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This roundtable discussion was organized by the ASIL Southeast Interest Group.
Moderator: Natalie Klein (Macquarie University Law School)
Speakers: Lea Brilmayer (Yale Law School), John Crook (Administrative Tribunal, North Atlantic Treaty Organization), Chiara Giorgetti (University of Richmond School of Law), and Jeremy Sharpe (Sherman & Sterling LLP)
John Crook opened the discussion by observing that victims of conflict are typically left to skate by, but sometimes imagination and political will can create processes to provide relief. These efforts can be initiated multilaterally, such as the UN Compensation Commission (UN CC), Eritrea-Ethiopia Claims Commission, or Iran-United States Claims Tribunal; domestically, such as Ireland's Residential Institutions Redress Board; or even from businesses, such as the Swiss Banks Settlement for Holocaust victims. Not all processes provide monetary compensation; the Commission for Real Property Claims of Displaced Persons and Refugees in the former Yugoslavia assisted in documenting real estate claims of displaced persons. Since there will inevitably be tradeoffs of accuracy, effectiveness and finite resources when processing one million claims, it is essential during the design stage to define who will be covered, how claims will be received, and how eligibility will be proven in conditions of the normal legal documentation process having broken down. This balancing is dealt with in various ways. For example, tiers of liability may be established, allowing a lower rate of compensation for those who can meet a low evidentiary threshold, or the tribunal may itself get into the business of evidence collection, as the UN CC did in creating a database from available information. To be effective, these programs also need to have the ability to pay claims, and must have a high degree of stakeholder buy-in, technology support, and transparency. Mr. Crook finished his initial remarks by emphasizing that these tribunals have done a lot of good, the requisite technological and legal expertise is there, and the mechanism can successfully be used in the future where there is the political will.
Lea Brilmayer agreed with Mr. Crook,, and offered three criteria for evaluating the success of international mass claims commissions (IMCCs): compensation for victims, deterrence, and closure for all sides, including the state in foreclosing future liability, its neighbors from the spillover effects, and the larger area from further conflict. From these sets of interests, powerful coalitions can arise, but there is invariably more support for the international legal result than for the ultimate compensation to victims, so it is possible to have outcomes in which all interests except the victims' are satisfactorily resolved. She offered the example of the Eritrea-Ethiopia Claims Commission, which ended the war and brought peace to the border regions, definitively closed off further claims against the states, and ended the international political headaches, but the victims effectively received no compensation since funds were never set aside for claims given the poverty of the states, and the states informally agreed that the respective claims offset each other.
Chiara Giorgetti observed that there is no real definition of IMCCs, but there are characteristics they can be expected to have: binding authority, a structure like a judicial body, emergence from an event of international relevance, and international law instruments that engage the responsibilities of states. From this four lessons can be drawn. First, it is important to think carefully about the purposes of the IMCC before its creation. Second, the flexibility inherent in IMCCs can be both a great asset and a great responsibility. Third, claims and claimants must be clearly defined, so that the category of who can claim is large enough to be credible but limited enough so that claimants can actually be compensated. Finally, they must have secure financial backing, as the Iran-United States Claims Tribunal did in requiring a minimum balance of $500 million at all times in the funds account.
Jeremy Sharpe presented the European Commission's proposed multilateral investment court as essentially an IMCC, even if it is not marketed as such. This proposal from criticism of the investor state dispute mechanisms that the public distrusts, and which emerged piecemeal from a variety of systems and actors and suffer accordingly from lack of transparency, vulnerabilities to forum shopping, and other detriments. While states prefer to address ISDS bilaterally, the mechanisms don't deal well with a variety of problems, including mass claims, diversity of claims, small claims, claims enforcement, and claims emerging from crises. Mr. Sharpe proposed that a broader view of the proposed investment court could better address these issues, and could coexist with the current ISDS system. He reiterated the other speakers' emphasis on proper system design to maximize usefulness, as well as sufficient inputs from all stakeholders, but suggested that a standing, more flexible tribunal could be potentially attractive to many states. Professor Giorgetti acknowledged that the proposed tribunal, if defined as an IMCC rather than an arbitral tribunal, could indeed be more broadly useful.
As the discussion was opened to responses, Mr. Sharpe asked Professor Brilmayer whether the failure of the Eritrea-Ethiopia Commission to compensate victims mattered if it met the broader goal of ending the conflict. Professor Brilmayer agreed that this is the right way to think about it ex post, and suggested that the minimal provisions regarding compensation in the instrument is evidence that the drafters perhaps knew from the start that it would be a valuable exercise even if the individual victims did not recover.
Mr. Crook asked which situations might prompt the creation of IMCCs in the future, and Professor Brilmayer suggested climate change could feasibly sponsor a compensation mechanism, particularly for low-lying coastal regions, referring those interested to her forthcoming book on IMCCs. Mr. Crook added that the most successful IMCCs have not determined liability but rather distributed compensation, and there are many situations in which that mechanism might be useful provided the political will is there. Professor Giorgetti suggested that maritime disputes or real property claims, learning from the lessons of the former Yugoslavia, might provide further opportunities.
Questions from the audience included the effect of exclusivity of remedies on IMCC design, and further discussion of claims offsets in the Eritrea-Ethiopia Commission.
Gabriela Femenia is Foreign and International Law Librarian and Lecturer at Law at the University of Pennsylvania Law School.