Dr Mai Kaneko-Iwase, a researcher at Maastricht University, the Netherlands, studied international human rights law at the School of International and Public Affairs at Columbia University in New York where she obtained her master's degree in 2004. She was awarded a PhD (Law) from the Department of Private Law, Faculty of Law, Maastricht University in January 2020. Starting in 2004, Dr Kaneko-Iwase has worked for the United Nations High Commissioner for Refugees (UNHCR) primarily in Japan, but also in Pakistan, Lebanon and Malaysia. This book was written by the author purely in her personal capacity. The views expressed herein are those of the author and do not reflect the views of the UN or UNHCR.

EXECUTIVE SUMMARY 16

TABLE OF ABBREVIATIONS 20

CHAPTER 1: INTRODUCTION 22

1.1 Why foundlings? 23

1.2 Objective 26

1.3 Research questions 26

1.4 Working hypothesis to be verified in chapters 3 and 6: Foundling is a child of unknown parentage 28

1.5 Research methodology and limitation 29

1.5.1 Languages 29

1.5.2 Literature review and further research 30

1.5.2.1 Review of international and regional instruments and standards 30

1.5.2.2 Review of practical and academic materials 30

1.5.2.3 Systematic comparison of the 'foundling provision' including its definition and methodology (193 States - Annex 1) 32

1.5.2.4 Analysis of select nationality and birth registration related legal instruments, case law and administrative precedents 33

1.5.2.5 Inquiry with experts 34

1.5.2.6 Field visits and interviews 34

1.5.3 Consideration over the possibility of systematic comparative review and ideal focus countries 35

1.5.4 Adjusted approach and eventual countries with relative details included 36

1.5.5 Significance of practice by non-State parties 40

1.5.5.1 Customary international norm? Codification of the existing nationality legislation principle into the 1930 and 1961 Convention 41

1.5.5.2 Overview of Annex 1, a comparative table of 193 States - General practice accepted as law? 45

1.6 Qualitative rather than quantitative research 48

1.7 Structure 49

CHAPTER 2: NATIONALITY, STATELESSNESS, FAMILY RELATIONSHIPS, DOCUMENTAITON AND FOUNDLINGS 50

2.1 Statelessness around the world and efforts to address statelessness 50

2.2 Right to nationality under international law 53

2.3 Domestic rules for acquisition and loss of nationality 56

2.4 International legal framework to address statelessness 56

2.4.1 Developments towards adoption of the 1961 Convention 59

2.4.2 Relevance of UNHCR guidance 61

2.5 Stateless person definition and interpretation 62

2.6 The definition of being 'considered a national' 64

2.7 Notes on other related concepts 66

2.7.1 De facto stateless persons 66

2.7.2 Persons of undetermined nationality 70

2.7.3 Persons at risk of statelessness 70

2.8 Causes of statelessness including foundlinghood 71

2.9 Documentation of birth, parentage and nationality 72

2.9.1 Lack of documentation is not equivalent to statelessness 72

2.9.2 When establishing nationality without documents becomes difficult 75

2.9.3 Late birth registration as a measure to prevent statelessness arising from lack of documentation 76

2.9.4 Lack of documentation of parentage and having unknown parents 77

2.9.5 Where foundling provisions are correct solutions 79

2.10 Family law and nationality 80

2.10.1 Distinction between 'factual parent' and 'legal parent' 80

2.10.2 Legal descent under family law to be determined before nationality by jus sanguinis 81

2.10.3 Legal parentage' under family law vis-à-vis under nationality law 82

2.10.4 Relevance of the law of parentage 84

2.10.5 Establishment of legal parentage in cases of natural reproduction 85

2.10.5.1 Maternal legal descent 85

2.10.5.2 Paternal legal descent 88

2.10.6 Establishment of legal parentage for surrogacy cases 90

2.10.7 Private international law on parentage and conflict of laws in surrogacy cases 92

CHAPTER 3: 'FOUNDLING' AND UNKNOWN PARENTAGE 96

3.1 'Found' in the territory': The condition for granting nationality - not part of who a foundling is 96

3.2 Lack of an established definition of a 'foundling' - available 'definitions' 97

3.3 Language analysis 100

3.3.1 The term 'foundling' - is it used in domestic nationality legislation in English? 100

3.3.2 'Foundling' in five other UN official language versions of the 1961 Convention and domestic nationality laws 102

3.3.3 Observations based on the text of the 1961 Convention and legislation in different languages 105

3.4 Evolution of the foundling provision within international and regional instruments 106

3.4.1 Codification of nationality legislation principle into the 1930 and 1961 Convention: 'Foundling provision' more common 'otherwise stateless' persons provision 106

3.4.2 The 1930 Hague Convention 106

3.4.2.1 Two-fold structure of article 14: A i) child of unknown parents vs. ii) foundling 106

3.4.2.2 Who can be a child of unknown parents born in the territory? 107

3.4.2.3 The 'supremacy' of the obligation for children of unknown parents and foundlings (article 14) over that for children of stateless parents (article 15) 112

3.4.3 1949 UN Study of Statelessness 113

3.4.4 ILC study on Nationality including Statelessness and Draft Conventions 114

3.4.5 ILC Draft Conventions on Reduction and Elimination of Future Statelessness 115

3.4.5.1 Original dependency of article 2 on article 1 115

3.4.5.2 Subsequent separation for intended strengthening of the States' obligation for foundlings over that for persons otherwise stateless 116

3.4.6 The 1961 Convention 119

3.4.7 A child of unknown parents born in the territory: Left between article 1 and article 2? - 'Marger' with 'a foundling found in the territory'- 119

3.4.8 ECN and its explanatory report 121

3.5 The overall difference between persons of unknown parentage and other persons otherwise stateless 123

3.6 Does a 'foundling' need to have been intentionally 'abandoned' and passively 'found' on the territory? 123

3.7 The distinction between 'children of unknown parents', 'foundlings' and 'otherwise stateless persons' within domestic nationality laws 125

3.8 Persons who fall through the crack of the 1961 Convention and ECN: Persons of known parentage of unknown birthplace, otherwise stateless 130

3.9 Summary and conclusions: A foundling is of 'unknown parentage' 131

CHAPTER 4: DEFINING 'UNKNOWN-NESS' OF PARENTAGE 134

4.1 Note on the statistical information 134

4.2 One parent or both parents unknown? 135

4.3 Categories of persons considered to be of 'unknown parents' under national foundling provision 136

4.3.1 Babies abandoned on streets and other places 136

4.3.2 Baby boxes or baby hatches 138

4.3.3 Babies (anonymously) entrusted to a third person 143

4.3.4 Persons who suffer memory loss or are mentally disabled whose parents thus cannot be identified 147

4.3.5 Children informally adopted and raised by unrelated adults 149

4.3.6 New-born babies left behind at a hospital by biological mothers (of foreign appearance) 157

4.3.7 Orphans 164

4.3.8 Runaway child 165

4.3.9 A person of undocumented parentage 167

4.3.10 Children born through anonymous birth scheme 168

4.3.11 Persons whose mothers go missing after registering their birth with invalid or incomplete identity information 175

4.4 Legally unknown vs. factually unknown parents - the former includes the latter 178

4.5 Persons without legal parents as a result of surrogacy arrangements: Applicability of the foundling (unknown parentage) provision? 183

4.6 Alternative avenues of nationality grant via adoption, institutional care, facilitated naturalisation or late birth registration 193

4.7 Summary and conclusions: 'unknown parents' mean they do not legally exist or their existence is not proven 197

CHAPTER 5: BURDEN AND STANDARD OF PROOF IN DETERMINING UNKNOWN-NESS OF PARENTAGE 200

5.1 Lack of international standards on the burden and standard of proof in establishing the applicability of the foundling provision 201

5.2 Applicability of the UNHCR evidentiary standards for 'otherwise- statelessness assessment' to the foundling related assessment 203

5.3 Burden and standard of proof - irrelevant in administrative procedures? 207

5.4 The applicant's duty to cooperate and the non-adversarial nature of the procedure 207

5.5 Need for clarification of evidentiary terms and concepts 208

5.5.1 Burden of proof 209

5.5.1.1 Two kinds of 'burden of proof': burden of production versus burden of persuasion 209

5.5.1.2 'Shared' burden of proof: Impossible? 211

5.5.1.3 Reversal of burden of persuasion 212

5.5.2 Standard of proof 212

5.5.2.1 Standard of proof in different jurisdictions and fields of law 213

5.5.2.2 Standard of proof relating to statelessness in general: International standards, State practice and the challenges in adopting a low standard 214

5.6 State practice on the burden and the standard of proof in determining unknown parentage 217

5.6.1 USA 217

5.6.2 The Philippines 226

5.6.3 Japan 229

5.6.3.1 High standard of proof in Japanese civil/administrative litigations and procedures 229

5.6.3.2 Baby Andrew Case (1995) - caselaw on de facto reversed burden of persuasion and broad interpretation (lowered extent) of 'unknown-ness' of parentage 230

5.6.3.2.1 Summary of facts 230

5.6.3.2.2 The distribution of burden of persuasion affecting the three courts' decisions 231

5.6.3.2.3 Broad interpretation or 'lowered extent' of the 'unknown parentage' requirement 232

5.6.3.2.4 De facto reversed burden of persuasion 234

5.6.3.2.5 Was the standard of proof 'lowered?' 238

5.6.3.2.6 Low standard of proof (and reversed burden of persuasion) can be substituted by a broad interpretation of the 'unknown-parents' definition 238

5.6.3.3 Subsequent family court adjudications: Even broader interpretation of 'parents are unknown'? 239

5.6.3.3.1 Yokohama Family Court's adjudication in 2003 241

5.6.3.3.2 Other family court adjudications after Baby Andrew 244

5.7 Undetermined nationality: Cannot be an outcome of State's assessment 244

5.8 What is the reasonable time for the classification 'undetermined nationality' ie for the assessment of the foundling provision applicability? 245

5.8.1 Isn't 'five years' standard for 'otherwise-statelessness' period too long? 246

5.8.2 Applicability of the 'five years' standard to assessment under article 2, the foundling provision? 248

5.9 Summary and conclusions 252

CHAPTER 6: AGE OF A FOUNDLING, AND BEING 'FOUND' IN THE TERRITORY 255

6.1 Ordinary meaning 255

6.2 UNHCR and other international standards 258

6.3 Overview of the comparative review of the 139 States in terms of the age 260

6.4 The actual implementation of the legislation limiting foundlings' age 266

6.5 What is the definition of being 'found' and who can 'find' the person? 275

6.6 What is the age above which one should be able to secure evidence of stay in the country? 276

6.7 Are the rationale for low age limitation justified? 277

6.7.1 Rationales presented by States 277

6.7.2 On rationale 1: Are older children necessarily able to communicate accurately the parents' identity or birthplace? 280

6.7.3 On rationale 2: Is it justifiable to include 'presumption of birth' in the definition of being 'found'? 280

6.7.4 A foundling is any child under the age of majority 282

6.8 'Not having been born outside the territory' - is it part of the 'found' definition? 283

6.9 Burden and standard of proof in establishing having been found (under the applicable age limitation) 284

6.10 Summary and conclusions: A foundling can be found by any third party while a minor 285

CHAPTER 7: 'IN THE ABSENCE OF PROOF TO THE CONTRARY' 288

7.1 Temporal scope of 'in the absence of proof to the contrary': Pre-facto and post-facto assessment 288

7.2 Structure of article 2 and what 'to the contrary' qualifies (prerequisite or presumed facts?) 290

7.3 Travaux discussions on what constitutes proof to the contrary 292

7.3.1 Discovery of birth abroad pre-facto (and post-facto) 292

7.3.1.1 Travaux discussions on granting nationality to foundlings born abroad 292

7.3.1.2 ECN's article 6(1)(b) and the possibility to grant nationality to foundlings born abroad 298

7.3.1.3 The contemporary relevance of the drafters' intention allowing foundlings born abroad to acquire nationality 299

7.3.1.3.1 Hypothetical case study: A trafficked girl found in State A born in State B 300

7.3.1.3.2 Link with unaccompanied children 302

7.3.1.4 Discovery or establishment of foreign parentage 305

7.4 The formulation of current domestic foundling provisions and the proof to 'the contrary' (pre-facto and post-facto) 306

7.5 Selected national legislation and practice (on pre-facto assessment) 310

7.6 Post-facto withdrawal of nationality, and what constitutes proof to 'the contrary'? 326

7.6.1 Overall analysis of annex 1: Legislation on post-facto withdrawal based on birth abroad or foreign parentage, or possession of another nationality 329

7.6.2 Limitation of nationality withdrawal not resulting in statelessness - deadline, assessment of proportionality and best interests of the child 332

7.6.2.1 International standards and national legislation on the deadline for post-facto withdrawal of nationality 337

7.6.2.2 Legislation restricting nationality withdrawal regardless of timing even if it results in multiple nationality 340

7.7 Burden and standard of proof in proving the 'contrary' 342

7.7.1 States' responsibility to prove the contrary 342

7.8 Summary and conclusions: Possession of another nationality to constitute 'the contrary' 343

CHAPTER 8: RECOMMENDATIONS - MODEL FOUNDLING PROVISION 349

8.1. Short summary of chapters 1-7 349

8.2 Previous discussions on a model founding provision 350

8.3. Model foundling provision 351

8.3.1 351

'whose legal parentage (cannot be proven)': 351

8.3.2 '(whose legal parentage) cannot be proven': 352

8.3.3 'found' (in the territory) 355

8.3.4 'child' 355

8.3.5 'shall acquire nationality' (of the State where found) 356

8.3.6 'unless her or his possession of a foreign nationality is proven': 358

8.3.7 'reasonable time' to determine the applicability of paragraph 1 358

8.3.8 Regulating the withdrawal of nationality post-facto 360

8.4 Alternative avenues of nationality grant via adoption or other means 362

8.5 Final remarks 362

ANNEX 1: COMPARATIVE TABLE OF LEGISLATION ON THE NATIONALITY OF FOUNDLINGS OF 193 UN MEMBER STATES 364

ANNEX 2: FOUNDLING PROVISIONS AS OF 1953 (NON-EXHAUSTIVE) 364

VALORISATION ADDENDUM 364

BIBLIOGRAPHY 367

International Case Law 374

Regional Case Law 374

National Case Law 375

Australia 376

Japan 376

Philippines 377

Spain 378

UK 378