CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IRO: UNACCOMPANIED CHILDREN AND THEIR INTERESTS principle in equivocal cases. The latter endeavor is based on two seminal documents: the ECOSOC resolution of 24 August 1948 3 and Article 14 of the HICOG Law No. 11. 4 2. The Definition of Unaccompanied Children I: Necessary Components Annex I of the CIRO 5 endowed the vocabulary of international law with an assortment of new legal terms. The first part of Annex I distinguished among two classes: refugees and displaced persons. 6 Following the political arrangements of the 1920s, the CIRO subdivided refugees into specific categories. Its broad definition of war victims was preceded by a blanket explanation of the term “refugee” which designated persons who have left, or were located outside, their country of nationality or habitual residence. 7 2.1 Extraterritoriality The extraterritoriality component was deliberately bifurcated. The requirement of extraterritoriality was dependent on two mutually exclusive criteria: whereas the first one, nationality, pertained to refugees whose legal bond with their state remained formally preserved, the second one, habitual residence, 8 referred to the personal situation of refugees not formally connected to any state. Thus, no state considered such refugees as its nationals and, consequently, was entitled to exercise diplomatic or consular protection on their behalf. Both criteria, despite having been declared functionally equivalent, showcased the alternative instances of a refugee’s personal status in a downright antithetical contrast. Under the CIRO, the extraterritoriality requirement for unaccompanied children was not identical to that stipulated for adult refugees. Instead of nationality or habitual residence, 9 the extraterritoriality component within the definition of unaccompanied children appertained to their country of origin. The subsequent official interpretation by the IRO of the term “unaccompanied child” consolidated the nascent legal concept’s cognitive aspirations with the vicissitudes of its application. The IRO’s interpretation provided both precision and clarity to the expository rule as well as helped simplify the application of the rule in complex cases. The requirement of the child’s residence outside the country of origin also extended to include the parents. This liberal interpretation benefitted children whose parents disappeared, 3 ECOSOC ‘Progress and Prospect of Repatriation, Resettlement and Immigration of Refugees and Displaced Persons, resolution of 24 August 1948’ (24 August 1948) UN Doc E/RES/157 (VII) (ECOSOC resolution). 4 US High Commissioner for Germany (HICOG) ‘Law No. 11 – Repatriation and Resettlement of Unaccompanied Displaced Children’ (22 October 1950) (HICOG Law) art 14. 5 CIRO Annex I, Part I, Section A – Definition of Refugees. 6 The term “displaced persons” was first utilized in 1944 in a military context by the Supreme Headquarters Allied Expeditionary Force (SHAEF). 7 CIRO Annex I, Part I, Section A – Definition of Refugees, para 3: “Subject to the provisions of sections C and D and of Part II below, the term ‘refugee’ applies to a person who has left, or who is outside of, his country of nationality or of former habitual residence, and who, whether or not he had retained his nationality, belongs to one of the following categories…” 8 The term “habitual residence” was imported into the international law from German poor laws ( gewöhnlicher Aufenthalt ) in force at the end of the 19th century. 9 Arrangement Relating to the Legal Status of Russian and Armenian Refugees (adopted 30 June 1928) LXXXIX LNTS 2005: “It is recommended that the personal statute of Russian and Armenian refugees shall be determined in countries in which the previous law of their respective countries is no longer recognized, either by reference to the law of their country of domicile or of usual residence ( résidence habituelle ), or, failing such country, by reference to the law of the country in which they residence.”

103