Too old to be a ‘foundling’? – International standards and comparative analysis – (…) the right to acquire a nationality’.46 It is ‘never in the best interests of the child to be rendered stateless’—the primary consideration for States in all actions concerning children as stipulated in Article 3 of the CRC.47 The right to nationality is enshrined in different regional instruments including in Article 6(3) and (4) of the 1990 African Charter on the Rights and Welfare of the Child (‘ACRWC’), which explicitly obliges states to adopt legislation under which a child would acquire nationality of the country where born if she or he ‘is not granted nationality by any other state in accordance with its laws’. Further, Article 5(2) of the 2024 Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa of the African Union (AU) is a foundling provision granting nationality to a child of unknown parents.48 Possible disputes over the customary law nature of nationality granted to all children born in the territory who are otherwise stateless cannot be fully resolved in this article. However, this article asserts that at least the nationality granted to foundlings found in the territory of the state can comfortably be described as a norm of international customary law for the following reasons. Article 2 of the 1961 Convention is, together with Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Law (‘1930 Convention’), a codification of the provisions commonly found among the nationality laws of states at the time of drafting granting nationality to foundlings. At the time of the travaux of the 1931 Convention and 1961 Convention, foundling provisions were already more common than the provisions to grant nationality to children born in the territory of the state whose parents are known but cannot pass on nationality to their children.49 As Roberto Córdova, in preparing the grounds for the 1961 Convention stated: [P]ractically all national legislations contain provisions which, by means of the presumption assimilate the foundlings to those persons which have been born in the territory of the state where they are found. This fact has actually placed foundlings in a better situation than other stateless persons, since practically all legislations extend to them the jus soli principle (emphasis added).50 As summarised in Table 1 above, at the time of writing (13 December 2024), at least 142 states (approx. 74%) out of 193 member states of the United Nations have explicit ‘foundling provisions’ equivalent to Article 2 of the 1961 Convention in their legislation. This is significantly more than the number of states with provisions granting nationality to children otherwise stateless (including when parents are stateless) born in the territory, which is at least 92 states or 48% out of 193 UN member states (as of 2022, as identified by GLOBALCIT).51 46 That said, Article 7(2) of CRC has a compromising phrase allowing the implementation of these rights to be ‘in accordance with their national law’, leading to the evaluation by John Tobin and others that Article 7(1) only creates ‘a strong presumption rather than an absolute right against statelessness for children’. John Tobin eds, The UN Convention on the Rights of the Child: A Commentary (OUP 2019) 255. Nevertheless, Article 4 of CRC obliges state parties to undertake all appropriate legislative, administrative, and other measures for the implementation of the CRC rights. The CRC Committee also advises in its General Comment No. 23 para 24 that states are ‘to ensure that every child has a nationality when he or she is born. A key measure is the conferral of nationality to a child born on the territory of the state (…) if the child would otherwise be stateless.’ Joint General Comment No 4 of CMW and No 23 of the CRC (2017), CMW/C/GC/4-CRC/C/GC/23. 47 See for example the Tunis Conclusions (n 41) para 62. 48 Author thanks Dr. Bronwen Manby for providing a copy of the final version of the Protocol. 49 See the states’ responses to the questionnaire on their existing nationality law provisions recorded in the League of Nations, Bases of Discussion Drawn up for the Conference by the Preparatory Committee, Volume I Nationality (Volume I-C.73.M.38.I929. V-BI-Geneva) (Conference for the Codification of International Law, May 1929). 50 Roberto Córdova, Nationality, including Statelessness-Report on the Elimination or Reduction of Statelessness (1953) 176. See also Manley O. Hudson, Report on Nationality, including Statelessness, in Yearbook of the International Law Commission (ILC 21 February 1952) 18 and 44. Brownlie also points this out. Ian Brownlie, Principles of Public International Law (OUP 2003) 383. 51 Non-UN member states excluded for statistical consistency. Vink, Maarten, Luuk van der Baaren, Rainer Bauböck, Jelena Džankić, Iseult Honohan and Bronwen Manby (2023). Global Citizenship Observatory (GLOBALCIT) Citizenship Law Dataset, v2.0, CountryYear-Mode Data (Acquisition). <https://hdl.handle.net/1814/73190>. European University Institute 14