CYIL vol. 13 (2022)

CYIL 13 ȍ2022Ȏ IRO: UNACCOMPANIED CHILDREN AND THEIR INTERESTS children. Read in conjunction, the ECOSOC resolution and report (Part V, paragraphs 5, 14, and 15) have exposed the multifactorial nature of the guiding principle. The brief, rudimentary allusion to the principle by the ECOSOC resolution, if viewed through the lens of the preceding ECOSOC report, had acquired further, practical and political, dimensions. In particular, the ECOSOC report provided some necessary insight into the process of determining an unaccompanied child’s best, individual interests. In this context, the ECOSOC report identified six distinct assurances for the IRO staff to consider when formulating individual plans for the settlement of children in a safe state. 71 4.4 Multifactorial nature of the guiding principle In the US occupation zone, 72 the competence to grant permission for repatriation or resettlement of refugees in another state was entrusted to the Office of Military Government, United States (OMGUS) established under the control of the US Army. Moreover, the administration of the US zone was also executed through a network of military courts that, while incorporated into the OMGUS, were expected to function independently. The court machinery was redesigned in 1948 to conform more closely to the core principles of the US court system. 73 Once control of the US occupation zone passed from the US Army to the US Department of State, the OMGUS was replaced by the High Commissioner for Germany (HICOG). In October 1950, Law No. 11 delegated the decision-making competence in respect to unaccompanied children to the HICOG courts. Changes in the court system and the concomitant adjustments of the legal framework for protection of the best interests of unaccompanied children precipitated considerable advances in the application of the principle. Not only did the guiding principle win approval at the international plane, it also found its way into the occupation laws and regulations of two Allied powers. 74 Article 14 of the HICOG Law No. 11 captured the multifactorial nature of the principle. The asymmetrical coexistence of the ECOSOC resolution, the ECOSOC report and the HICOG Law was complemented by, on the one side, the principle of effective control governing the occupation rules and regulations and, on the other side, the principle of the presence of a child which prevailed over the other connecting factors. The authorities of the state to which the unaccompanied children belonged had to request permission to enter the occupied territory in order to secure the children’s return. Particularly as regards the US and British zones, decisions on repatriation, expatriation, or local settlement in Germany of unaccompanied children were issued by Military Government authorities. Pursuant to the principle of effective control, the exercise of this competence was deemed the exclusive prerogative of those military authorities. Their decision-making relied on the principle of best interests of unaccompanied children. States of nationality were unable to exercise personal jurisdiction over unaccompanied children. 75 Nor could they designate a guardian or caregiver who would make decisions on their behalf. Within the main UN bodies, the Eastern Bloc staunchly opposed the principle 71 See ibid fn. 66. 72 See LOEWENSTEIN, K. ‘Law and Legislative Process in Occupied Germany: I’ [1948] 57 Yale LJ 725, 753. 73 NOBLEMAN, E. E. ‘American Military Governments Courts in Germany’ [1950] The Annals of the American Academy of Political and Social Science , 87, 92–93. 74 HOLBORN, L. W. The International Refugee Organization: a specialized agency of the United Nations: its history and work, 1946-1952 (OUP 1956) 500–501. 75 The Polish government objected to the exercise of jurisdiction by the United States.

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