Mai Kaneko-Iwase, Ph.D. (Law) Based on the above review of the legislation around the world, it can be said that there is no consistent interpretation regarding the age of a foundling under Article 2 of the 1961 Convention which can constitute ‘subsequent practice’ under Article 31(3)(b) of VCLT which establishes the agreement of all parties to the treaty, even in its broad sense. According to VCLT, when the interpretation according to Article 31 ‘leaves the meaning ambiguous or obscure’ (or ‘leads to a result which is manifestly absurd or unreasonable’), recourse may be had to the ‘supplementary means of interpretation’ to determine the meaning (Article 32). As paragraph 9 of the Commentary to Conclusion 2(4) of the 2018 ILC Draft Conclusions on Subsequent Practice states, ‘subsequent practice in the application of the treaty, which does not establish the agreement of all parties to the treaty (under Article 31(3)(b) of VCLT), but only of one or more parties, may be used as a supplementary means of interpretation’120 under Article 32 of the VCLT121 which may contribute to the clarification of the meaning of a treaty.122 The question arises as to how to identify, among the divergent legislation of 142 countries, the ‘subsequent practice’ to be used as a supplementary means of interpreting Article 2 of the 1961 Convention. According to paragraph 3 of the Commentary to Conclusion 2 of the 2018 ILC Draft Conclusion on Subsequent Practice, the rules under Article 31 and 32 VCLT ‘must be read together as they constitute an integrated framework for the interpretation of treaties,’ and all of the ‘primary means of interpretation’ under Article 31 are to be taken into account in the process of applying supplementary means of interpretation under Article 32. It would then be difficult to justify the adoption of - as a supplementary means – the most ‘common’ practice, i.e. requiring the person to be newborn or recently born, merely because of the fact that the biggest number of states adopt such limits (though 35 states, i.e. 25% out of 142).123 Such an interpretation would go against the object and purpose of Article 2 of the 1961 Convention and also the evolutionary nature of international human rights law discussed in section II.A. It is rather 26 states’ foundling provisions (18% of 142 states) covering all minors - either explicitly or according to the available legal interpretation as detailed in Table 4- that should be adopted as a supplementary means of interpretation. Such a conclusion is primarily drawn from the fact that the ordinary meaning of the term ‘foundling’ may encompass older children, as in Sections IV.A and IV.B above, the 1961 Convention’s objective is to reduce statelessness, and Article 7 of the CRC and relevant human rights standards developed after the adoption of the 1961 Convention call for ensuring the right to nationality for all minors. E. Justifications to Restrict Age to Newborns/Young Children and Alternative Perspectives The main rationale for states that have limited the scope of the term ‘foundling’ to ‘newborns’ is the assumption that if children are found in the territory while still being newborn, they are less likely to have been born abroad.124 Nevertheless, the possibility that the child concerned was born outside the territory cannot be ruled out, particularly in regions where border controls are lax. In addition, it should be recalled that the text of Article 2 of the 1961 Convention in itself does not actually exclude children who were ‘born outside the territory’ from acquiring nationality.125 This is an outcome of the negotiations in the travaux process, after some states had expressed their position to prioritise the prevention of statelessness, to the effect that even if foundlings are known to have been born outside the territory, they should be granted nationality in ‘the state where they were found’ if they cannot 120 ILC, Draft conclusions on subsequent practice (n 32) para (8 and) 9 of the Commentary to Conclusion 2(4), draft conclusion 4(3) and its commentary, paras 16, 23–35. 121 See for example, Goodwin-Gill, ‘The Search’ (n 16) 210, and Dunlop, ‘Applying the Rule of Treaty Interpretation’ (n 16) 57. 122 ILC, Draft conclusions on subsequent practice (n 32) Conclusion 7(2). 123 It should again be noted that a larger group of states i.e. the 47 states i.e. 33% of 142 states do not clearly specify the maximum age in their text of foundling provisions (and the actual practice is largely not known). 124 See sec 6.7.3 of Kaneko-Iwase, Nationality of Foundlings (n 2) 258-260. 125 Sec 7.3.1 of ibid. See also Osamu Arakaki, Statelessness Conventions and Japanese Laws – Convergence and Divergence (UNHCR Japan, March 2015) 71. 37 Robert Schuman Centre for Advanced Studies