CYIL vol. 13 (2022)

DALIBOR JÍLEK – JANA BALIŠOVÁ CYIL 13 ȍ2022Ȏ children were to settle locally. The third factor explicitly asserted the satisfaction of children’s basic needs such as nourishment and clothing as an assessment criterion. Furthermore, the factor also highlighted the importance of access to health care for the unaccompanied children. Though, it was extremely difficult to meet all the particular needs and requirements of the traumatized children in the dire post-war situation. Interwar refugees were characterized by the loss of protection de jure and de facto . In the 1920s, the main organs of the League of Nations prioritized political over legal protection. Conversely, the fourth factor of the HICOG Law gave clear precedence to legal protection. Unaccompanied children whose nationality was not established and certified were essentially deprived of legal protection. Their situation required an early naturalization in the receiving state. The Universal Declaration of Human Rights, the first international instrument of its kind, recognized in Article 15 the right to a nationality as a human right. 82 However, the authority to determine the material and procedural conditions for the acquisition of nationality firmly remained within the domaine réservé of each state. This fact has also borne significance in respect of the relocated children as the acquisition of the receiving state’s nationality would have extended to them all available social, economic, and civil rights. The children would, thus, attain the guarantees of social, legal, and economic protection at the national level. Article 14 of the HICOG Law foresaw the involvement of unaccompanied children in the proceedings wherein decisions were made on their repatriation, resettlement, or local settlement. The provision required the children to participate in an attempt to, at least partially, offset the states’ paternalistic propensity to command the children’s lives and fortunes. In assessing their best interests, the children’s wishes were an inalienable, inherent factor. The provision explicitly referred to the wishes, not opinions. Unaccompanied children were asked to articulate, without coercion or influence and at their own discretion, where they would wish to live permanently. Although wishes, as expressions of dearth and lack, may not have translated well into constructive, practical, or rational choices. Without a thorough knowledge of personal situations and external circumstances, the wishes of unaccompanied children could also have led to erroneous conclusions. The provision stipulated one sole condition for the assessment of the children’s wishes. The factor did not require a specific chronological age. The judges only had to assess, on an individual basis, whether the children possessed sufficient cognitive abilities and levels of maturity. The main objective of this assessment was to ascertain that the children were fully capable to understand and evaluate their unique personal situations relative to their future. To this end, the children needed appropriate information about the countries of repatriation or resettlement. Considering that many unaccompanied children had gained, often passively and against their will, immense war experience and instincts, the opportunity to express their wishes came to represent a modest measure of life choice for them. In any case, unaccompanied children were unable to make decisions on their own behalf; this task was inevitably turned over to the judges or occupation authorities. If the family was reunited or the child lived with foster parents or blood relatives, the desires of these persons were also a relevant factor. Those desires were both the prerequisites as well as the consequences of the principle of voluntary repatriation of refugee children.

124

82 See ibid. fn. 28 UDHR art 15.