CYIL vol. 13 (2022)

DALIBOR JÍLEK – JANA BALIŠOVÁ CYIL 13 ȍ2022Ȏ another without themselves having demonstrated any intention to move thus, leaving the animus requirement of lex domicilii unsatisfied. The occupying powers also exercised jurisdiction over alien children. 46 Their effective control of the occupied territory was in direct contradiction to the exercise of personal jurisdiction by the home states to which the refugee children belonged. The latter states held the opposing view that, in respect to unaccompanied children whose nationality they had certified, they should have acquired an exclusive right to designate a guardian. Such a guardian would then have had the right to act on the child’s behalf. In practice, another competing principle began to emerge outside the occupied territories. Both African and Asian countries, if they were so inclined, might have adopted the principle of presence with respect to refugee children. 47 As a result, the contest among the lex patriae , lex domicilii , lex residentiae , and lex residentiae habitualem was joined by another distinct connecting factor – the lex praesentis . Unaccompanied children located within the occupation zones were gathered in various centers according to their, actual or presumed, national affiliation. For many reasons, these children were often moved from one center to another within an occupation zone or even across borders. The more traditional connecting factors laid down by specific international treaties were difficult to apply in the unstable situations the unaccompanied children have found themselves in. The principle of presence certainly befitted the state of military occupation wherein foreign powers exercised effective control over the territory. To be substantiated, the principle required proof of neither residence nor intent. Children certified as the United Nations Unaccompanied Children were subject to the international mandate of the IRO. The organization, however, was unable to act as the children’s guardian or administer guardianship designations. Children were primarily subject to the jurisdiction of military authorities and, thus, to the occupation regulations which replaced the abolished local laws. 3.4 Absence of close relatives The official interpretation of unaccompanied children by the IRO yielded another distinct requirement. Children would receive protection under international law solely on the condition that they were not looked after by a close relative. The exhaustive interpretation, having explicitly listed as potential close relatives a child’s brother, sister, uncle, aunt, or grandparent, relied on the criteria of adulthood, consanguinity, and dependency. The enumerated persons, while having lacked any parental responsibility towards the related children (no duties, powers, or rights) could, nonetheless, attend to them. In the absence of close relatives, the unaccompanied children depended, directly and crucially, on the IRO. This intergovernmental organization provided the children with care, assistance as well as subsidiary protection. Usually, the existential dependence of refugee children lasted longer than just a few weeks or months; it sometimes persisted for years.

46 The obligation to protect was enacted within the US occupation zone by the Provisional Order No. 33 [1947], which required a guardian to be appointed for an unaccompanied child as soon as possible. 47 Groups of Polish children passed through the Union of South Africa, Southern Rhodesia, Tanganyika, or Uganda. In some cases, local courts appointed for them guardians of Polish origin. A similar approach was taken in India.

114