Nobodys Child: The Status of Foundlings in the International Community

Introduction
Every individual is entitled to human rights simply because he is a
human being. No matter how special a circumstances would be, no one is
excluded from this rule. Among these rights, the right to nationality is the most
elementary, yet the most encompassing of all human rights. Article 15(1) 1 of
the Universal Declaration of Human Rights 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. 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
a citizen in the point of view of municipal law, of that State. 2
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.3
Determining a person's citizenship ensures that he or she may be able to enjoy all
the rights a citizen of a country could. These involve their rights to life, liberty and property
such as civil and political rights covered by the country they are citizens therein.4
But who are considered nationals or citizens of a State? And if one is not but wants
to be one, is there any mean for him to be considered as such?
International Law, 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. The 1930 Hague Convention on Certain Questions Relating to the Conflict
of Nationality Laws5 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)
International Court of Justice (ICJ) ruled in the Nottebohm Case6 that Liechtenstein
is the sole judge of whether Nottebohm is a citizen of the State, but such is for domestic
1

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A

(III)
2
The Right to Nationality of Foundlings in International Law, RA Sarmiento, December 3,
2015, available at http://attyralph.com/2015/12/03/foundlingsnationality/ (last seen on 13
March 2016)
3
Ibid
4
Let It Be Resolved That Foundlings Are Natural-Born Citizens, Sta. Maria Cup (2015)
5
League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality
Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137
6
Liechtenstein v. Guatemala (ICJ 1955)

law purposes only as other nations are not obliged to recognize Nottebohms Liechtenstein
citizenship especially absent a genuine link between Nottebohm and that State.7
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) 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.
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.8 A question will arise then: how can a foundling be considered a citizen of a
certain State? If that State strictly follows the principle of jus soli, then without doubt the
foundling would be a stateless being absent any showing of blood-relation to any citizen of
that State. How about on the other hand, if that State strictly follows the principle of jus
sanguinis? Should there be need of any proof that the poor child was indeed born in its
territory, and not just thrown there after being born in another land?
The Blacks Law Dictionary defines a foundling as a deserted or abandoned infant;
a child without a parent or guardian, its relatives being unknown.9 The Oxford English
Dictionary on the other hand 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.
A foundling then is a child of unknown parentage found abandoned on the territory of a
State.
Does a foundling then, possessed all the rights being enjoyed by other ordinary
citizens, born of known parentage? Does international laws accorded him rights as laid
down in the Declaration on Human Rights, just like those conferred to other citizens? Is
there any international convention or treaties protecting the rights of foundlings? Or if
theres none, is there any international customary law afforded foundlings the right to
enjoy their human rights just for simply being a human being?

Foundlings 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. It may either be expressly, through a
municipal law that confers nationality upon a foundling; expressly through an
international convention or treaty where a State assumes the obligation to
confer its nationality upon foundlings in its territory; or impliedly, through a
rule of customary international law that imposes an obligation on the State to
confer its nationality upon foundlings in its territory.10
7

See Note 2.
See Note 2
9
H.C. Black, Blacks Law Dictionary (5th ed. 1979)
10
Supra
8

International law provides for the inherent right to citizenship of

foundlings.11 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).12

11

Supra
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
(III)
12

Foundlings in Treaties and International Conventions

International conventions or treaties are agreements that establish rules
that are expressly recognized by the parties to them 13. The Vienna Convention
on the Law of Treaties14 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 designation15.
The Vienna Convention on the Law of Treaties states: that A treaty does
not create either obligations or rights for a third State without its consent 16. 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
writing17.
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.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights, 18 which was adopted by the
General Assembly of the United Nations on 10 December 1948, has codified
nationality as a human right19. 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.
The resolutions of the U.N. General Assembly, in general, are not binding
on member States. However, 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.20
Thus, 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 International Covenant on Civil and Political Rights

13

ICJ Statute, Art. 38(1)(a)

Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol.
1155, p. 331
15
Vienna Convention, Article 2(1)(a)
16
Vienna Convention, supra. Art. 34
17
Id., Art. 35
18
Supra.
19
Ren de Groot, Survey on Rules on Loss of Nationality in International Treaties and Case
Law, CEPS Papers in Liberty and Security in Europe, No. 57/August 2013, available at:
http://core.ac.uk/download/pdf/16514111.pdf [last seen on 13 March, 2016]
20
Ian Brownlie, Principles of Public International Law, at p. 14 (Fifth Ed. 1998)
14

Article 24(3) of the International Covenant on Civil and Political Rights, 21

which was adopted on 16 December 1966 in New York, affirms that: Every
child has the right to acquire a nationality. The said Covenant does not qualify
whether the child if foundling or otherwise. Thus, every child, regardless of
their classification or station in life, has the right to acquire a nationality.
Declaration on the Rights of the Child
In 1959, the Declaration on the Rights of the Child 22 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.
The Convention on the Rights of the Child (CRC), guarantees a child the
right to acquire a nationality and requires the State parties to ensure the
implementation of this right, in particular where the child would otherwise be
stateless. All the rights under the Convention must be in full conformity with
the general principles of non-discrimination, the best interest of the child, the
right to life, survival and development, and the right of the child to express
his/her views.23
Article 7(1) of the same Convention on the Rights of the Child states that:24
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 Convention25 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.
Declaration on Social and Legal Principles
Another resolution of the U.N. General Assembly, the Declaration on
Social and Legal Principles relating to the Protection and Welfare of Children 26,
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
21

UN General Assembly, International Covenant on Civil and Political Rights, 16 December

1966, United Nations, Treaty Series, vol. 999, p. 171
22
UN General Assembly, Declaration of the Rights of the Child, 20 November 1959,
A/RES/1386(XIV)
23
Supra
24
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United
Nations, Treaty Series, vol. 1577, p. 3
25
Supra
26
UN General Assembly, Declaration on Social and Legal Principles relating to the Protection
and Welfare of Children, with special reference to Foster Placement and Adoption Nationally
and Internationally : resolution / adopted by the General Assembly, 6 February 1987,
A/RES/41/85

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.
1961 Convention on the Reduction of Statelessness
According to Article 2 of the 1961 Convention on the Reduction of
Statelessness, 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. 27 This is
where the general principle that foundlings take the nationality of the place
where he or she is found is lodged.
Article 12 of the same convention provides that 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. 28
1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws
The 1930 Hague Convention on Certain Questions Relating to the
Conflict of Nationality Laws29 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.30
European Convention on Nationality
The Council of Europe affirms the right of everyone to a nationality
through the European Convention on Nationality, 31 which it adopted on 6
November 1997 at Strasbourg. It provides everyone has the right to a
nationality; statelessness shall be avoided; and no one shall be arbitrarily
deprived of his or her nationality.
ASEAN Human Rights Declaration
The Association of Southeast Asian Nations (ASEAN) also echoes a
similar declaration which affirms the right to nationality. Article 18 of the

27

1961 Convention on the Reduction of Statelessness, Article 2

Ibid, Article 12
29
League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality
Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137
30
League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality
Law, 13 April 1930, League of Nations, Treaty Series, vol. 179, p. 89, No. 4137
31
Council of Europe, European Convention on Nationality, 6 November 1997, CETS 166
28

ASEAN Human Rights Declaration,32 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 American Convention on Human Rights
The Latin American States also uphold the right to nationality of every
person. The American Convention on Human Rights, Pact of San Jose, Costa
Rica,33 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.
1995 Commonwealth of Independent States Convention on Human
Rights and Fundamental Freedoms
The 1995 Commonwealth of Independent States Convention on Human
Rights and Fundamental Freedoms,34 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.
The African Charter on the Rights and Welfare of the Child
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, 35 which
was adopted by the Organization of African Unity on 11 July 1990 at Addis
Ababa, Ethiopia, states:
Article 6: Name and Nationality
1.
32

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

Association of Southeast Asian Nations (ASEAN), ASEAN Human Rights Declaration, 18

November 2012
33
Organization of American States (OAS), American Convention on Human Rights, Pact of
San Jose, Costa Rica, 22 November 1969
34
Regional Treaties, Agreements, Declarations and Related, Commonwealth of Independent
States Convention on Human Rights and Fundamental Freedoms, 26 May 1995
35
Organization of African Unity (OAU), African Charter on the Rights and Welfare of the Child,
11 July 1990, CAB/LEG/24.9/49 (1990)

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

Foundlings in Customary International Law

Being a general practice accepted as law, a rule of customary
international Law requires the presence of a State practice, or usus, and the
belief that such practice is obligatory as a matter of law or juridical necessity
(opinio juris sive necesitatis).
State practice in the form of having municipal laws granting nationality
on foundlings in their territories has been found in several States. 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.
Among them are the United States of America Section 301(f) of its
Immigration and Nationality Act,[54] also known as the Foundling Statute; The
Citizenship Act of Canada; The Nationality Act of 1985 of Australia; The Law for
the Bulgarian Citizenship; The Law on Croatian Citizenship; The Danish
Nationality Act; Section 12 of Finlands Nationality Act of 2003; The Greek
Nationality Code; ACT LV of 1993 on Hungarian Citizenship; the Italys The Law
No. 91 of 1992; The Spanish Civil Code; The Act on Swedish Citizenship; The
British Nationality Act of 1981; and Indias Citizenship Act of 1955, among
many others.
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. 36 As stated by the International Court of Justice
in the North Sea Continental Shelf cases:
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.37
36
37

See Note 4
ICJ, North Sea Continental Shelf cases, supra., at par. 74

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 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. 38
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. 39
Canada requires that the foundling be found before apparently reaching the
age of seven years.40 Austria requires that a foundling be found under the age
of six months.41 The United Kingdom, on the other hand, requires that the
foundling was a new-born infant at the time it was found. 42 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.43

Conclusion
Determining who the citizens of State are, is the exclusive prerogative of
the State, which may be limited only by international obligations that the State
itself has assumed in International Law. While the right to nationality is
declared as a fundamental human right by various international conventions
specifically the Universal Declaration of Human Rights, its specific application
on foundlings is still a matter of State prerogative and discretion.
Various States have already give their nationality to foundlings found in
their territory. 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
38

Canada: Citizenship Act [Canada], R.S., 1985, c. C-29, 10 July 1985, supra.
Title III, Chapter 1, 301, 8 U.S.C. 1401
40
Canada: Citizenship Act [Canada], R.S., 1985, c. C-29, 10 July 1985, supra.
41
Austria: Federal Law Concerning the Austrian Nationality (Nationality Act 1985), supra.
42
British Nationality Act 1981, 1981 Chapter 61, 30 October 1981, available at:
http://www.refworld.org/docid/3ae6b5b08.html %5Baccessed 13 March 2016]
43
See Note 2
39

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.44
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.45
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.
In sum, there is no international law presuming a foundling as a citizen
of the country where the child is found. While there is no customary
international law conferring nationality to foundlings at birth, there is no
dispute however, that foundlings has the right to nationality and the corollary
right to be protected against statelessness.

44
45

Ibid
Supra