c) Importance of Birth Registration
55. In the legislation of most States, nationality is acquired at birth automatically by virtue of
descent from a national or birth in the territory of the State. As a result, the rules set out in the
1961 Convention operate regardless of whether a child’s birth is registered. Nonetheless,
registration of the birth provides proof of descent and of place of birth and therefore underpins
implementation of the 1961 Convention and related human rights norms. Article 7 of the CRC
specifically requires the registration of the birth of all children and applies irrespective of the
nationality, statelessness or residence status of the parents.
d) Implementation of Treaty Obligations in National Law
56. Contracting States are encouraged to formulate their nationality regulations in a way that
makes clear the procedures by which they are implementing their obligations under Articles 1to 4 of the 1961 Convention and incorporate all relevant due process guarantees. This also
applies for countries in which, according to their Constitutions or legal systems, international
treaties are directly applicable.
VI. FOUNDLINGS
57. Article 2 of the 1961 Convention establishes that children found abandoned in the territory
of a Contracting State (foundlings) acquire the nationality of that State. The Convention does
not define an age at which a child may be considered a foundling. The words for ‘foundling’
used in each of the five authentic texts of the Convention (English, French, Spanish, Russian
and Chinese) reveal some differences in the ordinary meaning of these terms, in particular
with regard to the age of the children covered by this provision. State practice reveals a broad
range of ages within which this provision is applied. Several Contracting States limit grant of
nationality to foundlings who are very young (12 months or younger) while most Contracting
States apply their rules in favour of children up to an older age, including in some cases up to
the age of majority.
58. At a minimum, the safeguard for Contracting States to grant nationality to foundlings 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.
59. If a State provides for an age limit for foundlings to acquire nationality, the age of the child
at the date the child was found is decisive and not the date when the child came to the
attention of the authorities.
60. Nationality acquired by foundlings pursuant to Article 2 of the 1961 Convention may only
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be lost if it is proven that the child concerned possesses another State’s nationality.
61. A child born in the territory of a Contracting State without having a parent, who is legally
recognised as such (e.g. because the child is born out of wedlock and the woman who gave
birth to the child is legally not recognized as the mother), is also to be treated as a foundling
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and immediately to acquire the nationality of the State of birth.
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Please compare to Article 7(1)(f) of the European Convention on Nationality: if later the child’s parents or the place
of birth are discovered, and the child derives citizenship from (one of) these parents or acquired citizenship on
account of his place of birth, the citizenship acquired pursuant to the foundling provision may be lost. However,
according to Article 7(3) of the European Convention on Nationality, discovery of information on the parents may
never cause statelessness.
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The same applies for legal systems which have retained requirements that mothers must recognise children born
out of wedlock in order to establish a family relationship.
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