CYIL vol. 13 (2022)

DALIBOR JÍLEK – JANA BALIŠOVÁ CYIL 13 ȍ2022Ȏ of corroborating documentary evidence or personal declarations. Moreover, certain European states outright refused to formally recognize the refugee children’s nationality, despite being presented with irrefutable proof. Thus, the repatriation of some children was deemed impossible. In consequence, a group of unaccompanied children ineligible for repatriation emerged from the ashes of reprehensible national policies, inconsiderate bureaucracy, and plain incompetence: the so-called non-repatriables . Repatriation, along with its progress, procedures, and prospects, featured as a frequent subject of disputes within the main bodies of the UN. Unsurprisingly, the contention quickly escalated into an ideological rift within the international community, keeping with the, by then, traditional cleavages of East and West. 26 The UNGA resolution 8(I) of 12 February 1946 was strict about the character of the war refugees’ return to their country of origin, whereas it established the principle of voluntary repatriation. 27 The fundamental value at the heart of this principle reflected individual freedom, which should be inherent to every human being as required, inter alia , by the first paragraph of the Preamble and Article 1 of the Universal Declaration of Human Rights. 28 Proving the existence of this value was by no means necessary. Individual freedom translated here into a person’s ability to make informed decisions, i.e., such based on knowledge of the facts. The decision whether or not to return to the country of origin purported for the refugee or displaced person an existential choice; one in which assorted third parties, persons, or groups, intentionally strived to intervene after the war. 29 Furthermore, the UNGA resolution called for thoroughness. The refugees’ decisions regarding their future, as noted above, had to be made in complete freedom and with full knowledge of the facts. All member states of the UN, including the country of origin as well the occupying power involved in a specific case, were bound by this obligation. Similarly, even the IRO was not exempt from its personal scope of application. Refugee victims of war could decline repatriation in the presence of valid objections. The pertinent discretionary right possessed a broad ambit so as to encompass a wide variety of personal motivations and subjective views that might have been put forward by refugees or displaced persons. Its personal scope also extended to refugee children who, while not reaching majority, were older than seventeen years of age. Many unaccompanied children did not wish to return to their country of origin. This was especially true for children of Jewish ancestry, for whom arose a new opportunity of resettling 26 UN, Yearbook of the United Nations 1946–1947 (United Nations Publications 1947) 548: “But the extension of such international protection and maintenance to other large groups of persons who for one reason or another were unwilling to return to their countries of nationality or former habitual residence (notably the so-called ‘political dissidents’).” 27 UNGA Res 8(I) ‘Question of Refugees’ (12 February 1946) UN Doc A/RES/8(I): “…no refugees or displaced persons who have finally and definitely, in complete freedom, and after receiving full knowledge of the facts, including adequate information from the governments of their countries of origin, expressed valid objections to returning to their countries of origin and who do not come within the provisions of paragraph (d) below, shall be compelled to return to their country of origin.” 28 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) Preamble and art 1. 29 ECOSOC ‘Report on the Progress and Prospect of Repatriation, Resettlement and Immigration of Refugees and Displaced Persons Submitted by the Secretary-General in Collaboration with the Executive Secretary of the Preparatory Commission for the International Refugee Organization’ (10 June 1948) UN Doc E/816 (ECOSOC report) pp. 17–18.

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