Mai Kaneko-Iwase, Ph.D. (Law) Legislating a legal provision to withdraw the nationality granted based on foundling provisions upon discovering that the claimants do possess a foreign nationality may be a reasonable measure that States may take when explicitly extending their foundling provisions to all minors of unknown parentage. This, however, needs to be accompanied by appropriate procedural safeguards - including a limitation period - to avoid arbitrary deprivation of nationality.131 Further, while it is the norm (as actually practised in many States) that foundlings acquire nationality retroactively at birth, States may also consider granting nationality at the time the child was found.132 This is, however, given that being ‘found’ is properly defined as having been seen in the territory by a person other than one’s parents (i.e. not necessarily by the authorities), including to prevent undue hardships that might otherwise arise, e.g. if the period of residence within the territory before acquisition of nationality is to be considered as irregular and so on.133 F. UNHCR Guidelines and International Human Rights Law Standards UNHCR Guidelines No. 4 notes in para 57 that while some state parties apply their foundling provisions only to very young children, most states apply it to children of an older age, including in some cases up to the age of majority, and recommends at para 58 that: [a]t a minimum (…) (Note: Article 2) is to apply to all young children who are not yet able to communicate accurately information pertaining to the identity of their parents or their place of birth. This flows from the object and purpose of the 1961 Convention and also from the right of every child to acquire a nationality. A contrary interpretation would leave some children stateless. (emphasis added) This guidance is echoed by regional instruments related to the prevention of statelessness. Principle 9 of the Council of Europe Recommendation CM/Rec (2009)13 recommends states to ‘treat children found abandoned on their territory with no known parentage, as far as possible, as foundlings with respect to the acquisition of nationality’ (emphasis added). Its Explanatory Memorandum at para 24 states that, while limiting the application of Article 6(1)(b), i.e. a foundling provision of the 1997 European Convention on Nationality, to abandoned newborn babies is still in line with its obligation, ‘this restriction leaves a gap with regard to the avoidance of statelessness’. It further notes in para 25134 that ‘[a] state could decide to extend the provision on foundlings to all minors found abandoned on their territory, as some states already do’. Paragraph 96 of a 2014 General Comment135 of the African Committee of Experts on Article 6 of the ACRWC echoes the UNHCR Guidelines 4 para 57, commending ‘States that have adopted laws providing for nationality to be conferred under such provisions to much older children.’ Further, Article 5(2) of the African Union’s 2024 Protocol states that ‘A State Party shall also attribute nationality, in accordance with its national law, to a child found in its territory of unknown parents (…)’.136 131 See details on nationality withdrawal in sec 7.6 ‘Post Facto Withdrawal of Nationality.’ See also guidance to avoid arbitrary deprivation of nationality in UNHCR, Guidelines on Statelessness No. 5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness (2020). 132 See sec 5.8.2 and sec 8.3.5 of Kaneko-Iwase, Nationality of Foundlings (n 2) 224, 341-343. 133 See sec III.H of this paper and sec 6.5 of Kaneko-Iwase, Nationality of Foundlings (n 2) 253. 134 Council of Europe: Committee of Ministers, Recommendation CM/Rec(2009)13, Principle 9; para 24 of the explanatory memorandum of the Committee of Ministers to member states on the nationality of children (9 May 2009) <https://www.refworld.org/legal/resolution/coeministers/2009/en/79185>. Note that these recommendations are being updated to adopt furthermore inclusive approach. Gérard-René de Groot/Council of Europe, ‘Feasibility study on a non-binding legal instrument regarding stateless children’s access to nationality’, <https://rm.coe.int/prems-016225-gbr-2017-publication-study-children-access-nationality-we/1680b4634f> footnote 9 cites Kaneko-Iwase, Nationality of Foundlings (n2). 135 African Committee of Experts on the Rights and Welfare of the Child, General Comment No 2. on Article 6 of the ACRWC, The Right to a Name, Registration at Birth, and to Acquire a Nationality (2014) <http://www.refworld.org/docid/54db21734.html>. 136 Its draft Explanatory Memorandum (2018) used to echo the African Expert Committee General Comments (2014) but the new version of the Explanatory Memorandum has not been published. 39 Robert Schuman Centre for Advanced Studies