CYIL vol. 13 (2022)

DALIBOR JÍLEK – JANA BALIŠOVÁ CYIL 13 ȍ2022Ȏ or whose unattainable parents lived outside their country of origin. Such a family could then be reunited in a third-country, provided that its members had been granted permanent residence status therein. Thus, the country of origin did not become the country of return as the reunited family settled elsewhere. One of the first resolutions of the UN General Assembly regarding refugees utilized the term “country of origin”. 10 The instrument imbued this concept with both a different legal purpose as well as a new semantic function. Previously, the term served, alongside other connecting factors such as domicile (of origin, choice, or actual) or residence, to determine the applicable law governing the refugee’s legal status. Yet, the UNGA resolution designated the child’s country of origin to become the country of return. Refugees and displaced persons, including many children, were forcibly uprooted from their home states during the war. Repatriation of unaccompanied children to their country of origin appeared as the most preferable solution offered by the international community. Within its ordinary meaning, the term “country of origin” referred to the state from which a person came. In the case of unaccompanied children, it connoted either their country of nationality or habitual residence. The term “habitual residence” always described a factual situation, i.e., a place where a person sojourned for a long time, made a living, and satisfied the needs and interests of their own as well as of the relatives’. The utilization of the term “country of origin” carried a particular legal significance for unaccompanied children. For example, some children were born to parents who were issued Nansen passports before World War II. 11 However, such children acquired no nationality under the jus soli principle at their place of birth. The states of residence neither granted the status of national to the second and third generations of such refugee children. Therefore, this class of children remained without any political or legal protection. Systematic scrutiny of the abovementioned requirements of extraterritoriality has yielded the conclusion that they served an apparently common purpose, which was directly incorporated into the heterogeneously conceived legal definition of an unaccompanied child. This was evidenced by the second part of the definition that explicitly mentioned the return of unaccompanied children to their state of origin. In the given context, the requirement of extraterritoriality thus not only served in an explanatory role but most importantly, also fulfilled a teleological function. This part of the definition echoed the intentions postulated in the third paragraph of the CIRO Preamble 12 read in conjunction with Article 2. 13 Return to the country of origin was considered a regular and customary practice in relation to this class of refugees. The repatriation of unaccompanied children was contingent on establishing their nationality. Additionally, there existed other options of resettling the unaccompanied 10 UNGA Res 8(I) ‘Question of Refugees’ (12 February 1946) UN Doc A/RES/8(I). 11 Some states continued to issue Nansen passports to stateless persons even after World War II, thus impeding the IRO’s endeavors. 12 See CIRO Preamble: “…that genuine refugees and displaced persons should be assisted by international action, either to return to their countries of nationality or former habitual residence, or to find new homes elsewhere, under the conditions provided for in this Constitution…” 13 See CIRO art 2: “The functions of the Organization to be carried out in accordance with the purposes and the principles of the Charter of the United Nations, shall be: the repatriation; the identification, registration and classification; the care and assistance; the legal and political protection; the transport; and the re-settlement and re-establishment, in countries able and willing to receive them, of persons who are the concern of the Organization under the provisions of Annex I.”

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