CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IRO: UNACCOMPANIED CHILDREN AND THEIR INTERESTS nationality on the grounds of an individual decision adopted by the Soviet authorities. The legal bond between the state of origin and its former nationals was permanently lost. On that account, the national law of a stateless child would be, in any case, inoperable to serve as the legal order for the designation of a guardian. With respect to the personal status of both refugee adults and children, the political Arrangement quite logically referred to the local law. The multilateral Arrangement relied on three connecting factors listed in their order of application. It recommended the use of lex domicilii first. If that connecting factor was deemed unsuitable, then the law of habitual residence ( résidence habituelle ) came into consideration. As the third and final option was proposed the law of the actual place of residence. The 1933 Convention Relating to the International Status of Refugees as the first ever binding treaty implied the principle of subsidiarity. 43 This principle, as indicated in Article 4 of the 1933 Convention, required that any decision be made as close to the concerned refugee as possible. The plurilateral act designated as applicable law the legal order of the country of domicile; yet, it had failed to specify the type of domicile. The 1933 Convention could have been referring to domicilium actualis as opposed to the last domicile. In both cases, the custody of refugee children would have been governed by the local law most proximate to them. On a side note, the 1933 Convention also made a subsidiary reference to the refugees’ country of residence. The interwar and postwar circumstances of unaccompanied children were markedly differed. In the interwar period, to which previous legal instruments responded ad hoc , instances of unaccompanied children were considered anomalous and irregular. However, the abominable legacy of Germanization, alongside other atrocities associated with World War II, resulted in a larger number of unaccompanied children having lived after the war in the occupation zones. Children deported into the Reich were considered German nationals until the legal bond with their true country of origin was determined and certified. The application of local law governing child guardianship was precluded by international obligations arising from the Potsdam Agreement of August 1945. 44 Its fourth principle required the abolishment of “[all] Nazi [sic] laws which provided the basis of the Hitler regime or established discriminations on grounds of race, creed, or political opinion .” 45 Consequently, the occupation authorities in the US and British zones of Germany have, fully or partially, abolished particular laws and regulations. The United States and Great Britain asserted their jurisdiction in matters of child guardianship as contingent on their exercise of effective control, which also constituted the basis of the military occupation. The powers deemed themselves to be the primary subjects of the obligation to protect refugee children and consistently employed the parens patriae doctrine in their regard. The US and British occupation authorities generally proceeded according to the law of domicile as the legal order governing the relationship between the ward and guardian. Though domicile may have been an unreliable connecting factor. Unaccompanied children were often transferred within the occupation zone from one collective facility to 43 See Convention Relating to the International Status of Refugees (adopted 28 October 1933) CLIX LNTS 3663. 44 See Potsdam Agreement. Protocol of the Proceedings (adopted 1 August 1945) A Decade of American Foreign Policy: Basic Documents, 1941-49 (Prepared at the request of the Senate Committee on Foreign Relations by the Staff of the Committee and the Department of State, Government Printing Office 1950) (Potsdam Agreement). 45 Ibid art II, Part A, para 4.

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