CYIL vol. 13 (2022)

DALIBOR JÍLEK – JANA BALIŠOVÁ CYIL 13 ȍ2022Ȏ The 1948 ECOSOC report dealing with repatriation, resettlement and immigration of refugees disclosed certain deficiencies in the design of individual plans for the unaccompanied children’s future. One of those deficiencies was perceived as quite severe, to the point of threatening the adequate fulfillment of the IRO’s duties. The ECOSOC report alerted its audiences to the absence of a guiding principle that would inform and facilitate the relevant decision-making procedures applied across all cases of unaccompanied children. 68 The IRO case workers were often confronted with the difficult choice of either maintaining the status quo of the children within the occupied territory or relocating them into a different, safe country. The ECOSOC report also recalled the adverse situations the unaccompanied children might have found themselves in. The children were deported or abducted from their country of origin, deprived of their family, their nation, their homeland, their language. These circumstances were further exacerbated by the severity, brutality, and systematic character of those breaches of international obligations. Counter to these facts stood the subjective viewpoint of the unaccompanied child. Some children were opposed or outright refused to return to their country of origin. They wanted to stay with a German family and remain German nationals. 69 The involvement of children in the determination of their fate found no political support in binding international instruments. The routinely proposed individual plans, qua permanent solutions to the given dilemmas, despite being based on objective facts and rational reasoning, always verged on the seeming arbitrary. A simpler alternative for the IRO case workers to follow, might have been addressing the unaccompanied children’s cases in the short-term, on a provisional basis and without finality. The ECOSOC report recommended as a guiding principle the best interests of the child. This principle was meant to fill a vacuum, to provide the IRO staff with a standard that would consolidate the relevant decision-making procedures. It should have helped in overcoming the inconsistency and unpredictability beleaguering the proposed individual plans. The ECOSOC resolution, having taken note of the earlier ECOSOC report, adopted a consolidating standard of practice relative to the settlement of unaccompanied children. The standard primarily reproduced the previously agreed and applied policy objectives: reunification of children with the parents, notwithstanding their location; and return of orphans and unaccompanied children to the country of origin, had their nationality been established beyond reasonable doubt. Aside from the usual objectives, this recommendation also introduced a heretofore unknown political requirement that the determining factor should always be the best, individual interests of a child. 70 While not having explicitly referred to the determining factor as a guiding principle, the ECOSOC resolution rather presented it as an instrument to solve complex cases. The best interests of an unaccompanied child were to be only applied within the narrow framework of repatriation, expatriation, and local settlement. The ECOSOC resolution thus provided the IRO, and especially its staff, with a solid collection of policy objectives to follow when preparing individual plans for unaccompanied 68 ECOSOC report 54: “It is obvious that each case must be studied carefully and that the best interests of the child be a guiding principle in determining whether he will remain where he is found, or whether arrangement should be made for his repatriation or resettlement.” 69 Ibid. 70 ECOSOC resolution.

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