| Intro |
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| Preface |
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| Executive Summary |
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| Contents |
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| About the Author |
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| Abbreviations |
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| 1 Introduction |
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| 1.1 Why Foundlings? |
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| 1.2 Objective |
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| 1.3 Research Questions |
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| 1.4 Working Hypothesis to Be Verified in Chaps. 3 and 6: Foundling is a Child of Unknown Parentage |
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| 1.5 Research Methodology and Limitation |
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| 1.5.1 Languages |
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| 1.5.2 Literature Review and Further Research |
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| 1.5.3 Consideration Over the Possibility of Systematic Comparative Review and Ideal Focus Countries |
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| 1.5.4 Adjusted Approach and Eventual Countries with Relative Details Included |
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| 1.5.5 Significance of Practice by Non-state Parties |
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| 1.6 Qualitative Rather than Quantitative Research |
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| 1.7 Structure |
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| 2 Nationality, Statelessness, Family Relationships, Documentation and Foundlings |
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| 2.1 Statelessness Around the World and Efforts to Address Statelessness |
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| 2.2 Right to Nationality Under International Law |
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| 2.3 Domestic Rules for Acquisition and Loss of Nationality |
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| 2.4 International Legal Framework to Address Statelessness |
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| 2.4.1 Developments Towards Adoption of the 1961 Convention |
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| 2.4.2 Relevance of UNHCR Guidance |
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| 2.5 Stateless Person Definition and Interpretation |
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| 2.6 The Definition of Being 'considered a national' |
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| 2.7 Notes on Other Related Concepts |
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| 2.7.1 De Facto Stateless Persons |
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| 2.7.2 Persons of Undetermined Nationality |
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| 2.7.3 Persons at Risk of Statelessness |
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| 2.8 Causes of Statelessness Including Foundlinghood |
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| 2.9 Documentation of Birth, Parentage and Nationality |
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| 2.9.1 Lack of Documentation is Not Equivalent to Statelessness |
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| 2.9.2 When Establishing Nationality Without Documents Becomes Difficult |
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| 2.9.3 Late Birth Registration as a Measure to Prevent Statelessness Arising from Lack of Documentation |
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| 2.9.4 Lack of Documentation of Parentage and Having Unknown Parents. |
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| 2.9.5 Where Foundling Provisions Are Correct Solutions |
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| 2.10 Family Law and Nationality |
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| 2.10.1 Distinction Between 'factual parent' and 'legal parent' |
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| 2.10.2 Legal Descent Under Family Law to Be Determined Before Nationality by Jus Sanguinis |
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| 2.10.3 Legal Parentage Under Family Law Vis-à-Vis Under Nationality Law |
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| 2.10.4 Relevance of the Law of Parentage |
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| 2.10.5 Establishment of Legal Parentage in Cases of Natural Reproduction |
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| 2.10.6 Establishment of Legal Parentage for Surrogacy Cases |
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| 2.10.7 Private International Law on Parentage and Conflict of Laws in Surrogacy Cases |
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| 3 Defining a 'Foundling' |
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| 3.1 'Found' in the territory': The Condition for Granting Nationality-Not Part of Who a Foundling Is |
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| 3.2 Lack of an Established Definition of a 'Foundling'-Available 'Definitions' |
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| 3.3 Language Analysis |
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| 3.3.1 The Term 'foundling'-Is It Used in Domestic Nationality Legislation in English? |
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| 3.3.2 'Foundling' in Five Other UN Official Language Versions of the 1961 Convention and Domestic Nationality Laws |
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| 3.3.3 Observations Based on the Text of the 1961 Convention and Legislation in Different Languages |
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| 3.4 Evolution of the Foundling Provision within International and Regional Instruments |
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| 3.4.1 Codification of Nationality Legislation Principle into the 1930 and 1961 Conventions: 'Foundling provision' More Common than 'Otherwise stateless' Persons Provision |
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| 3.4.2 The 1930 Hague Convention |
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| 3.4.3 1949 UN Study of Statelessness |
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| 3.4.4 ILC Study on Nationality Including Statelessness and Draft Conventions |
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| 3.4.5 ILC Draft Conventions on Reduction of Future Statelessness and Denmark's Proposal |
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| 3.4.6 The 1961 Convention |
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| 3.4.7 A Child of Unknown Parents Born in the Territory: Left Between Article 1 and Article 2?-'merger' with 'a foundling found in the territory' |
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| 3.4.8 ECN and Its Explanatory Report. |
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| 3.5 The Overall Difference Between 'persons of unknown parentage' and Other 'persons otherwise stateless' |
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| 3.6 Does a 'foundling' Need to Have Been Intentionally 'abandoned' and Passively 'found' on the Territory? |
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| 3.7 The Distinction Between 'children of unknown parents', 'foundlings' and 'otherwise stateless persons' Within Domestic Nationality Laws |
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| 3.7.1 (1) Children of Unknown Parents, (2) Foundlings and (3) Otherwise Stateless Persons Distinguished |
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| 3.7.2 (1) Children of Unknown Parents 'born or found' Distinguished From (3) Otherwise Stateless Persons |
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| 3.7.3 (1) Children of Unknown Parents Included in (2) Foundling Concept |
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| 3.7.4 (1) Children of Unknown Parents Grouped Together with (3) Otherwise Stateless Persons |
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| 3.7.5 No Nationality Grant (in Principle) to (2) Foundlings Whose Birth in the Territory is Not Established |
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| 3.8 Persons Who Fall Through the Crack of the 1961 Convention and ECN: Persons of Known Parentage of Unknown Birthplace, Otherwise Stateless |
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| 3.9 Summary and Conclusions: A Foundling is of 'unknown parentage' |
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| 4 Defining 'Unknown-ness' of Parentage |
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| 4.1 Note on the Statistical Information |
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| 4.2 One Parent or Both Parents Unknown? |
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| 4.3 Categories of Persons Considered to Be of 'unknown parents' Under National Foundling Provisions |
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| 4.3.1 Babies Abandoned on Streets and Other Places |
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| 4.3.2 Baby Boxes or Baby Hatches |
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| 4.3.3 Babies Entrusted or Surrendered to a Third Person |
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| 4.3.4 Persons Who Suffer Memory Loss or Are Mentally Disabled Whose Parents Thus Cannot Be Identified |
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| 4.3.5 Children Informally Adopted and Raised by Unrelated Adults |
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| 4.3.6 New-Born Babies Left Behind at a Hospital by Biological Mothers (of Foreign Appearance) |
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| 4.3.7 Orphans |
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| 4.3.8 Runaway Child |
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| 4.3.9 A Person of Undocumented Parentage |
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| 4.3.10 Children Born Through Anonymous Birth Scheme. |
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| 4.3.11 Persons Whose Mothers Go Missing After Registering Their Birth with Invalid or Incomplete Identity Information |
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| 4.3.12 A Person Whose Biological Father is Definitively Known But Has Not Legally Recognized His Paternity Thus is Unknown (Not a Foundling as Mother is Known But Stateless) |
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| 4.4 Legally Unknown v. Factually Unknown Parents-The Former Matters |
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| 4.4.1 Need to Consider International Private Law |
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| 4.5 Persons Without Legal Parents as a Result of Surrogacy Arrangements: Applicability of Foundling (Unknown Parentage) Provisions? |
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| 4.6 Alternative Avenues of Nationality Grant via Adoption, Institutional Care, Facilitated Naturalization or Late Birth Registration |
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| 4.7 Summary and Conclusions: 'unknown parents' Mean They Do Not Legally Exist or Their Existence is Not Proven |
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| 5 Burden and Standard of Proof in Determining Unknown-ness of Parentage |
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| 5.1 Lack of International Standards on the Burden and Standard of Proof in Establishing the Applicability of the Foundling Provision |
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| 5.2 Applicability of the UNHCR Evidentiary Standards for 'otherwise-statelessness asessment' to the Foundling Related Assessment |
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| 5.3 Burden and Standard of Proof-Irrelevant in Administrative Procedures? |
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| 5.4 The Applicant's Duty to Cooperate and the Non-adversarial Nature of the Procedure |
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| 5.5 Need for Clarification of Evidentiary Terms and Concepts |
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| 5.5.1 Burden of Proof |
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| 5.5.2 Standard of Proof |
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| 5.6 State Practice on the Burden and the Standard of Proof in Determining Unknown Parentage |
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| 5.6.1 US |
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| 5.6.2 The Philippines |
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| 5.6.3 Japan |
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| 5.7 Undetermined Nationality: Cannot Be an Outcome of State's Assessment |
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| 5.8 What is 'a reasonable time' for the Classification 'undetermined nationality', that is for the Assessment of a Foundling Provision Applicability?. |
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| 5.8.1 Is a 'five years' Standard for 'otherwise statelessness' Period Not Too Long? |
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| 5.8.2 Applicability of the 'five years' Standard to Assessment Under Article 2, the Foundling Provision |
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| 5.9 Summary and Conclusions |
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| 6 Age of a Foundling, and Being 'Found' in the Territory |
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| 6.1 Ordinary Meaning |
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| 6.2 UNHCR and Other International Standards |
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| 6.3 Overview of 139 States' Foundling Provisions in Terms of Age (Annex 1) |
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| 6.3.1 'Birth in the territory' Required |
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| 6.3.2 'New-born' |
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| 6.3.3 Older Children (3-15 Years Old) |
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| 6.3.4 All 'minors' (Non-exhaustive) |
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| 6.3.5 No Age Specified |
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| 6.4 The Actual Implementation of the Legislation Limiting Foundlings' Age |
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| 6.5 What is the Definition of Being 'found' and Who Can 'find' the Person? |
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| 6.6 What is the Age Above Which One Should Be Able to Secure Evidence of Stay in the Country? |
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| 6.7 Are the Rationale for Low Age Limitation Justified? |
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| 6.7.1 Rationales Presented by States |
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| 6.7.2 Rationale 1: Do Older Children Know Their Parents' Identity or Their Birthplace? |
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| 6.7.3 Rationale 2: Is It Justifiable to Include 'presumption of birth' in the Definition of Being 'found'? |
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| 6.7.4 A Foundling is Any Child Under the Age of Majority |
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| 6.8 'Not having been born outside the territory'-Is It Part of the 'found' Definition? |
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| 6.9 Burden and Standard of Proof in Establishing Having Been Found (Under the Applicable Age Limitation) |
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| 6.10 Summary and Conclusions: A Foundling Can Be Found by Any Third Party While a Minor |
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| 7 'Proof to the Contrary' and Conditions for Nationality Withdrawal |
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| 7.1 Temporal Scope of 'in the absence of proof to the contrary': Pre Facto and Post Facto Assessment |
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| 7.2 Structure of Article 2 and What 'to the contrary' Qualifies (Prerequisite or Presumed Facts?) |
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| 7.3 Travaux Discussions on What Constitutes Proof to the Contrary. |
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| 7.3.1 Discovery of Birth Abroad Pre Facto (And Post Facto). |
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