Too old to be a ‘foundling’? – International standards and comparative analysis – I. INTRODUCTION1 Imagine you are around 11 years old. You have been begging on the streets, moving from one place to another with people whom you believed to be your parents. You have probably never been vaccinated or attended school. One day, you are pulled away by the police, who subsequently find that your self-proclaimed ‘parents’ are not in fact related to you. The authorities ask you, 'Where were you born, and who are your real parents?' You can only say, 'I don’t know, I have never known my real parents'. Fortunately, a girl who found herself in this situation in Spain was confirmed as a Spanish national under the country’s inclusive Civil Code provision2 that grants nationality to ‘minors’ of undetermined parentage found within Spanish territory.3 In a number of other states, however, similar scenarios would leave a child stateless even if the child’s legal parents were never identified. This is because under many other countries’ nationality law containing a provision granting nationality to a ‘foundling’, it only directly applies (or is interpreted to apply) to a newborn baby or an infant of unknown parents who is ‘too young to account for’ who their parents are and where they were born. Accordingly, a child who is around 11 years old or of an age to be expected to be able to account for their parents’ identity or where they were born when found in their territory, would be ‘too old’ to acquire nationality. Children of ‘unknown parents’ are among the most vulnerable in the world, not only because they would otherwise be stateless4 and prone to violations of fundamental human rights, but also because of the absence of parents and relatives legally responsible for their protection and care. Being a child of ‘unknown parents’ has traditionally been one of the typical causes of statelessness.5 Yet, there has been very limited literature6 that addresses the interpretation and application of Article 2 of the 1961 Convention on the Reduction of Statelessness (‘1961 Convention’), including the meaning of the term ‘foundling’. The exact term ‘children of unknown parents’ is actually not used in any of the 21 articles of the 1961 Convention. Instead, to grant nationality to foundlings, Article 2 provides that: 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 (emphasis added). 1 2 3 4 5 6 While most of the writing was completed before April 2025, the web links were checked in February 2026. Administrative precedent in Spain by Dirección General de Registros y Noariado (DGRN) on 10 June 2005. Res. DGRN de 10 de junio de 2005 (BOE, 1-VIII-2005, pp 27,158–9 [Anexo III.3.25]). See sec 4.3.5, 6.7.3 and 7.5 in Mai Kaneko-Iwase, Nationality of Foundlings - Avoiding Statelessness Among Children of Unknown Parents Under International Nationality Law - (Springer 2021), 130-132, 259, 296-297, 302. Article 17(1)(d) of the Spanish Civil Code states: ‘The following persons are Spanish nationals of origin: (..). d) Those born in Spain whose parentage is not determined. To these effects, minors (los menores de edad) whose first known place of stay is Spanish territory are presumed to have been born in the Spanish territory.’ (author translation) Código Civil. ‘A person who is not considered as a national by any state under the operation of its law’, as is defined in art 1 of the 1954 Convention relating to the Status of Stateless Persons (‘1954 Convention’). This definition is recognized by the International Law Commission (ILC) as customary international law. ILC, Articles on Diplomatic Protection with Commentaries (2006) 36. For example, in Côte d’Ivoire, the government once estimated that there were 300,000 persons who were stateless due to unknown parentage, out of the total of 700,000 persons who are stateless or of undetermined nationality. However, it later stopped providing such a breakdown stating that estimating the foundling population size was complex. Footnote 7 of the UNHCR, Global Trends 2015, Table 7. Mirna Adjami, Statelessness and Nationality in Côte d’Ivoire (2016) 57-58 and footnote 215. In terms of academic material, the author is aware of two previous articles dedicated to clarify the concept of, and/or the nature of nationality grant to foundlings i.e. by Ryuun O, ‘Kiji no kokuseki’ [Nationality of Abandoned Children] (1969) 4-2 Hogaku Kenkyu [Hokkaigakuen daigaku hogakkai] (Japanese) and Attorney Ralph A. Sarmiento’s blog ‘The Right to Nationality of Foundlings in International Law’ (3 December 2015) <https://attyralph.com/2015/12/03/foundlingsnationality/>. There are a few other examples of existing literature with some focus on foundlings including Gerard-René de Groot, ‘Children, their right to a nationality and child statelessness’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) and Yue Fu, ‘Nihon de umareta kodomono kokuseki to mukokuseki nintei’ (Determination of Statelessness for Children Born in Japan) (PhD dissertation, University of Tsukuba) (2016) (Japanese). European University Institute 8