Mai Kaneko-Iwase, Ph.D. (Law) Accordingly, in the formulation of the wording of future international/regional treaties or nationality laws, it is recommended to adopt the term ‘child (minor) of unknown parents’ or ‘child (minor) whose legal parentage cannot be proven’ (found in the territory) since the term ‘foundling’ as well as its equivalents in other UN official languages are vague, misleading and prone to restrictive interpretation.152 The article then examined the maximum age of children that should be covered by foundling provisions and recommended that all persons of unknown parents found under the age of majority be covered. Article 2 of the 1961 Convention does not provide for any age limit, with the travaux record largely silent but consistently using the neutral term ‘child’, leaving some room for minors to be included in the foundling concept. It was acknowledged that definitions of a ‘foundling’ in nonlegal dictionaries carry connotations of a newborn or young child. However, the ‘ordinary meaning’ of a term under Article 31 (1) of the VCLT must be interpreted in light of the context, object and purpose of the treaty.153 Indeed, there were a couple of accessible nationality laws valid at the time of drafting the 1961 Convention whose foundling provisions were applicable to minors of unknown parents.154 The nationality rights enshrined in Article 7(1) of the CRC are rights of all children who have not attained the age of majority,155 and it is never in the best interests of the child to be rendered stateless. As detailed in Table 4, the comparative analysis revealed that foundling provisions of 10 states (7% of 142 states) explicitly cover all minors, and that the provisions of at least 16 states (11%) encompass all minors according to their available legal interpretation, making a total of 26 states (more than 18% of 142 states). There also exist exemplary legal precedents in which children of unknown parents who were found only at ages 11 and 12, respectively, in Spain and Italy (both of whom are likely to have been born abroad) were confirmed as nationals under their respective foundling provisions. As discussed in Section IV.E, the main rationale for states not opening up their foundling provisions to all minors and instead adopting an age limit of ‘newborns’ is to reduce the possibility that the claimants have been born abroad. However, the text of Article 2 of the 1961 Convention does not actually exclude foreign-born foundlings. Some states in the travaux process acknowledged that such foundlings should still be granted nationality where found, if they would otherwise remain stateless.156 Further, while some states limit the foundling age to ‘young children who cannot explain the identity of their parents/birthplace’, children who do not know their parents (e.g. because they were informally adopted or trafficked) will not ‘recall’ who their parents are, no matter how old they become - whether 10, 15, or even 70 years old. Concerns regarding fraudulent claims can be addressed or minimised by measures such as proper credibility assessment. Restricting foundlings’ age to ‘newborns’, ‘infants’, or certain younger ages, such as 10 or 14 years old, would thus lack firm justifications and may be considered arbitrary in light of the objective of the 1961 Convention, the CRC and the evolutive nature of international human rights law. 152 In reflecting this into domestic legislation, the ‘model foundling provision’ advanced in the author’s book serves a useful reference: ‘A person whose legal parentage cannot be proven who is found as a child (or under the age of majority) in the territory shall acquire the nationality of X [the State where found], unless her or his possession of a foreign nationality is proven.’ Detailed commentary is available in chapter 8 of Kaneko-Iwase, Nationality of Foundlings (n 2) 333-349. 153 ILC, Draft Articles on the Law of Treaties (n 111). 154 Peru and Israel. See section IV.A. (n 112 and n 113). 155 Joint General Comment No 4 of CMW and No 23 of the CRC (2017) (n 46). 156 See the proposals made by Denmark and Italy concerning the term ‘proof to the contrary’ in article 2 of the 1961 Convention (n 128). 43 Robert Schuman Centre for Advanced Studies