CYIL vol. 13 (2022)

DALIBOR JÍLEK – JANA BALIŠOVÁ

CYIL 13 ȍ2022Ȏ

3.1 Disappeared parents The official interpretation of the definition focused on the elucidation of the term “unaccompanied”. Its meaning has been more precisely clarified with regard to refugee children. One of the protected classes was children of disappeared parents. Doubts concerning their death pertained particularly to parents who disappeared on the battlefield, in a ghetto, or concentration camp, during performance of forced labor or deportation or as a result of the events of war. Children of disappeared parents were unaccompanied only de facto and not de jure , considering that the parents would have to be officially declared dead otherwise. Thus, both the occupation authorities and the IRO assumed the parents’ death. On a side note, the determination of death as well as its declaration engendered unexpected jurisdictional and normative difficulties after the war. For legal purposes, death had to be proven by an official document, e.g., an entry in a civil registry or a death certificate. 34 When confronted with the lack of any evidence pertaining to their fate, administrative and judicial authorities simply presumed the parents’ death. Due to the given high probability that none of the parents survived an event of war, courts primarily relied in their legal reasoning on the special peril doctrine. 35 In the post-war period, states have simplified the procedure of declaring a person dead. Notably, the new national legislation shortened the mandatory time limits for petitioning and edictal proceedings. Nonetheless, the non-contentious procedure remained lengthy and, in some cases, impossible to complete before the resettlement of an unaccompanied child into a third-country took place. The act of declaring a disappeared parent dead gave rise to a host of norm collisions by virtue of the relevant national laws having embodied different legal principles. Common law states applied the principle of last domicile, which required both animus and factum . If the parent stayed in a prison, ghetto, or concentration camp or was forcibly deployed into Totaleinsatz , the subjective requirement of intent could not be satisfied. Thus, the last domicile became inoperative. In such instances, the place of involuntary residence was used in lieu of the last domicile. Conversely, civil law states utilized nationality as a competing principle. This principle applied, as either the exclusive or main criterion, if the parents’ nationality was determined and undisputed. However, its application was impractical vis-à-vis a stateless parent. Consequently, nationality had to be replaced by the last place of residence. Aside from the competing legal principles, a further, more perilous issue posed the highly probable conflict of national laws and jurisdictions. To this end, positive jurisdictional conflicts occurred when two or more states instituted proceedings to declare a disappeared parent dead. According to the principle of nationality, a competent authority should be the state of the parent’s nationality. By contrast, the principle of involuntary residence established the competence of the state on whose territory the parent last sojourned. The situation became more complicated, if the state concerned was subject to military occupation. Nevertheless, local authorities and organizations could also initiate the proceedings. Lastly, a third state, where close relatives of the missing person resided, could also intervene.

34 The German authorities did not keep any records of the deaths of unregistered prisoners. 35 Cf e.g. NJ Rev Stat § 3B:27-1 [2016]: Death of resident or nonresident presumed after 5 years’ absence or exposure to specific catastrophic event.

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