CYIL vol. 13 (2022)

DALIBOR JÍLEK – JANA BALIŠOVÁ

CYIL 13 ȍ2022Ȏ

1. Introduction In international legal theory and practice, the definition of refugees has always represented a subject matter with strong allure. Conversely, the definition of unaccompanied children often appeared as a mere discursion, coalescing on the margins of noteworthy theoretical legal research. Annex I of the 1946 Constitution of the International Refugee Organization (CIRO) established cognitive rules that explained and delimited the legal parameters of refugees and displaced persons. 1 The definition of unaccompanied children necessarily depended on those parameters. 2 Simultaneously, the definition of unaccompanied children, however, also demonstrated a certain degree of autonomy. It should be, therefore, analyzed as a separate object. Definitions have served various functions and purposes within the ambit of international law. The explanatory and delimiting functions of the definition followed, in relation to unaccompanied children, the functions of the International Refugee Organization (IRO): identification, registration, and classification; care and assistance; legal and other protection; restoring of relationships with relatives; and repatriation or resettlement. The purpose of the definition corresponded, too, with those functions, i.e., by entitling the children eligible for institutional assistance and protection and distinguishing the unaccompanied children from other child victims of war. The present Article endeavored to determine and explain the legal, but also historical and political, processes that informed both the development of the definition of unaccompanied children as well as the consolidation of a guiding principle to determine those children’s interests in the immediate aftermath of World War II. In this context, the principle of best interests of the child would only have intervened in cases with no clear-cut solutions as to the future place of residence of the unaccompanied children. That is, when the primary options of reunification with parents and repatriation were implausible, improbable, or plain impossible to accomplish. To this end, the first section of the present Article focuses on isolating and deconstructing of the necessary components of the definition of unaccompanied children, i.e., extraterritoriality, chronological age, nationality, and priority assistance. The second section analyzes the more personal, supplementary expositions of the definition. Featuring among those were instances of unaccompanied children whose parents disappeared, abandoned them, or became unattainable as well as instances of children without a legal guardian or close relatives. In its intermediate conclusion, the second section returned to the conditional interface between the IRO’s definitions of refugees and unaccompanied children. The third and final section examines the processes and prospects of repatriation and resettlement of unaccompanied children. Moreover, this section also charts the developmental trajectory and discusses the multifactorial nature of the principle of best interests of unaccompanied children qua guiding 1 Constitution of the International Refugee Organization (adopted 15 December 1946 UNGA Res 62(I), entered into force 20 August 1948) 18 UNTS 3 (CIRO) Annex I. Resolution No. 108, adopted by the General Council of the IRO at its 101st meeting on 15 February 1952, provided for the liquidation of the organization. 2 Ibid Annex I, Part I, Section A, para 4: “The term ‘refugee’ also applies to unaccompanied children who are war orphans or whose parents have disappeared, and who are outside their countries of origin. Such children, 16 years of age or under, shall be given all possible priority assistance, including, normally, assistance in repatriation in the case of those whose nationality can be determined.”

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