. Thus, it is the basis of the States exercise of jurisdiction over the person. On the part of the State,
nationality imposes the responsibility to protect the citizen. It also gives the State the right to accord
diplomatic protection to its nationals and to make claims on their behalf.
Article 15(1) of the Universal Declaration of Human Rights[8] provides that everyone has a right to
nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.
International Law, however, recognizes the right of each State to determine who its citizens are, and to
establish its own standards for conferring nationality albeit only for domestic law purposes. In
the Nottebohm case,[9] the International Court of Justice (ICJ) ruled that Liechtenstein is the sole judge
of whether Nottebohm is a citizen of the State but such is for domestic law purposes only as other nations
are not obliged to recognize Nottebohms Liechtenstein citizenship especially absent a genuine link
between Nottebohm and that State.
The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality
Laws[10] (hereafter, the 1930 Hague Convention) provides the following rules in determining a
persons nationality:
It is for each State to determine under its own law who are its nationals. This law shall be recognized by
other States in so far as it is consistent with international conventions, international custom, and the
principles of law generally recognized with regard to nationality. (Article 1)
Any question as to whether a person possesses the nationality of a particular State shall be determined
in accordance with the law of that State. (Article 2)
A State may confer its nationality exclusively upon persons born within its territory or jurisdiction by the
application of the principle of jus soli (by place of birth)[11] regardless of the nationality of their parents.
A State may also confer nationality only to persons whose parents are nationals of the State by the
application of the principle of jus sanguinis (by right of blood) regardless of whether they are born within
or outside its territory. A State may also apply both principles of jus soli and jus sanguinis. A State may
also confer nationality upon persons through naturalization, which does not require the naturalized citizen
to be born within the territory of the State or to be born of parents who are nationals of the State. A State
may also consider marriage and adoption as methods of acquiring a nationality.
The concurrent application of the principles of jus soli and jus sanguinis may result in an individual
having the nationalities of two States, i.e., dual citizenship. If a child whose parents State of nationality
applies the principle of jus sanguinis is born in the territory of another State that applies the principle
of jus soli, the child would be possessed of dual citizenship. The child acquires both the nationality of his
parents State of nationality and the nationality of the State where he was born.

Article 3 of the 1930 Hague Convention recognizes that a person having two or more nationalities may
be regarded as its national by each of the States whose nationality he possesses. However, Article 5 of
the said Convention also adds that:
Within a third State, a person having more than one nationality shall be treated as if he had only one.
Without prejudice to the application of its law in matters of personal status and of any conventions in
force, a third State shall, of the nationalities which any such person possesses, recognise exclusively in its
territory either the nationality of the country in which he is habitually and principally resident, or the
nationality of the country with which in the circumstances he appears to be in fact most closely
connected.
Statelessness
While the concurrent application of the principles of jus soli and jus sanguinis may result in a person
having dual or multiple nationalities, their conflicting application, on the other hand, may result in an
anomaly whereby an individual is not possessed of any nationality.
If a child whose parents State of nationality exclusively applies the principle of jus soli is born in the
territory of another State that exclusively applies the principle of jus sanguinis, the child would not be
considered a citizen of either State; hence, a stateless person.
Article 1 of the 1954 Convention Relating to the Status of Stateless Persons[12] defines
astateless person as a person who is not considered as a national by any State under the operation of
its laws. Since many rights and privileges afforded by States may be exercised only by their nationals, a
stateless person, therefore, is at a big disadvantage.
While nationality is the basis of the reciprocal obligation of allegiance on the part of the citizen and
obligation of protection on the part of the State, a stateless person is not without obligations to the State in
which he finds himself. Article 2 of the 1954 Convention Relating to the Status of Stateless
Persons[13] provides that:
Every stateless person has duties to the country in which he finds himself, which require in particular that
he conform to its laws and regulations as well as to measures taken for the maintenance of public order.
Reciprocally, although not a national of the State in which he finds himself, a stateless person is not
entirely without right and protection. Under the same Convention,[14] a stateless person shall be
accorded the same treatment at least as favorable as that accorded to the nationals of the State with
respect to freedom to practice their religion and freedom as regards the religious education of their
children.[15] A stateless person shall also be accorded the same treatment granted to a national of the
country of his habitual residence with respect to rights to artistic rights and industrial property, free access
to courts, rationing, elementary education, and public relief and assistance.[16] A stateless person shall
also be accorded the same treatment which shall be as favorable as possible and, in any event, not less
favorable than that accorded to aliens generally in the same circumstances with respect to rights to

movable and immovable property, right of association, wage-earning employment, liberal professions,
housing, and freedom of movement.[17]
Aiming to reduce statelessness by international agreement, the 1961 Convention on the Reduction
of Statelessness[18] has adopted the following measures to prevent statelessness:
A Contracting State shall grant its nationality to a person born in its territory who would otherwise be
stateless. (Article 1)
A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting State,
who would otherwise be stateless, if the nationality of one of his parents at the time of the persons birth
was that of that State. (Article 4)
The Right to Nationality in International Law
Since nationality is the legal bond between a State and an individual, such bond is not possible without
the consent of the State. Such consent may be manifested by a State in several ways:
1.

Expressly, through a municipal law that confers nationality upon a foundling;

2.

Expressly, through an international convention or treaty where a State assumes the

obligation to confer its nationality upon foundlings in its territory; or

3.

Impliedly, through a rule of customary international law that imposes an obligation on

the State to confer its nationality upon foundlings in its territory.

This article focuses only on conferment of nationality on foundlings either by way of an obligation
assumed under an international convention or imposed by an international custom or norm. However, the
examination of municipal laws that confer nationality upon foundlings is still relevant as evidence of a
general practice accepted as law, i.e., an international custom.[19]
Hence, under International Law, the right of a foundling to nationality can be based on international
conventions or on international customs, both of which are considered to be sources of International Law
pursuant to Article 38, paragraph 1 of the Statute of the International Court of Justice (ICJ Statute).[20]
The Right to Nationality in Resolutions of the United Nations General Assembly
The Universal Declaration of Human Rights,[21] which was adopted by the General Assembly of the
United Nations on 10 December 1948, has codified nationality as a human right.[22] Article 15 of the
Declaration reads:
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
As to the binding nature of resolutions of the U.N. General Assembly, Professor Ian Brownlie expresses
the view that these resolutions, in general, are not binding on member States. He adds, however, that
when the resolutions are concerned with general norms of international law, then acceptance by a
majority vote constitutes evidence of the opinions of governments in the widest forum for the expression of
such opinions.[23]

As a mere resolution of the General Assembly, the Universal Declaration of Human Rightsis not per
se legally binding. There is, however, a view that since 1948 the Declaration has become binding as a
new rule of Customary International Law.[24] Paragraph 2 of theProclamation of Teheran,[25] which
was adopted by the International Conference on Human Rights held in Iran in 1968 declares: The
Universal Declaration of Human Rights states a common understanding of the peoples of the
world concerning the inalienable and inviolable rights of all members of the human family
and constitutes an obligation for the members of the international community.
In 1959, the Declaration on the Rights of the Child[26] was proclaimed by the U.N. General
Assembly through its Resolution 1386(XIV) of 20 November 1959. It contains a more emphatic provision
on the right to nationality as applied to children as it makes it an entitlement of a child from birth. Principle
3 of the Declaration reads:
The child shall be entitled from his birth to a name and a nationality.
Another resolution of the U.N. General Assembly, the Declaration on Social and Legal Principles
relating to the Protection and Welfare of Children,[27] adopted on 3 December 1986, and published
on 6 February 1987, also affirms the right to nationality as applied to children. Article 8 of the said
Declaration reads:
The child shall at all times have a name, a nationality and a legal representative. The child should not, as
a result of foster placement, adoption or any alternative regime, be deprived of his or her name, nationality
or legal representative unless the child thereby acquires a new name, nationality or legal representative.
The Right to Nationality in International Conventions
International conventions or treaties are agreements that establish rules that are expressly recognized by
the parties to them.[28] The Vienna Convention on the Law of Treaties[29]defines a treaty as an
international agreement concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever its particular
designation.[30]
Since express consent is required for a State to be bound by the rules that international conventions or
treaties establish, States that do not become a party to a particular convention or treaty cannot be bound
by its terms. This principle was explained by the ICJ in the North Sea Continental Shelf
cases[31] where it stated that:
In principle, when a number of States, including the one whose conduct is invoked, and those invoking it,
have drawn up a convention specifically providing for a particular method by which the intention to
become bound by the rgime of the convention is to be manifested-namely by the carrying out of certain
prescribed formalities (ratification, accession), it is not lightly to be presumed that a State which has not
carried out these formalities, though at all times fully able and entitled to do so, has nevertheless
somehow become bound in another way. Indeed if it were a question not of obligation but of rights,if,
that is to say, a State which, though entitled to do so, had not ratified or acceded, attempted to claim rights

under the convention, on the basis of a declared willingness to be bound by it, or of conduct evincing
acceptance of the conventional rgime, it would simply be told that, not having become a party to the
convention it could not claim any rights under it until the professed willingness and acceptance had been
manifested in the prescribed form.[32]
The principle is also echoed in the Vienna Convention on the Law of Treaties. It states: A treaty
does not create either obligations or rights for a third State without its consent.[33] It adds
further: An obligation arises for a third State from a provision of a treaty if the parties to the
treaty intend the provision to be the means of establishing the obligation and the third State
expressly accepts that obligation in writing.[34]
Therefore, a rule conferring nationality upon foundlings, if established pursuant to an international
convention or treaty, is only binding on States that are parties to the said convention or treaty.
Consequently, foundlings found in States that are not parties to such an international convention may not
compel said States to give them their nationalities.
Thus, the following international conventions that affirm the right of everyone to a nationality must be
understood as binding only on State which are parties to them, either by ratification, accession, or any
other means allowed by the particular convention in question.
The Council of Europe affirms the right of everyone to a nationality through the European Convention
on Nationality,[35] which it adopted on 6 November 1997 at Strasbourg. It provides:
Article 4 Principles
The rules on nationality of each State Party shall be based on the following principles:
1.

everyone has the right to a nationality;

2.

statelessness shall be avoided;

3.

no one shall be arbitrarily deprived of his or her nationality;

The Arab States also recognize the right to a nationality. Article 29 of the Arab Charter on Human
Rights,[36] which was adopted by the Council of the League of Arab States on 22 May 2004, states:
1.

Everyone has the right to nationality. No one shall be arbitrarily or unlawfully

deprived of his nationality.

2.

States parties shall take such measures as they deem appropriate, in accordance
with their domestic laws on nationality, to allow a child to acquire the mothers
nationality, having due regard, in all cases, to the best interests of the child.

3.

No one shall be denied the right to acquire another nationality, having due regard for
the domestic legal procedures in his country.

The Association of Southeast Asian Nations (ASEAN) also echoes a similar declaration which affirms the
right to nationality. Article 18 of the ASEAN Human Rights Declaration,[37] which was adopted on 18
November 2012 at Phnom Penh, Cambodia, states:
Every person has the right to a nationality as prescribed by law. No person shall be arbitrarily deprived of
such nationality nor denied the right to change that nationality.
The Latin American States also uphold the right to nationality of every person. TheAmerican
Convention on Human Rights, Pact of San Jose, Costa Rica,[38] which was adopted by the
Organization of American States (OAS) on 22 November 1969, states:
Article 20. Right to Nationality
1.

Every person has the right to a nationality.

2.

Every person has the right to the nationality of the state in whose territory he was
born if he does not have the right to any other nationality.

3.

No one shall be arbitrarily deprived of his nationality or of the right to change it.

The 1995 Commonwealth of Independent States Convention on Human Rights and

Fundamental Freedoms,[39] which was adopted on 26 May 1995 at Minsk, Belarus, also provides
that:
Article 24
1.

Everyone shall have the right to citizenship.

2.

No one shall be arbitrarily deprived of his citizenship or of the right to change it.

In other international conventions, this right to a nationality is guaranteed in a clearer language, i.e., as
the right to acquire a nationality, especially in the case of children.
Article 24(3) of the International Covenant on Civil and Political Rights,[40] which was adopted on
16 December 1966 in New York, affirms that: Every child has the right to acquire a nationality.
Article 7(1) of the Convention on the Rights of the Child,[41] which was adopted on 20 November
1989 in New York, reads:
The child shall be registered immediately after birth and shall have the right from birth to a name, the
right to acquire a nationality and as far as possible, the right to know and be cared for by his or her
parents.
Article 7(2) of the same Convention[42] imposes the further obligation upon States Parties to ensure
the implementation of these rights in accordance with their national law and their
obligations under the relevant international instruments in this field, in particular where the
child would otherwise be stateless.

The African States also assert the right of every child to acquire a nationality. The African Charter on
the Rights and Welfare of the Child,[43] which was adopted by the Organization of African Unity on
11 July 1990 at Addis Ababa, Ethiopia, states:
Article 6: Name and Nationality
1.

Every child shall have the right from his birth to a name.

2.

Every child shall be registered immediately after birth.

3.

Every child has the right to acquire a nationality.

4.

States Parties to the present Charter shall undertake to ensure that their
Constitutional legislation recognize the principles according to which a child shall
acquire the nationality of the State in the territory of which he has been born if, at the
time of the childs birth, he is not granted nationality by any other State in accordance
with its laws.

The Scope and Meaning of the Right to Nationality

While there is no question about the binding nature of the provisions of international conventions
protecting the right of everyone to a nationality and to acquire a nationality, the question, however, is the
scope of the said provisions and the nature of the obligation they impose upon the states which are
parties to them. Are the said general rights to a nationality and to acquire a nationality sufficient to impose
a binding obligation upon a state party to confer its nationality upon a foundling in its territory?
In General Comments No. 17: Article 24 (Rights of the Child),[44] the Human Rights Committee
has made the following observations:
Special attention should also be paid, in the context of the protection to be granted to children, to the right
of every child to acquire a nationality, as provided for in article 24, paragraph 3. While the purpose of this
provision is to prevent a child from being afforded less protection by society and the State because he is
stateless, it does not necessarily make it an obligation for States to give their nationality to every child
born in their territory.
In his Guide to the Travaux Prparatoires of the International Covenant on Civil and
Political Rights,[45] Marc Bossuyt made the following observations with respect to the adoption of the
wording of Article 24, paragraph 3 of the ICCPR.
During the ensuing debate, the word acquire was inserted in draft Article 24(3), and the words from his
birth were deleted. Accordingly, the word acquire would infer that naturalization was not to be considered
as a right of the individual but was accorded by the State at its discretion.[46]
Hence, the general right of everyone to nationality and of every child to acquire a nationality does not
impose an unqualified obligation on the part of a State party to give its nationality on every child born on
its territory.

The same interpretation would apply to all the other international conventions that protect the right of
everyone to nationality and the more specific right of a child to acquire a nationality, including
the Convention on the Rights of the Child which was adopted after theICCPR. In fact, Article 7(2) of
the Convention on the Rights of the Child provides: States parties shall ensure the implementation
of these rights in accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would otherwise be
stateless.
Article 7(2) of the Convention on the Rights of the Child underscores the equal importance of a States
national law and its obligations under the relevant international instruments in ensuring its
implementation of the right of a child to acquire a nationality, in particular where the child would
otherwise be stateless. This obligation is explained by the Human Rights Committee in paragraph 8
of General Comments No. 17,[47] which reads:
States are required to adopt every appropriate measure, both internally and in cooperation with other
States, to ensure that every child has a nationality when he is born. In this connection, no discrimination
with regard to the acquisition of nationality should be admissible under internal law as between legitimate
children and children born out of wedlock or of stateless parents or based on the nationality status of one
or both of the parents. The measures adopted to ensure that children have a nationality should always be
referred to in reports by States parties.
International Conventions that Specifically Apply to Foundlings
While the international conventions cited above deal with the right to nationality as applied to anyone or
any person, or to children in general, there are several international conventions that contain specific
provisions that apply to foundlings and their right to a nationality.
The 1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws[48] provides:
Article 14. A child whose parents are both unknown shall have the nationality of the country of birth. If
the childs parentage is established, its nationality shall be determined by the rules applicable in cases
where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in
which it was found.
Article 15. Where the nationality of a State is not acquired automatically by reason of birth on its territory,
a child born on the territory of that State of parents having no nationality, or of unknown nationality, may
obtain the nationality of the said State. The law of that State shall determine the conditions governing the
acquisition of its nationality in such cases.

The 1961 Convention on the Reduction of Statelessness,[49] on the other hand,

contains the following provisions:
Article 1
1.

A Contracting State shall grant its nationality to a person born in its territory who
would otherwise be stateless. Such nationality shall be granted:

(a) at birth, by operation of law, or

(b) upon an application being lodged with the appropriate authority, by or on behalf of the person
concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this
article, no such application may be rejected.
A Contracting State which provides for the grant of its nationality in accordance with subparagraph (b) of
this paragraph may also provide for the grant of its nationality by operation of law at such age and subject
to such conditions as may be prescribed by the national law.
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be
considered to have been born within that territory of parents possessing the nationality of that State.
Article 12
1.

In relation to a Contracting State which does not, in accordance with the provisions of
paragraph 1 of article 1 or of article 4 of this Convention, grant its nationality at birth
by operation of law, the provisions of paragraph 1 of article 1 or of article 4, as the
case may be, shall apply to persons born before as well as to persons born after the
entry into force of this Convention.

2.

The provisions of paragraph 4 of article 1 of this Convention shall apply to persons

born before as well as to persons born after its entry into force.

3.

The provisions of article 2 of this Convention shall apply only to foundlings found in
the territory of a Contracting State after the entry into force of the Convention for that
State.

The European Convention on Nationality[50] also provides:

Article 6 Acquisition of Nationality
1 Each State Party shall provide in its internal law for its nationality to be acquired ex legeby the following
persons:
1.

children one of whose parents possesses, at the time of the birth of these children,
the nationality of that State Party, subject to any exceptions which may be provided
for by its internal law as regards children born abroad. With respect to children whose
parenthood is established by recognition, court order or similar procedures, each State
Party may provide that the child acquires its nationality following the procedure
determined by its internal law;

2.

foundlings found in its territory who would otherwise be stateless.

The Covenant on the Rights of the Child in Islam,[51] which was adopted by the 32nd Islamic
Conference of Foreign Ministers in Sanaa, Republic of Yemen in June 2005, states:
Article Seven Identity
1.

A child shall, from birth, have right to a good name, to be registered with authorities
concerned, to have his nationality determined and to know his/her parents, all his/her
relatives and foster mother.

2.

States Parties to the Covenant shall safeguard the elements of the childs identity,
including his/her name, nationality, and family relations in accordance with their
domestic laws and shall make every effort to resolve the issue of statelessness for any
child born on their territories or to any of their citizens outside their territory.

3.

The child of unknown descent or who is legally assimilated to this status shall have
the right to guardianship and care but without adoption. He shall have a right to a
name, title and nationality.

The Right to Nationality in Customary International Law

The Charter of the United Nations[52] acknowledges the existence of customary international law
through Article 38(1)(b) of the ICJ Statute, which is incorporated into the Charter by Article 92 thereof. It
states:
The Court, whose function is to decide in accordance with International Law such disputes as are
submitted to it, shall apply international custom, as evidence of a general practice accepted as
law.[53]
Being a general practice accepted as law, a rule of customary international Law requires the presence of
a State practice (usus) and the belief that such practice is obligatory as a matter of law or juridical
necessity (opinio juris sive necesitatis). Opinio juris was described by Professor Brownlie as a
sense of legal obligation, as opposed to motives of courtesy, fairness, or morality.
We will now turn to examine if there is evidence of practice that States adhere to, out of a sense of legal
obligation (opinio juris), that is sufficient to maintain that the obligation of a State to give its nationality
upon a foundling born or found on its territory has crystallized into a rule of customary international law.
State practice in the form of having municipal laws granting nationality on foundlings in their territories has
been found in the following States:
1.

United States of America Section 301(f) of its Immigration and Nationality Act,
[54]also known as the Foundling Statute, provides:

SEC. 301. The following shall be nationals and citizens of the United States at birth:
(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;

1.

Canada The Citizenship Act[55] provides:

Section 3, Par. 4. (1) For the purposes of paragraph 3(1) (a), every person who, before apparently
attaining the age of seven years, was found as a deserted child in Canada shall be deemed to have been
born in Canada, unless the contrary is proved within seven years from the date the person was found.
1.

Austria The Nationality Act of 1985[56] provides that:

Article 8. (1) Until proof to the contrary, a person under the age of six months found on the territory of the
Republic is regarded as national by descent.
1.

Bulgaria The Law for the Bulgarian Citizenship[57] provides:

Art. 11. Considered born on the territory of the Republic of Bulgaria is a child found on this territory,
whose parents are unknown.
1.

Croatia The Law on Croatian Citizenship[58] provides:

Article 7. A child who was born or found on the territory of the Republic of Croatia shall acquire Croatian
citizenship if both of his or her parents are unknown or are persons whose citizenship is unknown or are
stateless persons. The child shall lose Croatian citizenship if by time he or she is fourteen it shall be
determined that both of his or her parents are foreign citizens.
1.

Denmark The Danish Nationality Act[59] provides:

Article 1(2) A child found abandoned in Denmark will, in the absence of evidence to the contrary, be
considered a Danish national.
1.

Finland Section 12 of its Nationality Act of 2003[60] provides:

Section 12. Foundlings and children of parents with unknown citizenship

A foundling who is found in Finland is considered to be a Finnish citizen as long as he or she has not
been established as a citizen of a foreign State. If the child has been established as a citizen of a foreign
State only after he or she has reached the age of five, the child retains Finnish citizenship, however.
1.

Greece The Greek Nationality Code[61] states:

Article 1(2). A person born on Greek territory shall acquire the Greek nationality by birth, provided that
such person does not acquire any foreign nationality by birth or is of unknown nationality.
1.

Hungary The ACT LV of 1993 on Hungarian Citizenship[62] states:

Section 3(3) Until proven to the contrary, the following persons shall be recognized as Hungarian citizens:

1.

b) children born of unknown parents and found in Hungary.

2.

Italy The Law No. 91 of 1992[63] provides:

Article 1(2). The child of unknown parents who is found abandoned in the territory of the Republic shall,
unless possession of another citizenship is proved, be deemed citizen by birth.
1.

Spain The Spanish Civil Code[64] provides that:

Article 17. The following persons are Spaniards by birth:

1.

d) Those born in Spain of uncertain filiation. For these purposes, minors whose first
known place of existence is in Spanish territory shall be presumed born within Spanish
territory.

2.

Sweden The Act on Swedish Citizenship[65] provides:

Section 2 Any foundling discovered in Sweden shall be considered to be a Swedish citizen until any
indication to the contrary is discovered.
1.

United Kingdom The British Nationality Act of 1981[66] states:

(2) A new-born infant who, after commencement, is found abandoned in the United Kingdom shall, unless
the contrary is shown, be deemed for the purposes of subsection (1)(a) to have been born in the United Kingdom after commencement; and
(b) to have been born to a parent who at the time of the birth was a British citizen or settled in the United
Kingdom.
1.

India Section 3(1) of its Citizenship Act of 1955[67] states:

2.

Citizenship by birth

(1) Except as provided in sub-section (2), every person born in India,

(a) on or after the 26th day of January, 1950.
Mere birth in India, even if both the parents are unknown, is sufficient.[68]
1.

Sri Lanka Its Citizenship Act of 1948[69] provides:

2.

Foundlings

Every person first found in Ceylon as a newly born deserted infant of unknown and unascertainable
parentage shall, until the contrary is proved, be deemed to have the status of a citizen of Ceylon by
descent.

1.

South Korea Article 2, paragraph 2 of its Nationality Law[70] reads:

Article 2. Attainment of Nationality by Birth

(1) A person falling under any of the following subparagraphs shall be a national of the Republic of Korea
at birth:
3.

A person who was born in the Republic of Korea, if both of the persons parents are
unknown or have no identity.

(2) An abandoned child found in the Republic of Korea shall be recognized as born in the Republic of
Korea.
1.

Egypt Its Law No. 26 of 1975 Concerning Egyptian Nationality[71] provides:

Article 2: Shall be considered Egyptians:

4.

Those who were born in Egypt of unknown parents. A foundling in Egypt shall be
considered as born in it, unless otherwise proved.

5.

Iraq Its Law No. (46) of 1963[72] provides:

Article 4: Shall hereby deemed to be an Iraqi National:

3.

Every person in Iraq of unknown parents. The foundling who is found in Iraq, shall be
deemed to be born there unless there shall be an evidence against it.

4.

Kuwait Its Nationality Law of 1959[73] provides:

Article 3. Kuwaiti nationality is acquired by any person born in Kuwait whose parents are unknown. A
foundling is deemed to have been born in Kuwait unless the contrary is proved.
1.

Mozambique Its Nationality Act of 1975[74] states:

Article 1
1.

The following shall be Mozambican nationals, provided they are born in Mozambique:

(b) Persons born of stateless parents or parents of unknown nationality or of unknown parents;
1.

Algeria The Nationality Law of 1970[75] states that:

Article 7. The following are of Algerian nationality by birth in Algeria:

(1) the child born in Algeria of unknown parents;

However, the child born in Algeria of unknown parents shall not be considered to have ever been Algerian
if, before he comes of age, it is established that he is also of foreign descent and if he possesses the
nationality of his foreign parent in accordance with the law of that country.
Any foundling found in Algeria is considered to be born in Algeria until the contrary has been proved.
1.

Belize The Nationality Act of 1981[76] provides:

2.

Foundlings.

Every person first found in Belize as a newly born deserted infant of unknown and unascertainable
parentage shall, until the contrary is proved, be deemed to have the status of a citizen of Belize by
descent.
1.

The following post-Communist States in Europe also grant exceptional jus

solicitizenship for children of unknown parents, found in the territory, particularly:
Albania, Bosnia H., Czech Republic, Estonia, FRY/Serbia, Latvia, Lithuania, Macedonia,
Moldova, Poland, Romania, Slovakia, and Slovenia.[77]

The above shows that there is a big corpus of domestic statutes granting citizenship on foundlings.
However, whether it satisfies the state practice requirement of customary international law is an entirely
different question.
The State practice, to establish a rule of customary international law, must be extensive, virtually uniform,
and show a general recognition that a rule of law or legal obligation is involved. As stated by the
International Court of Justice in the North Sea Continental Shelfcases:
Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of
a new rule of customary international law on the basis of what was originally a purely conventional rule,
an indispensable requirement would be that within the period in question, short though it might be, State
practice, including that of States whose interests are specially affected, should have been both extensive
and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a
way as to show a general recognition that a rule of law or legal obligation is involved.[78]
However, perfect uniformity in the application of the practice is not really necessary. In theCase
Concerning Military and Paramilitary Activities in and against Nicaragua[79] when it examined
the customary nature of the principles of non-use of force and non-intervention, the ICJ stated that:
It is not to be expected that in the practice of States the application of the rules in question should have
been perfect, in the sense that States should have refrained, with complete consistency, from the use of
force or from intervention in each others internal affairs. The Court does not consider that, for a rule to be
established as customary, the corresponding practice must be in absolutely rigorous conformity with the
rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of
States should, in general, be consistent with such rules, and that instances of State conduct inconsistent

with a given rule should generally have been treated as breaches of that rule, not as indications of the
recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but
defends its conduct by appealing to exceptions or justifications contained within the rule itself, then
whether or not the States conduct is in fact justifiable on that basis, the significance of that attitude is to
confirm rather than to weaken the rule.[80]
The ICJ also emphasized the necessity of opinio juris in several decisions. In the North Sea Continental
Shelf cases, it observed:
Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried
out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of
a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit
in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that
they are conforming to what amounts to a legal obligation. The frequency, or even habitua1 character of
the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and
protocol, which are performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.[81]
While the State practice of conferring nationality on foundlings is sufficiently dense and extensive, it does
not appear to be virtually uniform.
A number of States give their citizenship on foundlings found in their territory without requiring that the
foundling must have been born in their territory. Some States, on the other hand, require that a foundling
be born in their territory in strict application of the principle of jus soli. But some States implement a
presumption that foundlings are deemed to have been born in their territory unless the contrary is proved.
Other States implementing such presumption impose a period within which such presumption can be
rebutted, and that after such period and there is no evidence against it, then the presumption becomes
conclusive. An example of this is Finland, where a foundling retains Finnish citizenship if established as a
citizen of another State only after he or she has reached the age of five.[82] Another example is Canada
that considers a deserted child to have been born in Canada, unless the contrary is proved within seven
years from the date the person was found.[83]
Some States also implement an age requirement on foundlings as a condition for giving its citizenship.
For example, the United States requires that foundlings were under the age of five years at the time they
were found.[84] Canada requires that the foundling be found before apparently reaching the age of seven
years.[85] Austria requires that a foundling be found under the age of six months.[86] The United
Kingdom, on the other hand, requires that the foundling was a new-born infant at the time it was found.
[87] This reflects the understanding of some States that a foundling must be an infant or a very young
child.
Therefore, the practice of States of giving nationality to foundlings found in their territory is not sufficiently
uniform and consistent enough to constitute a rule of customary international law. There is also no clear

evidence of opinio juris that States feel a sense of legal obligation to confer their nationality on
foundlings found in their territory.
The Right to Nationality as a Customary Rule of International Law Derived from Treaties
Some treaties known as law-making treaties (trait-loi) may also establish norms which, when coupled
with opinio juris, result to rules of customary international law that become binding not only on the
parties to the treaty, but also on non-parties. Article 38 of the Vienna Convention provides: Nothing in
articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third
State as a customary rule of international law, recognized as such.
In the ILA Report (London Principles),[88] the International Law Association summarized the case law
on the role of treaties in the formation of customary international law:
1.

A treaty may provide evidence of existing (lex lata) customary law;[89]

2.

Multilateral treaties can provide the impulse or model for the formation of new
customary rules through State practice.[90]

3.

Multilateral treaties can assist in the crystallization of emerging rules of customary

international law.[91]

4.

A multilateral treaty may give rise to new customary rules (or to assist in their
creation) of its own impact if it is widely adopted by States and it is the clear
intention of the parties to create new customary law.[92]

Treaties can, therefore, play an important role in the crystallization of emerging norms as binding
international customs or at least to affirm their existence. In the North Sea Continental Shelf cases,
the ICJ also recognized the norm-creating nature of treaties, as one of the recognized methods of
establishing international customs, holding that:
There is no doubt that this process is a perfectly possible one and does from time to time occur: it
constitutes indeed one of the recognized methods by which new rules of customary international law may
be formed.[93]
The ICJ, however, also declared that in order to become an international custom, the provision of a treaty
in question must be:
a norm-creating provision which has constituted the foundation of, or has generated a rule which, while
only conventional or contractual in its origin, has since passed into the general corpus of international law,
and is now accepted as such by the opinio juris, so as to have become binding even for countries which
have never, and do not, become parties to the Convention.[94]
The relevant treaty provisions that specifically give foundlings the right to the nationality of the State where
they are found state provide the following:
1.

A child whose parents are both unknown shall have the nationality of the country of
birth. (Art. 14, 1930 Hague Convention)[95];

2.

A foundling is, until the contrary is proved, presumed to have been born on the
territory of the State in which it was found. (Art. 14, 1930 Hague Convention)[96];

3.

A foundling found in the territory of a Contracting State shall, in the absence of proof
to the contrary, be considered to have been born within that territory of parents
possessing the nationality of that State. (Art. 2, 1961 Convention on the Reduction of
Statelessness)[97];

4.

Each State Party shall provide in its internal law for its nationality to be acquired ex
lege by foundlings found in its territory who would otherwise be stateless.
( 6,European Convention on Nationality)[98]

For the said treaty provisions to be binding on States, which are not parties to said conventions as norms
of customary international law, said provisions must fulfill the said standards set by the ICJ.
The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws entered
into force on 1 July 1937 by virtue of the ratification or accessions of ten States.[99] As of this writing,
only twenty-two States are parties to the Convention, namely Australia, Belgium, Brazil, Burma
(Myanmar), China, Cyprus, Fiji, Great Britain, India, Kiribati, Lesotho, Liberia, Malta, Mauritius, Monaco,
Netherlands, Norway, Pakistan, Poland, Swaziland, Sweden, and Zimbabwe. [100] Canada previously ratified
the Convention in 1934 but subsequently denounced it 15 May 1996.[101]
The 1961 Convention on the Reduction of Statelessness entered into force on 13 December 1975
and has sixty-four States parties as of this writing.[102] However, while it has more parties, its provision
on foundlings (Article 2) cannot be said to reflect existing rules of customary law. Article 12(3) of the
Convention states that the provisions of Article 2 shall apply only to foundlings found in the territory of a
Contracting State after the entry into force of the Convention for that State. That being the case, the
provision on foundlings contained in Article 2 of the Convention neither provides evidence of existing
customary law nor assists in the crystallization of rules of customary international law. The said provision
creates a purely conventional or treaty obligation that is referable only to the Convention.
Moreover, not having been widely adopted by States, the said provision cannot give rise to a new rule
(lex ferenda) of customary international law or assist in its creation of its own impact.
The same things can be said of the provision on the nationality of foundlings in Article 6 of the European
Convention on Nationality, which entered into force on 1 March 2000. While the Convention is also open
to non-members of the Council of Europe, the Convention, as of this writing, has been signed by twentynine States, but has been ratified by only twenty of those States.[103] From the very wordings of Article
6, the obligation of a State Party to give its nationality to foundlings found in its territory who would
otherwise be stateless shall be provided in its internal law. Evidently, it is an obligation that a State
assumes within the context of the Convention, and not arising from a belief that it is rendered obligatory
by the existence of a rule of customary international law requiring it.
Conclusion

While the right to nationality is declared as a fundamental human right by the Universal Declaration of
Human Rights and some international conventions, its specific application on foundlings is still a matter of
State prerogative and discretion. A State has the exclusive prerogative to determine who its citizens are,
which may be limited only by international obligations that the State itself has assumed in International
Law.
Some States already give their nationality to foundlings found in their territory ex lege. However, there is
no indication that such practice is done out of a sense of legal obligation, or in recognition of what States
believe to be a rule of customary international law.
The 1961 Convention on the Reduction of Statelessness has implemented provisions to secure the
right of foundlings to a nationality, and impose an obligation on States to ensure its observance by giving
their nationality on foundlings found on their territory. However, being a mere treaty or conventional
obligation, the same is binding only upon States which are parties to the Convention. Furthermore, not
having been generally accepted by States, it cannot be lightly assumed that its provisions on foundlings
have crystallized into the establishment of an obligation that exists outside of the Convention as a matter
of general practice accepted as law.
Absent a national law or an international convention where a State has agreed to assume an obligation to
confer its nationality on a foundling found in its territory, the right of a foundling to nationality cannot be
enforced by an action against the State. It is not a right that enforces itself by its own inherent value.
Thus, the right of foundlings to a nationality will just be an empty rhetoric unless States accord it due
respect and take measures, internally and internationally, to implement the right. Foundlings in States that
have no national laws, and which are not parties to international conventions, that give foundlings their
nationality may, therefore, find themselves stateless, and International Law affords no remedy.