TmE UNITED
NATIONS COMPENSATION
COMMISSION AND INTERNATIONAL CLAIMS
LAW: A FRESH APPROACH
Carmel Whelton"
In creating the United Nations
Compensation Commission (UNCC) to
dealwith the claims arisingfromthe Iraqi
invasion ofKuwait, states have sought to
parlay a Security Councilresolution into
an effective internationalorganization.In
so doing, they have adopted afresh new
approachto the law ofinternationalclaims.
This article will compare the new
approach adoptedby the UNCC with the
traditionalview ofclaims atinternational
law. The Canadianexperiencewill then be
examined to illustrate the impact of the
new system on traditionalclaimspractice.
En constituant la Commission
d'indemnisationdesNationsUnies (CINU)
qui est chargge d'examiner les
reclamations resultant de l'invasion du
Koweitpar l 'Irak,les Atats ont cherchg it
transformerune r~solutiondu Conseilde
s6curit6en une organisationinternationale
efficace. Ainsi, ils ont adopt6 une toute
nouvelle approche du droit relatif aux
reclamationsinternationales.
Dans cet article, l'auteure compare
la nouvelle approche adopt~e par la
Commission avec la conception
traditionnelledes reclamations en droit
international. Elle examine ensuite
1'expgrience canadienne afin d'illustrer
l'impactdunouveaur~gimesurlapratique
traditionnelleen mati~rede rgclamations.
. Carmel Whelton, Head, International Claims Section, Economic Law Division, Department
of Foreign Affairs and International Trade. The author would like to thank Joanne Pretty for her
encouragement and assistance.
1993)
The UnitedNations Compensation Commission
I. INTRODUCTION
International law is a mechanism for the promotion andprotection of state selfinterest. The history of international claims law nobly testifies to this general
principle. At international law, states have always insisted on retaining the ability
to deal on the international plane with other states in order to protect the investments
and property of their own nationals. The body of international claims law has
reinforced and clarified these basic axioms.
All states have used avariety of mechanisms to ensure that the rights of their
nationals to compensation were satisfied. From the Jay Treaty of 1794 which
established three international claims commissions, to the U.S.-Mexican Claims
Commissions of the nineteenth century, and to the Iran-U.S. claims tribunal of
recent days, states have creatively sought to design mechanisms through which they
could gain compensation on behalf of their nationals.
At the same time, developing states have sought to restrain the perceived
encroachments on their sovereignty by developed states. Latin American countries
in the nineteenth century posited a "national treatment" theory, that diplomatic
protection for nationals was only available after an exhaustion of local remedies had
produced a "denial of justice". Calvo clauses were inserted into contracts with
foreigners, stipulating that in the case of disputes arising out of the contract,
'foreigners relinquished the right to request diplomatic and judicial protection of
their national State and agreed to have the dispute settled by local tribunals. Later
commissions and numerous international courts ruled that the Calvo clause was
of their rights of protection,
legally ineffective in that it could not deprive States
2
since the latter derive from international law only.
Juxtaposed on this general north-southframeworkwas the treatment ofproperties
expropriatedbyformer communist countries inEastern and Central Europe. Inthose
"lump sum" agreements with specific
cases, western countries sought to conclude
3
countries for expropriated properties.
In addition to these various mechanisms for dealing with claims, countries have
also developed specific commissions to dealwiththe special category ofwar claims.
R.B. Lillich, ed., INTERNATIONAL LAW OF STATE
(Charlottesville: University Press of Virginia, 1983).
RESPONSIBILITY FOR INJURIES To ALIENS
2 See A. Cassese, IN'ERNATIoNALLAwIN ADVIDED WORLD (Oxford:
ClarendonPress, 1986)
at 50. The Calvo Clause doctrine was merely the beginning of a long series of manoeuvres by
developing states first to restrict, and then define, the compensation owed to developed states for
expropriated properties. A more recent attemptwas the UnitedNations Declaration on Permanent
Sovereignty overNatural Resources setting outthebasicprinciples forthe exercise of sovereignty
over natural resources. It held that compensation was to be paid in accordance with the rules in
effect in the taking state and with international law.
I For an excellent study of lump sum settlements, see R.B. Lillich & B.H. Weston,
INTERNATIONAL CLAIMS: THEIRSa-rLEMEmrrBY LUMP SuM AGREEMENTS (Charlottesville: University
Press of Virginia, 1975) and R.B. Lillich &B.H. Weston, INTERNATIONAL CLAIMS CoNTEMPoRARY
EUROPEAN
PRACTICE (Charlottesville: University Press of Virginia, 1982).
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Since ancient times, war claims and reparation treaties have always had a certain
cachet as they sought to be all things to all people: revenge to the winners, deterrence
4
to future belligerence, and finally, compensation to nationals for losses suffered.
The United Nations Compensation Commission (UNCC), established to deal
with losses from the Gulf War, marries all of the above within one international
organization. Within the UNCC, both developed and developing states compete for
limited and scarce resources, with some likelihood that a variation on lump sum
settlements will be distributed to state governments. World governments have
sought to parlay a security council resolution into an effective international
organization. In so doing, they have adopted a fresh new approach to the law of
international claims.
This paper will compare the new approach of the UNCC with the traditional
view ofa claim at international law. The Canadian experience will then be examined
to illustrate the impact of the new system on traditional claims practice.
II.
THE HISTORY OF INTERNATIONAL CLAIMS LAW
At international law, under certain conditions, a state can "espouse" a claim for
losses or injury on behalf of a national. By espousing the claim, the claim is
automatically raised to the international plane resulting in international rights and
obligations. This procedure dates back to the "medieval concept of the absolute
monarch, who wielded unfettered dominion over both people and property." 5
Hence, the monarch guaranteed security for his subjects if the latter granted their
absolute allegiance to the monarch. "In a very real sense, therefore, an injury to an
individual was an injury to his sovereign." 6
The first seeds of the doctrinal theory of international claims law were planted
by Vattel who postulated that "L'Etat....dit respecter les droits des autre Nations &
gfn6ralement ceux de tout homme."17 This gradually developed into the following
doctrine of international claims law:
[T]he rule of international law....is that in taking up the case of one of its nationals....a
State is in reality asserting its own right. 8
4 See, e.g., TreatyofPeacebetween theAlliedandAssociatedPowersandGermany(Treaty
ofVersailles), 28 June 1919 or the TreatyofPeace between the Allied andAssociatedPowers and
Turkey (Treaty ofSevres), 10 August 1920, in J.A.S. Grenville, THE MAJOR INTERNA1IONALTREATY
1914-1973 (New York: Methuen & Co., 1974) at 59-77.
1 S. Freidberg, Unjust and Outmoded - The Doctrine of Continuous Nationality in
InternationalClaims (1970) 4:5 INT'L LAWv 835 at 837.
6 Ibid.
7 M. de Vattel, LE DROIT DES GENS, OU PRINCIPES DE LA Loi NATURELLE, vol. I (Washington:
Carnegie Institution of Washington, 1916) at 333.
8
The Panevezys-SaldutiskisRailway Case (RepublicofEstoniav. Republic ofLithuania)
(1939), P.C.I.J. Ser. A/B, No. 76 at 16.
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The United Nations Compensation Commission
Fromthis historicalbeginning grew a large body ofintemational claims practice and
jurisprudence. In many respects, the law of international claims has been at the
forefront of human rights law, providing greater protection to foreigners abroad
than many individuals can still expect as citizens in their own country.9 But in other
respects, the law of international claims has been grounded in centuries of history,
moving atglacial speedto confront the world's new legal andtechnological realities.
In itself, the UNCC has not altered the international law of the state espousal of
claims; it has only provided a fresh new model applied under very specific
circumstances. Therefore, traditionalists need not fret that international claims law
is steamrolling ahead at warp speed, and reformers can point to the new model as
proof that international law is alert and responding to twenty-first century concerns.
III. THE UNCC: A NEW MODEL
While the traditional legal basis for state espousal of international claims has
been the diplomatic protection of aliens, the authority of the UNCC is based on
Security Council resolutions, passed under the authority of Chapter VII of the
UnitedNations Charter. Through a series ofresolutions, the UnitedNations Security
Council reaffirmed that Iraq's invasion of Kuwait was a violation of international
law.' 0 Under this same authority, the UN Security Council reaffirmed that Iraq was
"liable under international law for any direct loss, [or] damage....to foreign
Governments, nationals and corporations" resulting from Iraq's actions." The
Security Council "decided" to create a compensation fund 2 and directed the UN
Secretary General to make recommendations within thirty days on the modalities of
a possible international compensation commission that would deal with claims
arising from the Gulf War.' 3 The ensuing report of the Secretary General 4
recommended atri-partite commission, with a Governing Council, a Secretariat and
groups of commissioners. From this auspicious beginning, the United Nations
Compensation Commission was born in Geneva.
9 This is largely because the treatment of foreigners has been a recognized legitimate
exception to the rule that states cannot interfere with the internal matters of other states.
10 See UN Security Council resolutions: UN SCOR, 2932nd Mtg., UN Doc. S/RES/660
(1990); UN SCOR, 2933rd Mtg., UN Doc. S/RES/661 (1990); UN SCOR, 2934th Mtg., UN Doc.
S/RES/662 (1990); UN SCOR, 2937th Mtg., UN Doc. S/RES/664 (1990); UN SCOR, 2938th
Mtg., UN Doc. S/RES/665 (1990); UN SCOR, 2939th Mtg., UN Doc. S/RES/666 (1990); UN
SCOR, 2940th Mtg., UN Doc. S/RES/667 (1990); UN SCOR, 2942nd Mtg., UN Doc. S/RES/669
(1990); UN SCOR, 2943rd Mtg., UN Doc. S/RES/670 (1990); UN SCOR, 2951 st Mtg., UN Doe.
S/RES/674 (1990).
1 UN SCOR, 2981st Mtg., UN Doc. S/RES/687 (1991) para. 16.
12 Ibid., para. 18. Charterofthe United Nations, 26 June 1945, Can. T.S. 1945 No. 7, art.
25 asserts that all members of the United Nations agree to accept and carry out Security Council
decisions.
11 Ibid., para. 19.
14 ReportoftheSecretary-GeneralPursuanttoParagraph
19 ofSecurity CouncilResolution
687 (1991), UN SCOR, UN Doc. S/22559 (1991) [hereinafter Report ofthe Secretary-General].
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A. The Governing Council
The Governing Council is the main policy making organ of the UNCC and
comprises all fifteen members of the Security Council, thus ensuring that all regions
andpolitical systems of the world are represented. In theory, it also ensures that even
non-contentious matters are properly voiced and all concerns heard. The Governing
Council has set forth, in nineteen decisions, the legal framework for the resolution
of claims. This represents, along with UNCC Security Council resolutions, the
primary law to be applied by the Panels of Commissioners.
The voting system set forth in the United Nations Secretary General's report
provides that the decisions of the Governing Council are made by a majority of nine
members.' 5 In reality, every decision taken to date has been by consensus, most
6
matters not even going to a vote.'
B. The Secretariat
The duties of the small but efficient Secretariat are manifold. Their small house
in Geneva is the first destination for the claims. Staff perform the preliminary
assessment,' 7 verifying that claims have the appropriate government and individual
affirmations, and that the proper number of copies and translations are received.
They also provide "Article 16 Reports"' 8 that outline significant factual and legal
questions raised by the claims received. Some of the issues raised in these reports
include the question of proper exchange rates and the remoteness of injury. Reports
are circulated, not only to all governments and international organizations who have
submitted claims, but to the government of Iraq as well.
C. Panelsof Commissioners
Panels of Commissioners will review claims andprovide theirrecommendations
to the Governing Council for a final decision. They are appointed by the Governing
Council uponnominationby the Secretary General, onthe basis ofrecommendations
by the Executive Secretary.' 9 Taking into due regard geographical representation,
15 Ibid., para. 10. The only exception is that of ensuring payments are made to the
Compensation Fund, where consensus must be reached by all fifteen members.
16 As expected, reaching consensus on the priority ofpayments was a fairly lengthy process
(Decision 17).
17 UnitedNations Compensation Commission Governing Council, Dec. 10, UN SCOR, 6th
Sess., UN Doc. S/AC.26/1992/10, art. 14 [hereinafter Decision 10].
'1
Ibid., art. 16. Under article 16, governments have thirty days, in the case of claims in
categories A, B and C, to present additional information or their views on issues outlined in the
periodic reports. This is an excellent mechanism to keep governments (including the Government
of Iraq) abreast of the issues. Unfortunately, the thirty day time limit is quite restrictive,
particularly for governments committed to intra and inter-departmental consultation, in that it
does notprovide enough time for governments to properly view and assess the issues.
'9
Ibid., art. 18.
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The United Nations Compensation Commission
professional qualifications, experience andintegrity, the Commissioners are experts
insurance, environmental damage
in fields such as finance and accounting,
20
engineering.
and
trade,
assessment,
Working under strict time deadlines, the panel of commissioners must verify
and evaluate the claims. In all likelihood they make the major legal and factual
determinations which will then be applied enmasseto a large number of claims. The
Commissioners must then make recommendations on the claims to the Governing
Council, 2' who must make the final decision on the amounts to be distributed to
claimants. 22 All decisions of the Governing Council are final and are not subject to
appeal or review on procedural, substantive or other grounds. 23
The applicable law used by the Commissioners in their determination of claims
will be Resolution 687, otherrelevantUN resolutions, the criteria establishedbythe
Governing Council, decisions of the Governing Council and where necessary, other
relevant rules of international law. 24 It therefore appears that the Governing Council
has established a hierarchy of law to be applied by the Commissioners.
IV. THE UNCC
AND TRADITIONAL CLAIMS LAW
It is difficult to comprehend the novelty and uniqueness of the new UNCC
system, without placing it in the context of traditional international claims law. It is
important to remember that the UNCC is only a sui generismodel for claims and as
yet, has no impact on the traditional rules. At international law, a country can only
espouse an international claim if the following four conditions are met:
a.
b.
c.
d.
damage as a result of a government act or action of a foreign official
the claimant has exhausted local remedies
the claimant has been denied justice
the claimant was a continuous national of the state making the claim.2
A. Damages as a Result of a Government Act
When dealing with rules on an international plane, the action complained of
must be performed by a government or its agents.2 6 Usually, only a govemment or
Ibid., art. 19. To date, the nine appointed commissioners seem to be mostly lawyers with
diplomatic experience. Canada's former Ambassador to the United Nations in New York, Yves
Fortier, has been named the Chair of the Panel of Commissioners reviewing claims on Form C.
He is a Montreal lawyer who was Canadian Permanent Representative to the United Nations from
1988-1992.
21 Ibid., arts. 37 & 38.
22Ibid., art. 40.
20
21 Ibid., art. 40(4). This decision is at odds with the originalReportofthe Secretary-General
which advised an elaborate appeal mechanism for claimants.
24 Ibid., art. 31.
2
See E.B. Wang, NationalityofClaimsandDiplomaticIntervention- CanadianPractice
(1965) 43 CAN. BAR REv. 136.
26
Hersch Lauterpacht, in E. Lauterpacht, ed. INTERNATIONAL LAW: BEING THE COLLECTED
PAPERS OF HERSCH LAtTERPACHT, vol. 1 (London: Cambridge University Press, 1970) at 401-02,
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an international organization27 has the international legalpersonalityto be responsible
for international claims. 2 Hence, in 1930, in the first attempt to codify the law of
state responsibility, at the Conference for the Codification of International Law in
the Hague, the first unsuccessful 29 draft text stated:
International responsibility is incurred by a state if there is any failure on the part of its
organs to carry out the international obligations of the state which causes damage to the
0
person or property of a foreigner on the territory of the state?
The most recent version put forward by the International Law Commission states
that there is an internationally wrongful act of a State when:
a) Conduct consisting of an action or omission is attributable to the State under
international law; and
b) that conduct constitutes a breach of an international obligation of the State?1
Accordingly, before a country can assert a claim against another country, there
32
needs to beboth subjective and objective grounds forinvoking state responsibility.
Governmentinvolvementmaybe attributedbyvirtue of an act of one ofitsprovinces
or federal states, officials, and to a certain extent, even its citizens. Another question
to address is whether the confiscation or expropriation ofthe prop erty was a "taking"
33
under international law.
distinguishes between original and vicarious acts of state responsibility. Original responsibility
is borne by a state for acts that are directly imputable to it, such as acts of its government, or those
of its officials or private individuals, performed at the government's command or with its
authorization. "Vicarious" responsibility, on the other hand, arises out of certain internationally
injurious acts of private individuals and of officials acting without authorization.
27
ReparationforInjuriesSuffered in the Service ofthe UnitedNations,Advisory Opinion,
[1948-49] I.C.J.Y.B. 66.
28
War criminals are one notable exception to this general principle.
29
This Conference was plagued by countries adhering to the traditional nineteenth century
faultline: western countries insisted on retaining the principles of diplomatic protection for aliens
and other countries preferring the "national treatment" approach to the question of state
responsibility. For a good discussion see R.B. Lillich, The Current Status ofthe Law of State
Responsibilityfor Injuries to Aliens in Lillich, ed., supra note 1 at I.
30 See comments of American delegate E.M. Borchard, "Responsibility ofStates" at the
HagueCodificationConference(1930) 24 AJIL517 at 518. SeealsoG.H.Hackworth,Responsibility
ofStatesfor Damages Causedin their Territory to the Personor Propertyof Foreigners(1930)
24 AJIL 500; Official Documents: Conferencefor the Codification ofInternationalLaw (1930)
24 AJIL (Suppl.) 1 at 46; R.B. Lillich, Toward the Formulation of an Acceptable Body ofLaw
ConcerningStateResponsibility(1964) 16 SyAcusE L. REv. 721; F.V. Garcia-Amador, TheRole
ofState Responsibility in the PrivateFinancingofEconomic and SocialDevelopment (1964) 16
SYAcusE
L. RV. 738.
3, Article]: Responsibility ofA Statefor its InternationallyWrongful Acts in S. Rosenne,
ed., INTERNATIONAL LAW COMMIssIoN DRAFT ARTICLES ON STATE REsPONSIBILITY (Boston: Martinus
Nijhoff Publishers, 1991) at 43.
32 For a good analysis of this question, see Rosenne, ed., ibid.
33 For a look at the various attempts at international law to define "taking", see S.R.
Swanson, Iran-U.S. Claims Tribunal:A PolicyAnalysis of the Expropriation Cases (1986) 18
1993]
The UnitedNations Compensation Commission
This traditional sine qua non of international claims law has been ably met in
the case of Iraq's invasion of Kuwait. The Government of Iraq's responsibility at
international law for its illegal actions has been front and centre throughout the
original Security Council resolutions andthe consequentUNCC Governing Council
decisions.
B. Exhaustion ofLocal Remedies and Denial ofJustice
As decided in the InterhandlCase 4 and refined in the ELSI Case," it has been
traditional black-letter international law that astate cannot espouse a claim on behalf
of a national unless the national has exhausted all local remedies in the host country
and has met with a denial ofjustice.36 The individual must not only avail herself of
under local law, but must also fully exhaust all procedural
her substantive rights
37
rights available.
In the Interhandl Case, the Swiss government sought restitution for assets
"frozen" by the American government during World War II. The Swiss did not
challenge the "exhaustion of local remedies rule" but argued that the current fact
situation was an exception to the rule as recourse to local remedies hadproven futile.
(An eleven year period had elapsed before the Swiss had brought the case to the
International Court of Justice (ICJ)). The ICJ held that Switzerland had not
exhausted local remedies under the TradingwiththeEnemyActandthe case was still
alive under the American judicial system.
In the ELSI Case an Italian mayor had requisitioned a local plant belonging to
a concern, substantially owned by two American companies. The ICJ was asked to
determine, inter alia, whether Italy's acts and omissions constituted a taking of
(American) interests in property without just compensation and due process of
CASE W. RES. J. INT'L L. 307. See also B.H. Weston, "ConstructiveTakings'"underInternational
Law: A Modest Foray into the Problem of "CreepingExpropriation" (1975-76) 16 VA. J. INT'L
L. 102; G.C. Christie, What Constitutesa Taking of PropertyUnderInternationalLaw? (1962)
38 BRIT. Y.B. INT'L L. 307.
34 InterhandlCase(Switzerlandv.UnitedStates), [1959] I.C.J. REP.6 [hereinafterlnterhandl
Case].
31 CaseConcerningElettronicaSiculaSpA(ELSI)(UnitedStatesv.Italy), [1989] I.C.J. REP.
15 [hereinafter ELSI Case].
36 As Borchard notes: Almost daily the Department of State of the United States of America
has occasion to reiterate the rule that a claimant against a foreign Government is not usually
regarded as entitled to the diplomatic interposition of his own Government until he has exhausted
his legal remedies in the appropriate tribunals of the country against which he makes a claim. See
E. Borchard, THE DIPLoMAnc PROTECTION OF CrIzENs ABROAD OR THE LAW OF INTERNATIONAL
CLAIMS (New York: Banks Law Publishing, 1916) at 817-18. While the requests to the Canadian
government are not as plentiful as our neighbours to the South, it would be fair to say that the
Government of Canada cites this rule several times a month to prospective claimants. See also M.
Abler, The Exhaustion of the Local Remedies Rule After the InternationalCourt of Justices'
Decision in ELSI(1990) 39 INT'L & COMp. L.Q. 641.
37 Ambatielos Case (Greece v. UnitedKingdom), [1953] I.C.J. REP,. 10.
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law.3 8 While the Italians argued that the American companies had not exhausted
local remedies, the Americans posited that, given the existence of a Friendship,
Commerce and Navigation (FCN) Treaty, their international legal rights derived
from the treaty and therefore the exhaustion rule was not applicable. On this point,
the ICJ replied:
[T]he matter which colours and pervades the United States claim as a whole, is the
alleged damage to Raytheon and Machlett, said to have resulted from the actions of the
Respondent. Accordingly, the ICJ rejects the argument that in the present case there is
a part of the Applicant's claim which can be severed so as to render the local remedies
39
rule inapplicable to the part.
The ICJ therefore expanded on the traditional Interhandldoctrine to confirm that,
even the existence or assistance of"higherplane" treaty rights would not obviate the
need for potential claimants to exhaust local remedies.
This traditional rule of exhausting local remedies has been found to be generally
unnecessary for war claims and therefore would not apply under even traditional
circumstances.
C. The Concept ofNationality
At international law, the traditional rule has always been that a state can only
espouse a claim against another state on behalf of a claimant if 1)the claimant was
a national of that state at the time of the loss and 2) the claimant continues to be a
national of that state until the time of both the adjudication of the claim and its final
resolution. 40 The link of nationality gives a country the "locus standi" to assert a claim
against another state.4'
On a practical level, it has been widely recognized that the rule of continuous
nationality precludes many meritorious claimants from ever having their claims
espoused.42 Even scholar H. Lauterpacht called the continuous nationality rule "an
anachronism." 43 Among other things, itprecludedstateless individuals from recourse
through international law or diplomatic protection, except under very specific
circumstances.44
ELSI Case, supra note 35 at 69-70.
19 Ibid. at 43. The ICJ in this case refused the American "treaty" argument but, for other
reasons, did find that the American companies did exhaust their local remedies. The Court
nevertheless decided the case in favour of the Italians.
40 Article 4 of the Hague Convention of 1930: A state may not afford diplomatic protection
to one of its nationals against a State whose nationality such person also possesses. See also
G.I.F. Leigh, NationalityandDiplomaticProtection,(1971) 20 INT'L & CoMP. L.Q. 453 at 45638
59.
4'
Lauterpacht, supra note 26 at 298-300.
42
C.V. Cole, A Generationof CanadianExperience with InternationalClaims (1965-66)
BRiT. Y.B. Ir'L L. at 373.
41 INTERNATIONAL LAW
44
AND HiAN RiGHTs (New York: Garland Publishing, 1973) at 55.
One exception noted by E.B. Wang, is access to the remedies available through the
European Convention on Human Rights andFundamental Freedoms. As an individual, irrespective
1993]
The UnitedNations Compensation Commission
The UNCC wanted all individuals who had suffered an injury oraloss as a result
of the invasion of Kuwait by Iraq to have recourse to a remedy, regardless of
nationality, ormore importantly, non-nationality. One of the firstmajor achievements
of the UNCC was to permit a widening of the definition of "resident", by allowing
states to determine their own definition. Although many states adhered to the
traditional rule of international claims law by submitting claims on behalf of
nationals only, some countries were more expansive in their definition. The UNCC
also permitted "designated international organisations" to submit claims on behalf
of individuals without a national government.
D. DualNationality
Nationality serves above all to determine that the person upon whom it is
conferred enjoys the rights andisboundbythe obligations whichthe law ofthe State
4
in question grants to or imposes on its nationals. 1
If a claimant is a dual national of two states it becomes more difficult to
determine where his rights and obligations lie. The Nottebohm Case states the
following "real and effective nationality" rule:
[International courts] have given their preference to the real and effective nationality,
thatwhich accorded withthe facts, thatbased on stronger factualties between theperson
concerned and one of the States whose nationality is involved. Different factors are
taken into consideration, and their importance will vary from one case to the next: the
habitual residence ofthe individual concerned is an important factor, but there are other
factors such as the centre of his interest, his family ties, his participation in public 46
life,
attachment shown by him for a given country and inculcated in his children, etc.
The question of dual nationality was grappled with by the Iran-U.S. Claims Tribunal
in the Hague, appointed to adjudicate claims resulting from the Iranian Revolution.
The Declaration which established the Tribunal 47 defined a national as a "natural
person who is a citizen of Iran or of United States",4 thus leaving the position of a
dual national ambiguous. The Tribunal held that the "dominant and effective
nationality" of claimants would determine their nationality. Hence in Tour v. Iran,
ofnationality, one may appeal to a Commission and a court offHuman Rights forprotection against
arbitrary treatment by one of the contracting states. See Wang, supra note 25 at 139.
45 Nottebohm Case (Liechtenstein v. Guatemala), [1955] I.C.J. REP. 4.
46 Ibid. at 22. For a view on the role of the International Court of Justice
in "disentangling
the complicated web of claims and counterclaims....involving diplomatic and nationality issues"
see T.O. Elias, NEw HoRIzoNs iN INTERNATIONAL LAW (Dordrecht: Martinus Nijhoff Publishers,
1992) at 302-09.
47 The Declaration of the Government of the Democratic and Popular Republic of Algeria
Concerning the Settlement of Claims by the Government of the United States of America and the
Government of the Islamic Republic of Iran, 20 I.L.M. 230.
49 Ibid., art. VII, cl. l(a).
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the Tribunal held that since Tour did not produce evidence to substantiate her claim
49
to American nationality, it did not have jurisdiction to hear the claim.
The doctrine of"dominant and effective nationality" is based ontwo fundamental
tenets: the concept that nationality embodies more than a tenuous legal bond
asserted by municipal law; and that nationality is a product of personal choice and
50
action.
In its first decision, the Governing Council indirectly dealt with the question of
dual nationality stating that "[c]laims will not be considered on behalf of Iraqi
nationals who do not have bona fide nationality of any other state".5 ' The UNCC
Secretariat declined to determine the date upon which an Iraqi national would gain
the nationality of another state. They wisely left that question to the panel of
commissioners. The question of the date that an Iraqi national must be a citizen of
another state in order to submit a claim to the UNCC has therefore not yet been
determined.
V. THE
ANATOMY OF THE
UNCC
CLAIMS SYSTEM
Following the Secretary General's recommendation to "establish a categorization
of claims according to both type and size",52 the Governing Council established
groups of expedited and non-expedited claims and organized these claims into the
following 6 main categories:
Expedited
Form A: departure
Form B: injury or death
Form C: losses under $100,000
Non-expedited
Form D: losses over $100,000
Form E: corporate losses
Form F: government losses
A. Form A: DepartureClaims
International law has been slow and cautious in recognizing claims for departure
and relocation. 53 UNCC interest in this matter stemmed from a notable lack of a
similar mechanism in the Iran-U.S. Claims Tribunal.54 All three chambers of the
19 Tour v. Iran, 21 IRAN-U.S. CLAIMs TRIBUNAL REPoRTs 1989-1 25.
10 Claims ofDual Nationalsin the Modern Era: The Iran-UnitedStates Claims Tribunal
(1984) 83 MICH. L. REv. 597 at 613.
-' Letter dated 2 August 1991 from the President of the Governing Council of the United
Nations Compensation Commission to the President of the Security Council, UN SC, 46th year,
Annex 1, UN Doc. 5/22885 (1991) para. 17 [hereinafter Letter].
52 Report ofthe Secretary-General,supra note 14 at 8.
-3 The Commission that considered claims against China for damages during the Boxer
Rebellion of 1900 allowed costs for travelling to the nearest place of safety. Similarly, the First
Court of Commissioners for the Alabama claims allowed the actual expenses incurred by sailors
to return to their homes or move on to their next job.
54 The Iran-U.S. Claims Tribunal dealt with the wealthiest of claimants. During a period of
four months, beginning November 1, 1978 and ending February 28, 1979, virtually all ofthe40,000
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Iran-U.S. Claims Tribunal Rules held that an alien could be "wrongfully expelled"
in the absence of any order or specific state action when, in the circumstances of the
case, the alien could reasonably be regarded as having no other choice, and when the
acts leading to his departure were attributable to the State.55 But, in reality, Charles
Brower notes that after ten years of the Tribunal's existence, only one claimant was
ever reimbursed for actual wrongful expulsion. 6
Under the UNCC system, claims on Form A are simple departure claims.
Claimants must provide documentation that proves that they left Iraq or Kuwait
during the period of the war (2 August 1990 to 2 March 1991).17 Claimants must
submit the proper completed UNCC claim form with proof of departure to their
national governments. Governments are then required to input the information into
the UNCC software package and submit this electronic data in a consolidated claim
format.
Under the UNCC system, claimants could choose to submit a claim for
departure under Form A or Form C, but not both. A departure claim on Form A is
for a lump sum amount, while a departure claim on Form C is for actual losses
incurred for that departure. If claimants do not submit any further claims, they can
request a larger lump sum amount.
It is a major step forward that the UNCC has granted departure claims such
powerful legitimacy. The UNCC sought a mechanism to compensate the one
million people who had been forced to leave Iraq or Kuwait abruptly during the war,
thereby providing swift assistance to the poorest victims of the invasion.
The UNCC system is advantageous on several fronts: it allows individuals to
claim for their abrupt and often costly departure without demonstrating actual
evidence of loss; 58 it allows individuals to claim for a total lump sum amount should
they choose not to submit a further claim, thereby securing, hopefully, early
payment for their loss; and for those making further claims, it allows them to gain
early access to funds while they await adjudication of their subsequent claim.
American citizens who prior to thattime had been in Iran, left that country never to return. Ofthese
40,000 persons only 1500 or amere 3.75 percent, actually filed cases at theTribunal against Iran,
claiming that they had been "wrongfully expelled" by the Iranian Government. Only 4000 claims
were actually filed and of these, 2500 were dealt with by way of lump sum settlement between the
Government of Iran and the Government of the United States. Before the lump sum settlement,
only six ofthese cases had been adjudicated by the Tribunal and in only one had the claimant been
reimbursed for lost property stemming from "wrongful expulsion". See C. Brower, The Lessons
ofthe Iran-UnitedStates Claims Tribunal: How May they be Applied in the Case oflraq (1992)
32 VA. J. INT'L L. 421 at 426-27 [hereinafter Lessons of the Iran-UnitedStates Claims Tribunal]
and C. Brower, Lessons to be Drawnfromthe Iran-USClaims Tribunal (1992) 9 J. INT'LARB. 51.
11 See Lessons ofthe Iran-UnitedStates Claims Tribunal, ibid. at 429.
56 See ibid. at 427. See also R.L. Cove, State Responsibilityfor Constructive Wrongful
Expulsion ofForeign National(1988) 11 FOROHAM INT'L L.J. 802.
57 Letter, supra note 51 at para. 11 and Decision 19, art. 35 (2)(a).
"I For the payment of fixed amounts in the case of departure, claimants are required to
provide simple documentation ofthe fact and date ofdeparture from Iraq orKuwait. Documentation
ofthe actual amount ofloss will notbe required. ProvisionalRulesforClaimsProcedure,UNCC,
S/AC.26/1992/INF.1 [hereinafter ProvisionalRules].
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From the UNCC's perspective, it allows the UNCC to process rapidly over
one million claims, thus easing the way for consideration of the substantial number
of claims on Form C and Form D.
B. Form B: Death andInjury Claims
Compensation claims for injuries resulting from international illegal acts are not
unusual at international law. Following the 1967 Israeli attack onthe U.S.S. Liberty,
the Israeli government compensated the United States for the crew members injured
in the attack, and the U.S. Government claimed for the provision of medical
treatment to the injured men and reimbursement for property damaged by the
missile.5 9 Similarly, after the Iraq 1987 attack on the U.S.S. Stark, the Iraqi
government compensated the United States for "loss of life, personal injuries and
material damages" stemming from the "unfortunate and unintentional" incident.60
Claims on Form B for death or "serious personal injury" under the UNCC
system are a "user-friendly" variation on the traditional rule. Demonstrating again
only simple documentation of the fact, the date of the injury or death, and the family
relationship,61 claimants can claim for injury to themselves or death of a family
member for apre-determined lump sum amount. The amounts are not substantial but
provide for early relief to claimants. Alternatively, claimants can seek early relief
by making a claim on Form B and then claim the remainder for the actual cost of the
injury or death on Form C or Form D.
The UNCC defines "serious personal injury" as dismemberment, permanent or
temporary significant disfigurement, permanent or temporary significant loss ofuse
or limitation of use of a bodily organ, member, function or system, or any injury
which, if left untreated, is unlikely to result in the full recovery of the injured body
area. 62 As well, the UNCC adds that "serious personal injury" includes physical or
mental injury arising from sexual assault, torture, aggravated physical assault,
hostage taking or lengthy hiding. Bruises, strains or sprains, simple bums, or other
irritations not requiring a course of medical treatment are not included.
In addition, an international system that provides compensation for sexual
assault is a major advance in international claims law. Even though the amount may
seem paltry for the egregiousness of the offence, it represents a first and obvious step
to compensate at international law, sexual violence against women.
59 "Israel Pays Compensation Claimed for Men Injured on U.S.S. Liberty", (Press Release
116 dated 13 May 1969) 60 U.S. DepartmentofState Bulletin at 473.
10 Letter from the Ministry of Foreign Affairs, Republic of Iraq to the U.S. Embassy in
Baghdad, 21 May 1987, 26 I.L.M. at 1428.
61
62
ProvisionalRules,supra note 58, art. 35(2)(b).
Decision 10, supra note 17, art. 35.
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C. Form C: Losses under $100,000 (U.S.)
Claims on Form C are for losses up to U.S. $100,000 andreflect the full panoply
of losses suffered during wartime: departure, personal injury, death of a family
member, loss of personal property, real estate, and bank accounts, and business or
income losses. These claims must be documented by appropriate evidence of the
circumstances and amount of the claimed loss.63 UNCC Rules of Procedure added
that "[d]ocuments and other evidence required will be the reasonable minimum that
is appropriate under the particular circumstances of the case. A lesser degree of
documentary evidence ordinarily will be sufficient for smaller claims such as those
below US$20,000." 64
D. Form D: Losses over $100,000 (U.S.)
Losses over$100,000 (U.S.) are dealt with on Form D. Generally covering the
same causes of action as claims on Form C, these larger claims are not expedited and
will be dealt with at a later date by the UNCC. Claimants are encouraged to claim
for the first $100,000 (U.S.) of their losses on Form C and claim the remainder on
Form D. The level of evidence for claims on Form D is more stringent than for the
expedited claims. Form D claims must be supported by "documentary and other
appropriate evidence sufficient to demonstrate'the circumstances and amount of the
claimed loss. ' ' 65 For "unusually large or complex claims", panels may ask for
additional written submissions and hold oral proceedings. 66 In these 67cases, the
claimant may be assisted by a lawyer or other representative of choice.
E. Form E and Form F: Corporateand Government Claims
The UNCC has also set the procedure for corporate and government claims.
Following the counsel of the Report of the Secretary-General to straddle the
deadlines for claims submissions, 68 these claims are not due until mid-1994.
F. MentalPain and Anguish
The UNCC also permits claims for both pecuniary losses (including losses of
income and medical expenses) or non-pecuniary losses resulting from mental pain
and anguish. Therefore, in addition to claiming for the actual injury or death, the
UNCC also permits individuals to submit claims for the mental pain and anguish
63
Ibid., art. 35(2)(c).
I
See ProvisionalRules, supra note 58, art. 35(2)(c).
Decision 10, supra note 17, art. 35(3).
Ibid., art. 38(d).
Ibid.
Report of the Secretary-General,supra note 14, para. 24.
65
66
67
68
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ensuing from that injury or death.6 9 This includes mental pain and suffering caused
from a death, serious personal injury, sexual or aggravated assault, the witnessing
of such events on one's family, hostage taking,70 hiding for at least three days, 71 or
deprivation of economic resources. 72 The Governing Council has also set specific
73
ceilings up to which amounts may be claimed for mental pain and anguish.
While compensation for mental pain and anguish is not completely new, it is
relatively rare in international relations. In the famous sinking of the American ship
Lusitania, the U.S. and German Mixed Claims Commission allowed claims not only
for death, but also for emotional suffering of the surviving relatives of those killed
in the wreck. The Commission specified that "[m]ental suffering to form a basis of
recovery must be real and actual, rather than purely sentimental and vague. '74
By using a graduating scale up to a specific ceiling, the UNCC appears to be
marrying the two types of historical payments in international claims law: those
where compensation is based on a premise of legal liability; and, those where
compensation is made on an exgratiabasis (act of grace) and the country involved
does not accept legal responsibility.75 The former type of claims were usually paid
taking into account common law tort principles and considering factors such as age,
sex, life expectancy, and potential earning expectancy. 76 The latter group of ex
gratiapayments were usually "flat rate" with the families of each victim receiving
the same amount, regardless of circumstances. For claims of mental pain and
suffering submitted to the UNCC, the graduating scale allows the Panels of
Commissioners to recommend payments based on an examination of the
circumstances of each case before rendering a decisionbut at the same time, restricts
the upper ceiling of that payment.
69 United Nations Compensation Commission Governing Council, Decision 3, UN SCOR,
2nd Sess., UN Doe. S/AC.26/1991/3 [hereinafter Decision3].
70 "The individual was taken hostage or illegally detained for more than three days, or for
a shorter period in circumstances indicating an imminent threat to his or her life": ibid., art. 3(e).
71 "On account of a manifestly well-founded fear for one's life or of being taken hostage or
illegally detained, the individual was forced to hide for more than three days": ibid., art. 3(f).
72 "The individual was deprived of all economic resources, such as to threaten seriously his
or her survival and that of his or her spouse, children or parents, in cases where assistance from
his or her Government or other sources has not been provided": ibid., art. 3(g).
73 United Nations Compensation Commission Governing Council, Decision. 8, UN SCOR,
4th Sess., UN Doc. S/AC.26/1992/8.
74 The Lusitania(United States v. Germany), [ 1923] Mixed Claims Commission, Am. DIG.
PUB. INT'L L. CASES 193 at 194.
7' SeeD. Ewing, TheDowningoflranAirFlight655:HighlightingtheNeedforlnternational
Adjudication ofDamages (1990) 13 SUFFOLK TRANSNAT'L L.J. 656 at 671.
76 Fighter planes of the People's Republic ofChina shot down a British Cathay Pacific flight
in 1954. The Chinese government accepted full responsibility for its actions and expressed a
willingness to pay full compensation for both loss of life and damage to property resulting from
the incident.
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VI. SUBMISSION V. ESPOUSAL
State governments continue to be the mainplayers at the UNCC, but individuals
are no longer relegated to the status of a non-player. The requirement for states to
submit claims on behalf of their nationals is a clear break from the traditional rule
of "espousal" of international claims. Under the traditional rule, the act of espousal
renders a claim a state claim. In the UNCC system the claims never, perse, become
the claims of the specific state goverment.
Under the UNCC process, a government is required to submit individual claims
in a "consolidated claim" format This requirement derives from the first Report of the
Secretary-Generalthat'bnly consolidated claims filed by individual Governments
on their own behalf or on behalf of their nationals and corporations" will be
accepted. 77 The Governing Council has drafted this requirement into the Rules of
Procedure so that representatives of a state government must affirm "to the best of
the information available to it, the claimants are its nationals or residents, and that
it has no reason to believe that the information stated in the claims is incorrect". 7
As well, under specific circumstances, individuals will also have the right to
79
orally present their claim or retain counsel.
VII.
INTERNATIONAL CLAIMS AND THE COMPUTER: DEMOCRACY ON A DISK
The Report of the Secretary-Generalanticipated that governments would file
tens of thousands of individual claims. In fact, the UNCC Secretariat has already
received over one million claim forms. The sheer volume of claims required a
system that could process claims rapidly and with ease.
In order to increase efficiency and reduce the paper burden, claims on Form A
are submitted by national governments on specially designed UNCC software. The
data on this software will be compared electronically with massive departure lists
provided by governments in the Gulf region. Only in the case of discrepancies will
supporting documentation be requested from governments in non-electronic form.8"
By adopting a system which allows for such a massive number of claimants, the
UNCC is "democratizing" international law in general, and international claims law
in particular. No longer will claims compensation be restricted to the wealthiest
nationals of the wealthiest states.
77 Report ofthe Secretary-General,supra note 14, para. 21.
71 Decision 10,supra note 17, art. 14(1)(c).
71 Ibid., arts. 36 & 38.
11 This new system represents an adherence to the work ofthe American litigation innovator,
Professor Francis McGovern. McGovern was instrumental in the design of mass tort techniques
used in the Dalkon Shield or asbestos litigation cases.
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CANADIAN IRAQI CLAIMS PROGRAM
The Iraqi claims program was the largest claims program undertaken by the
Government of Canada since the end of World War II. Canada received close to
1600 claims for submission to the UNCC, during atime when resources were scarce.
Akin to going to court with knowledge of only a portion ofa brand new law, the
task of reviewing these claims for onward transmission to Geneva was daunting.
The law, consisting of UN resolutions and the UNCC Governing Council decisions
was in the process of developing as the claims were being reviewed and forwarded
to the UNCC.
The first question the Government of Canada had to address was the issue of
nationality and what claims could be submitted. The UNCC had been liberal in
allowing governments to submit claims for "nationals" and "others persons resident
in [their] territory"." While there existed no general rule, it seemed that several other
western countries were submitting claims only onbehalfofcitizens alone or citizens
and the equivalent of permanent residents, providing they had residency status
before the end of the Gulf War.
Given the large number of Palestinians who had come to Canada during or
following the Gulf War, the Government of Canada re-considered their traditional
approach to the question of nationality. In this specific claims situation and therefore
on a suigenerisbasis, the Canadian government decided to submit claims on behalf
of those Canadian citizens and "Canadian permanent residents" who had landed in
Canada by March 31, 1993.
The cut-off date of March 31, 1993, allowed the Government of Canada time
to review all claims before the final submission date of July 1, 1993. It also ensured
that the Government had sufficient time to advise claimants if they did not meet
Canadian residency requirements to forward their claims to their country of origin
for onward submission to the UNCC.
Among western states, Canada put forward one of the widest and most generous
definitions of the word "resident". This modification in traditional viewpoint was
partly a function of the widening of the rule by the UNCC and, in addition, the
Government of Canada wanted to assist those individuals who were now Canadian
permanent residents, thereby demonstrating their desire to commit to long term
settlement in Canada. The Canadian government availed itself of this opportunity
under the specific circumstances of the Iraqi Claims process. To date however, this
wider definition of "resident" has not been officially approved by the UNCC.
Canadian Government officials were also concerned that refugee claimants
seeking to remain in Canada, through no fault of their own, might not meet the cutoff date of March 31, 1993, for becoming a Canadian permanent resident. Having
fled their country of origin, these individuals might be reluctant to pursue their
91 Governing Council Decision10 had provided that "[a] Government may submit claims
on behalf of its nationals and, at its discretion, of other persons resident in its territory." See
ProvisionalRules, supra note 58, art. 5(1)(a).
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claims in theirhome countries. Therefore, the cut-offdate mightpose a real hardship
to certain individuals. For these cases, the Government of Canada requested the
Executive Secretary of the UNCC designate an organization in Canada to submit
claims on behalf of stateless individuals and those individuals claiming refugee
status in Canada who did not meet Canadian residency criteria.12 This would ensure
that these individuals were not left without recourse to the UNCC.
Consequently, individuals resident in Canada who did not meet Canadian
residency criteria were able to submit their claim through the Ottawa office of the
83
United Nations High Commissioner for Refugees.
The Government of Canada also had to address the question of claims by dual
nationals, i.e. Canadian and Iraqi. Hence, the question of the date of citizenship on
which a Iraqi national became a Canadian citizen was critical. The traditional rule
at international law regarding dual nationality was clear: a claimant cannot be a
citizen of the country against whom the claim is brought. 4
Without clear direction from the UNCC, the Government of Canada decided to
submit claims on behalf of Iraqi nationals provided they became Canadian citizens
by July 1, 1993, the deadline for submitting claims. While there is no assurance that
any claims of Iraqi nationals will succeed, the Government of Canada believed that
this late date would ensure that all Iraqi nationals, on behalf of whom Canada
submitted a compensation claim, had a link to Canada before the commencement of
the war."5
A. Other Questions
Staffat the Department of External Affairs were only responsible forprocessing
and forwarding the compensation claims to the UNCC. Claimants, themselves,
were responsible for ensuring that their claims met UNCC criteria and possessed
sufficient documentary evidence to substantiate the losses claimed.
During the course of processing these claims, the Canadian Government was
faced with a variety of interesting issues.
Definitional questions arose earlyintheprocessing ofCanadian claims onForm
A and B involving lump sum settlements. Since claimants could present their lump
sum claims as individuals or as a family, the definition of "family" became critical.
Article 5(2) ofDecision 1O, supranote 17, states that"[a]n appropriateperson, authority,
orbody appointed by the Governing Council may submit claims on behalfofpersons who are not
in a position to have their claims submitted by a Government."
"I Similarly, the United States Government requested the UNCC appoint the Washington
office of the United Nations Development Program to submit claims on behalf of stateless
individuals who did not meet American residency requirements.
'
See M.M. Whiteman, Damagesin InternationalLaw,vol. I(Washington: U.S. Dept. of
State, 1937) at 125: "where the injured person has the nationality of more than one country, i.e.
whether by naturalization, by birth, or by marriage, it is usually held that the respondent state is
not liable to the claimant state where the claimant is a national of the respondent state."
11 In orderto become aCanadian citizen, persons mustbe "landed" in Canadafor aminimum
of three years.
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In the absence of a definition from the UNCC, the Government of Canada allowed
claimants to determine for themselves whether they constituted a family. The
Government of Canada only intervened if the evidence provided manifestly proved
otherwise. For example, individuals legally married to each other, and young
dependent children living with their parents, were identified as a family unit.
Another early question was what exchange rate should be used in valuing
claims. As the UNCC requested claims to be valued in American dollars, and all
claim forms were designed for U.S. dollar valuation, the Government of Canada
requested claimants to value their claims in American dollars. Where claimants did
not do so, figures were converted at the pre-war exchange rate in effect on July 31,
1990, used by the Finance section of the Department of Foreign Affairs and
International Trade.
The UNCC had articulated a hierarchy of rules on the appropriate level of
evidence necessary to substantiate various types of claims. Keeping in mind that
many claimants fled their homes under duress, the UNCC attempted to link the level
of evidence required to the amount of the loss claimed. Therefore, claims on Form
D must be supported by higher levels of evidence. The Canadian consolidated claim
of June 11, 1993 posited that "[the] level of 'appropriate evidence' should be read
reasonably, in light of the difficult war circumstances under which claimants
departed." 6
Similarly, on the issue of causation, the UNCC only permits claims that were
"directly" caused by the invasion. Although the original Report of the SecretaryGeneral advised the Governing Council to define "direct", no decision has yet been
taken. The Canadian government believes that the UNCC should take a "broad"
view towards "direct" causation, "given the widespread destructive effects of the
87
illegal invasion":
Any injury involving Iraqi military personnel or equipment should be deemed to be
"caused by" the Iraqi invasion. Rape or torture (and any resulting injuries) by Iraqi
military personnel or injuries from forced labour are clearly "caused" by the invasion.
Injury or death resulting from a military weapon clearly constitutes a "direct" injury.
Any injury arising as a consequence of a gun battle or fear of a gun battle is an injury
"caused" by the invasion.....We would also submit that injuries occurring as a result of
many automobile accidents, should be construed as "caused" by the invasion. The
horrendous state of the roads, the large amount of both human and vehicular traffic on
the highways, the need to drive swiftly and after dark, and the presence of military
vehicles all contributed to unsafe road and driving conditions directly resulting from the
88
invasion.
16
Third ConsolidatedClaim by the GovernmentofCanadaforLosses ofCanadianCitizens
andCanadianPermanentResidentsforAmountsup to U.S. $100,000perPerson(FormC), Dept.
of External Affairs (11 June 1993) at 6.
87 FirstConsolidatedClaim by the Government of Canadafor SeriousPersonalInjury and
Death ofFamilyMembers of CanadianCitizens and CanadianPermanentResidents (FormB),
Dept. of External Affairs (25 June 1993) at 5.
"I Ibid. at 5-6.
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IX.
CONCLUSION
With unprecedented swiftness, the UNCC has moved to establish the legal and
logistic machinery to deal with nearly two million compensation claims for direct
damage and losses during the Gulf War. While this in itself is eventful, it is even
more remarkable that, with relative ease, the UNCC has successfully confronted
several difficult issues facing international law today.
By allowing governments to define "resident", the UNCC permitted the
softening of the traditional rule of nationality in international claims law. While the
UNCC process is sui generis, and will not be precedent-setting, it nevertheless
represents an interesting development in a very thorny area of international law.
To a great extent, the UNCC has "democratized" the international claims
system. By setting up a system that can review two million claims, it has made the
remedies of international law accessible to large numbers of people. Individuals
may have their claims forwarded to the UNCC by either their national government
or an international organization, representing a major step forward for stateless
people or refugees who by definitionusually didnothave redress to the international
legal system. In addition, they have permitted departure claims, which will provide
relief to large numbers of the poorest victims of the invasion.
Furthermore, the UNCC has demonstrated that technology does have a useful,
if not invaluable role to play, interalia,in the dispensing of remedies at international
law.
International law is still remote and opaque to most of the world's population
and no doubt still principally reflects the interests of states. But if the work done to
date by the UNCC is a harbinger of the future, if only on a sui generis basis,
international law can be called upon to meet the needs of a wider constituency.