CYIL vol. 13 (2022)

DALIBOR JÍLEK – JANA BALIŠOVÁ CYIL 13 ȍ2022Ȏ the requirement of an absent guardian. 39 This requirement was developed situationally: the guardian was either disappeared or unobtainable or had abandoned the child. The destitute condition of unaccompanied children manifested in various ways, whereas their loneliness verged on the absolute. States, having assumed the power of parens patriae, established their own national regimes of child guardianship. The rules pertaining to guardianship greatly differed from one state to another, and not just due to the differences among common and civil law systems. The Hague Conference on Private International Law undertook the task of harmonizing the relevant national laws and regulations. During the travaux préparatoires , three conservative connecting factors were considered: lex patriae , lex domicilii , and lex residentiae . Civil law systems, particularly at the time of nation-state formation, relied on the permanence and stability of nationality, i.e., on the formal bond between the state and the individuals affiliated with its territory. The bond, thus, represented the most intimate connection between the child and the state of nationality. Conversely, common law systems preferred the tangibility of facts, having favored the child’s domicile. In this context, the personal status of a child would then be governed by local laws. The Hague Convention of 1902 Governing the Guardianship of Infants designated the national law of the child, lex patriae , as the most proper legal order to resolve conflicts of laws pertaining to custody. 40 While, in principle, the application of the local law was precluded with respect to guardianship, this was not the case for other local provisions. 41 The 1902 Convention also reiterated the necessity to settle the conflict-of-laws issues relative to child custody at the international level. This ground-breaking instrument was intended for continued implementation of the state parties’ treaty obligations in peacetime. Following signature, the 1902 Convention encountered a positive reaction apropos of acceptance and ratification. Particularly civil law countries endeavored to become parties to the instrument. For states preferring guardianship matters to be governed by the local law, the 1902 Convention was deemed res inter alios acta . At that time, a contentious legal debate unfolded over the termination or suspension of its operation as a consequence of World War II. Some parties contested its enduring legal effects by asserting the assumption of discontinuity. According to this view, the war absolved the adverse parties from the fulfilment of their mutual obligations. Other states endorsed the doctrine of contractual continuity, arguing that the war should not have ipso facto terminated or suspended the operation of the 1902 Convention. A further, specific regime emerged alongside the 1902 Convention. The 1928 Arrangement Relating to the Legal Status of Russian and Armenian Refugees, as a political agreement, excluded the application of the national law of the refugees for practical reasons. 42 Those refugees, including children, were denaturalized en masse . Very few were deprived of their 39 Ibid: “(d) not provided with a legal guardian, or children whose guardian has disappeared, or who is unattainable, or who has abandoned them...” 40 Convention du 12 juin 1902 pour régler la tutelle des mineurs (adopted 12 June 1902, entered into force 30 July 1904) . 41 Application of the Convention of 1902 Governing the Guardianship of Infants ( Netherlands v Sweden ) [1958] ICJ Rep 16: “The local law with regard to guardianship is in principle excluded, but not all the other provisions of the local law.” 42 See Arrangement of 30 June 1928 Relating to the Legal Status of Russian and Armenian Refugees.

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