Rights of Foundlings

INSIGHTS ON
THE RIGHTS
OF
FOUNDLINGS
SUBMITTED TO: Atty.

Porfirio D. G.
Panganiban
SUBMITTED BY: MARIA

KRISTINA D. SIUAGAN
THE TREATMENT AND RIGHTS OF FOUNDLINGS UNDER INTERNATIONAL LAW 1
Statelessness is the condition or status of an individual who is born without any nationality or who
loses his nationality without retaining or acquiring another.1 As defined by Article 1 of the 1954
Convention relating to the Status of Stateless Persons, a stateless person is one "who is not
considered as a national by any State under the operation of its law". With this, a stateless person is
said to be an individual who does not have a nationality of any country. Some people are born
stateless, while others become stateless over the course of their lives.2
As found by the United Nations High Commissioner for Refugees (UNHCR), there are several causes
which could make individuals stateless. The primary cause is existence of gaps in a countrys legal
regime relating to nationality. An example of this would be those infants or children found in a
certain state or country, who are of unknown parentage. If such country from where these infants or
children are found only allows acquisition of nationality through parental decent (or does not allow
the same on the basis of birth on the state or territory alone), they could be left stateless. Another
cause of statelessness would be the emergence of new states and changes in borders. In many
cases, specific groups may be left without a nationality as a result of these changes. And finally,
statelessness is also caused by a loss or deprivation of nationality. In some states, citizens are
susceptible to losing their nationality simply because of living outside their countries for too long.
States can also arbitrarily deprive citizens of their nationality through changes in law that leave
whole populations stateless, using discriminatory criteria like ethnicity or race to define who and
who does not belong to a state. This, however, is frowned upon due to the prohibition of arbitrary
deprivation of ones nationality, pursuant to the United Nations Declaration of Human Rights.
This humble work aims to focus and endeavors to tackle key discussion points concerning infants or
children found in certain states or countries, who are of unknown parentage, and who are commonly
referred to as foundlings. However, the discussions and insights set forth under this work shall be
limited to the issue of whether or not foundlings have rights in the field of international law.
With all due respect, it is humbly submitted that these individuals should enjoy certain fundamental
freedoms and basic human rights. Their status of statelessness should not render these foundlings as
persons bereft of any rights under the international law.
FOUNDLINGS WHO ARE THEY?
According to the Blacks Law Dictionary a foundling is a deserted or abandoned infant; a child
found without a parent or guardian, its relatives being unknown.
1
Cruz, International Law (2003), page 189.
2
http://www.unhcr.org/pages/49c3646c158.html (Last visited on April 4, 2016)
SUBMITTED BY: MARIA KRISTINA D. SIUAGAN

Because of the anonymity of his parents, these children become stateless, especially when born and
found in states or countries that follow the rule of jus sanguinis in the acquisition of nationality by
birth. Under this rule or principle, an individual acquires the nationality of his parents.3
Without a trace of the requisite parentage, foundlings are then placed to a state of legal limbo of
statelessness.
RIGHTS OF FOUNDLINGS UNDER THE INTERNATIONAL LAW
Statelessness has become a primordial concern due to the fact that a person not possessed of any
nationality could not be adequately protected under international law.
Nationality is the tie that binds an individual to his state, from which he can claim protection and
whose laws he is obliged to obey (emphasis supplied).4 Fundamentally, individuals, considered
merely as objects of international law and discourse, can only act through the instrumentality of their
own state in matters involving other states. Thus, whenever they sustain an injury as a consequence
of a wrong attributable to a foreign jurisdiction, the only way they can seek redress for such a wrong
is through the instrumentality of the state from which they belong. This is based on the theory that it
is their state whose right, that is the right to have its nationals respected by other states, has been
violated. Ergo, it is the state of such individuals, not the latter, who can become the proper party in
seeking redress in the arena of international law.5
Unfortunately, such tie or legal bond, which guarantees an individual the protection under
international law, is essentially absent in foundlings.
Nonetheless, foundlings should not be accorded a life with nothing but a scintilla of significance due
to the fact of their condition as stateless individuals. It is submitted that foundlings are entitled to
certain rights, conferred by generally accepted principles of international law and
treaties/conventions, by the mere fact of their existence as human beings.
A. RIGHTS CONFERRED BY THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) AND

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)
The UDHR, in its Preamble, expressly recognizes the inherent dignity and of the equal and
inalienable rights of all members of the human family. Human rights are not granted by the
State, nor stem from nationality or citizenship in a country. These rights neither operate to
protect exclusively only a particular group of people. Human rights are rights which
3
Cruz, International Law (2003)
4
Ibid.
5
Ibid.

necessarily spring from being a member of the human species.6 Therefore, being members of
the human family too, foundlings should also be accorded such basic or fundamental human
rights accorded to any other individual. In addition, the same fundamental rights and
freedoms are reiterated under the International Covenant on Civil and Political Rights. As a
matter of fact, the Covenant expressly recognizes the idealism that every human being shall
enjoy civil and political freedom and freedom from fear and want.7
Based on the foregoing, it is submitted that foundlings should be entitled the enjoyment of
the basic and non-derogable human rights and fundamental freedoms8, to wit: (1) the right
to life, liberty, and security of persons9; (2) the right against slavery, servitude, or slave trade
in all its forms10; (3) the right against torture, cruelty, or inhumane and degrading treatment
or punishment11; (4) the right against the application of an ex post facto law and bill of
attainder12; and (5) the right to be recognized everywhere as a person before the law13.
Apart from such rights mentioned in the next preceding paragraph, most rights found under the UDHR
(e.g. right to a nationality, right to travel, and freedom of abode) are, however, subject to certain
requirements and limitations imposed by municipal laws. However, see the succeeding discussions on the
additional rights conferred upon stateless persons, which include foundlings, by conventions entered
upon to increase their entitlement to the enjoyment of more rights and freedoms.
B. RIGHTS PROVIDED UNDER THE CONVENTION ON THE RIGHTS OF THE CHILD
The 1990 Convention on the Rights of the Child proclaims, based on the principles set forth
under the Universal Declaration of Human Rights and the 1924 Declaration on the Rights of
the Child, that (1) childhood is entitled to special care and assistance, and that (2) "the child,
by reason of his physical and mental immaturity, needs special safeguards and care, including
appropriate legal protection, before as well as after birth".
6
Petrabla, Hornbook on International and Philippine Human Rights Laws (2013 Edition)
7
Preamble, International Covenant on Civl and Political Rights (ICCPR)
8
Article 4 of the International Covenant on Civil and Political Rights provides that [i[n time of public emergency
which threatens the life of the nation and the existence of which is officially proclaimed, the State parties to the
present Covenant may take measures derogating from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their
obligation under international law and do not involve discrimination solely on the ground of race, colour, sex,
language, religion, or social origin. xxx No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16, and 18
may be made under this provision
9
Article 3, Universal Declaration of Human Rights (UDHR); vis--vis Article 6, International Covenant on Civil and
Political Rights (ICCPR)
10
Article 4, UDHR; vis--vis Article 8, ICCPR
11
12
13

Article 7 of this Convention provides that (1) The child shall be registered immediately after
birth and shall have the right from birth to a name, the right to acquire a nationality and as
far as possible, the right to know and be cared for by his or her parents; (2) States Parties
shall ensure the implementation of these rights in accordance with their national law and
their obligations under the relevant international instruments in this field, in particular where
the child would otherwise be stateless.
It is submitted that this Convention, by far, is the most particular in so far as the treatment
and the rights of foundlings are concerned.
C. RIGHTS PROVIDED UNDER THE 1961 CONVENTION ON THE REDUCTION OF STATELESSNESS
The basic principle that human beings shall enjoy fundamental rights and freedoms is
affirmed and reiterated under the 1961 Convention on the Reduction of Statelessness. This
covenant, which was entered into by several participating states in June 1960, aims to
assure stateless persons the widest possible exercise of these fundamental rights and
freedoms14 (Emphasis supplied.)
As provided for by this Convention, stateless persons shall enjoy the following basic rights
within the territories in which they may be found:
(a) Article 4 RELIGION. The Contracting States shall accord to stateless persons within their
territories treatment at least as favourable as that accorded to their nationals with
respect to freedom to practice their religion and freedom as regards the religious
education of their children.
(b) ARTICLE 5 RIGHTS GRANTED APART FROM [THIS] CONVENTION. This provision
declares that nothing in the said 1961 Convention shall impair any rights and benefits
previously granted to stateless persons, which may be different from such rights set
forth thereunder.
(c) ARTICLE 7 EXEMPTION FROM RECIPROCITY. In paragraph 1 hereof, it is provided that
stateless persons shall be accorded the same treatment as aliens generally by the
Contracting State in which he is found or resides. However, where the provisions of the
Convention is found to more favorable to such persons, the Contracting State shall give
force such provisions instead. Paragraph 2 hereof also provides that after a period of
three years' residence, all stateless persons shall enjoy exemption from legislative
reciprocity in the territory of the Contracting States. In addition, Paragraph 3 of the same
Article expressly provides that each Contracting State shall continue to accord to
stateless persons the rights and benefits to which they were already entitled, in the
absence of reciprocity, at the date of entry into force of this Convention for that State.
And finally, in Paragraph 4 hereof, the Contracting States are mandated to consider
14
Preamble, Convention on the Reduction of Statelessness (also known as Convention relating to the Status of
Stateless Persons)

favorably the possibility of according to stateless persons, in the absence of reciprocity,

rights and benefits beyond those to which they are entitled according to paragraphs 2
and 3, and to extending exemption from reciprocity to stateless persons who do not fulfil
the conditions set forth paragraphs 2 and 3.
Likewise, under this Convention, consideration has also been given to the juridical status of
stateless persons. This may be gleaned from the following provisions:
(a) In Article 12 of the Convention, which governs specifically the PERSONAL STATUS of a
stateless person, it is expressly provided that rights previously acquired by a stateless
person and dependent on personal status, more particularly rights attaching to marriage,
shall be respected by a Contracting State, subject to compliance, if this be necessary,
with the formalities required by the law of that State, provided that the right in question
is one which would have been recognized by the law of that State had he not been
stateless.
(b) Another salient provision of this Convention pertains to the right conferred upon a
stateless person to acquire movable or immovable property in the state in which he is
found or resides, in a manner as favorable as possible as or no less favorable than that
accorded to aliens generally under the same circumstances. This is mandated under
Article 13 of the Convention.
(c) Article 14 ARTISTIC RIGHTS AND INDUSTRIAL PROPERTY. With regard to the protection
of industrial property, such as inventions, designs or models, trademarks, trade names,
and of rights in literary, artistic and scientific works, a stateless person shall be accorded
in the country in which he has his habitual residence the same protection as is accorded
to nationals of that country. In the territory of any other Contracting State, he shall be
accorded the same protection as is accorded in that territory to nationals of the country
in which he has his habitual residence.
(d) The Convention also confers upon any stateless person the RIGHT TO ASSOCIATION as
well as the RIGHT TO FREE ACCESS TO COURTS on the territory of all Contracting States.
(e) Provisions on the conferment of rights involving GAINFUL EMPLOYMENT, HOUSING,
RATIONING, PUBLIC EDUCATION, SOCIAL SECURITY, and ADMINISTRATIVE ASSISTANCE
were also included under this Convention;
(f) In addressing the issues, as well as current (or even future) challenges of stateless
persons arising from the exercise of FREEDOM OF ABODE AND MOVEMENT, the
Convention expressly provides in Article 26 thereof that these persons shall be accorded
the right to choose the place of their residence with the concurrent right to move freely
within its territory. In furtherance of this right, it is likewise provided that stateless
persons shall have the right to acquire identity papers and travel documents. And finally;
(g) The Contracting States shall as far as possible facilitate the assimilation and
naturalization of stateless persons. They shall in particular make every effort to expedite

naturalization proceedings and to reduce as far as possible the charges and costs of such
proceedings.15
NOTE: Again, as discussed above, foundlings are considered as stateless persons under
the international law due to their lack of nationality, attributable to the fact that their
parentage and decent is unknown. Consequently, it must be stressed that all such other
conventions pertaining to stateless persons may find application to them.
With all the foregoing concepts, treaty and/or convention provisions, and declarations considered, it
is opined that, indeed, foundlings have rights that they could exercise and enjoy under the
INTERNATIONAL LAW.
TREATMENT OF FOUNDLINGS UNDER THE PHILIPPINE JURISDICTION WRITERS INSIGHTS
Due to the most recent developments in the Philippine political arena, in line with the upcoming May
2016 election, the most frequently asked question has been Are foundlings are entitled to run for a
national office? Notwithstanding the final and executory decision of the Philippine Supreme Court
on the matter, the question and suppositions related thereto still lingers.
Who may run for the highest elective offices in the Philppines? Section 3, Article VI and Section 2,
Article VII of the 1987 Philippine Constitution mandates the following:
Section 3, Article VI No person shall be a Senator unless he is a natural-born citizen of the

Philippines, and on the day of the election, is at least thirty-five years of age, able to read and
write, a registered voter, and a resident of the Philippines for not less than two years
immediately preceding the day of the election. (Emphasis supplied.)
On the other hand, Section 2, Article 7 of the Constitution provides that:
[n]o person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election,
and a resident of the Philippines for at least ten years immediately preceding such election.
In relation to the foregoing, one must know who those individuals are referred to as natural-born
citizens of the Philippines. As provided for under Section 2, Article IV of the Constitution, [natural-
born citizens are those who are citizens of the Philippines from birth without having to perform any
act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in
accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.
15
Article 32, Convention on the Reduction of Statelessness (1961)

The author of this work cannot help but take notice of the matter. It is then the writers humble
opinion that foundlings could not be given as much, under the law, as could be accorded to those who
are positively determined as natural-born Filipinos (e.g privilege to run for and hold the highest
positions in the land), for the reason that the Philippines, is not obligated to do so under any
municipal law, treaty or convention, or even in pursuance to generally accepted principles of
international law.
In the outset, it has to be noted that there had been, according to the UNHCR16, sixty five (65)
Contracting States to the 1961 Convention on the Reduction of Statelessness, which provides for the
obligation of states to confer or accord nationality to foundlings and other stateless persons within
their territory and/or jurisdiction. In the recent records published17, another batch of States signified
their accession thereto. Noteworthy is the fact that the Philippines is neither a signatory/contracting
State nor amongst those who have acceded (subsequently) to the obligations set forth thereunder.
As provided further for under Section 21, Article VII of the 1987 Constitution, No treaty or
international agreement shall be valid and effective unless concurred in by at least two-thirds of all
the Members of the Senate. (Emphasis supplied.) This means that before the Philippines could be
bound under a treaty or an international agreement (such as a convention), which do not embody a
generally accepted principle of international law, there must be ratification on the part of the
Republic of the Philippines and a legislation adopting and putting such treaty or agreement unto
operation in the Philippine jurisdiction. To date, there is no such type of legislative enactment.
On the other hand, one may argue that the Universal Declaration of Human Rights (UDHR) provides
for the generally accepted principles of international law concerning rights to which each and every
human being is entitled to exercise and enjoy. Amongst such fundamental freedoms is the right to
acquire a nationality. While the same holds true, nonetheless, it is submitted and believed that
such right, is subject to the limitations and requirements set forth under the 1987 Philippine
Constitution and other relevant laws on the matter18. Consequently, the right to acquire such
nationality could not be automatically conferred by the Philippines as a matter of duty or
obligation.
If at all, foundlings are only entitled to such rights and freedoms that would be sufficient to protect
their welfare and development as individuals, and which are innately available to every member of
the human race, regardless of age, sex, religion, political belief, or creed.
16
United Nations Treaty Collection (Database)
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-4&chapter=5&lang=en) (Last visited on
April 5, 2016.)
17
The UN Refugee Agency Website (http://www.refworld.org/cgi-bin/texis/vtx/rwmain?page=statelessness), last
visited on April 5, 2016
18
Amongst such laws are Commonwealth Act no. 473 and Republic Act no. 9139

In so far as such rights and privileges accorded by the State particularly only to its full-pledge natural-
born citizens, such as the right to hold the highest position in the government, the supposed
entitlement of foundlings to such rights should not be countenanced. They could not be considered
as a class of natural-born citizens, which is one of the requirements for such elective positions, for
the reasons explained above. Neither could they be deemed natural-citizens by virtue of election for
this process requires the knowledge of the foundlings decent or parentage. Again, as mentioned
previously, foundlings are those whose parentage or decent is unknown.
To allow the foundlings to be elected to such positions, merely through reliance on the precepts of
public international law, and in the absence of any constitutional provision or legislative enactment
on the matter, would be too much an insult to the Philippine legal system. And most importantly, it
jeopardizes the States capacity and right to self-determination and existence, as well as its right to
administer its own governmental affairs.

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INSIGHTS ON

SUBMITTED TO: Atty.

SUBMITTED BY: MARIA

FOUNDLINGS WHO ARE THEY?

SUBMITTED BY: MARIA KRISTINA D. SIUAGAN