International Claims Commissions Are Not New

International claims commissions are unique instruments in international law created to provide compensation to a variety of actors in post-conflict or other exceptional international circumstances. At their core, international claims commissions ensure that actors who have suffered injury, loss, or damage because of a state’s international legal breach are assured proper reparation, generally in the form of monetary compensation. Historically, they build on and incorporate elements of prior mixed claims commissions and tribunals dating back to the eighteenth and nineteenth centuries.Footnote ⁵

The precursors of modern international claim commissions date back to the 1794 Jay Treaty, when three mixed claims commissions were created to resolve outstanding tensions between the United States and Great Britain originating from the 1783 Paris Peace Treaty that ended the Revolutionary War. A second generation of international claims commissions was established in the early twentieth century and included the Venezuela Claims Commissions created by protocols between Venezuela and ten creditor countries after the 1898–1902 civil uprisings, as well as post-World War I Mixed Arbitral Tribunals created by the 1919 Peace Treaty of Versailles between the UK, France, Italy, and Germany, the Mixed Commission of the 1921 Treaty of Berlin between Germany and the United States, and the U.S.-Mexico Mixed Claims Commissions.Footnote ⁶

A new generation of international claim commissions is more recent, beginning with the creation of the Iran-U.S. Claims Tribunal and followed by the establishment of the UN Claims Commission and the Eritrea-Ethiopia Claims Commission. The Iran-U.S. Claims Tribunal set the example of post-World War II international claims commissions and revived their use as a mechanism to provide reparation. It was created to resolve outstanding claims between the United States and Iran and their nationals originating from the 1979 Islamic revolution in Iran. It was established in 1981 through an agreement negotiated by Algeria. The Tribunal sits in The Hague and has received almost 4,000 claims, of which 2,884 were small claims from individuals (of less than USD250,000 in value—of which 2,361 were resolved by a lump sum agreement between the two governments), 961 large claims, seventy-five contractual claims between Iran and the United States, and thirty-three disputes related to the interpretation and application of the underlying treaty.

The UN Compensation Commission and the Eritrea-Ethiopia Claims Commission were created in two post-conflict situations: in the aftermath of Iraq’s invasion of Kuwait the former, and as a part of the peace treaty between Eritrea and Ethiopia the latter. The UN Compensation Commission was created by UN Security Council Resolution 687/1991. It heard cases by individuals, private actors, and states against Iraq originating from Iraq’s 1990 invasion of Kuwait. It received over 2.7 million cases (the overwhelming majority from individuals who had to flee Kuwait or Iraq or suffered injury, damage, or loss by the invasion) and awarded over 1.5 million claimants over USD52 billion in damages, including significant sums to states in the region.Footnote ⁷ The Eritrea-Ethiopia Claims Commission was created by the 2000 Algiers Peace Agreement which ended the war between Eritrea and Ethiopia. It heard cases brought by each state against the other, as well as by Eritrea on behalf of its nationals against Ethiopia. It awarded about USD161 million to Eritrea, USD174 million to Ethiopia, and about USD2 million to Eritrean nationals.

Looking back at the historical roots of international claims commissions shows the diversity of structure, scope, and result of such commissions. Indeed, no two international claims commissions are the same, each includes unique elements that distinguishes it from its predecessors. This is one of their fundamental characteristics: they are responsive to the situation—both factual and legal—at hand and are constructed to respond to the specific needs of each situation. Their adaptability and flexibility are a key reason for their success. Similarly, special commissions could be created to provide reparations in several complex situations, from environmental damages to humanitarian violations in conflict situations. To explain this better, the next section will highlight some of the distinctive elements of international claims commissions.

What Makes International Claims Commissions Unique?

International claims commissions are unique and flexible instruments that can fit different situations where alternative dispute resolutions mechanisms are not available or desirable. They can be responsive to the specific situation as to what claims they are built to assess, by whom, and how to provide compensation.

States may decide to establish an international claims commission when these are deemed necessary, viable, and better than existing alternatives. Indeed, international disputes are increasingly complex, especially those arising from post-conflict situations, where there are numerous injured and responsible parties and where numerous breaches of international legal norms are alleged. Often, standing international dispute resolution mechanisms are accessible, if at all, only by one kind of international actor in relation to another actor. For example, only states can bring cases, and only against other states, at the International Court of Justice.

By contrast, international claims commissions can be customized to hear claims from a variety of international actors and have heard claims from different kinds of claimants, including individuals, corporations, and several injured states. Indeed, the flexible and expansive personal jurisdiction of international claims commissions is one of their main characteristics. The UN Claims Commission accepted claims from individuals from many nationalities, corporations, and several governments. Claims were submitted by both governments and international organizations. Similarly, the Iran-U.S. Claims Tribunal heard claims from individuals, corporations, and from both the United States and Iran. This unique flexibility allows international claims commissions to provide monetary compensation for damage, loss, and injury to numerous actors in the same proceedings. Significantly, individuals, whose claims are smaller but more urgent, are generally given priority over larger and more complex claims by governments and corporations. With increasingly complex disputes, including those related to climate change and humanitarian law, this flexibility and adaptability is a key advantage for international claim commissions to guarantee reparation to all those who were injured.

International claims commissions have also proven remarkably adaptable in terms of their subject matter jurisdiction. Each commission has focused on different kinds of international law breaches. The Iran-U.S. Claims Tribunals, for example, dealt mostly with property rights and contractual breaches. Claims at the UN Compensation Commission included claims from individuals who had to leave Kuwait or Iraq as a consequence of the invasion, claims for serious personal injury and other personal claims, and claims from corporations for construction and other contractual losses, loss of profits, loss relating to the destruction and seizure of assets, and oil sector losses. Claims from governments and international organizations included claims for losses incurred in providing relief to citizens, damage and loss of government property, and, importantly, claims for damage to the environment.Footnote ⁸ Claims at the Eritrea Ethiopia Claims Commission also included claims for violations of humanitarian law, including the 1949 Geneva Conventions or other violations of international law. These included claims related to the treatment of prisoners of war, internees, and civilians, the expulsion and displacement of people from their residencies, the legality of certain means and methods of warfare, the treatment of diplomatic premises, and damage to cultural property.Footnote ⁹

The flexibility in subject matter jurisdiction is also reflected in procedural elements. For example, international claims commissions often allow for mass claims processes of small claims that are numerous and similar—such as the claims filed by individuals who had to flee Kuwait at the UN Compensation Commission. These include the use of statistical sampling and groupings. Furthermore, small individual claims can be compensated by a lump sum, which though relatively modest, is paid expeditiously and allows for faster use by those injured. Lump sum payments also permit payment for claims that are particularly difficult to quantify, such as for mental pain and anguish. Additionally, claims by individuals are often given priority and processed first so as to allow a high number of claimants to receive reparations expeditiously. Conversely, more complex and larger claims may be heard using a different and longer procedure more similar to international arbitration. Finally, some international claims commissions also allow for specific restitution, especially in the context of real estate property.Footnote ¹⁰

Importantly, international claims commissions can be created by a variety of binding international instruments. The UN Compensation Commission, for example, was created by UN Security Council Resolution 687/1991, binding on all UN members.Footnote ¹¹ Different kinds of negotiated solutions, however, can be envisaged. The Iran-U.S. Claims Tribunal, for example, was established through the Claims Settlement Declaration issued by the Algerian government (as third-party negotiator), which contained legally binding commitments to which Iran and the United States adhered.Footnote ¹² The Eritrea Ethiopia Claims Commission was created by the Algiers Peace Agreement between Eritrea and Ethiopia.

A final—and fundamental—issue to consider is the availability of funds for compensation. Ultimately, international claims commissions must be able to have any award they issue, including for monetary compensation, enforced. Both the UN Compensation Commission and Iran-U.S. Claims Tribunal had specific mechanisms that assured the availability of funds and compensation payment. Funds for the UN Compensation Commission were ensured through the Security Council resolution that created it, which provided that a percentage from Iraqi oil sale would go to the Commission. The Iran-U.S. Claims Tribunal had a special fund, constituted from funds from Iranian assets previously frozen by the United States and that Iran was under a continuous obligation to replenish. Conversely, there was no prior funding mechanism created to pay the award of the Eritrea-Ethiopia Claims Commission, and the final awards, though relatively small, have not been paid. As new commissions are created, ensuring the availability of funds must be a priority.Footnote ¹³ Additionally, funds have to be properly disbursed. Under the UN Compensation Commission, for example, awards funds were sent by the commission to the state that had submitted the claims, who had the responsibility to distribute the compensation to the claimants and report back on distribution.

International Claims Commissions for the Future (and the Present)

The unique features and flexibility of international claims commissions can become particularly helpful in addressing some current serious breaches on international law.

For example, the creation of a compensation mechanism is presently being negotiated in relation to damages, loss, and injury caused by Russia’s aggression against Ukraine. The creation of the compensation mechanism was first called for by UN General Assembly Resolution ES-11/5 of November 14, 2022. The first step of the mechanism, the Register of Damage for Ukraine (RD4U), was created in 2023 by an Enlarged and Partial Agreement of the Council of Europe, a legal instrument that allows the Council to include non-Council members (Enlarged) and does not require the participation of all Council’s members (Partial). The Register was created to record all eligible claims from individuals, juridical persons, and the state seeking compensation for the damage, loss, and injury caused by Russia’s aggression against Ukraine in its internationally recognized territory on or after February 24, 2022. The Register for Ukraine is meant to be the first part of a compensation mechanism which may include a compensation commission and a compensation fund. The possible creation of a claims commission is at present being negotiated separately, under the leadership of The Netherlands. To date, the Register of Damage for Ukraine has already received over 25,000 claims, and its Board, on which I have the honor to serve as the vice-chair, has already decided to record thousands of claims pertaining to damages or destruction of residential immoveable property and to the death of an immediate family member. The Board approved forty-three categories of claims, covering claims from individuals, Ukraine, and the private sector, and including claims for loss property, injury to person, death of a family member, damage to critical and other infrastructure, as well environmental damage and loss of cultural property.

The Register of Damage for Ukraine, which sits in The Hague, is a unique and new kind of compensation mechanism, which for the first time separates the recording, adjudication, and compensation functions among different legal instruments. At the time of its negotiation, this was seen as the only feasible path forward, as neither of the instruments used before, a bilateral agreement or a Security Council resolution, were available. Notably, the Register of Damage for Ukraine follows the blueprint of another claims mechanism: the UN Register of Damage for Palestine, created by the UN General Assembly in 2007, and tasked to register claims by Palestinians injured because of Israel’s construction of the Wall.Footnote ¹⁴ Interestingly, in September 2024, UN General Assembly Resolution L.31 called for the creation of an “international mechanism for reparation for all damage, loss or injury arising from the internationally wrongful acts of Israel in the Occupied Palestinian Territory”Footnote ¹⁵ similar to the one created for Ukraine and adopting the Register of Damage for Ukraine approach. It is not yet clear how this will be done. For example, the mandate of the UN Register of Damage for Palestine could be expanded, or we could see the creation of a new international mechanism similar to the Register of Damage for Ukraine. If a specific Register is created, it will be interesting to see which features will be included.

One important feature of claims commission described above is their flexibility in terms of the number and kind of claimants and responsible parties. Indeed, claims commissions can be customized to hear claims from a variety of injured actors and related to multiple responsible parties. This flexibility can prove relevant for the creation of future claims commissions. For example, the complex situation of responsibility for climate change could be addressed by creating a new compensation instrument capable of hearing claims from a variety of injured parties (e.g., individuals and states) in relation to a variety of responsible parties (i.e., several states). Though different from previous claims commissions, a claims commission to provide reparation for damages, injury and loss sustained by individuals and states because of climate change could incorporate many of the main features of claims commissions and be able to respond to the new and complex challenge created by climate change. Indeed, this conforms with the framework delineated by the Articles on State Responsibility for Internationally Wrongful Act. Article 46 specifically recognizes that an international breach may result in a plurality of injured actors, each of which may separately invoke the responsibility of a state. At the same time, Article 47 also recognizes that there might be a plurality of responsible states, the responsibility of which can be individually invoked in relation to that act.Footnote ¹⁶ Even if there are a plurality of injured and responsible states, the obligation to provide reparation for a breach of international law continues to exist.

Certainly, the feasibility of such novel creation would need to be carefully explored and the idea precisely developed to respond to specific circumstances. It will be interesting to see if the International Court of Justice in its forthcoming Advisory Opinion on Climate Change opines on the applicable law and on the consequences of climate change and whether the question of a framework for reparations is addressed by the Court at all.Footnote ¹⁷

Conclusion: International Claim Commissions as Means of Reparation

Each international claim commission is unique and responsive to specific situations, and each is created in a unique way. This flexibility and adaptability can be particularly helpful to address complex and novel problems encountered by the international community. These include reparation for the invasion of Ukraine, the prolonged occupation of Palestinian territory, or climate change damage. Scholars, including in this symposium, are also exploring compensation for slavery and other jus cogens violations.Footnote ¹⁸

International claims commissions can provide meaningful reparation for violations of international law. Their unique advantage—their secret sauce—is their responsiveness to specific situations. Indeed, it would be hard to find an alternative instrument that can be so responsive to diverse situations and allow such flexibility as an international claim commissions in these kinds of cases.

To be successful, claims commissions must have a clearly defined mandate, the appropriate and unique institutional framework, and available funds to provide compensation. Additionally, a strong support from the international community to required. Indeed, it is undeniable that claims commission are the exception rather than the norm in the aftermath of an international crisis. The creation of a claims commission requires substantial support and resolve from the parties involved as well as significant support from other members of the international community, including international organizations and other supporting states. Only if that exists can a successful claim commission be established.