Mai Kaneko-Iwase, Ph.D. (Law) The drafting process shows that the formulation of Article 14 of the 1930 Convention and Article 2 of the 1961 Convention (on foundlings) was much less controversial than that of Article 15 of the former and Article 1 of the latter Convention (on otherwise-stateless children). In fact, the drafting process of reaching the final version of Article 2 of the 1961 Convention reflects some of the drafters’ intention to impose on states a stronger obligation to grant nationality automatically to foundlings under Article 2, as opposed to the obligation towards children born in the territory ‘otherwise stateless’ under Article 1(2) of the same, which allows for non-automatic grant that might leave some children stateless52 until they reach 18 years of age. While this appears to be mainly due to the common assumption that foundlings were highly likely to be children of nationals,53 the drafters were also aware of the possibilities that the parents were foreigners, but still recognised the particular vulnerabilities of foundlings due to the absence of parents legally responsible for their protection/care, justifying the stronger footing in their views. The Representative of Denmark, for example, stated: ‘[E]ven if a foundling were the child of foreign parents, those parents would not be present to undertake the child’s education. Instead, he would be educated in the national institutions of the state in whose territory he had been found, and it was surely better that the child should acquire at birth the nationality of that country than that he should have to wait until the age of eighteen (emphasis added).’54 In practice, a number of states without explicit foundling provisions in their nationality laws have granted nationality to foundlings, including in Asia, with a relatively low ratio of states with foundling provisions (see Table 1 above). The Philippines, for example, did not have a provision equivalent to Article 2 of the 1961 Convention in its domestic law until it acceded to the 1961 Convention in March 2022 and enacted the relevant legislation55 in May 2022. The Philippines’ 2016 Supreme Court ruling56 acknowledged that children whose parents are both unknown and who were found in the territory had traditionally been treated as Filipino nationals, stating that granting nationality to foundlings is part of the norms of customary international law as a general practice with opinio juris, which led to the adoption of the above-mentioned legislation. The low ratio of states with foundling provisions in the Americas (Table 2) can be explained by the widespread existence of unconditional jus soli provisions. A number of states in Africa, such as Côte d’Ivoire, have pledged to introduce explicit foundling provisions in recent years.57 Based on the above, there is sufficient basis to assert that at least granting nationality to foundlings is a customary law norm, with the norm being acknowledged as common since before the adoption of the 1961 Convention, with states engaging in this practice under a sense of obligation. The practice of non-State parties to the 1961 Convention is, therefore, relevant in clarifying the concept of a ‘foundling’ in Article 2 of the same. 52 See sections 3.4.5.1 to 3.4.5.2 of Kaneko-Iwase, Nationality of Foundlings (n 2) 96-99. Article 2 of the Draft Convention on the Reduction of Future Statelessness adopted by ILC in 1954 was dependent on its Article 1 in the sense that the jus soli rule of Article 1 (nationality grant for an otherwise stateless child born in the territory) was to be extended to foundlings. The drafters disconnected those two provisions in the final version of the 1961 Convention. 53 For example, Germany stated ‘it was very probable that a foundling was the child of nationals of the country in whose territory he was found. For that reason alone, it was justifiable to place the deserted child in a better position than a stateless person’ (emphasis added). United Nations, Summary Records, 5th Meeting of the Committee of the Whole held on 3 April 1959, A/CONF.9/C.1/SR.5, UN Conference on the Elimination or Reduction of Future Statelessness, Geneva, 1959 (3 April 1959) 8 <http://legal.un.org/docs/?path=../ diplomaticconferences/1959_statelessness/docs/english/vol_2/a_conf9_c1_sr5.pdf&lang=E>. 54 The reference ‘than that he should have to wait until the age of eighteen’ is in relation to the fact that children born in the territory whose parents are known (not unknown like those of foundlings) and would otherwise be stateless might have had to wait for the maximum period of 18 years to acquire nationality under the provision which became Article 1 of the 1961 Convention. Ibid 8-9. 55 2022 Foundling Recognition and Protection Act (see Table 4). 56 Poe-Llamanzares v Commission on Elections (Supreme Court of the Philippines, GR No.221697/221698-700, 8 March 2016) 782 Phil 292, 13 and 29. 57 UNHCR, High-Level Segment on Statelessness: Results and Highlights (2020). 15 Robert Schuman Centre for Advanced Studies