Too old to be a ‘foundling’? – International standards and comparative analysis – Some of the limitations should be noted at the outset: While the author conducted a literature review and inquiries with local experts, there was a general lack of (detailed) publicly available/ shareable information on how domestic foundling provisions are actually applied in most states beyond their application to the most ‘typical cases’ (abandoned newborns). This made it difficult to compare implementation across states with the same level/sets of information.13 II. APPLYING THE RULE OF TREATY INTERPRETATION TO ARTICLE 2 OF THE 1961 CONVENTION In accordance with the VCLT, a treaty provision is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context in light of its object and purpose (Article 31 [1]), taking into account factors such as subsequent practice which establishes the agreement of the parties (Article 31[3][b]) and any relevant and applicable rules of international law (Article 31 [3][c]). Recourse may additionally be had to the supplementary means of interpretation (Article 32) to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves it (a) ambiguous or obscure, or (b) manifestly absurd/unreasonable. But how specifically shall those general rules of treaty interpretation reflected in VCLT be applied in interpreting the term ‘foundling’ under Article 2 of the 1961 Convention, which is an international human rights treaty?14 As discussed below, there is a widespread view that human rights treaties, as a form of special regime, warrant a special interpretive methodology, which is to adopt a nonrestrictive and evolutive interpretation method to ensure the effective realisation of their objective.15 As a CRC expert, John Tobin notes, however, care must be taken in order to avoid stretching the treaty beyond what its terms can bear.16 A. Evolutionary and Teleological Interpretation of the 1961 Convention The commonly-cited International Court of Justice (ICJ)’s 1971 Advisory Opinion on Namibia articulates the need for an evolutionary and dynamic approach to treaty interpretation, stating that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’17 As Richard Gardiner acknowledges, although subsequent legal developments are relevant to the interpretation of many treaties, they are particularly significant when examining human rights instruments.18 Guy Goodwin-Gill, an authoritative refugee law scholar, notes that human rights treaties call for a more dynamic approach to interpretation than is offered by the methods that focus on the text of the treaty or intentions of the parties.19 This is 13 Translation-related limitations: Another limitation is that the research for this article was conducted directly in English, Spanish and Japanese (and to a limited extent French). Materials in other languages referred to throughout this article were read through English translations wherever possible with assistance from persons proficient in these languages with knowledge on legal matters. Inaccuracies or missed nuances in translation (starting with the local term equivalent to ‘foundling’), however, cannot be ruled out. 14 For example, Michelle Foster acknowledges ‘the 1961 Convention is one of the earliest human rights treaties of the modern era (emphasis added).’ Michelle Foster, ‘The 1961 Convention on the Reduction of Statelessness’, The Statelessness & Citizenship Review 4(1) (2022) 190. 15 Richard Gardiner, Treaty Interpretation (2nd edn, Oxford University Press [OUP] 2015) 473–74; John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation,’ Harvard Human Rights Review, Vol. 23 (2010) 220-221; The relevant ILC Report refers to human rights bodies’ tendency ‘to adopt readings of human rights conventions that look for their effet utile to an extent perhaps wider than regular treaties’. See para 428 of ILC, ‘Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law: Report of the Study Group of the International Law Commission, Finalised by Martti Koskenniemi’, A/CN.4/L.682 (13 Apr 2006) 87. 16 Tobin, ‘Seeking to Persuade’ (n 15), in particular 222; Emma Dunlop, ‘Applying the Rule of Treaty Interpretation to the 1951 Convention,’ in Access to Courts for Asylum Seekers and Refugees: State Obligations under the 1951 Refugee Convention (OUP 2024), 50 and 75; Guy Goodwin-Gill, ‘The Search for the One, True Meaning . . .’ in Guy S Goodwin-Gill and Hélène Lambert (eds), The Limits of Transnational Law: Refugee Law, Policy Harmonisation and Judicial Dialogue in the European Union (Cambridge University Press 2010) 240–41. 17 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security, Council Resolution 276 (1970), Advisory Opinion [1971] of the ICJ Rep 16, 22 (South West Africa Opinion) para 53. 18 Gardiner, Treaty Interpretation (n 15) 333. 19 Goodwin-Gill, ‘The Search’ (n 16) 220. European University Institute 10