1 See, e.g., UNSCOM Not Out of the Woods in Iraq, Middle e. Econ. Surv., Dec. 1, 1997, at C1; UN Arms Inspectors Return to Iraq, id., Nov. 24, 1997, at C1.

2 SC Res. 687 (Apr. 3, 1991), reprinted in 30 ILM 847, 852 (1991).

3 For earlier reports on the Commission’s work, see, e.g., Ronald, J. Bettauer, The United Nations Compensation Commission—Developments Since October 1992 , 89 AJIL 416 (1995)Google Scholar; John, R. Crook, The United Nations Compensation Commission—A New Structure to Enforce State Responsibility , 87 AJIL 144 (1993)Google Scholar; Marian, Nash (Leich), Contemporary Practice of the United States, 86 AJIL 346 (1992)Google Scholar.

4 See, e.g., UNCC Planning to Speed Up Processing of Large Claims, ARAB TIMES, June 23, 1997, at 4; United Nations Press Release, Compensation Commission’s Governing Council Approves $721 Million for Individual Losses up to $100,000 (UN Information Service, Geneva, June 24, 1997).

5 United Nations Press Release, Governing Council of United Nations Compensation Commission Concludes 25th Session (UN Information Service, Geneva, Oct. 1, 1997).

6 Id.

7 These figures include the approximately 1.23 million claims filed by the Government of Egypt on behalf of more than 800,000 Egyptian workers in Iraq. See id.

8 United Nations Press Release, United Nations Compensation Commission Pays out Almost $569 Million (UN Information Service, Geneva, Oct. 8, 1997). See also United Nations Press Release, United Nations Pays Out $144 Million (UN Information Service, Geneva, Mar. 12, 1997).

9 UNCC Governing Council, Decision Concerning Part One of the First Instalment of Claims by Governments and International Organizations (Category “F” Claims) [Dec. 45] at 1, UN Doc. S/AC.26/Dec.45 (1997); Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the First Instalment of Claims by Governments and International Organizations (Category “F” Claims), UN Doc. S/AC.26/1997/6 [hereinafter “F” Report].

The panel of commissioners was composed of Bjørn Haug of Norway (Chairman), Georges Abi-Saab of Egypt and Michael J. Bonell of Italy. Id. at 4.

10 The claims were submitted by Denmark (Ministry of Foreign Affairs), the Democratic People’s Republic of Korea (State Commission of External Economic Affairs), Germany (North Rhine-Westphalia Ministry of Employment, Health and Social Affairs), Hungary (Ministry of Foreign Affairs and Ministry of International Economic Relations), the Netherlands (Ministry of Foreign Affairs), New Zealand (Ministry of Foreign Affairs and Trade), Nigeria (Nigerian Embassy in Kuwait), and Sri Lanka (Ministry of Foreign Affairs). “F” Report, supra note 9, at 4–5.

The panel will submit a further report covering two Kuwaiti claims included in the first installment, which were submitted by the Kuwait Ministry of Foreign Affairs and Kuwait University. The panel classified these claims as “unusually large or complex” within the meaning of Article 38(d) of UNCC Governing Council, Provisional Rules for Claims Procedure [Dec. 10], UN Doc. S/AC.26/1992/10, reprinted in 31 ILM 1053 (1992) [hereinafter Rules]. “F” Report, supra, at 5. Where a panel has classified a claim or group of claims as “unusually large or complex,” it is given 12 months within which to complete its review of the claims and submit its report and recommendations to the Governing Council. Absent such a classification, Article 38(c) of the Rules requires panels to complete their review of “any claim or group of claims and report in writing through the Executive Secretary to the Governing Council within 180 days of the date the claims in question are submitted to the Panel.”

11 “F” Report, supra note 9, at 4.

12 Id. at 28.

13 See also Report and Recommendations Made by the Panel of Commissioners Appointed to Review the Well Blowout Control Claim (the “WBC Claim”), UN Doc. S/AC.26/1996/5/Annex [hereinafter WBC Claim Report], reprinted in 36 ILM 1343 (1997) (the first category “E” claims report). On the WBC proceedings, see Robert, C. O’Brien, The Challenge of Verifying Corporate and Government Claims at the United Nations Compensation Commission , 31 Cornell Int’l L.J. Google Scholar (forthcoming).

14 In category “F” alone, the total asserted value of the three hundred claims exceeds $140 billion. “F” Report, supra note 9, at 4.

15 Id. at 7.

16 See id. at 28.

17 Id. at 18.

18 Id.

19 Id. See also the Rules, supra note 10, especially Articles 16, 32–38.

20 “F” Report, supra note 9, at 18. Article 16 of the Rules, supra note 10, provides, in pertinent part:

21 “ F “ Report, supra note 9, at 20.

22 Id. at 5–7.

23 Id. at 5.

24 Id.

25 See supra note 10. See further infra notes 91–94 and corresponding text.

26 “F” Report, supra note 9, at 5–7.

27 Id. at 6. As a result of its investigation, the panel determined that portions of several claims duplicated losses asserted by individuals in category “C.” Consequently, the panel disallowed compensation for these duplicate losses. Id.

28 Id. at 7.

29 Id. at 6.

30 Id. at 7.

31 Id. at 7, 27–28. The firm is Cunningham International.

32 Id. at 15. See also Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of Individual Claims for Damages Up to US$100,000 (Category “C” Claims), UN Doc. S/AC.26/1994/3, at 9 [hereinafter “C” Report], reprinted in 35 ILM 1014 (1996). WBC Claim Report, supra note 13, at 5–6.

33 SC Res. 687, supra note 2, para. 16. While noting that, in passing Resolution 687, the Security Council had acted under Chapter VII of the United Nations Charter, the panel refrained from engaging in any constitutional discussion of the authority of the Security Council to make such findings or statements. See also WBC Claim Report, supra note 13, at 5.

But compare the decision of the Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of former Yugoslavia since 1991 in Prosecutor v. Tadić, Appeal on Jurisdiction, Case IT–94–1–AR72 (Oct. 2, 1995), 35 ILM 32 (1996), where the Tribunal undertook such a constitutional analysis of the Security Council’s action. On the Tadić ruling, see Politakis, G. P., Enforcing International Humanitarian Law: The Decision of the Appeals Chamber of the War Crimes Tribunal on the Duško Tadić Case (Jurisdiction), 52 Zeitschrift für Öffent-liches Recht 283 (1997)Google Scholar; George, H. Aldrich, Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia , 90 AJIL 64 (1996)Google Scholar.

34 “F” Report, supra note 9, at 15.

35 Id. at 15 n.12. See also SC Res. 686 (Mar. 2, 1991), reprinted in 30 ILM 568 (1991).

36 “F “ ‘ Report, supra note 9, at 15.

37 Id. at 17–18. See UNCC Governing Council, Criteria for additional Categories of Claims [Dec. 7], UN Doc. S/AC.26/1991/7/Rev.1, reprinted in 31 ILM 1045 (1992); UNCC Governing Council, Propositions and Conclusions on Compensation for Business Losses; Types of Damages and Their Valuation [Dec. 9], UN Doc. S/AC.26/1992/9, reprinted in id. at 1037.

38 “F” Report supra n o t e 9; a t 18. See also WBC Claim Report, supra note 13, at 71.

39 Id. Compare Article 31 of the Rules, supra note 10, which provides:

Moreover, according to Article 40(1) of the Rules, “ [t]he amounts recommended by the panels of Commissioners will be subject to approval by the Governing Council. The Governing Council may review the amounts recommended and, where it determines circumstances require, increase or reduce them.” Article 40(2) further provides that “[t]he Governing Council may, in its discretion, return a particular claim or group of claims for further review by the Commissioners.” Thus, under the Rules it appears that the Governing Council has the authority to revise or reject the amounts recommended by a panel of commissioners but has no authority to revise a panel’s legal and factual determinations. However, the point is less than clear and a constitutional analysis of the UNCC’s decision-making structures seems to be needed to clarify the respective roles of the Governing Council and panels of commissioners.

40 See text at note 17 supra.

41 “F” Report, supra note 9, at 17.

42 Id. (citing Article 35(1) of the Rules, supra note 10).

43 Id. at 16–17 (citing Dec. 7, supra note 37, para. 37; UNCC Governing Council, Compensation for Business Losses Resulting from Iraq’s Unlawful Invasion and Occupation of Kuwait Where the Trade Embargo and Related Measures Were also a Cause [Dec. 15], para. 5, UN Doc. S/AC.26/1992/15 (1993), reprinted in 33 ILM 244 (1994)).

44 Id. at 17.

45 Id. & n.22 (citing Iran-United States Claims Tribunal cases).

46 Id. & n.23 (citing UNIDROIT Principles of International Commercial Contracts, Art. 7.4.3(3)).

47 Id. at 17.

48 See generally id. at 20–23.

49 Id. at 24.

50 See, e.g., id. at 18 n.26 (Boxer Uprising Commission); id. at 19 n.27 (UNIDROIT Principles of International Commercial Contracts); id. at 20 n.30 (Samoa Commission); id. at 20 n.31 (Vienna Convention on Diplomatic Relations); id. at 21 n.33 (Iran-U.S. Claims Tribunal); id. at 22 n.36 (U.S.-China claim regarding the Szechuan riots); and id. at 22 n.37 (U.S.-German Mixed Claims Commission).

51 Id. at 19.

52 Id.

53 Id. (citing Dec. 7, supra note 37, para. 34(d); and Dec. 9, supra note 37, para. 13).

54 Id. The panel also supported its conclusion by reference to an earlier claims commission decision arising out of military action taken by the United States and United Kingdom in Samoa, in which those states admitted that

See id. at n.30 (quoting Marjorie, M. Whiteman, Damages in International Law 1780 (1943)Google Scholar).

55 Id. at 20.

56 Id. at 20–21.

57 Id.

58 Id. at 24.

59 Id.

60 Id. at 21.

61 Id.

62 Id. at 25.

63 Id.

64 Id.

65 Id. at 23.

66 Id.

67 Id.

68 Id.

69 Id.

70 Id. at 18.

71 Id.

72 Id. (quoting Dec. 7, supra note 37, para. 36).

73 Id. at 25.

74 Id. at 26.

75 Id.

76 Id. at 22.

77 Id.

78 Id. at 20.

79 Id. (citing Vienna Convention on Diplomatic Relations, Apr. 16, 1961, Art. 45, 23 UST 3227, 500 UNTS 95).

80 Id.

81 Id. at 19.

82 Id. (footnote omitted).

83 Id. at 21.

84 Id. at 21–22.

85 H. at 16–17.

86 Id. at 17 (footnote omitted).

87 Id. at 27.

88 Id. at 27–28.

89 Id. at 28. See, e.g., WBC Claim Report, supra note 13, at 7, 9–10, 35 (“The secretariat also retained the services of an accounting consultant to assist the secretariat and the Panel in reviewing the accounting materials submitted by the Claimant and in drafting the interrogatories . . .”). See also Recommendations Made by the Panel of Commissioners Concerning Individual Claims for Serious Personal Injury or Death (Category “B” Claims), UN Doc. S/AC.26/1994/1, at 9, reprinted in 34 ILM 265 (1995) (the secretariat retained the Secretary-General of the International Society of Disaster Medicine to examine the claims preliminarily; later, the same expert assisted the category “B” panel with its review of the claims); “C” Report, supra note 32, at 271 (experts in medicine, psychiatry, labor law and mass litigation assisted the category “C” panel in reviewing the claims).

90 Id. (citing Gillian, White, The Use of Experts by International Tribunals 143 (1965)Google Scholar; Starrett Housing Corp. v. Islamic Republic of Iran, 16 Iran-U.S. C1. Trib. Rep. 112, 198–99 (1987)).

91 See WBC Claim Report, supra note 13, at 27–28 (discussing the role of the WBC claim panel in the proceedings; the language used by that panel was, in part, tracked by the panel in the “F” Report).

92 See O’Brien, supra note 13. Where additional submissions are allowed, they are normally limited to narrowly tailored requests to remedy formal deficiencies in the claims, in accordance with Article 14 of the Rules. More detailed interrogatories have been and are likely to continue to be used in the larger and more complex claims. In such claims, however, Iraq’s participation has been and is likely to continue to be more extensive as well. See, e.g., WBC Claim Report, supra note 13, at 5–10 (discussing the proceedings).

93 This approach, which limits the participation of both the claimants and Iraq, while reserving an independent investigative role for the panels, appears to undercut much of the criticism leveled at the UNCC in the past. See generally Bernhard, Graefrath, Iraqi Reparations and the Security Council , 55 Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht 3 (1995)Google Scholar; Elyse, J. Garmise, The Iraqi Claims Process and the Ghost of Versailles , 67 N.Y.U. L. Rev. 840 (1992)Google Scholar. This conclusion is demonstrated in part by the fact that the amount of compensation recommended by the panel here was approximately 49% of the total amount claimed. Moreover, if the Sri Lankan claim, which was almost fully substantiated by the submission of the stolen Kuwaiti dinar banknotes to the panel for its inspection, is not taken into account, the recommended compensation falls to approximately 25% of the total amount claimed. “F” Report, supra note 9, at 28. Although, depending upon the individual claims under review, the amount of compensation recommended by panels of commissioners will certainly fluctuate in the future, the fact that such significant reductions in the amounts sought were made shows that the panel took its investigative role seriously and that Iraq’s limited participation in the proceedings will not necessarily yield unfair results.

94 This development was foreseen by the Secretary-General in Report of the Secretary-General pursuant to paragraph 19 of Security Council resolution 687 (1991), UN Doc. S/22559 (1991), in which he emphasized that

Id., para. 7.