Gulf War Reparations and the UN Compensation Commission
This page intentionally left blank
Gulf War Reparations and the UN Compensation Commission Environmental Liability Edited by Cymie R. Payne and Peter H. Sand
1
1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam
Copyright © 2011 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. ______________________________________________ Library of Congress Cataloging-in-Publication Data Gulf War reparations and the UN Compensation Commission : environmental liability / Edited by Cymie R. Payne and Peter H. Sand. p. cm. Includes bibliographical references and index. ISBN 978-0-19-973220-3 ((hardback) : alk. paper) 1. Persian Gulf War, 1991—Claims. 2. Persian Gulf War, 1991— Environmental aspects. 3. Liability for environmental damages—Persian Gulf region. 4. United Nations Compensation Commission. I. Payne, Cymie R. II. Sand, Peter H. KZ6795.I72G85 2011 341.6’6—dc22 2010048470 ______________________________________________ 1 2 3 4 5 6 7 8 9 Printed in the United States of America on acid-free paper Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.)
You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com
This book is dedicated to the memory of our friend and colleague, Michael F. Raboin (UNCC Deputy Executive Secretary, and head of the Legal Services Branch), who tragically died in a traffic accident in Kuwait on April 9, 2008. His intelligence, humor, and constant engagement were the sustaining spirit of the Commission.
This page intentionally left blank
C ON TEN T S
Acknowledgments ix Contributors’ Biographies Map xv Foreword xvii
xi
1. Environmental Claims in Context: Overview of the Institution C. R. Payne PART ONE: Claims Preparation and Review 2. The Process 29 J. Klee 3. Assessment and Valuation of Damage to the Environment 67 M. T. Huguenin, M. C. Donlan, A. E. van Geel, R. W. Paterson 4. Scientific and Technical Advice: The Perspective of Iraq’s Experts L. Wilde 5. Oversight of Environmental Awards and Regional Environmental Cooperation 105 C. R. Payne PART TWO: Jurisprudence and Policy Issues 6. Points of Law 141 J. R. Allen 7. Environmental Principles Applied 170 P. H. Sand 8. Public Health Claims 193 P. H. Sand, J. K. Hammitt PART THREE: Looking to the Future 9. Institutionalizing Peacebuilding: The UNCC, Conflict Resources, and the Future of Natural Resources in Transitional Justice 221 C. Bruch, A. Fishman
1
95
10. The UNCC as a Model for Climate Compensation 242 D. A. Farber 11. Liability for Environmental Damages: Toward Principles of Sustainable Governance 258 R. Costanza 12. The Profound Significance of the UNCC for the Environment D. D. Caron
265
Guidance for Researchers (C. R. Payne) 277 Bibliography (Articles and Books) 284 Basic Documents 295 Security Council Resolution 687 297 Governing Council Decision 7, Criteria for Additional Categories of Claims 306 Governing Council Decision 10, Provisional Rules for Claims Procedure 315 Governing Council Decision 114, Decision Concerning the Review of Current UNCC Procedures 333 Governing Council Decision 124, Decision Concerning the Arrangement to Provide Technical Assistance to Iraq in Respect of Environmental Claims 339 Governing Council Decision 258, Follow-up Programme for Environmental Claims Awards 341 UNCC Solicitation for Consulting Services, 1999 359 Index 361
[ viii ]
Contents
A C K N O W L E D GMEN TS
This book is one of two volumes exploring the legal, policy and practical issues associated with the UNCC. The companion volume, Gulf War Reparations and the UN Compensation Commission: Designing Compensation after Conflict, examines the innovative policy, procedural, institutional and managerial approaches used to handle mass claims and corporate claims at a scale that is unparalleled, as well as the evolution of international jurisprudence in these areas. These two books provide a comprehensive view of the institution and its work. This project was originally inspired by discussions held in September 2007 at the University of California, Berkeley, School of Law, among the following experts: David Caron, the C. William Maxeiner Distinguished Professor of Law at the University of California, Berkeley, School of Law, and a former UNCC Commissioner for corporate claims; Timothy Feighery of the Office of the Legal Adviser at the U.S. Department of State, and a former member of the UNCC Secretariat; Christopher Gibson, Assistant Dean and Associate Professor of Law at Suffolk University Law School, and a former member of the UNCC Secretariat; Julia Klee, a former member of the UNCC Secretariat; Francis McGovern, Professor of Law at Duke University Law School, and a former advisor to the UNCC on mass claims processing; Cymie Payne, Lecturer at the University of California, Berkeley, School of Law, and a former member of the UNCC Secretariat; Peter Sand, Lecturer at the University of Munich, and a former UNCC Commissioner for environmental claims.
This page intentionally left blank
C ON TR I B U TORS’ B I OGRAP HI ES
José R. Allen is a partner in the law firm of Skadden, Arps, Slate Meagher & Flom LLP. From 1999 to 2005, Mr. Allen served as a Commissioner on the UN Compensation Commission (UNCC)’s F4 Panel of Commissioners. Mr. Allen has been practicing law, with an emphasis on environmental litigation, for over thirty years. He is a member of the bars of California and Massachusetts and resides in San Francisco, California. Carl Bruch is a senior attorney and co-director of International Programs at the Environmental Law Institute in Washington, DC. His research examines the law, policy, and institutions governing natural resources during and after conflict. He is currently coordinating the development of seven books on post-conflict peace building and natural resource management (forthcoming 2011). David D. Caron is C. William Maxeiner Distinguished Professor of Law at the University of California at Berkeley, and president, American Society of International Law. From 1996 to 2003, Professor Caron served as Commissioner on the UNCC’s E2 “Precedent” Panel of Commissioners. He is a Barrister Member of Chambers, 20 Essex Street, as well as a member of the bar of California. He served as chair of the Institute of Transnational Arbitration from 2005 to 2009. Robert Costanza is University Professor of Sustainability and Director, Institute for Sustainable Solutions at Portland State University. Before that he was Gund Professor of Ecological Economics and founding director of the Gund Institute for Ecological Economics at the University of Vermont. He is also currently a Distinguished Research Fellow at the Ecological Economics Research Center of New Zealand (EERNZ), a Senior Fellow at the National Council on Science and the Environment (NCSE) in Washington, DC, and a Senior Fellow at the Stockholm Resilience Center. He also is co-founder and past president of the International Society for Ecological Economics, and was founding chief editor of the society’s journal, Ecological Economics; founding co-editor of Ecological Economics Reviews; and founding editor-in-chief of the new journal, Solutions (www.thesolutionsjournal.org). Michael C. Donlan is a principal with Industrial Economics Inc., Cambridge, Massachusetts, which provided independent expert consultant services to the UNCC’s F4 Panel in 2000–2005. He is an expert in managing multidisciplinary natural resource and economic damage assessments. Mr. Donlan holds a B.A. in
geography modified by economics from Dartmouth College and an M.B.A. from Stanford University. Daniel Farber is the Sho Sato Professor of Law and chair of the Energy and Resources Group at the University of California, Berkeley. He is a fellow of the American Academy of Arts and Sciences and was a law clerk for Justice John Paul Stevens of the U.S. Supreme Court. Akiva Fishman is a research associate at the Environmental Law Institute. His work focuses on the link between natural resources and conflict, international environmental institutions, and U.S. brownfields and invasive species law. He is currently assisting with the development of seven books on post-conflict peace building and natural resource management (forthcoming 2011). James K. Hammitt is Professor of Economics and Decision Sciences at the Harvard School of Public Health, Director of the Harvard Center for Risk Analysis, and visiting professor at the Toulouse School of Economics. In 2002–2005, he served as consultant to the government of Kuwait on public health impacts of the Gulf conflict. Formerly a senior mathematician at the RAND Corporation, he is a member of the U.S. Environmental Protection Agency’s Science Advisory Board and chairs its Advisory Council on Clear Air Compliance Analysis. Michael T. Huguenin was president and co-founder of Industrial Economics Inc., Cambridge, Massachusetts, which provided independent expert consultant services to the UNCC’s F4 Panel in 2000–2005. He has designed and conducted a broad range of environmental studies over the past thirty-five years. Mr. Huguenin holds an A.B. in physics from Washington University in St. Louis and an M.S. in management from the Massachusetts Institute of Technology. Julia Klee managed the UNCC Secretariat’s work on the environmental claims. She is a former partner with the law firm of Pillsbury, Madison and Sutro, where she helped establish the firm’s environmental practice in the 1980s. Other environmental positions include manager of environment, health, and safety at the University of California, Berkeley; environmental consultant with ERM Environomics in Beijing, China; inspector/officer with the San Francisco Bay Area Air Pollution District. Ms. Klee holds degrees in chemistry (University of Illinois) and law (University of California at Berkeley). Thomas A. Mensah was the chairman of the UNCC’s F4 Panel of Commissioners from 1999 to 2005. Former Dean of the Faculty of Law, University of Ghana, Professor of Law and Director of the Law of the Sea Institute at the University of Hawaii, and High Commissioner of Ghana to South Africa, he was the first president of the International Tribunal for the Law of the Sea. He is a graduate of the University of Ghana, the University of London, and Yale University. Robert W. Paterson is a principal with Industrial Economics Inc., Cambridge, Massachusetts, where he values environmental and natural resource assets and services in damage assessment and public policy analyses. Mr. Paterson holds a B.A. in economics from Colby College and an M.S. in resource economics from the University of Maine. [ xii ]
Contributors’ Biographies
Cymie R. Payne was a senior lawyer with the UNCC’s environmental claims program from 1999–2005. She is the Distinguished Environmental Law Scholar at Lewis and Clark Law School; formerly a lecturer at University of California, Berkeley, School of Law, where she was also Director of the Global Commons Project and Associate Director of the Center for Law, Energy, and the Environment. Ms. Payne practiced law with the U.S. Department of the Interior in Washington, DC, and the firm of Goodwin, Procter, LLP, in Boston. She is a graduate of the Fletcher School of Law and Diplomacy and University of California, Berkeley, School of Law, and a member of the bars of California and Massachusetts. Peter H. Sand is a lecturer in international environmental law at the Faculty of Law, University of Munich, Germany; formerly Associate Professor of Law at McGill University Montreal, Canada. Before serving as UNCC Commissioner on the F4 Panel in 1999–2005, he held a number of international positions, including Senior Legal Officer of the UN Food and Agriculture Organization (FAO), Assistant Director General of the International Union for Conservation of Nature and Natural Resources (IUCN), Chief of the Environmental Law Unit of the UN Environment Programme (UNEP), and Legal Adviser for Environmental Affairs of the World Bank. Alexandra E. van Geel is a senior associate with Industrial Economics Inc., Cambridge, Massachusetts, where she evaluates injuries to natural resources in freshwater, marine, and terrestrial environments. Ms. van Geel holds an A.B. in biology from Princeton University and an M.S. in biology from the Massachusetts Institute of Technology. Larraine Wilde is Principal Environmental Scientist with Sinclair Knight Merz (Europe) Ltd., and led the technical team advising Iraq on the UNCC environmental claims. Ms. Wilde has directed and managed teams providing assessment of marine and terrestrial environments in more than forty countries across Asia, Africa, South America, the Middle East, and Europe with assessments in conflict/ post-conflict countries, including Sierra Leone, Kosovo, Palestine, and Rwanda.
Contributors’ Biographies
[ xiii ]
This page intentionally left blank
MA P
This page intentionally left blank
F OR E W O R D
One result of the increased global concern for environmental protection since the 1972 UN Conference on the Human Environment has been a general recognition of the need to place stricter legal constraints on wartime activities that deliberately target the environment. This has led to intensified international efforts to develop legal norms and institutions whose purpose is to prevent or redress adverse environmental consequences of war and other conflicts. In the process, the law has been steadily broadened and clarified in order not only to prevent and reduce the impacts of wartime activities on human beings (such as prisoners of war and noncombatant civilian populations) but also to eliminate or reduce damage to property, to historical and cultural monuments, and to the natural environment. Indeed, it is now generally accepted that the protection of the environment is one of the legitimate objectives of the current international law governing war and warlike activities. Concern with environmental damage clearly played a key role in the response of the United Nations to the 1990–1991 Gulf War. In establishing the UN Compensation Commission (UNCC), the Security Council set in train a process whose purpose was not merely to mete out international sanctions against Iraq for its illegal attack on and occupation of Kuwait. True, the actions of the Council were in large measure intended to reflect the sense of outrage felt by the international community against the clear act of aggression by Iraq. But another and equally important purpose of the Security Council was to provide a mechanism for compensating governments and other entities that had suffered damage as a result of the activities of Iraqi military personnel as well as the measures taken by the armed forces of other governments, at the invitation of the United Nations, to liberate Kuwait from occupation by Iraq. At the same time the Security Council also sought consciously to contribute to the strengthening of the international law for the protection of the environment from the consequences of war and warlike activities. This was made clear in the resolutions by which the Security Council authorized the cessation of military activities against Iraq. Thus an essential condition for the cease-fire arrangements as set out in the resolutions of the Security Council was the formal acceptance by Iraq of its responsibility under international law for losses and damages resulting from its aggression against Kuwait. In resolution 687 of April 3, 1991, the Security Council reaffirmed Iraq’s liability “under international law for
any direct loss, damage . . . or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.” In this regard, the Security Council expressly stated that the loss or damage for which Iraq was liable included “environmental damage and the depletion of natural resources.” It was to enforce the liability of Iraq for loss, damage, or injury suffered as a result of its invasion and occupation of Kuwait that the Security Council decided to create a fund to pay compensation for damage covered by the Council’s resolutions. The Council also established a Commission (the UN Compensation Commission, UNCC) to administer the fund. The environmental dimension of the process was further underscored by the decision of the UNCC Governing Council to group all the claims for “direct environmental damage and the depletion of natural resources” together and assign them to a single and separate panel of Commissioners (F4 Panel). It is thus no exaggeration to say that the mandate and work of the UNCC and the F4 Panel represented a significant aspect of the work of the United Nations for the prevention of environmental degradation and the preservation of the environment as a whole. In this connection, it is interesting to note that the Governing Council considered it desirable to amplify the mandate of the F4 Panel by clarifying that the concept of environmental damage referred to in the Security Council decision included “losses or expenses resulting from abatement and prevention of environmental damage . . . reasonable measures already taken to clean and restore the environment . . . reasonable monitoring and assessment of environmental damage for the purpose of evaluating and abating the harm and restoring the environment . . . reasonable monitoring of public health and performing medical screening for the purposes of investigating and combating increased health risks.” As previously noted, the F4 Panel, with the other panels of Commissioners, was not required to deal with the central issue of Iraq’s liability for environmental damage resulting from its invasion and occupation of Kuwait. The terms of reference of all the panels were predicated on the affirmation by the Security Council (and acceptance by the government of Iraq) that Iraq was liable under international law for the damage that resulted directly from the invasion and occupation. Consequently, the function of the panels was essentially fact-finding in nature, involving the review of the evidence submitted for the individual claims before them. However, some of the functions of the panels were clearly judicial in nature, and they were often required to elucidate or apply legal rules and principles. For example, the F4 Panel had to interpret the definition of the concept of environmental damage as used in the Security Council resolutions and in the decisions of the Governing Council. It also had to determine when and to what extent “other rules of international law” could or had to be applied in its consideration of particular claims. And, of course, the Panel had to deal with difficult issues such as the causal nexus between the damage identified and Iraq’s invasion and occupation; whether the evidentiary requirements regarding the directness of damage had been satisfied in respect of such damage; the nature and extent of the damage for which [ xviii ]
Foreword
compensation was due; and the appropriate level of compensation to be awarded for damage that was found to be a direct result of the invasion and occupation. Other important aspects of the work of the Panel worth mentioning include: the conclusions and recommendations relating to the use of environmental monitoring and assessment activities as a means for environmental protection and the basis on which such activities may legitimately be compensated; recognition of the role of “environmental solidarity” and assistance from governments and other entities to victims and potential victims of damage and the justification for compensating for the costs of such assistance; the duty on victims and potential victims of damage to take reasonable measures to prevent or mitigate damage; definition of what objectives are legitimate and realistic when taking measures to restore damaged environment; and what are acceptable methods for evaluating ecological losses with a view to determining the appropriate forms and levels of compensation. The present publication examines in some detail some of the major aspects of the UNCC project relating to claims for damage to the environment. The contributors include some of the persons who played key roles in the process. The various chapters set out and explain the procedures and approaches adopted by the F4 Panel in reaching its conclusions and the responses of the Governing Council to the Panel’s specific recommendations. Unlike the other panels, the F4 Panel did more than merely determine the admissibility of claims or assess the appropriate levels of compensation to be awarded. With the approval and encouragement of the Governing Council, the Panel also formulated detailed suggestions on how the funds awarded for some of the claims should be utilized in order, first, to ensure that they are used for reasonable projects and, second, that the projects would achieve the purposes for which the awards were recommended by the Panel and approved by the Governing Council. In the process, both the Panel and the Governing Council articulated and operated on a number of principles and concepts which are likely to be of interest and use to persons and institutions that may be called upon in the future to deal with the aftermath of wars and conflicts with implications for the environment. It is, of course, true that many of the procedural and substantive rules that were applied in the UNCC process in general, and for the environmental claims in particular, reflected the peculiar circumstances and context of the UNCC and were largely dictated by the special rules adopted by the Security Council and the Governing Council. For that reason it may very well be that many of the rules (and decisions and conclusions based on them) will not necessarily be considered as constituting precedents for general application. Nevertheless, it is not at all unreasonable or unrealistic to expect that at least some of these rules and procedures may be accepted as useful pointers or guidelines by future tribunals and other bodies asked to decide on claims for damage to the environment. It is also possible that some of the steps and measures taken in the process may find resonance and relevance in future situations. An example is the decision of the Governing Council to track the use of compensation funds awarded to government Foreword
[ xix ]
claimants with a view to ensuring that the funds would be put to reasonable use and utilized for the purposes for which they were awarded. Similarly, some of the technical recommendations of the F4 Panel, and the decisions and actions taken by the Governing Council and by the participating governments (including the government of Iraq), may provide interesting and useful insights and lessons not only on the emerging principles and procedures for determining compensation to the victims of environmental damage and the use of compensation mechanisms to restore damaged environments, but also on related issues such as the promotion of cooperation between regional states and governments in order to facilitate the taking of effective measures to deal with the environmental effects of wars and conflicts. For these and other reasons, the description and evaluation of the work and experience of the UNCC and the F4 Panel should be of interest to participants and commentators in the fields of the international law of state responsibility and the international judicial process. The publication will also provide useful material for those who seek to contribute to the international efforts to prevent environmental damage as a result of wars and other conflicts. In giving a chronicle of the performance of the UNCC in an area where there were few precedents, and by exposing the difficulties faced and the solutions adopted, the authors have provided muchneeded insights into the problems posed by wars and their adverse effects on the environment. Hopefully, they have also helped to point the way to the possible means and arrangements for dealing with these problems. Unfortunately, these are problems which the international community may need to revisit again in the future. Thomas A. Mensah London, April 16, 2010
[ xx ]
Foreword
C HA P TER 1
Environmental Claims in Context Overview of the Institution C YMIE R . PAYNE *
INTRODUCTION
E
nvironmental damage was the last of the losses resulting from Iraq’s 1990 invasion of Kuwait and the ensuing occupation and 1991 Gulf War to be awarded reparations by the UN Compensation Commission (UNCC, or the Commission). The UNCC initiated its work by providing humanitarian compensation for nearly 2.7 million people displaced, injured, and otherwise harmed by the war. That large number of urgent claims shaped the initial structure of the UNCC. During the fi fteen years from 1991 to 2005 that the UNCC processed claims from over ninety countries, it developed procedures and jurisprudence that may be considered models for dispute, disaster, and confl ict compensation. Although ecological destruction was a matter of grave concern, the international community was not yet experienced with legal review and valuation of such losses. Within the UNCC’s general framework,1 the complex, high-value environmental claims resolved in the fi nal phase of the UNCC mandate (2000–2005) occupied a special place, requiring the Commission to further adapt and innovate. The UNCC Governing Council and a small Secretariat continue to oversee implementation
* Former F4 Team Leader. My thanks to Peter Sand and Timothy Feighery for their thoughtful comments on this chapter. Any errors are my own. 1. Addressed more fully in the companion volume to this book Gulf War Reparations and the UN Compensation: Designing Compensation After Conflict (C. Gibson & T. Feighery eds., Oxford University Press 2011)(hereinafter, Gibson & Feighery).
of environmental projects funded by the environmental awards and the distribution of compensation awarded but not yet fully paid. Given the staggering amount claimed before the UNCC, over US$350 billion, doubt that the full measure of compensation awarded would ever be paid was a key factor influencing the design of the Commission and many of the decisions taken by the Governing Council to fairly allocate limited funds.2 (See Table 1.1.) While individuals were the most numerous claimants, a small number of corporate and government claims received the lion’s share of compensation. For example, the award to the Kuwait Petroleum Corporation of nearly US$16 billion for commercial losses “arising from the disruption of their businesses and the destruction of oil and gas by fires and spills resulting from the well blow-outs that occurred at the end of the conflict” constituted about 30.4 percent of the total compensation awarded.3 Between the summer of 1991, when the Commission’s Governing Council held its first meeting at the UN headquarters in Geneva, and June 2005, the UNCC approved awards amounting to more than US$52 billion for over 1.5 million claimants.4 As of January 2011, the Commission had made US$31.4 billion available to claimants.5 Out of this total, the share of environmental claims awarded was US$5,261,746,450, of which $4,976,737,454 had actually been paid by January 2011—which is the largest amount of compensation ever disbursed for environmental damage in the history of international law.6 Bearing in mind that individuals composed the most numerous class of claimants, that their losses were relatively small, and that their need was urgent, their
2. See, e.g., Governing Council Decision 7, S/AC.25/1991/7/Rev.1 (Nov. 28, 1991, as revised Mar. 17 1992), para. 4 (“As contributions are made to the Fund, the Council will allocate those funds among the various categories of claims. If resources of the Fund are insufficient with respect to all claims processed to date, pro rata payments would be made to Governments periodically as funds become available. The Council will decide on the priority for payment of various categories of claims.”); David. D. Caron, Introductory Note, 31 I.L.M. 1009 (1992); Payne, Chapter 5, in this volume, text at note 52; Elyse J. Garmise, The Iraqi Claims Process and the Ghost of Versailles, 67 NYU L. Rev. 840, 841 (1992) (“The worldwide pool of frozen Iraqi assets . . . amount to only $4 billion, far less than the estimated $180 billion worth of claims against Iraq.”). 3. Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of “E1” Claims, U.N. Doc. S/AC.26/2000/16 (Sept. 29, 2000), para. 3, Table 21. 4. UNCC Press Release, Governing Council of United Nations Compensation Commission Has Concluded Its Fifty-Eighth Session, PR/2005/14 (Dec. 8, 2005). 5. UNCC Press Release, United Nations Compensation Commission Pays Out US$680 Million, PR/2011/1 ( Jan. 27, 2011). US$21 billion is still owed to Kuwait for oil sector and government claims. The UNCC Governing Council, at its November 2010 meeting, recommended to the Security Council that Iraq’s payments to the Compensation Fund continue until a successor mechanism should be put in place. Letter dated 12 November 2010 from the President of the Governing Council of the United Nations Compensation Commission addressed to the President of the Security Council, S/2010/587 (Nov. 15, 2010). 6. UNCC, Status of Processing and Payment of Claims (January 27, 2011), available at http:// www.uncc.ch/status.htm. The remaining difference represents amounts awarded for environmental “invoice claims” that were not given priority for payment, see Klee, Chapter 2, text at notes 45–47; Sand, Chapter 7, note 19, both in this volume. The US$20 billion fund provided by BP in compensation for losses from the 2010 Deepwater Horizon oil drilling rig blowout in the Gulf of Mexico—the next largest oil spill after the Gulf War oil spill—does not cover the cost of natural resource damages, which have not been calculated at this writing. [2]
Environmental Claims in Context
Table 1.1. Amount Sought and Awarded in All Claims Categories: Summary Subject Matter
Number of claims resolved
Number of resolved claims awarded compensation
Compensation sought by claims resolved (US$)
Compensation awarded (US$)
Net compensation paid (US$)
923,158
852,499
3,455,092,500
3,149,692,000
3,116,997,986
5,734
3,935
20,100,000
13,435,000
13,377,388
Larger Claims of Individuals (C, D)
1,750,152
682,795
28,043,379,200
8,534,619,773
8,526,995,461
Claims of Corporations (E)
6,571
4,048
78,736,378,996
26,297,554,052
8,065,154,490
516
342
242,277,888,207
14,388,055,890
11,580,655,250
2,686,131
1,543,619
352,532,838,903
52,383,356,715
31,303,180,576
Departure Claims of Individuals (A) Serious Personal Injury or Death of Spouse, Child, or Parent (B)
Claims of Governments and International Organizations (F) Total
Source: http://www.uncc.ch/status.htm, January 27, 2011 (explanatory notes omitted)
claims were prioritized over these substantial government and business claims to ensure that injured individuals would rapidly receive a share of whatever funds might be available. The environmental claims, brought by governments and posing many novel issues, were placed at the end of the queue. This book addresses the particular challenges faced by the environmental claims, the “F4” claims category. The present chapter introduces the institution as a whole, including its origin and structure, the mass claims, corporate claims, and nonenvironmental government claims, to provide context for what follows and to show how the practice of the Commission evolved over time.
I. EVENTS LEADING TO THE CREATION OF THE UNCC
When the Republic of Iraq invaded Kuwait on August 2, 1990, the UN Security Council declared it a breach of international peace and security and demanded Iraq’s immediate and unconditional withdrawal.7 Instead of withdrawing, Iraq looted property, laid mines, built defensive trenches and fortifications, and prepared oil wells with explosives.8 Iraq justified the invasion by claiming Kuwait as its nineteenth province and criticizing Kuwaiti oil withdrawals from the Rumaila field, which spans the Iraq-Kuwait border and which is one of Iraq’s richest oil resources.9 Iraq also believed that Kuwait lowered global oil prices by producing above its OPEC quota thus harming Iraq’s oil-based economy, exacerbating the strain of its debt to Kuwait for the cost of the Iran-Iraq war.10 The Security Council rapidly initiated economic sanctions against Iraq.11 In October, the Security Council condemned Iraq for hostage taking, destruction of records, forced departure of Kuwaitis, and other acts in violation of the UN Charter, the Fourth Geneva Convention, the Vienna Conventions on Diplomatic and Consular Relations, and international law. The Council reminded Iraq that “under international law it is liable for any loss, damage or injury arising in regard to Kuwait and third States, and their nationals and corporations.”12 Finally, after negotiations with the government of Iraq failed, the Allied Coalition intervened militarily on January 17, 1991, beginning an offensive that drove Iraqi troops from Kuwait by the
7. S.C. Res. 660, U.N. Doc. S/RES/660 (1990). 8. Michael Wines, The Iraqi Invasion: U.S. Says Bush Was Surprised by the Iraqi Strike, N.Y. Times, Aug. 5, 1990, late ed., section 1, part 1, page 12, column 3. Thomas C. Hayes, Confrontation in the Gulf; The Oilfield Lying Below the Iraq-Kuwait Dispute, N.Y. Times, Sept. 3, 1990 (hereinafter, Hayes). 9. Kuwait Country Analysis Brief, Alexander’s Gas & Oil Connections—News & Trends: Middle East 8 (2003). 10. Hayes (note 8, supra). 11. S.C. Res. 661, S/RES/661 (Aug. 6, 1990). 12. S.C. Res. 674, S/RES/674 (Oct. 29, 1990).
[4]
Environmental Claims in Context
end of February 1991.13 Iraq reluctantly accepted the terms of the ceasefire agreement: weapons inspections, demarcation of the boundary between Kuwait and Iraq, deployment of UN observer forces, return of Kuwaiti property and compensation to be paid for direct losses, in exchange for the withdrawal of the Coalition military presence from Iraq.14 Three weeks after the withdrawal of Iraq’s forces, UN Secretary-General Javier Pérez de Cuéllar sent a mission to assess conditions in Kuwait.15 While international organizations assessed the damage to the environment and human populations,16 international media reported to the general public.17 A “thick cloud of oily dark smoke . . . that, on some days, brings a chilly twilight at noon”18 hung over the region, produced by over 600 oil wells in Kuwait and Iraq that were burning and gushing out of control;19
13. Andrew Rosenthal, War in the Gulf: The Overview—U.S. and Allies Open Air War on Iraq, N.Y. Times, New York ed., at A1 ( Jan. 17, 1991)(hereinafter, Rosenthal); Alberto Bin, Richard Hill, & Archer Jones, Desert Storm: A Forgotten War (Praeger 1998). 14. Security Council Resolution 686 (2 March 1991 United Nations Security Council Resolution 687 (Apr. 3, 1991), International Legal Materials 30 (1991) 846; U.N. Doc. S/22559 (1991); Letter dated Apr. 10, 1991 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, UN doc. S/22480 Apr. 11, 1991) (“The National Assembly has decided at its session held on 6 April 1991 to agree to United Nations Security Council resolution 687 (1991)”); Identical Letters dated April 6, 1991 from the Permanent Representative of Iraq to the United Nations Addressed Respectively to the SecretaryGeneral and the President of the Security Council, S/22456 (Apr. 6, 1991). The border demarcation was completed in 1993, but potential conflicts over Iraq’s access to the Gulf and shared oil resources may persist in the future. R. Schofield, The United Nations’ Settlement of the IraqKuwait Border, 1991–1993, IBRU Boundary and Security Bulletin (1993); Michael J. Matheson refers to the resolution of the Iraq-Kuwait boundary and the UNCC as “the most successful UN legal-regulatory programs for Iraq” in his review of David Malone’s book, The International Struggle over Iraq: Politics in the UN Security Council, 1980–2005 102 AJIL 687 (2008). 15. Report to the Secretary-General by a United Nations mission, led by Mr. Abdulrahim A. Farah, former Under-Secretary-General, Assessing the Scope and Nature of Damage Inflicted on Kuwait’s Infrastructure During the Iraqi Occupation of the Country from 2 August 1990 to 27 February 1991, 8, UN Doc. S/22535 (Mar. 28, 1991) (hereinafter, Farah Report). 16. See, e.g., World Conservation Monitoring Centre, Gulf War Environmental Information Service: Impact on the Marine Environment (1991); Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific, and Cultural Organization, Report of the First Meeting of the Working Group on Oceanographic Co-operation in the ROPME Sea Area (IOC/WGOCR-I/3 rev.) ( June 12–14, 1991); and A.H. Al-Rabeh, H. M. Cekirge, & N. Gunay, Modeling the Fate and Transport of Al-Ahmadi Oil Spill, 65 Water, Air, and Soil Pollution 257–79 (1992) (hereinafter, Al-Rabeh et al.). 17. See, e.g., Hayes (note 8, supra); Rosenthal (note 13, supra) A1. 18. Martti Ahtisaari, Mission Report to the Secretary-General on Humanitarian Needs in Kuwait and Iraq in the Immediate Post-Crisis Environment. United Nations, Security Council, S/22409 (Mar. 28, 1991), at 4. 19. Kuwait stated that “out of a total of 914 operational wells in Kuwait, 798 wellheads had been detonated by the Iraqi forces, of which 603 were on fire, 45 were gushing oil but not on fire, and 150 although damaged were neither on fire nor gushing oil.” Well Blowout Claim, para. 12; Samira Omar, Nader Al-Awadhi, R. Misak, & Adel Asem, Ecological Impact of War on the Arid Environment of Kuwait and Land Rehabilitation, Proceedings of the First International Congress on Petroleum Contaminated Soils, Sediments and Water, August 12–17, 2001, 151–72 (Amherst MA: Amherst Scientific Publishers 2004).
E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[5]
the air pollution “plumes,” which rose up to 5 kilometers in height, extended and moved to neighboring countries, until the fires were finally extinguished in November 1991. Oil spills coated the coasts of Kuwait, Saudi Arabia, and Iran, and polluted the waters and seabed of the Persian Gulf from 6 to 14 million barrels of oil that had been intentionally poured into the Persian Gulf on orders from President Saddam Hussein or had leaked from war-damaged ships.20 Over 1.6 million mines were laid throughout Kuwait by Iraqi troops, and the desert was torn up by military vehicles, road construction, military fortifications, and other types of defensive structures.21 Millions of people were displaced by the conflict, fleeing from Kuwait and Iraq.22 Before the invasion, more than 2.6 million foreign nationals lived in Kuwait and Iraq, mainly guest workers and their families from developing countries; about 2 million people are estimated to have left both countries by the end of the war in February 1991.23 Though most moved on to other countries, even their temporary presence strained the capacity of the host countries to provide for them.24 After Iraq’s defeat, another group of refugees fled Kuwait, more than 10,000 people escaping persecution and new residence rules.25 These were priorities for immediate response by the international community. Still to be observed more than ten years later in Kuwait and Saudi Arabia, the long-term effects of the oil well fires were revealed as desert covered with inches of oily residue that eventually hardened into a substance like pavement—nicknamed “tarcrete”—and lakes of oil that trapped livestock, birds, and other wildlife. The oil
20. Al-Rabeh, et al. (note 16, supra); World Conservation Monitoring Centre, Gulf War Environmental Information Service: Impact on the Marine Environment (1991)(“There is no doubt that this is the largest oil spill recorded.”); Report of the first meeting of the Intergovernmental Oceanographic Commission of the United Nations Educational, Scientific and Cultural Organization, “Working Group on Oceanographic Co-operation in the ROPME Sea Area” (IOC/WGOCR-I/3 rev.) ( June 12–14, 1991); and Farah report (note 15, supra), paras. 155–66. 21. UNEP, Report on the UN Inter-Agency Plan of Action for the ROPME region, reprinted in Iraq and Kuwait: The Hostilities and their Aftermath (M. Weller ed., 1993)(hereinafter, Report on the UN Inter-Agency Plan of Action); UNEP, Updated Scientific Report on the Environmental Effects of the Conflict between Iraq and Kuwait (Governing Council of the United Nations Environment Programme, Nairobi 1993)(hereinafter, UNEP Updated Scientific Report). 22. See, e.g., Report and recommendations made by the Panel of Commissioners concerning the first instalment of claims for departure from Iraq or Kuwait (Category “A” Claims), U.N. Doc. S/AC.26/1994/2 (Oct. 21, 1994) (hereinafter, First “A” Report), at 24–28; Seteney Shami, Transnationalism and Refugee Studies: Rethinking Forced Migration and Identity in the Middle East, 9:1 Journal of Refugee Studies, note 5 (1996). 23. Id. 24. Report on the UN Inter-Agency Plan of Action (note 21, supra); UNEP Updated Scientific Report (note 21, supra). 25. Nicholas van Hear, Mass Expulsion of Minorities: An Overview, 6 J. of Refugee Studies 274, 275, 279 (1993); Nicholas van Hear, Mass Flight in the Middle East: Involuntary Migration and the Gulf Conflict, 1990–91, in Geography and Refugees: Patterns and Processes of Change (R. Black & V. Robinson eds., London: Bellhaven 1993).
[6]
Environmental Claims in Context
spill wiped out fauna that played a key role in maintaining coastal wetlands, altered the coastal geomorphology, and caused other impacts such that natural restoration did not occur to the extent that had been anticipated.26
II. ESTABLISHMENT AND EARLY OPERATION OF THE UNCC
The Security Council established the UNCC as a temporary institution to review, decide, and pay the claims for compensation for which Iraq was liable. The Council stated, in its Resolution 687 (1991), paragraph 16, its reaffirmation that Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2 August 1990, which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.
This exercise by the Security Council of its authority under chapter VII of the UN Charter to take measures to “restore international peace and security”27 was, like many aspects of the UNCC, unprecedented and controversial. Not only was the UNCC the first subsidiary organ authorized under chapter VII, but some argued that the Council, as an executive body, has no authority to exercise judicial functions or to delegate such authority to another body.28
26. Cf. Dhari Al-Ajimi, Saleh Al-Muzaini, M. A. Al-Sawari, Mirza U. Beg, Scott W. Fowler, Mohammed Fathe Hamouda, Tahir Hussain, David Jones, Hosny Khordagui, A. Alan Moghissi, & Andrew Price, The Long-Term Environmental Effects of the Gulf War, in Special Issue: The International Conference on the Long-Term Effects of the Gulf War, 24:1/2 Environment International 2–4 (1998). Many scientific reports assessing the 1991 Gulf War oil spill damage are published in a special issue of Marine Pollution Bulletin, vol. 27 (1993); other useful references include the Proceedings of the International Oil Spill Conference (American Petroleum Institute, 1995); the Final report on the Joint IOC/IUCN Gulf Mission August 1992; and A Marine Wildlife Sanctuary for the Arabian Gulf: Environmental Research and Conservation Following the 1991 Gulf War Oil Spill (F. Krupp, A. H. Abuzinada, & I. A. Nader eds., Goettingen NCWCD, Riyadh and Senckenbergische Naturforschende Gesellschaft, Frankfurt: Hubert & Co. 1996). 27. UN Charter, art. 39. 28. For discussion of these positions, see Veijo Heiskanen, The United Nations Compensation Commission, 259 Recueil des Cours: Collected Courses of Hague Academy of International Law 306–11 (2002) (hereinafter, Heiskanen); Michael J. Matheson, Council unbound : the growth of UN decision making on conflict and postconflict issues after the Cold War 171 (Washington, DC: United States Institute of Peace Press 2006) (hereinafter, Matheson).
E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[7]
Rejecting calls to try President Hussein and other Iraqi officials for war crimes,29 the Security Council thus chose a state responsibility–based approach. Though this was the first such body to be established through the multilateral UN Charter, the use of claims commissions has a variety of precedents in the nineteenth and twentieth centuries.30 For Iraq, the consequence of its breach of its international responsibility to refrain from the threat or use of force against another state31 was the payment of reparations as required by international law.32 For those injured by the conflict, a monetary award would be their sole remedy. Accordingly, the Commission was established (at the UN Office in Geneva) along lines recommended to the Security Council by the UN Secretary-General. Its mandate was to administer the Compensation Fund and to evaluate losses, verify the validity of claims, resolve disputed claims, and pay compensation for claims within the scope of Resolution 687 (1991), paragraph 16.33 The UNCC was not an exclusive remedy; for example, complaints were issued against Iraq in the domes-
29. Richard L. Berke, After the War; Senate Urges War-Crimes Trials, N.Y. Times, Apr. 19, 1991, at A8; G. A. Christenson, State Responsibility and the UNCC, 341 in The United Nations Compensation Commission (Richard B. Lillich ed., Transnational Publishers, Inc. 1995) (“Justification for a non-punitive deterrent follows from a rational calculation of the economic consequences of crimes of state.”); Adam Roberts, Failures in Protecting the Environment in the 1990–91 Gulf War, in The Gulf War 1990–91 in International and English Law 146 (P. Rowe ed., 1993); see also Thilo Marauhn, Environmental Damage in Times of Armed Conflict: Not “Really” a Matter of Criminal Responsibility?, 840 Int’l Rev. of the Red Cross 1029 (2000). 30. John Crook, Comparisons between the UNCC and Other Compensation Commissions, in Gibson & Feighery (note 1, supra); David J. Bederman, Historic Analogues of the UNCC, in The United Nations Compensation Commission (Richard B. Lillich ed., Transnational Publishers, Inc. 1995); see generally Pierre d’ Argent, Les réparations de guerre en droit international public : la responsabilité internationale des États à l’épreuve de la guerre (Bruylant; Paris: L.G.D.J. Bruxelles 2002). For a brief history and nice appreciation of claims commissions, including the UNCC, see Marc Henzelin, Veijo Heiskanen, & Antoine Romanetti, Reparations for Historical Wrongs: From Ad Hoc Mass Claims Programs to an International Framework Program?, Uluslararasi Suçlar ve Tarih 91–118 (2006). 31. UN Charter, art. 2(4); Veijo Heiskanen & Nicolas Leroux, Applicable Law: Jus ad Bellum, Jus in Bello and the Legacy of the UN Compensation Commission, in Gibson & Feighery. 32. Draft Articles on State Responsibility for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001), arts. 31, 34–36; Case Concerning the Factory at Chorzów (Germany v. Poland), Permanent Court of Int’l Justice Series A (No. 17) 47 (1928); Ian Brownlie, 1 System of the Law of Nations: State Responsibility 23 (1983). 33. S.C. Res. 687 (1991), paras. 4, 18, 19; Report of the Secretary-General, U.N. Doc. S22559, Part I (1991); Security Council Resolution 692 (1991) (“Decides to establish the Fund and Commission referred to in paragraph 18 of resolution 687 (1991) in accordance with Part I of the Secretary-General’s report. . . . taking into account the recommendations in section II of the Secretary-General’s report”).
[8]
Environmental Claims in Context
tic courts of the United States,34 while France provided a special mechanism for individuals.35 Iraq was the sole respondent. Claimants could be individuals, corporations, governments, or international organizations, although as a general rule, only governments and international organizations could submit claims directly to the UNCC.36 Governments therefore had to consolidate the claims of their nationals and residents according to categories established by Governing Council decisions, discussed further below. Unlike many other international adjudicatory institutions, the UNCC provided alternative means for claims to be submitted if submission by a government was not possible. Individuals could have an appropriate person, authority, or body appointed by the Governing Council to submit claims on their behalf.37 Thus, the UN Development Programme (UNDP), the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), and the UN High Commissioner for Refugees (UNHCR) submitted claims of certain refugees, stateless persons, and Palestinians.38 A corporation or other private legal entity could submit its claim directly, if its state of incorporation or organization had been requested but failed to submit the claims within the time limit established by the Governing Council.39 Iraq’s payment of awards was to be guaranteed by the sanctions program created in 1990, which restricted international trade in Iraq’s petroleum products.40 Iraq’s President Hussein initially refused to allow oil sales through the program, and it was
34. Gulf War Claims Reporter, US-4-9 (Arthur Rovine & Grant Hanessian eds., Washington, DC: International Law Institute 1997) (hereinafter, Rovine & Hanessian). 35. Id. F-3. 36. Governing Council Decision 10, S/AC.26/1992/10 ( June 26, 1992) (hereinafter, the Rules). 37. Art. 5(2), the Rules; Governing Council Decision 5, S/AC.26/1991/5 (Oct. 23, 1991). 38. First “A” Report, Annex (note 22, supra); Report and recommendations made by the Panel of Commissioners concerning the second instalment of claims for departure from Iraq or Kuwait (Category “A” Claims), U.N. Doc. S/AC.26/1995/2 (Mar. 22, 1995), Annex. 39. An example of this was the CRC-Evans Pipeline International, Inc. (claim No. 4002387), Report and recommendations made by the Panel of Commissioners concerning part two of the ninth instalment of “E1” claims, U.N. Doc. S/AC.26/2003/20 (Sept. 18, 2003), para. 3 (“Pursuant to paragraph 26 of Governing Council Decision 7 (S/AC.26/1991/7/Rev.1), one of the claimants in the ninth instalment filed its claim directly with the Commission.”). 40. Initially, 30 percent of Iraq’s oil revenues went to the UNCC Compensation Fund, until this was reduced to 25 percent through a political compromise. S.C. Res. 705 (Aug. 15, 1991), 30 I.L.M. 1715 (1991) (setting 30 percent level); International Claims Litigation II: A Case Study of the UNCC. 99th Proceedings of the American Society of International Law, 325, 334 (2005). United Nations Security Council Resolution 1483 (2003) reduced the percentage of Iraq’s oil revenues paid to the Compensation Fund from 25 percent to 5 percent, where it remains; it also established the Development Fund for Iraq (DFI), whose International Advisory and Monitoring Board assumed responsibility for the proceeds of petroleum sales and payments to the Compensation Fund. Report of the Secretary-General pursuant to paragraph 5 of Resolution 1859 (2008), S/2009/385 at paragraph 8. S.C. Res. 1905, S/RES/1905 (Dec. 21, 2009), para. 4. The Security Council decided that the DFI will terminate on June 30, 2011. S.C. Res. 1956, S/RES/1956 (Dec. 15, 2010), paras 1, 3.
E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[9]
not until 1996 that the mechanism to transfer funds from Iraq to the Compensation Fund was put in place.41 In the interim, the Commission relied on funds advanced by the Working Capital Fund of the United Nations, reimbursable voluntary contributions from governments, and Iraqi funds frozen during the conflict to operate and to begin to pay successful claimants.42 The limitation on Iraq’s contributions to the Compensation Fund to a maximum of 30 percent of the annual value of its oil revenues, although considered severe by many, nonetheless set a ceiling on Iraq’s liability and the concomitant impact of reparations on Iraq’s economy.43 Eventually money started flowing to the Compensation Fund, and the rising price of oil meant that all but nine claims were fully paid by 2010.44
III. INSTITUTIONAL STRUCTURE
The Commission’s design was adaptive to the changing nature of its docket. The UNCC was strongly influenced by its creators’ experience with the arbitral style of the Iran-U.S. Claims Tribunal (IUSCT).45 Thus, following the IUSCT’s example, UNCC Commissioners were directed to use UN Commission on International
41. S.C. Res. 986, S/RES/986 (April 14, 1995) (authorizing states to permit import of Iraqi petroleum and petroleum products up to a total of US$1 billion every ninety days; establishing escrow account; directing “661 Committee” to monitor; directing funds to be used for Iraq’s humanitarian needs, UNCC, and other purposes). 42. S.C. Res. 778, S/RES/778 (Oct. 2, 1992) (these funds were also used to supply the humanitarian needs of Iraq’s population); UNCC website at http://www.uncc.ch/introduc. htm; press release ( July 29, 2009), available at http://www.uncc.ch/pressrel/Press% 20release%20-%2029%20July%202009.pdf; Letter dated Sept. 21, 1992 from the President of the Governing Council of the United Nations Compensation Commission addressed to the President of the Security Council, S/24589 (Sept. 28, 1992), 31 ILM 1009 (1992). 43. Laurence Boisson de Chazournes & Danio Campanelli, The United Nations Compensation Commission: Time for an Assessment?, in Peace in Liberty: Festschrift for Michael Bothe 3, 16 (A. Fischer-Lescano, H.-P. Gasser, T. Marauhn, & N. Ronzitti eds., Nomos 2008); see also David D. Caron & Brian Morris, The UN Compensation Commission: Practical Justice, Not Retribution, 13 Eur. J. Int’l L. 183, 187 (2002) (hereinafter, Caron & Morris). 44. S.C. Res. 1956, S/RES/1956 (Dec. 21, 2010), paras 3–4, calls upon the government of Iraq to put measures in place by June 30, 2011 to finalize the full and effective transition to a post-Development Fund mechanism that will ensure that Iraq continues to provide 5 percent of all proceeds from export sales of petroleum, petroleum products, and natural gas to the Compensation Fund. Resolution 1905 also extends the mandate of the International Advisory and Monitoring Board (IAMB), an audit oversight body for the Development Fund for Iraq, which currently holds the proceeds of Iraq’s petroleum export sales and other Iraqi funds but which is to be replaced by an alternative arrangement see note 40, supra. 45. David Caron, Introduction, in Gibson & Feighery (note 1, supra) (hereinafter, Caron 2011). David D. Caron, The United Nations Compensation Commission for Claims Arising Out of the 1991 Gulf War: The “Arising Prior To” Decision, 14 J. Transnational Law & Policy 217, 225–26 (2005) (hereinafter, Caron 2005). Francis McGovern, Dispute System Design: The United Nations Compensation Commission, 14 Harv. Negot. L. Rev. 171, 176–77 (2009) (hereinafter, McGovern).
[ 10 ]
Environmental Claims in Context
Trade Law (UNCITRAL) Rules for guidance in making procedural rulings.46 At the same time, it was recognized that a more efficient approach than the IUSCT’s case-by-case review was needed to address the millions of individual claims, which led to the development of other models of mass claims and environmental claims resolution.47 The UNCC reviewed large numbers of low-value claims by a very different process than it used for the smaller numbers of high-value corporate, government, and environmental claims. Techniques varied accordingly, from statistical approaches for processing large batches of similar claims to oral proceedings and case-by-case analysis of oil sector and environmental claims. The Governing Council is composed of representatives of the fifteen Security Council members meeting several times each year. It has extensive powers to set Commission policy within the framework of Decision 687 (1991), and made the ultimate decisions on whether to approve awards of compensation.48 Commissioners appointed by the Council (upon nomination by the UN Secretary-General) were experts in relevant fields acting in their personal capacity and available on a part-time basis. They were able to provide knowledge and abilities relevant to the task at hand, whether that was overseeing innovative computer-based mass claims processing or undertaking judicial-like review of complex evidence and legal analysis.49 Their task was to “determine the admissibility, relevance, materiality and weight” of the evidence, applying Security Council Resolution 687 (1991), Governing Council decisions, and other relevant rules of international law.50 The Commissioners sat in panels of three; 19 panels of Commissioners eventually resolved 2,686,131 claims that had been allocated to 14 different categories. The Secretariat at first worked with the Governing Council to develop procedures and rules that were adopted as Governing Council decisions. As claims review got underway, the expanding Secretariat staff ’s responsibilities included preparing the cases submitted to the panels, providing the panels with advice on factual, technical, and legal issues and managing the Compensation Fund.51 It has ranged in size
46. Rules, art. 41. 47. See generally McGovern, (note 45, supra); John R. Crook, Lessons Learned over Twenty-Five Years, in International Mass Claims Processes: Legal and Practical Perspectives 42, 44 (Howard M. Holtzmann & Edda Kristjansdottir eds., Oxford, New York: Oxford University Press 2007) (hereinafter, Crook 2007); Matheson, n. 28 at 170. 48. S.C. Res. 692, S/RES/692 (May 20, 1991), para. 3; Report of the Secretary-General Pursuant to Paragraph 19 of Security Council Resolution 687 (1991), U.N. Doc. S/22559 (May 2, 1991), paras. 5, 10; Guidelines for the conduct of the work of the Governing Council of the United Nations Compensation Commission, S/22885 (Aug. 2, 1991), reprinted in 30 I.L.M. 1712 (1991). 49. Heiskanen (note 28, supra) 303. 50. Rules, arts. 31, 35(1). 51. See Caron 2005, (note 45, supra) at 226 (“although the Secretary General’s Report viewed the UNCC Secretariat as a support unit, in fact, the Secretariat became in some respects the most influential unit.”).
E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[ 11 ]
from an initial staff of three to over 300 full-time staff members at its peak period, to under ten in the post-claims review period. Secretariat staff were organized in a Claims Processing Division (comprising the Legal Services Branch, the Verification and Valuation Branch, and the Claims Registry), a Support Services Division (including the Claims Payment and Compensation Fund Administration, the Executive Office, and the Information Systems Section), and the Governing Council Secretariat.52 Highly specialized external expert advice was a feature of the Commission’s factfinding approach.53 Expertise was acquired as needed through contracts with individuals and consulting firms.54 The Commission was further assisted by international organizations that provided expertise and information. The UN Environment Programme was contracted by the UNCC to provide technical review of the implementation of the environmental monitoring and assessment award-funded projects.55 And, as mentioned above, UNDP and UNHCR provided assistance to claimants in filing their claims in situations where there was no government to fill that role.
IV. CLAIMS REVIEW
On the anniversary of the invasion, August 2, 1991, the Governing Council took its first formal decision, which established criteria for the expedited processing of urgent claims.56 Facing the prospect of an insufficient Compensation Fund and a vast number of potential claims, the Governing Council and Secretariat members identified criteria for different types of “direct loss” and prioritized the claims review work program to achieve a “fast but fair” result.57 (See Table 1.2.) Decision 1 made fixed amounts of US$2,500 available to any person who provided simple documentation that he or she, as a result of Iraq’s invasion and occupation of Kuwait: (a) departed from Iraq or Kuwait during the period of August 2, 1990, to March 2, 1991;
52. Heiskanen, (note 28, supra) at 273; UN Office of Legal Counsel, Opinion concerning the proper scope of OIOS audit of the UNCC (Nov. 27, 2002), http://www2.unog.ch/uncc/ auditdocs/opinion.pdf (hereinafter, Legal Counsel Opinion); McGovern (note 45, supra) 172. 53. Rules, art. 36. 54. In this volume, Klee, Chapter 2, I.D., II.C; Huguenin, Chapter 3; Report and recommendations made by the Panel of Commissioners concerning the fifth instalment of “F4” claims, U.N. Doc. S/AC.26/2005/10 ( June 30, 2005), para. 88 (hereinafter, Fifth “F4” Report). 55. In this volume, Klee, Chapter 2, II.D. Payne, Chapter 5, at notes 40–46; and Sand, Chapter 7, at notes 79–80. 56. Governing Council Decision 1, S/AC.26/1991/1 (Aug. 2, 1991). 57. Caron 2011 (note 45, supra).
[ 12 ]
Environmental Claims in Context
Table 1.2. Reports Approved, by Claims Category and Year 1994 A B C D E F F4
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
(b) suffered serious personal injury (such as dismemberment, significant disfigurement, or injury from sexual assault or torture); or (c) whose spouse, child, or parent died. These were the A and B category claims. Individuals able to provide “appropriate evidence” to document the circumstances and amount of their loss due to death or personal injury, or losses of income, support, housing, or personal property, or medical expenses or costs of departure, could claim the actual amount of their loss up to US$100,000 in C category.58 Attorneys’ and other claim preparation fees and losses due to the UN-imposed embargo were excluded from compensation throughout the UNCC program. Iraqi nationals, unless they had bona fide dual-nationality, were not eligible for compensation. Governing Council Decision 1 and Decision 7, for additional categories of losses, provided the specificity needed to operationalize the very broad liability language of Resolution 687 (1991) into workable guidance for individual, corporate, and government claimants.59 Individual claims were prioritized, corporate claims were to be taken next, and government claims were deferred to the end of the work program. If the Compensation Fund ran short, government claims would go unpaid. The costs of responding to the oil well fires were allocated to the corporate oil sector category, E, while the cost of restoring the environment damaged by the fires and oil spills was placed in the government category, F, and deferred to the very end of the work program.60 The urgent humanitarian claims were the first and highest priority, but they also posed the most challenging technical problem: how could a million claims be reviewed and adjudicated in a meaningful time frame and at an affordable cost, even with the reduced evidentiary burden required for the A and B claims? As an indication of the burden that detailed review would place on the UNCC, Iraq, and the claimants, Francis McGovern calculated that, if the supplemental information filed with C claims in 43 different languages were translated and the file reviewed by a lawyer, it would take over eight years for a staff of 200 at a cost of at least US$1 million.61 The solution was to adapt mass claims techniques developed in other contexts, which would trade some element of error to achieve greater efficiency and speed.62
58. Decision 1, para. 14. 59. Governing Council Decision 7, S/AC.26/1991/7/Rev.1 (Mar. 17, 1991). The compilation of UNCC documents in 31 I.L.M. 1009 (1992), note 2, includes an annex listing the working papers (though not the papers themselves) prepared by the Secretariat and Governing Council members in these early years. 60. The panel report for this claim explains this allocation as based on the nature of the claimant; cf. claims of similar entities, such as Saudi Aramco, which were reviewed in the F category. 61. Francis E. McGovern, The Intellectual Heritage of Claims Processing at the United Nations Compensation Commission, in Lillich (note 29, supra) 188. 62. Caron & Morris (note 43, supra).
[ 14 ]
Environmental Claims in Context
Fortunately, by 1991 computer technology had become sufficiently powerful and accessible that the Commission was able to design A category claims forms that all claimant governments would be required to file electronically. The process required the government to collect paper forms and simple evidence for these claims for losses resulting from departure from Iraq or Kuwait, such as an airplane ticket, from individual claimants; then to enter data from the forms into templates provided by the UNCC; and finally, to submit the data to the UNCC on computer disks.63 Using computerized matching, these data were then compared against those in a database created by the UNCC. The UNCC database included inter alia a register of foreign nationals present in Iraq at the time of the occupation, flight manifests, and international organizations’ records.64 The A Panel reported that “[b]y 15 September 1994, over 900,000 category A claims had been filed with the Commission.”65 These claimants received fixed payments of between US$2,500 and US$8,000 each. The sampling approach developed for the A claims was adapted to nearly 6,000 category B claims for serious personal injury or death seeking over US$20 million in total. Individual claimants were eligible to receive awards of US$2,500 to US$10,000.66 Category B claims had to demonstrate a direct causal link with Iraq’s actions, although only limited evidence, such as identity papers, a claimant statement, a witness statement, or medical report, was required.67 The B Panel of Commissioners asked the Secretariat to group the claims on the basis of factual and legal issues, and to present sample claims representing a group to the Panel. The Secretariat then reviewed other claims in the group for the elements identified by the Panel as necessary for an award. For some claims in this category, the B Commissioners recommended awards based on case-by-case review. Statistical analysis and sampling were also used to review 1.7 million category C claims (claims of individuals under $100,000).68
63. Iñigo Salvador, Claims of Individuals: A Claims, in Gibson & Feighery (note 1, supra). First “A” report, at 7 (“In anticipation of the high number of [departure] claims, the secretariat designed and distributed along with Claim Form ‘A’ a computer software, the “‘A’ Claim Form Data Capture System.” In accordance with [the Rules] category ‘A’ claims had to be submitted in the computer format distributed by the secretariat.”). Mojtaba Kazazi, An Overview of Evidence before the United Nations Compensation Commission, 1 Int’l L. Forum 219, 223 (1999) (hereinafter, Kazazi). 64. Heiskanen (note 28, supra) at 299, Kazazi (note 63, supra) at 223. 65. Id. at 8. See also Letter dated September 21, 1992 from the President of the Governing Council of the United Nations Compensation Commission addressed to the President of the Security Council, S/24589 (Sept. 28, 1992), 31 ILM 1018, 1019 (1992). 66. Report and 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 (May 26, 1994), at 10. 67. Id., at 30. 68. Rules, art. 37(b); Rovine & Hanessian (note 34), IC-40-41.
E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[ 15 ]
The Egyptian Workers’ Claim was an anomaly in category C, worth mentioning here because it represents nearly half of the claims reviewed by the UNCC and because special additional procedural measures were provided to Iraq and the claimant government. The 1.24 million claims consolidated in the Egyptian Workers’ Claim seeking US$491 million presented a unique problem that transcended the practices that had been established for other category C claims. Egypt and Iraq had an intergovernmental agreement whereby a portion of the wages of Egyptians working in Iraq could be deposited in Iraqi banks and transferred to beneficiaries in Egypt.69 The panel determined that Iraq had not transferred the remittances, in retaliation for Egypt’s role in the coalition against Iraq. Therefore, deposits made on or after July 2, 1990, were within the jurisdiction of the Commission, and were a direct loss under Resolution 687.70 For the review of this claim, Egypt and Iraq filed briefs and other documents. The Panel directed that these submissions and others should be transmitted to both governments and conducted an oral hearing.71 The panel reviewing 11,915 D category claims (claims of individuals over US$100,000) seeking over US$16 billion continued to use some techniques borrowed from C category. Like the C category, D category claims covered losses as varied as mental pain and anguish claims and loss of bank accounts. Methodologies were developed in the “precedent” phase to standardize compensation for certain common loss types, such as personal property and business losses.72 In the “application” phase, the Secretariat applied the precedents established by the methodology to each claim, and the Panel verified that its precedents were properly applied. This category was the first to face claims for nonpecuniary losses that had to be valued individually, as compared to the fixed payments for category B. The Governing Council dealt with this by setting ceilings on compensation for mental pain and anguish, for example, a maximum award of US$5,000 (per incident) for a person who was sexually assaulted or US$15,000 for the death of a spouse.73 This brief summary of the mass claims program belies the complexity of implementation.74 One of the surprises was that, as computer technology improved, the
69. Final report and recommendations of the Panel of Commissioners concerning the Egyptian Workers’ claims, S/AC.26/1997/3 (Oct. 2, 1997), para. 2. The program was instituted because Iraqi dinars had no value in Egypt, according to Rovine & Hanessian (note 34), IC-2. 70. Rovine & Hanessian (note 34, supra), IC-3 (referring to the panel’s report on the Jurisdictional Phase, S/AC.26/1995/R.20 Rev.1). 71. Id., paras. 7, 16–17; Heiskanen (note 34, supra) 298. 72. Report and recommendations made by the Panel of Commissioners concerning the first instalment of individual claims for damages above US$100,000 (category “D” claims), S/AC.26/1998/15, (Dec. 17, 1998), paras. 42, 85–102. 73. Decision 8, S/AC.26/1992/8 (1992). 74. Christopher S. Gibson, Understanding Technology in Mass Claims, in Gibson & Feighery (note 1, supra); Christopher S. Gibson, Mass Claims Processing, and Francis E. McGovern, The Intellectual Heritage of Claims Processing at the United Nations Compensation Commission, in The United Nations Compensation Commission (Richard B. Lillich ed., Transnational Publishers, Inc. 1995).
[ 16 ]
Environmental Claims in Context
degree of accuracy that was possible in identifying duplicate claims also increased, so that the UNCC was in the unenviable position of asking governments to return award funds to the Compensation Fund.75 The commencement of corporate (category E) claims review in 1995 marked a shift in UNCC procedures toward individualized case review, the use of oral proceedings and more extensive discovery and briefing.76 Government claims (category F) also used these procedures, with the environmental claims (subcategory F4) using oral proceedings for all claims, reviewing each claim individually, conducting site visits by the Panel, Secretariat, and outside expert consultants, and inviting responses from Iraq on the claimants’ written and oral presentations.77 Claims in E and F categories had to be “supported by documentary and other appropriate evidence sufficient to demonstrate the circumstances and amount of the claimed loss,” a more rigorous standard of evidence than required for the urgent humanitarian claims.78 The corporate category was initiated with the oil sector claims. The first of these to be reviewed was the Well Blowout Control (WBC) claim, seeking US$951,630,871 for the cost of putting out the oil well fires, sealing the wells, and repairing the oil fields in Kuwait;79 followed by claims for loss of sales and production, crude oil and gas stolen and/or lost due to the well blow-outs, well fires and oil spills, looting, and additional reconstruction costs.80 In consideration of the importance of the WBC
75. See text at note 99 below on claim corrections. The U.S. Government Accountability Office reported that “[o]f the 3,126 U.S. claimants receiving UNCC awards, 29 have not been located. The United States has returned about $100,000 to UNCC” in its report, United Nations Lessons Learned from Oil for Food Program Indicate the Need to Strengthen UN Internal Controls and Oversight Activities, GAO-06-330 Oil for Food, 30–35 (April 2006). 76. Although critics of the UNCC argued that Iraq was not afforded the due process required by international law, cf. John P. Gaffney, Due Process in the United Nations Compensation Commission, 15 Mealey’s Int’l Arb. Rep. 13 (2000) and Michael E. Schneider, How Fair and Efficient Is the United Nations Compensation Commission System?, 15 J. Int’l Arb. 15–26 (1998); Elyse J. Garmise, The Iraqi Claims Process and the Ghost of Versailles, 67 NYU L. Rev. 840 (1992), panels exercised their discretion and the provisions in the Rules to provide more procedural access to Iraq for the “unusually large or complex cases.” At the same time, political pressure was influencing the Governing Council to create a larger “participative space” for Iraq, Lalanath de Silva, Additional Perspectives on the UNCC and Cymie R. Payne, Legal Liability for Environmental Damage: The United Nations Compensation Commission and the 1990-1991 Gulf War, in Governance, Natural Resources, and Post-Conflict Peacebuilding (C. Bruch, C. Muffett, & S.S. Nichols eds., Earthscan, London forthcoming 2011). 77. See, e.g., Fifth “F4” Report (note 54, supra) at paras. 9–20; See also Michael Schneider, The Role of Iraq in the UNCC Process, Chapter 7 in Gibson & Feighery (note 1, supra). 78. Rules, art. 35. 79. Executive Summary of the Report and Recommendations made by the Panel of Commissioners Appointed to Review the Well Blowout Control Claim (the “WBC Claim”), U.N. Doc. S/AC.26/1996/5 (Dec. 18, 1996); Governing Council Decision 7, S/AC.25/1991/7/Rev.1 (Nov. 28, 1991, as revised Mar. 17, 1992), para. 16. 80. Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of “E1” Claims, UN Doc. S/AC.26/2000/16 (Sept. 29, 2000). There was at least one claim element seeking compensation for the “one part of a cargo of sulphur that KPC had sold E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[ 17 ]
claim, Iraq was provided with the claim files and Kuwait’s responses to lengthy interrogatories posed by the Secretariat, for its review and comment; and oral proceedings were held.81 Iraq requested additional time for its response, a delay in the oral proceedings, and access to the Compensation Fund to finance legal and other expenses of its defense; these requests were denied.82 They would be repeated, with greater success, during the environmental claims review. Other corporate claims sought compensation for construction and other contract losses; losses from the nonpayment for goods or services; losses relating to the destruction or seizure of business assets; and loss of profits.83 The industries affected were primarily agriculture, banking, construction, engineering, finance, import/ export, manufacturing, military supply industries, professional services, telecommunications, tourism, and transport.84 About half of the 6,571 corporate claims were submitted by non-Kuwaiti enterprises. The five E category panels developed procedures, legal analysis, valuation, and verification techniques, moving through a substantial and varied docket between the appointment of the first E Panel in March 1995 and Governing Council approval of the last E report in March 2005. All UNCC panels included at least one lawyer, and often more. In the E category, accountants, loss adjusters, and asset valuation experts also had a significant role, participating as Commissioners, Secretariat members, and outside consultants.85 The methodology approach used for the D category was used to a more limited degree for E claims, as a useful tool to achieve consistency and efficiency.86 In the government (F) category, 515 claims were resolved. They were submitted by 43 governments and 6 international organizations for losses incurred in evacuating citizens; providing relief to citizens; damage to diplomatic premises and loss of, and damage to, other government property; and damage to the environment.87
to Moroccan buyers [that] was seized by the Iraqi military during the invasion.” Id., para. 310. See Bruch & Fishman, Chapter 9, in this volume, text at notes 21–22. 81. Report and Recommendations made by the Panel of Commissioners Appointed to Review the Well Blowout Control Claim (the “WBC Claim”), U.N. Doc. S/AC.26/1996/5/Annex (Dec. 18, 1996), paras. 11, 13. 82. Id., paras. 12, 14, 18, 21; see Rovine & Hanessian (note 34), IE-8. 83. Timothy Feighery, Overview of Claims of Corporations and Governments, in Gibson & Feighery (note 1, supra). 84. Michael Mucchetti, Claims of Kuwaiti Corporations; Ucheora Onwuamaegbu, Claims of Non-Kuwaiti Corporations; and John Tackaberry & Trevor Rajah, Construction/Engineering Claims, in Gibson & Feighery (note 1, supra). See Ramanand Mundkur, Michael J. Mucchetti, & D. Craig Christensen, The Intersection of International Accounting Practices and International Law: The Review of Kuwaiti Corporate Claims at the United Nations Compensation Commission, 16 A.U. Int’l L. Rev. 1195–1239 (2001). 85. Kazazi (note 63, supra) 224. 86. Heiskanen (note 28, supra) 380. 87. Robert C. O’Brien, Precedential Claims by Governments for Damage to Diplomatic Property and Related Losses, and Caroline Nicholas, Kuwait Future Generations Fund, both in Gibson & Feighery (note 1, supra).
[ 18 ]
Environmental Claims in Context
The most substantial and varied of these were Kuwait’s claims, covering damage, loss of property, and relief provided to the Kuwaiti population. The Kuwaiti Investment Authority sought nearly US$87 billion for the “Future Generations Fund,” a repository for a share of Kuwait’s oil wealth. The claim was for loss of investment income due to early forced liquidation; it was awarded only US$1.5 billion, on the basis that the majority of the losses were outside UNCC jurisdiction or were not compensable.88 The environmental claims, brought by governments, were included in the F category in subcategory F4. As the “last-born” of the UNCC panels, appointed in 1998,89 the F4 Panel was able to build on a substantial body of authoritative basic rules and decision-making laid down by the Governing Council during its first years of operations. It has been noted that panels, as a rule, referenced Governing Council decisions and did not cite to general international law; this is explained as a “tendency to rest a decision on the narrowest ground available” and “to indicate to the Governing Council that there was nothing in the Panel’s reasoning that went outside of what the Governing Council had already considered.”90 The F4 Panel benefited from the accumulated experience and jurisprudence of the earlier panels, both in terms of procedural know-how and with regard to a number of findings of substance to which it could refer as precedents.91 Review of the high-value claims in categories D, E, and F went through a somewhat different process from the claims of individuals in categories A, B, and C. (See Table 1.3.) The Secretariat provided a preliminary review to ensure that the claims met the Governing Council’s formal requirements.92 Claimants were notified by the Secretariat of any deficiency and given an opportunity to remedy the defect within sixty days.93 This was considered an important part of the process for keeping the
88. Report and recommendations made by the Panel of Commissioners concerning part three of the third instalment of “F3” claims, UN Doc. S/AC.26/2003/15 ( June 26, 2003); Timothy Feighery, The Impact on the Economic and Social Fabric: Assessing the Costs of Iraq’s 1990 Invasion and Occupation of Kuwait—The United Nations Compensation Commission, 22 Refugee Surv. Q. 87, 103–04 (2003); John Crook, The United Nations Compensation Commission: What Now?, 5 Int’l L.F. D. Int’l 278, 279 (2003). 89. In this volume, Klee, Chapter 2, at note 13. 90. Caron 2005 (note 45, supra) 241–41; Allen, Chapter 6, in this volume, at section I. 91. E.g., regarding the compensability of remedial activities by military personnel, Report and recommendations made by the Panel of Commissioners concerning the second instalment of “F4” claims, UN Doc. S/AC.26/2002/26 (Oct. 3, 2002) para. 29; extraordinary salary expenses, id., para. 30; damage occurring outside Kuwait or Iraq, id., para. 31 and Report and recommendations made by the Panel of Commissioners concerning part one of the fourth instalment of “F4” claims, UN Doc. S/AC.26/2004/16 (Dec. 9, 2004), paras. 37 and 266; expenses for ordnance disposal, Second “F4” Report, para. 98; accounting for recovered crude oil, id., para. 122; causality of the influx of refugees, Fourth “F4” Report, part 1, para. 108; Fifth “F4” Report (note 54, supra), para. 314; intervening acts breaking the chain of causation, Fourth “F4” Report, part 1, para. 47. See generally Klee, Chapter 2 and Payne, Guide for Researchers in this volume. 92. Rules, art. 14. 93. Id., art. 15.
E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[ 19 ]
Table 1.3. UNCC CLAIMS: ENVIRONMENT AND OTHER CATEGORIES Compensation Compensation Net sought by awarded compensation claims resolved (US$) paid (US$) (US$)
Category
Number of Number of claims resolved resolved claims awarded compensation
Individuals
2,679,044
1,539,229
31,518,571,700
11,697,746,773
11,657,370,835
6,571
4,048
78,736,378,996
26,297,554,052
8,065,154,490
348
233
157,373,644,138
9,126,309,440
6,603,917,796
168
109
84,904,244,069 5,261,746,450
4,976,737,454
Resources (F4) Total 2,686,131
1,543,619
352,532,838,903 52,383,356,715
31,303,180,576
(A, B, C, D) Corporations (E) Governments, International Organizations: NonEnvironmental (F1-3) Governments: Environment and Natural
Source: UNCC website, Status of Processing and Payment of Claims (updated January 27, 2011) (explanatory notes available on website)
review schedule on track, as it allowed the Secretariat to identify and seek additional information that the panels would need to review the claims.94 The Secretariat’s environmental team built on colleagues’ practices to, inter alia, prepare the preliminary review of the claims for the F4 Panel, undertake missions to inspect claimed damage, retain expert consultants, manage communications with Iraq and with claimants, present reports and provide other information to the Governing Council, and implement internal controls to ensure the accuracy and integrity of the review process. Teams in different categories worked together for consistency in legal analysis and procedural methods. Many of these practices were formalized in the Standard Operating Procedures. The very brief reference in Article 34 of the Rules, that “the Executive Secretary and the staff of the secretariat will provide . . . assistance in obtaining additional information” proved a very helpful procedural tool. The nonadversarial nature of the claims process gave extra value to the proactive approach of many panels and
94. Heiskanen (note 28, supra) 294–95. The environmental claims were given a preliminary review, but were for the most part subsequently refiled, so this step in the process was less helpful to the F4 category.
[ 20 ]
Environmental Claims in Context
Secretariat teams in seeking information from claimants and other sources. “Article 34 notifications” were regularly used to request documents and responses to interrogatory questions during the period when the Secretariat was preparing claim files for panel review. A report from the UNCC Executive Secretary to the Governing Council (Article 16 report),95 generally issued on a quarterly basis, provided Iraq and all claimant governments with information about the number and nationality of claimants, the amount of compensation sought, and significant legal and factual issues raised by claims. Iraq and other governments were invited to provide views and additional information to the Executive Secretary.96 All such information received was then considered by the Commissioners during the review of the claims.97 The Article 16 reports provided a useful opportunity to solicit information from governments that were not directly involved in a particular claim.98 They also provided Iraq with a means to comment on claims that was not otherwise available in some claims categories.
V. AWARD CORRECTIONS AND AUDITS
All compensation awards recommended by UNCC panels were subject to approval by the Governing Council, which under Article 40 of the Rules for Claims Procedures had discretion to review and amend the amounts (although all recommendations by the panels were endorsed by the Council without amendments). In line with the overall policy goal of expediting the compensation process to the extent possible, Article 40(4) of the Rules provided that “decisions of the Governing Council will be final and are not subject to appeal or review on procedural, substantive or other grounds.” Still, in UNCC practice that rule was qualified by two procedural safeguards: (a) the correction procedure of Article 41; and (b) the internal auditing procedure of the United Nations. Pursuant to Article 41 of the Rules, “computational, clerical, typographical or other errors” in awards could be corrected by decision of the Governing Council. While (not surprisingly perhaps) some claimants tried to avail themselves of this
95. Rules, art. 16. 96. Heiskanen (note 28, supra) at 295 (“in practice the bulk reporting of legal and factual issues through the Article 16 reports, and the opportunity provided under Article 16 for Iraq to present its ‘additional information and views’ on the legal and factual issues raised by the claims, has become the principal avenue for the Government of Iraq to participate in the UNCC proceedings.”). 97. See, e.g., Third “F4” Report (note18, supra), para. 55. 98. An example of U.S. comments in response to an Article 16 report is reprinted in Rovine & Hanessian (note 34, supra), US-49-102; along with a summary of the Article 16 report that the U.S. government provided to U.S. claimants, US-175-80; and the U.S. claimant comments in response to the summary, US-103-74.
E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[ 21 ]
correction mechanism to seek review of an unfavorable decision, the Governing Council was careful not to allow substantive revisions of claims under the guise of Article 41. The UNCC corrected overpayments in light of new information, especially with regard to discovery of duplications between different claims and different claim categories. From 1997 to 2007, the Governing Council thus issued a total of 38 “Article 41 reports,” which resulted in overall reductions of compensation awards by US$24.7 million.99 (See Table 1.4.) As might be expected, the corrected claims were concentrated in the high-volume/low-value categories. There were no postaward duplications reported in the case of the environmental claims, partly because of the thorough cross-claim and cross-category checks undertaken by the Secretariat prior to the finalization of each instalment report.100 Another avenue for “second-guessing the claims process” evolved as a result of the internal UN audit mechanism introduced in 1994, when the General Assembly (by Resolution 48/218/B) established the Office of Internal Oversight Services (OIOS),101 with a mandate to “examine, review and appraise the use of the financial resources of the United Nations.” OIOS conducted internal audits of the UNCC beginning in 1997 and extended its review to UNCC compensation awards,102 notwithstanding the fact that the funds concerned were not UN resources and that OIOS did not have the authority or expertise to review the panels’ decisions. In 2002, the UN Legal Counsel confirmed that “it would not be proper for OIOS to
99. See the tables in Annexes I–II of the 38th Report pursuant to Article 41, S/AC.26/2007/2 ( June 22, 2007). 100. See, e.g., Fifth “F4” Report (note 54, supra) at paras. 97, 235 and 499. See also Decision 13, Further Measures to Avoid Multiple Recovery of Compensation by Claimants, S/AC.26/1992/13 (Sept. 25, 1992). 101. See Ronald J. Bettauer, Policy Issues Surrounding the Creation and Operations of the UNCC, in Gibson & Feighery (note 1, supra). 102. Comparison of the UNCC and Oil-for-Food Program shows that even though “the complexity of the issues and the amounts of money transferred in the UNCC operation were roughly of the same magnitude as the Oil-for-Food program, [t]he UNCC administered the operation without any significant suggestion of corruption, diversion of funds, political influence, or improper standards, and did so precisely through the means identified. . . as necessary for such efforts: a clear chain of responsibility from the Security Council to a Governing Council to the UNCC administrators; a large and capable body of legal, financial, and other experts; regular procedures for the impartial and judicious examination of evidence; accountability; and independence from undue political influence. . . The record of the UNCC demonstrates that effective administration of large-scale legal-regulatory operations is possible within the UN system if those operations are properly structured and staffed. The failures in administering the Oil-for-Food program need not be repeated in all future UN programs. Everything depends on political will, intelligent structuring, and adequate resources.” Michael J. Matheson, Book review: The International Struggle over Iraq: Politics in the UN Security Council, 1980– 2005, 102 AJIL 687 (2008). See also GAO-06-330 Oil for Food (note 75, supra) 30–35 and on the outcome of the Volcker Committee’s Independent Inquiry into the United Nations Oilfor-Food Programme, see their Report on the Manipulation of the Oil-for-Food Programme (Oct. 27, 2005).
[ 22 ]
Environmental Claims in Context
Table 1.4. ARTICLE 41 CORRECTIONS TO CLAIMS AWARDS AS OF 2007 Category Number of Number of Corrected Amount Claims Claims Claims as % Awarded Resolved Corrected of Number of Claims Resolved
Net Correction
Correction as % of Award
($81,704,500) −2.59% ($85,000) −0.63%
A
923,158
52,729
5.71%
$3,149,692,000
B
5,734
18
0.31%
$13,435,000
C D
1,738,237 11,915
38,599 540
2.22% 4.53%
$5,185,716,912 $3,348,902,861
E F
6,571 516
14 2
0.21% 0.39%
$26,297,554,052 $14,388,055,890
2,686,131
91,902
3.42%
$52,383,356,715 ($222,477,772) −0.04%
Total
$69,719,020 1.34% ($9,615,350) −0.29% $1,990,058 0.01% ($2,552,000) −0.02%
Source: Thirty-eighth report of the Executive Secretary pursuant to Article 41 of the provisional rules for claims procedure, S/AC.26/2007/2, (22 June 2007), Annex II; U.N. Comp. Comm’n, Status of Claims Processing, at www2.unog.ch/ uncc/status.htm.
review those aspects of the work of panels which are constituent elements of a legal process.”103 Nevertheless, OIOS continued its audits of the entire UNCC claims process on the basis of two subsequent UN General Assembly resolutions.104 While accepting the audit of its internal management and computation practices, the UNCC objected to a number of conclusions of the final OIOS report in 2005 with regard to the F4 Panel’s compensation awards, including what it considered erroneous criticism of some F4 awards for public health monitoring.105 Although the controversy appears to have been settled by parallel statements of OIOS and UNCC in 2008, confirming that, in fact, the UNCC was in full compliance with all OIOS recommendations,106 it illustrates some of the difficulties for a “quasi-judicial” institution to maintain the precarious balance between efficiency and legitimacy.
103. UN Office of Legal Affairs, Opinion concerning the proper scope of OIOS audit of the UNCC (Nov. 27, 2002), http://www2.unog.ch/uncc/auditdocs/opinion.pdf; see Bettauer (note 101, supra), Klee, Chapter 2, in this volume, text at notes 68-69, and Sand, Chapter 7, in this volume, text at note 31. 104. UN General Assembly resolutions 59/270 and 59/271 (23 December 2004). 105. OIOS Audit Report No. AF2005/820/01 ( June 8, 2005), paras. 84–87; UNCC Secretariat, Memorandum to OIOS of June 22, 2005 (UN/EXE/1236/2005); and Sand, Chapter 7, in this volume, note 31. 106. See Bettauer (note 101, supra), text at notes 31–34. Note also, that the GAO report clarified that “UNCC is not part of the Oil for Food program and. . . it is a separate entity funded by Iraqi oil revenues.” GAO-06-330 Oil for Food (note 75) at 37. OIOS continues to audit UNCC and reports that “results of the ongoing audit for the period from July 2009 to May 2010 (AE2010/820/01) confirm that the Commission had adequate control mechanisms to ensure that award and payment records as well as reports were accurate, properly documented and compliant with Governing Council decisions and the Financial Regulations and Rules of
E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[ 23 ]
VI. OVERVIEW
The chapters which follow focus on the experience of the UNCC’s F4 Panel, Secretariat team, and expert consultants from the perspective of different participants and observers, representing the broad spectrum of the “epistemic community”107 concerned with restoring the environment of the Gulf region after the 1990–1991 conflict. In Part I (Claims Preparation and Review), Julia Klee—formerly manager of environmental claims program—describes the process of fact-finding and decisionmaking, from the establishment of the Panel to the adoption of its reports by the Governing Council. Michael T. Huguenin, Michael C. Donlan, Alexandra E. van Geel, and Robert W. Paterson—partners and associates in the principal consultant firm, which provided scientific and technical expertise to the Panel—outline the techniques of environmental damage assessment and valuation used. Larraine Wilde— who led the team of Iraq’s technical consultants in the UNCC proceedings—reflects on her experience of the challenges faced by Iraq in responding to the F4 claims. Former UNCC legal officer and F4 team leader Cymie R. Payne reports on progress in the ongoing UNCC oversight programs set up at the initiative of the Panel, Iraq, and claimant governments. In Part II ( Jurisprudence and Policy Issues), the two lawyers who—together with the chairman, Judge Thomas A. Mensah—served as Commissioners on the F4 Panel synthesize the points of law (José R. Allen) and environmental principles (Peter H. Sand) applied by the Panel, followed by an analysis of the distinct claims for public health costs, with the collaboration of James K. Hammitt (who had served as consultant on health risks to Kuwait as the primary claimant). In Part III (Looking to the Future), several external observers evaluate the wider impacts of the UNCC and F4 experience: Carl Bruch and Akiva Fishman place the Panel’s findings in the context of post-conflict international peacebuilding; Daniel A. Farber considers potential lessons for climate compensation; and Robert Costanza considers future implications of the F4 Panel’s work on liability for environmental damage from the perspectives of ecological economics and sustainable governance. In conclusion, David D. Caron analyzes the fundamentally unique nature of environmental claims, in both conflict and peacetime disaster situations like the
the United Nations.” Office of Internal Oversight Services, Activities of the Office of Internal Oversight Services for the period from 1 July 2009 to 30 June 2010, A/65/271 (Part I) (Aug. 9, 2010) para. 71. 107. Term coined by John G. Ruggie, International Responses to Technology: Concepts and Trends, 29 Int’l Organization 557, 570 (1975); see Peter M. Haas, Epistemic Communities and the Dynamics of International Environmental Cooperation, in Regime Theory and International Relations 168 (Volker Rittberger et al. eds., Oxford University Press 1993).
[ 24 ]
Environmental Claims in Context
recent Deepwater Horizon oil well blowout, and offers six lessons for future claims commissions. Finally, Cymie R. Payne, in a researcher’s guide to the available UNCC documentation, provides specific information on how to access the primary F4 Panel reports and the archiving practice adopted for the related original claim materials.
E N V I R O N M E N TA L C L A I M S I N C O N T E X T
[ 25 ]
This page intentionally left blank
PA RT O N E
Claims Preparation and Review
This page intentionally left blank
C HA P TER 2
The Process JULI A KLEE *
INTRODUCTION
M
assive oil losses and spills, fires that blackened skies and affected soils, troop and people movements that damaged deserts, water supplies, and rangelands—how to analyze and quantify the “environmental damage and the depletion of natural resources”1 of such assaults stemming from Iraq’s 1990–1991 invasion and occupation of Kuwait? With no guiding precedents, the UN Compensation Commission (the UNCC, or the Commission) analyzed which claims deserved compensation and how much to award for compensation. In order to complete this work, the UNCC’s procedures had to remain flexible to meet the differing challenges that arose along the way. This need to innovate and adapt existed from the beginning to the very end of the review process. These introductory paragraphs try to capture the circumstances and context that existed when the UNCC turned its full attention to the task of reviewing the environmental claims. The sections that follow summarize the main challenges that
* The author managed the UNCC Secretariat’s work on the environmental claims. She wishes to acknowledge and thank the following individuals for their helpful reviews and thoughtful comments on drafts of this chapter: Thomas A. Mensah, Ronald Hausmann, Michael Huguenin, and Cymie Payne; the views and opinions expressed in the chapter are her own. 1. S.C. Res. 687, 46 U.N. SCOR, at 200, U.N. doc. S/RES/687 (Apr. 8, 1991), reprinted in 30 I.L.M. 846 (1991); the term “environmental damage” as used in this chapter includes both environmental damage and depletion of natural resources; similarly, the term “environmental claims” includes claims both for environmental damage and claims for depletion of natural resources; further, the scope of “environmental damage” is broad and encompasses human health and cultural heritage issues. See chapters 3, 6, 8 and Table 2 of Guidance for Researchers in this volume for a discussion of the types of environmental damage considered by the UNCC.
were faced in this process, including the initial challenges presented; how the process was moved forward; and how it was refined. In some cases, alternative approaches that were considered but not pursued are noted. The chapter concludes with some of the author’s personal views on designing future systems for the review of such claims. The reader is referred to the companion volume of this book for a full description of the structure of the UNCC, its basic approach to claims review, its procedures, and the parties involved in filing and reviewing of claims.2 Key points highlighted here are crucial to understanding what follows. The UN Security Council addressed Iraq’s legal responsibility for losses resulting from Iraq’s invasion and occupation of Kuwait in its Resolution 687 adopted on April 3, 1991.3 The resolution reaffirmed that Iraq was liable for “any direct loss, damage, including environmental damage and the depletion of natural resources,” as a result of the invasion and occupation. The UNCC was established4 to process claims and pay compensation for losses and damages resulting from the invasion and occupation. Three major bodies constituted the Commission. The Governing Council (the Council) served both as the policy-making body and as the final decision-making body. The Governing Council’s composition, at any one time, mirrored the membership of the Security Council and thus changed along with the changes in Security Council membership. The panels of Commissioners, usually with three Commissioners on each panel, were composed of prominent lawyers and other professionals appointed by the Governing Council to verify and evaluate claims, assess the value of the losses, and, where applicable, to recommend amounts for compensation to the Council. In total, nineteen separate panels worked on various groups of claims. The UNCC had a large Secretariat that supported both the Governing Council and the panels. An Executive Secretary headed the Secretariat which included almost 300 individuals at the peak level. In a report submitted pursuant to Security Council Resolution 687 (1991),5 the UN Secretary General recommended that the Commission should not be a court or an arbitral tribunal. Rather, it should be a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating
2. Gulf War Reparations and the UN Compensation: Designing Compensation After Conflict Commission (C. Gibson and T. Feighery eds., Oxford University Press, Oxford 2011); see also Payne, Chapter 1, in this volume; and Veijo Heiskanen, The United Nations Compensation Commission, 296 Recueil des Cours: Collected Courses of The Hague Academy of International Law 259–397 (2002). 3. S.C. Res. 687 (1991), para. 16. 4. S.C. Res. 692, 46 U.N. SCOR, U.N. Doc. S/RES/692 (May 20, 1991), reprinted in 30 I.L.M. 864 (1991). 5. Report of the Secretary-General Pursuant to Paragraph 19 of Security Council Resolution 687 (1991), U.N. Doc. S/22559 (May 2, 1991).
[ 30 ]
Claims Preparation and Review
losses, assessing payments, and resolving disputed claims.6 The Governing Council approved Provisional Rules for Claims Procedure (the Rules),7 which governed activities of the UNCC. Under the Rules only governments and international organizations could submit claims. From its earliest days, the UNCC chose to use diplomatic processes to communicate with governments, and diplomatic protocols were woven into the UNCC’s activities. This approach underscored the basic factfinding, administrative manner, rather than a litigation format, that was adopted by the UNCC.8 Further, the diplomatic orientation supported discussions with governments regarding claims and it placed emphasis on the sovereign status of the involved governments. The approach required that communications pass through the respective government missions in Geneva, Switzerland, and that the missions be involved in day-to-day procedural matters of claims review. Potential claims were organized into “categories” based on the type of loss suffered. The Commission first processed claims filed on behalf of individuals (categories A through D), then corporate claims (category E), and last, government claims (category F). The environmental claims, government claims known as the “category F4 claims” (or the F4 claims), were slotted last in the UNCC review process.9 The Secretariat prepared claim forms addressing all of the claim categories, and established detailed procedures for receipt and registration of claim documents and related materials. Deadlines for the filing of claims in each category were set and adjusted by the Governing Council when it determined that circumstances warranted an adjustment. The final deadline set for filing environmental claims was February 1, 1998. Unsolicited supplements or amendments to previously filed claims also could be submitted, and deadlines were established, by claim category, for receipt of such unsolicited information. In 1999 there were no deadlines set, as yet, for receipt of unsolicited information in the environmental claims category. In 1999 when the UNCC turned its full attention to the environmental claims, the category A, B, and C individual claims had largely been processed; the review of category D and E claims was being completed; and the review of category F government claims was ongoing. The Commission’s procedures at this stage were well established. Also, sophisticated electronic tracking of the review status of individual
6. Id., para. 20. 7. Governing Council Decision 10, S/AC.26/1992/10 ( June 26, 1992) (hereinafter, the Rules). 8. International Organization for Migration, Property Restitution and Compensation: Practices and Experiences of Claims Programmes 26 (2008). 9. Kuwait’s claim for losses stemming from the large quantities of oil released from the many oil wells that were damaged or destroyed during the invasion and occupation was reviewed as a corporate claim of Kuwait Oil Company and not as an environmental claim; see Executive Summary of the Report and Recommendations made by the Panel of Commissioners Appointed to Review the Well Blowout Control Claim (the “WBC Claim”), U.N. Doc. S/AC.26/1996/5 (Dec. 18, 1996), paras. 16–17, 19.
THE PROCESS
[ 31 ]
claims, their claimed amounts, and any applicable payouts on approved awards10 was being put into operation. These ongoing activities of the Commission assumed a fairly good knowledge of the scope of each claim and the alleged amount of loss. The environmental claims were not yet at this stage, which made it difficult to fit the F4 claims processing into ongoing administrative activities. While the UNCC was primarily focused on processing of individual claims, some Secretariat work had been undertaken on the environmental claims. Early, preliminary discussions had occurred with government representatives11 regarding the basic nature of the environmental claims and anticipated procedures for reviewing them. A few individual consultants had been retained to assist in these discussions, and some had offered their perspectives to claimants on the upcoming review process. Governments had filed environmental claims but the submissions varied widely in detail and documentation. The scope and alleged value of the claims would need to be fleshed out through unsolicited information filings still to come. Nevertheless, it was clear that the environmental claims would involve alleged damage valued in the tens of billions of U.S. dollars.12 Toward the end of the 1990s a skeleton Secretariat team for the environmental claims was created, and further preliminary visits to the region of the conflict and in the surrounding area had taken place. In December 1998 the F4 Panel of Commissioners (the F4 Panel, or Panel) was appointed.13 The manager of the Secretariat’s work on the environmental claims arrived in Geneva in March 1999. The review of the environmental claims was set to begin. One question loomed above all others. What was the “environmental damage” to be reviewed? This question had two distinct elements. First, what was the nature of the damage or losses alleged in submissions to the UNCC; second, what constituted “environmental damage” for which compensation was to be awarded? The UNCC claim form for category F claims had subdivided environmental claims only as: “environmental damage” and “depletion of natural resources.” But, some perspective had been provided on both of the elements prior to the UNCC’s review of
10. See Governing Council Decision 256, S/AC.26/256 (Dec. 8, 2005) for an explanation of the various phases of payments on awarded claims. 11. The focus for these discussions was on the governments in the area that had been affected by the conflict and had submitted claims to the Commission: Iran, Jordan, Kuwait, Saudi Arabia, Syria, and Turkey. 12. The final alleged value for all of the environmental claims was approximately US$85 billion. 13. Thomas A. Mensah (Chairman), José R. Allen, and Peter H. Sand were appointed by the Governing Council at its 20th session, upon nomination by the UN Secretary-General. Commissioners signed disclosure statements in compliance with Article 22(1) of the UNCC Rules. Under section 2 of their temporary service contracts with the UN, they also assumed obligations regarding their independence from any government or any authority external to the UN; and regarding confidentiality of information, as provided in Article 30(3) of the Rules.
[ 32 ]
Claims Preparation and Review
the environmental claims, significantly by Governing Council Decision 7, adopted in 1991,14 which is discussed in section II.B, below. In addition, shortly following Iraq’s invasion and occupation of Kuwait, the United Nations under the sponsorship of the UN Environment Programme (UNEP) had coordinated an interagency plan of action involving a number of UN agencies and bodies, nongovernment organizations, and other institutions, to assess the environmental damage caused by the conflict. Findings were reported in a March 8, 1993, document titled, “Updated Scientific Report on the Environmental Effects of the Conflict between Iraq and Kuwait.”15 UNEP also convened a Working Group of experts, which, during 1995–1996, considered various legal and valuation aspects relevant to determining liability and compensation for environmental damage arising from military conflicts. Its report discussed definitions of both “environmental damage” and “depletion of natural resources.”16 Other reports and seminar proceedings were published prior to the UNCC’s review of the environmental claims.17 However, a comprehensive analysis both of the nature of the environmental damage stemming from the Iraq-Kuwait conflict and what constituted “environmental damage” for which compensation could be awarded awaited the review process of the UNCC. The UNCC needed to determine what damage to the environment was a direct result of the conflict and to understand what compensation was needed to remedy this damage or to compensate for damage or loss that could not be remedied. The limited scientific information about the damage which had occurred and, at times, the lack of background environmental data presented obstacles to progress in the review of the claims. Some assessment of the conflict-related damage needed to be undertaken, or finished, and having the results of damage assessments was seen as useful for the review of many claims. As a result, the monitoring
14. Governing Council Decision 7, S/AC.26/1991/7/Rev.1 (Nov. 28, 1991, as revised Mar. 17, 1992). 15. UNEP Updated Scientific Report on the Environmental Effects of the Conflict between Iraq and Kuwait, UNEP/GC.17/Inf. 9 (Nairobi, March 1993); and the related UNEP Report on the UN Inter-Agency Plan of Action for the ROPME Region, Phase I: Initial Survey and Preliminary Assessment (October 1991). 16. See Liability and Compensation for Environmental Damage: Compilation of Documents (A. Timoshenko ed., United Nations Environment Programme, Nairobi 1998). 17. For example, the First International Conference on Addressing Environmental Consequences of War: Legal, Economic, and Scientific Perspectives, sponsored by the Smithsonian Institution, the Environmental Law Institute, and the Kuwait Foundation for the Advancement of Sciences (Washington, DC, June 10–12, 1998); The Gulf War and the Environment (F. El-Baz & R. M. Makharita eds., Gordon & Breach Science Publishers, New York 1994); and Thomas M. Hawley, Against the Fires of Hell, The Environmental Disaster of the Gulf War (Harcourt Brace Jovanovich, New York 1992); Report to the Secretary General by a United Nations mission, led by Mr. Abdulrahim A. Farah, former Under-Secretary-General, assessing the scope and nature of damage inflicted on Kuwait’s infrastructure during the Iraqi occupation of the country from 2 August 1990 to 27 February 1991, UN Doc. S/22535 (Mar. 28, 1991).
THE PROCESS
[ 33 ]
and assessment projects, discussed below, remained central throughout the review of the environmental claims. They also presented some of the most difficult procedural issues. As the review process was beginning, a series of challenging questions faced the UNCC: How should “environmental damage” be subdivided for analytical and organizational purposes? In what order should these subdivisions be reviewed? Would projects needed to assess environmental damage be compensated and would sufficient time be allowed for these studies to be conducted before related claims for damage were reviewed?18 What kind of expertise would be needed to review the claims filed? Would lawyers or scientific professionals form the core of the UNCC Secretariat team for the environmental claims? Could a work plan be developed that envisaged completing environmental claims review in the four years which remained for completing all UNCC work? As the claims review process unfolded, further procedural issues arose. How should the government of Iraq be brought more fully into the process? Should, or could, the UNCC assure itself that funds awarded would be used by sovereign governments to conduct monitoring and assessment projects or to address the damage or loss which formed the basis for the awards? How could a steady flow of new information from the environmental monitoring and assessment projects, eventually funded by the UNCC, be considered within the constraints of the UNCC Rules and the limited time available for completing claims review? The almost continuous flow of information during the claims review period, both from assessment projects that went forward and from the unsolicited information submissions, meant that, for some claims, full supporting information was not available until the final stages of the review process. Addressing this challenging circumstance required that the flexibility in the procedures available under the UNCC Rules be used to the maximum extent. Processes would need to evolve as circumstances changed and new processes would need to be developed until the end. Success in navigating under these circumstances required interaction among the Panel, the Governing Council, the Secretariat, the consultants, the claimant government representatives and, during a major portion of claims review work, representatives of Iraq as well.
18. For example, Kuwait submitted a claim for a project to monitor and assess areas of its desert surface contaminated as a result of oil releases and fallout from the oil fires, see Report and Recommendations made by the Panel of Commissioners Concerning the First Instalment of “F4” Claims, U.N. doc. S/AC.26/2001/16 (2001), para. 472 (hereinafter, First “F4” Report); Kuwait also had a related claim for damage to its desert surface caused by these releases and fallout, see Report and recommendations made by the Panel of Commissioners concerning the third instalment of “F4” claims, UN Doc. S/AC.26/2003/31 (2003) (hereinafter, Third “F4” Report), paras. 84 et. seq.
[ 34 ]
Claims Preparation and Review
I. INITIAL PROCESS ISSUES AND CHALLENGES POSED BY THE ENVIRONMENTAL CLAIMS A. What Is the Nature and Scope of the Damage to Be Reviewed?
Different views existed concerning the best avenue for fleshing out the early, limited understanding of the conflict-related environmental damage. It was assumed by some concerned with these events that, in the period during the 1990s when the UNCC was processing other claims, governments whose environment had been affected by the conflict would take steps to assess the nature of the damage that they had suffered. To some extent this had occurred. Others, on the other hand, believed that the task of assessing the nature of the environmental damage suffered could better be undertaken by some party other than the affected government. Some of these believed that the United Nations had to complete the environmental assessments that had been begun by UNEP before affected governments could reasonably be required to elaborate their environmental claims. Some of the affected governments shared this latter view. In addition, affected governments wished the UNCC to define what constituted environmental damage for which compensation could be awarded. Furthermore, if the United Nations would not conduct the damage assessments itself, affected governments asked for guidance on how damage assessments were to be conducted. Governments pressed these views in informal contacts and in diplomatic discussions on the claims review process. As the UNCC geared up to review the environmental claims, it became clear that most of the above expectations and preferences would not be met. The Commission increasingly expressed its position to the principal governments involved with the environmental claims that each of them had the responsibility to file full and substantiated claims to the Commission. Governments needed to determine what environmental damage they had suffered. The UNCC rule stating that each claimant was “responsible for submitting documents and other evidence which demonstrate satisfactorily that a particular claim or group of claims is eligible for compensation”19 was often cited. It also became increasingly clear that a definition of what constituted environmental damage for which compensation could be awarded would have to await the Panel’s decisions on individual claims. In mid-1998, a coalition of the governments of Iran, Jordan, Kuwait, Saudi Arabia, and Syria, presented a plan to the Governing Council. The coalition’s initial proposal asked that an escrow account for the environmental claims be established and funded by the UNCC. The proposal envisaged that governments could turn to the account to fund urgent costs related to the monitoring and assessment of environmental damage in the entire region of the conflict as well as funding other costs related to the conflict. In response to concerns expressed about the feasibility of such an approach, including the Commission’s authority to implement an escrow
19. The Rules, art. 35. THE PROCESS
[ 35 ]
account, the members of the coalition formulated an alternative proposal. The revised proposal asked that the Commission quickly process requests included in filed claims for funds to conduct “reasonable monitoring and assessment of the environmental damage” as provided in Governing Council Decision 7, paragraph 35. The revised plan further asked that a priority be placed on early funding of the investigations. In reaction to the revised proposal, the Governing Council directed the Executive Secretary to inform affected governments that they were “to identify and file separately, within the time period to be specified by the Executive Secretary, those portions of their claims already filed with the Commission that pertain to the monitoring and assessment of environmental damage.”20 The Secretariat did so, and two deadlines were set in 1999 for receipt of more detailed materials regarding monitoring and assessment projects.21 This process resulted in submissions identified as 107 separate projects for monitoring and assessment that needed to be done. Each of the projects was given an individual claim number to facilitate orderly processing. The Governing Council stated that “appropriate priority should be given to the processing of [the monitoring and assessment] claims, so that the claims can be resolved quickly and separately from the resolution of the related claims for environmental damage.”22 However, the Council left open the issue of “priority of payment in respect of the monitoring and assessment claims” for consideration at a later stage and in the context of an overall discussion of payments on claims.23 Thus it was possible that governments with successful monitoring and assessment claims might still have to wait a long time before they received any payout from UNCC funds. At this stage, a number of the government representatives appeared to believe that, if a monitoring and assessment claim was favorably reviewed by the UNCC, the government concerned would have the time it needed to conduct the monitoring and assessment project involved and would also have the opportunity to augment the related “substantive”24 environmental claim(s) based on the new information. The discrepancy between these expectations and the reality that ultimately faced the claimant governments created tensions. The need to conclude the work of the UNCC
20. Governing Council, S/AC.26/SR.81, para. 20 (Sept. 30, 1998), in UNCC, Basic Documents of the United Nations Compensation Commission, UN doc. S/AC.26/ SER.A/1, vol. I (United Nations, Geneva 2001); First “F4” Report, para. 17. 21. These dates, February 1, 1999, and May 15, 1999, functioned as the initial unsolicited information deadlines for the monitoring and assessment claims. Both deadlines were extended and the final unsolicited information deadline for all monitoring and assessment claims was set at October 4, 1999. 22. Governing Council, S/AC.26/SR.81, para. 20; First “F4” Report, para. 17. 23. Id. 24. Claims that were not monitoring and assessment claims were known as the “substantive” claims; see discussion at footnote 18 where the related claim for damage to Kuwait’s desert surface is the “substantive” claim. [ 36 ]
Claims Preparation and Review
within the required time frame meant that work on successful monitoring and assessment projects would have to proceed at the same time that the Panel was reviewing the related substantive claims. Strict deadlines had to apply to the work of all parties.
B. How Are the Claims to Be Subdivided and in What Order Should the Subdivisions Be Reviewed?
UNCC protocols25 called for claims in each individual category, such as the F4 category, to be subdivided into groups of claims, and each such group was called an instalment of claims. The work of the Secretariat and the panels, as well as much of the work of the Governing Council, was organized around these instalments. Panels were allocated twelve months to complete review of a claim the panel determined was a large and complex claim.26 Because of this UNCC approach, subdividing the environmental claim submissions into instalments and deciding in what order to present these instalments to the Panel were threshold process issues. In accordance with the direction of the Governing Council that appropriate priority should be given to the review of monitoring and assessment claims, those claims were grouped into the first instalment of claims to be reviewed by the F4 Panel.27 The remaining claims then had to be allocated to individual instalments. Early discussions of the potential environmental damage, as well as the initial claimant submissions, were organized largely on the basis of the sectors of the environment that were alleged to have been affected by the conflict.28 This approach resulted in subdivisions such as: terrestrial, marine, groundwater, public health, and cultural heritage. A number of considerations influenced the final subdivision of claims used to establish a list of instalments to be presented to the Panel. Practical considerations were very important in this regard. For example, one of the important factors related to the most efficient manner for selecting and using technical consultants. Another consideration was the need to schedule as late as possible the review of claims that were most dependent on the results of monitoring and assessment studies.
25. See generally Francis McGovern, Dispute System Design: The United Nations Compensation Commission, Chapter 2 in Gibson and Feighery, Designing Compensation after Conflict (note 2, supra). 26. The Rules, Article 38 (d); all of the F4 instalments were determined to contain large and complex claims that warranted a twelve-month review period; the F4 Panel’s determinations in this regard were documented in procedural orders as was the general UNCC practice. 27. Given the original two deadlines for resubmission of monitoring and assessment claims, an early plan contemplated two six-month instalments for these claims; for various reasons it was determined that the better approach was to group all the monitoring and assessment claims in one instalment and to allocate all of them to the first instalment of claims presented to the F4 Panel. 28. The term “environment” is used comprehensively in the text to encompass all of the claimed damaged sectors, including public health and cultural heritage; see related discussion at footnote 1, supra.
THE PROCESS
[ 37 ]
This would give the maximum time to generate information relevant to the review of the related substantive claims. Further, it was considered advisable to slot the more “concrete” claims, i.e., claims related to remediation of damaged environments or claims for costs already incurred, ahead of claims for damage to, or loss of, natural resources and claims for damage to public health and cultural heritage. This would enable the Panel to gain some background knowledge of the environmental situation in the relevant areas before it was called upon to review what were considered to be more “novel” types of claims, claims that were expected to be more difficult to value and more uncertain as to their compensability in the UNCC forum. Policy considerations played a major role. For example, particular attention was given to the need to maximize consistency in the decisions on similar claims from two or more governments. Also, the subdivisions chosen and the order in which they were to be reviewed took into account, wherever possible, the expectations that had been formed by the claimant governments as of result of their earlier discussions with the Secretariat. And, due account was given to the UNCC’s general approach to create instalments which considered factors such as the type or size of the claims, the similarity of legal and factual issues presented, and the geographical distribution of claimants grouped into one instalment. Using these considerations the following groupings were developed29 and remained essentially unchanged: • The first instalment involved claims for expenses for the monitoring and assessment projects. • The second instalment involved claims in respect of measures taken during or immediately after the conflict.30 • The third and fourth instalments involved claims for reasonable measures to be taken in the future to clean and restore the environment, subdivided by reference to the sectors of the environment alleged to have been affected. • The fifth and final instalment involved claims in respect of public health, loss, or depletion of natural resources and loss of cultural heritage. These subdivisions echoed the Governing Council’s examples of compensable losses in its Decision 7,31 and this relationship was highlighted in explaining the organizational framework chosen for the F4 instalments. It is important to stress
29. There were a few minor exceptions regarding the allocation of individual claims to particular instalments but these exceptions did not alter the fundamental subject matter subdivision intended for each of the instalments. See Payne, Appendix: Guidance for Researchers, Table 2, Category F4 Instalments. 30. This was the only instalment comprised of claims submitted by countries outside of the region of the conflict. 31. UNCC Governing Council Decision 7, para. 35; see also Payne, Chapter 1, section IV, in this volume.
[ 38 ]
Claims Preparation and Review
how significant Governing Council Decision 7 was for interpreting the Security Council’s meaning in Resolution 687 (1991) that Iraq was liable for “any direct loss, damage, including environmental damage and the depletion of natural resources.” Decision 7 was a cornerstone for the environmental claims review process. The chosen framework for the instalments incorporated aspects of the sectorbased approach familiar to claimant governments from early discussions with the UNCC. Significantly, however, the chosen approach introduced two divisions not featured in the earlier discussions. First, claims related to measures taken in the past to clean and restore damaged environments were separated from claims regarding future remedial measures. Second, claims regarding future remedial measures were allocated to different instalments from claims for losses due to the depletion of, or damage to, sometimes related natural resources.32 Because of the final framework chosen for the instalment subdivisions, it was necessary to pull apart some of the material in claims previously filed by claimants and allocate separate elements of the claims to the chosen instalment subdivisions. This effort was considered justified in order to bring a workable and efficient organizational structure to the claims review process.
C. How Much Time Will Be Available to Review the Claims?
The UNCC decided to complete its work, including the review of the environmental claims, within the overall 1997 Work Program that the Secretariat had presented to the Governing Council and which the Council had approved. This Work Program had become the foundation for all of the work of the Commission. It formed the basis for all UNCC scheduling and budgeting and stated that UNCC work was to conclude in 2003. Thus, it precluded implementing a plan proposed when the Work Program was being developed that environmental claims review be scheduled for a ten-year review period. Therefore, when the F4 Panel and the environmental Secretariat began their work in 1999 they knew they had only four years to finish claims review. Since Panel review of the five instalments of environmental claims would only begin in 2000, work on the instalments would need to overlap significantly in order to complete review by 2003. Some governments needed results from monitoring and assessment projects to more fully define their substantive claims. Thus, work on monitoring and assessment projects would have to proceed quickly, and work on defining the
32. For example, Kuwait’s substantive claim for future measures to remediate damage to its terrestrial environment, see footnote 18 supra, was considered in the third instalment of F4 claims, whereas its claim for loss of ecological and human services resulting from damage to or depletion of terrestrial resources was considered in the fifth instalment. Report and Recommendations made by the Panel of Commissioners Concerning the Fifth Instalment of “F4” Claims, U.N. Doc. S/AC.26/2005/10 ( June 30, 2005) (hereinafter, Fifth “F4” Report).
THE PROCESS
[ 39 ]
substantive claims would have to proceed simultaneously. Since some claimant governments that received significant monitoring and assessment awards from the UNCC intended to contract out, through a bidding process, portions of the monitoring and assessment work to outside consultants, some additional delays in starting the projects would be introduced. Time and organization were going to be essential.
D. Who Will Assist the Panel?
The UNCC Secretariat teams supporting panels reviewing complex claims were composed of lawyers, often specialized in the area of the claims, and legal and administrative assistants. These teams were assisted by members of the Verification and Valuation Support Branch (VVSB), a Secretariat group composed principally of accountants and loss adjusters. Specialized outside consultants were hired to provide other needed technical expertise.33 The environmental claims differed from other UNCC claims because of the greater lack of legal precedent and the sometimes complex scientific and technical issues associated with an analysis of the damage. These considerations led the UNCC to consider supporting the work of the F4 Panel in a manner different from the support model adopted for the other panels of Commissioners. Various approaches were promoted. At one point, it was proposed that the number of lawyers on the Secretariat team for the environmental claims should be quite limited compared to the other Secretariat teams working on complex claims. This proposal envisioned that, instead of being assisted by a sizable team composed primarily of lawyers, the F4 Panel should be assisted largely by outside scientific and technical consultants. Some advancing this view believed that such scientific and technical consultants could be drawn from within the United Nations family. Another proposal was to combine considerable scientific, technical, and legal expertise within the Secretariat team for environmental claims and use outside expertise in a more limited fashion than was the general UNCC practice for the complex claim categories. During 1999, all these ideas were explored. Governing Council budget approval was needed if the existing Secretariat team staffing was to be increased in number. And, administrative support was required in order to be able to present a budget request to the Council to increase staffing for the environmental team. Formal and strict UN procedures would need to be followed in recruiting outside consultants. Obtaining assistance from within the United Nations family required appropriate
33. The outside consultants the UNCC historically retained to assist with complex claim reviews were generally part of a large consultancy. In a few instances, individual experts were retained for specialized purposes to assist panels.
[ 40 ]
Claims Preparation and Review
letters of agreement and administrative approvals. Each approach had its pluses and minuses, and each would take time to implement while time was in very short supply.
E. Summary
In essence, the challenge facing the environmental claims, as things stood in 1999, was how to complete F4 claims review in approximately four years: • not knowing a great deal about what most major claims would involve; • not having a clearly defined set of environmental baseline conditions in the affected areas; • needing time for the Panel to review proposed monitoring and assessment projects; • needing to obtain assurance that the UNCC would fund successful monitoring and assessment projects and then to carve out some time to obtain meaningful results from these projects once they were underway; • needing time to develop an, as yet, undefined Secretariat team to assist the Panel; • needing time to retain, following UN protocols, outside expertise to help review the monitoring and assessment claims, if technical experts within the team were not available. The next section discusses how these challenges were met or put on a track to resolution. II. MOVING FORWARD A. The F4 Panel Meets
The F4 Panel of Commissioners began to meet as soon as possible after its appointment at the end of 1998. A general orientation to the environmental claims, their history at the UNCC, and some of the major issues expected to arise in the course of review of the claims was provided at informal Panel meetings. In addition, information about the UNCC’s structure, rules, protocols, and major precedents was presented. Together with the Secretariat the Panel set a work plan for its review of all of the environmental claims. Review of the first instalments of claims would begin in March 2000 and the review of the fifth and final instalment of claims would finish in September 2003. This was as condensed a work plan as could be envisioned. It fit closely enough with the UNCC Work Program’s July 2003 completion date. Once review of the monitoring and assessment claims began, the Panel set a grueling schedule, meeting in Geneva every month for the twelve-month period allotted for THE PROCESS
[ 41 ]
the review of the first instalment claims, generally in packed one-week sessions, including detailed technical analysis of the damage or loss asserted in the claims.
B. UNCC Environmental Secretariat Staffing Clarifies
In its discussions during the 1999 informal meetings, the Panel indicated a leaning toward a detailed review of the claims assigned to it. Such an approach would require scientific expertise of considerable breadth and depth to properly support the Panel. The Secretariat team for the environmental claims (environmental Secretariat) in place when the Panel began its work included a team of two technical and three legal staff members as well as two assistants and the manager for the environmental claims. Also, the Verification and Valuation Support Branch had identified one person who would support work on the environmental claims. It was determined that it was unrealistic to think of increasing the Secretariat’s technical staff sufficiently to meet most of the needs of the Panel; outside scientific and technical experts would be needed. In addition, the volume of monitoring and assessment claim documentation had grown with resubmissions by governments, thereby significantly increasing the tasks for the lawyers and assistants on the existing team. It would, therefore, be necessary not only to retain outside experts but also to expand the Secretariat team and bring the team size more in line with other UNCC teams. Requests for additional staffing for the environmental Secretariat became a regular managerial task, particularly with each Council budget session. The Governing Council received these requests for additional staff at a time when the general UNCC focus was on phasing down work and closing the UNCC’s offices. Thus, at the time when work on the review of the environmental claims was commencing, the Governing Council was expecting reductions in Secretariat budget needs rather than requests for additional staff. But in spite of these constraints, the environmental Secretariat did expand, although slowly, to a maximum team of around twenty lawyers and assistants at the peak of the work of the Panel. In addition, as claim review progressed, the VVSB assigned a second professional to assist with the environmental claims. The VVSB Secretariat members, while in a separate management structure, effectively functioned as part of the environmental Secretariat for much of the review process. The peak staffing for the environmental Secretariat was in line with the staffing level of other teams assisting with the review of complex claims. With the expanded group, the environmental Secretariat was able to work substantively with outside consultants to prepare materials for the Panel, in addition to doing claims preparatory and development work,34 preparing contracts for
34. The Rules, arts. 14, 15, 16, and 34; Payne, Chapter 1, text at notes 92–94, in this volume; see also Gibson and Feighery, Designing Compensation after Conflict (note 2, supra), Part II (“The UNCC Jurisprudence and Work on Urgent Claims, Claims of Individuals, Corporations
[ 42 ]
Claims Preparation and Review
consultant bids, managing the information flow associated with the environmental claims, and performing the work related to the special tracking programs that had to be developed as the process evolved.35
C. Consultants Are Selected
Several approaches were considered, and some partially implemented, prior to final selection of outside experts. First, under UN procedures for requests for “expressions of interest,” resumes were solicited in technical areas expected to be needed for the review of the monitoring and assessment claims. (See Basic Documents, UNCC Solicitation for Consulting Services, 1999) Hundreds of individual resumes were received and reviewed; however, the resumes did not offer the spectrum of expertise that the Panel would require. In addition, the UNCC recognized that the coordination and management of individually retained experts would require significant management time and expertise and that it did not have sufficient staff resources to undertake this work. As a consequence of this recognition, and because the solicitation process did not yield experts of sufficient depth and experience, the approach of selecting individual consultants was abandoned. Other avenues continued to be explored to obtain the needed technical assistance for the Panel. There was strong interest in using expertise from within the United Nations family to satisfy the Panel’s needs for technical consultants. A small pilot project was undertaken involving a few UN technical experts from a sister organization. These experts assisted with some of the work at informal panel meetings and with early analysis of incoming monitoring and assessment claims. The pilot project illustrated that full-time UN experts were unlikely to be available to the extent required and within the strict time deadlines needed to assist the Panel. In addition, it would be necessary to look to a number of organizations to find all of the relevant expertise. Having to manage and coordinate a number of individual experts from different UN departments would create the same management demands on the UNCC as the previous approach. Further, UN interagency cost allocations prescribed for this type of interaction would result in fees that did not yield the cost savings initially anticipated. For these reasons, this approach was also abandoned. Brief discussions were held with a sister UN organization which proposed to gather a group of needed experts and perform the necessary expert coordination and management. The proposal contemplated that the sister organization’s staff, or its contracted experts, would independently assess the environmental conditions related to the claims, thereby eliminating the need for the claimant governments to
and Governments”), for a discussion of the claims preparatory and development tasks undertaken by the UNCC Secretariat. 35. See discussion in sections II.F and IV.A, infra.
THE PROCESS
[ 43 ]
perform monitoring and assessment work. This later aspect, presented as central to the proposal, ran counter to the UNCC position that it was the responsibility of the claiming governments to support their claims and thus to conduct their own monitoring and assessment. Further, it was not clear the UN sister organization could staff a group with the full range of experts needed to support the Panel within the strict time constraints available for claims review. Because of these various issues, this approach was also abandoned. Lastly, very preliminary discussions were held with an international conservation organization but concerns regarding potential conflicts of interest precluded pursuit of this option. The above discussions and experiments took place during 1999 while governments were doing work needed for resubmitting and clarifying their monitoring and assessment project needs. These resubmissions helped to define the full scope of expertise that would be required to analyze the proposed projects. This better understanding of the technical consultant needs, coupled with the lack of success with alternative approaches, led to the decision that the Panel would be best served by retaining outside technical expertise from a consulting firm of considerable size and experience. Detailed UN procedures were followed. Briefly these required that the environmental Secretariat: • draft a proposed contract which explained sufficiently the specific tasks and timing issues related to the instalment at issue, as well as the special circumstances of the environmental claims, so that bidders could submit comparable bids;36 • publicize the UNCC’s interest in obtaining bids on the proposed contract; • develop screening criteria to evaluate bidders, including threshold requirements for bidder qualifications; • conduct a bidder’s conference to respond to questions regarding the proposed contract; • review submissions under identified criteria; and, ultimately, • present a reasoned recommendation to the UN body, outside of the UNCC, charged with the responsibility of reviewing and approving such large contracts. Each step had its own time requirements. The reviewing UN body was not in constant session, adding to the time constraints. Final selection of an outside consulting group was made in the latter part of February 2000 just in time for the start of the Panel’s review of the monitoring and assessment claims in March 2000.
36. For the third instalment of environmental claims, dealing with future remedial action, the environmental Secretariat held a two-day conference attended by a handful of invited experts. The purpose of the conference was to discuss various technical issues expected to arise in the course of the review of the third instalment claims. Valuable insights were gained from this conference, which were useful for drafting proposed contract provisions for the third instalment of claims.
[ 44 ]
Claims Preparation and Review
The scope of expertise the Panel required for the first instalment review was as considerable as had been imagined. The winning bidder for the monitoring and assessment claims instalment involved around twenty-five experts from approximately twenty scientific disciplines to assist the Panel.37 The general UNCC practice was to retain, through one bidding process, one or two outside consulting firms to assist with review of all claims in a given complex claim category.38 It was not possible to follow this approach with the environmental claims because not enough was known at the start to be able to develop one proposed contract encompassing all of the environmental claims. Hence, each of the five F4 instalments required a separate bid process to select consultants, a time- and resource-intensive requirement. Even then, bidders were obliged to specify contract prices on the understanding that some of the major claims in an instalment were in a developmental stage and information would continue to be generated during the review process. Crafting proposed contracts that would generate the comparable bids required by UN procedures proved to be a significant challenge. The UNCC was fortunate that the required procedures led to the same consulting firm being chosen to assist the Panel for most of the instalments. These core consultants developed a familiarity with the facts of the claims and the Panel’s approach. This familiarity and its attendant efficiency and economy paid great dividends in the later instalments. The level of efficiency other claims categories achieved by using a limited number of outside consultants was eventually achieved for the environmental claims although by a much more difficult route. The assistance of these outside consultants was critical to the successful review of the environmental claims. This was largely because the challenge presented by the environmental claims turned out to be not so much a need for a definition, or a defined set of evidentiary requirements, for the concept of “direct environmental damage” but rather the need to analyze, from a scientific and technical perspective, whether claimed environmental damage could be linked to the conflict and, if so, to what extent. The, fortunately, high quality of the scientific and technical experts retained was fundamental to this success.
D. Communication Channels Are Developed
Successfully communicating to the affected governments that, in 1999, the environmental claims process was significantly changing pace was another threshold challenge.
37. For details on the fields of expertise of the Panel’s consultants for the first instalment, see First “F4” Report, para. 42. 38. There were a few instances where individual experts were retained to assist with specific, limited tasks related to the processing of complex claims, including the environmental claims. UN procedures for retaining such experts involved an abbreviated review and approval process if the total contract price was a modest sum.
THE PROCESS
[ 45 ]
The new urgency was difficult to convey after almost ten years of occasional discussions and meetings regarding these claims. This was particularly true for the government representatives that harbored expectations that they would be able to finish assessment of environmental conditions before review of their related substantive claims. In some instances, preliminary matters needed clarification due to varying language, legal, and cultural traditions. Individual meetings were held to convey the significance of the Panel’s appointment and the consequent formal start of the review process; the revised subdivisions developed for the claims instalments; the environmental claims work plan and related strict deadlines; aspects of the upcoming panel activities; and, fundamental matters such as the different roles of the Governing Council, the Panel, the Secretariat, and the Panel’s consultants. Items for such discussions were reviewed with the Panel prior to such meetings. These interactions were important to obtain the cooperation from the claimant governments needed for the claims review work to proceed on schedule. They also appeared to help claimant governments to focus on what internal resources and systems they needed to have to participate fully. As a side benefit, these interactions gave the Secretariat insights into the nature and operation of the administrative and technical environmental structures of the relevant governments. This knowledge facilitated the development of communications systems that could work efficiently, while maintaining the required diplomatic protocols. Individual meetings between the Secretariat and claimant government representatives continued throughout the claims review process, but these meetings were particularly important at the beginning to help move the process forward. Claims processing information was also conveyed through diplomatic notes, at times with detailed memoranda attached. Such notes provided updates on Governing Council and panel decisions, contained notices of upcoming deadlines, expressed wishes to plan specified sites visits, when applicable, and so on. A major status review and update was provided on an annual basis, beginning in 2000, in addition to the numerous communiqués sent in the course of the year on more individual matters. On several occasions, the involved governments met in a group in Geneva, sometimes in conjunction with other events, to receive status updates and discuss upcoming schedules and deadlines, and express their views on the process.
E. Claims Begin to Be Defined
The extracted and resubmitted monitoring and assessment claims not only provided detail on those claims but also opened windows on the alleged environmental damage to be reviewed in the substantive claims. However, an understanding of the full scope of the substantive claims did not exist until the passage of the
[ 46 ]
Claims Preparation and Review
deadlines for unsolicited information39 for each of the claims. In 1999 only the monitoring and assessment claims had deadlines for receipt of unsolicited information. A laddered schedule was established later for final receipt of unsolicited information for the following four instalments, as follows: second instalment–August 1, 2000; third instalment–January 15, 2001; fourth instalment–May 15, 2001; and fifth instalment–January 15, 2002. During the course of its review of the first instalment claims, the Panel determined that results from monitoring and assessment projects which received UNCC funding would be considered as “solicited information.” This decision meant that information flowing from funded projects would be accepted by the UNCC when governments were able to submit the information. It was fully in accord with the purpose of the monitoring and assessment projects—to better understand the nature of the environmental damage for which compensation was being claimed. The approach was also in line with the innovative, flexible, and fair approach the UNCC had stressed in implementing its mandate. The result was anticipated by many of the government representatives as well. However, until the Panel made this decision, the result had not been certain. From a practical perspective this panel decision meant that a claim with a related ongoing monitoring and assessment project(s) could continue to be refined up to the time of final decision by the Panel on the claim.40 Claims were more clearly defined not only through information provided by the claimants but also through the work of the environmental Secretariat and the Panel’s expert consultants. Detailed questionnaires on individual claims (referred to as Article 34 notices or questionnaires) were prepared by the consultants and the Secretariat.41 Claimant responses to these questionnaires elucidated claims and helped in understanding the supporting material for the claims. Following analysis of claimant responses, and mindful of time and resource constraints, on-site visits were planned to further explore certain claims and their supporting materials. Consultants prepared a list of places they wished to visit and questions they wished to discuss, and these needs were communicated to the claimants involved. Visits often involved complex logistics, with consultants from around the world, Secretariat members, and government technical experts and managers participating.42 While challenging to coordinate and fit into strict time deadlines,
39. See Introduction section above for brief description of the role of “unsolicited information” in the UNCC review process. 40. For the last instalments of claims, the Panel set final deadlines for the receipt of monitoring and assessment information approximately one month before it was to conclude review of related claims. This step was crucial to provide the time necessary for proper analysis of new information, including obtaining Iraq’s review and comment, and integration of that analysis into the Panel’s decision-making on the related claims. 41. The Rules, art. 34 (1). 42. At one end of the spectrum was a site visit comprising three subgroups analyzing claims in locations distant from each other in one of the claimant countries. The subgroups traveled in
THE PROCESS
[ 47 ]
these visits were very valuable in helping to obtain a better understanding of some claims and the issues they presented.
F. Monitoring and Assessment Projects Are Reviewed by the Panel
Twelve months to review 107 projects involving assistance from approximately 25 worldwide experts presented challenges for all concerned. The monitoring and assessment proposals were divided into subject matter groups according to the type of expertise needed. The groups included proposals for monitoring and assessing damage in such areas as marine and coastal environments, groundwater and surface water, and terrestrial environments.43 Panel meetings and the work of the consultants were organized on the basis of this grouping. Governments were advised of this organizational approach and asked to identify their experts in each of the subject matter groups. The time pressure in the first instalment meant that consultants would not be able to make the site visits that later proved to be so valuable. In lieu of site visits, extensive use was made of detailed questionnaires and of teleconferences. Guidelines were prepared by the Panel for the conduct of the teleconferences to ensure fairness in communications with claimants and to provide the claimant governments with appropriate notice of the calls. Prior to scheduling a teleconference, detailed questions were prepared and sent to the relevant government’s experts, and government representatives in Geneva were informed of plans for the teleconference. Generally these teleconferences lasted for hours and involved the Panel’s consultants located in various countries, environmental Secretariat members in Geneva, and claimant government experts, sometimes located in different parts of their country. The teleconferences, at times, led to requests for further information. Responses to any information requests, as well as the initial responses to the questionnaires, were considered solicited information, in line with the usual UNCC approach. All of the information available on a given monitoring and assessment project was integrated and analyzed, and this analysis was presented in consultant reports to the Panel. The environmental Secretariat members reviewed drafts of these reports for clarity and completeness and raised substantive questions when necessary. Secretariat members also prepared memoranda on the procedural history and the legal aspects of the claims and highlighted issues on which the Panel would be invited to take decisions.
individual buses to different locations and, several times, met as a full group in central locations. This site visit involved approximately thirty UNCC representatives, mainly the Panel’s consultants, and a delegation of approximately the same size from the involved government. Central meetings, at the offices of institutions involved with the claims, included even larger numbers of government representatives. 43. First “F4” Report.
[ 48 ]
Claims Preparation and Review
Three principals of the consulting firm managed different subject matter groups involved with the claims, and one principal served as an overall coordinator for the work of the consultants. At Panel meetings the main experts involved briefed the Panel and answered questions. While the panel meetings followed timed agendas, the style of the meetings was very interactive. The Panel asked questions, indicated the need for more information or analysis, where necessary, and generally discussed issues with its expert consultants. At times, these discussions led to follow-up questions and further telephone conferences with claimant governments. The information and document flow continued and needed to be properly registered, filed, copies transmitted, as needed, analyzed, and integrated with information already on hand. The Panel urged its consultants and the environmental Secretariat to offer their best technical and legal analyses with the fact-finding approach the UNCC had adopted in mind. This approach also was stressed to the claimant governments and Iraq at the opening of oral proceedings held with respect to claims.44 With Panel support and guidance, the fact-finding approach was maintained throughout the review process for all of the claims instalments.
G. Monitoring and Assessment Projects Are Funded and Tracked by the UNCC
Informal discussions helped government representatives to understand that they would need to take responsibility to flesh out their claims and conduct their own monitoring and assessment work even if they held a strong belief that the monitoring and assessment work should be completed by the United Nations. Still a significant issue loomed. Would the UNCC pay for the monitoring and assessment projects the Council approved in time to enable the claimants to provide useful information for the review of related substantive claims? At the time in 1998 when the Governing Council directed the F4 Panel to give priority to the review of monitoring and assessment claims, it left to a later date a decision on the question of “priority of payment” on successful monitoring and assessment claims.45 In June 1999, it expressed “its willingness to consider the special circumstances pertaining to successful environmental monitoring and assessment claims” but did not make a decision regarding what priority, if any, would be
44. The Rules, art. 36 (a); these proceedings were the only opportunity for claimant government representatives and representatives of Iraq to speak directly to the Panel. See also Michael Schneider, The Role of Iraq in the UNCC Process, Chapter 7 in Gibson and Feighery, Designing Compensation after Conflict (note 2, supra). 45. See text at note 22, supra and general discussion at section II.A.
THE PROCESS
[ 49 ]
given to payments on successful monitoring and assessment projects.46 That decision was made in June 2000 when the Council established a revised schedule of payments on all UNCC awards. It determined then that successful monitoring and assessment claims would “be given priority in payment” in the manner described in the directions for the third phase of UNCC payments.47 The Governing Council approved the F4 Panel’s recommendations on the first instalment claims and awarded over US$243 million for the conduct of sixty-nine monitoring and assessment projects.48 In its Decision 132 approving these awards, the Council referred to its earlier determination that environmental monitoring and assessment awards would be given priority in the third phase of UNCC payments. As a result, many of the awarded projects received funding in the amount of the approved awards very soon after June 2001 when the Council approved the Panel’s report. Since the third phase payment schedule included a maximum amount that could be paid on any one claim at one payout session, the most expensive monitoring and assessment projects required several payout sessions before they were fully paid. The Governing Council made a further process decision in conjunction with its approval of the recommendation of the Panel on the first instalment claims. In order “to ensure that funds are spent on conducting the environmental monitoring and assessment activities in a transparent and appropriate manner and that the funded projects remain reasonable monitoring and assessment activities” the Council directed the Panel to receive periodic progress reports concerning the environmental monitoring and assessment projects. The Panel was to keep the Governing Council informed of the progress reports and of any appropriate action that may be required.49 Earlier Council action presaged this significant direction. At the end of 2000, the Council asked the Secretariat to request information from the affected governments as to specific measures put in place to assure that compensation for successful monitoring and assessment claims would be transferred efficiently and expeditiously to those responsible for conducting the studies. Affected governments had responded to this request for information prior to the Council’s review of the F4 Panel’s report on the first instalment claims. Responses described administrative entities and procedures which existed, or would be created, that would meet the Council’s conditions. This Council request for information related to the monitoring and assessment
46. UNCC Governing Council Decision 73, S/AC.26/1999/73 ( June 25, 1999); the UNCC did not have sufficient funds to pay claims awards in full as decisions to make the awards were being made. Hence, the Governing Council developed a series of phased payment schedules in the course of the life of the UNCC; see Governing Council Decision 256, S/AC.26/256 (Dec. 8, 2005). 47. UNCC Governing Council Decision 100, S/AC.26/ 2000/100 ( June 19, 2000), para. 1(e) concerning the “third phase of payment.” 48. UNCC Governing Council Decision 132, S/AC.26/2001/132 ( June 21, 2001). 49. UNCC Governing Council Decision 132, para. 6.
[ 50 ]
Claims Preparation and Review
projects paralleled, in some respects, earlier Council action. In 1994, when considering successful awards for individual claims, the Council required that governments expeditiously distribute awards to successful claimants pursuant to agreed upon procedures and that they report on such distributions.50 With respect to category F government claims, however, the Council required a “tracking” of compensation distributions only for the F4 environmental claims. It was clear that the Governing Council wanted to ensure that funds for monitoring and assessment projects would support the work that governments had claimed they needed to undertake. The tracking obligations of Decision 132 had a financial aspect (funds were to be spent in a “transparent” manner) and a scientific aspect (funds were to be spent in an “appropriate” manner and funded projects were to “remain reasonable monitoring and assessment activities”). A process needed to be developed to assist the Panel in discharging these new obligations. The Verification and Valuation Support Branch (VVSB) agreed to assist with the new responsibilities presented by the financial tracking aspect of Governing Council Decision 132. A questionnaire was developed and periodically sent to governments together with a Panel procedural order requesting responses to the questionnaire.51 The questionnaires sought information on the amount spent on each successful monitoring and assessment project and a percentage estimate of the work completed. Related information requests were included, for example, requests for updates of measures taken to assure funds went to entities conducting the monitoring and assessment projects. The Panel encouraged governments to have their responses audited.52 The questionnaire was refined with experience and issued in electronic format to make exchange of information and its analysis more efficient. The VVSB presented analyses of responses in reports and discussed these reports with the Panel. Follow-up questions recommended by the VVSB and approved by the Panel, as well as Panel-generated questions, were sometimes needed to fully understand the status of government expenditures. Two approaches were considered to assist the Panel with the scientific aspect of its tracking responsibilities under Governing Council Decision 132. One approach was to ask some of the experts who were currently assisting the Panel with second instalment claims to review monitoring and assessment claimant submissions and offer perspectives for scientific tracking purposes. Discussions regarding this
50. Governing Council Decision 18, S/AC.26/18 (March 24, 1994); and see reference to Decision 18 in Decision 132, S/AC.26/132. 51. See also Payne, Chapter 5 in this volume, Section I.B. 52. The Governing Council discussed whether reports, with respect to the distribution of payments referenced in footnote 50 supra, needed to be certified by independent auditors. Following considerable deliberations, the Council reached an agreement to require specified audit certificates with payment distribution reports. Once this decision was made, the F4 Panel recommended, and the Governing Council agreed, that financial reports pursuant to Decision 132 would also be required to have an auditor’s certification.
THE PROCESS
[ 51 ]
possibility indicated that this approach was not practical for a number or reasons. Moreover, expanding the scope of work for an existing consultant contract required further UN review and approval. Such requests were strictly scrutinized, particularly when the expansion involved significantly new responsibilities as would be the case in this instance. An agreement for the contract expansion that would be needed here was not at all assured. In the end, the UNCC executed a Memorandum of Understanding (MOU) with UNEP for UNEP to assist the Panel with the scientific tracking responsibility. Discussions on the scope and cost of MOU-related activities were lengthy. Once agreement was reached and the MOU was approved by the Governing Council, UNEP put together a group of experts, headed by a full-time project manager, to conduct the work set out in the MOU. In addition to the scientific tracking responsibility, UNEP agreed to create an environmental data bank based, in large part, on the data received from the monitoring and assessment projects. The Secretariat provided documentation on the environmental claims and a general orientation on the UNCC’s work with the claims to UNEP. Regular meetings were held to keep UNEP informed of relevant UNCC activities. All monitoring and assessment claim files, as well as information and results generated by the ongoing monitoring and assessment projects, were copied to UNEP for review. As work under the MOU progressed, UNEP also met with the Panel’s expert consultants and with experts of the claimant governments to discuss the information that UNEP needed to conduct its analysis. On UNEP’s request, and following Panel approval, the environmental Secretariat sent questions on monitoring and assessment information to claimants. All of this information was used by UNEP to conduct its analysis and prepare reports which it presented and discussed at panel meetings. Using the information it received from the VVSB, other Secretariat members, and UNEP, the Panel prepared eight reports to the Governing Council on the tracking of funds awarded for the monitoring and assessment projects.53
III. REFINING THE PROCESS
The Panel played a key role in refining the UNCC review process to meet the unique challenges presented by the environmental claims. From time to time, the Panel issued “guidelines” to define process details or establish a new process, where this was needed. Guidelines addressed matters such as: the interaction of the Panel’s consultants with representatives of the claimants, and interaction with representatives of Iraq; the submission of monitoring and assessment information by claimant
53. For an overview on these reports and conclusions reached, see Fifth “F4” Report, paras. 780–82.
[ 52 ]
Claims Preparation and Review
governments; the nature of UNEP’s assistance to the Panel; and the transmission of materials to Iraq. These guidelines and other instructions from the Panel provided useful direction to its consultants, the environmental Secretariat, UNEP, and, in some instances, the claimants and the government of Iraq. They helped to keep the review process moving toward a timely conclusion while developing a path to reach that end.
A. Iraq’s Participation
Iraq had expressed its disagreement with the UNCC’s procedures since the early days of the Commission’s work. It wished, for example, to have more access to claim information and to drafts of panel reports; it wanted the opportunity to speak directly to the Council about panels’ recommendations; it wished to have the right to appeal Council decisions; and it wanted UNCC financing to support its work related to the claims.54 The Governing Council addressed these concerns as part of a detailed analysis that it conducted in 2000 on the then current UNCC procedures. After lengthy deliberations, in December 2000, the Council issued Decision 114, which provided policy direction to all the panels and the Secretariat.55 The decision addressed a number of issues under the topics of: the time allowed for Governing Council review of panel reports; the transmission of claim files to Iraq; oral proceedings and Iraq’s participation in the proceedings; and the provision of technical assistance to Iraq to assist it in the review of the environmental claims before the Panel. Some items addressed in Council Decision 114 reinforced the F4 Panel’s existing and planned approaches. For example, the Council’s encouragement that files relating to complex claims be transmitted to Iraq and that oral proceedings should be held for each of the F4 instalments, reflected the procedures that the F4 Panel had envisaged for the review process. The Council considered whether UNCC funds should be used to pay for technical assistance needed by Iraq to develop its views on the environmental claims and present those views to the F4 Panel. Iraq pressed for such funding. Following further deliberations, in 2001, the Council issued Decision 124 directing that up to US$5 million of UNCC funds could be used by Iraq to support its participation in the review of the environmental claims.56 The role for Iraq’s experts was broadly defined by Decision 124. Iraq could freely select its experts, subject to the UNCC Executive Secretary’s approval, to ensure the experts had the “necessary
54. See Michael Schneider, International Claims Litigation II: A Case Study of the UNCC, 99th Proceedings of the American Society of International Law 325, 330 (2005); and Schneider (note 44, supra). 55. UNCC Governing Council Decision 114, S/AC.26/2000/114 (Dec. 7, 2000). 56. Governing Council Decision 124, S/AC.26/2001 ( June 19, 2001).
THE PROCESS
[ 53 ]
professional qualifications and experience.” To ensure that funds were spent “fully in accordance with the purposes of this Arrangement,” the Executive Secretary was to approve proposed tasks for the experts and to pay the experts directly. Before completion of the work of the F4 Panel, Iraq requested additional funding for its continuing involvement. Following further deliberations, the Governing Council augmented the initial sum with a further allocation of US$5 million in 200257 and a final allocation of up to a maximum additional US$4 million in 2004.58 The allotment of substantial UNCC funds to support Iraq’s involvement in the review process significantly changed the degree of Iraq’s involvement. Iraq needed some time to assemble a full team of internal and external experts and to establish an office in Geneva from which its participation would be managed. The enhanced participation was fully functional for the review of the third through the fifth instalments of the environmental claims. New processes needed to be created to implement the Council’s direction to the Executive Secretary to review qualifications of Iraq’s experts, to review tasks for the experts, and to make payments directly to the experts. Under the new systems, the Secretariat reviewed resumes of experts Iraq intended to hire, and those reviews led to some discussions and the resolution of a few questions. It proved impossible to scrutinize the details of the tasks to be funded by the UNCC since work performed by experts for Iraq was confidential in the same manner that the Panel’s experts’ analyses and discussions were confidential. The approach chosen was to review monthly staffing and time logs taking into account the role defined for experts in Decision 124. On the other hand, administrative expenses were amenable to greater scrutiny and were reviewed in much the same manner as the administrative expenses for UNCC experts were reviewed. Questions were raised and answered, and some billing adjustments were made in the course of the administration of this funding arrangement. For some complex claims, panels other than the F4 Panel had transmitted “claim files” to Iraq for review and comment.59 The term “claim files” was defined by UNCC procedures as the claim-related materials that had been submitted by a claimant when it initially filed its claim. In the case of the environmental claims, as discussed earlier, these initial submissions often held only a sketchy view of the claims. Later submissions by governments, notably responses to Article 34 questionnaires, significantly augmented the original “claim files.” However, these later submissions were not considered as part of the “claim files” and historically were not transmitted to Iraq.
57. In UNCC Governing Council Decision 124, para. 7, the Council stated that it might increase or decrease the initial US$5 million in light of new developments. 58. Governing Council Decision 226, S/AC.26/2004/226 ( July 2, 2004). 59. At times, panels for claims in categories other than F4 selected only a limited number of claims, or a portion of a claim(s) to send to Iraq for comment. The F4 Panel transmitted claim materials to Iraq for all of the claims it reviewed.
[ 54 ]
Claims Preparation and Review
Following the Council’s deliberations which led to its Decision 114 in 2000, the F4 Panel began to work with the Secretariat to determine which materials, in addition to the original “claim files,” should be transmitted to Iraq for its review. The Governing Council was apprised of these deliberations and of the revised directions being considered for sending environmental claims-related materials to Iraq. The Council’s interest in involving Iraq more fully in the claims review process provided support for the changes envisaged by the Panel and, in the end, the practice historically adopted was expanded considerably. The final guidance from the Panel on this matter directed the environmental Secretariat to transmit to Iraq essentially all information available on a claim, except the Secretariat memoranda to the Panel, the reports and recommendations of the Panel’s expert consultants, and UNEP’s reports. All government submissions on a group of claims intended for review in an upcoming instalment were transmitted to Iraq several months before the start of review of the instalment. Materials relating to these same claims which were received later were transmitted to Iraq as soon as possible following receipt, registration, and confidentiality clearance of the material.60 Iraq’s representatives added a new element to the process of information exchange when they began to submit lengthy requests for the production of documents. These requests sometimes asked for copies of materials referenced in claimant submissions. At times, the requests were simply for information that Iraq determined would be useful for its analysis of claims. The Secretariat was able to respond to some requests with referrals to documents previously provided. Where needed, and as approved by the Panel, the Secretariat sought additional materials or information from claimants based on Iraq’s requests. As stated earlier, site visits by the Panel’s expert consultants proved to be a significant source of factual information on the claims. Iraq drew attention to this fact. To address the gap in the information Iraq received because it did not participate in the site visits, the Panel agreed that teleconference meetings could be held between appropriate experts, including the experts of Iraq, to exchange information regarding site visits. The Panel issued guidelines for the conduct of these teleconferences. The teleconferences were scheduled following a UNCC site visit and participants included key experts of the Panel and of Iraq, representatives of the government of Iraq, and UNCC Secretariat members. Parties present in Geneva would generally meet in conference to conduct teleconferences with those in other locations.
60. The Rules, art. 30 (1) states that “all records received or developed by the Commission will be confidential”; care was taken by the Secretariat to ensure that confidentiality clearances were obtained from the relevant government before claim material was sent for review by parties outside of the UNCC. In particular, names of individuals, as needed, were redacted. In the end, once Iraq obtained UNCC funds to assist with its review of the environmental claims, it received essentially all of the claim materials submitted by governments with respect to the environmental claims.
THE PROCESS
[ 55 ]
During the scheduled teleconferences, the Panel’s experts explained the nature of a particular site visit and the new information gathered during the visit. If site visits resulted in UNCC requests for further information from the claimant, such requests were noted during the teleconference, and responses to the information requests were sent to Iraq when received by the UNCC. At times, the Panel’s experts discussed with Iraq’s experts whether there might be some other relevant information on a claim that was not included with the claim’s documentation but which might be available to Iraq. As parties involved became accustomed to the process, the discussions became more interactive and lengthy. For the later conferences, Iraq’s experts provided extensive lists of questions related to the relevant site visit prior to a scheduled teleconference, and these questions began to structure the teleconference agendas. As a final development, all of the parties involved in this process, including the Panel’s and Iraq’s experts, met in conference in Geneva to discuss one of the final site visits. The involvement of Iraq in such a substantial and interactive manner, together with the involvement of a significant UNEP team, required processes that were novel at the UNCC. Where other claim categories had the claimants, the panel, the panel’s consultants, and the Secretariat team as the interacting parties, the environmental claims category added substantial Iraqi and UNEP teams. The time, resource, and management demands posed by the new participants were significant.
B. Extension of Claims Review Time
When it appeared likely that the Governing Council would approve funding for recommended monitoring and assessment projects,61 the practical realities of such a result needed to be considered in detail. After a start-up period the projects would begin to generate information that might be valuable for the review of numerous substantive claims. It would be unfortunate to conclude the review of a claim shortly before meaningful information on that claim became available as a result of monitoring and assessment work. This prospect had been generally considered when the Panel’s work plan was first developed, but, with the additional information that had become available, a more accurate analysis of the relationship of monitoring and assessment projects and substantive claims could be made. This more detailed
61. As a regular matter, some members of the Secretariat were asked to attend Governing Council informal sessions convened between the four formal Governing Council meetings held each year. Once the review of the environmental claims began, the author of this chapter was requested to provide frequent status updates on the review of the environmental claims both at formal and informal sessions. The discussions which followed these updates allowed the Secretariat to obtain an indication of the Council’s direction on a number of issues, including environmental claims issues.
[ 56 ]
Claims Preparation and Review
analysis of the relationship supported a reconsideration of the initial schedule developed for the review of the instalments.62 In light of the analysis related to the monitoring and assessment projects as well as other timing considerations, the F4 Secretariat requested an extension of its work plan should the recommendations of the Panel on the first instalment monitoring and assessment projects receive Council approval. With administrative support, at the June 2001 Council session where the F4 Panel’s report and recommendations on the first instalment were approved by the Council, the Secretariat presented its request and rationale for a time extension of the F4 work plan. The Council approved the request to shift the date for concluding environmental claims review from September 2003 to December 2004. No further request for extending the review deadline was needed. The F4 Panel essentially concluded its claims review work by the end of 2004 and signed its final report on April 1, 2005. Even with the extension of the environmental work plan, a sense of racing against the clock remained as a backdrop during the whole of the F4 claims review process. The Governing Council’s directions in Decision 114 had considerable impact on the process in this regard. In that decision the Council had increased from one month to three months, the time its own members were to have to review complex Panel reports, and it effectively increased, from six months to one year, the time Iraq would have to review most remaining environmental claim files. The requirement that Iraq receive claim file materials twelve months in advance of its comment deadline was particularly challenging to fit into the F4 work plan. Because the substantive claims with associated monitoring and assessment projects continued to generate new information up to the Panel’s final deliberations, a rigid interpretation of the twelve-month rule would create an unworkable situation. Even claims without associated monitoring and assessment work generated solicited materials and other information, submitted in a seriatim fashion, late into the review period, thereby creating the same problem. With cooperation from Iraq’s representatives, various solutions were devised to meet the purpose and intent of the twelve-month requirement in Council Decision 114. For example, it was agreed that Iraq would be sent available claim materials for a given instalment well before the formal presentation of the instalment to the Panel63 and that Iraq’s final comments would be due close to the end of the instalment review period. Iraq agreed to provide “nonbinding drafts” of its comments to the Panel, as a forecast of its anticipated views, before its twelve-month deadline for presenting comments. This approach gave the Panel time to explore and consider
62. This detailed analysis led to some realignment of claims allocated to the third and fourth instalments. Those instalments both comprised claims for future remedial work, and realignments were designed to maximize the time available to conduct needed monitoring and assessment work. 63. This was an approach encouraged by the Governing Council; see Governing Council Decision 114, para. 18.
THE PROCESS
[ 57 ]
Iraq’s views more fully than it could have if it only received final comments from Iraq toward the close of the claims review period. Further, the date which started the twelve-month review period was the date of the original transmission of claim materials to Iraq. Additional information received later by the UNCC was transmitted to Iraq as expeditiously as possible, and Iraq accepted and incorporated this new material into earlier transmissions but it did not change calculation of the twelve-month review period. Cooperation and understanding aside, the final weeks before the Panel was to sign a report were hectic. Claimants often needed the last minutes to prepare their final monitoring and assessment reports or final interim reports for ongoing monitoring and assessment projects related to substantive claims under review.64 These reports, and information generated during the oral proceedings which were held toward the end of each instalment, needed to be received, registered, filed, and transmitted to all relevant parties, including the Panel, the Panel’s consultants, Iraq’s representatives and experts, and UNEP, where appropriate. This new material then needed to be analyzed, and the Panel needed to incorporate all of this final information and comments on the information into its concluding deliberations.
C. Electronic Filings
A gradual movement within the UNCC to accept electronic filing of information assisted considerably in dealing with the time deadline challenges. Electronic exchange of information allowed materials to be sent very quickly to relevant parties wherever they were located and proved invaluable for dealing with the strict time constraints. This means of data transmission was not considered when the UNCC developed its registration, filing, and transmission protocols or the requirement that diplomatic channels should be followed for communications. As a result, particular issues arose as claimant governments, in order to meet difficult deadlines, began to send data electronically to the Secretariat members assigned to particular claims. New procedures and guidelines had to be developed, and their application tracked, to assure that all outside parties received electronically submitted information, as needed; that confidentiality requirements were preserved; that all electronic and hard copies of similar information matched or that the definitive source was identified; and that proper registration and diplomatic protocols were met. In the last years of environmental claims review, electronic data transmission became the dominant mode. Partly due to the new procedural requirements this evolution created, and partly due to the complexities presented by the multiple parties that
64. For the last instalment of F4 claims, the Panel extended the period for Iraq’s review of the complex material involved with the fifth instalment claims. As a consequence, the Panel added a few months to the review period for its final set of claims.
[ 58 ]
Claims Preparation and Review
needed to receive various materials, approximately half of the working time of one environmental Secretariat member was devoted to tracking document receipt, registration, confidentiality clearances, and transmissions to other parties. Her responsibility was to assure that all needed activities took place with the required care and any policy issues were appropriately addressed when they arose. D. Government Processes and Programs
This chapter addresses issues involved in the UNCC process for the review of the environmental claims.65 As such it does not address the numerous processes and programs claimant governments themselves developed and refined. It is important to note, even if only briefly, that the claimant governments also faced demanding time pressures and responded impressively to these. At the height of the claims review process, a claimant government could be facing a number of demands resulting from, for example: • deadlines for the submission of unsolicited information in one instalment; • a deadline for submission of reports of monitoring and assessment results from projects in a different instalment; • a deadline to respond to extensive Article 34 questions, or other questions from the consultants, Secretariat, or Panel regarding yet a different instalment; • the need to prepare for oral proceedings or a site visit by the Panel’s consultants; • a deadline for submitting financial information related to the monitoring and assessment claims. Even those governments that could allocate significant internal resources and those with assistance from outside consultants experienced the strains of the constant deadlines during the intense five years of claims review. Once Iraq was funded to fully participate in the review of the F4 claims, similar time pressures and demands were presented to it and its representatives. It is certainly a credit to all involved in this process that challenges presented were met and that the pressures presented did not diminish dedication to do the work well within the time available. IV. BRINGING CLOSURE A. Monitoring and Assessment Projects
In the spring of 2005, at the close of the environmental claims review process, fiftythree of the sixty-nine funded monitoring and assessment projects were completed.
65. For discussion of processes developed by the Panel’s consultants and by Iraq, see Huguenin, Chapter 3 and Wilde, Chapter 4, in this volume.
THE PROCESS
[ 59 ]
Of the remaining sixteen ongoing projects, nine projects involved long-term public health monitoring and assessment work that, from the start, had been expected to run well beyond the conclusion of the claims review. Two other ongoing projects related to long-term monitoring of natural resource damage and also had been recognized during the initial review as usefully extending beyond the claims review program. The remaining five projects had contributed useful information during the review of their related substantive claims and were continuing to generate data. In its final report to the Governing Council regarding the status of the monitoring and assessment projects, the Panel described the ongoing projects. It recommended that all but four of the sixteen ongoing projects be allowed to continue to use awarded funds to conclude the work planned under the projects.66 A small number of Secretariat members attended to final details after the F4 Panel signed its fifth and final instalment report on April 1, 2005. In the course of these activities, further financial reports from governments with ongoing monitoring and assessment projects were received and reviewed. UNEP and a former VVSB member were asked to provide perspective on these reports. As a result, the information available to the Panel when it prepared its final report to the Council pursuant to Governing Council Decision 132 was updated. The Secretariat recommended that, with respect to a small number of the ongoing projects, the Governing Council request claimant governments to return some of the funds that had been awarded but had not been utilized as yet. It also highlighted some details regarding the ongoing projects that would need to be followed by the Council. These matters were summarized in the final status report prepared by the environmental Secretariat.
B. Follow-up Program
The Governing Council deliberated extensively on whether funds it awarded for future remedial work or for loss of natural resources needed to be restricted as to their use. The Council sought the F4 Panel’s view on this issue. The Panel’s recommendation was that funds awarded to governments on the substantive claims should be used by the governments for the purposes for which the Panel had awarded the claims. Following further discussions, the Council directed the Secretariat to develop a follow-up tracking program for the substantive claims, including provisions regarding the UNEP-developed environmental data bank. The principal focus of the follow-up program was to assure that awards for successful environmental claims were used for the purposes that the Panel had recommended.67
66. Report and Recommendations made by the Panel of Commissioners Concerning the Fifth Instalment of “F4” Claims, S/AC.26/2005/10 ( June 30, 2005), para. 782. 67. Governing Council Decision 212, S/AC.26/2005/212 (Dec. 18, 2003), para. 5; see Mojtaba Kazazi, The UNCC Follow-up Programme for Environmental Awards, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge
[ 60 ]
Claims Preparation and Review
Developing guidelines for the follow-up program was the final task performed by the environmental Secretariat. Consultative meetings with the claimant governments and Iraq were held prior to presenting a proposed follow-up program to the Council. The Governing Council discussed and approved these guidelines. The nature of the program, progress to date, and the financing of this work are discussed in Chapter 5 of this volume.
C. Audit of Environmental Claims Work
The UNCC’s activities were subject to audits by various bodies. During the closing years of claims review, the UN’s Office of Internal Oversight Services (OIOS) conducted numerous in-depth audits of activities in relation to various claim categories.68 As this in-depth review proceeded, two OIOS investigators settled in Geneva to conduct their work on a full-time basis. Environmental claims review work was part of OIOS’s intensive investigations during the final year of F4 claims review. The OIOS’ review of F4 activity focused initially on a number of claims that the Panel was reviewing in the fifth instalment. However, understanding issues in the fifth instalment often required an understanding of claims and related issues from earlier instalments. Further, there was a strong relationship between some of the monitoring and assessment claims and claims in the fifth instalment. Consequently, the OIOS’ review of fifth instalment claims led to a review of earlier F4 activities. In particular, OIOS delved in some depth into the monitoring and assessment projects and the UNCC’s tracking of the use of funds awarded for the successful projects. The OIOS audit activity presented new challenges to concluding F4 claims review work according to the work plan schedule. Numerous meetings were held between the Secretariat and the auditor assigned to the environmental claims. OIOS requested various documents, and these had to be expeditiously provided. OIOS presented eight formal queries to the Executive Secretary, and drafts of formal responses had to be prepared by the Secretariat.69 This work proceeded as
Thomas A. Mensah 1109–29 (T. M. Ndiaye & R. Wolfrum eds., Nijhoff, Leiden 2007); and Payne, Chapter 5, II. 68. See Ronald J. Bettauer, Policy Issues Surrounding the Creation and Operations of the UNCC, Chapter 1 in Gibson and Feighery, Designing Compensation after Conflict (note 2, supra), Section IV; and Payne, Environmental Claims in Context: Overview of the Institution, Chapter 1 in this volume, Section V. 69. United Nations Office of Internal Oversight Services, OIOS Audit No. AP2005/820/01: Audit of UNCC F-4 Claims: fifth Instalment ( June 8, 2005); Correspondence from UNCC Executive Secretary to OIOS, Director, Internal Audit Division 1 ( June 22, 2005). Normally these are restricted documents but they were temporarily published on the UNCC website in 2005 when the UNCC was informed that OIOS intended to publish them on its website.
THE PROCESS
[ 61 ]
the environmental Secretariat was concluding its work and team members were departing. Shortly after the F4 Panel signed its fifth instalment report and prior to the Governing Council’s review of the Panel’s report, OIOS published its final F4 report, including recommendations regarding two potential awards for fifth instalment claims. The OIOS report contained a number of other recommendations and included an endorsement for the creation of a follow-up program. Following the usual procedures, the OIOS report and the Secretariat’s response were provided to the Governing Council and discussed with the Council, which took note of the OIOS report.
D. Archiving Records
In the last year of the environmental Secretariat’s work, attention was also focused on archiving records related to the review of the environmental claims.70 General directions had been issued to all Secretariat members regarding archiving. These directions were refined, as needed, to address unique aspects of the work involving the environmental claims. For example, the extensive F4 electronic records and the data bank UNEP had created were addressed in the specific archiving directions developed for use by the environmental Secretariat. Memoranda were prepared documenting the organizational system used to archive the environmental claims materials as a guide for potential future researchers. Files that contained materials relevant to open issues for the follow-up program and ongoing monitoring and assessment projects were left active for those who would manage that program.
V. THOUGHTS LOOKING TO THE FUTURE
Every environmental claims compensation context will be unique. Specific political, cultural, economic, or other reasons may make it impossible to adopt particular process elements. Recognizing such realities, the author offers recommended approaches that are based on her experiences in managing the Secretariat’s role during the UNCC’s environmental claims review. They are presented in the general order the issues would be best addressed when creating a process to review environmental claims. Adoption of these recommended approaches, or some of them, could minimize the high degree of uncertainty that existed at the beginning of the
UNCC Special Press Release 9 ( Jan. 8, 2005), available at http://www.uncc.ch/pressrel/ pr_9spec.pdf. The Office of Internal Oversight Services was established by the General Assembly, Resolution 48/218 B, to enhance oversight in the United Nations. 70. See Payne, Appendix: Guidance for Researchers.
[ 62 ]
Claims Preparation and Review
UNCC claims review process and the need to constantly evolve and develop new processes which characterized the UNCC environmental claims history. These are personal views and may not reflect the views of others who participated in these UNCC activities. 1. Identify the subcategories of environmental damage for compensation: Define potential subcategories of environmental damage that will be considered. Require that claims be filed under these subdivisions. If claim forms are generated, include these subcategories clearly on the forms. Avoid having to break apart and reorganize materials already submitted. 2. Define the claims and conduct any necessary monitoring and assessment of damage before the start of claims review: Know the basic substance of the claims to be reviewed, to the extent possible, before beginning the claims review process. If any monitoring or assessment of damage is needed to define the claims, determine who will be responsible for conducting such work. Consider whether it would be advantageous to have one organization or consultancy analyze the alleged damage for all claimants. Using one entity would provide a consistent analysis across all the claims; however, using one entity eliminates the potential for collateral benefits that might arise if governments are funded to conduct their own analyses. If governments are funded to do their own monitoring and assessment, to the degree feasible, issue protocols for conducting the monitoring and assessment. 3. Create a public data bank of environmental information obtained through the process: Determine early what monitoring and assessment information can be placed in the public domain and try to maximize the amount of this information, particularly where the information is gathered by the institution reviewing the claims. Take into account what confidentiality clearances need to be obtained, and clarify these matters before monitoring and assessment begins. 4. Consider involving the “paying party”: Determine the possible extent of the involvement of the “paying party” prior to beginning claims review, and set the timetable with this involvement clearly in mind. Maintain this level of involvement consistently throughout the process. 5. Identify appropriate use of claim awards: Determine at an early stage what constraints will be placed on the use of funds awarded for environmental claims. As part of the determination consider the specific nature of the environmental damage involved and whether there is ongoing public or ecosystem harm due to the damage. Communicate clearly any constraints to be placed on awards to the parties involved and develop any needed tracking processes to implement established constraints. 6. Determine procedural style: Identify whether a fact-finding, neutral approach; a more adversarial approach; or some mix of approaches will be used for the claims review. Determine whether a diplomatic process for THE PROCESS
[ 63 ]
7.
8.
9.
10.
[ 64 ]
communicating with claimants will be used or if a procedure more suited to arbitration/litigation is to be used. In making these determinations, consider carefully the circumstances which led to the creation of the claims resolution forum and the attendant experiences of the individuals and governments involved with the forum. Be mindful of the special sensitivities that may exist as a result of these circumstances and experiences. Communicate decisions regarding procedural style clearly to all the parties involved. Consider the additional time required in using diplomatic channels and protocols and ensure that this added time is reflected in timetables, if this approach is adopted. Maximize the potential for collateral benefits: Consider promoting potential collateral benefits, such as the possibility of building capacity within the systems of claimant governments, or a potential opportunity to promote helpful political engagements among the parties involved in the process. Explore approaches and arrangements that might be advantageous and possible, both during and after the review period. Keep these potential benefits in mind when developing and refining the review process. Consider process logistics, set protocols, and obtain needed resources before the start of claims review: For example, consider how communications are to take place between the reviewers and claimants. Determine to what extent electronic filing and communications will be permitted and develop protocols specifically tailored to ensuring the secure handling of such communications, including their reproduction and transmission. Determine to what extent materials and deliberations will be handled confidentially and develop protocols to assure needed confidentiality is maintained. Secure needed resources, or prompt access to resources when needed, in order to minimize avoidable delays. Set a timetable for claims resolution: Establish a realistic timetable for concluding claims review work before review begins. (For example, a ten-year work plan could have been a reasonable timetable for the review of the environmental claims submitted to the UNCC had political and practical circumstances permitted such an extended period.) Communicate the timetable and related deadlines clearly to all involved. Follow this timetable. Other considerations: Some of the approaches explored at the beginning of the UNCC process, and later abandoned, may be suitable for application in a different context. For example, one approach might be to determine in advance the total sum to be allocated for environmental claim awards in a given context, and develop a method to fairly and reasonably distribute this amount among the individual claimants without having to conduct a bottom-up review of all claim details. In the UNCC context, for example, it could have been decided to undertake an analysis of the amount and distribution of air contaminants or the amount and distribution of oil spills attributable to the conflict, and this analysis could have been used to develop percentage allocations Claims Preparation and Review
of the total sum determined to be available for environmental claim awards for the damage stemming from these pollutants. Such an approach would not offer the potential benefits that may stem from a process in which claimants are able to air their views by presenting their cases regarding the damage they suffered and the amounts which they consider necessary to compensate for such damage. However, where considered appropriate and feasible, such an approach could significantly minimize transaction costs and reduce considerably the time involved in claims review. This is only one alternative valuation approach, and other alternatives approaches for both claims review and compensation valuation should be explored. Approaches that would increase the degree of openness and transparency in the process appear important to consider, and the above recommendations for involving the “paying party,” if possible, and creating a public databank, flow from the author’s preference for as much transparency as possible. Somewhat in this vein, another avenue considered and not taken at the UNCC was to host a conference with invited participants who were specialized in the matters concerning the environmental claims. The purpose of such a conference would have been to develop early perspectives on some of the unresolved policy issues and present a summary of the deliberations for the Governing Council’s consideration. Resolving some matters early, for example, whether the Governing Council would fund monitoring and assessment activities or would require the tracking of the use of any awards, prior to the start of the formal claims review, could have provided helpful direction to all the parties concerned and thus assisted in planning for the needed process development. With the conclusion of the environmental claims review work at the UNCC, it could be useful to reconvene the UNEP Working Group (see discussion in section I, above), or a similar group of experts, or to organize a symposium to reflect on the 1998 UNEP Working Group’s paper in light of the UNCC experience. Discussions at such meetings could be helpful for refining the list of environmental damage subdivisions developed by the UNEP Working Group. It also could be quite helpful to expand the Working Group’s summary of relevant jurisprudence in light of the results of the UNCC’s work. While recognizing that scientific understanding of environmental issues and relevant environmental law will continue to evolve, it seems an appropriate time for an update of the matters considered by the Working Group. Such an update could then be used as a starting point to define the nature and scope of environmental damage potentially compensable in a future forum. A reconvening of the UNEP Working Group or an alternative forum could potentially also provide a context for determining which parts of the UNCC environmental data bank might be made public, if all the relevant parties could be included in a discussion. Other matters could be added to the agenda for such a gathering.For example, it is unfortunate that a great deal of valuable work and analysis done by the F4 Panel’s consultants remains out of public view. Details of how assessments were done (leaving aside particular claim-related aspects) and how THE PROCESS
[ 65 ]
valuations were approached could be very helpful in a variety of contexts and to various professionals. It is not clear how much of this information continues to be viewed by the relevant parties as requiring confidential treatment. One of the forums for further discussions suggested above could provide an opportunity to explore this matter further and potentially open for public use, not only the data bank information assembled by UNEP, but also other scientific materials developed in the course of the review of the environmental claims. It cannot be stressed too often that each claims review context will be unique. The UNCC experience may have been inevitable given the novel nature of the environmental claims and the historical and political context of the UNCC review process. This chapter’s discussion of the UNCC claims review process displays some of the difficult challenges that can accompany the approaches taken by the UNCC. Some of those difficulties might be avoided, or reduced, by reflecting on the UNCC experience. Such reflection should result in the UNCC experience providing helpful guidance to those engaged in future review and valuation of environmental damage claims.
[ 66 ]
Claims Preparation and Review
C HA P TER 3
Assessment and Valuation of Damage to the Environment MICH AEL T. HUGUENIN , MICH AEL C. D ONL AN , ALE X ANDR A E. VAN GEEL , AND ROBERT W. PATER SON *
INTRODUCTION
I
n this chapter we describe the methods used by the F4 Panel’s expert consultants to assess and value the environmental damage caused by Iraq’s invasion and occupation of Kuwait in 1990 and 1991. We begin by briefly outlining the major analytic frameworks commonly used to evaluate environmental damage (frequently termed “natural resource damage”). We then describe the analytic framework used in our work for the F4 Panel, as well as in virtually all our work assessing natural resource damage over the past decade. In the next section, we describe four particular
* Correspondence to
[email protected]. The authors of this chapter all are affiliated with Industrial Economics Incorporated (IEc), an environmental consulting firm located in Cambridge, Massachusetts, in the United States. IEc was selected by the UNCC to provide expert scientific and technical consultation to the F4 Panel for the claims filed as instalments one, three, four, and five, and the nonregional claims included in instalment two. Messrs. Huguenin and Donlan (with our colleague, Thomas H. Walker) coordinated all of the work conducted by IEc for the F4 Panel and were assisted by Ms. van Geel, Mr. Paterson, approximately fifteen additional professional staff from IEc, and approximately sixty external scientific, engineering, and economic experts drawn largely from academic and research institutions in North America, Europe, and Australia.
challenges we faced in evaluating the UN Compensation Commission (UNCC) F4 environmental claims. The final section offers our views on lessons for the future. As described in Chapter 2, Security Council Resolution 687 (1991) stated that Iraq is “liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.”1 Paragraph 35 of Governing Council Decision 7 (1991) stated that “direct environmental damage and depletion of natural resources” includes losses or expenses resulting from: • Abatement and prevention of environmental damage, including expenses directly related to fighting oil fires and stemming the flow of oil in coastal and international waters; • Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; • Reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment; • Reasonable monitoring of public health and performing medical screenings for the purposes of investigation and combating increased health risks as a result of the environmental damage;2 and • Depletion of or damage to natural resources.3 Neither the Security Council nor the Governing Council provided definitions for key terms such as environmental “damage,” “reasonable” measures, “damage” to natural resources, and similar terms. Operational meaning for these terms developed only as the F4 Panel rendered recommendations on specific claims. In the United States, a body of experience had developed among environmental regulators, scientists, and economists who worked during the 1980s and 1990s to develop methods to assess harm to the environment caused by hazardous substances and to calculate monetary damages that would fairly compensate the public for lost use of harmed environmental resources. This work accelerated after the 1989 Exxon Valdez oil spill in Prince William Sound, Alaska, and resulted in some of the regulatory and analytic frameworks that are outlined in the next section. We note that these frameworks generally were not developed at the time of
1. S.C. Res. 687, 46 U.N. SCOR, at 200, U.N. Doc. S/RES/687 (Apr. 8, 1991), reprinted in 30 I.L.M. 846 (1991). 2. While public health monitoring and medical screenings were included as environmental damage in Governing Council Decision 7 and the resulting public health claims were evaluated by the authors, we do not discuss public health assessment methods in this chapter. 3. Governing Council Decision 7, S/AC.25/1991/7/Rev.1 (Nov. 28, 1991, as revised Mar. 17, 1992).
[ 68 ]
Claims Preparation and Review
Iraq’s invasion and occupation of Kuwait, and were just being implemented as the F4 Panel began its work. To avoid confusion, U.S. practice evolved definitions for several key terms. Physical or biological harm to natural resources or the environment, or lost human use of these resources, is termed “injury” rather than damages. The term “damages” is used to describe the monetary payment necessary to fairly compensate the public for injuries to environmental or natural resources. The terms “environment,” “environmental resource,” and “natural resource” are used interchangeably. The entire enterprise of assessing natural resource or environmental injuries and calculating damages is termed “natural resource damage assessment” and often abbreviated as “NRDA.” We use these terms in this chapter. Early NRDA efforts in the United States generally used methods drawn from environmental economics to estimate damages. These methods (e.g., hedonic property value models, travel cost models, averted cost calculations, stated preference survey methods) aimed to calculate the public’s willingness to pay (WTP) to avoid the injury to the harmed resource as a proxy for a market value. The underlying principle is that the public would be fairly compensated by receiving a monetary award equivalent to the market value for the injured resource. But critics objected that the public often would not choose to “sell” natural resources at market prices if given the choice prior to the injury. This concern, combined with the technical difficulty and expense of using WTP methods to value natural resource injuries, resulted in movement away from WTP methods toward using restoration costs as the primary measure of damages. Using “primary” restoration efforts to speed the return of injured natural resources to their condition prior to the injury (the so-called “baseline” condition “but for” the injury) and “compensatory” restoration projects to offset any “interim” losses suffered until injured resources are returned to baseline condition4 is conceptually straightforward, fair to the public, and has become the preferred approach in most NRDAs conducted in the United States. Thus the costs of primary and compensatory restoration efforts become the measure of damages, rather than (or in some cases supplemented by) the public’s WTP for the resource.5 The language of Decision 7, by including “measures to clean and restore the environment,” was consistent with NRDA practice as it evolved in the United States.
4. Interim losses are lost resource services associated with natural resource injury from the time of injury until full recovery occurs. If full recovery does not occur, interim losses can continue in perpetuity. 5. See Zafonte and Hampton for a discussion of the strengths and limitations of using restoration costs and WTP methods for estimating natural resource damages. Matthew Zafonte & Steve Hampton, Exploring Welfare Implications of Resource Equivalency Analysis in Natural Resource Damage Assessments, 61Ecological Economics 134–45 (2007).
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 69 ]
I. FRAMEWORKS FOR NATURAL RESOURCE DAMAGE ASSESSMENT
Several national and international frameworks have developed to provide guidance for estimating injuries to natural resources and the associated (monetary) damages. These frameworks were developed at different points in time, have distinct purposes, and vary in the locations and types of injuries considered to be compensable. They also recommend use of different valuation methods. Only one of these frameworks (1971 IOPC Fund) existed in 1991, while the others were developed during the 1990s and early 2000s. Thus, claimants found little general guidance to rely on in the first years after Iraq’s actions and the F4 Panel began its work at a time when the U.S. NRDA frameworks were just being implemented.
A. International Oil Pollution Compensation Funds
The International Maritime Organization (IMO, a specialized UN agency) administers the International Oil Pollution Compensation Funds (IOPCF), an international compensation regime for injuries caused by tanker spills of persistent oil. (Nontanker spills and spills of nonpersistent oil, such as gasoline, light diesel oil, and kerosene, are not covered).6 The funds include three intergovernmental institutions: the 1971 Fund, the 1992 Fund, and the Supplementary Fund. The three funds were established at different times (1978, 1996, and 2005), have different maximum amounts of compensation, and provide coverage for different member states.7 Any individual or entity who has suffered pollution damage in a member state may make a claim against the IOPC Funds for compensation. Allowed claims to the IOPCF include costs for cleanup operations on shore and at sea, property damage, consequential loss (i.e., loss of earnings suffered by the owners of property contaminated by oil as a result of a spill), pure economic loss (i.e., loss of earnings caused by oil pollution suffered by persons whose property has not been polluted), and environmental damage.8 For purposes of IOPCF compensation, “environmental damage” is considered to include “reasonable reinstatement measures aimed at accelerating natural recovery of environmental damage,”9 but does not include compensation for interim losses. Other noncompensable environmental damages include nonmarket loss claims based on the use of valuation techniques (e.g., stated preference methods such as contingent valuation, travel cost, habitat/resource equivalency analysis, hedonic, or benefits transfer methods); none of these is eligible for IOPCF compensation.
6. International Oil Pollution Compensation Fund 1992, Claims Manual (December 2008) (hereinafter, IOPC (2008)). 7. See http://www.iopcfund.org/intro.htm (last visited Oct. 6, 2009). 8. IOPC (2008). 9. IOPC (2008).
[ 70 ]
Claims Preparation and Review
The IOPCF framework relies on definitions of environmental damage that are substantially more narrow than those developed by the F4 Panel, and limits the use of valuation techniques despite their general acceptance in the peer-reviewed literature and inclusion in other natural resource damage frameworks.
B. United States: CERCLA and OPA Frameworks
The United States has developed two frameworks for the evaluation of natural resource injuries and damages. These frameworks share a number of features and have partially overlapping jurisdictions within the United States.
1. Comprehensive Environmental Response, Compensation, and Liability Act of 1980
The first U.S. framework was promulgated under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (CERCLA).10 CERCLA authorizes designated trustees of natural resources to act on behalf of the public to recover damages for injuries to natural resources and to restore, rehabilitate, replace, or acquire the equivalent of the injured natural resources and their associated services. Natural resource damage assessment regulations11 implementing these provisions of CERCLA are developed by the U.S. Department of the Interior (DOI). These regulations focus exclusively on damages related to: (a) the release of hazardous substances including but not limited to oil, and (b) collateral injuries occurring during the course of active remediation of the hazardous substances. Environmental injuries resulting from other causes are not compensable under CERCLA. Allowed damages under CERCLA include not only costs needed to restore injured natural resources to their baseline condition but also compensation for the interim losses of these natural resources and their services. Allowable methods for estimating damages include a variety of valuation techniques. A recent revision to the DOI NRDA regulations specifically calls out conjoint analysis, habitat equivalency analysis, resource equivalency analysis, and random utility modeling as appropriate damage determination methodologies.12 This list is nonexclusive and is not intended to sanction or bar the use of any particular methodology, so long as the method complies with four mandatory “acceptance criteria”: feasibility
10. CERCLA, 42 U.S.C. Sec. 9601 et seq. 11. See 43 C.F.R. Part 11 (e-CFR, Feb. 4, 2010). 12. 73 F.R. 57259, Oct. 2, 2008.
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 71 ]
and reliability, reasonable cost, avoidance of double counting, and cost effectiveness, as set forth in 43 C.F.R. §11.83(a)(3). In selecting restoration alternatives, the DOI NRDA regulations also set forth a variety of factors for the authorized official to consider, including technical feasibility, the relationship of costs to expected benefits, the potential for collateral environmental injury, potential effects on human health and safety, and compliance with applicable laws and policies, among other considerations.13
2. Oil Pollution Act of 1990
The second U.S. framework for natural resource damage assessment was developed under the Oil Pollution Act of 1990, as amended (OPA).14 This act’s implementing regulations15 are developed by the U.S. National Oceanic and Atmospheric Administration (NOAA) and provide a framework for assessment of natural resource damages resulting from oil discharges into or upon the navigable waters of the United States, adjoining shorelines, or the Exclusive Economic Zone. The goal is to “make the environment and the public whole for injuries to natural resources and services resulting from an incident involving a discharge or substantial threat of a discharge of oil (incident).”16 Similar to the CERCLA regulations, the OPA regulations provide guidance for conducting a NRDA. The OPA regulations identify several phases that should occur during an assessment and provide guidance on key issues such as defining baseline and injury (e.g., see Box 3.1), establishing a pathway between the release of the oil and the injured natural resource, and selecting restoration actions and estimating damages. As for CERCLA, compensation may be claimed both for primary restoration of injured natural resources and for compensatory restoration to compensate the public for interim losses. To estimate interim losses, the OPA regulations specify that resource-to-resource and service-to-service scaling approaches must be considered, although authorities may employ valuation-based scaling approaches where resource-to-resource and service-to-service scaling are inappropriate.17 With respect to the selection of specific restoration actions, the OPA regulations require that a reasonable range of alternatives be developed, and that they be evaluated based on: (a) cost, (b) the extent to which each alternative is expected to return the environment to baseline condition and compensate for interim losses, (c) the likelihood of success, (d) the extent to which each will prevent future injury and
13. 14. 15. 16. 17.
[ 72 ]
43 C.F.R. § 11.82(d). 33 U.S.C. 2701 et seq. 15 C.F.R. Part 990. 15 C.F.R. §990.10. 15 C.F.R. §990.53(d).
Claims Preparation and Review
BOX 3.1 SELECTED DEFINITIONS UNDER THE OIL POLLUTION ACT OF 1990 (15 C.F.R. §990.30) • Baseline. The condition of the natural resources and services that would have existed had the incident not occurred. Baseline data may be estimated using historical data, reference data, control data, or data on incremental changes (e.g., number of dead animals), alone or in combination, as appropriate. • Injury. An observable or measurable adverse change in a natural resource or impairment of a natural resource service. Injury may occur directly or indirectly . . . [and] incorporates the terms “destruction,” “loss,” and “loss of use.” • Natural resources. Land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources. • Pathway. Any link that connects the incident to a natural resource and/ or service, and is associated with an actual discharge of oil. • Restoration. Any action. . . or combination of actions. . . to restore, rehabilitate, replace, or acquire the equivalent of injured natural resources and services. Restoration includes: (a) Primary restoration, which is any action, including natural recovery, that returns injured natural resources to baseline; and (b) Compensatory restoration, which is any action taken to compensate for interim losses of natural resources and services that occur from the date of the incident until recovery. • Services. The functions performed by a natural resources for the benefit of another natural resource and/or the public.
avoid collateral injuries, (e) the extent to which each benefits more than one natural resource and/or service, and (f) the effect of each on public health and safety.18
C. European Union: Environmental Liability Directive
In 2004, many years after the establishment of the UN Compensation Commission, the European Parliament, and the Council of the European Union passed the Environmental Liability Directive (ELD).19 The Directive attaches liability to specifically listed occupational activities, and also to other activities in cases where the
18. 15 C.F.R. §990.54(a). 19. Council Directive 2004/35 of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (Environmental Liability Directive), OJ L143/56 (2004), as amended by Council Directive 2006/21/EC, OJ L102 (2006).
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 73 ]
operator is at fault or negligent. “Damage” is defined as: (a) direct or indirect damage to the aquatic environment covered by Community water management legislation; (b) direct or indirect damage to species and natural habitats protected at Community level by the 1979 “Birds” Directive or by the 1992 “Habitats” Directive; and (c) direct or indirect contamination of the land that creates a significant risk to human health. Member states of the European Union were required to incorporate the ELD into each country’s legal framework by April 30, 2007. Compensation regimes under the ELD must permit compensation for both primary remediation and compensatory restoration (in U.S. parlance), although the ELD uses distinct terminology to separate the U.S. term “compensatory restoration” into two parts: 1. Compensatory remediation, defined as any action taken to compensate for interim losses of natural resources and/or services that occur from the date of damage occurring until primary remediation has achieved its full effect, and 2. Complementary remediation, defined as any remedial measure taken in relation to natural resources and/or services to compensate for the fact that primary remediation does not result in fully restoring the damaged natural resources and/or services. In valuing the losses associated with compensable incidents, the ELD expresses an explicit preference for resource-to-resource or service-to-service equivalence scaling approaches (e.g., habitat equivalence analysis and resource equivalency analysis). Where these approaches are not possible, alternative valuation techniques are allowed.
II. NATURAL RESOURCE DAMAGE ASSESSMENTS IN PRACTICE
Natural resource damage assessments typically occur in a phased fashion. Some NRDA frameworks describe these phases and provide guidance as to the specific steps and methods that should be part of each. While details differ, there are common elements we outline below.
A. Injury Determination
Injury determination and quantification (discussed in section II.B, below) are the first components of a NRDA. Injury determination relies on several key concepts. First, exposure to a hazardous substance or potentially injurious factor generally does not constitute an injury per se. Exposure is an essential part of establishing causality but it is not a sufficient basis for concluding that injury actually occurred. Evidence of specific adverse effects are required—for instance, both the OPA and [ 74 ]
Claims Preparation and Review
CERCLA NRDA regulations’ definition of injury require a measurable adverse change in the natural resource or resource services to have occurred.20 In practice, what constitutes a measurable adverse effect can be controversial. One issue is the trophic level at which an effect is considered to constitute an injury. For instance, if a change occurs at the biochemical level within cells in a plant or animal, does this constitute an injury, especially if the organism in which the effect occurs otherwise appears healthy? Similarly, does an impact to an individual organism, even if that impact is death, constitute an injury if the population of the organism appears to be robust? 21 At a higher level of abstraction, injury might be defined as changes to flows of energy or matter within ecosystems. While such flows may be essential to ecosystem functionality, it is less clear how to identify possible disruptions in these flows and determine the level of disruption that might constitute an injury. Another key issue in injury determination relates to causality. At a minimum, it is necessary to identify and substantiate a pathway from the release or event alleged to cause injury to the natural resource in question.22 In the case of chemical contamination, this pathway must include evidence describing the fate and transport of the released chemical. For other kinds of environmental harm, other causal chains must be constructed. For instance, in a claim involving refugee impacts, it is important to establish that sufficient numbers of refugees fled into the impacted area and that alleged impairments to natural resources can be traced temporally to the time of the influx. Individual organisms and ecosystems are complex, and often more than one external stressor may influence an organism or system. It is important to determine the amount of injury caused by the compensable actions versus the amount of injury caused by other, unrelated factors (“confounders” in the language of statistics). To the extent that plausible independent causes of injury exist, their effect must be accounted for so that compensation is not claimed for unrelated factors. Causality can be difficult to determine in situations where multiple hazardous substances and anthropogenic effects could contribute to an observed injury (e.g., impaired benthic community structure near large urban centers). An important practical consideration in determining and quantifying injury relates to the nature and quantity of data required. The DOI NRDA regulations set forth basic data requirements for injury determination. These requirements differ by natural resource but in general represent a relatively low threshold of proof.23 For example, in determining injury to surface waters, the requirements include the
20. 15 C.F.R. §990.30, 43 C.F.R. §11.14(v). 21. See, e.g., discussion in D. Cacela, J. Lipton, D. Beltman, J. Hansen, & R. Wolotira, Associating Ecosystem Service Losses with Indicators of Toxicity in Habitat Equivalency Analysis, 35 Environmental Management, 343–51 (2005). 22. See, e.g., 15 C.F.R. §990.51(d), 43 C.F.R. §11.63. 23. See 43 C.F.R. §11.62.
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 75 ]
collection of two water samples (or two sediment samples, or one sediment and one water sample) taken from separate locations at least one hundred feet apart, or two water samples taken from the same location collected at different times. These, and other similar data requirements set forth in the DOI NRDA regulations, are quite minimal and, while sufficient to determine injury within the DOI framework, seldom provide a sufficient basis for subsequent injury quantification. In practice, many more samples are evaluated during the course of an assessment. As discussed in Chapter 2 the UNCC did not set forth requirements with respect to minimum data quantity or quality standards to establish or quantify injury.24
B. Injury Quantification
Once injury is established, it is necessary to quantify its magnitude.25Quantification may reflect geographic scope (area covered) and/or numeric extent (numbers of individuals affected, biomass), as well as temporal duration (past and future). Figure 3.1 represents a typical time path of an injury. Initially, the natural resource provides some baseline level of services. The injurious event reduces the magnitude of those services. Over time, either through natural process or through active remediation, services increase and may (or may not) eventually return to their pre-incident level. The shaded area in Figure 3.1 represents the interim services lost due to the incident. In Figure 3.1 the injury is shown as continuing in perpetuity, although this is not always the case. Determining the baseline condition of a natural resource may be relatively straightforward or quite complex. If the injury in question is the mortality of an organism, then the baseline condition for that organism is straightforward—i.e., but for the event, the organism would have survived—although even this situation can become more complicated if baseline is defined to include not only the organism’s status but also its likely reproductive output during its remaining natural lifespan (and its progeny’s progeny, and so forth). Determining baseline also is complicated by the wide variability inherent in nature, and the range of types and extent of anthropogenic influences on different organisms and areas. The two most common ways of identifying baseline condition are: (a) historic—i.e., defining baseline as the resource’s condition immediately prior to the event; and (b) based on reference areas—i.e., identifying one or more locations that are similar except for the effect of the stressor of interest.26 The OPA regulations further allow baseline to be determined using control data
24. See also discussions of evidentiary standards set by Governing Council Decision 7, para. 37 and Governing Council Decision 46, S/AC.26/Dec. 46 (1998) in Chapter 6, section II.F, in this volume. 25. See, for instance, 15 C.F.R. § 990.52 and 43 C.F.R. § 11.70(e-CFR, Feb. 4, 2010). 26. See 43 C.F.R. § 11.72(c), (d) (e-CFR, Feb. 4, 2010).
[ 76 ]
Claims Preparation and Review
Baseline services (“but-for”) Service losses
Actual services
Ecological services Remaining services Time Incident Recovery begins
Maximum recovery achieved
Figure 3.1: Time Path of Injury
and data on incremental changes (e.g., numbers of dead animals), alone, or in combination with other methods.27 Typical challenges in defining baseline include an absence of information prior to the injurious event, and difficulty in identifying locations sufficiently similar to, but uninfluenced by, the injurious event.
C. Restoration Planning and Damage Estimation
U.S. NRDA practice recognizes two types of restoration actions: primary restoration and compensatory restoration.28 Primary restoration includes actions at the injured location designed to return the injured natural resource to baseline condition. Full primary restoration may not always be technically feasible or achievable at reasonable cost. The cost of primary restoration is a major component of damages. Primary restoration alone cannot fully compensate the public for injuries to natural resources because it does not take into account the reduction in the quantity and quality of resource services for the period of time between the injury and the eventual recovery to baseline (see Figure 3.1, above). Further, some natural resources may never fully recover from certain injuries, and this permanent reduction in the quantity and/or quality of natural resource services also requires compensation.29
27. 15 C.F.R. §990.30. 28. E.g., 15 C.F.R. §990.10. 29. As noted previously, the European Environmental Liability Directive further divides actions aimed at compensating for interim losses into complementary and compensatory remediation actions. Of note, the terms “restoration” and “remediation” frequently have different technical meanings within the U.S. and European regimes; care is warranted in defining terms when referencing one or both frameworks.
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 77 ]
Compensation for interim losses may be determined as the cost of compensatory restoration projects. Ideally, these projects are tailored to the type of service losses incurred,30 and are provided to geographic areas at or close to the site of injury so that the people and wildlife in the injured area are those that receive the benefits of the compensatory actions. These principles are sometimes referred to as a preference for in-place, in-kind restoration. A variety of compensatory restoration actions are possible. For losses of ecological services provided to humans, such as the opportunity for recreational fishing, actions aimed at improving the recreational fishing experience (e.g., more or better fishing sites or boat ramps, more restocking of fish) can be implemented. Where losses are ecological services that are not provided to humans such as forage provided by one species for another, habitat equivalency analyses (HEA) often are employed.31 The goal of HEA is to identify restoration projects and estimate the size of such projects needed to produce ecological services similar to those that were lost, using economic discounting to ensure that differences in the timing of the losses and gains are taken into account in calculating the quantity of restoration needed.32 In recent years, HEA has become increasingly used in natural resource damage assessments in the United States and around the world. The ELD, the U.S. OPA NRDA regulations,33 and recent changes to the U.S. DOI NRDA regulations34 specifically approve—and in the case of the ELD and OPA regulations, express a preference for—equivalency methods. When these methods are used, damages are calculated as the cost of implementing the selected restoration projects at a sufficient scale—including planning, long-term monitoring, and maintenance costs—to provide ecological services equivalent to those that were lost. The theoretical underpinning of HEA is conceptually straightforward. The major challenge in using the approach lies in the selection of the input values. HEA requires estimates of the extent of injuries across space and time, including projected ecological losses into the future. As described above, defining and quantifying injuries can be complex and subject to a wide range of scientific uncertainties,
30. For instance, under the OPA regulations, Trustees must consider compensatory restoration actions “that provide services of the same type and quality, and of comparable value” as those that were injured (15 C.F.R. §990.53(c)(2)). 31. A similar approach called resource equivalency analysis (REA) also is used. The general principles of HEA and REA are identical, although the units in which injury is quantified differ. In HEA, the units are those of habitat and are expressed in areal metrics, such as acres, or service-acre years. In REA, the units are more varied but are not habitat-based. Example units in a REA might be bird-years, or annual production of fish biomass. The present discussion focuses on HEA because it is the method used by a number of countries that submitted claims to the UNCC. 32. Robert E. Unsworth & Richard C. Bishop, Assessing Natural Resource Damages Using Environmental Annuities, 11 Ecological Economics (1994). 33. 15 C.F.R. §990.53(c)(2). 34. 73 F.R. 57259, 2 October 2008.
[ 78 ]
Claims Preparation and Review
which produce a correspondingly large range of uncertainty in the HEA results. HEA also requires estimates of the magnitude and timing of ecological services to be provided by the restoration action under consideration. Further guidance on HEA is provided in Unsworth and Petersen35 and in NOAA.36 Publicly available examples of HEA and the related method, resource equivalency analysis (REA), include Lorentz et al.,37 Milon and Dodge,38 NOAA et al. (2002),39 Sperduto et al. (2003),40 McCay et al. (2004),41 and van Geel et al. (2008),42 among others. U.S. regulations also allow for monetary valuation of interim service losses. Such methods typically are used when estimation of restoration costs or equivalency analysis is not feasible. Approved methods can be divided into two categories: market and nonmarket. Valuation via market prices is appropriate where injury has increased the cost of resource use, reduced the quality or quantity of the resource available for market, or induced changes in the market price of the resource. Examples might include injuries to a commercial fishery, or a groundwater aquifer in an arid area where a functioning water market exists. In contrast, if injured resources are not traded and priced explicitly in markets, nonmarket valuation methods must be used. These methods are further divided into two types: revealed preference and stated-preference. Revealed preference methods infer values for natural resources and associated services from consumer behavior. For example, the value of a day of beach recreation can be estimated using information on the costs one incurs to travel to that beach (referred to as travel cost and random utility
35. Robert E. Unsworth & Timothy B. Petersen, A Manual for Conducting Natural Resource Damage Assessment: The Role of Economics (Division of Economics, U.S. Fish and Wildlife Service, 1996). 36. National Oceanic and Atmospheric Administration, Dept. of Commerce, Habitat Equivalency Analysis: An Overview (2006). 37. W. P. Lorentz, J. Hall, H. Finely, J. Hanifen, D. Hamilton, L. Pace, T. Penn, J. Kern, B. Goatcher, R. Markarian, & C. Piehler, The Lake Barre Oil Spill NRDA: From Response to Restoration, International Oil Spill Conference—Scaling of Injury 667–70 (2001). 38. J. Walter Milon & Richard E. Dodge, Applying Habitat Equivalency Analysis for Coral Reef Damage Assessment and Restoration 69 Bulletin of Marine Science, 975–88 (2001). 39. National Oceanic and Atmospheric Administration (NOAA), Maryland Department of Natural Resources, Maryland Department of the Environment, U. S. Fish and Wildlife Service, Final Restoration Plan and Environmental Assessment for the April 7, 2000 Oil Spill at Chalk Point on the Patuxent River, Maryland (2002). 40. Molly B. Sperduto, Sean P. Powers, & Michael Donlan, Scaling Restoration to Achieve Quantitative Enhancement of Loon, Seaduck, and Other Seabird Populations, 264 Marine Ecology Progress Series 221–32 (2003). 41. Deborah French McCay, Jill Jennings Rowe, Nicole Whittier, Sankar Sankaranarayanan, & Dagmar Schmidt Etkin, Estimation of Potential Impacts and Natural Resource Damages of Oil, 107 Journal of Hazardous Materials 11–25 (2004). 42. Alexandra E. van Geel, Christine Lee, & Robert E. Unsworth, Final Pre-Assessment Screen for the Rocky Mountain Arsenal, Prepared for the Program Manager, Rocky Mountain Arsenal on behalf of the Federal Trustees for the Natural Resources on the Rocky Mountain Arsenal ( July 2008).
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 79 ]
methods). Similarly, the value of an environmental amenity may be revealed through nearby land and housing price premiums (determined using hedonic methods). Alternately, stated-preference methods involve creation of a hypothetical market that allows respondents to explicitly state their value for a resource. This is accomplished through carefully designed surveys (referred to as contingent valuation and conjoint methods). Both Champ et al. (2003) and Freeman (2003) provide complete treatments of nonmarket valuation methods.43 When circumstances do not allow the time and resources required to implement a primary study using one of the above valuation methods, the “benefit transfer” method sometimes is used. Benefit transfer is a process where existing valuation information is adapted to different circumstances. The accuracy and reliability of benefit transfer analyses depends critically on the similarity of the environmental and economic context between the original research and the transfer application. For this reason, benefit transfer is commonly applied only to a limited set of resource services that are well studied. In the United States, both the Office of Management and Budget (OMB) and the Environmental Protection Agency (EPA) have published guidance criteria to evaluate the quality of benefit transfer.44
III. CHALLENGES IN ASSESSING UNCC F4 ENVIRONMENTAL CLAIMS
We turn now to the major challenges faced by the F4 Panel’s expert consultants as we began, in early 2000, to evaluate the environmental claims. We focus here on technical challenges; problems stemming from very short schedules, difficult contracting requirements, frequent submission of new information, and evolving guidance from the UNCC have been outlined in Chapter 2. While there were many issues to resolve, we discuss four key challenges below: • • • •
Limited knowledge of environmental conditions in claimant countries, Multiple definitions of environmental “damage,” Difficulty linking alleged damage to Iraq’s actions, and Difficulty scaling claimed compensation to the injury.
43. Patricia A.Champ, Kevin J. Boyle, and Tom C. Brown (eds.), A Primer on Nonmarket Valuation (Kluwer Academic Publishers, Dordrecht 2003); and A.M. Freeman, The Measurement of Environmental and Natural Resource Values, (Second ed., Resources for the Future, Washington, DC 2003). 44. U.S. Office of Management and Budget, Circular A-4, Guidance on Development of Regulatory Analysis (2003); U.S. Environmental Protection Agency, Guidelines for Preparing Economic Analyses (2000).
[ 80 ]
Claims Preparation and Review
A. Limited Knowledge of Environmental Conditions
Our initial review of the F4 environmental claim documents revealed that many claims did not provide adequate information describing environmental conditions prior to Iraq’s invasion and occupation of Kuwait, the environmental damage for which compensation was claimed or the link from the alleged damage to Iraq’s actions. Quantitative data describing oil contamination levels in various environmental media (e.g., soils, groundwater) and in biota, the sources and pathways of such contamination and resulting effects from contamination were especially scarce. In view of the general lack of information in the claim documents, and guidance from the F4 Panel asking that we conduct proactive and objective fact-finding (rather than simply evaluate claimant submittals as “inadequate”), we needed to develop considerable knowledge of environmental conditions in the claimant countries. We first conducted computerized literature reviews to search for academic and technical literature relevant to each instalment of claims. While our searches were limited primarily to English-language documents, we found many documents that provided at least some background information about environmental conditions in claimant countries. For example, our initial preparation to conduct fact-finding for the instalment three claims identified over 300 documents of possible relevance, and our preparation for instalment four identified an additional 150 references. At the close of our work on each instalment, we prepared digital databases that cataloged relevant literature available in the public domain; these databases (which the United Nations has not released to the public) identified over 600 documents related to natural resource issues in claimant countries by the end of our work with the F4 Panel. Despite the many documents identified through literature searches, specific information relevant to the environmental damage claims still was in short supply. Our review of claim documents allowed us to identify over a dozen disciplines (e.g., marine biology, hydrology, soil science, petroleum chemistry, atmospheric transport, resource economics) that would be needed to understand and evaluate the claims. In addition, the literature searches allowed us to identify researchers who were familiar with environmental conditions in the claimant countries. We conducted discussions with scores of researchers, including leading authorities in a variety of disciplines relevant to the environmental claims as well as researchers identified through the literature search with knowledge of environmental conditions in claimant countries. Based on these discussions (which continued throughout our work with the F4 Panel), we recruited a team of external expert consultants with the required mix of technical knowledge and understanding of local conditions. In addition to professional expertise, we selected external experts who were able to appreciate cultural differences and communicate across cultural boundaries, who were unbiased and fair-minded, and who could work effectively given the rapid schedules and sometimes uncertain requirements that characterized A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 81 ]
much of our work. The technical expertise, local knowledge, and diversity of views held by the consultant team proved critically important in assisting the F4 Panel.45 As the process moved forward, additional data were submitted by many claimants in response to Article 34 queries46 and as results of UNCC-funded monitoring and assessment (M&A) studies became available. These data were critical to our ability to evaluate the claims. In addition, we conducted site visits to claimant countries to discuss the claims in detail, and to visit sites where injury was claimed to exist as well as (in some cases and at our request) reference sites.47 The site visits allowed for direct interchange with claimant scientists and officials, inspection of locations where alleged injury had occurred, and requests for submission of additional information and data. In our view, the site visits were the single most important factor that allowed objective and useful fact-finding to be completed for the environmental claims. In summary, the initial lack of information about environmental conditions in claimant countries and about the claims themselves was remedied by (1) constructing an expert team with a mix of discipline-specific and regional knowledge, (2) visiting the claimant countries to view alleged injury and discuss the claims in detail with claimant scientists and officials, and (3) receiving additional information and data supporting the claims, based on both UNCC-funded M&A studies and on discussions and requests made during the site visits. The information developed about the claims and describing environmental conditions in claimant countries, when combined with the expert consultants’ knowledge of remediation and restoration practices in other parts of the world, proved sufficient to allow the F4 Panel to evaluate the merits of each claim and to suggest improvements to many of the actions proposed by claimants. For example, terrestrial and marine restoration actions proposed by Kuwait and Saudi Arabia as well as rangeland restoration proposed by Jordan were revised by the F4 Panel to
45. We attempted to identify and recruit expert consultants from claimant countries and the Mideast region to join our group. These attempts were not successful for three reasons. First, many experts in the region were not comfortable communicating in English, the required language for work with the UNCC. Second, many experts in the region were employed by or funded by claimant governments, creating a potential or actual conflict of interest. Finally, few regional environmental experts at that time were familiar with the kinds of environmental injury assessment and valuation tasks that we were to undertake. By the end of our work, the external expert consultant group included approximately sixty individual experts drawn from North America, Europe, and Australia, who were coordinated and supported by approximately twenty professionals from Industrial Economics, Inc. 46. Pursuant to Article 34 of the Provisional Rules for Claims Procedure, the Secretariat could request claimants to provide additional information concerning their claims. Governing Council Decision 10, S/AC.26/1992/10 (26 June 1992). See Chapter 2, section II.E, in this volume for more information concerning the Article 34 process. 47. Reference sites are locations where environmental conditions are thought to be similar to impacted sites except for the effects of the contamination of interest. Reference sites commonly are used in natural resource damage assessment to determine and quantify natural resource injury.
[ 82 ]
Claims Preparation and Review
better reflect the scale of environmental harm caused by Iraq’s actions, incorporate improved methods, further enhance natural recovery, or minimize collateral damage to the environment.48
B. Multiple Definitions of Environmental “Damage”
As described in Chapter 2, the issue of what precisely constituted “environmental damage” for which compensation could be claimed had been raised by claimants consistently during the 1990s. No direction on this issue had been set forth by the UNCC. Thus it is not surprising that the claims varied greatly in what precisely was claimed as environmental damage. While some claims appeared to propose physical or biological effects as “damage” (for example, loss of livestock, fisheries, or habitat quality), other claims appeared to equate oil contamination or simply the possibility of contamination with “damage.”49 In these cases, claimants may have been motivated by desire to remove all visual reminders of Iraq’s invasion and occupation, the oil well fires and oil spills, and the turmoil that followed. As described previously in this chapter, U.S. regulatory agencies and environmental professionals spent considerable effort defining terms in the 1980s and 1990s as part of natural resource damage regulations promulgated under CERCLA and OPA 1990. In U.S. parlance, “damages” refers to the monetary compensation awarded for natural resource harm, and “injury” is the term used to describe physical or biological harm to natural resources and the environment. Injury also can occur if contamination of natural resources limits human use of that resource, for example when oiling on beaches limits their recreational use. U.S. regulations and practice are clear that contamination by oil or hazardous substances does not in and of itself constitute injury for which damages can be claimed. To claim natural resource damages in the U.S. system, one must show that contamination caused or was likely to cause physical or biological impairment, or reduced human use.50 During the course of their work, the F4 Panel came to hold this view as well.
48. The “Technical Annexes” included at the end of the F4 Panel reports for instalments three, four, and five include suggested modifications for six claims in instalment three, eight claims in instalment four, and three claims in instalment five. 49. There also were claims for which, perhaps due to translation difficulties, it was very difficult to ascertain exactly what was being claimed as environmental damage. Most of these claims were clarified as a result of Article 34 inquiries and site visits. 50. This same conceptual framework was applied to environmental impacts caused by the movements of refugees and their livestock that were caused by Iraq’s actions. Both Jordan and Iran were awarded compensation by the F4 Panel for environmental injury caused by refugee movements. Report and recommendations made by the Panel of Commissioners concerning the fifth instalment of “F4” claims, U.N. Doc. S/AC.26/2005/10 ( June 30, 2005) (hereinafter, Fifth “F4” Report), paras. 329, 366; Report and recommendations made by the Panel of Commissioners concerning part one of the fourth instalment of “F4” claims, U.N. Doc. S/AC.26/2004/16 (Dec. 9, 2004) (hereinafter, Fourth “F4” Report, part 1), para. 78.
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 83 ]
A number of claims successfully demonstrated physical or biological impairment of environmental resources—for example, various terrestrial, groundwater, and marine claims of Kuwait, some terrestrial and marine claims of Saudi Arabia, and certain claims of Iran and Jordan.51 The F4 Panel recommended compensation for these claims. Other claims did not demonstrate physical or biological impairment of environmental resources, or appeared to equate contamination or the possibility of contamination with actual impairment. For example, Saudi Arabia and Syria both made claims for death of livestock caused by smoke from the oil well fires in Kuwait. The literature shows that harm to livestock by smoke generally would require exposure to higher levels of contamination for longer periods of time than was likely to have resulted from the oil well fires. Thus the F4 Panel was not persuaded that biological harm had occurred even though some exposure and contamination was possible.52 Similarly, Jordan claimed that the refugee influx resulted in reduced coral growth over 1,300 meters of coral reefs along parts of its Gulf of Aqaba coastline, particularly the King Abdullah Reef opposite the National Touristic Camp where refugees were present in large numbers, especially during a three-week period in August and September 1991. While the reefs likely were exposed (directly or indirectly) to refugee activity, no compensation was recommended by the F4 Panel due to shortcomings in available information to confirm injury to the reefs by the refugees.53
C. Difficulty Linking Alleged Injury to Iraq’s Actions
The F4 Panel required that claims for compensation be based on injuries directly caused by Iraq’s invasion and occupation of Kuwait. The Panel stated: . . . the Panel has considered whether, and if so to what extent, the evidence available indicates that the damage for which compensation is sought was wholly or partly the result of factors unrelated to Iraq’s invasion and occupation of Kuwait. It has also considered whether the claimant has aggravated or otherwise contributed to the damage, either
51. See, for example, Kuwait claims 5000256, 5000450, and 5000452 and Saudi Arabia claim 5000451 reviewed in the third instalment; Iran claim 5000456, Kuwait claims 5000259, 5000454, and 5000466, and Saudi Arabia claims 5000455 and 5000465 reviewed in the fourth instalment; and Jordan claim 5000304, Kuwait claim 5000460 and Saudi Arabia claim 5000463 reviewed in the fifth instalment. Report and recommendations made by the Panel of Commissioners concerning the third instalment of “F4” claims, U.N. Doc. S/AC.26/31 (December 18, 2003); Fourth “F4” Report, part 1; Fifth “F4” Report. 52. The livestock claims also presented a variety of evidentiary and other shortcomings. For more information, see the discussion at paragraphs 548 to 556 and paragraphs 744 to 753 of the Fifth “F4” Report. 53. For more information, see paragraphs 383 to 388 of the Fifth “F4” Report.
[ 84 ]
Claims Preparation and Review
by failing to take appropriate steps to mitigate damage or by negligent or other improper action. Where, on the basis of the evidence, the Panel finds that damage resulted from causes wholly unconnected with Iraq’s invasion and occupation of Kuwait, no compensation is recommended for such damage or loss. Where the evidence shows that damage resulted directly from Iraq’s invasion and occupation of Kuwait but that other factors have contributed to the damage for which compensation is claimed, due account is taken of the contribution from such other factors in order to determine the level of compensation that is appropriate for the portion of the damage which is directly attributable to Iraq’s invasion and occupation of Kuwait.54
Many of the resources impacted by Iraq’s actions also were subject to a variety of natural and anthropogenic stressors unrelated to the invasion that could affect resource condition. Our evaluations considered two issues: causality (could the alleged injury be linked to Iraq’s actions) and confounding factors (could the amount of injury attributable to Iraq’s actions be distinguished from injury caused by other factors). Compensation awards should reflect deviations from baseline conditions caused by Iraq’s actions, with baseline defined as expected resource conditions if Iraq’s invasion and occupation had not occurred. 55 A variety of methods can be used to estimate baseline conditions, including (for example) temporal trend analysis incorporating historical data from impacted areas, reference area comparisons that evaluate trends in similar areas unaffected by the invasion, and dose-response calculations that estimate the incremental harm attributable to increased, invasionrelated contaminant concentrations. Modeling techniques incorporating uncertainty analysis (e.g., Monte Carlo methods) can be used to develop bounding estimates of baseline conditions, and are useful to explore the effects of data uncertainties. 56 Many claimants had difficulty linking claimed injuries to Iraq’s actions. In some cases this appeared to be caused by a lack of understanding of the need to address causality, confounding factors and baseline resource conditions. Other claims were hindered by severe lack of data, and the initiation of monitoring and assessment
54. Report and recommendations made by the Panel of Commissioners concerning the first instalment of “F4” claims, U.N. Doc. S/AC.26/2001/16 (2001), paras. 33–34; Report and recommendations made by the Panel of Commissioners concerning the second instalment of “F4” claims, UN Doc. S/AC.26/2002/26 (2002), para. 40. Similar language is used in Third “F4” Report, para. 39; Fourth “F4” Report, part 1, para. 40; Fifth “F4” Report, paras. 37–38. 55. See, e.g., para. 47 of the Third “F4” Report. 56. Monte Carlo analysis is an analytical technique in which a large number of simulations are run using random draws from a range of potential values for uncertain variables and the resulting distribution of results examined to identify upper and lower bounds and probabilities associated with intermediate values. We constructed a Monte Carlo model to further refine volume calculations and needed restoration actions for Kuwait’s groundwater claim 5000256. See the Third “F4” Report, paras. 63–83.
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 85 ]
studies nearly ten years after Iraq’s invasion and occupation. Collection of perishable data immediately following a causative incident has become a basic tenet of NRDA practice and dramatically increases the ability to identify incident-specific impacts. While rapid collection of such data is difficult or impossible directly following military activities, it remains important to collect environmental data as soon as practicable after a military incident.57 In circumstances where factors unrelated to Iraq’s actions clearly were important determinants of resource condition and were not sufficiently addressed by the claimant, no compensation was recommended. For example, Syria sought compensation for expenses to restore and conserve cultural heritage resources alleged to be harmed by exposure to airborne contaminants generated by the oil well fires in Kuwait. While evidence in the scientific literature confirmed that parts of Syria were exposed to emissions from the oil well fires, the Panel noted that “the four cultural heritage sites identified by Syria represent the remains of historically important cities that have suffered from human activities as well as the destructive effects of invasion and plundering, devastating earthquakes, natural weathering and abandonment over many centuries.”58 While it is possible that the claimed cultural heritage sites were exposed to some oil contamination from the oil well fires in Kuwait, the claimants were not able to document specific effects of this contamination or to separate any such effects from the general effect of aging or from effects from other sources of hydrocarbon contamination such as vehicle exhaust. No compensation was recommended, reflecting Syria’s failure to demonstrate the incremental harm to these cultural heritage resources caused by Iraq’s actions.59 Similarly, Jordan submitted a claim for harm to the Azraq wetlands caused by Iraq’s actions. The Azraq wetlands are listed under the 1971 Ramsar Convention on Wetlands of International Importance60 and provide important habitat for both resident and migratory bird species. Unfortunately, the Azraq wetlands have been greatly reduced over the past several decades due to groundwater withdrawals and diversion of upstream flows that are unrelated to Iraq’s actions. The F4 Panel was
57. During and following the oil well fires and oil spills a variety of investigations were conducted by scientists from around the world. While these investigations provided useful background information, in general they did not provide explicit information supporting specific claims. For an example of recent practice for initial evaluation of environmental injury following military conflict, see the Post-Conflict Environmental Assessment conducted by the United Nations Environment Programme following the July 2006 attacks on Lebanon by Israel ( January 2007), available at http://www.unep.org/pdf/Lebanon_PCOB_Report.pdf. 58. Fifth “F4” Report, para. 740. 59. The cultural heritage claims by Syria (and Iran) also presented a variety of evidentiary and other shortcomings. For more information, see the discussion at paragraphs 192 to 207 and paragraphs 720 to 743 of the Fifth “F4” Report. 60. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, adopted at Ramsar/Iran on February 2, 1971 (in force December 21, 1975; 996 UNTS 245).
[ 86 ]
Claims Preparation and Review
not able to determine what if any additional harm was caused to the wetlands by Iraq’s actions.61 In some cases, information provided by the claimant and/or publicly available data from relevant technical literature provided a basis for the F4 Panel to adjust compensation awards to reflect incremental impacts associated with invasionrelated causes. For example, Saudi Arabia sought compensation for future expenses to remediate damage alleged to have been caused by sunken oil released at the time of Iraq’s invasion and occupation of Kuwait. The Panel found this claim to be overstated but was able to recommend an appropriate compensation award by utilizing publicly available data concerning the trajectory of spilled oil, claimant-provided sampling data that identified areas with concentrations of oil sufficient to cause ecological harm and claimant-provided chemical “fingerprinting” analyses that provided information about the source of observed oil.62
D. Difficulty Scaling Claimed Compensation to Injury
Documenting injury that directly resulted from Iraq’s invasion and occupation of Kuwait was a necessary but not sufficient condition for receiving a compensation award. The F4 Panel also required that successful claims make use of a defensible valuation methodology, with a clear connection to the type and magnitude of injury (e.g., compensation based on direct restoration of the specific injured resources and/or projects providing an appropriate amount and type of compensatory restoration). Further, inputs to compensation calculations must be clearly identified, reasonable, and incorporate site-specific information including the potential impacts of natural and anthropogenic factors unrelated to Iraq’s invasion and occupation of Kuwait. In general, the substantive F4 environmental claims fell into two categories: 1) restoration cost claims, seeking compensation equal to the cost of projects intended to restore injured resources to their baseline condition or compensate for the interim loss of injured resources until baseline conditions were restored, and 2) claims seeking the lost “value” of injured resources, using market-based or other valuation techniques. Key challenges associated with each of these categories are summarized below. The restoration cost method was the most common damages estimation technique applied by claimants, both for the total number of claims submitted and claimed dollar amounts. Several issues arose during the evaluation process. As noted above, the type and magnitude of proposed restoration must have a clear,
61. For more information, see the discussion at paragraphs 375 to 382 of the Fifth “F4” Report. 62. For more information, see paragraphs 301 to 318 of the Fourth “F4” Report, part 1.
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 87 ]
defensible link to documented injuries. For example, to compensate for a variety of ecological injuries not addressed through other restoration projects, Saudi Arabia proposed implementation of an $837 million environmental education program to increase public awareness of the value of environmental resources and “create momentum” toward improved use of resources and sensitivity to activities that may negatively affect natural resources. While such a program may indeed generate environmental benefits, the magnitude of specific effects on the injured resources could not be determined. The F4 Panel found that this approach did not provide a reasonable basis for estimating damages.63 Proposed restoration projects also must be feasible. To compensate for injuries to rangeland habitats caused by refugees (including overgrazing by refugee livestock, vehicular traffic, and the extensive use of plants for fuel), Jordan estimated that it needed to establish 25 million hectares of rangeland reserves. As the claimant itself acknowledged, Jordan did not have sufficient land area to create such a large rangeland reserve area. Projects that cannot be implemented do not provide a reasonable basis for estimating damages.64 In some cases, proposed restoration projects were determined to be inappropriate because of the magnitude of adverse ecological impacts likely to be caused by project implementation. For example, Saudi Arabia proposed to remediate injured coastal resources by excavating and removing visibly contaminated material from approximately 73 square kilometers of salt marsh and tidal flat areas, which would require isolating them from the sea through the construction of temporary sea walls and dikes. The F4 Panel judged this approach likely to cause substantial environmental harm within the project boundaries, due to incidental impacts from required infrastructure and since many of the areas subject to restoration had suffered little or no injury or were already experiencing significant natural recovery. While the Panel recommended compensation for this claim, the award was based on an alternative restoration approach developed through the process described below. 65 The F4 Panel was reluctant to recommend no compensation in circumstances where injury had been documented but damage estimates were based on flawed project concepts. As a result, the F4 Panel frequently asked the expert consultants to develop alternative restoration projects that would provide a sound basis for compensation awards. The F4 Panel identified several principles that should be followed in the development of these alternative projects: • Measures that pose unacceptable risks of ecological harm should be avoided;
63. The Panel also found that this claim did not adequately address the potential for overlap with other claims submitted by Saudi Arabia. See the discussion at paragraphs 676 to 681 of the Fifth “F4” Report. 64. For more information, see paragraph 362 of the Fifth “F4” Report. 65. For more information, see paragraph 181 of the Third “F4” Report.
[ 88 ]
Claims Preparation and Review
• Measures should be undertaken only if they are likely to result in more positive than negative effects; • Measures that facilitate natural recovery processes should be preferred, and they should build on and enhance natural recovery that has already occurred; • The effectiveness of measures should be monitored to ensure that targets are met, and measures should be designed to be sufficiently flexible and responsive to new information obtained from such monitoring; • Where more than one approach or technique is appropriate to achieve the desired goal, the most cost-effective option should be selected; and • Decisions on compensatory measures should consider both the short-term and long-term effects of proposed activities on neighbouring ecosystems, including transboundary effects.66 For Saudi Arabia’s coastal remediation claim discussed above, our alternative restoration project resulted in an award based on less invasive, in situ techniques (e.g., tilling, mixing, sediment relocation, and channeling) commonly used by oil spill remediation experts to remedy shoreline pollution from oil spills. For Jordan’s rangeland claim, our alternative project resulted in an award based on the establishment of a cooperative rangeland management program based on collaboration between resource users (e.g., herders) and resource managers to develop a sustainable rangeland management regime, including funding for financial incentives to transition herders to smaller herd sizes. Key features of and costing assumptions for these alternative restoration projects were identified in technical annexes to the Panel reports. In several cases, restoration projects underlying damages estimates were reasonable in type, but the F4 Panel requested that we develop modifications to reduce project scale to a level commensurate with documented injuries, to improve costeffectiveness by replacing more expensive project components with lower cost measures that were equally (or more) effective, and/or to adjust unit costs to reflect publicly available, independent estimates of regional costs. All of these modifications were made to Kuwait’s claim to remediate terrestrial areas damaged by oil lakes, oil-contaminated piles, oil trenches, and oil spills. The Panel’s recommended award reflected a reduction in the volume of soil to be excavated (scale adjustment); elimination of High Temperature Thermal Destruction (HTTD) treatment of excavated material and replacement with in situ bioremediation of less contaminated soil and landfill disposal of highly contaminated soil (improved environmental outcome at lower cost) and a reduction in labor and production unit costs (to better reflect independently estimated, regional cost ranges).67
66. See, e.g., Fifth “F4” Report, Introduction to Technical Annexes. 67. For more information, see paragraphs 89 to 102 of the Report and recommendations made by the Panel of Commissioners concerning part two of the fourth instalment of “F4” claims, UN Doc. S/AC.26/2004/17 (2004).
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 89 ]
Some claims sought damages equal to the loss in “value” of injured resources, using market-based or other valuation techniques. Many of the same issues identified in the review of restoration-based claims arose in the evaluation of lost valuebased damages estimates. Some claims relied on valuation approaches determined to be inappropriate for damages estimation purposes. For example, Iran conducted a benefits transfer by applying monetary resource values estimated in Costanza et al. (1997)68 to calculate losses resulting from rangelands damaged or depleted due to the presence of refugees and refugee livestock. The F4 Panel found that Iran’s application of the Costanza et al. values did not provide a reliable basis for estimating monetary damages, because of methodological questions about using Costanza et al. (1997) estimates as a measure of lost value (see Bockstael et. al (2000)69 for a detailed discussion of these concerns), important differences between the Iranian context and the geographic locations of data utilized in Costanza et al. (1997), and limited relevance of Costanza et al. (1997) values to the specific ecosystem service that was harmed (fodder for livestock). The Panel instead made an award based on the cost of replacement fodder sufficient to replace lost rangeland foraging opportunities caused by the presence of refugee livestock.70 In other cases, the valuation techniques used were reasonable but issues arose with their application. The F4 Panel asked that, where possible, we modify claimant calculations to provide an estimate of damages consistent with Panel decisions regarding documented injuries directly attributable to Iraq’s invasion. For example, while the Panel agreed that Iran experienced reduced crop yields due to pollutants from oil well fires, the statistical (regression) model used by the claimant to quantify related losses did not sufficiently account for potential confounding factors unrelated to Iraq’s invasion. By reestimating the statistical model to better account for changes in agricultural productivity over time and other factors that were important determinants of crop yields, we were able to provide improved damage estimates.71 In at least one case, claimant calculations could not be modified in a manner that would address identified shortcomings. Kuwait submitted a claim based on the value of lost recreational activities at beaches and at sea during and after Iraq’s invasion and occupation of Kuwait. The lost value associated with these recreational activities was estimated using contingent valuation, a survey-based methodology potentially capable of providing defensible damages estimates. However, survey
68. Robert Costanza, Ralph d’Arge, Rudolf de Groot, Stephen Farber, Monica Grasso, Bruce Hannon, Karin Limburg, Shahid Naeem, Robert V. O’Neill, Jose Paruelo, Robert G. Raskin, Paul Sutton, & Marjan van den Belt, The Value of the World’s Ecosystem Services and Natural Capital, 387:6630 Nature 253–60 (May 1997). 69. Nancy E. Bockstael, A. Myrick Freeman, III, Raymond J. Kopp, Paul R. Portney, & V. Kerry Smith, On Measuring Economic Values for Nature, 34:8 Environ. Sci. Technol. 1384–89 (2000). 70. See the Fifth “F4” Report, at 39. 71. For more information, see paragraphs 112 to 118 of the Fifth “F4” Report.
[ 90 ]
Claims Preparation and Review
respondents were asked detailed questions about their recreational habits more than ten years after Iraq’s actions, raising significant concerns about the reliability of survey responses. This problem, in combination with other technical issues, was sufficient to result in a recommendation for no award, because a defensible estimate of lost recreational value could not be developed from available information.72
IV. LESSONS FOR THE FUTURE
The expert consultants found our work for the F4 Panel to be technically challenging and professionally rewarding. We thank the Panel for the collaborative setting they fostered, their strong emphasis on objective fact-finding, and for the confidence placed on our work. Together with members of the UNCC Secretariat and the Panel members themselves, we were able to conduct a large amount of useful natural resource damage assessment, with limited data, in a short period of time. Our experience working on the UNCC F4 claims suggests four lessons that might be of use to future efforts to evaluate environmental harm in a compensation setting. These lessons are the views of the four authors of this chapter, and do not necessarily reflect the views of the entire team of expert consultants that worked on the F4 claims.
A. Promulgate the Analytic Framework for Calculation of Compensation at the Outset
Both Chapter 2 and the present chapter describe the great uncertainty that existed concerning the definition of “environmental damage” eligible for compensation, and allowable or preferred methods for calculating claimed compensation. Uncertainty about this basic issue caused some claimants to generate large amounts of information that proved of little use, while other claimants delayed work on claim submissions and were then caught short of time when requirements were clarified. We recommend that basic definitions and claim documentation requirements be set out, in as much detail as possible, at the outset of future environmental compensation claim processes. The U.S. NRDA regulations and guidance could provide a source of useful definitions and procedures, and similar information developed for ongoing implementation of the European Union’s Environmental Liability Directive may prove useful as well.
72. For more information, see paragraphs 462 to 464 of the Fifth “F4” Report.
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 91 ]
B. Encourage Immediate Fieldwork So Perishable Data Are Not Lost
In the UNCC case, uncertainty about how the claims should be documented, who was responsible for gathering data and evaluating environmental injuries, and how this work would be paid for resulted in limited environmental monitoring until roughly ten years after Iraq’s invasion and occupation of Kuwait. This caused large amounts of critical data to be lost. Current practice in the United States and Europe calls for damage assessment studies to begin within hours or days of environmental insults, so that early data that are perishable (for example, measurements of spilled oil amounts and composition, observations of oiling extent, and animal and plant harm) are not lost. We recommend that the need for immediate environmental monitoring, and the responsibility for conducting this monitoring, be clearly communicated as early as possible in any future effort to adjudicate environmental claims. If funding for monitoring and assessment studies is to be made available this should be done as quickly as possible after the incident.
C. Site Visits Are Critical
Extensive work on site has become part of virtually all major NRDAs, and we found our site visits to claimant countries to be extremely useful. Particularly in situations that cross cultural boundaries and legal traditions, it is important both to inspect the sites where environmental injury is alleged and to meet face to face with scientists and government officials to inspect data and to understand their concerns and their reasoning. We learned a great deal from our colleagues in claimant countries. Adjudication of the UNCC F4 claims would not have been possible without the site visits, and the exchange of information between the claimants and the F4 Panel, UNCC Secretariat, and expert consultants. We recommend that comprehensive site visits be included as part of any future compensation claim process.
D. Maximize the Transparency of the Process
In our view it is unfortunate that the claim documents themselves, supplemental information provided by claimants, the views of Iraq, and our own technical work for the F4 Panel have never been released by the United Nations and are not in the public domain. We contrast this with U.S. NRDA practice, where a public administrative record is created to document both technical and legal findings in detail. We believe that an open process and a public record builds confidence in the integrity of decision-making and allows all parties to learn and respond as the process moves forward. We recommend that future compensation claim processes adopt these or similar procedures.
[ 92 ]
Claims Preparation and Review
REFERENCES Nancy E. Bockstael, A. Myrick Freeman, III, Raymond J. Kopp, Paul R. Portney, and V. Kerry Smith, On Measuring Economic Values for Nature, 34:8 Environ. Sci. Technol. 1384–89 (2000). D. Cacela, J. Lipton, D. Beltman, J. Hansen, and R. Wolotira, Associating Ecosystem Service Losses with Indicators of Toxicity in Habitat Equivalency Analysis, 35 Environmental Management 343–51 (2005). P. Champ, K. Boyle, and T. Brown (eds.), A Primer on Nonmarket Valuation (Dordrecht: Kluwer Academic Publishers 2003). Robert Costanza, Ralph d’Arge, Rudolf de Groot, Stephen Farber, Monica Grasso, Bruce Hannon, Karin Limburg , Shahid Naeem, Robert V. O’Neill, Jose Paruelo, Robert G. Raskin, Paul Sutton, and Marjan van den Belt, The Value of the World’s Ecosystem Services and Natural Capital, 387:6630 Nature 253–60 (May 1997). Deborah French McCay, Jill Jennings Rowe, Nicole Whittier, Sankar Sankaranarayanan, and Dagmar Schmidt Etkin, Estimation of Potential Impacts and Natural Resource Damages of Oil, 107 Journal of Hazardous Materials 11–25 (2004). A. M. Freeman, The Measurement of Environmental and Natural Resource Values (2d ed. Washington, DC: Resources for the Future 2003). International Oil Pollution Compensation Fund 1992, Claims Manual (December 2008). W. P. Lorentz, J. Hall, H. Finely, J. Hanifen, D. Hamilton, L. Pace, T. Penn, J. Kern, B. Goatcher, R. Markarian, and C. Piehler, The Lake Barre Oil Spill NRDA: From Response to Restoration. International Oil Spill Conference—Scaling of Injury 667–70 (2001). J. Walter Milon and Richard E. Dodge, Applying Habitat Equivalency Analysis for Coral Reef Damage Assessment and Restoration 69 Bulletin of Marine Science 975–88 (2001). National Oceanic and Atmospheric Administration (NOAA), Maryland Department of Natural Resources, Maryland Department of the Environment, United States Fish and Wildlife Service, Final Restoration Plan and Environmental Assessment for the April 7, 2000 Oil Spill at Chalk Point on the Patuxent River, Maryland (2002). National Oceanic and Atmospheric Administration, Habitat Equivalency Analysis: An Overview (2006). Oil Pollution Act Natural Resource Damage Assessment Regulations (15 CFR Part 990). Molly B. Sperduto, Sean P. Powers, and Michael Donlan, Scaling Restoration to Achieve Quantitative Enhancement of Loon, Seaduck, and Other Seabird Populations, 264 Marine Ecology Progress Series 221–32 (2003). Robert E. Unsworth and Richard C. Bishop, Assessing Natural Resource Damages Using Environmental Annuities, 11 Ecological Economics (1994). Robert E. Unsworth and Timothy B. Petersen, A Manual for Conducting Natural Resource Damage Assessment: The Role of Economics (Division of Economics, U.S. Fish and Wildlife Service, 1996). U.S. Department of Interior Natural Resource Damage Regulations (43 CFR §11.10 et. seq.). U.S. Environmental Protection Agency, Guidelines for Preparing Economic Analyses (September 2000). U.S. Office of Management and Budget, Circular A-4, Guidance on Development of Regulatory Analysis (September 2003). Alexandra E. van Geel, Christine Lee, and Robert E. Unsworth, Final Pre-Assessment Screen for the Rocky Mountain Arsenal, Prepared for the Program Manager, Rocky Mountain Arsenal
A S S E S S M E N T A N D VA LUAT I O N O F D A M A G E TO T H E E N V I R O N M E N T
[ 93 ]
on behalf of the Federal Trustees for the Natural Resources on the Rocky Mountain Arsenal ( July 2008). Matthew Zafonte and Steve Hampton, Exploring Welfare Implications of Resource Equivalency Analysis in Natural Resource Damage Assessments, 61 Ecological Economics 134–45 (2007).
[ 94 ]
Claims Preparation and Review
C HA P TER 4
Scientific and Technical Advice The Perspective of Iraq’s Experts L ARR AINE WILDE *
INTRODUCTION
T
he principal focus of this chapter is on the technical aspects of the third, fourth, and fifth instalments of the F4 environmental claims and the challenges that faced Iraq’s scientific experts (the advisory team) in assessing the claims.1 Previously, Iraq had responded to the first and second instalments of these claims with little or no external support. In preparation for the third instalment, external technical support was provided by the environmental engineering consultant firms of Sinclair Knight Merz (SKM) and Burgeap of France, with Sinclair Knight Merz responsible for technical direction and project management of the advisory team. The Iraq advisory team comprised a large number of scientists, engineers, and technical experts from a range of disciplines located across Europe, Iraq, Australia, and the United States. A core project team was based at a project office in Geneva while the remainder worked in their home offices, acting under the direction of the
* The author of this chapter wishes to thank the Iraqi core team, Doctors Tariq Al Ani, Sadiq Jawad, Thamer Ali, and Adil Al Khafaji for their work on the assessment of the claims for rangeland vegetation, groundwater resources, fisheries, and marine and soil contamination respectively and especially for their commitment and dedication. Comments by Michael E. Schneider of Lalive Attorneys, Geneva, legal consultants to the government of Iraq, are gratefully acknowledged. 1. See also Michael Schneider, The Role of Iraq in the UNCC Process, Chapter 7 in Gulf War Reparations and the UN Compensation: Designing Compensation After Conflict Commission (C. Gibson and T. Feighery eds., Oxford University Press, Oxford 2011).
project manager. A secure virtual data room was established to share documents, data, and other information across the legal and technical teams. The objectives of Iraq’s technical assessment were to examine the technical evidence of the damage, evaluate its validity, and assess the need for and appropriateness of, the remedial actions proposed, providing an opinion as to the integrity of the scientific and other proof presented by the claimants. The advisory team also examined the costs included in the claims to ascertain the reasonableness of the amounts claimed. Where remedial actions or costs were considered to be unreasonable, unfeasible, or inappropriate, alternative programs and costs were proposed. The F4 environmental claims themselves, apart from those claims for monitoring and assessment (M&A) activities, fell broadly (although not exclusively) into two types of claims arising from two events, the oil spill into the Gulf and the onshore oil spill from well blowouts and burning oil wells in Kuwait. There were also claims for damage to health, to cultural and natural resources, and damage caused by refugees displaced by the conflict and by ordnance disposal, damage to the desert environment caused by digging of trenches, road construction, and use of tracked vehicles, but the bulk of the environmental liabilities were associated with these two events. In the main, this chapter deals with some of the substantive claims arising from the oil spill and the oil smoke plume. The first category of claims were those for primary restoration of damage (such as, for example, for remediation of oil remaining in the salt marshes of Saudi Arabia), which were the focus of the third and fourth instalments of claims. The second category comprised the claims for interim losses, residual damage, or compensatory restoration (in other words, for damage not considered to be fully addressed by primary restoration), that were the focus of the fifth instalment of claims. In the main, the challenges associated with the two categories of claims were very similar, although the fifth instalment claims brought additional challenges in how interim losses and ecological function and value should be measured and where and when additional or compensatory restoration was needed.
I. TECHNICAL CHALLENGES AND SOLUTIONS
Iraq’s technical advisory team was one of two groups that evaluated the F4 environmental claims, the other being those advising the UN Compensation Commission (UNCC) directly.2 Both had the usual responsibilities arising from assessing liability that would arise in any normal court proceedings in respect of environmental damage. However, in these unique circumstances there were inherent differences in how the two teams worked and particularly in the degree of access to the damage sites. These differences are discussed only in so far as
2. See Huguenin et al., Chapter 3, in this volume.
[ 96 ]
Claims Preparation and Review
they provided specific challenges to Iraq’s technical team in undertaking their evaluation. The principal technical challenges arose from: • The timing of the M&A and subsequent remediation programs. • The evidence base for the claims and the use of M&A and other supporting information. • The lack of risk-based approaches either to the level of damage or the proposed remediation programs. • The lack of allocation of damage between Iraq’s actions and contributory sources of damage such as preexisting oil contamination on the beaches of Iraq, Iran, and Kuwait or in the Arabian Gulf. • Constraints imposed on Iraq’s advisory team due to an inability to visit the sites of the claims and examine the evidence on the ground. • The claimants’ assessment of damage did not take account of the environmental context in which that damage had occurred. These challenges affected the claims for contamination of soil and groundwater, of coastal and marine environments, and for damage to vegetation and rangelands more than some others, for example, the claims for damage to health. One advantage of the evidence for damage caused by the oil spill and smoke plume claims was that the incidents leading to the damage were short-lived events with reasonably clear linkages between cause and effect.
II. TIMING OF THE MONITORING AND ASSESSMENT PROGRAMS
The technical challenges included the difficulties of assessing claims in a state of flux. The monitoring and assessment programs to ascertain the level of damage did not start until June 2001, following the UNCC monitoring and assessment awards made to the claimants. By this time claims had already been submitted for the third, fourth, and fifth instalments. Consequently, the claimants had prepared and submitted remediation programs based on very limited data and before the extent and nature of the damage was known. There had been no assessment of the true risks of the damage or of the potential risks that could result from the proposed remedial actions. Both the UNCC and Iraq’s scientific experts were in the difficult position of responding on the basis of incomplete information and on information arriving very late. Moreover, post-submission amendments were made to the claims as M&A data became available and this substantially altered the claims, changing the extent and nature of the damage and increasing the costs of proposed remediation substantially in some cases, reducing it in others. In some cases the claims were so altered by amendments that they were almost entirely new claims, and Iraq’s team was provided with this substantial body of information less SCIENTIFIC AND TECHNICAL ADVICE
[ 97 ]
than a month before the deadline for the submission of the evaluation to the UNCC. This situation continued with new data being provided by the claimants right up to and even during the oral proceedings, thus constraining the time allowed to Iraq to evaluate the claims. Funding of US$2 million was provided from the UNCC for the establishment of a database of environmental information relevant to the claims to be set up and maintained by the UN Environment Programme (UNEP) over a period of two years. However, the timing of this was such that the information would only be available very late in the claims process, thus limiting its usefulness in respect of the claims themselves although providing a useful source of information for assessing the effectiveness of the remediation programs implemented subsequent to the awards. The agreement between UNCC and UNEP was signed in August 2002, and the program for establishing the database was such that it was some time before the database was sufficiently developed to provide information that would help in assessing the claims themselves. For example, Iraq submitted its assessment of the third instalment of F4 claims in February 2003, and the award for these claims was made before the database was established. This instalment included large claims amounting to US$14 billion for damage to terrestrial resources and groundwater in Kuwait and for the oiled shoreline in Saudi Arabia. The mistiming between the M&A and the development of the remedial programs meant that in the claims for clean-up actions, an important step was missed. It is normal good practice to use the data generated by monitoring to determine the risk associated with any such pollution in order to select the most effective and environmentally acceptable remediation technique and to avoid collateral environmental damage by use of unsuitable techniques. The advantages and disadvantages of each technique should be compared with each other and also with natural clean-up (where little or no intervention is needed). The remediation must also be sustainable so that the beneficial results of remediation programs can be maintained. This logical sequence derives proper remediation targets and programs based on robust and complete (or sufficiently complete) data. Although M&A is a necessary mechanism for determining damage based on actual data and is used as a basis for designing appropriate remediation programs, the majority of the claimants waited for ten years (and the award of the M&A claims) before beginning to assess the actual levels of damage. This was after the claims for substantive damage had been submitted. Iraq’s advisory team was expected to respond to claims submitted without this proper procedure being followed and was obliged to respond to a moving target throughout as M&A data were submitted to retrospectively support the claims. There was an inherent conflict in the way in which many of the claimant countries approached the remediation of damage. On the one hand, the majority of claimants effectively followed a policy of allowing natural recovery by making limited, or no, attempts to remediate the damage prior to the F4 claims; but then they proposed highly intrusive methods of remediation to be funded by [ 98 ]
Claims Preparation and Review
the UNCC awards. The most obvious examples of this were proposals to use High Temperature Thermal Desorption (HTTD) to remediate oil-contaminated soil rather than less aggressive bio-remediation methods that exploit natural processes. It is unclear why the claimant countries did not monitor and assess the damage until the award of the M&A claims. For some of the claimant countries there were more pressing priorities in the immediate aftermath of the conflict, but delaying the start of the M&A programs left everyone, the claimants, the UNCC, and Iraq’s advisory team in a difficult situation.
III. EVIDENCE BASE FOR THE CLAIMS
Evidence provided in support of the claims raised technical as well as legal issues. From a technical perspective, the completeness, appropriateness, and validity of the evidence is the foundation on which the remedial options must be based. A large proportion of this evidence was to originate from the M&A programs funded by the UNCC awards. However, there was also a body of evidence that existed from external studies carried out by scientific institutions and others in the claimant countries. A number of studies were also undertaken by the international community in the immediate aftermath of the conflict including, for example, a five-year European Union–funded study into the effects of the oil spill along the coast of Saudi Arabia. This significant body of work examined, among other things, the degree of recovery along the coastline of Saudi Arabia close to the Jubail Wildlife Sanctuary and concluded that areas of the shoreline already showed remarkable recovery by 1995. This is not to say that all of the oil-contaminated areas showed uniform recovery. The salt marsh areas north of Abu Ali continued to be affected by oil contamination long after the oil spill and required intervention and remediation as natural processes had failed to achieve recovery. The continued presence of oil was in part due to an abnormally high tide at the time of the spill that had carried oil deep into the salt marshes that subsequent tidal flushing could not reach. In addition a study by Saudi Arabia’s Meteorological and Environmental Protection Administration (MEPA) (the then environmental regulator in Saudi Arabia) in the aftermath of the spill in conjunction with several international organisations proposed very different remedial measures to those proposed in the Saudi oil spill claims. These studies were not provided by the claimants as evidence in support of the claims; however, Iraq’s experts were able to source these studies in order to determine baseline conditions and also to identify the degree of recovery or otherwise from the damage. Studies, especially in relation to the oil spill and the burning oil wells, used in Iraq’s assessment were available from a number of sources including, e.g., UNEP, the International Maritime Organization (IMO), and from SCIENTIFIC AND TECHNICAL ADVICE
[ 99 ]
international scientific journals and conferences. These studies were important to Iraq’s assessment in the absence of the M&A data, but the lack of inclusion of the studies with supporting documentation for the claims was surprising. A key element of Iraq’s assessment was the use of independent sources of information to supplement that provided by the claimants, including the use of satellite imagery. Iraq’s advisers were unable to visit the impacted sites due to refusal on the part of the claimant countries during the third instalment claims to allow site visits. Satellite imagery was critical in assessing some of the claims, in particular claims for primary restoration of the vegetation damage submitted by Kuwait in the third instalment, and claims in the fifth instalment for compensatory restoration or interim damage to natural resources. It was unfortunate that the interpretation of the imagery could not be confirmed by ground-truthing during site visits, which meant that the findings of Iraq’s advisers had to be cautious. However, some consistent and reliable themes emerged, for example in assessing claims for damage to vegetation as a result of fall-out from the smoke plume. This allowed Iraq’s advisers to address in part the consequences of a lack of a site visit. Even allowing for natural variability in vegetation that occurs year on year, a comparison of the satellite imagery from 2002 compared with that of 1987 showed striking different in the vegetation present in both years. The greatest difference was noted in areas south of Kuwait where clearly defined large area of vegetation, including one rectangular area southwest of Kuwait city close to the border with Saudi Arabia covered an area of approximately 350 square kilometers of dense vegetation. This was attributed to fencing of tarcrete (the dried deposit left on the surface of soil as a result of fall-out from the burning oil wells) areas which had allowed vegetation to flourish principally by preventing grazing in fenced areas. The Kuwait Institute of Scientific Research (KISR) identified overgrazing as causing 70 percent of land degradation of desert areas3 and recommended rangeland management and protection programs in 1984. Moreover, the fenced tarcrete areas were described as having become an ecological resource. It was clear from the analysis of the satellite imagery that vegetation present in parts of Kuwait, i.e., the tarcrete affected areas, was substantially higher after the invasion and the oil deposition that before the invasion. While the satellite imagery allowed us to reach some clear conclusions regarding the tarcrete, the lack of site visits meant that Iraq’s technical advisers were unable to fully evaluate other evidence on the ground. In contrast, the Panel’s advisory team was able to observe the degree to which oil pools continued to cause damage for some time after the event. None of the Panel’s advisers’ reports were made available to Iraq’s team. There were two opportunities for discussions between the two teams;
3. M. Foda, F. Khalaf, I. M. Gharib, M. Hashash, & A. Al-Kadi, Kuwait Institute for Scientific Research, Assessment of Sand Encroachment and Erodibility Problems in Kuwait, Report No. KISR 297 (1984).
[ 100 ]
Claims Preparation and Review
however, the discussions were very limited in content and could not replace the value of a site visit.
IV . USE OF RISK ASSESSMENTS AND SELECTION OF REMEDIAL OPTIONS
Best practice in the investigation and remediation of pollution of soil and water requires an assessment of the risks posed by the presence of pollution and also of the proposed remedial interventions. The first stage of risk assessment examines the risks associated with the pollution and any adverse change that has resulted. In the event that this is sufficient to warrant intervention, then remediation options are identified that will either remove or reduce those risks. As such interventions can also result in adverse environmental effects, it is usual to assess the risks associated with each of several options, as well as their technical feasibility, in order to determine the most effective and acceptable option. In many cases risk assessments were not undertaken, particularly in respect of selected remedial options. This may have been due in part to a lack of complete M&A data but also arose when “presumptive remedies” were used. “Presumptive remedies” were taken from certain U.S. practices at some contaminated industrial sites. These remedies were allowed in the United States where circumstances were considered to be sufficiently well understood so as to speed up remediation timescales, especially where remediation was needed in a short time frame. One such presumptive remedy was the use of High Temperature Thermal Desorption (HTTD), a remediation technique that was almost universally proposed by the claimants for removal of oil pollution and for soil damage said to have been caused by disposal of ordnance in Kuwait. However such remedies were considered by Iraq’s technical advisers to be inappropriate to the prevailing circumstances in the claimant countries. For example, HTTD was not considered by Iraq to be suitable for remediation of contaminated desert soils or for coastal environments in Kuwait and Saudi Arabia as this would have totally destroyed any biota present and any natural recovery that had already occurred. The resultant “soil” would be sterile and would need to be mixed with organic material, nutrients, additives, spores, and seeds to restore condition and assist revegetation. HTTD, as well as being a destructive method of remediation, produces waste by-products that require disposal and is also expensive. The use of bio-remediation techniques such as land farming or composting are widely used, encourage natural recovery, and are more cost-effective than HTTD. Instead, Iraq proposed the use of bioremediation options that would accelerate natural processes that were already occurring and were in any case already in use in Kuwait by the Kuwait Oil Company for dealing with oil contamination at Al Wafra. One option proposed by Iraq’s technical advisers was for the use of excavated tarcrete for power generation, and proposals were prepared by an international SCIENTIFIC AND TECHNICAL ADVICE
[ 101 ]
engineering and power equipment supplier to review the feasibility of this. This option was considered to comply with generally accepted principles for waste management based, in order of priority, on prevention of waste generation; recycling or reuse; treatment; and safe disposal. However, the Panel, in their report on the fourth instalment of claims, considered that combustion for power generation “would not offer significant environmental benefits or be more cost-effective than bio-remediation.”4 The Panel of Commissioners in their report on the third and fourth instalments of claims did not consider that the use of HTTD was warranted; it was guided by a number of principles for remediation programs including: Remediation approaches or techniques that pose unacceptable risks of ecological harm should be avoided. Remediation activities should be undertaken only if they are likely to result in more positive than negative effects. Remediation techniques that facilitate natural recovery processes should be preferred, and active remediation should build on and enhance natural recovery that has already occurred. . .5
The principal focus of the remediation programs was defined by the Panel to be restoration of ecological function rather than just removal of pollution and the use of HTTD was rejected by the Panel.
V. MULTIPLICITY OF CAUSES AND ENVIRONMENTAL CONTEXT
Further difficulties arose in disaggregating the damage arising from Iraq’s actions and that attributable to other causes including preexisting oil pollution, which was widespread across the Gulf and its shoreline. A report published in 1990 by UNEP noted that “the high concentration of tar on beaches of the region is a matter of concern. Many beaches are virtually unusable for any purpose, as they are more or less paved with tar.”6 In awarding the claims for M&A of the shoreline and marine environment, the UNCC made a number of recommendations to the claimants to isolate impacts
4. Report and recommendations made by the Panel of Commissioners concerning part two of the fourth instalment of “F4” claims, UN Doc. S/AC.26/2004/17 (Dec. 9, 2004), para. 89. 5. Id., Technical Annexes, Introduction, para. 4; Report and Recommendations made by the Panel of Commissioners concerning Part One of the Instalment of “F4” Claims, U.N. Doc. S/AC.26/2004/16 (Dec. 9, 2004), Technical Annexes, para. 4. 6. O. Lindén, M. Y. Abdulraheem, M. A. Gerges, I. Alam, M. Behbehani, M. A. Borhan, & L. F. Al-Kassab, State of the marine environment in the ROPME Sea Area, UNEP Regional Seas Reports and Studies No. 112 (Rev. 1) 13 (Nairobi: UNEP 1990).
[ 102 ]
Claims Preparation and Review
related to the Iraq-induced spill and from other sources, “to the degree possible, background levels of oil in the Persian Gulf, which are known to be high, should be subtracted from total oil levels . . . ”7 Despite this good advice, the claims did not take such account of preexisting pollution, possibly due to the late production of the M&A data. Nor were there sufficient data available in time from the M&A for Iraq’s advisers to disaggregate the damage. Nevertheless, there were sufficient data available from a large number of studies undertaken in the countries concerned by reputable universities and technical institutes (especially the work of Kuwait Institute of Scientific Research and Meteorological and Environmental Protection Administration that could have allowed preexisting oil levels to have been taken into account, as well as the work of foreign consultants who listed sources and locations of oils spills and permanent seeps from 1975 to 1990 and showed these were widespread across the Gulf and originated from oil wells, pipelines, rigs, and vessels. In its response to the claims, Iraq’s advisory team used several of these studies, which provided valuable information in the absence of M&A data establishing baseline oil pollution levels. Finally, the damage assessment and remediation programs proposed by claimants did not take account of the environmental context in which the oil spill occurred. The arid environmental context of the Gulf is very different from that of, for example, cold northern climates, and applying findings from oil spills in different climatic regions, as happened with some of the claims, did not recognize the local circumstances that had allowed a remarkable degree of recovery in some areas of the Gulf. The temperature and salinity of the Gulf, the nature of the oil spilled, and the presence of a high proportion of micro-organisms that break down hydrocarbons all encouraged natural degradation of the spill. The situation onshore also assisted natural recovery, although there were some exceptions to this, particularly in some areas of salt marsh. Iraq’s advisory team proposed remediation programs that recognized the local situation, building on the knowledge of the Iraqi members of the team and using natural remediation processes.
VI. HUMAN CHALLENGES
The human challenges posed to the team must not be underestimated. During the preparation of the third instalment claims, the Iraqi scientists were under enormous pressure from the expectations of the government of Iraq as well as their own desire to do the best for their country. Prior to 2003, there was a degree of
7. Report and recommendations made by the Panel of Commissioners concerning the first instalment of “F4” Claims, U.N. Doc. S/AC.26/2001/16 ( June 22, 2001), Annex XXVII, suggested modifications to claim no. 5000363 (Saudi Arabia), para. 2.
SCIENTIFIC AND TECHNICAL ADVICE
[ 103 ]
security oversight of the Iraqi scientists that made it rarely possible to discuss these pressures and the demands placed on our Iraqi colleagues. However, scientific and other nonpolitical issues were debated within the team with great openness, and close professional relationships were formed between the Iraqi and non-Iraqi scientists working in the same disciplines. It should be noted that the years of sanctions against Iraq had affected the continued professional development of the Iraqis. Several had academic degrees from European and U.S. universities prior to the 1990s and were members of international professional bodies. However, with the onset of sanctions, external professional relations were disrupted and access to technology and information was extremely limited. Before 2003, travel abroad, internet access, and mobile phones were only allowed to certain people in Iraq. Nevertheless the advisory team was able to benefit from the regional expertise and knowledge of the Iraqi team, knowledge that was not restricted purely to Iraq.8 The project management advisory team selected a core team of Iraqi scientists on the basis of resumes provided from a pool of more than thirty candidates. One of the original group was replaced at the request of the management team after the third instalment claims, but otherwise the team remained intact for the remainder of the claims process. Initially, there were also some objections in Iraq to retaining all of the core team members; however, this was resolved. During the build-up to the U.S.-led invasion of Iraq, the core Iraqi scientists continued to work with the external advisory staff irrespective of nationality and without any change in attitude or commitment, and the degree to which the team continued to function as a cohesive and effective group is a testament to the professionalism and neutrality of the Iraqi scientists. Despite the regime change, the composition of the Iraqi team remained unchanged, and this too was a tribute to their professionalism and commitment to the project. Although the security oversight lessened, other difficulties were encountered after the occupation of Iraq. At a personal level, the Iraqi scientists were dangerously exposed every time that they traveled by road to and from Iraq via Jordan and left their families in a situation that was extremely unstable. Among the Iraqi community in Baghdad, there were kidnappings and ransoms that extended to relatives and friends of our team. There was also suspicion in Iraq of anyone working with foreign scientists, especially with those from the U.K. or U.S., and this was the case particularly in the south of Iraq. Lawlessness has since increased, and two of the Iraqi team that remained in Baghdad were affected by the sectarian violence of 2006–2007 and have yet to return to their homes.
8. For example, Dr. Tariq Al Ani had for more than forty years studied the rangelands and vegetation of Iraq, Kuwait, and Saudi Arabia as part of an Iraq-UNESCO team on desert vegetation.
[ 104 ]
Claims Preparation and Review
C HA P TER 5
Oversight of Environmental Awards and Regional Environmental Cooperation* C YMIE R . PAYNE
INTRODUCTION
T
he notion that a UN commission would oversee a state’s use of compensation awards may seem rather extraordinary and the concept that it could enforce a particular use of the awards even more so. Traditionally, the duty of compensation resulting from a breach of an international obligation lies between two states rather than between a state and the international community, or the state and an individual. Because the state was understood to be asserting its own rights according to the principles of diplomatic protection and state responsibility, even in circumstances where an individual was the injured party, reparations belonged to the state to dispose as it pleased.1
* Former F4 Team Leader. My thanks to Ronald Bettauer, Julia Klee, Peter Sand, Wendy Strahm, and Thomas Walker for their thoughtful comments on this chapter. Any errors are my own. 1. David D. Caron, The Place of the Environment in International Tribunals, in The Environmental Consequences of War: Legal, Economic and Scientific Perspectives 253–56 ( J. E. Austin & C. E. Bruch eds., Cambridge: Cambridge University Press 2000) (hereinafter, Caron 2000). Borchard observed that the individual does not have “any title, legal or equitable, in an award or diplomatic settlement made in his behalf ”; although it is the state’s prerogative, practice in the United States has been to distribute international awards to individual claimants, generally by means of domestic commissions. Edwin Montefiore Borchard, The Diplomatic Protection of Citizens Abroad: Or, The Law of International Claims 382 (New York: The Banks Law Publishing Co. 1915).
This view is changing.2 The UN Compensation Commission (UNCC) was innovative in this area, particularly in establishing oversight of funds awarded to the governments of Kuwait, Saudi Arabia, Jordan, Iran, and Syria for environmental losses resulting from Iraq’s invasion and occupation of Kuwait.3 By declaring that the purpose of the environmental claim awards was to restore the environment and by then putting in place the measures described in this chapter to ensure that outcome, the UNCC’s Governing Council indicated a remedy more akin to restitution than to compensation,4 and, more tentatively, implied an obligation erga omnes.5 This approach moves, in fact, in the direction of “legal accountability of all states involved for the safeguarding of common concerns to protect and conserve the Earth’s natural heritage.”6 With the shift to acknowledging the common concerns of the international community for the environment comes the need to oversee the use of compensation to ensure that the public interest stake in environmental integrity is served.
2. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on its 53rd Session, UN Doc. A/56/10 33 (2001) (“Opinions have also differed on the question whether the legal relations arising from the occurrence of an internationally wrongful act were essentially bilateral, i.e. concerned only the relations of the responsible State and the injured State inter se. Increasingly it has been recognized that some wrongful acts engage the responsibility of the State concerned towards several or many States or even towards the international community as a whole.”). Pierre d’Argent points out that despite the apparent restrictiveness of state-to-state obligations, behind the state lurks its people and the mechanism of diplomatic protection allowed the state to espouse individuals’ claims early in the twentieth century. Pierre d’Argent, Les réparations de guerre en droit international public: la responsabilité internationale des États à l’épreuve de la guerre 136 (Bruylant, Bruxelles; L.G.D.J., Paris 2002). 3. The United Nations Compensation Commission—A Handbook 8 (Marco Frigessi di Rattalma & Tullio Treves eds., The Hague: Kluwer Law International 1999) (hereinafter, Frigessi di Rattalma & Treves) (“A first relevant departure [by the UNCC] from the traditional regime of diplomatic protection consists in the duty of the State to distribute the specified funds to named claimants.”). Carlos Alzamora, the first Executive Secretary of the UNCC noted several additional distinctions between the role of governments at the UNCC and the practice of diplomatic protection in Carlos Alzamora, The UN Compensation Commission: An Overview, in The United Nations Compensation Commission: Thirteenth Sokol Colloquium 8–9 (R. B. Lillich ed., Irvington, NY: Transnational Publishers 1995). 4. See, for example, Governing Council Decision 212, S/AC.26/212 (Dec. 18, 2003), para. 6. Olufemi Elias observes that the prime concern for the environment is its “restoration in the public interest, rather than the mere settling of a dispute or series of disputes in a bilateral/ adversarial context.” Olufemi Elias, The UN Compensation Commission and Liability for the Costs of Monitoring and Assessment of Environmental Damage, in Issues of State Responsibility before International Judicial Institutions 219, 235 (M. Fitzmaurice & D. Sarooshi eds., Oxford, Portland: Hart Publishing 2004). 5. See Sand, Chapter 7, in this volume, text at footnotes 5 to 10, and section VI. 6. Peter H. Sand, Compensation for Environmental Damage from the 1991 Gulf War, 35 Envtl. Pol’y & L. 244, 248 (2005). See also Jean-Christophe Martin, La pratique de la Commission d’indemnisation des Nations Unies en matière de réclamations environnementales, in Le droit international face aux enjeux environnementaux: Colloque d’Aix-enProvence 2009 de la Société française pour le droit international 257, 272 (Y. Kerbrat, S. Maljean-Dubois and Rostane Mehdi eds, Paris: Pedone 2010).
[ 106 ]
Claims Preparation and Review
As unusual as this is in the history of reparations, from the early days of the UNCC, governments were required to account for the disposition of awards. In all claims categories, successful claimant governments were directed by the Governing Council to report whether the award funds received from the Compensation Fund were transferred to the real claimant in interest.7 In the case of humanitarian claims, for instance, payments were destined for individual claimants who suffered such harms as torture or property loss;8 this standard UNCC practice was further adapted to the special demands of the environmental program. An oversight program was established for the first group of environmental and public health claims9 to be reviewed and approved by the Governing Council, the monitoring and assessment claims. That program remained in effect until March 2005, the conclusion of the claims review. It was succeeded by the “Follow-up Programme for Environmental Awards” that continues to oversee the expenditure of awarded funds and the ecological impacts of the projects, and at the time of this writing the Governing Council continues to receive biannual reports from claimant governments on project status.10 The legal authority of the Governing Council to direct claimants to report on award payments and to withhold or seek return of funds in some cases is based on the constitution of the UNCC as a subsidiary organ of the Security Council, supplemented by the agreement of the affected governments, as described below.11 The Security Council established the UNCC acting under Chapter VII of the
7. Governing Council Decision 18, Distribution of payments and transparency, S/AC.26/18 (March 24, 1994). 8. John Crook, Is Iraq Entitled to Judicial Process?, in The United Nations Compensation Commission: Thirteenth Sokol Colloquium 87 (R.B. Lillich ed., Irvington, NY: Transnational Publishers 1995) (“prior to the UNCC, states’ decisions whether to seek compensation for war damages, and the amounts sought, typically rested on political considerations, not on law-based assessments of individuals’ injuries . . . For the first time, a multilateral UN mechanism has been created to provide redress for the individual consequences of illegal state action.”) (hereinafter, Crook). 9. The UNCC environmental claims included claims for public health risk assessment and damage, which are discussed in detail in Sand & Hammitt, Chapter 8, in this volume. Claims for damage to cultural heritage were also allocated to the F4 category, see Huguenin, Chapter 3, text at notes 58–59, and Allen, Chapter 6, text at note 116, in this volume. 10. At its November 2010 meeting, the Council decided that the affected governments would assume responsibility for oversight of their own UNCC-funded projects, and that the details of the UNCC closure would be determined at the Governing Council meeting Apr. 7–11, 2011; see also, Report of the Secretary-General pursuant to paragraph 5 of Resolution 1859 (2008), UN Doc. S/2009/385 ( July 27, 2009), para. 7. That decision so far has been deferred. 11. S.C. Res. 692, 46 U.N. SCOR, U.N. Doc. S/RES/692 (May 20, 1991), reprinted in 30 I.L.M. 864 (1991) (establishing “the Fund and Commission referred to in paragraph 18 of resolution 687 (1991) in accordance with Part I of the Secretary-General’s report”); S.C. Res. 687, 46 U.N. SCOR, at 200, U.N. Doc. S/RES/687 (Apr. 8, 1991), reprinted in 30 I.L.M. 846 (1991), paras. 16, 18–19; Report of the Secretary-General pursuant to paragraph 19 of Security Council Resolution 687 (1991), U.N. Doc. S/22559 (May 2, 1991), para. 4.
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 107 ]
UN Charter and directed the Secretary-General to establish “the process by which funds will be allocated and claims paid.”12 The Governing Council, as the policymaking organ of the Commission, was endowed with the responsibility and authority to establish guidelines “on all policy matters, in particular, those relating to the administration and financing of the Fund . . . as well as to the payments to be made from the Fund.”13
I. TRACKING ENVIRONMENTAL AWARDS DURING CLAIMS REVIEW
A. All Claims Categories: Transparency and Return of Undistributed Funds
In the interests of transparency of the award distribution process and to ensure the return of undistributed funds, the Governing Council directed all successful claimant governments to report under its Decision 18. The Governing Council required each government: • to report to the Governing Council the arrangements that it had made for the distribution of funds to claimants; • to distribute awards to claimants within six months of receiving payment from the Commission; and • to report that it had done so within three more months.14 An award had to be returned to the Compensation Fund if the government was unable to locate a claimant.15 If a government failed to do this, the Governing Council could direct the Secretariat to request an explanation or further information and if not satisfied, the Council could, and did, direct the Secretariat to withhold funds from that government.16
12. S.C. Res. 687 (Apr. 8, 1991), para. 19. 13. Report of the Secretary-General, U.N. Doc. S22559 (1991), para. 10; S.C. Res. 692 (1991), para. 3. 14. Decision 18, S/AC.26/18 (1994), paras. I.2, II. Some have questioned whether the Governing Council actually had the authority to “require” governments to comply with these provisions. The Governing Council was able to exercise leverage with the prospect of withholding future payments. And, in fact, governments did not challenge the Governing Council’s right to insist on reporting or to withhold awards which the Compensation Fund had sufficient resources to pay. 15. Decision 18, S/AC.26/18 (1994), para. I; Governing Council Decision 48, Return of undistributed funds, S/AC.26/48 (Feb. 3, 1998). 16. Decision 18, S/AC.26/18 (1994), para. I.5; Governing Council, Undistributed funds, S/AC.26/SR.86 (Mar. 25, 1999), paras. 28–30 (Governing Council warning that funds will be withheld if undistributed funds are not returned to the Commission); Governing Council, Undistributed Funds, S/AC.26/SR.90 (Sept. 30, 1999), para. 25 (Suspending payments to certain governments until undistributed funds are returned to Commission), reprinted
[ 108 ]
Claims Preparation and Review
Many commentators speculating on the nature of the UNCC have considered the question: to what extent did the UNCC deviate from the practice of diplomatic protection and espousal of claims by the state?17 The UNCC followed a different course.18 The provisions of Decision 18 support this view, by weakening the traditional role of the state as the owner of the claim.19
B. Environmental Monitoring and Assessment Claims
The UNCC elaborated on the transparency provisions established for most claims categories because of the unique problems that the environmental monitoring and assessment claims posed.20 In December 2000, while the claims were under review, the UNCC asked each claimant government to describe the measures it had put in place to assure that awards for successful monitoring and assessment claims would be rapidly transferred to the entity responsible for conducting the studies. In approving the first environmental awards of US$243 million to fund assessment of the nature and extent of damage and the methodologies to abate or mitigate damage, the Governing Council decided that “to ensure that funds are spent on conducting the environmental monitoring and assessment activities in a transparent and appropriate manner and that the funded projects remain reasonable monitoring and assessment activities” the claimant governments should submit regular progress reports on implementation of the work.21 A subsequent Governing Council decision in 2004 added the requirement of audited financial statements.
in Documents of the United Nations Compensation Commission, UN doc. S/AC.26/SER.A/1 (2001), at 188, 191. 17. For example, David J. Bederman, Historic Analogues of the UNCC, in The United Nations Compensation Commission: Thirteenth Sokol Colloquium 276–82 (R . B. Lillich ed., Irvington, NY: Transnational Publishers 1995); Crook, supra note 9, at 87–89; Frigessi di Rattalma & Treves, supra note 4, at 8–9. 18. The UNCC put into effect, to a significant extent, lessons learned from the Iran-US Claims Tribunal, as described by Ronald J. Bettauer, Establishment of the UN Compensation Commission: The U.S. Government Perspective, in The United Nations Compensation Commission: Thirteenth Sokol Colloquium, 29–44 (R . B. Lillich ed., Irvington, NY: Transnational Publishers, 1995); and Payne, Chapter 1, in this volume. 19. David Caron observes that by imposing accountability on states, the Commission demonstrates an “astounding shift… that in certain institutional contexts we have witnessed the development of a view of the state as agent rather than principal.” Caron 2000, supra note 1, at 256. 20. See Klee, Chapter 2, in this volume. See also Mojtaba Kazazi, Environmental Damage in the Practice of the UN Compensation Commission, in Environmental Damage in International and Comparative Law: Problems of Definition and Valuation 111, 129 (M. Bowman & A. Boyle eds., Oxford: Oxford University Press 2002). 21. Governing Council Decision 132, S/AC.26/132 ( June 21, 2001).
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 109 ]
The obligations are open-ended, continuing until the projects are completed or are halted by the Council.22 The Governing Council reinforced Decision 18 by restating in its Decision 132, approving the monitoring and assessment awards, that the award funds should be distributed to “the entity responsible for conducting the environmental monitoring and assessment activities, pursuant to the agreed upon procedures.” While Decision 18 was referenced in awards for “F” category government claims,23 in the case of the environmental claims it was particularly important that the funds reached the appropriate government agencies so that the monitoring and assessment projects could be undertaken. The panel of Commissioners charged with review of the environmental claims (the F4 Panel, or the Panel) implemented the Monitoring and Assessment Tracking Programme through procedural orders requesting claimant governments to periodically submit information about: the progress of the projects; the amount of award money expended to date on the project; final project reports; certification that the funds had been managed and distributed as described previously to the UNCC Executive Secretary; and audited according to the government’s own auditing standards.24 Each of the five claimant governments (Iran, Jordan, Kuwait, Saudi Arabia, and Syria) also identified financial and program management controls that it would use for the monitoring and assessment projects. Most of the monitoring and assessment projects were completed by 2005, and the final reports and audit certifications were duly submitted by the claimant governments. Twelve longer duration studies of environmental and public health impacts were included in the Follow-up Programme established by Governing Council Decision 258, which is discussed below.25 These measures were necessary because of the special aspects of the monitoring and assessment claims.26 It was well known that the conflict and intentional acts by the Iraqi forces had caused serious environmental damage. While initial studies had been made of the environmental damage shortly after the conflict,27 those studies
22. The Panel did, in fact, recommend that some studies should be halted before they were completed, see note 42 and accompanying text. 23. See, e.g., Governing Council decision, Decision concerning part one of the first instalment of claims by governments (Category “F” Claims), S/AC.26/45 (Dec. 18, 1997), para. 3. 24. Report and Recommendations made by the Panel of Commissioners concerning the Fifth Instalment of “F4” Claims, U.N. Doc. S/AC.26/2005/10 ( June 30, 2005), para. 781 (hereinafter, Fifth “F4” Report). Some governments provided audit certificates from international auditing firms; others indicated that their national law limited audit of government agencies to government auditors. In such cases, they provided certification from the government auditors. 25. See Sand & Hammitt, Chapter 8, in this volume. 26. See Allen, Chapter 6, section II.D, in this volume. 27. Results of an international scientific research expedition in the Gulf were published in a special issue of Marine Pollution Bulletin, volume 27, in 1993. Government-sponsored assessments were carried out, such as Saudi Arabia’s 1991 shoreline survey of Gulf oil spill impacts, submitted to the UNCC in Government Claims to the UNCC for Environmental Monitoring
[ 110 ]
Claims Preparation and Review
needed to be updated.28 In other cases the governments had not done assessments, while for the large-scale marine and terrestrial damage, methodologies for remediation addressed unusual problems and needed to be tested.29 In the Panel’s view, it would be “illogical and inequitable” to “deprive the claimant of the opportunity to generate the very evidence that it needs to demonstrate the nature and extent of damage that may have occurred” and so it made awards where there was sufficient evidence of environmental damage that could have been caused by the conflict and a reasonable prospect that the activity would produce results that would assist the Panel’s review of substantive claims or “that could offer a useful basis for taking preventive or remedial measures.”30 The Panel observed that monitoring and assessment activity could be helpful even if it showed that no damage had been caused or that remediation was not feasible or advisable. Unlike the vast majority of claims in other categories, the monitoring and assessment claims were mostly for the cost of activities that had not yet occurred, but which would instead be carried out in the future. Because the studies had not yet been done, it was impossible to know exactly what they would cost. It was of importance to the Panel that, although it often awarded considerably less than the amount claimed, “the adjustments would not prejudice the ability of the Claimant to achieve the objectives stated in the claim.”31 On the other hand, it would be manifestly unfair to Iraq if the award exceeded the actual cost of the activity. Moreover, it was important that the funds be directed to investigations that would be productive for the purposes outlined in Decision 7 and the F4 Panel reports. Over time, this gave rise to two principles: the funds must be used on the projects for which they had
and Assessment Project: To Assess Natural Resources Damage to Marine and Coastal Resources Resulting from the Gulf War Oil Spill: Supplemental Information (Kingdom of Saudi Arabia, Meteorological and Environmental Protection Administration, 2000) (note: this document is in the library collection of the University of California, Santa Barbara). Other studies carried out by international and nongovernmental organizations include: A. H. Al-Rabeh, H. M. Cekirge, & N. Gunay, Modeling the Fate and Transport of Al-Ahmadi Oil Spill, 65 Water, Air, and Soil Pollution 257–79 (1992); World Conservation Monitoring Centre, Gulf War Environmental Information Service: Impact on the Marine Environment (1991); IOC, Working Group on Oceanographic Co-operation in the ROPME Sea Area, First Meeting, IOC/WGOCR-I/3 rev. (Intergovernmental Oceanographic Commission, 1991); and UNEP, Updated Scientific Report on the Environmental Effects of the Conflict between Iraq and Kuwait, UNEP/GC.17/ Inf. 9 (Nairobi: UNEP 1993); and the related UNEP, Report on the UN Inter-Agency Plan of Action for the ROPME Region, Phase I: Initial Survey and Preliminary Assessment (Nairobi: UNEP 1991). 28. Michael T. Huguenin et al. explain the need for monitoring and assessment information in Chapter 3, in this volume. 29. See, e.g., Report and recommendations made by the Panel of Commissioners concerning the first instalment of “F4” claims, U.N. Doc. S/AC.26/2001/16 ( June 22, 2001), paras. 472–88 and Annex XXIV (Kuwait’s assessment and remediation of tarcrete) (hereinafter, First “F4” Report). 30. First “F4” Report, paras. 28–35. 31. First “F4” Report, para. 48.
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 111 ]
been awarded; and any funds not used on those activities must be returned to the Compensation Fund. The Governing Council also ensured that it would be able to halt any monitoring and assessment activity that was not producing results consonant with the Panel report recommendations.32 The Governing Council modified its directions to claimant governments on implementation of Decision 18 to address both the need to expedite the monitoring and assessment projects and to ensure that the funds would actually be spent on those projects. Instead of the usual direction that the government disburse the award funds within six months, Decision 132 directs governments to “expeditiously distribute amounts received.” In place of the threemonth reporting period, information on the distribution must be provided “as soon as possible.”33 Another provision in Decision 132 directs claimant governments to “distribute amounts received for successful claims to the entity responsible for conducting the environmental monitoring and assessment activities,” a divergence from the standard language used in such decisions which generally referred to “designated claimants” reflecting the Council’s concern that environmental awards would be spent on the monitoring and assessment projects.34 Thus, the Governing Council decided that awards for environmental losses were not subject to the discretion of the claimant government but must be used for the purpose stated in the claim, as modified by the F4 Panel. Caron notes in this regard, that if the state were the principal, “it could also simply not spend the money to restore the environment.”35 He points out that in this case the state “holds such aspects of the environment in trust as an agent of its nation and increasingly as the logical agent of the international community.”36 Both the logic of fairness to Iraq and the principle of agency or trusteeship are consistent with the accountability imposed by the Governing Council; other factors may have been, in fact, responsible. Having established the accountability of the claimant governments to apply the awards to the projects specified, oversight of the expenditures and progress of the projects is a matter of good faith and common practice. The Governing Council requested the Panel to “issue procedural orders directing claimant Governments to submit periodic progress reports concerning the environmental monitoring and assessment projects” and to keep the Council informed
32. Mojtaba Kazazi, The UNCC Follow-up Programme for Environmental Awards, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 1117 (T. M. Ndiaye & R. Wolfrum eds., Boston: Martinus Nijhoff, Leiden 2007) (hereinafter, Kazazi 2007). Of course, actual benefit to the environment would be contingent on the information produced by the studies being applied to restoration and improved management of the environment. 33. Governing Council Decision 132, S/AC.26/132 (2001), para. 5. 34. Id., cf. Governing Council Decision 131, Decision concerning the fifth instalment of “F1” claims, S/AC.26/131 ( June 21, 2001). 35. Caron, supra note 1, at 256. 36. Id.
[ 112 ]
Claims Preparation and Review
for any action that might be required.37 From September 2002 until March 2005, the Panel of Commissioners provided the Governing Council with its evaluation of progress and recommendations on possible action.38 The Secretariat’s valuation and verification branch (VVSB) provided financial review.39 Their biannual reports also provided a comparison of the amount of funds expended and the claimant’s estimate of the progress of the project; for example, there might be cause for concern if 80 percent of the award was spent when only 20 percent of the project was completed. The Post-Conflict Assessment Unit of the UN Environment Programme (UNEP) undertook the technical and scientific evaluation of progress reports that claimant governments submitted in response to the Panel’s procedural orders.40 These two programs continued until the end of the claims review in spring 2005. The UNCC Secretariat’s Legal Services Branch coordinated the Tracking Programme and, with the technical and scientific expert consultants hired to assist and advise the Panel during the claims review, provided an additional layer of scrutiny. As the program drew to a close, the Panel determined that the majority of the projects had remained reasonable monitoring and assessment activities, but it also advised that certain award funds should be returned to the UNCC. The Panel recommended the return to the Compensation Fund of unused funds from studies that had been completed at a lower cost than the award.41
37. Decision 132, S/AC.26/132 (2001), para. 6. Here the question again arises: how much and what kind of authority is delegated by the Security Council to the Governing Council and through it to the panels of Commissioners? The practice of using procedural orders for the panels to communicate with claimant governments was well established. Some have questioned whether the authority of the panels to issue procedural orders under the rules of procedure was limited to those needed for the consideration of claims, prior to issuance of any award. Governing Council Decision 10, Provisional Rules of Procedure, S/AC.26/1992/10 ( June 26, 1992), arts. 35, 36, 43 (hereinafter, Provisional Rules of Procedure). The acquiescence in the F4 Panel’s actions by the Governing Council (including representatives of the permanent five members of the Security Council) and the governments which were asked to provide information indicates that they viewed the Panel as possessing the necessary authority. 38. Fifth “F4” Report, para. 782; Governing Council Decision 258, S/AC.26/258 (Dec. 8, 2005), para. 48, Basic Documents, in this volume. 39. See Chapter 2 in this volume. 40. Memorandum of Understanding between UNCC and UNEP (Aug. 5, 2002). A monitoring and assessment program coordinated between the affected governments would, conceivably, have provided more information at a lower cost. If it had proved feasible, UNEPGRID might have contributed its particular expertise to integrate the information developed by the monitoring and assessment studies into a regional overview. However, this was simply not possible in the context of the UNCC’s role as a claims commission and the regional governments did not choose to undertake this type of project on their own. The concept of cooperation on environmental restoration did, however, evolve in the Follow-up Programme that was later developed. 41. “As of 21 February 2005, 53 of the 69 projects were completed. Based on the technical reports from UNEP and other information reviewed by the Panel, the Panel stated that it was satisfied that the 53 completed projects constituted reasonable monitoring and assessment activities in accordance with paragraph 35(c) and (d) of Governing Council Decision 7.
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 113 ]
The Governing Council, meeting several months after the Panel’s final report, sought additional information from the governments concerned and did request return of some unused award funds. The claimant governments did return those funds. This was consistent with the requirements for other claims categories and the principles motivating the Tracking Programme. There were other studies that were not scheduled to be completed for several years. This raised a further question: should unfinished monitoring and assessment studies be permitted to continue even though the information developed by the studies would no longer have any value as evidence in support of UNCC claims? To assist it in answering these questions, the Panel requested UNEP to assess the reasonableness of continuing unfinished monitoring and assessment studies according to: a) whether the scientific nature of the work necessitated longterm monitoring in order to draw valid conclusions; b) whether the uniqueness of the subject matter made the results of value to national, regional, or scientific communities and to environmental decision makers; and c) whether the uniqueness of the approach would make the study results valuable to the general scientific community. The Panel satisfied itself that twelve of the sixteen ongoing projects continued to be reasonable monitoring and assessment activities in accordance with Governing Council Decision 132.42 At its June 2005 meeting, in accordance with the Panel’s recommendation, the Governing Council decided to allow continuation of the twelve studies, which included Kuwait’s and Saudi Arabia’s public health studies and Kuwait’s natural resource damage studies.43 Four of the projects were, in the Panel’s estimation, “no longer necessary as far as the Commission was concerned”; unspent funds remaining from those projects should be returned.44 The Panel recommended to the Governing Council that ongoing oversight of monitoring and assessment studies should be folded into the Follow-up Programme for the substantive claims, discussed below in section II, and this was done. The Governing Council decided that claimant governments would submit remaining periodic progress reports and financial audits through the Follow-up Programme mechanism,
The Panel also confirmed that the results of the projects had been valuable to it in the review of the substantive environmental claims. With regard to the 16 ongoing monitoring and assessment projects, the Panel stated that 12 of them continued to be reasonable monitoring and assessment activities in accordance with Governing Council Decision 132. The Panel, therefore, recommended that the Governments concerned be permitted to use funds from the first ‘F4’ instalment awards to continue their monitoring and assessment activities. In relation to the four remaining projects, the Panel concluded that further work on these projects was no longer necessary as far as the Commission was concerned. Accordingly, the Panel recommended that the Governing Council consider appropriate measures to ensure that the remaining funds in respect of these projects were returned by the Government concerned.” Fifth F4 Report, para. 782. 42. Fifth “F4” report, para. 782; Decision 258, S/AC.26/258 (2005), para. 49. 43. Id. 44. See Klee, Chapter 2, section IV.A, in this volume.
[ 114 ]
Claims Preparation and Review
rather than to the UNCC Secretariat. Experts retained for the Follow-up Programme, called “Independent Reviewers,”45 were to receive the reports and audits, make any necessary inquiries, and provide an assessment of progress in the place of the UNEP and Secretariat reviewers. The Independent Reviewers’ reports were to be submitted to the UNCC Secretariat. The Secretariat would then provide the Governing Council with its views on whether the funds awarded were being spent “on conducting the monitoring and assessment activities in a transparent and appropriate manner and [whether] the funded projects remain reasonable monitoring and assessment activities,” as required by Decision 132, with recommendations on steps to be taken, if any.46 During the period of active claim review there were also certain built-in guarantees that the majority of monitoring and assessment awards would be spent promptly on completing the proposed studies, without the need for the additional measures imposed by the Governing Council. Certainly the claimants had a strong interest in gathering evidence to establish losses claimed in later instalments. And, in fact, the Secretariat legal team responsible for the environmental program and the Panel’s expert consultants contributed to the tracking process through their familiarity with the data and analysis that was submitted as evidence throughout the program. An unanticipated benefit was that the VVSB and UNEP tracking programs assisted the claims review process by identifying which studies had provided final reports and which were ongoing. In this way, tracking the completion status of monitoring and assessment projects provided an indicator to the environmental team and the Panel of whether additional evidence was likely to be submitted for particular claims, and if so, when.
C. Invoice Claims
Governments that received awards for “invoice” claims were obliged to follow the procedures established under Decision 18, discussed above. Three countries in the Gulf region and six countries outside the region sought compensation for the cost of measures they had taken to abate and prevent environmental damage, to clean and restore the environment, and to monitor environmental and human health risks.47 As these claims were for expenses incurred for activities that had taken place in the past, there was no need for special oversight of either the financial
45. See Section II.B in this chapter for a description of the Independent Reviewers. 46. Decision 258, S/AC.26/258 (2005), paras. 47–51. 47. See generally, Report and recommendations made by the Panel of Commissioners concerning the second instalment of “F4” claims, UN Doc. S/AC.26/2002/26 (Oct. 3, 2002).
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 115 ]
or technical aspects. The Governing Council set the same transparency reporting requirements it applied to other claims categories: when payments are made in accordance with Decision 100, and pursuant to the terms of Decision 18 (S/AC.26/18 (1994)), Governments shall distribute amounts received to the designated claimants in respect of approved awards within six months of receiving payment, and shall, not later than three months after the expiration of this time limit, provide information on such distribution.48
D. Substantive Claims
Throughout the remainder of the environmental program, the Governing Council continued to require successful claimant governments to provide financial and technical reports on the progress of projects funded by awards for future49 environmental remediation and restoration (often referred to as the “substantive” claims to distinguish them from the monitoring and assessment or invoice claims),50 as well as payment reporting under Decision 18. Each Governing Council decision approving the award recommendations of the Panel also required successful claimant governments to distribute funds received to the designated claimants within six months of receiving payment and to inform the UNCC on the distribution within three months, per Decision 18. The additional reporting was a slight variation on the requirements for the monitoring and assessment claims. A schedule of progress reports on the “status of the funds received and the environmental remediation projects,” due every six months, was established by Decisions 212, 234, 235, and 248 for all of the successful substantive claims. The Governing Council indicated that it would consider further measures to ensure that the awards would only be used for “reasonable remediation projects,” and the Secretariat was tasked with keeping it informed of the progress reports so that it might take any necessary action.
48. Governing Council Decision 171, S/AC.26/171 (Oct. 3, 2002). 49. There were a number of claims in the third, fourth, and fifth instalments for losses or costs incurred in the past, which were not included in the special environmental tracking described here. These claims were: Iran’s fifth instalment claims for reduced crop yields, refugee damage to fodder crops, and costs of medical treatment and public health measures for refugees; Kuwait’s third instalment claims for damage to buildings and Kuwait’s fifth instalment claims for the cost of medical treatment for injuries from mines and ordnance and for post-traumatic stress disorder. 50. The terms “remediation” and “restoration” are used here to refer to a broader range of activities, such as Jordan’s cooperative rangeland management program and Saudi Arabia’s compensatory projects; see Huguenin, et al., Chapter 3 in this volume; Cymie Payne, UN Commission Awards Compensation for Environmental and Public Health Damage from 1990–91 Gulf War, Am. Soc’y Int’l L.: Insights (Aug. 10, 2005).
[ 116 ]
Claims Preparation and Review
The implementation of these decisions was destined to be quite different from the tracking program that had been established within the UN family for the monitoring and assessment claims. That program relied on the F4 Panel of Commissioners for direction and communication with the claimant governments, and used UNEP as a technical consultant and the in-house capabilities of VVSB for financial oversight. On signing the fifth F4 instalment report on April 1, 2005, the F4 Panel completed its work. The UNEP agreement ended. VVSB staff was reduced. A new approach would be needed. As a practical matter, payments on the substantive claims began in 2004 and it appeared that it could take as long as ten years to complete them. In fact, it had been initially assumed that the UNCC would be unable to provide full compensation to successful claimants because “it would take at least twenty to thirty years to finance the estimated US$100–200 billion in losses suffered as a result of Iraq’s violations of international law.”51 However, on January 28, 2010, the environmental awards were fully paid,52 in part because the leap in oil prices increased the value of payments to the Compensation Fund derived from the 5 percent of the proceeds of all export sales of petroleum, petroleum products, and natural gas from Iraq stipulated under paragraph 21 of Security Council Resolution 1483.53 This speed in payment was unforeseen at the time the oversight program was put in place. The work on some projects was anticipated to continue for as long as thirty years, far beyond the expected lifetime of the UNCC.54 The largest remediation programs could not begin until sufficient funds had been received, since the project start-up costs alone were significant. The initial tracking responses from third instalment award recipients indicated that no activities had started because there were insufficient funds available; in the first year only about US$7.7 million was available for the Kingdom of Saudi Arabia’s projects to restore coastal resources from oil spill damage, which were expected to cost about US$463 million. As noted, it appeared that it might be many years before the awards were fully paid, or perhaps they never
51. Charles Brower, Proceedings, Claims Against Iraq: The UN Compensation Commission and Other Remedies, Am. Soc’y Int’l L., 86th Annual Meeting, 477, 481 (Washington, DC, 1992). 52. But see section II.C. below, explaining that up to 25 percent of awards for some claims are withheld under the UNCC’s Follow-up Programme. UNCC PR/2010/1. Information about payments is reported in periodic press releases, available on the UNCC website. Some of the award funds are being held in an interest-bearing UN account, pending completion of the projects, as discussed below. 53. Report of the Secretary-General, U.N. Doc. S/2009/385 (2009), para. 4; S.C. Res. 1483, U.N. Doc. S/RES/1483 (May 22, 2003), para. 21. 54. For example, Kuwait was awarded US$7,943,030 for intertidal/supratidal habitats “similar to those most affected by invasion-related oil contamination . . . to preserve overall ecological function and provide access and space for supporting facilities . . . maintained for 30 years should be sufficient to compensate for damage to shoreline resources due to the invasion and occupation, although other combinations of area and period of maintenance could also meet this goal.” Fifth “F4” Report, Annex II.
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 117 ]
would be.55 An oversight program was developed for the ongoing projects, to ensure that the expenditure of award funds would remain transparent and the remediation and restoration activities would continue to benefit the environment as indicated in the Panel’s recommendations. If successful, it will provide a sorely needed model of oversight for large-scale international projects.56
II. POST-CLAIMS REVIEW OVERSIGHT: FOLLOW-UP PROGRAMME FOR ENVIRONMENTAL AWARDS
In December 2005, six months after approving the final environmental awards, the Governing Council established, by Decision 258, the Follow-up Programme. The Programme provided the Council with a measure of control over project implementation and detailed guidelines for financial and technical review of the very large remediation projects and ongoing monitoring and assessment projects, to implement the oversight called for in various Governing Council decisions approving environmental awards: to ensure that funds are spent on conducting the environmental remediation activities and monitoring and assessment activity in a transparent and appropriate manner and that the funded projects remain reasonable remediation activities and monitoring and assessment activity, claimant Governments are directed to submit to the secretariat every six months progress reports concerning the status of the funds received and the environmental remediation projects and monitoring and assessment activity. The secretariat will keep the Governing Council informed of such progress reports for any appropriate
55. See, e.g., Governing Council Decision 227, Decision concerning the extension of the temporary payment mechanism, S/AC.26/227 ( July 2, 2004) (“the income into the Compensation Fund will continue to be inadequate to allow for payments under Decision 100 [citation omitted] on all claims expected to be approved at the forthcoming Governing Council sessions.”). Had payments not been sufficient to allow claimants to undertake at least a portion of the projects, it would have posed a difficult problem for the Governing Council: should it allow greater flexibility in how the claimants used the awards? Fortunately, this issue did not arise. 56. International bodies do commonly carry out project oversight in a variety of contexts, and can provide further insight into criteria and procedures. The World Bank, for example, requires governments that it works with to observe project oversight standards for financial, environmental, social, and legal concerns. A joint development project carried out by the governments of Chad and Cameroon, with the World Bank providing oversight, experienced serious problems, and the final evaluation report provides analysis that highlights the need for strong, independent oversight, interdisciplinary expertise and an integrated approach, adequate financial resources for the oversight operations, access to information about the projects, and committment for the duration of the projects. International Advisory Group, Chad-Cameroon Petroleum Development and Pipeline Project: Final Report 43–44 (Sept. 3, 2009), available at http://siteresources.worldbank.org/INTCAMEROON/Resources/IAG_Chad-Cameroon_ Pipeline_Final_Report_Sept-3-2009.pdf (last visited Nov. 10, 2009).
[ 118 ]
Claims Preparation and Review
action that may be required. The Governing Council shall consider what further measures may be necessary to ensure that the funds will only be used for reasonable remediation projects and monitoring and assessment activity, and shall specify any mechanism that may be necessary or take any appropriate action that may be required.57 (See Table 5.1.)
These procedures were in addition to the Decision 18 reporting requirements and responsibilities of each government.58 The Governing Council was committed to the principle that the award funds should only be spent on the environmental projects for which they had been awarded, but how this would be done was a complex problem. The view that an oversight program was needed was fortunately shared by the parties. Iraq had frequently requested the Governing Council to put in place a monitoring program for the environmental claim awards.59 The claimant governments responded positively to the suggestion of putting such a program in place for the 26 environmental remediation and restoration and public health monitoring projects, worth approximately US$4.3 billion, being undertaken by the governments of Iran, Jordan, Kuwait, and Saudi Arabia. A representative of Kuwait said: “We want to Table 5.1. F4 PROJECTS FOR FOLLOW-UP PROGRAMME, GOVERNING COUNCIL DECISION 258, S/AC.26/258 (2005), ANNEX II Claimant F4 UNCC country instalment claim number Iran
Jordan
F4 (4)
5000456
F4 (5)
5000394
F4 (5)
5000304
Subject matter of claim elements in follow-up programme
Amount awarded for project in follow-up programme
Remediation of damage to rangelands
$188,760
resulting from the presence of refugees Monitoring incidence of cancers Total Iran Cooperative rangeland management
$332,200 $520,960 $160,582,073
programme Total Jordan
$160,582,073 (Continued)
57. Decision 258, S/AC.26/258 (2005), app. para 3; paragraph 6 of Decision 132 and paragraph 5 of Governing Council Decisions 212, S/AC.26/212 (2003); 234, S/AC.26/234 (Dec. 9, 2004); 235, S/AC.26/235 (Dec. 9, 2004); and 248, S/AC.26/248 ( June 30, 2005) (text in italics appears only in Decision 248). 58. Decision 258, S/AC.26/258 (2005), para. 5. 59. Kazazi 2007, supra note 32, 1121; Stephanie Nebehay, Iraq’s Neighbors to Get Little for Environment Loss, Reuters, Dec. 3, 2004); Stephanie Nebehay, Iraq Seeks Rein on Neighbours’ Environmental Claims, Reuters, Dec. 7, 2004) (quoting Iraq’s proposals to the Governing Council asking that one percent of award funds be used to monitor their use, and the use of a “committee between Iraq, the states that get the money and the UNCC to discuss how to fulfill the environmental projects”).
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 119 ]
Table 5.1. CONTINUED Claimant F4 UNCC country instalment claim number
Subject matter of claim elements in follow-up programme
Kuwait
5000398
Oiled shoreline technology assessment
$8,237,792
5000432
Oil lake contamination and treatment
$10,484,988
5000433
technology assessment Technology assessment for restoration
$160,344
F4 (1)
Amount awarded for project in follow-up programme
of desert surface damaged by military fortifications: field studies of 5000434
revegetation methods Technology assessment for restoration
$7,246,880
of desert surface damaged by oil, fires and fire fighting: ecological assessment, 5000403
pilot testing of revegetation methods Public Health - Establishment
$6,763,546
and operation of a data repository and 5000404
exposure registry for five years Public Health - Human health
$1,150,771
5000405
risk assessment Public Health - Long-term
$4,846,396
5000406
health impacts Public Health - Clinical
$7,278,268
5000407
monitoring program Public Health - Human health
assessment survey Subtotal Kuwait F4 (1) F4 (3)
$770,190 $46,939,175
5000256
Remediation of damage to
5000450
groundwater resources - Remediation of areas damaged by
$41,531,463 $9,019, 717
military fortifications - Remediation of areas in and around
$8,252,657
wellhead pits - Remediation of areas damaged by
$166,513,110
tarcrete - Revegetation of damaged terrestrial
$460, 028,550
ecosystems $643,814,034 (Continued)
[ 120 ]
Claims Preparation and Review
Table 5.1. CONTINUED Claimant F4 UNCC country instalment claim number
Subject matter of claim elements in follow-up programme
Kuwait
Remediation of damage to marine
F4 (4)
5000259
Amount awarded for project in follow-up programme $3,990,152
and coastal resources 5000466
Remediation of damage at open
$162,259
5000454
burning/open detonation sites - Remediation of areas damaged
$1,975,985,580
by oil lakes, oil-contaminated piles, oil trenches and oil spills - Revegetation of damaged
$283,300,389
terrestrial ecosystems $2,259,285,969 F4 (5)
5000460
Compensatory project for shoreline
$7,943,030
resources Subtotal Kuwait F4 (3), (4) and (5) Total Kuwait Saudi
F4 (1)
$2,956,726,907 $3,003,666,082
5000414
Public Health - Data repository/
5000416
Exposure Registry Public Health - Long-term
$5,106,058
5000417
health studies Public Health - Clinical
$7,162,958
Arabia
$12,590,100
5000418 Subtotal F4 (3) 5000451
Monitoring Program Public Health - Human Health Survey Saudi Arabia F4 (1) Remediation of damage to coastal
$611,177 $25,470,293 $463,319,284
F4 (4)
resources Remediation of damage to
$618,974,433
5000455
terrestrial resources resulting from military encampments,
F4 (5)
5000465
fortifications and roads Remediation of damage to marine
5000463
resources Compensatory project for intertidal
shoreline habitats Subtotal Saudi Arabia F4 (3), (4) and (5) Total Saudi Arabia
$6,172,274 $46,113,706 $1,134,579,697 $1,160,049,990
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 121 ]
make sure the world and Iraq do not worry that money is misused. It is in everybody’s interest.”60 A delicate question that had to be taken into consideration in designing the Follow-up Programme was the continued existence of the Commission. Most of the staff had departed at this point, including the entire environmental team and the Deputy Executive Secretary; even the Executive Secretary was preparing to retire; a small Secretariat would remain to work on payments of awards to claimants. The UNCC’s mandate was to administer the Compensation Fund, and the purpose of the Fund was to pay compensation as provided in Security Council Resolution 687 (1991).61 With the completion of claims review, the question had to be faced: should staff be maintained and should the Governing Council continue to meet?62 If the UNCC ceased to exist as an institution, what entity would assume responsibility for the oversight program, and where would it find the legal mandate to do so? The Follow-up Programme had, under the Governing Council decisions, three requirements: (a) claimants continue to use awards for environmental activities; (b) expenditure of the award funds to remain transparent and appropriate; and (c) the projects to remain reasonable remediation and monitoring and assessment activities.63 Alternative approaches were considered, including the elaboration of detailed guidelines for review of progress on the projects. Instead, the decision was to develop a process and a set of principles that would provide greater flexibility with a smaller UNCC staff. The UNCC adopted a program that provided an element of third-party oversight and retained flexibility should a long-term mechanism eventually be needed post-UNCC. As will be seen, the design of the Follow-up Programme would have allowed for the regional governments to take over the technical oversight functions, given a sufficient level of cooperation between them. Financial oversight could be assumed by each claimant government, although the degree of transparency would be diminished by the removal of the UNCC Governing Council as a third-party overseer. As to whether and how such a transfer might be implemented, the Governing Council stated that “prior to the eventual disestablishment of the UNCC
60. Stephanie Nebehay, Iraq Seeks Rein on Neighbours’ Environmental Claims, Reuters, Dec. 7, 2004). See also Kazazi 2007, supra note 32, 1120. 61. S.C. Res. 687 (1991), paras. 18, 19; Report of the Secretary-General, U.N. Doc. S22559, Part I (1991). 62. Between June 2007 and December 2009, the only reported Governing Council decision was Decision 266 on withholdings and administration of funds under Decision 258. Governing Council Decision 266, S/AC.26/266 (Apr. 29, 2009). It is indicative that the environmental awards were an inherently different type of remedy that the Follow-up Programme for Environmental Awards remains the major item on the agenda of the Governing Council; the other is the management of the Compensation Fund. 63. Decision 258, S/AC.26/258 (2005), Appendix, paras. 2,3.
[ 122 ]
Claims Preparation and Review
Governing Council, the Council will consider further arrangements with regard to its review functions as set out in the guidelines.”64 Another issue to be addressed was whether the Compensation Fund could be used to defray the costs of the Follow-up Programme. The claimant governments agreed to assume any costs of the program, to be paid from the Compensation Fund and deducted from their awards, proportionately.65 Thus, Iraq would not bear any additional cost for the Programme.
A. Inception
When the Governing Council approved the first substantive environmental awards, the government of Iraq asked it to establish a mechanism to monitor the awarded funds.66 In its presentation to the Governing Council, Iraq proposed that it should play a role in the remediation. It also observed that the remediation projects would have regional environmental effects, which should be taken into account. These three points were all considered by the Governing Council and incorporated in the Follow-up Programme and regional cooperation initiative. With the advice of the Panel, due consideration was given to the appropriate form of the mechanism and several approaches were evaluated for feasibility, capacity, and mandate. If another extant UN or regional organization had assumed oversight of the program, the transition would have been relatively simple; however, such a body might not be in a position to sanction nonperformance by governments. Or, an expert body might have been appointed by the Governing Council, reporting to the UN Secretary-General; this approach would have posed a logistical problem of supplying staff, quarters, and other needs of the expert body. Alternatively, responsibility could have been transferred to national institutions with an obligation to report to the UN Secretary-General; effectiveness of this approach would depend on the independence of the national institutions. The Follow-up Programme took its final shape with input from the claimant governments and the government of Iraq. In fall 2005, the UNCC Secretariat
64. Decision 258, S/AC.26/258 (2005), para. 6. The next Governing Council meeting is scheduled for April 2011. 65. Decision 258, S/AC.26/258 (2005), paras. 2, 55 (“Directs the Executive Secretary to deduct, on a biannual basis, a portion of the F4 awards, as agreed between the Secretariat and the F4 claimant Governments, to cover any expenditures incurred by the UNCC for this purpose”). 66. Decision 258, S/AC.26/258 (2005) (“Recalling further the request by the Government of Iraq dated 16 December 2003 and the statements made at the opening plenary meetings of the fifty-third and fifty-fourth sessions regarding monitoring of the use of environmental awards and transparency in expenditures and the positive response by the F4 claimant Governments consisting of the Islamic Republic of Iran, the Hashemite Kingdom of Jordan, the State of Kuwait and the Kingdom of Saudi Arabia”).
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 123 ]
facilitated discussions between Iraq, Kuwait, Saudi Arabia, Jordan, and Iran. The relevant governments agreed to establish the Follow-up Programme, to be set in place through a Governing Council decision. The claimant governments, their lawyers, Iraq, and the Secretariat developed and agreed on the main features of an oversight program. The Secretariat drafted guidelines for monitoring the technical and financial aspects of the environmental projects for Governing Council approval. The structure of the program was intended to place the lion’s share of project evaluation responsibility with national entities, with the UNCC and Iraq each receiving regular reports. (See Figure 5.1.) The Governing Council also decided that the ongoing monitoring and assessment projects from the first environmental claims instalment would be included in the Follow-up Programme.67 At such time as the Governing Council should decide to terminate its role, it will decide further arrangements to replace its role in the process.68 In November 2010, the Governing Council identified criteria for structural systems and controls that, if adopted by claimant governments, would allow the transfer of oversight to them.69
B. Follow-up Programme Function and Roles of Participants
The Governing Council retained the ultimate oversight and decision-making authority for the Follow-up Programme. Programme functions were allocated to the claimant governments, the government of Iraq, subject matter experts functioning as “Independent Reviewers,” and the Secretariat of the UNCC. The Governing Council was responsible for deciding whether the claimants were spending the award funds “on conducting the environmental remediation activities and monitoring and assessment activity in a transparent and appropriate manner, and [whether]
67. Id. (“Recalling the conclusion reached at the Governing Council’s fifty-sixth session that ongoing monitoring and assessment projects be included in the tracking and reporting programme”). The F4 team leader, assisted by verification and technical expert consultants, prepared the draft decision drawing on the previous experience of monitoring and assessment tracking and the substantive oversight carried out during claim review. 68. Setting aside the environmental claims, the Governing Council has an ongoing role in overseeing the payment of compensation. At this writing, about US$21.4 billion dollars in awards for corporate and nonenvironmental government claims remain to be paid, all subject to Decision 18 reporting. UNCC Website, Status of Processing and Payment of Claims (Total compensation awarded: US$52,383,356,715); Press release, PR/2010/7 (Oct. 28, 2010) (“overall amount of compensation made available to date . . . $ $30,738,816,544”). 69. Letter dated 12 November 2010 from the President of the Governing Council of the United Nations Compensation Commission addressed to the President of the Security Council, S/2010/587 (Nov. 15, 2010).
[ 124 ]
Claims Preparation and Review
Figure 5.1. FOLLOW-UP PROGRAMME FLOWCHART, GOVERNING COUNCIL DECISION 258, S/AC.26/258 (2005), ANNEX II Claimant Government [National Focal Point]
INFORMATION EXCHANGE AS NEEDED
Claimant Government begins project implementation
INFORMATION EXCHANGE AS NEEDED
Project modified or concerns identified?
YES
Claimant Government NO Semiannual Report to Independent Reviewers
Claimant Government Immediate report to Independent Reviewers
Iraq
INFORMATION EXCHANGE AS NEEDED
Comment on reports
INFO EXCHANGE
Independent Reviewers review project
Is there a material modification or concern about the project?
NO
Independent Reviewers Semiannual Report to UNCC
Does UNCC need more information?
NO
UNCC semiannual report to Governing Council
YES NO
YES
Provide information, site inspection, discussion
Governing Council
UNCC Secretariat
Independent Reviewers
Get information from independent Reviewers claimant Governments, as needed
Request information, site inspection discussion as necessary
Governing Council considers report UNCC ad hoc report to Governing Council
Is there a YES material concern about the project?
YES Analyze, environmental, economic, financial and timing implications
Independent Reviewers ad hoc Report to UNCC
Does UNCC need more information?
NO
28 Nov 2005
the funded projects remain reasonable remediation activities and monitoring and assessment activity” and what steps to take if they were not.70 The government of Iraq was to receive final reports from the Independent Reviewers through the UNCC Secretariat and information about the progress of the Programme through regional meetings with claimant governments. Iraq could provide responses and comments to the Secretariat, to be submitted to the Governing Council. Iraq’s liaison with the claimant governments and the Secretariat would be its national focal point (NFP); each government involved in the Programme would designate an NFP for regional coordination and cooperation.71 The monitoring and assessment claims that were included in the Follow-up Programme were subject to a somewhat different type of oversight from the substantive remediation and restoration claims, as noted in the text above. The claimant governments were to be responsible for the implementation of the projects and for management of the funds. They also would recommend experts as Independent Reviewers (IRs), and designate the NFP to act as the liaison between the government agencies implementing the projects and the UNCC. The NFP role thus included project administration, working with regional counterparts, and working with the UNCC as government representative. The governments, through the NFP, were to report on project progress and financial status at least biannually to the Independent Reviewers, and respond to requests for information from the Independent Reviewers or the UNCC. Governments were to notify the relevant IRs and the Secretariat of any problems with projects or modifications in implementation immediately. To support their work, the IRs and Secretariat staff were to have access to all project sites for inspections and to relevant documents and personnel.72 The Secretariat’s role was to work with the claimant governments and the Independent Reviewers to implement the Programme, and to keep the Governing Council informed of its assessments and any issues of significant concern through biannual reports. The reduced staffing of the UNCC included the Executive Head and three staff members.73 The Follow-up Programme was initially staffed by a legal officer and a program officer with technical training in environmental sciences, eventually expanded to 5 professional staff.74 They were the main contacts for governments participating in the Follow-up Programme. They worked with the NFPs, technical personnel for the projects, and Independent Reviewers. The Secretariat
70. Decision 258, S/AC.26/258 (2005), para. 29. 71. Id., paras. 22–24. 72. Id., paras. 8–11. 73. Report of the Secretary-General, U.N. Doc. S/2009/385 ( July 27, 2009), at para. 3. 74. Office of Internal Oversight Services, Activities of the Office of Internal Oversight Services for the period from 1 July 2009 to 30 June 2010, A/65/271 (Part I) (Aug. 9, 2010) para. 71. Note that Follow-up Programme staff are funded by the participating governments, while other UNCC are funded by the Compensation Fund.
[ 126 ]
Claims Preparation and Review
was to evaluate the projects’ technical compliance with the recommendations of the Panel Reports and other Governing Council requirements and report to the Governing Council. On occasion, members of the Secretariat made site visits to get information about the projects. The Secretariat also had the capacity to retain the assistance of specialized experts as needed.75 Independent Reviewers were to be the lynchpin of the Programme, tasked with the oversight of the projects and reporting to the UNCC. The success of the Programme depended on the extent to which national governments proposed competent and truly independent IRs. They were to be eminent experts in relevant scientific, engineering, economic, and financial fields with a “high level of professional expertise, experience and integrity . . . each acting in his or her personal capacity, rather than as a representative of a government or an institution.”76 A financial conflict of interest test was intended to prohibit anyone with a financial interest in any project under the Programme or in any corporation or institution contracted to work on the projects; prior or actual organizational relationship with governments, firms, or individuals involved with the projects had to be disclosed, as well as “any other circumstances that are likely to give rise to actual or perceived justifiable doubts as to the candidate’s impartiality or independence with respect to the prospective tasks.”77 Claimant governments were to nominate IRs who would then be approved by the UNCC. The IRs’ job would be to monitor project implementation closely, to report regularly to the UNCC on consistency with the guidelines, and to notify the UNCC of any material modifications or significant problems with the projects. IR reports would provide the UNCC with a summary of project status and a detailed, reasoned evaluation of whether the technical and financial aspects of the projects continue to be reasonable.78 During the implementation of the Programme, it was recognized that it would be desirable to also appoint an Independent Reviewer Coordinator.79 Given that there would need to be many IRs from diverse backgrounds and likely residing in different parts of the world, the Coordinator would organize the reporting to the UNCC, facilitate exchanges between the IRs, and provide other similar administrative assistance as needed. However, this position was discontinued.
75. Decision 258, S/AC.26/258 (2005), para. 25. 76. Id., para. 52. The role of the IR is akin to that of financial auditors in the United States: although hired and paid by the party under review, they are expected to act independently. The inherent conflict of interest in this type of arrangement and a critique of management strategies is discussed in Don A. Moore, Philip Tetlock, Lloyd Tanlu, & M. Bazerman, Conflict of Interest and the Case of Auditor Independence: Moral Seduction and Strategic Issue Cycling, 31 Academy of Management Review 10–29 (2006). 77. Id., para. 53(b). 78. Id., paras. 15–21. 79. Kazazi 2007, 1125.
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 127 ]
C. Withholding Award Funds
To ensure an incentive for compliance with the oversight program, under Governing Council Decision 258, the UNCC withheld 15 percent of the total value of each government’s awards included in the Follow-up Programme, to be released upon satisfactory completion of the environmental projects. Five of the environmental projects were very large-scale, were expected to take many years, and had awards of over US$50 million. For these, the claimant government had to propose a phasing plan identifying stages of the work, with a proposed allocation of the award for each phase.80 As required, the phasing plans were submitted for Governing Council approval. The Panel had emphasized the need to phase projects in order to evaluate the effectiveness of the remediation approaches, to identify and to address negative impacts, if any. The phased projects were: • Jordan’s cooperative rangeland management programme, (US$160,582,073) to remediate rangelands and wildlife habitats that were damaged as a result of the influx of refugees and their livestock following Iraq’s invasion and occupation of Kuwait;81 • Kuwait’s programs to remediate and restore desert lands that were damaged by military fortifications and other effects of the military activities (US$643,814,034);82 • Kuwait’s program to remediate and revegetate desert areas damaged by the effects of the oil well destruction and resulting fires and spills (US$2,259,285,969);83 • Saudi Arabia’s remediation of coastal resources that were contaminated by the oil spills that resulted fr om the fighting, and particularly from the intentional release of oil from Kuwait’s oil fields into the Gulf by Iraqi forces (US$463,319,284);84
80. Decision 258, S/AC.26/258 (2005), para. 4. As observed by Sand, in Chapter 7, in this volume, at note 83, such phased disbursement of funds is a common tool for environmental conditionality used by multilateral development banks. 81. Jordan’s claim no. 5000304, Fifth “F4” Report, paras. 353–66. The award for this claim also included US$1,344,661 in compensation for depletion of Jordan’s groundwater resources, and US$246,873 for a captive-breeding program for the reintroduction of endangered Arabian oryx and sand gazelle into the wild. Fifth “F4” Report, paras. 318–28, 364. These portions of the claim were not included in the Follow-up Programme. 82. Kuwait claim no. 5000450. 83. Kuwait claim no. 5000454. 84. Saudi Arabia claim no. 5000451. Information about the oil spill and its impacts on the Saudi Arabian coast can be found at the website of the Jubail Marine Wildlife Sanctuary Research Database, http://www.jubail-wildlife-sanctuary.info/index.html (visited Dec. 13, 2010). [ 128 ]
Claims Preparation and Review
• Saudi Arabia’s remediation of the desert to restore areas damaged by military encampments, fortifications, and roads associated with the conflict (US$618,974,433).85 By dispensing funds as these very large projects progressed, the Governing Council would be able to exercise some control and accountability. However, even with the 15 percent withholding, very large sums of money (for one claim, US$1.9 billion) would still be made available to claimant governments. Withholding more of the award funds would improve cooperation, if needed. The Governing Council therefore reserved the possibility that an additional percentage might be withheld from awards for projects with long duration. In 2009, the Council decided to withhold an additional 10 percent from each of these projects, to be retained in the Compensation Fund.86 Moreover, governments that had already received 85 percent of award funds were directed to “promptly return the sum equivalent to 10 percent” of their award to the Compensation Fund, which was done.87 The award funds for the phased projects were to be transferred to special accounts in each claimant’s “central Bank or similar Governmental institution” to be released “only in accordance with the approval of the UNCC Governing Council.”88 Interest accruing on these accounts is to be reported by the claimant government to the Governing Council, added to the principal amounts, and “used for the implementation of the environmental projects in accordance with Decision 258.”89 Interest accruing on the amounts withheld in the UN account under Decisions 258 and 266 will also be used for implementation of the environmental projects, subject to the Follow-up Programme guidelines. That interest will be transferred to the special accounts annually. A final point of interest is that the Governing Council “may decide, exceptionally, to authorize the use of certain interest amounts to meet administrative expenses that may exceed three percent of the value of the awards [which Decision 18 sets as an effective cap] where these expenses have been demonstrated by participating Governments to be necessary and appropriate.”90
D. Review Principles and Standards 1. Scientific Reasonableness Assessment
The Governing Council and the Panel recognized that large-scale remediation and restoration projects could even risk harming rather than helping the environment,
85. 86. 87. 88. 89. 90.
Saudi Arabia claim no. 5000455. Decision 258, S/AC.26/258 (2005), para. 2; Decision 266, S/AC.26/266 (2009), para. 1. Decision 266, S/AC.26/266 (2009), para. 3. Decision 266, S/AC.26/266 (2009), paras. 5–6. Id., para. 7. Dec 267. Governing Council Decision 268, S/AC.26/268 (Nov. 12, 2009), para 5. O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 129 ]
so the Follow-up Programme required that the projects must “remain reasonable remediation activities.”91 In the course of reviewing the claims, the Panel defined its standard for reasonable remediation measures. Consideration must be given to “the potential of the measures to achieve the remediation objectives set out in [the report]; potential adverse environmental impacts of the proposed measures; and the cost of the measures as compared with other remediation alternatives.”92 In the third instalment report, the Panel stated that the remediation objective “is to restore the damaged environment or resource to the condition in which it would have been if Iraq’s invasion and occupation of Kuwait had not occurred.”93 The remediation objective is a context-specific standard, and several factors have to be considered: “inter alia, the location of the damaged environment or resource and its actual or potential uses; the nature and extent of the damage; the possibility of future harm; the feasibility of the proposed remediation measures; and the need to avoid collateral damage during and after the implementation of the proposed measures.”94 Remediation must be evaluated in terms of restoring the environment to preinvasion conditions, with emphasis on reinstatement “in terms of its overall ecological functioning rather than on the removal of specific contaminants or restoration of the environment to a particular physical condition [because] it might not be feasible or reasonable to fully recreate pre-existing physical conditions.” 95 This is an important point, as it focuses on ecological functionality rather than other values, such as aesthetics. The Panel underscored this in the fourth instalment by stating: “where proposed measures for the complete removal of contaminants are likely to result in more negative than positive environmental effects, such measures should not qualify as reasonable measures to clean and restore the environment, within the meaning of article 35(b) of Governing Council Decision 7.”96 The Panel, drawing on information provided by the claims, Iraq’s comments, and its own experts, found many of the measures proposed by the claimants to be necessary and appropriate. In cases where the experts identified a risk of harm or ineffectiveness of the claimants’ proposed approaches, the Panel recommended modifications in the design, methodologies, nature, and extent of work in the claims
91. Decision 258, S/AC.26/258 (2005), para. 3. 92. Report and recommendations made by the Panel of Commissioners concerning the third instalment of “F4” claims, UN Doc. S/AC.26/2003/31 (2003) para. 57 (hereinafter, Third “F4” Report). 93. Id., para. 47. 94. Id., para. 47. 95. Id., para. 48. 96. Report and recommendations made by the Panel of Commissioners concerning part one of the fourth of “F4” claims, UN Doc. S/AC.26/2004/16 (2004) para. 49 (hereinafter, Fourth “F4” Report, part 1). This report included several claims that proposed to remove all visible contamination and destroy it using high temperature thermal desorption. In some cases, the Panel recommended awards for these claims on the basis of in situ remediation. See, e.g., Third “F4” Report, paras. 120–32 (“In the view of the Panel, the physical removal of tarcrete could damage the affected soil, impair natural recovery and reduce the chances of successful revegetation.”).
[ 130 ]
Claims Preparation and Review
and in the technical annexes to its reports. Proposals to extensively excavate the coastal oil contamination left by the Gulf oil spills were thus rejected in favor of less disruptive interventions and natural recovery because of concerns that the excavation itself posed a risk of causing substantial environmental harm.97 While the Panel expected that its indications of changes to the methods proposed by the claimants would “improve the net environmental benefit and reduce the cost of some measures,” it also recognized that further modifications might be necessary once the projects were initiated “to take account of new information or changing environmental conditions.”98 Accordingly, the Panel set out seven general principles to guide project implementation, some based on legal principles and others on best practice for environmental remediation: (a) Measures that pose unacceptable risks of ecological harm should be avoided. (b) Measures should be undertaken only if they are likely to result in more positive than negative effects. (c) Measures that facilitate natural recovery processes should be preferred, and they should build on and enhance natural recovery that has already occurred. (d) The effectiveness of measures should be monitored to ensure that targets are met; and measures should be designed to be sufficiently flexible and responsive to new information obtained from such monitoring. (e) Where more than one approach or technique is appropriate to achieve the desired goal, the most cost-effective option should be selected. (f) Decisions on compensatory measures should consider both the short-term and long-term effects of proposed activities on neighbouring ecosystems, including transboundary effects.99 The need for field tests of novel remediation approaches was reiterated in the Panel’s reports. The remediation objectives and principles stated in the Panel reports were to be adhered to, and the Panel’s modifications to the claimant governments’ proposals were to be the starting point for planning remediation funded by UNCC awards, but the specific technology was left to the claimants to determine on the basis of available information and actual conditions.
97. Third “F4” Report, paras. 128–29, 181, Technical Annexes IV, VI. For more discussion, see Chapter 3 in this volume, III.D. 98. Third “F4” Report, Technical Annexes, para. 2. 99. Fifth “F4” Report, Introduction to Technical Annexes; similar language is repeated in Third and Fourth “F4” Reports. The Panel also “recognized the need for claimants to consider the potential adverse impacts of remediation measures that they undertake to respond to environmental damage in their respective territories. In particular, the Panel emphasizes that claimants have the obligation under international law to ensure that the remediation measures that they take do not cause damage to the environment in other States or in areas beyond the limits of national jurisdiction.” Third “F4” Report, para. 50.
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 131 ]
The Follow-up Programme was intended to ensure the reasonableness of project implementation over the life of the activity by requiring claimant governments to report to the Independent Reviewers at least every six months throughout the Programme and more frequently in case of modifications or if problems arise. Ideally, the IRs would work closely and collaboratively with the claimant government and would be rapidly alerted to any changes or problems in the projects. In the initial planning phase, the UNCC was to be kept informed as key decisions were made and work plans were defined. At this point, any deviations from the approach recommended by the Panel were to be indicated to the IRs who were to communicate the information to the Secretariat. As the projects were implemented, the IRs were to be informed of any modifications to approved plans, or as soon as a government became aware of any significant problem with a project.100 The guidelines for the Follow-up Programme specified particular information that claimant governments must provide to the UNCC and the criteria to be used by IRs in their evaluations. In this way the project managers were directed to follow a prescribed approach to refining the conceptual remediation designs that were submitted in support of the claims for the Panel’s review.101 While the conceptual designs were adequate for claims review, they needed to be developed into functional remediation plans. For example, remediation goals must be set; criteria for evaluation of the project must be specified; field studies must be planned and plans for any necessary adjustments or further experimentation taken into account; a long-term monitoring program must be put in place; data to be collected before, during, and after remediation must be identified; technologies must be selected and the rationale for selection described, taking into account results from field tests carried out as part of the project activity.102 The anticipated and actual progress on the project must be described, both in terms of on-the-ground results and documentary evidence such as letting contracts. The selection of environmental indicators would play a key role in the evaluation of the projects by the Independent Reviewers. The Independent Reviewers were to be involved in assessment of the initial project plans, including the project managers’ selection of measurable performance criteria. In evaluating progress on the projects, the IRs were to assess progress toward well-functioning, comparable ecosystems. And if a government proposed material changes to the project, the IRs were to assess whether the revised approach would be more effective in the light of data provided to measure the relevant environmental indicators. The IRs were expected to conduct site visits for verification.103
100. 101. 102. 103.
[ 132 ]
Decision 258, S/AC.26/258 (2005), para. 12. Id., paras. 37–42. Id. Decision 258, S/AC.26/258 (2005), paras. 42–43.
Claims Preparation and Review
2. Financial Reasonableness
Financial oversight of the environmental remediation and restoration projects included both the reporting requirements of Decision 18, described above, and additional provisions for transparency, accountability, competitive procurement, and sufficient flexibility to allow changes to work programs that might be suggested by Independent Reviewers or the UNCC.104 Claimant governments were to: (a) Establish and maintain full control over the project including the management of the award funds and responsibility for the disbursement of funds to contracted parties. (b) Ensure transparent, competitive, and effective procurement in compliance with applicable national laws and standards of international practice. (c) Ensure that contracts for remediation and restoration projects are designed to be flexible enough to accommodate changes to work programmes that may be suggested by the Independent Reviewers or the UNCC. (d) Assume financial management and accountability for all projects. (e) Ensure effective and on-going financial monitoring and evaluation with appropriate reporting and quality control mechanisms. (f) Assure appropriate internal and external accountability arrangements. (g) Assist the Independent Reviewers in their preparation of periodic verifications of financial activity and implementation activity. (h) Allow access by the UNCC and Independent Reviewers to all project financial documents and to financial monitoring and evaluation activities.105 When a claimant government proposed a material modification to a project, the Panel’s principle that “where more than one remediation approach or technique is appropriate to achieve a desired remediation goal, the most cost-effective option should be selected” was to be put into practice through financial review by the UNCC, taking the IR’s views into account.
III. REGIONAL COOPERATION MEETINGS
After long planning, the first regional meeting to include Iraq and claimant governments Jordan, Kuwait, and Saudi Arabia took place in September 2005. This initial gathering was followed by regular meetings of the Regional Environmental Remediation Advisory Group (RERAG), initially to elaborate the shape of the Follow-up Programme for the substantive environmental awards and also to discuss
104. Id., paras. 45–46. 105. Id., para. 45.
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 133 ]
the possibility of establishing a regional database of environmental information.106 The governments of Kuwait and Iraq also met on a bilateral basis to discuss the compensation program, under the aegis of the UNCC. The possibility that these meetings might eventually form the basis for ongoing cooperation on environmental matters in the Gulf region, with an expanded group of countries, would give added value to the program. In November 2005, a meeting between claimant governments, UNEP staff and the UNCC environmental team was held in Geneva, to discuss the Governing Council’s interest in public access to the information developed through the UNCC environmental awards. In UNEP’s view, public information available in the database, in an easily accessible form, would help the environmental cleanup, and the monitoring and assessment information would be of great interest to the international community. Technically, it would be possible for the claimant governments to retain full control of who would have what access to the data. The Secretariat observed that the claims review process had benefited greatly from the ease and speed of access to new monitoring and assessment information that was achieved by posting the information to the database and providing access for the Panel, the experts, and the environmental legal team. The claimant governments were interested in gaining access to information from other countries, from the UNCC review process, and additional studies compiled by UNEP. They were reluctant to release all of their own information, because of security implications, privacy of personal information, and reluctance to publicize the extent of environmental damage before the remediation had commenced. Kuwait envisioned the regional cooperation database expanding to include a broader scope of environmental information. To better analyze how security and other confidentiality107 concerns of the claimant governments might be addressed, the information in the database was reviewed and allocated to provisional public and nonpublic categories. Information related to remediation projects that would be useful for the governments to share included: updates on environmental conditions; reports on technologies being tested and used; research reports and government documents available only in hard copy from sponsoring institutes; relevant international standards; and contractor information,
106. The Hashemite Kingdom of Jordan had proposed to the General Assembly a “United Nations Environmental Data Base” as a “confidence-building measure and another step towards the international protection of the environment” in July 1991. Exploitation of the Environment as a Weapon in Times of Armed Conflict and the Taking of Practical Measures to Prevent Such Exploitation, Note verbale from the Chargé d’affaires a.i. of the Permanent Mission of Jordan to the United Nations, UN Doc. A/46/141, ( July 8, 1991); and in Environmental Protection and the Law of War, App 10, 274 (Glen Plant ed., London and New York: Belhaven Press 1992). While the RERAG continues to meet, Iraq has not attended many of the meetings; nor has Iran. 107. The UNCC rules required that “Unless otherwise provided in these procedures or decided by the Governing Council, all records received or developed by the Commission will be confidential.” Provisional Rules of Procedure, art. 30(1).
[ 134 ]
Claims Preparation and Review
including indicative pricing. Certain information, such as satellite images and articles from professional journals, might be of value but could not be included in a public database because the licenses that covered access and use by the governments for claims submission and project implementation would not extend to general publication. It was proposed that screening by the relevant claimant governments and the UNCC for confidentiality and intellectual property rights would address these concerns. Subject matter experts could screen for relevance of the information. The conclusion was that this approach could work, with the data to be held in the respective country and fed into the regional database via an internet connection. This would guarantee the control required by the claimant governments and could be updated easily. It would also require a central database and, ideally, coordination so that information could be collated across national efforts.108 This level of cooperation remains a goal for the future.
IV. FOR THE FUTURE
Having decided that there was a continuing obligation on claimants to use the awards to restore the loss of environment that was the basis for compensation, the Governing Council worked with the relevant governments to ensure that this principle was put into effect, and developed innovative approaches by working with the legal, verification, and information technology branches of the UNCC Secretariat. The Council exercised control over the use of the award funds through its control over the Compensation Fund, the Tracking Programme, and the Follow-up Programme. At this time, there has not been an empirical assessment of the measure of environmental restoration achieved with the compensation paid by Iraq, which would be the ultimate metric for success of the oversight programs.
A. Oversee with Independence, Expertise, Authority, and Trustworthiness
In similar circumstances, which is to say, large-scale environmental reparations programs, third-party oversight should incorporate the following considerations. The oversight body needs to have sufficient authority to insist that sovereign governments comply with its dictates, such as full control over the release of compensation funds and willingness to withhold funds if need be. It must have the scientific, technical, legal, and financial expertise to interpret and seek information provided by the governments about the projects and to guide the implementation with appropriate
108. Considering compatibility of computer software as an example, over one hundred file formats were used in claimant submissions.
O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 135 ]
advice. It must have legitimacy, be considered neutral, and be trusted by the claimant and respondent governments with sensitive information and decisions. The UNCC adopted a hybrid of international, regional, and national actors— the Governing Council acting with the authority of the UN Security Council; the Independent Reviewers and UNCC Secretariat providing the expertise; and the longstanding relationship between the UNCC and the parties furnishing the requisite level of trust.
B. Include Oversight Mechanism in Reparations Agreements
Oversight to ensure that environmental awards are effectively used on behalf of the damaged resources should be part of settlements and peace agreements whenever possible. The purpose and the legitimacy of environmental compensation would be eroded if awards were diverted to other purposes or to ineffective restoration. Explicit inclusion of an oversight mechanism and vesting authority in a suitable institution should be established from the outset.
C. Authorize Robust Financial Oversight and Audit
The financial audit provisions of the Tracking Programme for monitoring and assessment awards were procedural rather than substantive; for the Follow-up Programme the audit provisions, though more substantive, were not detailed. In both cases, more intrusive financial oversight would be advisable to ensure not merely that award funds are spent on the environmental projects, but that there is value received—and the likely strong resistance of governments to such audits would need to be overcome.
D. Phase Projects
An alternative to the approach that was used would be to transfer award funds to claimant governments only when they demonstrated that the stated environmental performance criteria of the projects had been achieved.109 Instead, project phasing
109. Yet another approach would be to require restitution rather than compensation. In the United States, for example, state and federal regulators generally prefer to a reach a settlement where restoration is carried out by the responsible party under their supervision rather than receive a monetary award in court. See Louise de La Fayette, The Concept of Environmental Damage in International Liability Regimes, in Environmental Damage in International and Comparative Law: Problems of Definition and Valuation 149, 182–83 (M. Bowman & A. E. Boyle eds., Oxford: Oxford University Press 2002). While restitution would be consistent with the ILC’s view of the remedies for breaches of state responsibility, it is [ 136 ]
Claims Preparation and Review
should provide a similar approach, by using accomplishment of stages in project implementation as the payment trigger. This may have been the only practical approach, recognizing that environmental restoration is achieved over a long period of time, that some funds would be needed to initiate the projects, and that obtaining specific environmental remediation results can be uncertain.
E. Provide Transparency
One of the goals of this program was transparency. The design of the Follow-up Programme was intended to provide a substantial measure of transparency for the UNCC and the government of Iraq to observe progress on environmental restoration. The extent to which this was realized depended on the implementation of the guidelines provided in Decision 258. That in turn depended on the willingness of the claimant governments to comply, the Governing Council’s determination to exercise its authority, and the funding, staffing, and capability of the UNCC Secretariat and the Independent Reviewers. The Programme provides little transparency with regard to the general public, including the scientific community, neighboring states, and trustees of environmental resources that might be affected by the remediation activities. Particularly desirable features that would improve the perception of transparency for the international community would be: public identification of the Independent Reviewers; regular publication of scientific results of the projects; environmental impact assessments in the early stages, updated by interim reports on project progress and long-term monitoring results;110 and notice of consultants and companies hired by the claimant governments for project implementation. The argument for public access to scientific information and evaluation of the work being undertaken is particularly compelling. The scientific study of the Gulf terrestrial and marine ecosystems that was funded through the UNCC program was a significant contribution of knowledge in a region where such information is relatively scarce. For example, detailed, high-quality studies of the Kuwait and Saudi Arabian coasts were undertaken funded by the monitoring and assessment awards; in the course of this work some unexpected discoveries of the impact of oil spills in
far more complex to implement in a transboundary context than within a domestic legal system. And, in fact, the government of Iraq did at one time propose that it should be allowed to implement the remediation in Kuwait; this suggestion was rejected. 110. The International Court of Justice recently stated that the practice of environmental impact assessment (EIA) “has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource.” Pulp Mills on the River Uruguay (Arg. v. Uru.) ( Judgment of Apr. 20, 2010), para. 204, available at http:// www.icj-cij.org/docket/files/135/15877.pdf (last visited Apr. 22, 2010). O V E R S I G H T O F E N V I R O N M E N TA L AWA R D S
[ 137 ]
this type of ecosystem were made. The damage caused by the war was extraordinary and the restoration work that should be carried out will surely be cutting-edge: understanding how it succeeds, and where problems arise would, again, be of value to others. Moreover, environmental projects of this scale, taking place in a nearly closed sea like the Gulf, have the potential to affect the environment of neighboring states. Regular reporting on potential transboundary impacts of the projects is an obligation under international law that was invoked by the Panel.111 The three accountability regimes instituted by the UNCC under Decision 18, the environmental monitoring and assessment Tracking Programme, and the environmental claim Follow-up Programme ensured that in this case reparations for environmental harms would result in restitution of the damaged resources, not a mere transfer of funds to the injured states. RERAG’s contribution to regional environmental cooperation is a further indicator of the benefits of this approach. In future circumstances where environmental reparations are called for, the lessons from the UNCC can be applied from the outset and strong accountability measures can be included in the initial institutional and legal framework.
111. Third “F4” Report, para. 50.
[ 138 ]
Claims Preparation and Review
PA RT T W O
Jurisprudence and Policy Issues
This page intentionally left blank
C HA P TER 6
Points of Law JOSÉ R . ALLEN
INTRODUCTION
T
he claims considered by the F4 Panel of Commissioners principally focused on claims filed by governmental entities for environmental damage and depletion of natural resources1 resulting from Iraq’s invasion and occupation of Kuwait. The F4 Panel’s charge was to review those claims and, where appropriate, recommend compensation for any losses suffered.2 Article 31 of the Provisional Rules for Claims Procedure identified four sources of law that the Panel was to apply in carrying out its mandate: (1) relevant resolutions of the Security Council, in particular Security Council Resolution 687 (1991);3 (2) criteria established by the Governing Council; (3) pertinent decisions of the Governing Council; and (4) other relevant rules of international law.4 Although the Panel’s mandate and the identification of the sources of the law to be applied in carrying out its mandate were relatively clear and unambiguous, the application of these broad pronouncements to the specific factual circumstances of the claims presented for the Panel’s consideration proved more challenging.
1. Security Council Resolution 687 (1991) and Governing Council Decision 7 use the terms “environmental damage” and “depletion of natural resources.” For ease of reference the phrase “environmental damage” will be used to encompass both terms unless otherwise stated. 2. Report and recommendations made by the Panel of Commissioners concerning the first instalment of “F4” claims, U.N. Doc. S/AC.26/2001/16 ( June 22, 2001) (hereinafter, First “F4” Report), para. 5. 3. S.C. Res. 687, 46 U.N. SCOR, at 200, U.N. Doc. S/RES/687 (Apr. 8, 1991), reprinted in 30 I.L.M. 846 (1991). 4. Governing Council Decision 10, S/AC.26/1992/10 ( June 26, 1992) (hereinafter, Provisional Rules).
Questions such as the type of claims for which compensation could be sought, the impact of preexisting environmental degradation on the eligibility for compensation, the appropriateness of remediation measures to be undertaken, the methodology for valuing environmental and natural resource losses, the due process rights to be accorded Iraq and governmental claimants, and a host of other issues were left to the Panel to resolve. This chapter will outline the legal principles the F4 Panel applied in reviewing and resolving claims for environmental damage. Section I will describe the underlying legal framework that shaped the contours of the Panel’s decisions. Section II will discuss the major substantive legal issues that the Panel was called upon to address during the course of its deliberations. Section III will address the relevance of the Panel’s jurisprudence to future proceedings involving claims for environmental damage.
I. THE LEGAL FRAMEWORK
Article 31 of the Provisional Rules for Claims Procedure established the legal framework for the Panel’s review and resolution of the F4 claims. Article 31 states as follows: In considering claims, Commissioners will apply Security Council Resolution 687 (1991) and other relevant Security Council resolutions, the criteria established by the Governing Council for particular categories of claims, and any pertinent decisions of the Governing Council. In addition, where necessary, Commissioners shall apply other relevant rules of international law.5
Security Council Resolution 687 (1991). In paragraph 16 of Security Council Resolution 687 (1991), the Security Council reaffirmed that “Iraq . . . is liable under international law for any direct loss, damage, including environmental damage and depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.”6 Resolution 687 (1991) laid down three important precepts that served as guideposts for the Panel’s decisions: first, Iraq was liable for environmental damage and natural resource depletion; second, only “direct” losses were eligible for compensation; and third, the losses for which compensation was sought had to “result” from Iraq’s invasion and occupation of Kuwait. Before the F4 Panel was convened, a considerable amount of commentary focused on the question whether international law imposed liability on Iraq for environmental and natural resource damage resulting from its invasion and occupation
5. Provisional Rules, art. 31. 6. S.C. Res. 687 (1991).
[ 142 ]
Jurisprudence and Policy Issues
of Kuwait.7 Some commentators argued that except in narrowly defined circumstances, which did not apply to Iraq’s conflict with Kuwait, international law did not impose liability for environmental losses occurring during armed conflict.8 Other commentators argued that existing international law provides protection for environmental resources and therefore gives rise to liability when those resources are injured or destroyed during armed conflict.9 The UN Compensation Commission (UNCC) in general and the F4 Panel in particular had no need to wade into this dispute because the issue of Iraq’s liability for environmental damage had been conclusively resolved by the Security Council’s declaration of Iraq’s liability in paragraph 16 of Resolution 687 (1991) and by Iraq’s acceptance of the provisions of the resolution.10 The Panel therefore viewed the issue of Iraq’s liability as outside the scope of its mandate, and the Panel focused its attention on evaluating the claims for compensation filed by governments, resolving disputes over the compensability of those claims, and determining the amount of compensation to be paid.11 Criteria Established by the Governing Council. Another important guidepost for the Panel’s evaluation of claims was Governing Council Decision 7.12 In paragraph 35 of that decision the Governing Council stated that “direct environmental damage and depletion of natural resources” includes losses or expenses resulting from: (a) abatement and prevention of environmental damage, including expenses directly relating to fighting oil fires and stemming the flow of oil in coastal and
7. See Philippe Sands, Ruth Mackenzie, & Ruth Khalastchi, Background Paper for the UNEP Working Group of Experts on Liability and Compensation for Environmental Damage Arising From Military Activities, in Liability and Compensation for Environmental Damage, Compilation of Documents 2, 41–42 (Alexandre Timoshenko ed., Nairobi: United Nations Environmental Programme 1998). 8. Luan Low & David Hodgkinson, Compensation for Wartime Environmental Damage: Challenges to International Law after the Gulf War, 35 Va. J. Int’l L. 405 (1995); Glen Plant, Marine Pollution during the Gulf War, 7 Int’l J. of Estuarine and Coastal Law 217 (1992). 9. Anthony Leibler, Deliberate Wartime Environmental Damage: New Challenges for International Law, 23 Cal. W. Int’l L. J. 67 (1992). 10. Identical Letters dated April 6, 1991 from the Permanent Representative of Iraq to the United Nations addressed respectively to the Secretary-General and the President of the Security Council, UN Doc. S/22456 (1991). 11. In this regard the Security Council’s threshold determination of Iraq’s liability has been analogized to the “summary judgment” process in a judicial proceeding in which the court makes a pretrial ruling on the issue of liability and trial proceeds on the existence and quantum of damages. See Stanley J. Glod, International Claims Arising From Iraq’s Invasion of Kuwait, 25 Int’l Law. 713, 715 (1991). This is not to suggest that the Panel’s role was limited to simply toting up the amount of damages claimed and presenting Iraq with the bill. As discussed in the text, even though the Panel did not have to resolve the threshold question of Iraq’s liability, it still had to grapple with numerous complex factual, legal, scientific and technical issues in determining claims for compensation. 12. Governing Council Decision 7, S/AC.25/1991/7/Rev.1 (Nov. 28, 1991, as revised Mar. 17, 1992).
P O I N TS O F L AW
[ 143 ]
international waters; (b) reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; (c) reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment; (d) reasonable monitoring of public health and performing medical screenings for the purpose of investigating and combating increased health risks as a result of the environmental damage; and (e) depletion of or damage to natural resources. The Panel did not regard the foregoing enumeration of compensable claim categories as exclusive. Rather, the Panel reasoned that because the Governing Council used the term “including” to introduce the types of claim for which compensation could be awarded, the enumerated list was merely illustrative, not exhaustive, and did not preclude the Panel from awarding compensation for other types of direct environmental losses, provided they had resulted from Iraq’s invasion and occupation of Kuwait.13 Pertinent Decisions of the Governing Council. Because of the unique character of the F4 claims, there were relatively few decisions of the Governing Council that had any direct bearing on the claims considered by the F4 Panel. There were, however, several decisions of the Governing Council dealing with procedural or evidentiary matters that informed the Panel’s work. For example, the Governing Council’s directive that claimants were responsible for coming forward with the evidence to support their claims and that no loss could be compensated solely on the basis of an explanatory statement had a profound impact on the ability of claimants to receive compensation for claimed environmental losses.14 The impact of that directive is illustrated by the Panel’s treatment of two claims from Iran and Kuwait. In one of its claims, Iran sought compensation in the amount of almost US$9.5 million for expenses incurred by the Iranian Fishery Company to replace fishing nets owned by Iranian fisherman whose nets had been damaged by oil spills resulting from Iraq’s invasion and occupation of Kuwait.15 Because Iran did not submit evidence to corroborate its estimate of the number and types of nets damaged and their condition at the time they were damaged, the Panel concluded that Iran had failed to provide sufficient evidence to demonstrate the circumstances and amount of its claimed loss.16 The Panel similarly concluded that although Kuwait had demonstrated that studies it had undertaken to assess the extent of oil contamination of two aquifers constituted reasonable monitoring and assessment
13. Report and recommendations made by the Panel of Commissioners concerning the second instalment of “F4” claims, UN Doc. S/AC.26/2002/26 (Oct. 3, 2002) (hereinafter, Second “F4” Report), paras. 22–23. 14. Decision 7, S/AC.25/1991/7/Rev.1 (1991, rev. 1992), para. 37; Governing Council Decision 46, S/AC.26/ 46 (Feb. 3, 1998). 15. Second “F4” Report, paras. 73–74. 16. Id., paras. 76–78.
[ 144 ]
Jurisprudence and Policy Issues
of environmental damage resulting from the war, the Panel nevertheless denied compensation because Kuwait submitted only a written summary of the costs incurred for the studies without providing any supporting invoices or receipts.17 The F4 Panel also took into account the Governing Council’s decision regarding the ineligibility for compensation of the costs of military operations against Iraq by the Allied Coalition Forces.18 For instance, the Panel noted as a general proposition that Governing Council Decision 19 precluded compensation for the costs of military operations undertaken by the Allied Coalition forces, but that expenses resulting from activities undertaken by military personnel to respond to environmental damage or the threat of damage to the environment in the interest of the general population were compensable.19 The Panel relied on this distinction in reviewing a claim for compensation by the United States for expenses incurred by the Agency for Toxic Substances and Disease Registry to travel to the Persian Gulf to assess the public health impacts of the oil fires resulting from Iraq’s detonation of oil wells in Kuwait. Although the Panel allowed compensation for the portion of the travel costs attributable to the expenses incurred to assess health risks to the general public, it denied compensation for the portion of the expenses attributable to efforts to assess health risks to military personnel.20 The Panel also denied the United States’ claim for compensation for the expenses incurred by the U.S, Army to monitor and assess health risks to U.S. military personnel who may have been exposed to hazardous substances as a result of the war on the basis that the expenses were for costs incurred for military operations and thus barred by Governing Council Decision 19.21 The Governing Council’s decisions approving the reports of other panels were also taken into account by the F4 Panel in order to ensure factual and legal consistency between claims considered by other panels.22 International Law. Article 31 of the Provisional Rules directed that “where necessary” Commissioners were to apply “relevant rules of international law” in resolving claims for compensation. In general, the F4 Panel did not find it necessary
17. First “F4” Report, paras. 378–84. 18. Governing Council Decision 19, UN Doc. S/AC.26/19 (Mar. 24, 1994). 19. Second “F4” Report, para. 29. 20. Second “F4” Report, paras. 286–91. 21. Second “F4” Report, paras. 332–35. See also Report and recommendations made by the Panel of Commissioners concerning part one of the fourth instalment of “F4” claims, UN Doc. S/AC.26/2004/16 (2004) (hereinafter, Fourth “F4” Report, part 1), paras. 267–71 and Report and recommendations made by the Panel of Commissioners concerning the fifth instalment of “F4” claims, U.N. Doc. S/AC.26/2005/10 ( June 30, 2005) (hereinafter, Fifth “F4” Report), paras. 594–600, in which the Panel rejected Iraq’s argument that the costs of restoring terrestrial resources in Saudi Arabia damaged by military operations were barred by Governing Council Decision 19. 22. See, e.g., First “F4” Report, para. 30, in which the F4 Panel referred to the decisions of other Panels on the compensability of salaries and expenses of civilian personnel used to respond to the threat of environmental releases resulting from the war.
P O I N TS O F L AW
[ 145 ]
to resort to international law to resolve the environmental claims for several reasons. First, the wording of Security Council Resolution 687 (1991) and Governing Council Decision 7 were very broad as regards the type of losses for which compensation could be awarded. As discussed above, the Panel interpreted the statement in Resolution 687 (1991) and Governing Council Decision 7 that Iraq was liable for any direct loss or damage resulting from its invasion and occupation of Kuwait to embrace within its sweep virtually any claim that met the criteria of directness and causality. The broad wording of these provisions left little room for debate over the eligibility for compensation of particular claims. Second, generally speaking, the claims filed by claimants in connection with the F4 proceedings fell well within the heads of claims outlined in paragraph 35 of Governing Council Decision 7. The vast majority of the claims sought compensation (1) to conduct monitoring and assessment studies; (2) for the cost of measures already taken to clean up and restore areas that had been contaminated as a result of the war; (3) the cost of measures proposed to be undertaken in the future to clean up and restore contaminated areas; (4) the loss of or depletion of natural resources. There were virtually no claims that pushed the boundaries of the categories outlined in paragraph 35 of Decision 7. Third, the core issues that required resolution by the F4 Panel revolved around facts presented by each claim and the reasonableness of remediation measures already undertaken or proposed to be undertaken in the future; that is, had the claimants submitted sufficient evidence to demonstrate that the losses for which they sought compensation resulted from Iraq’s invasion and occupation of Kuwait? Were the remediation measures proposed by claimants reasonable? Were the monitoring and assessment studies the claimants proposed to undertake well designed and likely to yield useful results? International law did not supply answers to these factual inquiries. This is not to suggest that the Panel ignored international law during the course of its work. On the contrary, the Panel looked to international law for principles that the Panel invoked in the course of resolving claims. For example, in response to Iraq’s assertion that the natural resource damage assessment methodologies proposed to be used by claimants were unsupported under international law, the Panel relied on the Trail Smelter Arbitration 23 and the Chorzów Factory case 24 as support for its conclusions that international law did not specify any particular damage assessment methodology and that compensation should not be denied simply because valuation of the loss might prove difficult.25 Similarly, the Panel
23. Trail Smelter Arbitration (United States v. Canada), 3 Report of Int’l Arbitral Awards 1911, 1920 (1941). 24. Case Concerning the Factory at Chorzów (Germany v. Poland), Permanent Court of Int’l Justice Series A (No. 17) 47 (1928). 25. Fifth “F4” Report, paras. 74–80.
[ 146 ]
Jurisprudence and Policy Issues
alluded to the 1972 Stockholm Declaration26 and the 1992 Rio Declaration27 in stressing that claimants must consider the transboundary impacts of remediation measures they proposed to undertake.28 The Panel specifically invoked this principle in rejecting Iran’s proposal to use genetically modified bacteria to combat residual oil pollution in the Persian Gulf.29 In short, although the Panel did not use international law to supply the rule of decision to resolve claims for compensation, it did rely on international law to support principles the Panel derived from the text of Security Council Resolution 687 (1991) and Governing Council Decision 7. By taking this approach, the Panel was able to fulfill the Governing Council’s mandate that the Panel accord primacy to Resolution 687 (1991) and Governing Council Decision 7 and rely upon international law as a supplementary resource. II. SIGNIFICANT LEGAL ISSUES ADDRESSED BY THE PANEL A. The Role of Due Process in the Environmental Claims
One of the first issues the F4 Panel was forced to confront was that of due process. The claims for environmental damage and depletion of natural resources ran the gamut from costs incurred to clean up massive oil spills, to recovery of damages for injuries to cultural resources, monitoring of public health, and conducting medical screenings. Iraq had not yet seen the F4 claim files and any supporting information. As a consequence, Iraq had only a sketchy sense of the nature and scope of the claims that had been asserted against it. Although Security Council Resolution 687 (1991) was explicit on the question of Iraq’s liability for losses resulting from its invasion and occupation of Kuwait and created a fund to pay compensation for such losses, the resolution was silent on the issue of Iraq’s entitlement to due process during the claims process. In paragraph 19 of the resolution, the Security Council directed the Secretary-General to make recommendations to the Security Council for administering a compensation fund; establishing the process by which funds would be allocated and claims paid; and outlining appropriate procedures for evaluating losses, listing claims and verifying their validity, and resolving disputed claims.30 However, the resolution offered no guidance on the nature and extent of Iraq’s role in the compensation process.
26. Declaration of the United Nations Conference on the Human Environment, June 16, 1972, UN Doc. A/Conf. 48/14 and Corr. 1. 27. The Rio Declaration on Environment and Development, June 13, 1992, principle 2, UN Doc. A/Conf. 1551/5/Rev. 1 (1992). 28. Report and recommendations made by the Panel of Commissioners concerning the third instalment of “F4” claims, UN Doc. S/AC.26/2003/31 (2003) (hereinafter, Third “F4” Report), para. 50, and Introduction to Technical annexes, para. 4(g). 29. First “F4” Report, paras. 169–73. 30. S.C. Res. 687 (1991), para. 19.
P O I N TS O F L AW
[ 147 ]
The Secretary-General addressed the question of due process in his report to the Security Council, but his report still lacked critical details on the scope of Iraq’s due process rights. In his report outlining the basic structure of the UNCC and the procedure for filing, processing and paying claims for compensation, the Secretary-General stated: The Commission is not a court or arbitral tribunal before which the parties appear; it is a political organ that performs an essentially fact-finding function of examining claims, verifying their validity, evaluating losses, assessing payments and resolving disputed claims. It is only in this last respect that a quasi-judicial function may be involved. Given the nature of the Commission, it is all the more important that some element of due process be built into the procedure. It will be the function of the Commissioners to provide this element.31
The lack of specificity with regard to the full contours of the “element of due process” that the Commissioners were called upon to provide sparked considerable criticism from commentators concerned about the apparent lack of fairness to Iraq in the compensation process32 and unfavorable comparisons to earlier war reparations regimes such as that established under the Treaty of Versailles.33 Other commentators argued that given the “political” nature of the UNCC and its essentially fact-finding and claims adjustment functions, the UNCC should not sacrifice the efficiency of the claims resolution process “on the misguided altar of due process.”34 Under this view, Iraq had little, if anything, to offer to the claims review process, particularly as concerned the environmental claims; the environmental damage caused by Iraq’s invasion of Kuwait was clear and unmistakable and therefore all that remained was to calculate the amount that Iraq should be required to pay in compensation. Accordingly, Iraq was not entitled to anything more than
31. Report of the Secretary-General Pursuant to Paragraph 19 of Security Council Resolution 687 (1991), U.N. Doc. S/22559 (May 2, 1991) (hereinafter, Secretary-General Report). 32. Frederick L. Kirgis, Jr., Claims Settlement and the United Nations Legal Structure, in The United Nations Compensation Commission, Thirteenth Sokol Colloquium 103 (Richard B. Lillich ed., Irvington, NY: Transnational Publishers 1995); David Bederman, The United Nations Compensation Commission and the Tradition of International Claims Settlement, 27 NYU J. Int’.l L. & Pol. 1 (1994); David J. Bederman, Historic Analogues of the UN Compensation Commission, in The United Nations Compensation Commission, Thirteenth Sokol Colloquium 257–309 (Richard B. Lillich, ed., Irvington, NY: Transnational Publishers 1995). 33. Cesare P. R. Romano, Woe to the Vanquished? A Comparison of the Reparations Process after World War I (1914–18) and the Gulf War (1990–91), 2 Austrian Rev. Int’l & Eur. L. 361–90 (1997); Elyse J. Garmise, The Iraq Claims Process and the Ghost of Versailles, 67 NYU L. Rev. 840 (1992). 34. Jeremy P. Carver, Dispute Resolution or Administrative Tribunal: A Question of Due Process, in The United Nations Compensation Commission, Thirteenth Sokol Colloquium 69, 75 (Richard B. Lillich, ed., Irvington, NY: Transnational Publishers 1995).
[ 148 ]
Jurisprudence and Policy Issues
the structural due process that was already embodied in the Provisional Rules for Claims Procedure; that is (1) the appointment of impartial Commissioners to review the claims against Iraq; (2) separation of the fact-finding functions of the Commissioners from the political decision-making functions of the Governing Council; and (3) objective assessment of the evidence by the Commissioners, supplemented, as deemed necessary by the Panel, by written submissions from Iraq and other interested persons.35 The Provisional Rules for Claims Procedure adopted by the Governing Council in 1992 contained several important provisions that spelled out in greater detail the role to be accorded to Iraq in the claims review process.36 More particularly, Article 16 of the Provisional Rules required the Executive Secretary to provide Iraq with a copy of his report to the Governing Council (Article 16 Reports) concerning the claims for compensation received from claimants.37 This article also gave Iraq, as well as governments and international organizations that had submitted claims, the right to “present their additional information and views concerning the report to the Executive Secretary for transmission to panels of Commissioners . . . .”38 Article 32 required the Executive Secretary to submit such additional information and views to the panel of Commissioners.39 Article 35 authorized the panel of Commissioners to request further written submissions in unusually large or complex cases and to invite governments to present their views in oral proceedings.40 Article 38 also provided that in unusually large or complex claims Commissioners, in their discretion, could allow attorneys to represent the claimant at oral proceedings.41 On its face Article 38 appeared to allow only the claimant to be represented by counsel at oral proceedings, but did not explicitly accord Iraq the same right. This distinction could properly be viewed as nothing more than a drafting anomaly rather than a deliberate decision by the Governing Council to deny Iraq the ability to be represented by legal counsel at oral proceedings.42 Consequently, the F4 Panel allowed Iraq to participate through legal
35. John P. Gaffney, Due Process in the United Nations Compensation Commission, 15 Mealey’s Int’l Arb. Rep. 13 (2000). 36. Andrea Gattini, The UN Compensation Commission: Old Rules, New Procedures on War Reparations, 13 Eur. J. Int’l L. 161, 168–71 (2002); John R. Crook, The UNCC and Its Critics: Is Iraq Entitled to Due Process? at 77–101 and David D. Caron, The UNCC and the Search for Practical Justice, at 367–78, in The United Nations Compensation Commission, Thirteenth Sokol Colloquium (Richard B. Lillich, ed., Irvington, NY: Transnational Publishers 1995). 37. Provisional Rules, art. 16(2). 38. Provisional Rules, art. 16(3). 39. Provisional Rules, art. 32(1). 40. Provisional Rules, art. 36(a). 41. Provisional Rules, art. 38(d). 42. Michael F. Raboin, The Provisional Rules for Claims Procedure of the United Nations Compensation Commission: A Practical Approach to Mass Claims Processing, in The United Nations Compensation Commission, Thirteenth Sokol Colloquium 119, 142–43
P O I N TS O F L AW
[ 149 ]
counsel and experts at oral proceedings on the same basis as governmental claimants.43 Although these provisions provided significant procedural protections for Iraq and the claimants, in the F4 Panel’s view, the environmental claims presented special considerations that warranted even greater procedural protections. There were three major factors that led the Panel to this view. First, the compensation system created in the wake of the Gulf War marked the first time that the international community required the payment of compensation for environmental losses resulting from armed conflict. The precedential impact of this important first step by the international community would have been severely undermined if the process were ultimately judged to be unfair to Iraq or governmental claimants. The Panel believed it was important to the integrity of its decision-making and future claims proceedings that the Panel conduct its work in an open and transparent manner. Second, the sheer magnitude of the environmental claims asserted against Iraq demanded rigorous scrutiny. The amounts sought for environmental remediation and restoration were unprecedented, and the potential for overstatement or exaggeration was high, particularly in the wake of military conflict where emotions and the desire for retribution were high. Unlike other claims for monetary losses which could be verified by an examination of invoices, receipts, and other financial records, verification of environmental losses critically depended on the conduct of field studies, evaluation of analytical data, and assessments of remediation technologies, among other things. These were not issues that could be resolved simply from an examination of documentary information. Furthermore, given that Iraq would be called upon to pay any compensation awarded by the Panel, it seemed appropriate as a matter of fundamental fairness to afford Iraq a full opportunity to review and voice its objections and criticisms to the claims. Third, the environmental claims were extremely complex, cutting across multiple scientific and technical disciplines, and raising novel issues of assessment and remediation of environmental contamination and valuation of environmental resources. In the F4 Panel’s view, it was important to obtain the full spectrum of views on these issues in order to ensure that its decisions were fully informed.44 A one-sided presentation of scientific and technical information would have deprived the Panel of potentially valuable insights on the risks and benefits of proposed remediation measures. With the foregoing considerations in mind, and embracing the SecretaryGeneral’s admonition that it fell to the Commissioners to provide “an element of due process,” the Panel implemented four steps to enhance the fairness of the
(Richard B. Lillich, ed., Irvington, NY: Transnational Publishers 1995); Gattini, supra note 36, at 169 and n.34. 43. First “F4” Report, paras. 24–27. 44. First “F4” Report, paras. 41–46.
[ 150 ]
Jurisprudence and Policy Issues
proceedings. First, the Panel requested the Secretariat to send Iraq a copy of the claim forms, statement of claims, and associated exhibits for the claims considered by the Panel in each of the five instalments.45 Iraq’s representative had bitterly complained that in prior proceedings Iraq had been denied the opportunity to see the evidence used in support of the claims asserted against it, and the Panel wanted to ensure that the environmental claims were not subject to the same criticism.46 Second, the Panel determined that the claims presented in each instalment were “unusually large or complex” within the meaning of Article 38 of the Provisional Rules. Therefore, in accordance with the Governing Council’s encouragement that oral proceedings be held for the large environmental claims,47 the Panel notified the government of Iraq and claimant governments that the Panel would hold oral proceedings for each instalment.48 Iraq was given the opportunity to fully participate in the oral proceedings. Among other things, Iraq made oral and written submissions to the Panel at the oral proceedings and was given the opportunity to respond to the oral and written submissions of the claimant governments. Iraq and the claimants also were afforded the opportunity to submit post-hearing written submissions for the Panel’s consideration. Third, given the size and complexity of the environmental claims, the Panel determined that it was necessary to enlist the assistance of independent experts, retained by the UNCC and answerable to the Panel, to review and evaluate the claims submitted and Iraq’s responses to those claims.49 The experts provided their views to the Panel on, inter alia, the appropriateness of environmental remediation measures proposed to be undertaken by claimants, suggested modifications to activities proposed by the claimants, the reasonableness of the costs claimed, and adjustments to cost estimates presented.50 This helped ensure that each claim was fully considered on its merits and that a meritorious claim was not inadvertently denied because of inadequate technical support or a questionable claim approved because of Iraq’s failure to challenge its technical merit. Fourth, the Panel recognized that Iraq’s ability to present its view on the claims submitted would be severely hampered if Iraq did not have assistance from its own legal and technical experts. Therefore, the Panel fully supported the Governing Council’s decision to allocate funds to enable Iraq to retain legal and technical experts of its own choosing to assist Iraq in preparing responses to Article 16
45. First “F4” Report, paras. 21–23; Second “F4” Report, paras. 10–11; Third “F4” Report, paras. 9–10; Fourth “F4” Report, part 1, paras. 12–13; Fifth “F4” Report, paras. 9–11. 46. Michael E. Schneider, How Fair and Efficient Is the United Nations Compensation Commission System?, 15 J. of Int’l Arb. 15 (1998). 47. Governing Council Decision 114, S/AC 26/2000/114 (Dec. 7, 2000). 48. First “F4” Report, paras. 24–26; Second “F4” Report, paras. 10–14; Third “F4” Report, paras. 15–17; Fourth “F4” Report, paras. 19–21; Fifth “F4” Report, paras. 16–20. 49. First “F4” Report, paras. 41–43. 50. First “F4” Report, para. 43. The role of the experts in assessing the submissions by the claimants and Iraq is discussed at length in Chapter 3 in this volume.
P O I N TS O F L AW
[ 151 ]
reports, preparing written submissions, and participating in oral proceedings with respect to the F4 environmental claims.51 In the wake of the F4 Panel’s decisions on the environmental claims, it is now possible to reflect on the adequacy of the structural and procedural protections the Panel employed in conducting its work. From a structural standpoint, concerns that the Commissioners would not be permitted to function independently or that the Governing Council would exert undue influence on their decision-making seem almost quaint. The F4 Panel was allowed to address each and every claim on its merits, free from any extraneous considerations or influences. In every instance the Panel based its decisions exclusively on the evidence and information presented by the claimants, Iraq, and the Panel’s experts. The concern that the Panel’s decisions would be subject to revision or modification by the Governing Council also proved unwarranted. Every single one of the F4 Panel’s decisions was adopted, without modification, by the Governing Council. It goes without saying that many of the claimants were bitterly disappointed by the Panel’s disposition of some of their claims and that Iraq was unhappy with the Panel’s award of over US$5.2 billion in compensation to claimants. It is a testament to the integrity and transparency of the F4 claims review process that extraneous considerations were not permitted to trump the Panel’s assessment of the claims. With regard to procedural fairness, the worry that “too much due process” would hamper the Panel’s ability to complete its work in a timely fashion also proved unfounded. Because of the flexibility afforded by the Provisional Rules of Claims Procedure, the Panel was able to tailor its procedures to ensure fairness to all parties concerned while meeting the demands of its workload. Iraq and the government claimants were given the opportunity to present their views to the Panel and the Panel benefited from a full airing of all points of view. From beginning to end, the Panel was able to resolve almost US$85 billion in environmental claims in five and one-half years. In short, ensuring due process for the participants did not impede the Panel’s work and, in the end, resulted in better decisions.
B. Definition of Environmental Damage and Depletion of Natural Resources
Security Council Resolution 687 (1991) and Governing Council Decision 7 provide for compensation for “environmental damage” and “depletion of natural resources.” However, neither document defined these terms. Before the F4 Panel began its work, a considerable amount of attention was focused on the meaning of these terms as used in Resolution 687 (1991) and Governing Council
51. Governing Council Decision 124, S/AC 26/2001/124 ( June 19, 2001).
[ 152 ]
Jurisprudence and Policy Issues
Decision 7.52 The UN Environment Programme (UNEP) Working Group of Experts proposed a distinction between “environmental damage” and “depletion of natural resources.”53 With regard to “environmental damage,” the Working Group suggested that this term “encompasses damage to components of the environment whose primary value is non-commercial.”54 On the other hand, the term “depletion of natural resources” was deemed to refer to components of the environment that “primarily have a commercial value.” The Working Group acknowledged, however, that there was a degree of “overlap and complementarity” between the two concepts.55 The Working Group also concluded that there was no commonly agreed definition in international law of concepts of “environment” or “damage” and suggested that the Commission could look to State practice, international agreements, and the practice of international organizations for guidance on the definition of these concepts.56 With regard to “depletion of natural resources,” the Working Group offered examples such as loss of oil or gas, including the diminution of the value of oil as a result of its contamination by mixing it with water; loss of oil and gas due to well blow-outs, oil spillages, and leakage; loss of commercial value of other natural resources such as fish stocks, trees, and groundwater aquifers; and loss of reservoir pressure resulting in the loss of recoverable oil.57 The F4 Panel found it unnecessary to delineate precise definitions of “environmental damage” or “depletion of natural resources.” In the Panel’s view, Governing Council Decision 7, paragraph 35, set forth a nonexclusive list of the categories of losses that could be considered to constitute compensable “environmental damage” or “depletion of natural resources.”58 The Panel further noted that other types of losses and expenses may be compensable even if they are not listed in paragraph 35 of Decision 7, provided such losses or expenses were a direct result of Iraq’s invasion and occupation of Kuwait.59 For example, the expenses of measures undertaken to prevent or abate the harmful impacts of airborne contaminants
52. See Philippe Sands et al., supra note 7, at 25, 41–50; Thomas A. Mensah, Scope of Definition of Environmental Damage, in Liability and Compensation for Environmental Damage, Compilation of Documents 61–62 (Alexandre Timoshenko, ed., Nairobi: United Nations Environmental Programme 1998); Rodman R. Bundy, The Definition and Valuation of Depletion of Natural Resources, id., at 65–69; Julio Barboza, Environmental Damage, id., at 97–99. 53. Conclusions by the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, id., at 119, 122–24 (hereinafter, Conclusions by the Working Group). 54. Id., para. 29. 55. Id. 56. Id., para. 30. 57. Id., para. 41. 58. See, e.g., Second “F4” Report paras. 19–23. 59. Id., para. 23.
P O I N TS O F L AW
[ 153 ]
on property or human health could qualify as environmental damage even though such damage was not specifically listed in paragraph 35 of Decision 7. The Panel also looked to the wording of Security Council Resolution 687 (1991). The Panel noted that in paragraph 16 of the resolution, the Security Council stated that Iraq is liable for “any direct loss or damage, including environmental damage and the depletion of natural resources, as a result of Iraq’s unlawful invasion and occupation of Kuwait.”60 The proper inquiry, then, was not into whether a particular claim fell neatly within the categories delineated in paragraph 35 of Decision 7, but whether the loss or damage for which compensation was sought was a direct result of Iraq’s invasion and occupation of Kuwait.61 The Panel did not attempt to draw a rigid distinction between “environmental damage” and “depletion of natural resources.” Having concluded that the Security Council Resolution 687 (1991) imposed liability for “any” direct loss or damage as a result of Iraq’s invasion and occupation of Kuwait, and that paragraph 35 of Governing Council Decision 7 provided only a nonexclusive list of categories of loss for which compensation could be awarded, the Panel saw no need to attempt to categorize a particular claim as one for “environmental damage” versus one for “depletion of natural resources.”62 As long as the loss or damage resulted from Iraq’s invasion and occupation of Kuwait, the Panel accepted it as a compensable claim and proceeded to examine the claim on its merits.63 Moreover, any attempt to draw a rigid distinction between the two concepts would have been fraught with great difficulty. First, the line between what constitutes environmental damage and depletion of natural resources is indistinct at best. While it may be possible at the extremes to differentiate between the two concepts, as the UNEP Working Group acknowledged, there is a “degree of overlap and complementarity between the two concepts.”64 For instance, Jordan’s claims for depletion of groundwater resources, depletion of terrestrial resources, and depletion of agricultural resources65 from overuse due to the influx of refugees arguably fell into the category of depletion of natural resources. However, Kuwait’s claims for loss of commercial aquatic resources such as fin fish and shrimp, and loss of use of groundwater resources presented a closer call. The problem was exacerbated by the tendency of claimants to use the terms environmental damage and depletion of natural resources interchangeably. The lack of precision and potential overemphasis on the correct characterization of the claim could have resulted in the denial of a claim solely because the claimant had failed to label it properly.
60. 61. 62. 63. 64. 65.
[ 154 ]
S.C. Res. 687 (1991), para. 16. Second “F4” Report, paras. 22–25; Fifth “F4” Report, paras. 54–57. Fifth “F4” Report, para. 55. Id. Conclusions by the Working Group supra note 53, at paras. 29 and 42. Fifth “F4” Report, paras. 315–17.
Jurisprudence and Policy Issues
Second, classifying a claim according to whether the injured resource had commercial value and therefore should be considered a claim for depletion of natural resources could have affected the quantum of compensation to be awarded. By placing the focus on commercial value, it could be argued that, if an injured resource had no market value or that value could not be ascertained, then all compensation should be denied.66 Alternatively, if the market value of the injured resource was less than the cost of restoring the resource then arguably the claimant could only recover the market value of the resource and restoration costs should be denied. However, if the same claim were characterized as one for environmental damage, then the costs of remediation could be recovered regardless of the market value of the affected resource. In the Panel’s view the amount of compensation due a claimant should not turn on how it was characterized.
C. A Threshold for Compensability?
Another definitional question that confronted the Panel was whether the environmental loss or damage for which compensation was sought had to exceed some threshold. Iraq contended that the reference in Security Council Resolution 687 (1991) to Iraq’s liability “under international law,” meant that in order for any claimed environmental loss or damage that resulted from its occupation and invasion of Kuwait to be compensable, the loss or damage had to exceed some “threshold” that is generally accepted in international law for compensation in cases of
66. Iraq advanced this argument in the fifth instalment dealing with claims for compensation for damage to or depletion of natural resources. In opposing some of those claims, Iraq argued that compensation for interim loss of natural resources without commercial value was not permissible under general international law and therefore all such claims should be denied. Fifth “F4” Report, paras. 44–47. The Panel rejected this argument, concluding that Security Council Resolution 687 (1991) authorized compensation for injury to natural resources, without regard to whether such resources have commercial value. Id., paras. 52–55. The Panel’s conclusion is consistent with the commentary on articles 31 and 36 of the Draft Articles on State Responsibility for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 (2001) (hereinafter, Report of the International Law Commission). The commentary on Article 31 emphasizes that Article 31 places the obligation on the responsible state to make “full reparation” for losses occasioned by its unlawful actions in the Factory at Chorzów sense. In other words, the responsible state must endeavor to “wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.” Article 31, commentary (3). The commentary on Article 26 states that where restitution is insufficient to return the injured state to the status quo ante, the responsible state is obligated to pay monetary compensation and that such compensation “shall cover any financially assessable damage,” in order to make the injured state whole. Article 36 and commentary (1)–(6). Assessing monetary damage based on the characterization of the nature of the loss could deprive the injured state of the full compensation to which it is entitled.
P O I N TS O F L AW
[ 155 ]
state responsibility for transboundary environmental damage.67 In Iraq’s view the loss or damage had to be “significant” and no compensation should be awarded for loss or damage below this threshold.68 The notion of a threshold for compensability stems from various international conventions such as Additional Protocol I to the 1949 Geneva Conventions69 and the UN Environmental Modification Convention,70 which prohibit actions which are intended to cause “widespread, long-term and severe damage” to the natural environment,71 or prohibit the use of environmental modification techniques having “widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.”72 The Panel did not accept Iraq’s argument that environmental loss or damage resulting from Iraq’s invasion had to cross some threshold before the loss or damage could be compensable. In the Panel’s view, Security Council Resolution 687 (1991) did not impose a threshold of damage standard on the compensability of environmental claims.73 Rather, the Panel reasoned that paragraph 35 of Governing Council Decision 7 authorized compensation for losses or expenses incurred or to be incurred to clean and restore the environment. Therefore, compensability turned on (a) whether the environmental loss or damage for which compensation was sought resulted directly from Iraq’s invasion and occupation of Kuwait; (b) whether the measures taken by the claimant to remediate environmental damage were reasonable; and (c) whether measures proposed to be undertaken by a claimant could qualify as a future measure which can be documented as reasonably necessary to clean and restore the environment.74 The Panel therefore focused its attention on the reasonableness of remediation undertaken or to be undertaken with reference to the location of the affected area, the severity of the contamination, and the sensitivity of the affected area. Furthermore, the nature of the claims that ultimately came before the Panel for review largely rendered hypothetical Iraq’s argument over the need for a threshold of significance. By any measure, the claims for compensation involved massive environmental losses resulting from the military conflict. The oil spills contaminated terrestrial and marine resources in Kuwait and Saudi Arabia. The fallout from the oil well fires in Kuwait affected large areas within the Gulf region. Furthermore, more than ten years after the conflict, the areas that had been
67. Third “F4” Report, para. 33. 68. Id. 69. Articles 35(3) and 55(1) of Additional Protocol I to the 1949 Geneva Conventions (1977), 1125 UNTS 3. 70. Article 1, UN Convention of the Prohibition of Military or Any Other Use of Environmental Modification Techniques, 1108 UNTS 151. 71. Supra, note 69, Additional Protocol I, art. 35(3). 72. Supra, note 70, Environmental Modification Convention, art. 1. 73. Third “F4” Report, para. 35. 74. Third “F4” Report, para. 35.
[ 156 ]
Jurisprudence and Policy Issues
contaminated by oil spills and other activities were still clearly visible. In short, the residual adverse environmental impacts from the war were not trivial or short-lived, and therefore the notion of a damage threshold was not a factor in the Panel’s award of compensation.
D. The Challenge of Monitoring and Assessment Claims
In the first instalment, the F4 Panel addressed claims for environmental monitoring and assessment. Subparagraph 35(c) of Governing Council Decision 7 provides that compensation is available for reasonable monitoring and assessment of environmental damage for the purposes of evaluating and abating the harm and restoring the environment. Ordinarily the costs of monitoring and assessing the impacts of an environmental incident are recoverable as part of the monetary award to the party seeking compensation. However, in the first instalment, the Panel was called upon to make awards for monitoring and assessments costs to claimants in advance of a determination that a claimant had suffered any environmental loss resulting from Iraq’s invasion and occupation of Kuwait. This unusual circumstance came about as the result of a request by Saudi Arabia, on behalf of itself, Iran, Jordan, Kuwait, and Syria, to the Governing Council to agree to a procedure under which awards for monitoring and assessment claims would be made in advance of the review of related substance claims.75 The petitioning governments argued that they needed to conduct monitoring and assessment studies in order to support their underlying environmental claims and that they required priority funding to carry out the necessary studies. In September 1998, the Governing Council acceded to this request and directed the Executive Secretary to inform the affected governments that they were to identify and file separately those portions of their claims already filed with the Commission that pertained to the monitoring and assessment of environmental damage.76 The Governing Council also directed that appropriate priority should be given to the processing of such claims, so that they could be resolved quickly and separately from the resolution of the related claim for environmental damage.77 Following the requisite notification from the Executive Secretary, by October 1999 the affected governments had submitted 107 monitoring and assessment projects for which they sought priority consideration. The claims were then presented to the F4 Panel for its consideration. Aside from the Governing Council’s general directive that the monitoring and assessment claims should be resolved quickly and separately from the underlying
75. First “F4” Report, para. 16. 76. Governing Council, 29th Session (September 28–30, 1998). 77. Id.
P O I N TS O F L AW
[ 157 ]
claims for environmental damage, the Government Council offered no guidance on what criteria the Panel should apply in determining whether the monitoring and assessment claims were eligible for compensation. Security Council Resolution 687 (1991) and Governing Council Decision 7 made plain that compensation could be awarded for any direct loss or damage resulting from Iraq’s invasion and occupation of Kuwait and that monitoring and assessment costs were among the categories of expenditures eligible for compensation. However, inasmuch as none of the claimants had yet established that any environmental damage they claimed to have suffered resulted from Iraq’s invasion and occupation, the underlying factual predicate for the award of compensation for monitoring and assessment was missing.78 At the same time, the Panel recognized that it would be unreasonable to demand conclusive proof that environmental damage had in fact occurred because the studies necessary to provide such proof had not been performed. To bridge this apparent gap the Panel developed and applied four criteria to evaluate the eligibility of monitoring and assessment claims for compensation: First, whether there was a possibility that environmental damage could have been caused as a result of Iraq’s invasion and occupation of Kuwait. This entailed an inquiry into whether it was plausible that pollutants released as a result of the conflict could have affected the territories of the claimants.79 Second, whether the particular areas or resources could have been affected by pollutants released as a result of Iraq’s invasion and occupation of Kuwait. This entailed an examination of the possible pathways and media by which pollutants could have reached the areas or resources concerned.80 Third, whether there was evidence of environmental damage or risk of such damage as a result of Iraq’s invasion and occupation.81 Fourth, whether there was a reasonable prospect that the proposed monitoring and assessment activities would produce results that would be of assistance to the Panel in its later review of any related substantive claims.82 The Panel also took the view that subparagraph 35(c) of Governing Council Decision 7 could be read to create an independent basis for the award of compensation for monitoring and assessment studies without the need for claimants to establish beforehand that they had, in fact, suffered environmental damage as a result of the Iraqi invasion. The well-documented release of oil into the marine and coastal environment and the fallout of airborne contaminants from the oil well fires had given rise to legitimate concerns over the short-term and long-term adverse environmental and public health impacts of such releases. An award of compensation to study whether, in fact, adverse impacts had resulted from those incidents was therefore appropriate. The Panel reasoned that if the study showed that the
78. 79. 80. 81. 82.
[ 158 ]
First “F4” Report, para. 29. First “F4” Report, para. 31(a). Id., para. 31(b). Id., para. 31(c). Id., para. 31(d).
Jurisprudence and Policy Issues
release had resulted in environmental damage, then the results of the study could be used to support the underlying claim for compensation.83 If, on the other hand, the results of the study were inconclusive or demonstrated that no environmental damage had occurred, then the study would have served the purpose of alleviating concerns over the potential adverse impacts from the release.84 The Panel did not sail into uncharted waters when it fashioned relaxed standards for the compensability of monitoring and assessment claims or treated such claims as an independent basis for the award of compensation. The Panel’s approach of requiring claimants to make essentially a prima facie showing that the monitoring and assessment studies were eligible for compensation drew upon the wellestablished practice of awarding preliminary injunctive relief before a final determination has been made on the merits of a claim. For example, under U.S. legal practice, preliminary injunctive relief ordinarily is available upon showing, among other things, that the claimant is likely to succeed on the merits of its claim, the award of injunctive relief necessary to forestall irreparable injury, and the award of injunctive relief is otherwise in the public interest. To be sure, neither Security Council Resolution 687 (1991) nor Governing Council Decision 7 conferred any injunctive powers on the Commissioners, and the F4 Panel did not purport to exercise any such powers. Nonetheless, the principles embodied in the criteria for awarding preliminary injunctive relief served to inform the Panel’s decisions with regard to claims for monitoring and assessment. The treatment of monitoring and assessment as a stand-alone basis for compensation also drew on a well-established body of tort law. In several jurisdictions in the United States an award of damages for medical monitoring is available as an independent basis for recovery where the plaintiff shows that he was exposed to a toxic substance but has yet to manifest any symptoms of disease.85 The Panel’s treatment of monitoring and assessment mirrored the practice of allowing recovery for medical monitoring.
E. Directness and Causation
For the most part, the environmental claims considered by the F4 Panel did not raise significant questions of directness and causation. The environmental losses for which the claimants sought compensation typically stemmed from unbroken links in the chain of causation between Iraq’s wrongful actions such as the intentional release of oil into the Persian Gulf, and resulting contamination of
83. First “F4” Report, para. 32. 84. Id. 85. Ayers v. Township of Jackson, 106 N.J. 557, 559–607 (1987); Potter v. Firestone Tire and Rubber Company, 6 Cal. 4th 965, 1004–1010 (1993).
P O I N TS O F L AW
[ 159 ]
marine and terrestrial areas. There were a few instances, however, where the chain of causation was more tenuous. This was particularly true in regard to some of the public health claims.86 For example, Jordan sought compensation for short-term and long-term medical treatment costs resulting from an increase in the incidence of low birth-weight infants born in Jordan after Iraq’s invasion and occupation of Kuwait. Jordan alleged that the presence of large numbers of refugees in its territory as a result of the war had a significant negative impact on Jordan’s economy and caused a general increase in the level of poverty in the country; this in turn led to an increase in malnutrition in pregnant women and this malnutrition resulted in an increase in the incidence of low birth-weight infants in the country.87 The Panel concluded that while part of the alleged increase in low birth-weight infants might be ultimately traceable to Iraq’s invasion and occupation of Kuwait, any such increases were too remote and speculative to be considered a direct result of the invasion and occupation.88 The Panel also addressed the issue of directness and causation in connection with Kuwait’s claim for compensation for future expenses to clean up soil contamination resulting from the leaking of contaminants from unexploded ordnance stockpiled at an ordnance repository in Kuwait and from the spontaneous detonations of the ordnance.89 Kuwait asserted that the ordnance had been scattered throughout the country and that it had recovered the ordnance and moved it to a safe location for storage. The soil contamination from leaks and explosions occurred after the ordnance was placed in storage. The Panel concluded that the leaks and explosions resulting from Kuwait’s failure to manage the storage facility properly was the direct cause of the resulting contamination and “this broke the chain of causation so as to relieve Iraq of liability for the damage.”90 The issue of directness also arose in connection with a claim by Iran for compensation for the cost to rebuild a power transmission tower at an airport in Iran. Iran asserted that a lorry driver was so startled by the sight of an Iraqi airplane landing at an Iranian airport, that the driver lost control of the lorry and hit a power transmission tower, causing damage to the tower.91 The Panel concluded that the damage to the tower was not a direct result of Iraq’s invasion and occupation of Kuwait and therefore denied compensation.92
86. The Panel’s treatment of public health claims is more fully discussed in Sand & Hammitt, Chapter 8, in this volume. 87. Fifth “F4” Report, paras. 392–94. 88. Id., para. 396. 89. Fourth “F4” Report, part 1, paras. 197–203. 90. Id., para. 206. 91. Second “F4” Report, para. 64. It appears that the airplane was flown to Iran by an Iraqi pilot who had defected from Iraq. 92. Id., paras. 64–65.
[ 160 ]
Jurisprudence and Policy Issues
F. Contributory Fault
One of the recurring issues before the F4 Panel concerned the impact of preexisting contamination on Iraq’s liability for environmental damage resulting from its invasion and occupation of Kuwait. Although the Panel’s discussion of this issue was subsumed under the heading of “parallel or concurrent causes,” this was only a shorthand description of the larger question of the extent to which the Panel should take into account the impact of preexisting contamination on a claimant’s entitlement to compensation. The impact of parallel or concurrent causes of injury on a wrongdoer’s liability is analytically distinct from the impact of preexisting injury on the wrongdoer’s liability. The notion of a parallel or concurrent cause connotes some temporal relationship between two or more independent wrong acts that combine to produce a single harm.93 The International Law Commission gives as an example of the application of this principle the Diplomatic and Consular Personnel case,94 in which the government of Iran was held liable for losses sustained by the United States based on the combination of the initial seizure of hostages at the U.S. embassy by militant students (who were not at that time acting as organs or agents of the government of Iran) and the failure of Iranian authorities to take steps to protect the embassy. Another cited example was the Corfu Channel case,95 where the damage to British ships was caused both by the action of a third state in laying mines and the action of Albania in failing to warn of their presence. Preexisting contamination, which implicates notions of contributory fault, raises different considerations. In the case of contributory fault, where the injured party has contributed to his own injury by some willful or negligent act or omission, recovery is denied for that portion of the harm that is attributable to his own conduct.96 This result flows from the principle that full reparation is due for the injury arising from a wrongful act and notions of fairness as between the tortfeasor and the victim.97 The Gulf region has had a long history of oil and gas operations. Environmental contamination arising from historical operations is undeniable. It has been estimated that approximately 1.2 million barrels of oil are discharged into the Persian Gulf each year from routine operations and spills.98 In addition, population pressures have placed great burdens on surface and groundwater resources,
93. Report of the International Law Commission, supra note 66, at 229, commentary to art. 31, para. 12. 94. I.C.J. Reports, 1980, 3 at 29–32. 95. I.C.J. Reports, 1949, 4 at 17–18, 22–23. 96. Id., art. 39 and commentary, 275–77. 97. Id., 275. 98. United Nations Environment Programme, Global State of the Environment Report 1997, Chapter 2, available at http://www.unep.org/geo/geo1/ch/ch2_13.htm.
P O I N TS O F L AW
[ 161 ]
resulting in contamination and overdrafts of aquifers.99 Moreover, the failure to implement effective land management practices has led to overgrazing by livestock, loss of soil and vegetation cover, habitat loss, and desertification.100 These adverse environmental conditions all existed to varying degrees in the region well before the Gulf War conflict. The issue before the F4 Panel was thus one of the contributory fault of the Gulf countries to environmental contamination that existed prior to Iraq’s invasion, not of parallel or concurrent causes of environmental harm. During the first instalment, the Panel noted the challenges posed by preexisting contamination and reminded claimants of the importance of differentiating between environmental damage attributable to Iraq’s invasion and occupation of Kuwait and environmental damage attributable to other causes in seeking compensation from Iraq.101 Furthermore, Iraq repeatedly raised the issue of preexisting contamination and environmental degradation during the Panel’s consideration of F4 claims. The issue was brought into sharp focus in connection with the second instalment, where Iraq contended that “some of the environmental damage for which the Claimants seek compensation was ‘not related to the Gulf War.’”102 Iraq noted that “the damage ‘existed before [the] war, since [it] resulted from digging wells in search [of] oil and gas, the existence of many refineries and petrochemical factories as well as a large number of oil tankers in the Gulf waters.’”103 Iraq further argued that “‘it is impossible to limit the causes of environmental pollution in a particular region to one cause and hold one state liable for that and oblige it to compensate the damage, especially when many factor[s] and states contributed to that pollution.’”104 Iraq returned to this theme in the third instalment, where, for example, it challenged Kuwait’s claim for compensation for the contamination of two aquifers. Iraq argued that the increase in salinity in the aquifers had resulted from overpumping the aquifers prior to 1990 and that the presence of petroleum hydrocarbon contamination in the aquifer had resulted from Kuwait’s negligent placement of oil recovery pits above the aquifers.105 Iraq similarly contested Saudi Arabia’s claim for compensation to remediate damage to its coastal environment from oil contamination resulting from Iraq’s deliberate releases of oil in the Persian Gulf.106 Although Iraq readily acknowledged that oil spills during the war had resulted in environmental damage to Saudi Arabia’s
99. 100. 101. 102. 103. 104. 105. 106.
[ 162 ]
Id. Id. First “F4” Report, paras. 33–34, and Introduction to Technical Annexes, para. A.4-8. Second “F4” Report, para. 24. Id. Id. Third “F4” Report, paras. 68–69. Id., paras. 169–73.
Jurisprudence and Policy Issues
coastline, it contended that the “damage to Saudi Arabia’s shoreline cannot be attributed solely to the events in 1991.”107 It noted that the region is constantly exposed to accidental spills and routine ongoing pollution and pointed in particular to a large oil spill “‘associated with a well in Nowruz, Iran that resulted in 1.9 million barrels of oil being dumped into the northern section of the Gulf in 1983.’”108 In the fourth instalment, Iraq contested Jordan’s claims for remediation of damage to its groundwater resources resulting from the influx of refugees fleeing the conflict in Kuwait.109 Iraq contended that there was a long history of Jordan’s mismanagement of its water resources before the war and that any contamination of those resources was attributable to overpumping, overuse of fertilizers on nearby agricultural lands, or overburdened sanitary sewer systems leading to the improper disposal of human wastes.110 With regard to Iran’s claims for compensation for remediation of damage to marine resources from oil spills, Iraq argued that Iran had failed to demonstrate that any of the oil present on its shoreline originated from oil spills resulting from Iraq’s invasion and occupation of Kuwait.111 Iraq pointed to a number of major causes for the contamination, including the 1983 Nowruz oil spill mentioned above, operation of oil platforms; terminals and oil processing facilities; as well as natural seeps in the Persian Gulf.112 Concerning Kuwait’s claim for compensation for expenses associated with the remediation of oil lakes, oil-contaminated piles, oil trenches, and oil spills, Iraq argued that some of the oil lakes were in existence before its invasion and therefore Iraq should not be liable for the cost of remediating contamination attributable to those lakes.113 Iraq continued to press the point of preexisting contamination in the fifth instalment in regards to claims for compensation for damage to or depletion of natural resources, measures to clean and restore damaged areas, and damage to public health. Among other things, Iraq asserted that the reduced crop yields for which Iran sought compensation were likely attributable to regional climatic conditions and disease, rather than pollution resulting from the conflict.114 It further argued that decreases in fish and shrimp catches that Iran had experienced were attributable to overfishing rather than oil spills resulting from the Gulf War.115 Furthermore, in Iraq’s view, the damage to cultural heritage monuments, for which Iran sought compensation, was more likely attributable to Iran’s history of poor
107. 108. 109. 110. 111. 112. 113. 114. 115.
Id., para. 174. Id. Fourth “F4” Report, part 1, paras. 110–11. Id., paras. 114–15, 120, 125. Id., para. 97. Id., para. 99. Id., para. 69. Fifth “F4” Report, paras. 108–10. Id., paras. 138, 141–44.
P O I N TS O F L AW
[ 163 ]
protection of cultural heritage artifacts and air pollution from vehicle emissions, refinery operations, and industrial emissions.116 Iraq leveled similar criticisms at Jordan’s claim for compensation for damage to or depletion of groundwater, terrestrial, agricultural wetlands, and marine resources, where Iraq contended, among other things, that damage to Jordan’s water resources predated the invasion and occupation of Kuwait.117 It also questioned Saudi Arabia’s claim for crop losses, which Saudi Arabia had attributed to fallout of airborne pollutants from oil well fires in Kuwait. According to Iraq, Saudi Arabia failed to show that the crop losses were not attributable to other activities such as livestock grazing and air pollution from the oil industry.118 Iraq also argued that in calculating the extent of injury to terrestrial resources Saudi Arabia failed to take into account damage caused by activities unrelated to the war, such as the effects of overgrazing and other deleterious activities in the affected areas.119 In addressing Iraq’s arguments, the Panel noted that under Security Council Resolution 687 (1991), Iraq was only liable for any direct loss or damage that was a result of its invasion and occupation of Kuwait and that Iraq had no liability for “damage that was unrelated to the invasion and occupation of Kuwait nor for losses or expenses that are not a result of the invasion and occupation.”120 The Panel stressed, however, that Iraq is “not exonerated from liability for loss or damage that resulted directly from the invasion and occupation simply because other factors might have contributed to the loss or damage.”121 In the Panel’s view, the compensability of the claims for environmental damage would turn on the evidence presented in support of each claim.122
116. Id., paras. 203–04. 117. Id., paras. 320–21. 118. Id., paras. 557–58. 119. Id., paras. 595–97. 120. Second “F4” Report, para. 25; Third “F4” Report, para. 38; Fourth “F4” Report, para. 39; Fifth “F4” Report, paras. 37–38. 121. Id. 122. Id. The Panel’s approach was consistent with the view articulated by the I.L.C. in connection with its discussion of the treatment of the contributory fault on the part of a claimant. In this regard, the concern that the Panel’s position on preexisting damage departed from the I.L.C.’s proposed rules on state responsibility is unwarranted. See Philippe Gautier, Environmental Damage and the United Nations Claims Commission: New Directions for Future International Environmental Cases?, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 177–214 (T. M. Ndiaye & R. Wolfrum eds., Boston: Martinus Nijhoff, Leiden 2007) (hereinafter, P. Gautier). Viewed from the perspective of contributory fault, the Panel’s approach was consistent with the I.L.C.’s proposed rules. In fact, the Panel’s statement that “due account” would be taken of the contribution from other sources in order to determine the quantum of compensation to be awarded a claimant echoed the statement in Article 39 of the I.L.C.’s proposed rule that in the determination of reparations “account shall be taken” of the contribution to the injury by the claimant. Supra, note 93; Report of the International Law Commission, supra note 66, at 275.
[ 164 ]
Jurisprudence and Policy Issues
The Provisional Rules for Claims Procedure also played an important role in shaping the Panel’s analysis of claims involving preexisting damage. Article 35(3) of the Provisional Rules provided that F4 claims must be supported by documentary evidence sufficient to demonstrate the circumstances and amount of the claimed loss. The Governing Council reiterated the mandatory nature of this evidentiary requirement in subsequent decisions.123 In particular, in Decision 46 the Governing Council emphasized that in regard to all category E and F claims, “no loss shall be compensated by the Commission solely on the basis of an explanatory statement provided by the claimant,” and reaffirmed that the amounts recommended by Commissioners “can only be approved when they are in accordance with this decision.”124 In the Panel’s view, in instances involving preexisting environmental damage, these evidentiary requirements placed the burden on claimants to come forward with evidence demonstrating the extent to which a claimed loss resulted from Iraq’s invasion and occupation of Kuwait. In the final analysis, the Panel’s resolution of claims involving preexisting damage turned on whether the available evidence was sufficient to enable the Panel to differentiate between damage stemming from preexisting contamination and damage attributable to the war. In several instances the Panel rejected Iraq’s assertion that compensation should be denied in whole or in part because of preexisting damage given evidence clearly demonstrating that the loss for which compensation was sought was entirely attributable to the conflict.125 In other instances, the Panel denied a claim for compensation because the claimant was unable to produce evidence demonstrating the portion of the claimed loss that was attributable to the conflict and the portion that was attributable to other factors.126 In still other instances, the Panel decided that no compensation should be paid because the claimant simply failed to produce evidence to substantiate its assertion that the claimed loss resulted from Iraq’s invasion and occupation. This is illustrated by Saudi Arabia’s claim in the fifth instalment for compensation for crop losses. Saudi Arabia asserted that fallout of contaminants from the oil well fires in Kuwait had led to an increase in plant pests and other diseases, which in turn had resulted in diminished crop yields for farmers in Saudi Arabia.127 Iraq had contended, among other things, that the crop losses were attributable to other causes having nothing to do with the oil well fires. The Panel sent several requests to Saudi Arabia to provide additional information to substantiate its claim, but Saudi Arabia failed to respond to these requests.128 Accordingly, the Panel concluded that Saudi Arabia had failed
123. Decision 7, S/AC.25/1991/7/Rev.1 (1991, rev. 1992), para. 37; Decision 46, U.N. Doc S/AC. 26/46 (1998). 124. Decision 46, S/AC.26/46 (1998). 125. Second “F4” Report, para. 26. 126. Third “F4” Report, paras. 375–82. 127. Fifth “F4” Report, para. 557. 128. Id., para. 564.
P O I N TS O F L AW
[ 165 ]
to provide sufficient evidence to establish the extent of the crop losses or to demonstrate that any such losses occurred as a result of Iraq’s invasion and occupation of Kuwait and that Saudi Arabia had consequently “failed to meet the evidentiary requirements for compensation as specified in article 35(3) of the Rules.”129 The Panel therefore recommended that no compensation be paid for the claim.
G. Valuation Methodologies
The Security Council and the Governing Council provided no guidance to the F4 Panel on how losses for the depletion of or damage to natural resources should be valued. The methodology to be employed to quantify the monetary value of losses resulting from wrongful conduct has always been contentious and this is doubly so in the case of valuing injuries to natural resources. With regard to natural resources that are traded in the market or are used by the public for recreational purposes, there are fairly well-established methodologies for valuing the economic loss resulting from the injury. For example, in the case of oil losses, valuation methodologies such as market price and appraisal value have been used. In the case of damage to recreational areas, the aggregate cost of tourists traveling to the recreational area before it was damaged has been used as a valuation technique. The situation is far more complex where the injured resource is not “used” in the traditional commercial or recreational sense and therefore has no readily ascertainable market price but compensation is sought for the loss of nonuse values. The appropriate methodology to be employed to measure the loss of these nonuse values, such as contingent valuation, is highly unsettled. Several claims considered by the F4 Panel relied on the use of contingent valuation or habitat equivalency analysis to value natural resource damages, such as the loss of rangelands,130 and the loss of recreational opportunities because of the presence of contamination.131 The Panel acknowledged the difficulties inherent in the use of these valuation methodologies but concluded that claims for compensation should not be denied solely on the grounds that the methodologies did not enjoy wide acceptance or the difficulties inherent in attempting to place monetary value on damaged natural resources.132
129. Id., para. 565. 130. E.g., Jordan’s claim for loss of terrestrial resources due to the influx of refugees and their livestock flowing into Kuwait after Iraq’s invasion, Fifth “F4” Report, paras. 353–57, and Kuwait’s claim for damage to its terrestrial resources caused by oil well fires and military activities during Iraq’s invasion and occupation. Fifth “F4” Report, paras. 415–21. 131. E.g., Kuwait’s claim for lost recreational opportunities for boat owners, boat users, and beach users, and chalet owners due to the inaccessibility of coastal areas because of the presence of Iraq’s troops, military fortifications, and munitions. Fifth “F4” Report, paras. 457–59. 132. Fifth “F4” Report, paras. 80–81. The Panel’s approach to valuation methodologies is described in greater detail in Huguenin et al., Chapter 3, in this volume.
[ 166 ]
Jurisprudence and Policy Issues
However, in light of controversy surrounding the use of novel valuation methodologies the Panel took a cautious approach. Accordingly, the Panel adopted the view that compensation for damage to natural resources should be residual to compensation for remediation or restoration of the injured resources. In other words, the focus of attention should be on the effectiveness of the claimant’s efforts to remediate the contamination and to restore the services provided by the natural resource before it was damaged. If this “primary restoration” did not fully compensate the claimant for all losses incurred or the restoration of the resource was not possible, then compensation would be awarded for compensatory restoration; that is, restoration activities could be undertaken in other areas to compensate for the loss of services in the affected area.133 Losses that would occur between the time of injury and full recovery of the injured resource would then be considered for compensation based upon the utilization of appropriate valuation methodologies. In this regard, the Panel concluded that the valuation methodologies used to calculate losses had to be reliable, grounded in the facts relevant to affected area and produce reasonable results. For instance, the Panel concluded that Kuwait’s reliance on contingent valuation to calculate recreational losses due to the inaccessibility of coastal areas was unreliable because the survey results were based on personal interviews conducted ten years after the invasion, which cast serious doubt on the accuracy of the information reported in the survey.134 In a similar vein, the Panel found that Jordan’s reliance on habitat equivalency analysis to calculate the size of the area needed to provide compensatory restoration for damaged rangelands exceeded the amount of land available in Jordan to be set aside for this purpose.135 Therefore, the Panel approved compensation for a smaller scale rangeland restoration plan.136 In sum, the Panel did not rule out the use of novel valuation methodologies to calculate damages to natural resources. On the contrary, the Panel acknowledged that such methodologies could provide useful information and would be acceptable, provided the claimant could demonstrate that the methodologies were reliable. In the end, several claimants failed to establish to the Panel’s satisfaction the reliability of their valuation methodologies or failed to show that primary restoration would not fully compensate for any losses suffered. Therefore, their claims failed for lack of adequate factual support, not because of the novelty of the methodologies used to calculate the loss.
133. para. 82. 134. 135. 136.
Third “F4” Report, para. 48; Fourth “F4” Report, part 1, para. 50; Fifth “F4” Report, Fifth “F4” Report, para. 463. Id., para. 362. Id., paras. 363–66.
P O I N TS O F L AW
[ 167 ]
III. GUIDEPOSTS FOR THE FUTURE
Several observers have noted that the F4 Panel’s work could serve as a model for future proceedings involving claims for environmental damage arising out of military conflict.137 However, the Panel’s decisions have relevance outside the limited context of the design of compensation systems in the aftermath of war. Taken together, the Panel’s decisions represent a compilation of principles applicable to the resolution of claims for compensation for environmental damage in a wide variety of contexts. These principles can be distilled into five points. First, claims for compensation must be well supported and may not be based solely on conjecture and speculation. To the extent scientific and technical experts are used to support the claims, the techniques and methodologies employed by the experts to support their conclusions must conform to generally accepted scientific principles. In addition, valuation methodologies used to quantify damages to natural resources must be reliable and must be based on the particular factual circumstances of the claim. Second, monetary awards sought to perform environmental remediation or restoration must be used for that purpose and may not be diverted to other uses. Inasmuch as compensation is ostensibly sought on behalf of the public for injuries to public resources, the award should inure to the benefit of the public and the injured resource and not result in a windfall to the general treasury. Third, the recipient of the funds must be prepared to account for how the funds are expended, including allowing monitoring of the remediation or restoration activities undertaken with the funds that have been awarded. Moreover, the results of the monitoring should be made available to the public in order to ensure accountability for the expenditures made. The process adopted by the Governing Council to oversee the expenditure of funds and to monitor the remediation and restoration activities, discussed in Chapter 5, Oversight of Environmental Awards, provides a useful model for future programs. Fourth, the remediation or restoration measures that the claimant proposes to undertake must be sound. At a minimum, this requires the claimant to show that the proposed remediation or restoration project will be protective of human health and the environment; the proposed remediation or restoration measures are technologically feasible and will not result in unacceptable environmental impacts; and the remediation or restoration measures are cost effective. Fifth, the process employed to review and award damages must be fair to the claimant and the respondent. The parties to the proceedings should have access to
137. Peter H. Sand, Compensation for Environmental Damage from the 1991 Gulf War, 35 Environmental Policy and Law 244–49 (2005); Gautier, supra note 122, at 212–14.
[ 168 ]
Jurisprudence and Policy Issues
the data and analyses gathered by each side, and they should have the opportunity to present their comments and criticisms to the decision-maker. In addition, the decision-maker must be impartial and the decision-making process should be transparent. Without these safeguards, any award of compensation will lack credibility.
P O I N TS O F L AW
[ 169 ]
C HA P TER 7
Environmental Principles Applied PETER H. SAND *
INTRODUCTION: ENVIRONMENTAL CLAIMS IN THE CONTEXT OF STATE RESPONSIBILITY
M
ost commentators on the work of the UN Compensation Commission (UNCC) agree that the Commission and its law-making record were rather unique in international law, both in terms of institutional and procedural characteristics, and in terms of the substantive legal rules applied. Within the Commission’s range of work in turn, there is a distinct segment that stands apart from the general context of the UNCC “regime”; viz., the system of compensation for environmental claims, referred to as the “F4” category. This chapter will seek to clarify the question as to why and how, or to what extent, the rules applied to environmental claims were indeed different, or sui generis, as compared to the rest of the UNCC. It is only after this kind of analytic clarification that the ulterior question can be asked as to whether the UNCC/F4 experience may hold any precedential lessons for other claims proceedings in the future.1
* Former Commissioner, F4 Panel. The author gratefully acknowledges comments received on an earlier draft from his former colleagues José R. Allen, Julia Klee, Thomas A. Mensah, and Cymie R. Payne, while assuming sole responsibility for views and opinions here expressed. 1. See notes 94, 95 and 101, infra; and future perspectives discussed, e.g., in Rosemary E. Libera, Divide, Conquer and Pay: Civil Compensation for Wartime Damages, 24 B.C. Int’l & Comp. L. Rev. 291 (2001); Jessica Bodack, International Law for the Masses, 15 Duke J. Comp. & Int’l L. 363 (2005); Carl Bruch, Closing Remarks: Symposium on “International Responses to the Environmental Impacts of War,” 17 Geo. Int’l Envtl L. Rev. 643, 646 (2005); Pemmaraju S. Rao, commentary, Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, Report of the International Law Commission on its 58Session, UN doc. A/61/10 (2006) 177 (hereinafter, Rao); Keith P. McManus, Civil Liability for Wartime Environmental Damage: Adapting the United Nations Compensation
UN Security Council Resolution 687 (1991), as the constitutive instrument of the UNCC and its F4 Panel, squarely placed the deliberations of the Panel in the context of intergovernmental responsibility for wrongful acts—based on Iraq’s formal acceptance of its liability under international law “for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations” resulting from the unlawful invasion and occupation of Kuwait; and its acceptance of the UNCC compensation procedure set up to verify and evaluate such damage.2 The compensation claims assigned by the UNCC Governing Council to the F4 Panel,3 in implementation of Resolution 687 (1991), consisted exclusively of governmental claims—either by states alleging to have suffered direct environmental damage in the geographical
Commission, 33 B.C. Environmental Aff. L.Rev. 417 (2006); Philippe Gautier, Environmental Damage and the United Nations Claims Commission: New Directions for Future International Environmental Cases?, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 177 (T. M. Ndiaye & R. Wolfrum eds., Nijhoff, Leiden 2007) (hereinafter, Gautier); Laurence Boisson de Chazournes & Danio Campanelli, The United Nations Compensation Commission: Time for an Assessment?, in Peace in Liberty: Festschrift Michael Bothe 3, 15 (A. Fischer-Lescano H.-P. Gasser, T. Marauhn, & N. Ronzitti eds., Nomos, Baden-Baden 2008) (hereinafter, Boisson de Chazournes & Campanelli); Elizabeth M. Mrema, Carl Bruch, & Jordan Diamond, Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law 28 (United Nations Environment Programme, Nairobi 2009) (hereinafter, Mrema et al.); Cymie R. Payne, Legal Liability for Environmental Damage: The United Nations Compensation Commission and the 1990-1991 Gulf War, in Governance, Natural Resources, and Post-Conflict Peacebuilding (C. Bruch, C. Muffett & S.S. Nichols eds., Earthscan, London forthcoming 2011) (hereinafter, Bruch et al.); and Chapters 9-12 in this volume. 2. Paragraphs 16–18 of S.C. Res. 687, 46 U.N. SCOR, at 200, U.N. Doc. S/RES/687 (Apr. 8, 1991), reprinted in 30 I.L.M. 846 (1991) and in the Appendices to this volume; Letter dated 10 April 1991 to the President of the UN Security Council from the Permanent Representative of Iraq to the United Nations, UN doc. S/22480 (1991); and UNCC Governing Council decisions, reprinted in UNCC, Basic Documents of the United Nations Compensation Commission, UN doc. S/AC.26/SER.A/1, vol. I (United Nations, Geneva 2001). See in particular the Provisional Rules for Claims Procedure (hereinafter, the Rules), adopted by Governing Council Decision 10, S/AC.26/1992/10 ( June 26, 1992), id. 137, reprinted in 31 I.L.M. 1053 (1992) and in the Appendices to this volume; cf. Francis E. McGovern, Dispute System Design: The United Nations Compensation Commission, 14 Harvard Negotiation Law Review 171 (2009). 3. The UNCC Governing Council grouped all environmental claims, not on the basis of a specific definition of the environment, but rather on the basis of practical considerations (e.g., including claims for public health damage, discussed in Chapter 8 in this volume); see the description of the claims preparation process by Klee (Chapter 2 in this volume); and Mojtaba Kazazi, Environmental Damage in the Practice of the UN Compensation Commission, in Environmental Damage in International Law and Comparative Law: Problems of Definition and Valuation 111, 117 (M. Bowman & A. E. Boyle eds., Oxford University Press, Oxford 2002) (hereinafter, Kazazi 2002).
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 171 ]
region affected (so-called “regional claims”), or by states alleging to have incurred financial costs in providing assistance to states in the region so affected in response to such environmental damage or threat of damage (so-called “non-regional claims”).4 The structure of the law of state responsibility for wrongful acts has traditionally been bilateral:5 the primary concern of claimant/victim states is to obtain fair compensation of their losses, whereas the primary concern of respondent/tortfeasor states is to obtain fair treatment and due process. These concerns are not necessarily antagonistic, both sides being interested in an equitable and expeditious settlement, too, in order to reduce the transaction costs of the compensation process. Yet, the notorious drawback of the classical bilateral structure of intergovernmental claims settlement is that it does not take into account externalities. In the case of environmental damage in particular—which typically harms not only a claimant state’s own resources but also common resources shared by others—bilateral settlements between tortfeasor and victim that appear quite equitable to them (e.g., a cash settlement acceptable to both sides) may well leave harm to common environmental
4. See text at notes 65–68, infra. The corporate (non-governmental) claim by the Kuwait Oil Company (KOC) for the costs of extinguishing the war-induced oil fires had already been dealt with by a different UNCC panel in 1996; see Well Blowout Control Claim Award, text in Karen Lee ed., 5 International Environmental Law Reports: International Environmental Law in International Tribunals 607 (D. Bethlehem, J. Crawford, C. A. R. Robb, & P. Sands eds., Cambridge University Press, Cambridge 2007) (hereinafter, Law Reports). Unlike other UNCC panels, the F4 Panel did not normally deal with compensation claims by individuals or corporations (for minor exceptions in the case of pollution damage to a Central Bank building, and pollution remediation costs incurred by a public research institute, see Report and recommendations made by the Panel of Commissioners concerning the Third Instalment of “F4” Claims, U.N. Doc. S/AC.26/31 (Dec. 18, 2003), paras. 160–68, 43 I.L.M. 726 (2004) (hereinafter, Third “F4” Report), and Report and recommendations made by the Panel of Commissioners concerning the Second Instalment of “F4” Claims, U.N. Doc. S/AC.26/2004/17 (Dec. 9, 2004), para. 149 (hereinafter, Second “F4” Report); both claims having been submitted on behalf of the institutions concerned by Kuwait as the claimant government. On the question of legal standing of claimant governments in the case of claims for health damage or loss of life incurred by their individual citizens, see the Panel’s affirmative statement in its Report and recommendations made by the Panel of Commissioners concerning the Fifth Instalment of “F4” Claims, U.N. Doc. S/AC.26/2005/10 ( June 30, 2005), paras. 69–70 149 (hereinafter, Fifth “F4” Report); and Chapter 8 in this volume, text at notes 17–18. The Panel did not address the civil or criminal responsibility of individuals for environmental damage arising from the Gulf War; in this regard, see Thilo Marauhn, Environmental Damage in Times of Armed Conflict: Not ‘Really’ a Matter of Criminal Responsibility?, 840 Int’l Rev. of the Red Cross 1029 (2000); and Ines Peterson, The Natural Environment in Times of Armed Conflict: A Concern for International War Crimes Law?, 2 Leiden Journal of International Law 325 (2009). 5. See Bruno Simma, Bilateral and Community Interests in the Law of State Responsibility, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 821 (Y. Dinstein & M. Tabory eds., Nijhoff, Leiden 1989) (hereinafter, Simma 1989); and the historical overview by Georg Nolte, From Dionisio Anzilotti to Roberto Ago: The Classical International Law of State Responsibility and the Traditional Primacy of a Bilateral Conception of State Relations, 13 European Journal of International Law 1083 (2002).
[ 172 ]
Jurisprudence and Policy Issues
resources unrepaired. As the analogous experience from domestic environmental mediation shows, there are bilateral tortfeasor-victim deals (such as negotiated financial settlements with industrial pollution victims) which leave the real cause of the harm unremedied and the integrity of the environment at continuing risk.6 As opposed to this traditional bilateral approach, the F4 Panel took the explicit reference to “environmental damage” among the heads of damage to be compensated by Iraq under Security Council Resolution 687 (1991) as an indication of the multilateral dimension of the tortfeasor state’s responsibility, and of a community interest in full remediation of the damage caused. The panel thus repeatedly emphasized “the common concern for the protection and conservation of the environment,” which “entails obligations towards the international community and future generations.”7 This affirmation of the general community interest—beyond the legitimate self-interest of any directly affected state—reflects a broad consensus in the literature on responsibility for environmental damage (“change from the bilateralist to the community paradigm”).8 It has even been characterized as “a shift
6. This caveat was raised early on by Alexandre C. Kiss with regard to environmental “mediation” procedures; see his comments at the 1984 Hague Colloquium, L’avenir du droit international de l’environnement / The Future of the International Law of the Environment 254, 267 (R.-J. Dupuy ed., Nijhoff, Leiden 1985). 7. Third “F4” Report, para. 42 (43 I.L.M. 713), Fourth “F4” Report, part 2 para. 38, and Fifth “F4” Report, para. 40. Note, however, that the Panel generally refrained from formulating or endorsing doctrinal principles; cf. Olufemi Elias, Sustainable Development, War Reparations and Environmental Damage, in Exploitation of Natural Resources in the 21st Century 67 (M. Fitzmaurice & M. Szuniewicz eds., Kluwer Law International, The Hague 2003) (hereinafter, Elias 2003). 8. Bruno Simma, From Bilateralism to Community Interest in International Law, 250 Hague Academy of International Law: receuil des Cours 217, 238 (1994-VI); cf. Simma 1989 (note 5, supra) 836 (“multilateralizing injury”). Article 33(1) of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on its 53rd Session, UN Doc. A/56/10 (2001) 233 (hereinafter, ILC Draft Articles), thus refers to “obligations of the responsible State . . . owed . . . to the international community as a whole,” citing in the commentary “massive and widespread pollution of the sea” as an example; for background, see Cristina Hoss, in Environmental Liability in International Law: Towards a Coherent Conception 483 (R. Wolfrum, C. Langenfeld & P. Minnerop eds., Erich Schmidt Verlag, Berlin 2005). See also Felipe H. Paolillo, Reclamaciones colectivas internacionales: el caso de los damnificados por la crisis del Golfo, in International Law in an Evolving World: Liber Amicorum in Tribute to Professor Eduardo Jiménez de Aréchaga 545 (M. Rama-Montaldo ed., Fundación de Cultura Universitaria, Montevideo 1994); Glen Plant, State Responsibility and Civil Liability for Environmental Damage Caused by Military Operations, in Protection of the Environment During Armed Conflict 440 (R. J. Grunawalt, J. E. King, & R. S. McClain eds., Naval War College Press, Newport 1996); Jean-Christophe Martin, La pratique de la Commission d’indemnisation des Nations Unies pour l’Irak en matière de réclamations environnementales, in Le droit international face aux enjeux environnementaux: Colloque d’Aix-enProvence (Y. Kerbrat, S. Maljean-Dubois. & Rostane Mehdi eds., Pedone, Paris 2010) (hereinafter, Kerbrat et al.); and generally Alexandre Kiss, The Protection of Environmental Interests of the World Community through International Environmental Law, in Enforcing Environmental
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 173 ]
to agency,”9 relegating the role of the state with regard to common-property aspects of the environment to that of agent or public trustee representing the community interest: “The state holds such aspects of the environment in trust as an agent of its nation and increasingly as the logical agent of the international community.”10 There are a number of implications, both procedural and substantive, that follow from this premise for the treatment of environmental claims in the common interest: • • • • • •
public interest functions of the Panel; liability for risk discovery costs; quantification of ecological losses; international environmental solidarity costs; mitigation and containment of environmental damage; and post-award accountability.
I. PUBLIC INTEREST FUNCTIONS OF THE PANEL
Having thus been entrusted with the responsibility to safeguard community interests—a function which in a number of national legal systems and in the European Union is separated from the judiciary and instead is assigned to special institutions such as a public procurator, avocat général, or an attorney general acting
Standards: Economic Mechanisms as Viable Means? 1, 7 (R. Wolfrum ed., Springer, Berlin 1996). 9. See David D. Caron, Finding Out What the Oceans Claim: The 1991 Gulf War, the Marine Environment, and the United Nations Compensation Commission, in Bringing New Law to Ocean Waters 393, 394 (D. D. Caron & H. N. Scheiber eds., Nijhoff, Leiden 2004) (hereinafter, Caron 2004); and Chapter 12 in this volume. 10. David D. Caron, The Place of the Environment in International Tribunals, in The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives 250, 257 ( J. E. Austin & C. E. Bruch eds., Cambridge: Cambridge University Press 2000) (hereinafter, Caron 2000). On the fiduciary obligations of states for environmental resources under their jurisdiction in general, see Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (UN University Press, Tokyo 1989); Catherine Redgwell, Intergenerational Trusts and Environmental Protection (Manchester University Press, Manchester 1999); Peter H. Sand, Global Environmental Change and the Nation State: Sovereignty Bounded?, in Multilateral Governance of Global Environmental Change: Perspectives from Science, Sociology and the Law 519 (G. Winter ed., Cambridge University Press, Cambridge 2006); and Evan J. Criddle & Evan Fox-Decent, A Fiduciary Theory of Jus Cogens, 34:2 Yale J. Int’l L. 331, 349 (2009); Mary Turnipseed, Raphael Sagarin, Peter Barnes, Michael C. Blumm, Patrick Parenteau & Peter H. Sand, Reinvigorating the Public Trust Doctrine: Expert Opinion on the Potential of a Public Trust Mandate in U.S. and International Environmental Law, 52:5 Environment 6 (2010).
[ 174 ]
Jurisprudence and Policy Issues
as parens patriae11—the F4 Panel had to adapt its procedure accordingly, from a passive “arbiter” role of bilateral dispute settlement (on the basis of adversarial submissions by both parties to the dispute) toward a proactive “inquisitorial” one of objective fact-finding proprio motu (on the basis of all available evidence regardless of submissions by the parties).12 This inquisitorial/investigative role is best illustrated by the Panel’s recourse to consultants of its own, as an independent source of technical and scientific expertise, instead of relying on partisan expert advice presented by the parties.13 Consequently, rules had to be developed and observed to ensure a high degree of objectivity and impartiality of the evidence considered, both in the selection of the consultants (after scrutiny to avoid potential conflicts of interest regarding prior relationships with claimant or respondent governments), and in terms of their conditions of service.14 A second procedural measure introduced for this purpose was the provision of special funding to Iraq, so as to enable the respondent to collect
11. See, e.g., Allan Kanner, The Public Trust Doctrine, “Parens Patriae,” and the Attorney General as the Guardian of the State’s Natural Resources, 16 Duke Envtl L. & Pol’y F. 57 (2005). 12. In this regard, the specific procedural problem for the F4 Panel may be considered distinct from the general transcultural challenge (mainly, the divide between the procedural traditions of Anglo-Saxon common law and continental European civil law systems) facing all UNCC panels, and indeed all international adjudicatory bodies; see generally Mojtaba Kazazi, Burden of Proof and Related Issues: A Study of Evidence Before International Tribunals 23, 165 (Kluwer Law International, The Hague 1996) (hereinafter, Kazazi 1996); and Rüdiger Wolfrum, Taking and Assessing Evidence in International Adjudication, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 341 (T. M. Ndiaye & R. Wolfrum eds., Nijhoff, Leiden 2007). On the predominantly “inquisitorial approach” of the UNCC, see also Veijo Heiskanen, The United Nations Compensation Commission, 296 Recueil des Cours: Collected Courses of the Hague Academy of International Law 255, 303, 370 (2002) (hereinafter, Heiskanen); McGovern (note 2, supra) 188; and Jacques-Michel Grossen, Un quasi-arbitrage? À propos de la Commission de compensation des Nations Unies et de sa procédure, in Études de droit international en l’honneur de Pierre Lalive 509 (C. Dominicé ed., Helbing & Lichtenhahn, Basel 1993). 13. The UNCC recruitment criteria for consulting services are reprinted in the Appendices to this volume. As from July 11, 2002, Panel members and their expert consultants were subject to the UN Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission, adopted by General Assembly Resolution 56/820 of Mar. 27, 2002, U.N. doc. ST/SGB/2002/9. 14. Article 36 of the Rules (note 2, supra) expressly authorized the Panel to “request additional information from any other source, including expert advice, as necessary.” See Klee, Chapter 2 (text at notes 36-38) and Huguenin et al., Chapter 3, in this volume; and generally Gillian M. White, The Use of Experts by International Tribunals (Syracuse University Press, Ithaca/N.Y. 1965); Deirdre Dwyer, The Judicial Assessment of Expert Evidence (Cambridge University Press, Cambridge 2009); and Cesare Romano, The Role of Experts in International Adjudication, in Kerbrat et al. 181 (note 8, supra). On the power and practice of other international adjudicatory institutions to order independent expert reports, see Chester Brown, A Common Law of International Adjudication 112 (Oxford University Press, Oxford 2007), who briefly refers to the UNCC’s jurisdiction for compensation of environmental damage (at 200 n. 108).
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 175 ]
and review evidence on its own initiative, thereby “ensuring the full development of the facts and relevant technical issues,” and to assist the F4 Panel “in obtaining the full range of views including those of Iraq.”15 More importantly still, the Panel reserved and exercised a right of authoritative guidance to ensure appropriate action by the claimants with a view to optimizing the fact-finding and discovery process. To this end, it did not hesitate to modify claims submitted by claimant governments, recommending alternative methods where appropriate, and to specify the details it considered necessary for the purpose, by way of “technical annexes” communicated to the claimants with the Panel’s reports.16 The proactive role of the Panel in this regard may have been one of the most far-reaching procedural innovations introduced. For even though the technical amendments of claims as specified in these annexes (formulated on the basis of advice from the Panel’s expert consultants) were couched in terms of mere “recommendations,” there is little doubt that in combination with the claimants’ duty to report on follow-up action,17 they were perceived as authoritative instructions, and in the majority of cases were heeded by claimant governments. As summed up by the chairman, in a wider context, the F4 Panel viewed its legitimate role as an adjudicative (quasi-judicial) body not just in interpreting and implementing environmental principles and rules “but also in taking a leading role in the development, clarification and refinement of the law within the limits and constraints necessary for a responsible exercise of the judicial function.”18
15. See UNCC Governing Council Decisions 114, S/AC.26/114 (Dec. 7, 2000), and 124, S/AC.26/124 ( June 19, 2001), reprinted in the Appendix to this volume; Decision 226, S/AC.26/226 ( July 2, 2004); and Fifth “F4” Report, para. 783. A total of US$14 million was thus made available for this purpose to Iraq from the UNCC Compensation Fund, which enabled the Iraqi government to contract the services of a prominent Geneva law firm and an array of international legal and technical experts as consultants; see Klee, Chapter 2, Huguenin et al., Chapter 3, and Wilde, Chapter 4 in this volume; Elias 2003 (note 7, supra) 76; Heiskanen (note 12, supra) 316 n. 196; and the comments by Michael Schneider, International Claims Litigation II: A Case Study on the UNCC, 99th Proceedings of the American Society of International Law 325, 335 (2005). On the gradual expansion of Iraq’s “participatory space,” see Lalanath de Silva, Additional Perspectives on the UNCC, in Bruch et al. (note 1, supra). Cf. generally John C. Chung, The United Nations Compensation Commission and the Balancing of Rights between Individual Claimants and the Government of Iraq, 10 University of California at Los Angeles Journal of International Law and Foreign Affairs 141 (2005); and Allen, Chapter 6, in this volume, text at notes 31-51 (“due process” concerns). 16. See, e.g., First “F4” Report, paras. 75–76, 96, 110, 116, 123, 129, 135, 142, and 149, and technical annexes Nos. I–XXXVI, extracts in Law Reports (note 4, supra) 635; Third “F4” Report, technical annexes I–VI, 43 I.L.M. 733 (2004); Fourth “F4” Report, part 2, technical annexes I–III; and Fifth “F4” Report, technical annexes I–III. See also the introduction to each of the technical annexes. 17. See text at notes 78–88, infra. 18. Thomas A. Mensah, Using Judicial Bodies for the Implementation and Enforcement of International Environmental Law, in International Law between Universalism and Fragmentation: Festschrift in Honour of Gerhard Hafner 797, 809 (I. Buffard et al.
[ 176 ]
Jurisprudence and Policy Issues
II. LIABILITY FOR RISK DISCOVERY COSTS
The decision of the UNCC Governing Council to give priority to claims for the costs of environmental and public health monitoring and assessment probably was the closest the Commission ever came to endorsing the “precautionary principle.”19 It reflected the realization that part of the environmental and health risks created by the 1991 Gulf War were “hidden risks” which were not immediately apparent, and which required a degree of systematic and possibly long-term fact-finding that went well beyond standard preparations for environmental damage claims (routine claim preparation costs were indeed not considered reimbursable by the UNCC).20 In view of the manifest lack of reliable current information and relevant local baseline data from the region affected by the conflict,21 the UNCC was not in a position
eds., Nijhoff, Leiden 2008). On the quasi-judicial function of the UNCC, see the Report of the Secretary-General to Paragraph 19 of Security Council Resolution 687 (1991), U.N. Doc. S/22559 (May 2, 1991), para. 20; Danio Campanelli, The United Nations Compensation Commission (UNCC): Reflections on Its Judicial Character, 4 The Law and Practice of International Courts and Tribunals 107 (2005); and Veijo Heiskanen & Nicolas Leroux, Applicable Law: Jus ad Bellum, Jus in Bello and the Legacy of the UN Compensation Commission, in Gulf War Reparations and the UN Compensation Commission: Designing Compensation after Conflict (C. Gibson & T. Feighery eds., Oxford University Press, Oxford 2011) (hereinafter, Gibson & Feighery). 19. On this crucial Governing Council decision (taken on Sept. 20, 1998, U.N. doc. S/AC.26/SR.81, paragraph 20), see Peter H. Sand, Compensation for Environmental Damage from the 1991 Gulf War, 35 Envl Pol’y & L. 244, 246–48 (2005); and Chapter 8 in this volume, text at note 8. Cf. Protecting Public Health and the Environment: Implementing the Precautionary Principle (C. Raffensperger & J. Tickner eds., Island Press, Washington/ D.C. 1999); Peter H. Sand, The Precautionary Principle: Coping with Risk, 40:1 Indian Journal of International Law 1 (2000); Arie Trouwborst, Evolution and Status of the Precautionary Principle in International Law (Kluwer Law International, The Hague 2002); and Jonathan Wiener, Precaution, in Oxford Handbook of International Environmental Law 597 (D. Bodansky J. Brunnée, & E. Hey eds., Oxford University Press: Oxford 2007). 20. See Fifth “F4” Report, para. 293; the F4 Panel deferred to the Governing Council in this regard. According to Boisson de Chazournes & Campanelli (note 1, supra), 14, “this is the first time in the history of claims commissions that costs incurred in collecting the evidence necessary for the submission of claims were deemed compensable.” It should be noted, however, that the reasonable costs of damage assessments have long been recognized as compensable under national environmental legislation; e.g., see section 101(16) of the U.S. Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seq. (CERCLA, 1980, as amended), or sections 1001(5) and 1002(b)(2) of the U.S. Oil Pollution Act, 33 U.S.C. 2701 et seq. (OPA, 1990). See also Olufemi Elias, The UN Compensation Commission and Liability for the Costs of Monitoring and Assessment of Environmental Damage, in Issues of State Responsibility Before International Judicial Institutions 219 (M. Fitzmaurice & D. Sarooshi eds., Hart Publishing, Oxford 2004) (hereinafter, Elias 2004); and Allen, Chapter 6 in this volume, text at note 85. 21. First “F4” Report, para. 34; and see generally Samira S. Omar et al., Critical Assessment of the Environmental Consequences of the Invasion of Kuwait, the Gulf War, and the Aftermath, in Environmental Consequences of War and Aftermath 141 (T. A. Kassim & D. Barceló eds., Springer, New York 2009).
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 177 ]
to determine which kind of measures were required to reestablish the relative environmental integrity of the region, and to prevent imminent future damage, including damage to natural resources of common interest (such as the global atmosphere, international marine resources, and migratory species). The only way to ascertain—or eventually to exclude—such risks with any degree of certainty was to generate the missing data by a concerted effort involving the states most directly affected. To begin with, given the overriding community interest in guarding against environmental and health risks, the criteria applied by the F4 Panel in its review of monitoring and assessment (M&A) claims differed from those applied to substantive damage claims.22 Recognizing that such claims for precautionary programs inevitably had to be reviewed and awarded at a point in time where full evidence of environmental harm attributable to Iraq was not yet available,23 the Panel did not require conclusive proof, but instead formulated a set of prima facie criteria to determine the reasonableness of the M&A activities proposed and their nexus with environmental damage or risks created by Iraq, while excluding purely theoretical or speculative risks.24 In assessing the strength of the nexus, the Panel considered, inter alia: (a) whether there was a possibility of damage or depletion as judged by the plausibility that pollutants released in the invasion could have impacted the claimant states’ territories; (b) whether the particular areas to be studied could have been affected as determined by examining possible pathways and media for transport of pollutants; (c) whether there was evidence of environmental damage or risk of such damage; and (d) whether there was a reasonable prospect that the M&A activity would produce results that could assist the Panel in reviewing a related subsequent substantive claim.25 Nor were the objectives of monitoring and assessment limited to the sole discovery of “positive” environmental damage or risk. As stated by the Panel, the possibility that a monitoring and assessment activity might not establish conclusively that environmental damage has been caused is not necessarily a valid reason for rejecting a claim for expenses resulting from that activity. In the view of the Panel, a monitoring and assessment activity could be of benefit even if the results generated by the activity establish that no damage has been caused. The same may be the case where the results indicate that damage has occurred but that it is not feasible or advisable to
22. See especially the discussion in Sand & Hammitt, Chapter 8, in this volume, text at notes 22–23 and 115–16. 23. First “F4” Report, paras. 29, 61, 377, and 503. 24. First “F4” Report, para. 30; see also Fifth “F4” Report, para. 303; and Chapter 8 in this volume, text at note 22. E.g., a proposal by Iran for long-term monitoring of damage to agricultural resources (cost at US$50 million) was rejected by the panel as unsubstantiated; see Fifth “F4” Report, paras. 127–29. 25. First “F4” Report, para. 31; Caron 2004 (note 9, supra), 400.
[ 178 ]
Jurisprudence and Policy Issues
undertake measures of remediation or restoration. Confirmation that no damage has been caused or that measures of remediation or restoration are not possible or advisable in the circumstances could assist the Panel in reviewing related substantive claims. It could also be beneficial in alleviating the concerns of Claimants regarding potential risks of damage, and help to avoid unnecessary and wasteful measures to deal with non-existent or negligible risks.26
Accordingly, the results of M&A projects awarded (amounting to a total of US$243.5 million)27 frequently led to amendments of subsequent substantive damage claims by claimant states,28 in several cases decreasing the amounts of compensation claimed,29 in other cases increasing them.30 On the other hand, the M&A activities so approved by the Panel did not necessarily have to be connected to any particular claim of substantive environmental damage. In certain circumstances, the Panel recommended awards of compensation for monitoring and assessment programs even though the results of the programs would predictably not become available in time for use in the review of any substantive claims, or would not be needed for any such review.31 The Panel thus affirmed the responsibility of Iraq for compensating even “stand-alone” long-term monitoring programs to guard against future environmental harm that could reasonably be anticipated as attributable to
26. First “F4” Report, para. 32; see Heiskanen (note 12, supra), 353 n. 301. 27. First “F4” Report, para. 779 (table 14), and Fifth “F4” Report, para. 310 (table 6); cf. Caron 2004 (note 9, supra), 406 (table 17.2). 28. On the admissibility of such amendments, see generally Third “F4” Report, paras. 30–32 (43 I.L.M. 712), Fourth “F4” Report, part 1, paras. 34–36, Fourth “F4” Report, part 2, paras. 32–33, and Fifth “F4” Report, paras. 33–35; on the use of M&A results in subsequent substantive claims for public health damage in particular, see Chapter 8 in this volume, text at notes 36, 38, 42, 46, 49, 55, and 72. 29. See Third “F4” Report paras. 84 and 169 (43 I.L.M. 718 and 727), Fourth “F4” Report, part 1, paras. 158 and 301; and Fifth “F4” Report, paras. 102, 476 and 754. 30. See Third “F4” Report, paras. 63 and 190 (43 I.L.M. 716 and 731); Fourth “F4” Report, part 1, paras. 103, 192, and 243; Fourth “F4” Report, part 2, para. 52; and Fifth “F4” Report, paras. 226, 491, and 684. 31. First “F4” Report, para. 40; Fifth “F4” Report, para. 93; Elias 2004 (note 21, supra), 226; and Chapter 8 in this volume, text at note 26. The UNCC formally rejected as erroneous the criticism expressed in a subsequent audit report by the UN Office of Internal Oversight Services to the effect that some F4 awards for long-term public health monitoring were unrelated to substantive claims for compensation of health damage; see OIOS Audit Report No. AF2005/820/01 ( June 8, 2005), paras. 84–87; Ronald J. Bettauer, Policy Issues Surrounding the Creation and Operations of the UNCC, Chapter 2 in Gibson & Feighery (note 18, supra), part IV; and the Opinion of the Legal Counsel of the United Nations (Nov. 27, 2002) concerning the proper scope of OIOS audit of the UNCC, available at http://web.archive.org/ web/20051208062126/http://www2.unog.ch/uncc/auditdocs/opinion.pdf, at 8 (“It would not be proper for OIOS to review those aspects of the work of panels which are constituent elements of a legal process”). See also Payne, Chapter 1 in this volume, text at notes 101–106.
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 179 ]
the 1991 Gulf War,32 so long as such programs were otherwise appropriate in terms of methodology, technical quality, and cost estimates.33
III. QUANTIFICATION OF ECOLOGICAL LOSSES
Whereas the preparatory UNEP Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities in 1996 had made a valiant effort to circumscribe and distinguish the UN Security Council’s terms “environmental damage” and “depletion of natural resources,”34 the F4 Panel opted for a broad pragmatic interpretation instead, in recognition of the fact that claimants in some cases had used both terms interchangeably,35 and taking the definitions by the UNCC Governing Council as non-exhaustive guidance.36 This comprehensive approach to the scope of the compensable losses had important implications for the recognition of (a) “pure” ecological loss; (b) temporary loss of resource use; (c) loss valuation by modeling; and (d) compensation for irreparable loss.
A. “Pure” Ecological Loss
Unlike the International Oil Pollution Compensation Funds since 1980,37 and some of the international conventions on civil liability and compensation for oil
32. See, e.g., First “F4” Report, paras. 523–28 (US$7,278,268 awarded to Kuwait), paras. 694–701 (US$7,162,958 awarded to Saudi Arabia), and Fifth “F4” Report, paras. 394–10 (US$332,000 awarded to Iran). 33. E.g., when rejecting a US$100 million long-term epidemiological study and medical screening program proposed by Kuwait to identify potential additional Gulf War–related health risks, the Panel acknowledged the scientific merits of the proposal but found the information submitted by the Claimant insufficient for evaluating the technical merits of the program and assessing the costs claimed; Fifth “F4” Report, para. 530, and Chapter 8 in this volume, note 27. 34. See the conclusions in Liability and Compensation for Environmental Damage: Compilation of Documents 119, 122–25 (A. Timoshenko ed., United Nations Environment Programme, Nairobi 1998) (hereinafter, Timoshenko); and Judy S. Becker, Valuing the Depletion of Natural Resources under International Law, 6 Review of European Community and International Environmental Law 181 (1997). 35. See Kazazi 2002 (note 3, supra), 116; Boisson de Chazournes & Campanelli (note 1, supra), 13 n. 50; and Allen, Chapter 6 in this volume, text at notes 58–63. 36. See Governing Council Decision 7, S/AC.25/1991/7/Rev.1 (Nov. 28, 1991, as revised Mar. 17, 1992), para. 35; Second “F4” Report, paras. 22–23, and Fifth “F4” Report, paras. 28, 67–68; cf. Gautier (note 1, supra), 199–202. 37. Assembly of the International Oil Pollution Compensation Fund (IOPC), Resolution 3 on Pollution Damage (Oct. 17, 1980), IOPC Doc. FUND.A/ES 1/13, para. 11(a). See Edward H. P. Brans, Liability for Damage to Public Natural Resources: Standing, Damage,
[ 180 ]
Jurisprudence and Policy Issues
pollution since 1992,38 the UNCC Governing Council did not exclude compensation for damage to natural resources without commercial value (so-called “pure” ecological loss). In the Panel’s view, there was nothing in the language or context of Security Council Resolution 687 (1991) or Governing Council Decision 7 that mandated or suggested an interpretation restricting the term “environmental damage” to damage to natural resources which have commercial value;39 and there was no justification for the contention that general international law precluded compensation for “pure” environmental damage.40
B. Temporary Loss of Resource Use
By the same token, the F4 Panel did not limit compensation to losses of a permanent nature. Even where the quality of the environment or a natural resource was subsequently restored through natural means or with the assistance of active remediation,41 the Panel felt that a claimant’s intermittent deprivation or reduction of the use of a resource was compensable where the temporary loss was adequately documented and attributable to Iraq’s invasion and occupation of Kuwait. Refuting Iraq’s argument that such “interim losses” should only be recognized for resources “which are traded in the market” (such as agricultural crops, or fisheries), the Panel saw no reason to deny compensation solely on the ground that the effects of an environmental loss were not permanent.42
and Damage Assessment 132 (Kluwer Law International, The Hague 2001); and Gautier (note 1, supra), 204. 38. See Dramé Ibrahima, Recovering Damage to the Environment per se Following an Oil Spill: The Shadows and Lights of the Civil Liability and Fund Conventions of 1992, 14 Review of European and International Environmental Law 63 (2005); and Marine Resource Damage Assessment: Liability and Compensation for Environmental Damage (F. Maes ed., Springer, New York 2005). 39. Fifth “F4” Report, para. 55. 40. Fifth “F4” Report, para. 58, rejecting Iraq’s argument (presented at the UNCC oral proceedings in Geneva on Sept. 15, 2004 by the respondent’s expert consultant, Professor Philippe Sands) that “awarding compensation for any such claim . . . would constitute a revolutionary change in international law” (id. para. 47); see Gautier (note 1, supra), 209. 41. See, e.g., Hans-Jörg Barth, The 1991 Gulf War Oil Spill: Its Ecological Effects and Recovery Rates of Intertidal Ecosystems at the Saudi Arabian Gulf Coast: Results of a 10-Year Monitoring Period (Habilitation Thesis, University of Regensburg 2002); David Alan Jones et al., The Impact of the Gulf War (1990–91) Oil Release Upon the Intertidal Gulf Coast Line of Saudi Arabia and Subsequent Recovery, in Protecting the Gulf’s Marine Ecosystems from Pollution 237 (A.H. Abuzinada et al. eds, Birkhäuser Verlag, Basel 2007); and Thomas Höpner & Khalid Ali Al-Shaikh, Shoreline Bioremediation after the 1991 Gulf War Oil Spill, id., 265. 42. Fifth “F4” Report, paras. 45, 52, 56–57; see Cymie Payne, UN Commission Awards Compensation for Environmental and Public Health Damage from 1990–91 Gulf War, Am. Soc’y Int’l L.: Insights (Aug. 10, 2005) (hereinafter, Payne), and James Harrison, Significant International Environmental Law Cases, 18 J. Envtl L. 505, 514 (2006) (hereinafter,
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 181 ]
C. Loss Valuation by Modeling
Among the most contentious issues before the F4 Panel was the economic valuation of losses claimed on the basis of mathematical calculations rather than actual proof of resource depletion or physical harm. The claimants relied on a variety of computer models for this purpose, over vehement objections by Iraq arguing that such “abstract and theoretical methodologies” were “shot through with uncertainty.”43 Citing the 1941 Trail Smelter case in support,44 however, and paraphrasing language from the 1928 Chorzów Factory case,45 the Panel affirmed that in the absence of precise rules or prescriptions on the methods for evaluating damage, courts and tribunals are entitled and required to evaluate damage and determine appropriate compensation relying on general principles for guidance, particularly the principle that reparation must, as far as possible, wipe out all the consequences of the illegal act.46
Accordingly, the Panel considered “habitat equivalency analysis” (HEA) an appropriate method for determining the nature and extent of compensatory restoration that is necessary in order to make up for the loss of ecological services that were provided by the resources before they were damaged; e.g., of rangeland wildlife habitats in Jordan, Kuwait, and Saudi Arabia.47 HEA was thus accepted for quantifying the loss of terrestrial and coastal marine resources, for determining the size of compensatory projects, and for estimating the expected costs and benefits from such projects.48 By contrast, the Panel discarded Iran’s theoretical
Harrison 2006). E.g., temporary ecological service losses to Saudi Arabia’s polluted intertidal shoreline habitats were addressed by way of compensatory projects; see note 57 infra. 43. Fifth “F4” Report, para. 74. 44. Trail Smelter Arbitration (United States v. Canada), 3 Report of International Arbitral Awards 1911, 1920 (1941). 45. Case concerning the Factory at Chorzów (Germany v. Poland), Permanent Court of International Justice Series A (No. 17) 47 (1928); cf. James Crawford, Commentary on Articles 31 and 36(2) of the ILC Draft Articles (note 8, supra, 223–24, 227, 251), who cites both the Chorzów Factory case and UNCC practice in support. 46. Fifth “F4” Report, para. 80; Gautier (note 1, supra), 210. 47. Fifth “F4” Report, paras. 356 ( Jordan’s claim of US$2.4 billion was ultimately valued differently, at the cost of a cooperative management program amounting to US$160.3 million), 424, 442–56 (Kuwait’s claim of US$17 million, calculated in “discounted service hectare years,” DSHY, was ultimately reduced to an award of US$7.9 million), and 660–63 (Saudi Arabia’s claim of US$127 billion was ultimately rejected as insufficiently costed and taking into account other compensatory projects for shoreline preserves; see note 53 infra); Harrison 2006 (note 42, supra), 514. Saudi Arabia also applied HEA to a claim of US$956.9 million for damage to its terrestrial desert environment; while accepting the use of HEA as appropriate, the Panel denied the claim in light of an earlier remediation award for terrestrial resources (US$618.9 million); Fifth “F4” Report, paras. 606–10, and Fourth “F4” Report, part 1, para. 291. 48. First “F4” Report, para. 338, and Fifth “F4” Report, para. 420; see on HEA, generally Fifth “F4” Report, paras. 73–81, and Huguenin et al., Chapter 3, in this volume; Carol A.
[ 182 ]
Jurisprudence and Policy Issues
computation of ecological service losses for depleted rangelands as an overestimate, and instead applied alternative cost estimates based on commercial fodder prices.49 The Panel also accepted, in principle, the use of models for calculating the loss of aquatic biota (including commercially valuable species of finfish and shrimp); i.e., a Model for the Assessment and Remediation of Sediment (MARS) and an Oil Spill Contingency and Response Model (OSCAR).50 However, it considered Kuwait’s application of the model to war-related oil spills insufficient to meet UNCC evidentiary standards, in view of substantial and unquantifiable uncertainties in input values and in the validation of estimates.51 The Panel similarly rejected Saudi Arabia’s claims for compensation based on the estimated numbers of migratory birds and marine mammals, calculated by a theoretical U.S. unit cost for restocking,52 as well as purely statistical quantifications of increased mortality attributed to air pollution from the Gulf War;53 and considered retrospective “contingent valuation” and “travel cost” surveys inadequate for quantifying Kuwait’s and Saudi Arabia’s alleged loss of recreational shoreline uses.54
Jones & Katherine A. Pease, Restoration-Based Measures in Natural Resources Liability Statutes, 15 Contemporary Economic Policy 111 (1997); and Richard W. Dunford et al., The Use of Habitat Equivalency Analysis in Natural Resource Damage Assessments, 48 Ecological Economics 49 (2004). Cf. Allen, Chapter 6 in this volume, text at notes 130–136. 49. Fifth “F4” Report, paras. 175–81 (US$1.5 million claimed, US$46,596 awarded); see Payne (note 42, supra). Iran had based its calculations on Robert Costanza et al., The Value of the World’s Ecosystem Services and Natural Capital, 387:6630 Nature 253 (1997), but grossly overestimated the area affected by refugee influx and failed to take other factors such as uncontrolled grazing into account; see also Chapter 3 in this volume, and Gautier (note 1, supra), 208. 50. MARS was described as a three-dimensional hydrodynamics model to compute the movement of water masses, at Gulf scale and in the Kuwait marine area, as driven by wind, tide, fresh water inflow, and density gradients; OSCAR included an oil spill/physical fates submodel to estimate the distribution of contaminants on the water surface, on shorelines, in the water column, and in sediments, as well as exposure and population submodels to estimate the effects of contaminants on biota; Fifth “F4” Report, para. 434 (notes 71–72). Cf. Mark Reed et al., Quantitative Analysis of Alternate Oil Spill Response Strategies Using OSCAR, 2 Spill Science and Technology Bulletin 67 (1995); and Ferdi L. Hellweger, Measuring and Modeling Large-Scale Pollutant Dispersion in Surface Waters, in Collection Systems: 2005 Proceedings of the Water Environment Federation 812–35 (WEFTEC, Alexandria/ Va. 2005). 51. Fifth “F4” Report, paras. 439–41 (US$574.2 million claimed and denied). 52. Fifth “F4” Report, paras. 650–63 (US$127 million claimed and denied). Saudi Arabia’s calculations were based on a “Primary Restoration Guidance Document for Natural Resource Damage Assessment” under the 1990 U.S. Oil Pollution Act, issued by the National Oceanic and Atmospheric Administration (NOAA, 1996). 53. Fifth “F4” Report, paras. 712 and 715 (US$5.5 billion claimed and denied); and Chapter 8 in this volume, text at notes 50–55. 54. First “F4” Report, paras. 444–50, 489–93, and 584–87 (US$578,000 claimed by Kuwait and US$693,000 by Saudi Arabia, for studies of “lost recreational opportunities”); and Fifth “F4” Report, paras. 457–65 (US$23 million claimed by Kuwait for compensation of lost recreational opportunities); see also Huguenin et al., Chapter 3, and Allen, Chapter 6 in
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 183 ]
D. Compensatory Projects
The F4 Panel had previously defined the primary objective of remediation as “restoring the environment to pre-invasion conditions, in terms of its overall ecological functioning rather than on the removal of specific contaminants or restoration of the environment to a particular physical condition.”55 Hence, in the event of ecological services that were irreversibly lost in the wake of the 1990–1991 Gulf War (i.e., the Humpty-Dumpty type of casualties),56 the only practicable remediation was to provide victim countries with new ecological services that would be roughly equivalent in value. The outcome, therefore, was three “compensatory projects” as outlined and modified in the technical annexes to the Panel’s final report,57 which—instead of rewarding claimants with windfall treasury revenues—were targeted at specific environmental improvement measures in Jordan, Kuwait, and Saudi Arabia.58
this volume, text at notes 130-136. On the difficulties with contingent valuation in U.S. environmental law, see Contingent Valuation: A Critical Assessment ( J. A. Hausman ed., North Holland, Amsterdam 1993); Jeffrey C. Dobbins, The Pain and Suffering of Environmental Loss: Using Contingent Valuation to Estimate Nonuse Damages, 43:4 Duke L.J. 879 (1994); Brian R. Binger et al., The Use of Contingent Valuation Methodology in Natural Resource Damage Assessments: Legal Fact and Economic Fiction, 89:3 Nw. U. L. Rev. 1029 (1995); Thomas J. Schoenbaum, Environmental Damages: The Emerging Law in the United States, in Harm to the Environment: The Right to Compensation and the Assessment of Damages 159, 166–67 (P. Wetterstein ed., Clarendon Press, Oxford 1997); Handbook on Contingent Valuation (A. Alberini & J. R. Kahn eds., Edward Elgar Publishing, Cheltenham 2006); Arif Ali & Marguerite Walter, Principles of Valuation taken from the UNCC Practice, Chapter 5 in Gibson & Feighery (note 18, supra) . Cf. GE v. United States DOC, 128 F.3d 767, 327 U.S. App. D.C. 33, 1997 U.S. App. LEXIS 32195, 45 Envtl Rep. Cas. (BNA) 1609, 28 Envtl. L. Rep. 20263 (1997) (approving use of contingent valuation and discussing controversy over its use). 55. Third “F4” Report, para. 48 (43 I.L.M. 714), reiterated in Fourth “F4” Report, part 1, para. 50, Fourth “F4” Report, part 2, para. 41, and Fifth “F4” Report, para. 43; see the comments by Julia Klee, Symposium: The International Responses to the Environmental Impacts of War, 17 Geo. Int’l Envtl L. Rev. 598, 603 (2005). 56. See Lewis Carroll [pseudonym of Charles L. Dodgson], Through the Looking Glass (Macmillan, London 1871), chapter VI (“all the king’s horses and all the king’s men couldn’t put Humpty together again”). 57. Fifth “F4” Report paras. 362, 451, 630–32, and Technical Annexes I–III: Jordan’s “compensatory programme for rangeland and habitat losses” (US$160 million awarded, on follow-up see note 86 infra), and Kuwait’s and Saudi Arabia’s “shoreline preserves” (US$8 million and US$46 million awarded). The latter two annexes refer specifically to the IUCN Guidelines for Protected Area Management Categories (IUCN/WCPA-WCMC, Cambridge 1994). See also Rao (note 1, supra), commentary on principle 2(a)(iv) of the ILC Draft, 131 n. 352. Note, however, that the F4 Panel rejected as insufficiently substantiated a number of compensation claims regarding lost or damaged nature conservation areas; e.g., Jordan’s claim (US$62.7 million) concerning its Azraq Oasis, a wetland site listed under the 1971 Ramsar Convention on Wetlands of International Importance, 996 U.N.T.S. 245; see Fifth “F4” Report, paras. 375–82. 58. On the recipients’ accountability for the actual use of the funds so awarded in the interest of the environment, see notes 78–88 infra.
[ 184 ]
Jurisprudence and Policy Issues
IV. INTERNATIONAL ENVIRONMENTAL SOLIDARITY COSTS
Several of the F4 claims may be said to have arisen in the borderland of environmental law and humanitarian law: Iran, Jordan, and Turkey thus claimed compensation for costs related to a huge influx of refugees displaced as a result of the invasion and occupation of Kuwait by Iraq, and the subsequent Gulf War, during the period between August 2, 1990, and March 2, 1991.59 Those claims were for (a) costs of healthcare and incremental medical problems,60 and (b) costs of environmental degradation and incremental pollution alleged to have been caused by the refugees.61 While the Panel awarded compensation for humanitarian medical assistance provided to refugees in Iran,62 and for refugee-related damage to groundwater and rangeland resources in Jordan,63 other claims (including alleged refugee damage to forest resources in Turkey) were denied for lack of sufficient evidence.64 In addition to claims by countries in the wider Gulf region, the UNCC received claims from six other governments (Australia, Canada, Germany, Netherlands, United Kingdom, and United States) for reimbursement of costs that they had incurred in assisting Gulf countries in the abatement and prevention of environmental damage resulting from the 1990–1991 conflict, such as the provision of technical experts and equipment for oil spill control. In its second report, in 2002, the Panel held that to the extent such assistance was provided for the predominant purpose “to respond to environmental damage or threat of damage to the environment or to public health in the interest of the general population,”65 the costs of such assistance were compensable by the UNCC, as distinct from the costs of military operations against Iraq, which were not reimbursable.66 In light also of the specific appeals for assistance that had been made for this purpose by the UN General Assembly and other international bodies as well as by victim countries,
59. While this was the time period accepted for eligible claims by several UNCC panels, Jordan defined refugees as all those people, of whatever nationality, who entered the country from Iraq and Kuwait as a direct result of the conflict between August 2, 1990 and September 1, 1991; see First “F4” Report, para. 297, and Fifth “F4” Report, para. 313. 60. See Sand & Hammitt, Chapter 8 in this volume, text at notes 80 and 88–90. 61. See Fourth “F4” Report, part 1, paras. 351–56 (Turkey); Fifth “F4” Report, paras. 171–74 (Iran), 312–14 ( Jordan), and 766–67 (Turkey). 62. See Fifth “F4” report, paras. 175–84: of a total of US$2.2 million claimed, US$46,596 awarded. 63. See Fifth “F4” Report, paras. 318–409: of a total of US$5.2 billion claimed, US$161,926,734 awarded. 64. See Fifth “F4” Report, paras. 766–70: US$5.4 million denied (cf. Fourth “F4” Report, part 1, note 62, supra). 65. Second “F4” Report, paras. 29 and 32–35. 66. UNCC Governing Council Decision 19, S/AC.26/Dec.19 (Mar. 24, 1994), expressly excluded compensation for the costs of the Allied Coalition Forces; see Heiskanen (note 12, supra), 340. Accordingly, the F4 Panel rejected a US$1.9 million claim by the Netherlands for two tugboats sent to the Gulf “in support of Operation Desert Shield”; Second “F4” Report, paras. 274–77.
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 185 ]
the Panel therefore recommended compensation in the amount of US$8.3 million for this special category of extra-regional claims,67 which may indeed be characterized as “environmental solidarity costs” to the international community.68
V. ENVIRONMENTAL DAMAGE MITIGATION AND CONTAINMENT
The F4 Panel repeatedly stressed its view that claimant countries also had a duty to mitigate and contain environmental damage to the extent possible and reasonable in the circumstances, and that this duty is “a necessary consequence of the common concern for the protection and conservation of the environment, and entails obligations towards the international community and future generations.”69 Hence, in several cases where claimant governments themselves had failed to take the necessary managerial measures to prevent aggravation of environmental damage, the Panel either denied compensation for entire units of claims,70 or reduced the amount of compensation so as to take account of the possibility that some of the damage was due to factors not attributable to Iraq.71 In other cases, however, the Panel expressly rejected the contention by Iraq that claimants had failed to mitigate the damage (for example, alleged delays in extinguishing the Kuwait oil well fires), and instead confirmed that mitigation measures had been reasonable and adequate.72
67. Second “F4” Report, para. 347, table 1; see Christine Langenfeld & Petra Minnerop, Environmental Liability Provisions in International Law, in Environmental Liability in International Law: Towards a Coherent Concept (R. Wolfrum, C. Langenfeld & P. Minnerop eds., Erich Schmidt Verlag, Berlin 2005), 3, 147, 153. 68. On the concept of solidarity as a principle of international environmental law, see Katrin Frauenkron, Das Solidaritätsprinzip im Umweltvölkerrecht 410 (Duncker & Humblot, Berlin 2008); cf. Rüdiger Wolfrum & Chie Kojima, Solidarity: A Structural Principle of International Law (Springer, Heidelberg 2010). 69. Third “F4” Report, paras. 42–43 (43 I.L.M. 713); Fourth “F4” Report, part 2, para. 38 (reprinted in 43 I.L.M. 704); Fifth “F4” Report, paras. 40–41; see James Harrison, Significant International Environmental Law Cases 2004, 17 J. Envtl L. 447, 451 (2005) (hereinafter, Harrison 2005). On the claimants’ general duty of mitigation, see (for business losses) UNCC Governing Council Decision 15, S/AC.26/1992/15 ( Jan. 4, 1992) para. 9(d); see also Caron 2000 (note 10, supra) at 259, on the “duties of the agent to consider mitigation and restoration.” 70. Inadequate management of ordnance sites (“breaking the chain of causation”) by Kuwait, Fourth “F4” Report, part 1, paras. 206 and 216 (total amount claimed and denied: US$653.8 million); see Harrison 2005 (note 69, supra) 453, and the comments by John Lonsberg, International Claims Litigation II: A Case Study on the UNCC, 99th Proceedings of the American Society of International Law 325, 336 (2005). 71. Uncontrolled livestock grazing in Iran and Saudi Arabia; Fourth “F4” Report, part 1, paras. 76(c) and 279, 289(b). See also note 49, supra. 72. Third “F4” Report, paras. 72–73 (US$41.5 million awarded to Kuwait), 43 I.L.M. 717 (2004); and Fourth “F4” Report, part 2, para. 72 (US$1.9 billion awarded to Kuwait).
[ 186 ]
Jurisprudence and Policy Issues
Similarly, the Panel emphasized that claimant governments proposing or taking action to remedy environmental damage were duty-bound to avoid potential negative side-effects,73 and to observe their own international commitments to principles of nature conservation. In its third report, in 2003, the F4 Panel—paraphrasing language from the 1972 Stockholm Declaration and the 1992 Rio Declaration—stated that “claimants have the obligation under international law to ensure that the remediation measures that they take do not cause damage to the environment in other States or in areas beyond the limits of national jurisdiction.”74 The claimants’ obligation to consider potential “transboundary effects” of remediation or compensatory measures was reiterated in the fourth and fifth F4 Reports.75 Consequently, the Panel rejected claims for remediation projects that themselves posed serious environmental risks, such as the release of genetically modified bacteria to combat marine pollution in Iran;76 and recommended alternative remediation methods so as to avoid substantial environmental harm from a coastal excavation program proposed by Saudi Arabia.77
VI. POST-AWARD ACCOUNTABILITY
When the UNCC Governing Council approved the first sixty-nine environmental monitoring and assessment claims in 2001, it requested the F4 Panel to undertake
73. See Third “F4” Report, paras. 128 and 181 (43 I.L.M. 729); Fourth “F4” Report, part 2, paras. 41 and 89; Fifth “F4” Report, paras. 40 and 43; and the Introduction to the Technical Annexes, sub-paras. 4(a)–(b). There was evidence that in some cases, large-scale cleanup operations increased damage; see Olof Lindén & Tariq Husain, Impact of Wars: The Gulf War 1990–91, in The Gulf Ecosystem: Health and Sustainability 279 (N. Y. Khan, M. Munawar & A. R. G. Price eds., Backhuys, Leiden 2002). 74. Third “F4” Report, para. 50, and Introduction to Technical Annexes, para. 4(g), 43 I.L.M. 714 and 733 (2004); cf. Principle 21 of the Stockholm Declaration, UN Conference on the Human Environment, and Principle 2 of the Rio Declaration, UN Conference on Environment and Development; 11 I.L.M. 1416 (1972) 1416, and 31 I.L.M. 874 (1992). Curiously, the UNCC never received any claims for environmental damage in areas beyond national territorial waters, even though such claims would theoretically have been conceivable; see Laurence Boisson de Chazournes, Right of a State or International Organization to Bring a Claim, in Timoshenko (note 34, supra), 93–95; Mahmoud Y. Abdulraheem, War-related Damage to the Marine Environment in the ROPME Sea Area, in The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives 338 ( J. E. Austin & C. E. Bruch eds., Cambridge University Press, Cambridge 2000); Mariano Aznar-Gomez, Environmental Damages and the 1991 Gulf War: Some Yardsticks before the UNCC, 14 Leiden Journal of International Law 301, 331 (2001); and Andrea Gattini, Le riparazioni di guerra nel diritto internazionale 468, 545 (CEDAM, Milan 2003) (hereinafter, Gattini). 75. Para. 4(g), Introduction to the Technical Annexes, Fourth “F4” Report, part 2, and Fifth “F4” Report; see also Elias 2003 (note 7, supra), 67, 88. 76. First “F4” Report, paras. 169–77 (US$826,000 claimed); see Gattini (note 75, supra), 469; Caron 2004 (note 9, supra), 405; Elias 2003 (note 7, supra), 88; and Gautier (note 1, supra), 204. 77. Third “F4” Report, paras. 181–87, 43 I.L.M. 729 (2004); see Gautier (note 1, supra), 207 n. 114, and Harrison 2005 (note 69, supra), 452.
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 187 ]
a periodic review of progress reports from recipient governments in order to ensure that the funds awarded were spent “on conducting the environmental monitoring and assessment activities in a transparent and appropriate manner and that the funded projects remain reasonable monitoring and assessment activities.”78 For that purpose, the Panel set up a special tracking scheme with periodic progress reports submitted by the governments concerned for each M&A project. Pursuant to a UNCC-UNEP “Memorandum of Understanding” of August 5, 2002, UNEP’s Geneva-based Post-Conflict Assessment Branch carried out, with UNCC funding, regular external reviews of the technical quality of all M&A progress reports.79 The results of these reviews—together with the UNCC Secretariat’s internal financial review of project expenditures—served as a basis for eight “tracking reports” from the F4 Panel to the Governing Council between 2002 and 2005.80 From December 2003 onward, the Governing Council extended the tracking requirement from M&A projects to awards for “environmental remediation activities” as well, though without specifying a supervisory mechanism for that category as yet.81 In September 2005, a joint regional meeting held in Kuwait between the principal claimants and Iraq recommended a general tracking scheme—to be funded by the claimant governments—for implementation of all environmental UNCC awards, on the basis of common guidelines to be approved by the UNCC Governing Council. On December 8, 2005, the Governing Council by Decision 258 adopted a detailed set of Guidelines for the Follow-up Programme for Environmental Awards, which provide for, inter alia:82 • half-yearly progress reports to the Governing Council from the recipient governments, through “independent reviewers” (rather than mere self-reporting), on compliance with agreed environmental and financial auditing standards in their use of the funds;
78. UNCC Governing Council Decision 132 ( June 21, 2001), para. 6, and Caron 2004 (note 9, supra), 414; on the “tracking” process, see Chapters 2 and 5 in this volume. 79. See UNEP doc. GC.23/INF/20 (Dec. 14, 2004), paras. 90–96. 80. Summarized in Fifth “F4” Report, paras. 781–782. 81. Para. 5 of UNCC Governing Council Decisions 212 (2003), 234 and 235 (2004), and 248 (2005). 82. Decision 258 concerning Follow-up Programme for Environmental Claims Awards, taken by the Governing Council of the United Nations Compensation Commission at its 150th meeting on Dec. 8, 2005, S/AC.26/258 (2005), reprinted in 35 Environmental Policy and Law 276 (2005) and in the Appendices to this volume; see Mojtaba Kazazi, The UNCC Follow-up Programme for Environmental Awards, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 1109–29 (T. M. Ndiaye & R. Wolfrum eds., Nijhoff, Leiden 2007) (hereinafter, Kazazi 2007). For a recent update, see the report of the Secretary-General to the Security Council pursuant to para. 5 of Resolution 1859 (2008), Overview of relevant facts: compensation to be paid by Iraq as arising from section E of Security Council Resolution 687 (1991), UN Doc. S/2009/385 ( July 27, 2009) 1–4; and Payne, Chapter 5 in this volume.
[ 188 ]
Jurisprudence and Policy Issues
• assessment and verification of reports (potentially including site inspections) by the UNCC Secretariat with the assistance of external experts, and an option for the Governing Council to take further steps in the event of implementation activities found to be “unreasonable” on procedural, financial, or environmental grounds; • withholding of a 15 percent portion from final disbursements until satisfactory completion of the environmental projects concerned, and “phased” disbursement (rather than mere lump-sum payments) for long-term project awards exceeding US$50 million.83 Furthermore, the Governing Council by Decision 266 (29 April 2009) directed the Secretariat to withhold an additional amount equivalent to 10 percent of the value of each of the five “phased project awards,” to be released in accordance with approved phasing plans and subject to further decision by the Governing Council; and by Decision 267 (November 12, 2009) authorized participating governments to use accrued interest from the special accounts established for the implementation of environmental projects.84 The post-award control scheme so established was indeed a singular innovation in claims proceedings, reflecting—once again—the claimants’ fiduciary accountability as public trustees or agents for general environmental community interests,85 and resulting in effective international cooperation for local restoration projects which are beginning to show tangible progress,86 even though the data exchange process continues to be beset by mutual national jealousies. The five governments participating in the program (Iran, Iraq, Jordan, Kuwait, and Saudi Arabia) also agreed to hold further joint meetings with a view to promoting future environmental rehabilitation in the region as a whole, under the auspices of a Regional Environmental Remediation Advisory Group (RERAG) jointly funded by voluntary
83. Phased disbursement schedules (by “tranches” subject to satisfactory interim reports) are well-established as effective compliance controls for “environmental covenants” in the loan practice of multilateral development banks; see John W. Head, Environmental Conditionality in the Operations of International Development Finance Institutions, 1 Kan. J.L. & Pub. Pol’y 15 (1991); and Ibrahim F.I. Shihata, The World Bank and the Environment: A Legal Perspective, 16 Md. J. Int’l L. & Trade 1 (1992). 84. Decision 266 concerning withholdings and the administration of funds under Decision 258 (2005), S/AC.26/266 (2009); and Decision 267 concerning the payment mechanism and payment of remaining claims, S/AC.26/267 (2009). 85. See notes 9–11, supra; and Caron 2000 (note 10, supra), at 253, suggesting an “institution to be structured to monitor the performance of the agent.” 86. E.g., the “Integrated Badia Ecosystem Restoration Programme” in Jordan (implemented by the Environment Ministry in cooperation with the UNCC Secretariat) initiated its first demonstration projects in 2009, with a total of fifteen projects for sustainable rangeland management planned; see Hana Namrouqa, Badia Restoration Projects to Be Launched in April, Jordan Times, Amman, online Feb. 18, 2009. On the follow-up process in Kuwait and Saudi Arabia, see http://www.kuwaitnfp.com/1.html; Omar et al. (note 22, supra), 163; and Chapter 5 in this volume.
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 189 ]
contributions from all participating countries.87 Thus, the program is not only a milestone in the practice of international environmental claims settlement, but also an innovative effort in multilateral post-conflict cooperation and reconstruction among former enemy states.88
VII. OUTLOOK: TOWARD INSTITUTIONAL CONTINUITY?
Both the jurisprudence and the methodology of the UNCC’s F4 Panel are of direct relevance to more recent cases of catastrophic environmental damage, such as the 2010 oil-spill in the Gulf of Mexico.89 Although it may be too early to evaluate the transboundary impacts of the Deepwater Horizon disaster on common marine resources in the Caribbean, the United States—as a party to the 1983 Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region90—will be accountable, erga omnes partes, if the ongoing investigations establish governmental responsibilities for inadequate regulatory supervision and for environmentally harmful mitigation measures. By the same token, the costs of precautionary monitoring and assessment of long-term risks to the wider Caribbean Sea environment will need to be allocated as part of any compensation regime.91 Another apposite analogy is the environmental damage resulting from Israel’s invasion of Lebanon in 2006. In a series of resolutions from 2006 to 2009, the United Nations General Assembly has thus requested the government of Israel to assume responsibility for prompt and adequate compensation of the oil-spill damage caused by its bombardment of a coastal power station near Tyre/Lebanon on July 14, 2006, which affected the Mediterranean marine environment well beyond Lebanese territorial waters.92 Moreover, the external costs of combating
87. Kazazi 2007 (note 82, supra), at 1127. Two expert workshops organized by RERAG (funded by a US$10 million contribution from the government of Kuwait) took place at Kuwait University in June 2009. 88. Cf. Caron 2004 (note 9, supra), at 415; Kazazi 2007 (note 82, supra), at 1129; and Payne, (note 1, supra). 89. E.g., see Costanza (Chapter 11) and Caron (Chapter 12) in this volume. 90. 22 I.L.M. 221 (1983); see Winston Anderson, The Law of Caribbean Marine Pollution (Kluwer Law International, The Hague 1997); and Benedict Sheehy, International Marine Environment Law: A Case Study in the Wider Caribbean Region, 16 Georgetown International Environmental Law Review, 441-472 (2004). 91. See the “risk discovery costs” allocated by the F4 Panel (notes 22-36, supra). 92. UNGA Resolutions 61/194 (Dec. 20, 2006), 62/188 (Dec. 19, 2007), 63/211 (Dec. 19, 2008), 64/195 (Dec. 21, 2009), and 65/147 (Nov. 18, 2010). An estimated total of 15,000 tonnes of fuel oil were spilled into the Eastern Mediterranean Basin as a result of the bombardment, and another 55,000 tonnes set on fire resulted in a 60 km smoke plume; see Richard Steiner, Lebanon Oil Spill Rapid Assessment and Response Mission: Final Report (IUCN & UNDP, Beirut 2006); and United Nations Environment Programme, Lebanon: Post-Conflict Environmental Assessment 134-143(UNEP, Nairobi 2007),
[ 190 ]
Jurisprudence and Policy Issues
and remedying that oil-spill, incurred by third states acting in response to the General Assembly’s call for foreign assistance in this case,93 are comparable to the legitimate “international solidarity costs” awarded by the UNCC in the 1990-1991 Gulf Conflict.94 In retrospect, the most significant contribution of the UNCC’s F4 Panel to international environmental law may indeed lie in the process rather than in substance; viz., recognition of the axiom that state responsibility for environmental harm is not just a bilateral issue between “tortfeasor” and “victim,” but inevitably involves overriding community interests which are best safeguarded by multilateral institutions and procedures.95 Among the consequences of this realization should indeed be a high degree of openness and transparency of the process,96 as distinct from the confidentiality, which typically (and legitimately) continues to characterize bilateral arbitration proceedings.97 In this regard, the F4 Panel took some cautiously innovative steps, with a total of five “oral proceedings” (a ratio unprecedented in the
134–143. In 2008, the General Assembly established the Eastern Mediterranean Oil Spill Restoration Fund for compensation purposes. See also Aseel A. Takshe, Meg Huby, Sofia Frantzi & Jon C. Lovett, Dealing with Pollution from Conflict: Analysis of Discourses Around the 2006 Lebanon Oil Spill, 91 Journal of Environmental Management 887–896 (2010); and Stephen Zunes, The Other Oil Spill, Foreign Policy in Focus (Washington/D.C., online Sept. 8, 2010). 93. Assistance was provided by Canada, Cyprus, Denmark, Egypt, Finland, France, Germany, Italy, Japan, Kuwait, Monaco, Norway, Spain, Sweden, Switzerland, the United States, the European Union, the League of Arab States, and the Organization of the Petroleum Exporting Countries. According to a 2006 UN Expert Working Group report, the total damage and clean-up costs of the spill were estimated at between US$137-205 million; see the Report of the UN Secretary-General, Oil Slick on Lebanese Shores, UN doc. A/65/278 (Aug. 11, 2010), paragraph 27. 94. Notes 59-68, supra. The United Nations Development Programme (UNDP) recommended to use the UNCC as precedent for compensation arrangements in the Lebanese oilspill case; see the Report of the UN Secretary-General (note 93, supra), paragraph 7. See also UNGA Resolution 65/147 (note 92, supra), paragraph 5. 95. According to the former special rapporteur of the UN International Law Commission on responsibility for transboundary harm, the UNCC procedure may well serve as model for future international claims settlement procedures in this field; Rao (note 1, supra), 177. 96. See also the expert consultants’ conclusions in Chapter 3 in this volume; and with regard to tracking and follow-up programs, Payne, Chapter 5 in this volume. On access to information in contemporary environmental law see Peter H. Sand, Information Disclosure as an Instrument of Environmental Governance, 63 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law 487 (2003); and Peter H. Sand, Information Disclosure, Chapter 13 in The Reality of Precaution: Comparing Risk Regulation in the United States and Europe ( J.B. Wiener, M.D. Rogers, J.K. Hammitt & P.H. Sand eds., Earthscan/Resources for the Future Press, Washington/D.C. 2010). 97. See, e.g., Peter Malanczuk, Confidentiality and Third-Party Participation in Arbitration Proceedings under Bilateral Investment Treaties, 1 Contemporary Asia Arbitration Journal 183 (2008). A famous example of confidentiality is the 1987 Rainbow Warrior Arbitration (Greenpeace v. France), the text of which—at the insistence of the French government—remains secret to this date; see the summary in 33 Annuaire Français de Droit International 923 (1987).
E N V I R O N M E N TA L P R I N C I P L E S A P P L I E D
[ 191 ]
UNCC) held at the Palais des Nations from 2001 to 2004.98 In classical adversarial fashion, though, participation in those proceedings was restricted to representatives of the claimant and respondent governments and their technical advisers.99 Given the broader common interest in the environmental issues addressed by the Panel, it would have seemed logical to open the proceedings to a wider audience, possibly including other “extra-regional” governments and representatives of qualified international and nongovernmental institutions. That ulterior step (which would have transformed the oral proceedings into public hearings) was precluded, however, by the confidentiality principle as formulated in Article 30 of the UNCC Rules for Claims Procedure.100 It will be for future successors of the F4 Panel to consider a possible reconciliation of that principle with overriding community concerns in this field—especially if the idea of a permanent adjudicatory institution in this field, which has already been put forward,101 ever materializes.
98. See Fifth “F4” Report, para. 779. The UNCC practice of oral proceedings (under Article 36 of the Rules, note 2, supra; and Governing Council Decision 114, note 15, supra, Annex para. 21) was largely based on the experience of the Iran-U. S. Claims Tribunal; see Kazazi 1996 (note 12, supra) 162. Note also the near-instant public availability of the F4 reports on the UNCC website, available at http://www.uncc.ch/reports.htm#_F4. 99. As specified in the “Procedural Orders” (Notice of Oral Proceedings) issued by the Panel for each of the hearings. According to Article 36(a) of the Rules (note 2, supra), panels could “invite individuals, corporations or other entities, Governments or international organizations to present their views in oral proceedings.” In the more restrictive formulation of Annex para. 20 of Governing Council Decision 114 (note 15, supra), however, invitations were expressly limited to “parties.” 100. As stated in para. 1 of Article 30 of the Rules (note 2, supra): “Unless otherwise provided in these procedures or decided by the Governing Council, all records received or developed by the Commission will be confidential, but the Secretariat may provide status reports to Governments, international organizations or corporations making claims directly to the Commission in accordance with Article 5, para. 3, regarding claims that they have submitted”; and in para. 2: “Panels will conduct their work in private.” On administrative implementation with regard to UNCC documentation, see the summary by Payne, Guidance for Researchers, in this volume, pp. 281–282. 101. See Mrema et al. (note 1, supra) at 28; Bruch & Fishman, Chapter 9 in this volume. Cf. Robin L. Juni, The United Nations Compensation Commission as a Model for an International Environmental Court, 7 Environmental Lawyer 53 (2000); Rainer Hofmann & Frank Riemann, Background Report for the International Law Association Committee on Compensation for Victims of War 17 (International Law Association, London 2004); Menno T. Kamminga, Towards a Permanent International Claims Commission for Victims of Violations of International Humanitarian Law (Grotius Centre for International Legal Studies, Leiden 2005); and the panel discussion, Has the Time Come for a Permanent War Damage Compensation Commission?, in International Institutional Reform: 2005 Hague Joint Conference on Contemporary Issues of International Law 27 (A. A. Fijalkowska, ed., Cambridge University Press, Cambridge 2007).
[ 192 ]
Jurisprudence and Policy Issues
C HA P TER 8
Public Health Claims PETER H. SAND AND JAMES K . H AMMITT
INTRODUCTION
P
ublic health claims represent a small segment of the “environmental damage” compensated by the UN Compensation Commission (UNCC): Of the total F4 awards of US$5.26 billion, compensation awarded to claimant governments for public health expenditures amounted to US$62.6 million only; i.e., a little over 1 percent. Yet, the specific legal issues that arose in this context, and their comparative novelty in international law and environmental law in particular, would seem to warrant more detailed review in retrospect. The F4 Panel was faced with five types of health-related claims against Iraq, submitted by the five principal claimant governments in the region affected by the 1991 Gulf War (Iran, Jordan, Kuwait, Saudi Arabia, and Syria): (1) claims for their nationals’ loss of lives or reduced quality of life as a result of the environmental damage caused by Iraq (mainly, air pollution from the oil well fires in Kuwait); (2) claims for the public costs of health care for persons suffering from such pollution; (3) claims for the costs of monitoring and assessment for the purpose of investigating and combating the public health risks posed by such environmental pollution; (4) claims for public expenditures in providing health care to foreign refugees from the war areas; and (5) claims for the public costs of medical treatment for persons injured by mines and ordnance left behind after the war.
The overall volume of the claims submitted in these five categories was about US$25 billion; i.e., almost 30 percent of the total amount of compensation claimed before the F4 Panel. Given the complexities and uncertainties of many of these claims, the Panel decided to defer consideration of all substantive public health issues to the very end of its recommendations for compensation, but—in light of a 1998 UNCC Governing Council decision—to give priority to claims for the funding of monitoring and assessment (“M&A,” the third category listed above), so as to reduce the factual and scientific uncertainties as much as possible.1 As a result, most public health M&A claims were dealt with in the very first instalment report of the F4 Panel (presented to the Governing Council at its 40th session in June 2001),2 whereas all substantive public health claims were finalized in the Panel’s very last instalment report only (presented to the Governing Council at its 56th session in June 2005). Following the UNCC Governing Council’s decision to set up a “tracking program” to monitor the actual implementation of environmental project awards,3 most of the public health projects concerned continue to be subject to half-yearly progress reporting by the recipient countries; most recently to the 69th session of the Governing Council (April 29, 2010).4
1. See Report and recommendations made by the Panel of Commissioners concerning the first instalment of “F4” Claims, U.N. Doc. S/AC.26/2001/16 (2001), para. 17 (hereinafter, First “F4” Report); see also Klee, Chapter 2, and Sand, Chapter 7, at note 20, in this volume. 2. The only exception was Iran’s claim for cancer monitoring. Given the latency period of fifteen to twenty years between exposure to carcinogens (in 1991) and expected clinical evidence of cancers, the Panel considered monitoring premature in 2001 and postponed consideration of the claim; see First “F4” Report, para. 290. After the claim was amended (also to include cancer types with shorter latency periods), the revised claim was granted in 2005; see Report and recommendations made by the Panel of Commissioners concerning the fifth instalment of “F4” claims, U.N. Doc. S/AC.26/2005/10 ( June 30, 2005), para. 309 (hereinafter, Fifth “F4” Report). 3. See para. 5 of UNCC Governing Council Decisions 212, S/AC.26/2003/212 (Dec. 18, 2003); 234, S/AC.26/234 and 235, S/AC.26/235 (Dec. 9, 2004); 248, S/AC.26/248 ( June 30, 2005), and especially Decision 258, Follow-up Programme for Environmental Claims Awards, S/AC.26/.258 (Dec. 8, 2005), in the Appendices to this volume; cf. Mojtaba Kazazi, The UNCC Follow-up Programme for Environmental Awards, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 1109 (T. M. Ndiaye & R. Wolfrum eds., Nijhoff, Leiden 2007) (hereinafter, Ndiaye & Wolfrum). For a recent update, see the Report of the UN Secretary-General to the Security Council pursuant to paragraph 5 of Resolution 1859 (2008), Overview of relevant facts: compensation to be paid by Iraq as arising from section E of Security Council Resolution 687 (1991), UN Doc. S/2009/385 ( July 27, 2009), 1–4; see also Payne, Chapter 5, and Sand, Chapter 7, at notes 78–88, in this volume. 4. See the list of public health projects in the table attached as annex I to Decision 258 (note 3, supra, and Chapter 5 in this volume), reprinted in 35 Environmental Policy and Law 276, 281 (2005), and table 8.1, infra; UNCC Press Release PR/2010/5, Governing Council of United Nations Compensation Commission Concludes Its Sixty-Eighth Session (United Nations Office at Geneva, Nov. 12, 2009).
[ 194 ]
Jurisprudence and Policy Issues
I. PUBLIC HEALTH DAMAGE IN THE CONTEXT OF THE F4 PANEL A. Mandate for Public Health Claims
The overall mandate of the F4 Panel, as laid down in the UNCC Governing Council’s Provisional Rules for Claims Procedure (1992),5 was focused on the ascertainment of “environmental damage” attributable to Iraq pursuant to UN Security Council Resolution 687 (1991), as further defined in Governing Council Decision 7 (March 17, 1992).6 In its definition of environmental damage, the Governing Council had included “reasonable monitoring of public health and performing medical screening for the purposes of investigating and combating increased health risks as a result of the environmental damage.”7 That specification is probably the closest the UNCC ever came to endorsing the “precautionary approach” in international environmental law.8 It also is the only explicit reference to public health in the mandate of the F4 Panel. Yet, the Panel repeatedly made it clear that it considered the costs of remedial or preventive public health measures to be included eo ipso in the UNCC’s comprehensive general definition of environmental damage as extending to “all damage and losses related to the environment and any consequences of such damage that can reasonably be attributed directly to Iraq’s invasion and occupation of Kuwait.”9 In this regard, it deliberately departed from the jurisprudence of the International Oil Pollution Compensation Funds (IOPC), which considers claims relating to health risks, anxiety, and loss of environmental amenities “not to fall within the definition of pollution damage.”10
5. Adopted by UNCC Governing Council Decision 10, S/AC.26/1992/10 ( June 26, 1992) (hereinafter, the Rules), reprinted in the Appendices to this volume; see Michael Raboin, The Provisional Rules for Claims Procedures of the United Nations Compensation Commission: A Practical Approach to Mass Claims Proceedings, in The United Nations Compensation Commission: A Handbook, 119 (R. B. Lillich ed., Kluwer Law International, The Hague 1995). 6. S.C. Res. 687 (Apr. 8, 1991), reprinted in 30 I.L.M. 846 (1991) and in the Appendices to this volume; and UNCC Governing Council decisions, reprinted in UNCC, Basic Documents of the United Nations Compensation Commission, UN doc. S/AC.26/ SER.A/1, vol. I (United Nations, Geneva 2001). 7. UNCC Governing Council Decision 7, S/AC.26/1991/7/Rev.1 (Nov. 28, 1991, as revised Mar. 17, 1992), reprinted in the Appendices to this volume, para. 35 (d). 8. See Peter H. Sand, Compensation for Environmental Damage from the 1991 Gulf War, 35 Envtl Pol’y & L. 244, at 246, 248 (2005); Peter H. Sand, The Precautionary Principle: Coping with Risk, 40:1 Indian J. Int’l L. 1 (2000), and Chapter 7 in this volume, text at notes 19–20. 9. Fifth “F4” Report, para. 67. In this regard, the Panel emphasized that the specifications of environmental damage in paras. 34 and 35 of Governing Council Decision 7 (1991) were illustrative rather than limitative; Report and recommendations made by the Panel of Commissioners concerning the second instalment of “F4” claims, UN Doc. S/AC.26/2002/26 (Oct. 3, 2002), paras. 22–23; and Sand, Chapter 7 in this volume, text at note 36. 10. See Chapter 7, text at notes 37–38, and Huguenin et al., Chapter 3, text at notes 7-10, in this volume.
P U B L I C H E A LT H C L A I M S
[ 195 ]
With regard to medical treatment and health care for post-conflict injuries from mines and ordnance (the fifth category of claims listed above), UNCC Governing Council Decision 7 clearly provided that the consequential damage so defined included any loss suffered as a result of “military operations by either side” during the period of the conflict (August 1990 to March 1991).11 Accordingly, the mandate of the F4 Panel extended to claims for post-conflict damage regardless of the origin of the ordnance; hence, also including injuries and health problems attributable to cluster bombs and remnants of depleted uranium ordnance left behind by the Allied Forces.12
B. Standing for Health Claims Submission
It will be recalled that the UNCC also received and processed a large number of individual claims for personal injuries, health impairment, or death, which were dealt with by other panels under the B, C, and D claims categories, by way of private compensation awards to the individuals concerned (if in part channeled through their governments).13 In contrast, the claims before the F4 Panel were solely submitted by governments, for public health expenditures consequential to the environmental damage caused by Iraq, and for health damage to their nationals that had not otherwise been compensated. In response to Iraq’s contention that these governments lacked legal standing to bring claims for health damage or loss of life incurred by their citizens, the Panel found that under Security Council Resolution 687 (1991) and related resolutions and decisions, as well as under the general rules of international law, there was nothing to prevent states from bringing intergovernmental claims against Iraq for damage to their nationals,14 so long as the claims were otherwise in conformity with
11. Decision 7 (note 7, supra), para. 6(a); see also Chapter 7 in this volume, at notes 65–66. 12. See Second “F4” Report, para. 98, referring to the Report and recommendations made by the Panel of Commissioners appointed to review the Well Blowout Control Claim (the “WBC Claim”), S/AC.26/1996/5/Annex, (Dec. 18, 1996), paras. 85–86; Report and recommendations made by the Panel of Commissioners concerning part one of the fourth of “F4” claims, UN Doc. S/AC.26/2004/16 (2004) (hereinafter, Fourth “F4” Report, part 1), paras. 264–71; and Fifth “F4” Report, para. 498. See generally Henryk Bem & Firiyal Bou-Rabee, Environmental and Health Consequences of Depleted Uranium Use in the 1991 Gulf War, 30:1 Environment International 123 (2004); Radiological Conditions in Areas of Kuwait with Residues of Depleted Uranium (R. H. Clarke et al. eds., International Atomic Energy Agency, Vienna 2003); and Owen T. Gibbons, Uses and Effects of Depleted Uranium Munitions: Towards a Moratorium on Use, 7 Yearbook of International Humanitarian Law 191 (2004). A claim by Saudi Arabia for remediation of radioactive firing ranges left behind by the Allied Forces was denied for procedural reasons only (late filing); see Fourth “F4” Report, part 1, para. 246. 13. See Payne, Chapter 1 in this volume, text at notes 56–75. 14. See Philippe Gautier, Environmental Damage and the United Nations Claims Commission: New Directions for Future International Environmental Cases?, in Ndiaye & Wolfrum (note 3, supra), 176, 204 (hereinafter, Gautier).
[ 196 ]
Jurisprudence and Policy Issues
the criteria established under the UNCC process, and so long as there was no duplication in compensation awarded for the same injury or damage in this process.15 With this condition in mind, the Panel therefore instructed its Secretariat to undertake a careful search in the available UNCC records to ensure that none of the public health claims duplicated any of the awards made by other panels. Prior to finalizing its 2005 recommendations, the Panel reviewed the detailed research reports received from the Secretariat, and confirmed its agreement that there was no appreciable risk of such duplication.16 The F4 Panel did, however, restrict the admissibility of claims for mental pain and anguish in relation to Iraq’s invasion and occupation of Kuwait. Taking into account UNCC Governing Council Decisions 3 (October 23, 1991) and 8 ( January 27, 1992)—regarding the categories of persons entitled to claim, the criteria to be met, and the limits of compensation,17 —the Panel found that such claims could only be brought by individuals who satisfied the criteria so established by the Governing Council, and consequently denied the government of Jordan standing to bring a claim under that heading.18
C. Review Criteria
Common evidentiary standards for all UNCC panels were laid down in Article 35(1) of the Rules for Claims Procedures,19 as follows: Each claimant is responsible for submitting documents and other evidence which demonstrate satisfactorily that a particular claim or group of claims is eligible for compensation pursuant to Security Council resolution 687 (1991). Each panel will determine the admissibility, relevance, materiality and weight of any documents and other evidence submitted.
With regard to governmental claims in particular (such as the F4 public health claims), Article 35 (3) of the Rules provided that “claims must be supported by documentary and other appropriate evidence sufficient to demonstrate the circumstances and amount of the claimed loss” (a rule reiterated in UNCC Governing Council Decision 7, paragraph 37).20 Governing Council Decision 46 (1998) further specified that “no loss shall be compensated by the Commission
15. Fifth “F4” Report, paras. 69, 70, and 515. 16. Fifth “F4” Report, paras. 97, 235, and 499. 17. Governing Council Decision 3, U.N. Doc. S/AC.26/1991/3 (Oct. 23, 1991); and Decision 8, U.N. Doc. S/AC.26/1992/8 ( Jan. 27, 1992). 18. Fifth “F4” Report, paras. 71 and 404; and text at note 91 infra. 19. See note 5 supra. 20. See note 7 supra.
P U B L I C H E A LT H C L A I M S
[ 197 ]
solely on the basis of an explanatory statement provided by the claimant,” and that the compensation amounts recommended by a category F panel “can only be approved when they are in accordance with this decision.”21 The F4 Panel recognized, however, that the monitoring and assessment claims, by their very nature, required a more differentiated approach. As explained in the Panel’s first instalment report, these special claims inevitably had to be reviewed and awarded at a point in time “where it may not have been established that environmental damage or depletion of natural resources occurred as a result of Iraq’s invasion and occupation of Kuwait”; i.e., “without prior proof that environmental damage has in fact occurred.”22 In the case of M&A claims, therefore, the Panel did not require conclusive evidence of environmental damage, the establishment of which was indeed one of the very objectives of monitoring and assessment, but instead formulated a set of prima facie criteria to determine the “reasonability” of the M&A activities proposed, and their “nexus” with environmental damage or risk of damage attributable to Iraq, taking into account, inter alia: (a)
Whether there is a possibility that environmental damage or depletion of natural resources could have been caused as a result of Iraq’s invasion and occupation of Kuwait. This entails an inquiry regarding the plausibility that pollutants released as a result of Iraq’s invasion and occupation of Kuwait, or other effects of the invasion, could have impacted the territories of the Claimants; (b) Whether the particular areas or resources in respect of which the monitoring and assessment activity is undertaken could have been affected by pollutants released as a result of Iraq’s invasion and occupation of Kuwait, or other effects of the invasion. This entails, in appropriate cases, an examination of the possible pathways and media by which pollutants resulting from Iraq’s invasion and occupation of Kuwait could have reached the areas or resources concerned; (c) Whether there is evidence of environmental damage or risk of such damage as a result of Iraq’s invasion and occupation of Kuwait; and (d) Whether, having regard to the stated purpose of the monitoring and assessment activity and the methodologies to be used, there is a reasonable prospect that the activity will produce results that can assist the Panel in reviewing any related substantive claims.23
21. Governing Council Decision 46, U.N. Doc. S/AC.26/1998/46 (Feb. 2, 1998). 22. First “F4” Report, paras. 29–30 and 61; see Sand, Chapter 7 in this volume, text at notes 24–25. 23. First “F4” Report, para. 31; see also David D. Caron, Finding Out What the Oceans Claim: The 1991 Gulf War, the Marine Environment, and the United Nations Compensation Commission, in Bringing New Law to Ocean Waters 393, 400 (D. D. Caron & H. N. Scheiber eds., Brill, Leiden 2004) (hereinafter, Caron 2004).
[ 198 ]
Jurisprudence and Policy Issues
This more permissive approach to the eligibility of M&A claims—which in part explains the higher “success rate” of those claims24—was motivated both by the Panel’s procedural fact-finding needs (further detailed in technical recommendations annexed to the initial panel report in 2001),25 and by a public policy concern to ascertain and preclude environmental risks. One of the consequences of this approach was indeed the creation of a subcategory of “stand-alone” M&A claims that were not related to any substantive claim for compensation. Under certain circumstances, long-term precautionary monitoring and assessment could thus very well be the most reasonable (or even the only reasonable) response to certain public health risks, regardless of any eventual proof of harm,26 so long as the program was otherwise appropriate in terms of methodology, technical quality, and cost estimates.27 Nonetheless, the F4 Panel expressed “the view that compensation should not be awarded for monitoring and assessment activities that are purely theoretical or speculative, or which have only a tenuous link with damage resulting from Iraq’s invasion and occupation of Kuwait,”28 and accordingly rejected several M&A claims in its first instalment report as unreasonable or unsubstantiated.29 The importance of adhering to the general evidentiary standards of the UNCC became a predominant concern when the Panel later had to turn to the substantive public health claims in its fifth and final instalment report.30
II. VALUATION OF ENVIRONMENT-RELATED DAMAGE TO PUBLIC HEALTH
In its interpretation of “environmental damage,” the F4 Panel repeatedly emphasized that the definition of the term by the UNCC Governing Council was
24. See text at notes 117–19 (Table 1), infra. 25. See the introduction to the technical annexes of the First “F4” Report, and Annexes XXV, XXXI, and XXXVI. 26. See First “F4” Report, para. 40; and Fifth “F4” Report para. 93—In a subsequent audit Report by the UN Office of Internal Oversight Services (OIOS, established by UN General Assembly Resolution 48/218B), a “stand-alone” F4 award for long-term public health monitoring was criticized for being unconnected to a substantive public health claim. OIOS Audit No. 2005/820/01 of UNCC F-4 Claims: 5th Instalment ( June 8, 2005), paras. 84 and 87. That criticism was expressly refuted as erroneous by the UNCC (id., paras. 85–86); see Payne, Chapter 1 (text at notes 102-107) and Sand, Chapter 7 (note 31) in this volume. 27. When rejecting a US$100 million long-term epidemiological study and medical screening program proposed by Kuwait to identify potential additional health risks, the Panel acknowledged the scientific merits of the proposal, but found the information submitted by the Claimant insufficient to evaluate the technical merits of the program and to assess the costs claimed; Fifth “F4” Report, para. 530, and Sand, Chapter 7 in this volume, at note 33. 28. First “F4” Report, para. 31. 29. First “F4” Report, paras. 270, 274. 30. Fifth “F4” Report, paras. 29–31, 272, 280, 289, 517, 524, 699, 708, 715, 761.
P U B L I C H E A LT H C L A I M S
[ 199 ]
non-exhaustive,31 and that international law does not prescribe any specific or exclusive methods of valuation regarding awards of damages for internationally wrongful acts by states.32 Citing the Chorzów Factory and Trail Smelter cases in support,33 the Panel considered that even in the absence of precise rules or prescriptions on the methods for evaluating damage, it was entitled and required to evaluate damage and to determine appropriate compensation, relying on general principles for guidance; particularly the principle that reparation must, as far as possible, wipe out all the consequences of the illegal act.34 At the beginning of its deliberations in Geneva, the Panel held a series of informal seminar sessions with leading academic and professional experts on contemporary methodologies and national practice in the quantification and valuation of large-scale environmental damage, thus setting the stage for subsequent formal review of the claims.35 In the field of public health—and partly in light of the results of earlier monitoring and assessment programs awarded on the basis of the first instalment report36—three claimant governments (Iran, Kuwait, and Saudi Arabia) submitted substantive compensation claims relying on novel techniques of quantifying health risks, on three main topics: (A) Modeling of exposure to air pollution attributable to the 1991 Gulf War; (B) Estimates of increased mortality due to such pollution; and (C) Calculation of increased incidence of post-traumatic stress disorder (PTSD) due to the war, and consequential loss of well-being.
A. Modeling of Exposure to Air Pollution
Iran and Saudi Arabia submitted claims for public health damages associated with exposure to smoke from the oil fires in Kuwait. Iran claimed compensation for expenses incurred in the provision of medical treatment and health services to its general population due to increased morbidity resulting from exposure to air pollution from the oil well fires in Kuwait during and after the Gulf War.37 Iran’s claim
31. See note 9 supra. 32. Fifth “F4” Report, para. 80. 33. Case concerning the Factory at Chorzów (Germany vs. Poland), Permanent Court of International Justice Reports Series A/No.17, 47 (1928); and Trail Smelter Arbitration (United States vs. Canada), 3 Reports of International Arbitral Awards 1020 (1941). 34. Fifth “F4” Report, paras. 49 and 80. 35. Including professors David W. Pearce (London), Robert Costanza (Vermont), and practitioners from the Norwegian Institute for Air Research (NILU) and the U.S. National Oceanic and Atmospheric Administration (NOAA). 36. In particular, see First “F4” Report, paras. 512, 517, 684, and 689. 37. Fifth “F4” Report, paras. 262–66 (US$3.7 million claimed and denied in 2005); see text at notes 81–83 infra.
[ 200 ]
Jurisprudence and Policy Issues
relied on the results of an earlier UNCC monitoring and assessment project, using an atmospheric and air quality model supported by satellite imagery and “black rain” measurements that showed contaminants from the oil fires were transported to ten of its western provinces.38 Based on data from local and provincial health officials, it reported increases in 1990 and 1991 in the number of treated cases of thirteen diseases (including respiratory ailments, streptococcal pharyngitis, conjunctivitis, typhoid and paratyphoid, viral hepatitis, skin diseases, anaemia, hypertension, ischemic heart disease, ictus, mental disorders, tuberculosis, and malaria), all claimed to be attributable to contaminants from the oil fires.39 In addition, Iran claimed compensation for costs associated with an increase in pulmonary and respiratory diseases among children (from birth through age twelve at time of exposure).40 These costs included the direct costs of past and future medical treatment (calculated on the basis of unit costs per health care service) for the full lifetime of each patient (based on a life expectancy of seventy-one years); indirect costs (calculated as one-sixth of direct treatment costs), including transportation for care, caregivers’ time, and opportunity costs of illness; and compensation for reduced well-being of those suffering respiratory disease, using an estimate of per capita income for 2003. This claim was based on the results of an earlier UNCC monitoring and assessment study in which 15,162 Iranian residents between the ages of ten and twenty-four had been interviewed in three geographical areas, Zones A and B being designated as affected by the Kuwait oil fires, and Zone C as the unaffected or control area.41 According to Iran, results of the M&A study showed that individuals who resided within 200 kilometers (km) of Kuwait during the period of the oil fires had a greater likelihood of being diagnosed with pulmonary or respiratory disease than those living more than 200 km from Kuwait. In addition, there was some evidence that individuals living between 200 and 400 km from Kuwait had a slightly higher risk of being diagnosed than those living more than 400 km from Kuwait. In total, Iran claimed that 3,263 additional cases of respiratory diseases were a direct result of air pollution from the oil well fires.42 Saudi Arabia claimed compensation for treatment of an increased number of cases of cardiovascular, respiratory, and systemic diseases (including diabetes, gastrointestinal, and kidney diseases) between 1990 and 2030, attributed to exposure to air pollutants from the oil fires, disturbance of desert areas by military activities, and emissions from diesel-fueled military vehicles.43 The claim was based on a comparison of measured levels of fine particulates (PM10, which have aerodynamic
38. See First “F4” Report, paras. 71–78 (US$672,960 awarded in 2001); see also Fifth “F4” Report, paras. 200–01. 39. Fifth “F4” Report, para. 263. 40. Fifth “F4” Report, paras. 274–77 (US$72.4 million claimed). 41. See First “F4” Report, paras. 283–87 (US$449,000 awarded in 2001). 42. Fifth “F4” Report, para. 277. 43. Fifth “F4” Report, paras. 687–88 (US$13.4 million claimed).
P U B L I C H E A LT H C L A I M S
[ 201 ]
diameter less than 10 microns) at several sites in eastern Saudi Arabia during the invasion and occupation with levels at those sites for the same months during the three-year periods preceding and following the conflict. Analysis of these measurements found that concentrations of PM10 were substantially greater during the period of the oil fires than in prior or subsequent years. In addition, measurements showed a high degree of correlation between sites at the same time, implying that the region could be treated as a single air-shed and so pollution at locations without monitors could be reasonably estimated as similar to pollution at areas with measurements. This conclusion was claimed to be supported by estimates of pollutant dispersion from the U.S. National Oceanic and Atmospheric Administration’s HYSPLIT (HYbrid Single-Particle Lagrangian Integrated Trajectory) model.44 Estimates of the public health effects of these exposures in Saudi Arabia were based on the results of several earlier UNCC monitoring and assessment studies, including an Exposure and Health Survey (EHS),45 through which approximately 20,000 residents, living in areas exposed and unexposed to pollution from the oil fires and to military activities and movements, were interviewed beginning in 2003. Respondents were asked to report their exposure to pollutants and the health status of family members during the period of the Iraqi invasion and occupation, more than ten years earlier. Health care visits attributable to the pollution were estimated using data on use of health care facilities over the period 1990–2000 from annual reports of the Saudi Ministry of Health. According to Saudi Arabia, the EHS demonstrated that there was an increased number of cases of disease in the exposed areas.46
B. Increased Mortality
Kuwait and Saudi Arabia submitted claims for fatalities associated with exposure to the oil-fire smoke and, in the case of Saudi Arabia, other air pollution occurring during the invasion and occupation. The numbers of fatalities were estimated using similar approaches, though with important differences in detail. Although there is strong epidemiological evidence from many countries that links exposure to fine particulate matter to mortality risk, specific deaths cannot be attributed to exposure to air pollution. Because the individuals who died from exposure to PM10 cannot be
44. See Patrick N. Breysse et al., Air Pollution Levels in Saudi Arabia Related to the 1991 Gulf War, 16:5 Epidemiology S80 (2005); see also Ronald H. White et al., Premature Mortality in the Kingdom of Saudi Arabia Associated with Particulate Matter Air Pollution from the 1991 Gulf War, 14 Human and Ecological Risk Assessment 645 (2008) (hereinafter White et al.). 45. See First “F4” Report, paras. 689–93 (US$5.1 million awarded in 2001); see also id., paras. 665–88 and 694–706. 46. Fifth “F4” Report, paras. 689–92; cf. J. Morel Symons et al., Epidemiological Survey of Adverse Health Effects in the Population of Saudi Arabia Associated with the 1991 Gulf War, 16:5 Epidemiology S94 (2005); and White et al. (note 44, supra).
[ 202 ]
Jurisprudence and Policy Issues
identified, estimates of the incremental number of deaths are calculated by mathematical models combining information on exposure and the rate at which mortality risk increases with exposure. Saudi Arabia claimed compensation for increased mortality in the country due to airborne particulate matter from the oil well fires in Kuwait; from disturbance of desert areas by military activities; and from the large number of diesel-powered military vehicles used for military operations during the Gulf War.47 Saudi Arabia relied on the results of several earlier UNCC monitoring and assessment studies,48 which had calculated the relationship between PM10 exposure and mortality risk by conducting a meta-analysis of daily time series studies that estimated the statistical relationship between daily PM10 concentration and daily mortality from all causes excluding accidents, arguing that such studies have been conducted for many locations worldwide, yielding reasonably consistent results. Combining these estimates under alternative statistical models yielded summary estimates of a 2.5 or 3.4 percent increase in nonaccidental mortality per 50 mg/m3 increase in PM10.49 The increase in PM10 associated with the oil fires and military operations was estimated as 94 μg/m3 for the Eastern Region of Saudi Arabia during the period May–October 1991 and about 60 μg/m3 for the period December 1991–June 1992. For the remaining part of the exposed region to the west, the incremental exposure was estimated as 75 μg/m3 for the period May– October 1991. Combining these estimates with estimates of the effect of exposure on mortality, it was implied that exposure to incremental PM10 increased mortality by about 3 percent or more during these time periods. The baseline non-accidental mortality rate to which these increases applied was estimated by combining information on: (a) the number of deaths recorded at Ministry of Health hospitals in 2000, from Ministry of Health reports; (b) the total number of deaths of Saudi residents in 2000, estimated from World Health Organization life tables; (c) changes in the population of Saudi Arabia between 1991–1992 and 2000, assuming a constant annual growth rate; and (d) the fractions of Saudi deaths occurring in different Ministry of Health regions, assumed to be the same in 1991–1992 as the fractions of deaths in Ministry of Health hospitals in those regions in 1998–1999, the years for which data were available from the Ministry. Combining these estimates of exposure, the incremental effect of exposure on mortality, population, and the mortality rate yielded an estimate of 1,397 deaths.50 Kuwait claimed compensation for increased mortality in the country due to air pollution caused by the oil well fires during and after the Gulf War.51 Kuwait’s claim
47. 48. 49. 50. 51.
Fifth “F4” Report, paras. 710–13 (US$5.5 billion claimed). See note 45, supra. Fifth “F4” Report, para. 711; see White et al. (note 44 supra). Fifth “F4” Report, para. 713; see White et al. (note 44 supra). Fifth “F4” Report, paras. 519–21 (US$192.5 million claimed).
P U B L I C H E A LT H C L A I M S
[ 203 ]
relied on the results of its earlier UNCC monitoring and assessment study 52 to estimate the ground-level concentrations of airborne particulate matter (PM10) to which its citizens were exposed during the period when the oil fires were burning, combined with the estimated effect of PM10 exposure on mortality risk. In addition, an enumeration survey was conducted to confirm by interviews the accuracy of information from Kuwait Ministry of Finance files about the number and location of Kuwait residents who were in the country during the period of the oil fires Kuwait’s estimate of the increased concentration of PM10 was based on results from the HYSPLIT model53 that were calculated for the U.S. Department of Defense in order to estimate exposure of military personnel operating in Kuwait. These model runs used a low-resolution grid to cover the entire territory of Kuwait and did not provide sufficient resolution to characterize exposure in the coastal region, where most of the population resides. Hence Kuwait supplemented these estimates with estimates from a more detailed analysis using an alternative model for simulating pollutant dispersal, CALPUFF (CALifornia Lagrangian PUFF). In contrast to the HYSPLIT analysis, the CALPUFF analysis used a more detailed grid in the populated coastal region, accounted for the effects of coastal winds, and included emissions from burning oil pools in addition to those from burning wells. According to Kuwait, these more refined estimates suggested that incremental population exposure averaged 40–50 μg/m3, substantially greater than the 10 μg/m3 estimated using HYSPLIT.54 To estimate the increase in mortality risk associated with incremental PM10 exposure, Kuwait relied on the results of two primary cohort studies of air pollution and mortality, the Harvard Six Cities and American Cancer Society studies.55 In contrast to the daily time series studies relied on by Saudi Arabia, the cohort studies included effects on mortality that occur over longer periods and estimated a larger effect of air pollution on mortality. Kuwait supplemented these estimates by sponsoring an expert judgment study, in which six leading experts on health effects of air pollution (including epidemiologists and toxicologists) individually provided their judgments about the additional number of deaths among Kuwait residents likely to have occurred because of the specific pattern and composition of incremental exposure to PM10 associated with the oil fires.56
52. See First “F4” Report, paras. 512–16 (US$1.150 million awarded in 2001). 53. See note 44, supra. 54. See Bruce Boley et al., Kuwait Public Health Project: Public Health Study Final Combined Report (Harvard School of Public Health, Cambridge/Mass. 2007) (hereinafter Boley et al.). 55. See Douglas W. Dockery et al., An Association between Air Pollution and Mortality in Six U.S. Cities, 329(24) New England Journal of Medicine 1753–59 (1993); C. A. Pope et al., Particulate Air Pollution as a Predictor of Mortality in a Prospective Study of U.S. Adults, 151 American Journal of Respiratory Medicine 669–74 (1995). 56. See Jouni Tuomisto et al., Mortality in Kuwait Due to PM from Oil Fires After the Gulf War: Combining Expert Elicitation Assessments, 16:5 Epidemiology S74 (2005); Roger M. Cooke et al., A Probabilistic Characterization of the Relationship between Fine Particulate
[ 204 ]
Jurisprudence and Policy Issues
Kuwait’s estimate of the incremental number of fatalities attributable to the oil fires was 35 additional deaths, with an uncertainty range of 0 to 116.57 This estimate was based on the estimated incremental exposure to PM10 of 10 μg/m3 from the HYSPLIT model and the estimated effect of PM10 on mortality of 0.4 percent per μg/m3 from the American Cancer Society study. The six experts provided “central estimates” of the incremental number of deaths of 12, 32, 54, 134, 164, and 2874.58
C. Increased PTSD Morbidity and Loss of Well-Being
Kuwait, Saudi Arabia, and Iran presented claims for treatment costs and loss of well-being associated with post-traumatic stress disorder (PTSD).59 Kuwait claimed compensation for expenses and losses arising from the increased number of cases of PTSD as a result of the exposure of its residents to hostilities and various acts of violence by Iraqi forces during Iraq’s invasion and occupation of the country.60 Kuwait based its claim on sample surveys undertaken in 1993 and 1998, in which individuals had been classified as suffering from PTSD or not on the basis of their responses to a standard set of diagnostic questions.61 The 1993 survey of nearly 3,000 respondents found that about 22 percent of adults and 15 percent of children suffered from PTSD, much higher than the rates anticipated in the absence of the Iraqi invasion and occupation. The probability that individuals were classified as suffering from PTSD was associated with the time they had spent in Kuwait during the conflict: among adult respondents, about 25 percent of those who remained in country for the entire period were classified as having PTSD, in contrast to about 15 percent of those who were outside Kuwait for the entire period and about 20 percent of those who were in Kuwait for only part of the period. The 1998 survey reassessed the status of about 1,500 of those who had participated in the 1993 survey and found that almost half of those classified as having PTSD in 1993 continued to suffer from the condition in 1998.62
Matter and Mortality: Elicitation of European Experts, 41 Environmental Science and Technology 6598–6605 (2007); Jouni Tuomisto et al., Uncertainty in Mortality Response to Airborne Fine Particulate Matter: Combining European Air Pollution Experts, 93(5) Reliability and Engineering Safety Systems 732–44 (2008). 57. Fifth “F4” Report, paras. 520–22. 58. See Boley et al. (note 54, supra). The corresponding estimates from the Harvard Six Cities study and the CALPUFF model would have been considerably higher. 59. See generally Evan D. Kanter, The Impact of War on Mental Health, in War and Public Health 51, 61 (B. S. Levy & V. W. Sidel eds., 2d edn. Oxford University Press, Oxford 2008). 60. Fifth “F4” Report, paras. 503–05 (US$1.181 billion claimed). 61. Fifth “F4” Report, para. 504. 62. Id.; see also Deirdre Barrett & Jaffar Behbehani, Post-Traumatic Nightmares in Kuwait Following the Iraqi Invasion, in The Psychological Impact of War Trauma on
P U B L I C H E A LT H C L A I M S
[ 205 ]
Kuwait’s claim included two components: compensation for treatment costs and compensation for loss of well-being associated with PTSD. Treatment costs were estimated using information on the number of Kuwaiti nationals who sought treatment for PTSD (estimated as 6.5 percent of those afflicted by the condition), the average number of treatment visits (4.65 per person over five years), and the average cost per visit (US$378). These estimates were based on treatment at the Al-Riggae Specialized Centre for Treatment of War Victims in Kuwait.63 Estimates of the loss in well-being were based on the estimated disabilityadjusted life years (DALYs) associated with PTSD combined with an estimate of the monetary value per DALY. Disability-adjusted life years are a measure developed and used by the World Health Organization to quantify the burden of illness in a population.64 Like the closely related concept of quality-adjusted life years (QALYs) that is widely used to assess the cost-effectiveness of medical and public health interventions,65 DALYs integrate longevity and health status by weighting each year of life by a factor between zero and one that reflects the degree of disability experienced. The WHO had estimated that a typical individual suffering from PTSD experienced symptoms for 2.5 years and valued these years at 10 percent less than if the individual was in full health; multiplying the duration and disability weight thus yielded a value of 0.25 DALYs associated with a case of PTSD.66 This result implied that an individual who experienced a typical case of PTSD lost as much as if he remained healthy but died 0.25 years earlier. In order to convert this estimate into a monetary value of compensation, Kuwait assumed that the value of a year of healthy life was US$50,000, yielding a monetary value of the loss in wellbeing of US$12,500 per case of PTSD. The value of US$50,000 had often been used as a benchmark in judging whether medical and public-health interventions that improve health or longevity are worth their costs; interventions that improve health and longevity at a cost of less than US$50,000 per DALY (or QALY) had often been judged to be good uses of social resources while those that cost more were considered possibly too expensive.67 Saudi Arabia submitted a claim for treatment costs associated with an increased number of cases of PTSD together with additional cases of other psychiatric
Civilians: An International Perspective 135 (S. Kripper & T. M. McIntyre eds., Praeger, New York 2003). 63. Fifth “F4” Report, paras. 504–05 (US$192.5 million claimed). 64. See The global Burden of Disease (C. J. L. Murray & A. D. Lopez eds., Harvard School of Public Health on behalf of the World Health Organization and the World Bank, Cambridge/Mass. 1996) (hereinafter Murray & Lopez). 65. See Cost-Effectiveness in Health and Medicine (M. R. Gold et al. eds., Oxford University Press, Oxford 1996). 66. See Murray & Lopez (note 64, supra). 67. Other evidence concerning the monetary value of longevity suggests that values per life year may be larger, perhaps US$500,000 or more; see Richard A. Hirth et al., Willingness to Pay for a Quality-Adjusted Life Year: In Search of a Standard, 20 Medical Decision-Making 332 (2000).
[ 206 ]
Jurisprudence and Policy Issues
illnesses including depression, generalized anxiety disorder, panic disorder, and other neurotic disorders resulting from the invasion and occupation.68 Its estimates of the increased prevalence of these conditions were obtained by comparing rates measured by the earlier UNCC-funded Exposure and Health Survey (EHS)69 in the population groups living in areas that were exposed and those not exposed to smoke, military activities, and movements associated with the invasion and occupation. Affliction with PTSD was measured using two separate instruments administered as part of the EHS, a primary PTSD screen and a PTSD checklist. According to Saudi Arabia, the primary screen showed that the risk of having PTSD was twice as large among individuals exposed to the invasion and occupation than among those not exposed; whereas the PTSD checklist showed a fivefold increase.70 Although Iranian residents were not directly exposed to the invasion and occupation, Iran claimed compensation for treatment costs, loss of workplace productivity, and other costs associated with increases in PTSD and panic disorder cases among its citizens.71 Iran claimed that residents of the Khuzestan and Bushehr provinces, who had been previously traumatized by the Iran-Iraq conflict, suffered increased rates of PTSD and panic disorder as a result of stressors including fear of air strikes, chemical or biological attacks, chemical contamination, accidental missile strikes, or harm from Iraqi or American aircraft flying over Iran. Iran relied on the results of a UNCC-funded monitoring and assessment study to estimate the increased number of cases of PTSD and panic disorder requiring treatment, and also to establish a direct causal link between this increase and Iraq’s invasion and occupation of Kuwait.72 The study consisted of four parts: (a) an epidemiological study to identify cases of mental health disorders caused by Iraq’s invasion and occupation of Kuwait; (b) a qualitative study to identify the characteristics of exposure zones and potentially affected populations, the nature of mental health problems, and past methods of treatment employed; (c) a clinical trial to assess the cost and efficacy of treatment protocols; and (d) the calculation of costs associated with mental health damages. According to Iran, the results of the monitoring and assessment study demonstrated that an additional 102,792 people in the Khuzestan and Bushehr provinces suffered from PTSD and/or panic disorder as a result of Iraq’s invasion and occupation of Kuwait. Iran claimed compensation for past expenses incurred in treating these additional cases of PTSD and panic disorder; past indirect costs, including lost income associated with reduced functioning at work, unemployment, days spent by family members providing care, and transportation; and costs of future medical care. Iran also sought compensation for the value of past and future reduced
68. 69. 70. 71. 72.
Fifth “F4” Report, paras. 701–04 (US$880 million claimed). See note 45, supra. Fifth “F4” Report, paras. 703–04. Fifth “F4” Report, paras. 282–85 (US$2.5 million claimed). First “F4” Report, paras. 276–82 (US$1.2 million awarded in 2001).
P U B L I C H E A LT H C L A I M S
[ 207 ]
well-being suffered by individuals with PTSD or panic disorder, calculated on the basis of “years lived with disability.”73
III. F4 PANEL REVIEW OF SUBSTANTIVE PUBLIC HEALTH CLAIMS
Although the UNCC had initially set the general deadline for filing environmental claims at February 1, 1998 (later extended for “unsolicited information” regarding monitoring and assessment claims to October 4, 1999, and regarding substantive public health damage to January 15, 2002), the allocation of all substantive public health claims to the last (fifth) F4 instalment meant that the actual review of this category of claims by the Panel (originally scheduled for 2003) did not begin until 2004. Following the procedure developed for the earlier F4 instalments,74 an independent outside consulting group was contracted under standard UN bidding procedures to provide the necessary technical and scientific expertise for the Panel’s review. The consulting group so selected (Industrial Economics Inc., of Cambridge, Massachusetts, USA) worked with a top-level team of eight experts in the following fields: air pollution epidemiology; clinical epidemiology of lung diseases; pollution-related cancer epidemiology; psychiatric epidemiology; clinical psychiatry of anxiety disorders; environmental toxicology; orthopedic rehabilitation; and environmental health management. Under coordination by the UNCC F4 Secretariat, the expert consultants analysed the documentation submitted by the claimant governments, and by Iraq in response; proposed requests for supplementary information where needed (solicited from claimant governments pursuant to Articles 34 and 36 of the Rules); participated in extensive fact-finding visits to claimant countries, and in meetings with the technical experts of the claimants and the respondent.75 On the basis of the information so collected, they prepared sets of “professional judgment reports” on each claim (regarding substance and monetary amounts), setting out the options for decision and, where appropriate, alternative recommendations in terms of methodology and the proposed implementation of claims.76 After studying the claims in light of these professional assessments and other information obtained, including the results of its own field visits (to Kuwait,
73. Fifth “F4” Report, para. 285. 74. See Klee, Chapter 2 in this volume, text at notes 72–78. 75. Id., text at notes 54–60. In view of the fact that, for political reasons, Iraq’s experts were not allowed to visit the claimant/victim countries, joint meetings and teleconferences had to be organized in Geneva; see also Michael Schneider, International Claims Litigation II: A Case Study of the UNCC, 99th Proceedings of the American Society of International Law 325, 335 (2005); and Wilde, Chapter 4 in this volume. 76. On the proactive role of the F4 Panel in this regard (especially the “technical annexes” to its reports), see Sand, Chapter 7 in this volume, text at notes 16–17.
[ 208 ]
Jurisprudence and Policy Issues
Saudi Arabia, and Iran) and the presentations by both sides during oral proceedings,77 the F4 Panel held a series of week-long review meetings in Geneva with its expert consultants in 2004–2005, before finalizing its recommendations to the UNCC Governing Council. The final, fifth F4 instalment report, which was formulated with the professional assistance of the UNCC F4 Secretariat’s legal and actuarial staff (and which went through a total of seventeen successive drafts in English, and “concordance” sessions with the UN Translation Service for the other official languages), was submitted to the Governing Council in April 2005, and adopted without change at the 56th session of the Council in June 2005.78 The country-by-country sections which follow are intended to summarize the outcome of this review process with regard to the substantive public health damages awarded to Iran, Jordan, Kuwait, Saudi Arabia, and Syria, as compared to the claims originally submitted by these claimant states.
A. Iran
Iran’s claims for compensation of substantive public health expenditures resulting from the 1991 Gulf War comprised (a) costs incurred for providing medical treatment and health facilities to refugees from Kuwait and Iraq; and (b) costs of additional medical treatment and services for the Iranian population due to an increased incidence of diseases attributed to long-range air pollution from the oil well fires in Kuwait, especially respiratory diseases in children, as well as PTSD and panic disorders.79 While accepting the claim for humanitarian medical services provided to refugees,80 the F4 Panel found that the claimant government had not provided any evidence to demonstrate a causal link between the Kuwait oil well fires and certain of the diseases claimed to affect Iran’s general population, including typhoid, viral hepatitis, anemia, hypertension, tuberculosis, and malaria.81 With regard to acute respiratory diseases and asthma, streptococcal pharyngitis, conjunctivitis, skin diseases, ischemic heart disease, and ictus, the Panel observed that Iran had not made any allowances for other possible causes such as population growth, underlying trends in disease rates, changes in lifestyle and habits, and increased air pollution levels resulting from economic and industrial development.82 Furthermore, in the
77. Id., text at notes 92–93. 78. See Governing Council Decision 248, S/AC.26/248 ( June 30, 2005). 79. See text at note 37, supra. 80. Fifth “F4” Report, paras. 230–61; US$3.367 million awarded, reflecting a number of adjustments for unsubstantiated expenses. On this category of “international environmental solidarity” (i.e., humanitarian) costs, see Sand, Chapter 7 in this volume, text at notes 59–68. 81. Fifth “F4” Report, para. 269. 82. Id., paras. 270 and 279.
P U B L I C H E A LT H C L A I M S
[ 209 ]
view of the Panel, the statistical information presented—which purported to combine projected lifetime treatment costs and reduced well-being, in terms of “years lived with disability” and lost productivity, calculated on the basis of Iran’s per capita income in 2003—did not provide an adequate basis for determining the extent to which the oil well fires might have contributed to an increase in morbidity.83 With regard to the alleged increase in the number of cases of PTSD and panic disorders requiring treatment, the Panel noted that the stressors to which the population in the affected areas of Iran was claimed to have been subjected were not of the type that would cause PTSD,84 and the zone analysis used to link these cases to Iraq’s invasion and occupation of Kuwait was not supported by the data submitted.85 The Panel did, however, accept Iran’s claim for expenses of a long-term monitoring and assessment study to investigate possible links between pollution resulting from the oil well fires and the incidence of cancers and hematological disorders. While excluding certain types of extremely rare cancers, and tumors unlikely to be associated with environmental factors, the Panel—applying its criteria for evaluating M&A claims previously used in the First F4 report86—found that the preliminary data from Khuzestan and Fars provinces provided prima facie evidence of possible environmental carcinogenic hazards following 1991, and hence justified more systematic investigation.87
B. Jordan
Jordan claimed compensation for public health costs and losses caused by the presence of refugees following Iraq’s occupation and invasion of Kuwait in 1990 and the subsequent 1991 Gulf War. These claims comprised (a) costs of medical treatment and economic losses resulting from an increase in the incidence of low birthweight infants and malnourished children as a result of the influx of refugees; and (b) nonpecuniary damages for mental pain and suffering by victims of domestic
83. Id., paras. 272 and 280. 84. Id., para. 288. The Panel took into account, inter alia, the criteria for PTSD severity as formulated in the International Classification of Diseases, version 10 (ICD-10), available at http://apps.who.int/classifications/apps/icd/icd10online/. Based on the Composite International Diagnostic Interview (CIDI) used to diagnose cases of PTSD, very few subjects with PTSD onset in 1990 or later reported triggering events that could have resulted from Iraq’s invasion and occupation of Kuwait. World Health Organization, Composite International Diagnostic Interview (World Health Organization, Geneva 1990) discussed at http://www.hcp.med.harvard.edu/wmhcidi/index.php. 85. The background prevalence of PTSD and panic disorders in the provinces of Khuzestan and Bushehr was actually higher before 1990, presumably because of the earlier Iran-Iraq war. 86. First “F4” Report, para. 31; see text at note 23, supra. 87. Fifth “F4” Report, paras. 305–09; US$332,300 awarded.
[ 210 ]
Jurisprudence and Policy Issues
crime, as a result of the increased crime rate due to the presence of large numbers of refugees.88 While noting that part of the causes of the alleged increase in low birth-weight infants and malnourished children among the general population of Jordan might ultimately be traced back to the events of 1990–1991 in Kuwait (possibly including the arrival of pregnant refugee women who delivered low birth-weight infants while in Jordan), the Panel concluded that any such increase would be too remote and speculative to be considered a direct result of Iraq’s invasion and occupation of Kuwait.89 The Panel also noted that Jordan had already received awards of compensation in the UNCC F2 category for providing medical treatment and health care to evacuees and returnees, thus raising a risk of duplication.90 This claim therefore was denied. The F4 Panel also denied Jordan’s claim for mental pain and suffering endured by victims of crime after 1990–1991, noting that UNCC Governing Council Decision 3 (1991) was exhaustive in enumerating the categories under which individual claimants could be awarded nonpecuniary damages for mental pain and anguish, and considering that the government of Jordan therefore did not have standing to bring the claim.91
C. Kuwait
Kuwait’s claim for public health damages comprised (a) medical treatment costs for persons injured by mines and ordnance explosions; (b) medical treatment costs and other losses to persons suffering from PTSD; (c) losses due to increased mortality resulting from the oil well fires; and (d) costs of a proposed long-term epidemiological study and medical screening program.92 With minor adjustments of the projected average treatment costs (for surgery and prosthetic replacements), and after assuring itself that there was no risk of duplication with compensation previously awarded by the UNCC under the auspices of other panels, the F4 Panel accepted the claim regarding damage from mines and ordnance.93
88. Fifth “F4” Report, paras. 390–91; total amount claimed (and denied): US$886.4 million. 89. Id., paras. 396–97. Cf. Allen, Chapter 6 in this volume, text at note 88. 90. Report and recommendations made by the Panel of Commissioners concerning the first instalment of “F2” Claims, U.N. Doc. S/AC.26/1999/23 (Dec. 9, 1999), paras. 65–69, 152–57, and 280–85; Fifth “F4” Report, para. 398. F2 category claims were those submitted by the governments of Jordan and Saudi Arabia, excluding claims for environmental damage. 91. Fifth “F4” Report, para. 404; see UN Doc. S/AC.26/1991/3, and text at notes 17–18, supra. See also Chapter 7 in this volume, at note 4. 92. Fifth “F4” Report, paras. 491–93. 93. Id., paras. 499–502; US$2.355 million awarded.
P U B L I C H E A LT H C L A I M S
[ 211 ]
Regarding PTSD, the Panel reduced Kuwait’s claim by about 50 percent, applying a higher rate of background prevalence,94 and taking into account variations in the times and costs required for treatment of different cases at different medical facilities in Kuwait.95 On the other hand, the Panel rejected the claim for loss of well-being (i.e., reduced quality of life) for persons suffering from PTSD. In particular, the Panel noted that in calculating its losses, Kuwait had used disability weights that are normally intended for making decisions on the cost-effectiveness of alternative public investments in health policies and programs rather than for compensating individual victims of mental illness, and had not provided a reasonable justification for using a value of US$50,000 per life/year to estimate its losses. Although the claimant government had stated that this estimate was at the low end of values that economists use to evaluate the cost-effectiveness of alternative medical interventions in the United States, there was no evidence that the same range was appropriate for the population of Kuwait.96 The F4 Panel disagreed with Kuwait’s calculation of damages for increased mortality attributed to pollution from the oil well fires on the sole basis of statistical estimates (multiplying an assumed number of thirty-five premature deaths by a “value of statistical life” of US$5.5 million per life, derived from estimates in the United States) in combination with a survey of expert opinions.97 While conceding that the effects of increased ground-level concentration of airborne particulate matter in populated areas of Kuwait between February and October 1991 could have been sufficient to cause increased mortality,98 the Panel noted that the claimant government had not submitted any information to demonstrate that thirty-five premature deaths had actually occurred or that any such fatalities were a direct result of the oil fires. In particular, Kuwait had not provided evidence on the specific circumstances of actual deaths that would have enabled the Panel to determine whether such premature deaths could reasonably be attributed, wholly or partially, to factors resulting from Iraq’s invasion and occupation of the country.99
94. Instead of the 2 percent background prevalence indicated by the claimant government, the Panel’s experts calculated an adjusted rate of 11.7 percent, considering the background prevalence of 14.4 percent among Kuwaiti adults who resided outside Kuwait for the duration of Iraq’s invasion and occupation of the country, minus the percentage of these Kuwaitis who suffered PTSD as a result of the invasion (2.7 percent). 95. Fifth “F4” Report, paras. 508–12. 96. Id., paras. 515–18 (cf. text at note 67, supra); see Gautier (note 14, supra) 205. In the view of the Panel, there were major cultural, demographic and economic differences between Kuwait and the United States, which made it very doubtful that the range of values used by Kuwait was suitable in this context. 97. See text at notes 56–58, supra. 98. Applying a concentration-response coefficient derived from studies in the United States, in particular the extended American Cancer Society (ACS) study by C. Arden Pope III et al., Lung Cancer, Cardiopulmonary Mortality and Long-Term Exposure to Fine Particulate Air Pollution, 287:9 Journal of the American Medical Association 1132 (2002). 99. Fifth “F4” Report, para. 524.
[ 212 ]
Jurisprudence and Policy Issues
D. Saudi Arabia
The Kingdom of Saudi Arabia claimed compensation for (a) expenses of treating an increased number of cardiovascular, respiratory, and systemic diseases, (b) treatment costs for an increased number of psychiatric illnesses, and (c) increased mortality; each attributed to pollution from the Kuwait oil fires and oil spills, to contaminants from vehicle emissions and disturbances of desert areas by military activities, or to acts of violence and other traumatic events during Iraq’s invasion and occupation of Kuwait.100 In the view of the Panel, the Exposure and Health Survey (EHS) presented as supporting evidence by the claimant government101 contained a number of uncertainties. It relied on self-reporting by respondents of their medical conditions based on their memory of events that had occurred more than a decade earlier. Saudi Arabia had not taken any measures to validate the reliability of the EHS, and it was not possible to determine whether the responses elicited from survey participants were internally consistent and capable of being reproduced.102 The EHS also relied on oversampling in highly exposed areas within the exposed region, which led to significant overestimates of health impacts and treatment costs. For example, one area (Al Khafji), which was highly exposed to the smoke and which also experienced intense troop movements, represented less than 1 percent of the population of the exposed region, but accounted for 30.1 percent of the sample size. In the view of the Panel, such results reflected conditions in the sampled locations only, and could not be used to demonstrate health conditions in the exposed region as a whole. The Panel also noted that the claimant government did not provide any justification for the extrapolation of health care data from the United States to Saudi Arabia, given the differences in age and gender distributions between the populations concerned.103 Furthermore, the EHS did not indicate the number of persons in Saudi Arabia who were exposed to traumatic events of the type that could cause PTSD; nor did it show that the higher number of PTSD cases found in the exposed region was the result of the Gulf War events.104 With regard to the number of 1,397 persons alleged to have died prematurely in 1991 and 1992 (each valued at US$3.9 million per life lost) as a result of exposure to increased levels of air pollution (calculated on the basis of risk estimates derived from epidemiological studies in North America and Europe),105 the Panel noted that the evidence submitted was not sufficient to demonstrate either that any
100. billion. 101. 102. 103. 104. 105.
Fifth “F4” Report, paras. 685–86; total amount claimed (and denied): US$19.8 See text at note 45, supra. Fifth “F4” Report, para. 696. Id., paras. 697–98. Id., para. 707. See text at note 50, supra. P U B L I C H E A LT H C L A I M S
[ 213 ]
premature deaths had actually occurred in Saudi Arabia or that any such fatalities were a direct result of the invasion and occupation by Iraq. In this regard, the situation of the claimant government was no different from the situation of Kuwait in its corresponding claim previously addressed by the F4 Panel.106
E. Syria
Syria claimed compensation for the costs of medical treatment for an increased number of cases of acute and chronic respiratory diseases, documented by hospital and clinic records for the years before and after the oil well fires in Kuwait, and attributed to the effects of air pollution from the fires.107 In the view of the Panel, while there was some evidence that pollutants released from the oil well fires reached parts of Syria, too, the concentration of air pollutants required to produce the levels of respiratory diseases asserted by Syria was far in excess of the concentrations that could have reached Syrian territory.108 The Panel also considered it reasonable to assume that the number of persons seeking treatment for respiratory diseases between 1991 and 1995 indicated in Syria’s data could have been due, at least in part, to the response of people to public health warnings by the government at the time, and to its decision to provide follow-up treatment to these persons between 1992 and 1995, hence not necessarily to an actual increase in morbidity.109 Consequently, the Panel concluded that the evidence presented by Syria did not provide a sufficient basis for determining the proportion of the increase in the number of respiratory disease cases that could reasonably be attributed directly to Iraq’s invasion and occupation of Kuwait.110
IV. CONCLUDING REMARKS
The outcome of the F4 Panel’s review of public health damage claims offers few surprises in terms of legal reasoning.111 Given the primary fact-finding role of the UNCC, most of the conclusions of the F4 Panel turned on questions of evidence; i.e., the frequent failure of claimant governments to meet the UNCC’s evidentiary standards.112 With regard to the substantive health-related effects of the 1991 oil
106. Cf. text at note 99, supra, and Fifth “F4” Report, para. 715. 107. Fifth “F4” Report, paras. 754–56; total amount claimed (and denied): US$104.2 million. 108. Id., para. 759. 109. Id., para. 760. 110. Id., para. 761. 111. See also Allen, Chapter 6, in this volume. 112. Fifth “F4” Report, paras. 29–31, referring to Article 35 of the UNCC Rules (note 5, supra) and Governing Council Decision 46, S/AC.26/Dec.46 (Feb. 3, 1998).
[ 214 ]
Jurisprudence and Policy Issues
well fires in particular, after having gone through the voluminous documentation received from claimant governments and the detailed critical reviews by the Panel’s expert consultants—also in the light of presentations made at the oral proceedings, and of comments by the respondent government’s experts—the F4 Panel noted in the majority of cases that the evidence submitted did “not provide a sufficient basis for determining the extent to which the effects of the oil well fires might have contributed to the increase in medical treatments”; “what proportion of the increase, if any, can reasonably be attributed (directly) to the invasion and occupation of Kuwait”; “to determine the nature and circumstances of the losses for which compensation is claimed”; or whether these “could reasonably be attributed, wholly or partially, to factors resulting from Iraq’s invasion and occupation.”113 Consequently, the Panel frequently had to conclude that the claimants had failed to meet the evidentiary requirements for compensation as specified in Article 35(3) of the UNCC Rules. In this regard, there was indeed a striking difference between monitoring and assessment (M&A) claims for public health damage on the one hand, and substantive public health damage claims on the other, as reflected in the ratio between the amounts claimed and the recommended amounts ultimately awarded. Unlike the F4 average “success” ratio (of about 6.2 percent),114 more than 56.7 percent of the amounts claimed for M&A in the field of public health was actually awarded— whereas less than 0.1 percent of the amount claimed for substantive public health damages was compensated in the end (see Table 8.1). As the analysis of specific M&A claims shows, that apparent paradox may be explained by the perceived overriding need to generate the necessary data for a meaningful fact-finding process in the first place,115 which consequently required different review criteria;116 and by the subsequent sobering realization that even with optimal monitoring and assessment methods, the data so generated in the majority of cases turned out to be insufficient to meet reasonable evidentiary requirements for substantive claims. The F4 Panel’s rigid adherence to its standards of evidence has met with severe criticism from some of the distinguished U.S. scientists hired by claimant governments (with M&A funding from the UNCC) to support their substantive public health claims, complaining that by denying those claims for lack of sufficient evidence, “the UNCC has failed to establish an international precedent for damages to
113. See Fifth “F4” Report, paras. 272, 280, 289, 517, 524, 530, 699, 708, 715, and 761. On the question of “directness” of the damage, see Fifth “F4” Report, paras. 396 and 403; Gautier (note 14, supra) 195; Allen, Chapter 6 in this volume, text at notes 86-88; and Charles N. Brower, Richard B. Lillich and the United Nations Compensation Commission: Goodbye Forever to “Direct” versus “Indirect” Damages, 38 Va J. Int’l L. 21 (1998). 114. See the summary table in Gautier (note 14, supra), 189. 115. First “F4” Report, para. 39. 116. See note 23, supra.
P U B L I C H E A LT H C L A I M S
[ 215 ]
Table 8.1. AMOUNTS AND PAYMENT OF PUBLIC HEALTH CLAIMS Claimant government
Claims (in US$)
Awards (in US$)
Date paid
Monitoring & Assessment1 Iran
4,635,339
2,134,044
July 26, 2001
332,300
July 28, 2005
Kuwait
27,888,773
20,809,171
July 19, 2001
Saudi Arabia
55,937,743
27,397,069
July 19, 2001
Syria Subtotal
1,394,200 89,856,055
264,600 50,937,184
July 19, 2001
July 28, 2005
Substantive Claims Iran
2,571,509,483
3,366,964
Jordan
886,481,830
nil
Kuwait
1,476,336,427
1,900,000
July 28, 2005
6,364,246
Oct. 27, 2005
Saudi Arabia
19,861,782,707
nil
Syria Subtotal Total
104,233,079 24,900,343,526 24,990,199,581
nil 11,631,210 62,568,394
1 See also tables 17.1 and 17.2 in Caron 2004 (note 23 supra) at 399, 406 (which do not include the M&A award in the Fifth “F4” report issued in 2005).
public health that are the consequences of armed conflict,” with the result that “there is little to discourage future targeting of natural resources and the environment for vandalism and for purposeful harm to large numbers of noncombatant civilians.”117 With all due understanding for the disappointment of unsuccessful claimants, postulating as a primary goal for the UNCC the prevention of future environmental warfare may be asking too much from an ad hoc adjudicatory institution. Yet there can be little doubt that one of the desired benefits of the findings and recommendations of the F4 Panel—leading to the largest amount of compensation ever awarded in the history of international environmental law, including the public health awards to victim countries—will be the long-term deterrent effect of interstate responsibility for environmental damage.118 Significantly, a recent expert
117. Richard V. Lee (Professor of Medicine and Adjunct Professor of Anthropology, State University of New York at Buffalo, leader of the public health assessment team contracted by Saudi Arabia), quoted in UN Denial of Billions in Gulf War Health Compensation Denounced, Environment News Service, July 25, 2005. 118. Cf. Walter G. Sharp, The Effective Deterrence of Environmental Damage During Armed Conflict: A Case Analysis of the Persian Gulf War, 137 Mil. L. Rev. 1, 39 (1992); Brian Jones, Deterring, Compensating, and Remedying Environmental Damage: The Contribution of Tort Liability, in Harm to the Environment: The Right to Compensation and the
[ 216 ]
Jurisprudence and Policy Issues
report by the UN Environment Programme (UNEP) suggests that “the specific methodologies and standards that the UNCC adopted in analysing, assessing, valuing and deciding whether to award compensation for environmental harm during armed conflict provide a baseline for future judicial, quasi-judicial and administrative forums tasked with similar responsibilities”; and recommends “to broaden the principles and approach taken by UNSC Resolution 687 creating the UNCC, by establishing a permanent body in charge of evaluating and possibly compensating for wartime environmental damage.”119
Assessment of Damages 11, 12 (P. Wetterstein ed., Clarendon Press, Oxford 1997); Rüdiger Wolfrum, Means of Ensuring Compliance with and Enforcement of International Environmental Law, 272 Hague Academy of International Law: Recueil des Cours 9, 78 (1998) (“deterrence in respect of environmentally dangerous activities” as an objective of state responsibility); Marie-Louise Larsson, The Law of Environmental Damage: Liability and Reparation 606, 608 (Kluwer Law International, The Hague 1999) (“prevention of future damage” as a basic policy underlying environmental liability schemes); Rüdiger Wolfrum, Christine Langenfeld & Petra Minnerop, Elements of Coherency in the Conception of International Environmental Liability Law, in Environmental Liability in International Law: Towards a Coherent Conception 497 (R. Wolfrum et al. eds, Erich Schmidt Verlag, Berlin 2005) (“deterring the occurrence of damage” as an objective of international environmental liability). 119. Elizabeth M. Mrema, Carl Bruch, & Jordan Diamond, Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law 27, 28 (United Nations Environment Programme, Nairobi 2009); see also Chapter 7, at note 95, and Bruch & Fishman, Chapter 9, in this volume.
P U B L I C H E A LT H C L A I M S
[ 217 ]
This page intentionally left blank
PA RT T H R EE
Looking to the Future
This page intentionally left blank
C HA P TER 9
Institutionalizing Peacebuilding The UNCC, Conflict Resources, and the Future of Natural Resources in Transitional Justice CARL BRUCH AND AKIVA FISHM AN *
INTRODUCTION
W
ith the end of the Cold War, the United Nations and other international institutions have become dramatically more involved in peacebuilding around the world, seeking not only to negotiate peace agreements and provide peacekeeping forces but also to create conditions for a lasting peace. The experience of the UN Compensation Commission (UNCC), its decisions, and its methodologies can inform efforts to improve peacebuilding following other conflicts, particularly with respect to transitional justice. Since the end of World War II, more than 300 armed conflicts have taken place in almost 150 locations around the world.1 The significant majority of the conflicts since the end of the Cold War have been noninternational armed conflicts in developing countries, which depend on natural resources for their national economies and local livelihoods (at least 40 percent of all intrastate conflicts over the past sixty
* Carl Bruch is a senior attorney and co-director of International Programs at the Environmental Law Institute (ELI), and Akiva Fishman is a research associate at ELI. 1. See Monty G. Marshall, Major Episodes of Political Violence, 1946–2009, http://www. systemicpeace.org/warlist.htm (Center for Systemic Peace, last updated on Nov. 9, 2009).
years having had a link to natural resources).2 However, key natural resources such as oil have also played a role—sometimes substantial—in international conflicts, including the 1990–1991 Gulf War. Peacebuilding efforts have seen varying degrees of success. While there are some relatively successful efforts, countries emerging from violent conflict face an estimated 44 percent chance of relapsing into conflict in the first decade.3 And natural resource-related conflicts are more than twice as likely to relapse as other conflicts.4 The international community has recognized this high failure rate and has undertaken a variety of measures to improve the effectiveness of peacebuilding efforts by assessing experiences and approaches to date. The UN Peacebuilding Commission, established in 2005, has a mandate “to marshal resources and to advise on the proposed integrated strategies for post-conflict peacebuilding and recover[y]; to help ensure predictable financing for early recovery activities and sustained financial investment over the medium to long-term; and to develop best practices on issues in collaboration with political, security, humanitarian and development actors.”5 Moreover, the UN Environment Programme (UNEP)—which has conducted more than twenty post-conflict environmental assessments to support post-conflict recovery and peacebuilding6—has partnered with other institutions to undertake a global review of the role of natural resources in post-conflict peacebuilding.7
2. From Conflict to Peacebuilding: The Role of Natural Resources and the Environment, at 8 (United Nations Environment Programme (UNEP) 2009). 3. Piet Goovaerts et al., Demand-Driven Approaches to Livelihood Support in Post-War Contexts, International Labour Organization and World Bank, Social Development Papers, Paper no.29, at 1 (2005), http://siteresources.worldbank.org/INTCDD/214574-1107382173 398/20877452/WP29_Web.pdf. Other estimates of conflict relapse range from 23 percent to 50 percent in the first five to ten years following conflict, largely reflecting methodological differences (e.g., how many battle deaths constitute “conflict” or “relapse to conflict”). 4. Michael Ross, The Natural Resource Curse: How Wealth Can Make You Poor, in Natural Resources and Violent Conflict (Ian Bannon & Paul Collier eds., World Bank 2004). 5. Mandate of the Peacebuilding Commission, United Nations Peacebuilding Commission, available at http://www.un.org/peace/peacebuilding/mandate.shtml; see also UNGA Res. 60/180 (2005), sections 2 a, b, and c, available at http://daccess-dds-ny.un.org/doc/UNDOC/ GEN/N05/498/40/PDF/N0549840.pdf?OpenElement; Security Council Res. 1645 (2005), sections 2 a, b, and c, available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/ N05/654/17/PDF/N0565417.pdf?OpenElement. 6. Ken Conca & Jennifer Wallace, Environment and Peacebuilding in War-Torn Societies: Lessons from the UN Environment Programme’s Experience with Postconflict Assessment, 15(4) Global Governance 485–504 (2009). 7. See Strengthening Post-Conflict Peacebuilding through Natural Resource Management, available at http://www.eli.org/Program_Areas/PCNRM. The research from this project (including more than 120 case studies and cross-cutting analyses) will constitute a series of six edited volumes, published by Earthscan in 2011, as well as a synthesis volume. Carl Bruch, David Jensen, Mikiyasu Nakayama, & Jon Unruh, Post-Conflict Peacebuilding and Natural Resource Management (Cambridge University Press, forthcoming 2011). [ 222 ]
Looking to the Future
Peacebuilding entails a broad range of initiatives to establish security, support political processes, provide basic services, restore governance, and support economic and livelihood development.8 Together, these various peacebuilding activities seek to support “the development of the conditions, attitudes and behaviour that foster and sustain social and economic development that is peaceful, stable and prosperous.”9 Transitional justice has become a key element of peacebuilding, addressing grievances and providing a judicial or quasi-judicial means for punishing violations of domestic and international law during armed conflict. Transitional justice seeks to punish past wrongs and deter potential future wrongs, typically through legal accountability, truth commissions, reparations, and security sector reform.10 For example, special tribunals for Cambodia, the Former Republic of Yugoslavia, and Sierra Leone have prosecuted high-profile leaders responsible for crimes committed during armed conflict. Truth and reconciliation commissions have been set up in numerous countries, ranging from South Africa to Argentina to East Timor. Historically, natural resources have not factored prominently into transitional justice efforts.11 This is starting to change, however, in part due to the emerging recognition of conflict resources and efforts to stem their flow, and to a growing appreciation for the environmental damage inflicted by armed conflict. Additionally, scholars have begun highlighting the role that natural resources can play in dialogue, cooperation, and the process of moving forward after a conflict. Experience with addressing wartime environmental damages has been uneven. The Treaty of Versailles awarded limited damages for agricultural lands destroyed during World War I,12 but compensation was punitive and colored by a sense of victors’ justice, and substantial environmental losses were not compensated.13 In contrast, the Nuremberg Trials following World War II saw the prosecution of two
8. Report of the Secretary-General on Peacebuilding in the Immediate Aftermath of Conflict, UN Doc. A/63/881–S/2009/304 ( June 11, 2009), available at http://www.unrol. org/files/pbf_090611_sg.pdf. 9. Towards a Strategic Framework for Peacebuilding: Getting Their Act Together, Royal Norwegian Ministry of Foreign Affairs, Evaluation Report 1/2004 (April 2004), at 10, available at http://www.prio.no/files/file44563_rapport_1.04_webutgave.pdf. 10. Emily Harwell, Building Momentum and Constituencies for Peace: The Role of Natural Resources in Transitional Justice and Peacebuilding, in Governance, Natural Resources, and Post-Conflict Peacebuilding (C. Bruch, C. Muffett , & S.S. Nichols eds., Earthscan, London forthcoming 2011). 11. Id. 12. See American-Hawaiian Steamship Co. v. Germany, in Reports of International Arbitral Awards vol. VII at 28, quoting Minutes No. 172 of the Versailles Treaty’s Reparation Commission (Apr. 15, 1921) (“the compensation to be made by Germany for account of the landowners whose orchards, plantations, and vineyards were destroyed is limited to the cost of replanting, plus the shrinkage in value of the land after replanting as compared with its value had it not been damaged.”). 13. Arthur H. Westing, Environmental Impact of Conventional Warfare, in War and Environment 58–72 (Wendy Barnaby ed., The Environmental Advisory Council, Ministry of Agriculture Stockholm 1981). INSTITU TIONALIZING PE ACEBUILDING
[ 223 ]
German generals for scorched earth tactics. The U.S. Nuremberg Military Tribunal acquitted Lothar Rendulic (because, the tribunal held, the general reasonably believed the tactics were necessary),14 while the International Military Tribunal convicted Alfred Jodl (judging that the tactics were punitive rather than militarily necessary).15 After World War II, and especially after the Vietnam War, international conventions and protocols increasingly included provisions to protect the environment during armed conflict.16 However, there was very little judicial application of these protections until the 1990–1991 Gulf War and the creation of the UNCC.17 As discussed in other chapters of this book,18 it is unlikely that the specific context that led to the creation of the UNCC will be repeated in the foreseeable future. The legal underpinnings for the UNCC’s mandate (namely, Iraq’s liability was premised on its invasion of Kuwait, violating the UN Charter) differ from those of other tribunals, and the defendant was uniquely wealthy and was not a Permanent Member of the UN Security Council. Likewise, the world was unified following the conclusion of the Cold War only a year prior to the Commission’s establishment. Nevertheless, the UNCC’s approaches and the lessons learned from its experiences are relevant to a variety of tribunals. In recent years, a growing number of international institutions have been called upon to decide claims relating to damage to the environment during armed conflict, pass judgment on the use of natural resources to finance armed conflict, and to resolve competing claims over natural resources. These include the International Court of Justice (called on inter alia to adjudicate claims related to the 1999 Kosovo Conflict);19 various ad hoc criminal tribunals such as those in Sierra Leone and Cambodia, where natural resources played a major role in financing conflicts; an arbitral tribunal constituted at the Permanent Court of Arbitration, which recently decided territorial claims between Sudan and South Sudan, with implications for land, water, and oil resources; and
14. See United Nations War Crimes Commission, 3 Law Reports of Trials of War Criminals 68 (1949). 15. See 22 The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany 517 (1950). 16. See Elizabeth M. Mrema, Carl Bruch, & Jordan Diamond, Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law (Nairobi: United Nations Environment Programme 2009). 17. The UNCC was not basing its mandate on violations of these provisions of international law, but (pursuant to UN Security Council Resolution 687) on violations of the UN Charter. Nevertheless, the general precedent of holding a nation financially liable for severe wartime environmental damage and the approaches are relevant, as discussed infra. 18. See Payne, Chapter 1, and Sand, Chapter 7, both in this volume; and Cymie R. Payne, Legal Liability for Environmental Damage: The United Nations Compensation Commission and the 1990–1991 Gulf War, in Governance, Natural Resources, and Post-Conflict Peacebuilding (C. Bruch, C. Muffett, and S. Nichols eds., Earthscan, London forthcoming 2011). 19. E.g., Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 916 (case dismissed for lack of jurisdiction).
[ 224 ]
Looking to the Future
the International Criminal Court, which is considering charges of scorched earth tactics as part of a genocide claim against Sudan’s President Omar al-Bashir. These institutions range from standing bodies to ad hoc tribunals and include those that deal with criminal law, civil law, and state responsibility. But they all provide nonviolent, legal means of resolving disputes, including those relating to damage to the environment during armed conflict. While the establishment of the UNCC represents a watershed event in the history of adjudicating liability for environmental harm in wartime—including the largest award of compensation by an international body for environmental damages20—most of the damages addressed by the F4 Panel related to the environmental destruction caused by oil fires in Kuwait and the oil spills in the Gulf. The pillage, looting, and otherwise illegal appropriation and exploitation of natural resources, which is a concern in many other conflicts, was not dealt with by the F4 Panel. Pillage was addressed primarily in the context of the E category of the UNCC claims, awarding US$15.9 billion related to oil and oil revenues,21 as well as claims for looted oil sector property.22 This chapter places the UNCC in the broader context of experiences of other international tribunals and courts in punishing misappropriation of natural resources (and particularly conflict resources) and other environmental wrongs from armed conflict. The next section explores the appropriation and exploitation of natural resources during armed conflict, and considers the challenges that these conflict resources pose to post-conflict peacebuilding. It analyzes a range of legal norms (primarily from international humanitarian law) as well as recent precedents that constitute the broader corpus of international law that—in conjunction with the UNCC precedent—will shape how tribunals to address conflict resources in the future. This discussion leads into an examination of how the UNCC’s experiences and approaches may be applied to address conflict resources in other peacebuilding and
20. Cymie Payne, UN Commission Awards Compensation for Environmental and Public Health Damage from 1990–91 Gulf War, American Society of International Law: Insights (Aug. 10, 2005), http://www.asil.org/insights/2005/08/insights050810.html. 21. Report and recommendations made by the Panel of Commissioners concerning the fourth instalment of “E1” claims, UN Doc. S/AC.26/2000/16 (Sept. 29, 2000). These damages included US$14.75 billion for production and sales loss (PSL) and US$1.17 billion for fluid loss (FL). The PSL claims were essentially for lost revenues (i.e., revenues that would have otherwise been expected but were not earned during the period of occupation and recovery); they did not cover the value of the lost oil. The FL claims were for the value of the oil that was lost through spills and the oil well fires. 22. Report and recommendations made by the Panel of Commissioners concerning the second instalment of “E1” claims, UN Doc. S/AC.26/10 ( June 24, 1999) (hereinafter, Second “E1” Report). Nonnatural resource claims of pillage included looted engineering spare parts (paras. 252–54), construction materials (paras. 255–63), and company offices and flats (paras. 345–51). The Second “E1” Report, refers to property “looted” (paras. 232, 236, 255, 310, 345, 346), “seized” and “confiscated” by Iraqi forces (paras. 310, 342), and compensation for confiscated commodities to the Kuwait Oil Company (para. 344).
INSTITU TIONALIZING PE ACEBUILDING
[ 225 ]
transitional justice bodies. The final section offers a few thoughts on future directions for moving from ad hoc responses to conflict resources and wartime environmental harm to a more formalized, institutional framework.
I. CONFLICT RESOURCES: A GAP IN TRANSITIONAL JUSTICE
Exploitation of natural resources has provided revenue streams to purchase weapons, pay soldier’s salaries, and generally support war efforts. Sometimes governments rely on these conflict resources, as in the case of former Liberian President Charles Taylor, who used diamond and timber proceeds. In most instances, though, “conflict resources” refer to the exploitation of natural resources by rebel groups, which often do not otherwise have access to sufficient cash flows to finance hostilities.
A. An Overview of Conflict Resources
Since the end of the Cold War in 1989, at least eighteen conflicts have been financed by conflict resources.23 Diamonds and timber have funded fighting in Liberia; diamonds, oil, gas, and ivory in Angola; bananas, fish, and charcoal in Somalia; marble and poppies in Afghanistan; cacao in Côte d’Ivoire; and coca in Colombia and Peru. Different combatants have exploited conflict resources in different ways. In Angola, UNITA (the National Union for the Total Independence of Angola) directly exchanged ivory and teak for weapons.24 In Liberia, Charles Taylor first converted timber and diamonds into cash on the open market, and then used the cash to purchase weapons and pay soldiers. In Côte d’Ivoire, the Forces Nouvelles taxed the local production of cocoa rather than selling it themselves.25 Regardless of the method of exploitation, revenues from conflict resources can be enormous. The cocoa tax yielded the Forces Nouvelles about US$30 million annually,26 while the Khmer Rouge received US$10–20 million per month in the 1990s from logging activities in Cambodia.27 Revolutionary United Front (RUF) rebels in Sierra Leone earned US$25–125 million per year in the late 1990s through
23. UNEP, supra n. 2. 24. M. Sayagues, Angola: Losing Trees to War, InterPress Service (Sept. 22, 1999). 25. See “Hot Chocolate—How Cocoa fuelled the conflict in Côte d’Ivoire,” Global Witness, available at http://www.globalwitness.org/sites/default/files/pdfs/cotedivoire.pdf. 26. Id. 27. Kirk Talbott, Logging in Cambodia: Politics and Plunder, in Cambodia and the International Community: The Quest for Peace, Development, and Democracy (F. Z. Brown & David G. Timberman eds., Asia Society 1998).
[ 226 ]
Looking to the Future
their control of several mining districts.28 Similarly, it is estimated that UNITA earned more than US$5 billion from the diamond mines under its control by the year 2000.29
B. UN Efforts to Address Conflict Resources
With the proliferation of conflict resources, the United Nations has started to seek ways to constrain the use of natural resources to finance hostilities, initially on an ad hoc basis and in recent years in a more cross-cutting way. One of the most common approaches that the UN Security Council has adopted is to impose a ban or otherwise regulate international trade in conflict resources coming from specific countries. For example, in 1990, the UN Security Council imposed a ban on all commodities and products coming from Iraq and Kuwait, including oil, following Iraq’s invasion of Kuwait.30 In 1993, the Security Council imposed petroleum sanctions and an arms embargo against UNITA,31 and then extended the sanctions in 1998 to cover diamonds exported from Angola that originated in UNITA-controlled territory.32 In 2000 and 2001, the Security Council declared sanctions first on Sierra Leonean rough diamonds, and then on Liberian diamonds in an effort to respectively cut the funding for the Charles Taylor–backed Revolutionary United Front (RUF) and the Taylor government itself.33 After initially banning trade in weapons with armed groups operating in portions of the Democratic Republic of the Congo (DRC) in 2003, the Security Council expanded the scope of the embargo through a series of resolutions that ultimately covered “individuals or entities supporting the illegal armed groups in the eastern part of the Democratic Republic of the Congo through illicit trade in natural resources,” especially including various minerals and timber.34 In three high-profile instances—Liberia, Sierra Leone, and the DRC—the UN Security Council provided a mandate for UN peacekeepers to monitor and step in to curb the exploitation of conflict resources. For example, in 2008, the Security Council granted a mandate to the UN peacekeepers in the DRC to proactively
28. Report of the Panel of Experts Appointed Pursuant to Security Council Resolution 1306 (2000), in relation to Sierra Leone, S/2000/1195, Dec. 20, 2000. 29. Colum Lynch, U.N. Urged to Enforce Sanctions on Angola, Washington Post, Mar. 16, 2000. 30. S.C. Res. 661, U.N. Doc. S/RES/661 (1990). The Security Council continues to regulate oil coming from Iraq to this day, S.C. Res. 1905, S/RES/1905 (Dec. 21, 2009), para. 4. 31. S.C. Res. 864 (1993). 32. S.C. Res. 1173 (1998) & 1176 (1998). 33. S.C. Res. 1306, U.N.Doc. S/RES/1306 ( July 5, 2000); S.C. Res. 1343, U.N.Doc. S/RES/1343 (Mar. 7, 2001). 34. S.C. Res. 1493, U.N. Doc. S/RES/1493 (banning trade in weapons), S.C. Res. 1857, 4(g), U.N. Doc. S/RES 1857 (2008) (concerning illicit resources).
INSTITU TIONALIZING PE ACEBUILDING
[ 227 ]
“use its monitoring and inspection capacities to curtail the provision of support to illegal armed groups derived from illicit trade in natural resources.”35 While the provisions relating to natural resources were included in the initial peacekeeping mandates for Liberia and the DRC, it was only five years after the initial 1999 deployment of the UN peacekeeping mission in Sierra Leone that the Security Council expanded the mandate to include “support[ing] the Sierra Leone armed forces and police in patrolling: . . . diamond mining areas . . .”36 The UN Security Council has established Panels of Experts to investigate the illegal exploitation of natural resources financing conflict, and to report on illicit and illegal activities in a number of countries including Angola, Cote d’Ivoire, Sierra Leone, Liberia, and the DRC.37 The Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the DRC (created by the Security Council in 2000) identified wrongful expropriation of timber and minerals in Eastern DRC and named those involved, including high-ranking officers in the Rwandan and Ugandan armies.38 Building on the various ad hoc experiences, the UN General Assembly and the UN Security Council are increasingly addressing systemic issues related to conflict resources. This includes establishing the Peacebuilding Commission (mentioned above), supporting the Kimberley Process Certification Scheme,39 and discussing conflict resources in the Security Council.40 These efforts have generally sought to control, sanction, and monitor trade in conflict resources. There is growing interest in utilizing the legal system to impose criminal and civil penalties for exploitation of conflict resources.
35. S.C. Res. 1856, U.N.Doc. S/RES/1856, para. 3(j) (2008). 36. S.C. Res. 1562, para. 2 (2004). 37. S.C. Res. 1237, U.N. Doc. S/RES 1237 (1999) (Angola), S.C. Res. 1572, U.N. Doc. S/RES 1572 (2004) (Cote d’Ivoire), S.C. Res. 1306, U.N. Doc. S/RES 1306 (2000) (Sierra Leone), and S.C. Res. 1343, U.N. Doc. S/RES 1343 (2001) (Liberia). There were three Panels of Experts for the DRC, issuing four reports. The first DRC Panel of Experts was established in 2000 by Statement of the President of the Security Council, S/PRST/2000/20. S.C. Res. 1533 (2004) established the second Panel (referred to as the Group of Experts). 38. Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, UN Doc. S/2001/357 (Apr. 12, 2001); Interim Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, UN Doc. S/2002/565 (May 22, 2002); Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, UN Doc. S/2002/1146 (Oct. 16, 2002); Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, UN Doc. S/2003/1027 (Oct. 28, 2003). 39. See, e.g., The Role of Diamonds in Fueling Conflict: Breaking the Link between the Illicit Transaction of Rough Diamonds and Armed Conflict as a Contribution to Prevention and Settlement of Conflicts, UNGA Res. A/61/28 (Nov. 21, 2007). 40. Maintenance of International Peace and Security: Natural Resources and Conflict, UN Security Council S/PRST/2007/22 ( June 25, 2007).
[ 228 ]
Looking to the Future
C. Misappropriation of Conflict Resources
International law includes a variety of obligations and prohibitions that bear on conflict resources, although these provisions were not developed to specifically address conflict resources. Increasingly, international institutions have had to consider how to apply this ill-suited body of law to address depletion of natural resources (e.g., the UNCC), as well as pillage, plunder, and misappropriation of conflict resources (e.g., the International Court of Justice). This analysis is complicated by the different terms used to describe the same set of illicit activities. Exploitation of conflict resources has been variously referred to as “pillage,” “looting,” “spoliation,” “illegal exploitation,” and other terms generally lumped under “misappropriation.” This section and the following section examine the international law and judicial precedents that address—but often fail to define—these concepts. International humanitarian law prohibits pillage. This prohibition is widespread, unambiguous, and—ironically—of indeterminate scope. The term is never defined in international instruments, and there is rarely much amplification aside from the general prohibition against pillage. Moreover, most of these prohibitions against pillage apply to international conflicts. The 1907 Hague Convention (IV) “formally” prohibits pillage.41 Moreover, occupying states must “be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State,” and occupying states must “safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”42 Similarly, the Geneva Convention relative to the Protection of Civilian Persons in Time of War also prohibits pillage, as well as specifically proscribing “any destruction by the occupying power of real or personal property belonging individually or collectively to private persons, or to the state. . . except where absolutely necessary by military operations.”43 With respect to noninternational armed conflict, Additional Protocol II to the Geneva Conventions prohibits pillage “at any time and in any place whatsoever” against all noncombatants and ex-combatants.44 The Rome Statue establishing the International Criminal Court classifies as a war crime “[p]illaging a town or place,
41. The Hague Convention (No. IV) Respecting the Laws and Customs of War on Land, signed at The Hague, 18 October 1907, art. 47, available at http://www.icrc.org/IHL.nsf/52d6 8d14de6160e0c12563da005fdb1b/1d1726425f6955aec125641e0038bfd6; see also art. 28 (“The pillage of a town or place, even when taken by assault, is prohibited”). 42. Id., art. 55. 43. Geneva Convention relative to the Protection of Civilian Persons in Time of War, art. 53, available at http://www.unhcr.org/refworld/docid/3ae6b36d2.html. 44. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, art. 4(2)(g), available at http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/d67c3971bcff1c 10c125641e0052b545.
INSTITU TIONALIZING PE ACEBUILDING
[ 229 ]
even when taken by assault” when carried out either in the context of international or noninternational armed conflict.45 The Rome Statute additionally targets those who finance armed groups that commit crimes within the jurisdiction of the International Criminal Court, whether in international or noninternational armed conflicts.46 Thus, individuals who are engaged in trading conflict resources could be liable for international crimes committed by the armed groups. The prohibition against pillage applies to states (through the Hague and Geneva conventions), to individual members of the armed forces (through the Rome Statute), and to nonstate actors such as insurgents and individual private sector actors. At Nuremberg, the U.S. Military Tribunal and the International Military Tribunal convicted defendants from several major industrial conglomerates for looting and spoliation.47 Does “pillage” address the specific situation of conflict resources, that is does it include the extraction, sale, and otherwise looting of natural resources? While frequently prohibited by international instruments, the lack of a formal definition of the term “pillage” is striking. Commentators have observed that the terms “pillage,” “plunder,” “looting,” “sacking,” and “appropriation” are often used interchangeably with no clear definition.48 Indeed, a number of post–World War II trials prosecuted individuals and institutions for pillage without clarifying the term.49 In its authoritative commentary on the Geneva Convention (IV), the International Committee of the Red Cross (ICRC) notes that the “prohibition is an old principle of international law” that prohibits both “pillage through individual acts without the consent of the military authorities, [as well as] organized pillage, the effects of which are recounted in the histories of former wars, when the booty allocated to each soldier was considered as part of his pay.”50 The prohibition of pillage is applicable to the territory of a party to the conflict as well as to occupied territories. It guarantees all types of property, whether they
45. Rome Statute, art. 8(2)(b)(xvi) (for international armed conflict) and art. 8(2)(e)(v) (for noninternational armed conflict), available at http://untreaty.un.org/cod/icc/statute/ romefra.htm. 46. Financiers may be judged liable as aiders and abettors under Article 25(3)(c) of the Rome Statute where their support enables the crime. If armed groups commit pillage, their financiers can be held accountable under Articles 25(3)(c) or perhaps 25(3)(d), if there was a “common purpose.” 47. See, e.g., United States v. Flick, VI Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 at 1187 (United States Printing Office, Washington DC 1949). 48. See, e.g., Knut Dörmann et al., Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary 279 (Cambridge University Press 2003). 49. Id.; see also Daniella Dam-deJong, International Law and Resource Plunder: The Protection of Natural Resources during Armed Conflict, 19 Ybk. Int’l Envtl. L. 27 (2008). 50. ICRC Commentary, available at http://www.icrc.org/IHL.NSF/COM/380-600038? OpenDocument. [ 230 ]
Looking to the Future
belong to private persons or to communities or the state. On the other hand, it leaves intact the right of requisition or seizure.51 There has been a notable dearth of application of these provisions by international tribunals to the specific context of conflict resources. However, the universal nature of the prohibition against pillage (in both international and noninternational armed conflicts) and the breadth of the prohibition (with almost no qualifiers that limit it to cities, habitations, or even generally human improvements) indicate a broad imperative to prohibit the wrongful seizure of property, goods, and wealth by armed forces. In addition to the explicit prohibitions against pillage, the Hague Convention (IV) and Geneva Convention (IV) impose obligations on occupying states to administer the resources of the occupied country (including forests and agricultural estates) “in accordance with the rules of usufruct” and prohibit destruction of all property not allowed by military necessity. Strictly speaking, the provisions of these conventions apply only during international armed conflict, but they may inform interpretation and application of international law governing conflict resources in noninternational armed conflicts. There have been some case law and commentary related to occupying states exploiting oil, but the potential use of petroleum for military purposes (as opposed to its financial dimension of potentially financing conflict) seems to set it apart from other resources.52 The clear weight of international commentary is to the effect that occupying armies (and not just occupying states) shall not loot, misappropriate, pillage, or otherwise take valuable natural resources, whether for personal gain or to finance armed conflict. Recent case law, discussed below, confirms that international tribunals are starting to apply international law to address conflict resources, albeit in a tentative and conservative manner.
D. Conflict Resources, Transitional Justice, and Accountability Mechanisms
Over the last decade, international tribunals have started to address conflict resources, both as part of the transitional justice process and more broadly.
51. Id. 52. E.g., N.V. De Bataafsche Petroleum Maatschappij v. War Damage Commission (1956), Singapore Court of Appeal, 23 I.L.R. 810 (damages awarded against the Japanese government for seizure and exploitation of Dutch oil wells on Sumatra during WW II, holding that unrefined oil was not “munitions of war”). For analysis of Israel’s extraction of oil from the Sinai following the Six Day War, see Edward R. Cummings, Oil Resources in Occupied Arab Territories Under the Law of Belligerent Occupation, 9 Journal Int’l L. & Econ. 592 (1974); Brice Claggett & O. T. Johnson, Jr., May Israel as a Belligerent Occupant Lawfully Exploit Previously Unexploited Oil Resources of the Gulf of Suez?, 72 Am. J. Int’l Law 558 (1978). For analysis of U.S. extraction of oil in Iraq, see Michael A. Lundberg, The Plunder of Natural Resources during War: A War Crime (?), 39 Geo. J. Int’l L. 495 (2008). INSTITU TIONALIZING PE ACEBUILDING
[ 231 ]
Two examples are particularly illustrative: criminal prosecution of three former leaders of the Revolutionary United Front (RUF) by the Special Court for Sierra Leone, and the case brought by the DRC against Uganda and others for actions taken during the occupation of provinces in Eastern DRC. In Prosecutor v. Sesay et al.,53 five former RUF leaders (Foday Saybana Sankoh, Sam Bockarie, Issa Hassan Sesay, Morris Kallon, and Augustine Gbao) were charged with seventeen (amended to eighteen) counts of war crimes, crimes against humanity, and other serious violations of international humanitarian law. Among other counts, the accused were charged with undertaking a joint criminal enterprise “to take control of Sierra Leone territory, especially diamond mining areas . . . and the reasonable foreseeable outcomes of that enterprise including crimes of . . . looting and pillage of civilian property.” The trials against Sankoh and Bockarie were dropped due to their respective deaths. The pillage charge in the indictment (count fourteen) was limited to pillage of civilian homes. However, the charges of enslavement and terrorism (counts thirteen and one, respectively) related to the hundreds of noncombatants whom the RUF compelled to work as diamond miners, many of whom were killed at or around the mining sites.54 The Trial Chamber convicted the three remaining defendants (Sesay, Kallon, and Gbao), holding that they shared in the joint criminal enterprise and that they significantly contributed to the crimes that were committed in pursuit of this criminal enterprise. The Trial Chamber also noted that looting was a systematic feature of RUF operations (including the announcement of “Operation Pay Yourself ”). Sasay was found guilty on sixteen counts, including the charge of enslavement (reflecting his involvement in and planning forced labor for diamond mining); and Kallon was found guilty on sixteen counts, including the charge of enslavement (due to his involvement in forced labor at diamond mining sites).55 The Special Court for Sierra Leone also charged Charles Taylor with eleven counts of war crimes, crimes against humanity, and other serious violations of international humanitarian law. Again, the pillage charge (count eleven) related only to looting of civilian property.56 However, the prosecutor did allege that Sierra Leone’s mineral wealth—and especially diamonds—played a central role in motivating
53. Prosecutor v. Sesay, Kallon and Gbao, Case No. SCSL-04-15-T. 54. The terrorism charge was broader than the actions at and around the mining sites. 55. Prosecutor v. Sesay et al., SCSL-04-14-T, Judgment, 25 February 2009. With one exception (overturning Gbao’s conviction on count two, upholding conviction on the remaining twelve counts), the Appeals Chamber upheld the Trial Chamber on the other convictions. 56. The Prosecutor was reported in the media as stating that Taylor had been charged with pillaging Sierra Leone’s natural resources. However, neither the indictment nor the amended indictment includes such a charge. See Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, Case No. SCSL-03-1-T, Decision on Motion for Disclosure of Evidence Underlying Prejudicial Statements Made by the Chief Prosecutor, Mr. Stephen Rapp, to the Media, paras. 24–26 (Feb. 6, 2009).
[ 232 ]
Looking to the Future
Taylor’s actions and in the undertaking of a joint criminal enterprise with the former RUF leaders also on trial.57 As of December 2010, the trial is ongoing. These two cases (Prosecutor v. Sesay et al. and Prosecutor v. Taylor) are significant for a few reasons. The court had evident difficulties in crafting a charge for exploiting natural resources in wartime. The prosecutor clearly saw that diamonds were a motivating and enabling factor (as evidenced by his references to diamonds and Sierra Leone’s mineral wealth more generally), but apparently felt that it would be too novel to argue that exploitation of conflict resources constituted pillage or another war crime, crime against humanity, or serious violation of international humanitarian law. The cases also highlight innovative ways that the prosecutor sought to prosecute actions related to conflict resources, including the charges of enslavement and terrorism (resulting in successful convictions in the RUF case) and as motivating factors in the joint criminal enterprise (ongoing). The cases are also significant in that the individuals who planned, ordered, or otherwise aided in pillage and related activities can be held criminally liable. With the growing recognition of the challenges presented by conflict resources, the growing attention (and resolutions) from the UN Security Council, and the precedent of the RUF case, future criminal tribunals may be more inclined to directly prosecute exploitation of conflict resources. The other significant case worth mentioning is the International Court of Justice (ICJ) decision in the Armed Activities case (DRC v. Uganda). In 1999, the DRC filed an application before the ICJ instituting proceedings against Uganda58 alleging “acts of armed aggression perpetrated in flagrant violation of the Charter of the United Nations” as well as looting, plundering, and exploitation of the DRC’s natural resources by Uganda’s Peoples Defense Forces (UPDF). The claim rested on violation of Article 2(4) of the UN Charter (the same legal basis for the UNCC claims),
57. Indictment, Prosecutor v. Charles Ghankay Taylor, Special Court for Sierra Leone, Case No. SCSL-03-1, para. 20 (Mar. 3, 2003) (“To obtain access to the mineral wealth of the Republic of Sierra Leone, in particular the diamond wealth of Sierra Leone, and to destabilize the State, the ACCUSED provided financial support, military training, personnel, arms, ammunition and other support and encouragement to the RUF. . .”). See also para. 23 (“The RUF and the AFRC shared a common plan, purpose or design (joint criminal enterprise) which was to take any actions necessary to gain and exercise political power and control over the territory of Sierra Leone, in particular the diamond mining areas. The natural resources of Sierra Leone, in particular the diamonds, were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.”). 58. The DRC filed complaints against Uganda, Rwanda, and Burundi. However, Rwanda and Burundi did not recognize the compulsory jurisdiction of the Court to hear the case. Uganda did, and the case proceeded. See “The Court Fixes Time-Limits for the Filing of Written Pleadings and Decides That in Two Cases the Proceedings Shall First Address Questions of Jurisdiction and Admissibility,” Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi) and (Democratic Republic of the Congo v. Rwanda), Press Release1999/45 (Oct. 25, 1999).
INSTITU TIONALIZING PE ACEBUILDING
[ 233 ]
as well as subsequent violations of international humanitarian law and international human rights law. In the first clear international judicial decision addressing conflict resources, the ICJ held that Uganda violated international law by illegally exploiting natural resources, particularly in Ituri District: by acts of looting, plundering and exploitation of Congolese natural resources committed by members of the Ugandan armed forces in the territory of the Democratic Republic of the Congo and by its failure to comply with its obligations as an occupying Power in Ituri district to prevent acts of looting, plundering and exploitation of Congolese natural resources, [Uganda] violated obligations owed to the Democratic Republic of the Congo under international law.59
The Court rejected Uganda’s claim of self-defense and unanimously held that Uganda is obliged to pay reparations to the DRC (which the DRC estimates to be US$6–10 billion).60 If the two countries cannot agree on the reparations due to the DRC, the Court reserved jurisdiction to decide the amount.61 [As of December 2010, no announcement had been made regarding the amount or payment of reparations.] The Armed Activities case is significant for many reasons. As one commentator observed, “the Court treats the legal categories of misappropriation mostly as an ensemble of equivalent, interchangeable, or aggregate forms of acquisition, thereby restraining itself from distinguishing between the various categories.”62 In particular, the Court held that Uganda’s actions constituted “acts of looting, plundering and [illegal] exploitation of Congolese natural resources.” However—as noted above in the context of pillage—the three categories of action are used interchangeably and without any specific definition. The original application filed by the DRC did not request the Court to rule on “illegal resource exploitation”—it was only a year later that the DRC started to include pillage, spoliation, illegal exploitation, and other similar charges.63 The initial
59. Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, at 168, para. 345 (hereinafter, Armed Activities). 60. In a counterclaim by Uganda against the DRC for abuse of Ugandan diplomats in violation of the 1961 Vienna Convention on Diplomatic Relations, the ICJ held that the DRC was liable to Uganda and similarly encouraged the countries to negotiate a payment. 61. Armed Activities, para. 345. 62. Robert Dufresne, Reflections and Extrapolation on the ICJ’s Approach to Illegal Resource Exploitation in the Armed Activities Case, 40 Int’l L. & Politics 171, 173–74 (2008). Dufresne also notes that the International Criminal Tribunal for the former Yugoslavia “recently recognized that ‘pillage’ is used rather interchangeably with ‘plunder’ in practice . . .” Id., at 186 (citing Prosecutor v. Delalic et al., Case No. IT-96-21-T, Judgment, para. 591 (Nov. 16, 1998)). 63. Dufresne, supra n. 62, at 181–82; see, e.g., Request for the Indication of Provisional Measures ( June 19, 2000), at 2, available at http://www.icj-cij.org/docket/files/116/8311.pdf.
[ 234 ]
Looking to the Future
failure to include the charge and the subsequent evolution in the formulation likely reflect the fact that this was a case of first impression, and the precise bases under international law have yet to be agreed upon. Drawing heavily upon reports of UN Panels of Experts and the Porter Commission, the Court held that there was “ample credible and persuasive evidence” to conclude that Ugandan army officers and soldiers “were involved in the looting, plundering and exploitation of the DRC’s natural resources.”64 However, the Court also held that it did not have sufficient evidence of a “governmental policy by Uganda to exploit the resources of its neighbors.”65 Where the Ugandan armed forces were an occupying power, the Court held that Uganda was liable for looting, plundering, and illegal exploitation of natural resources by companies and private individuals.66 Thus, a state can be responsible and liable to pay reparations for governmental policies, for actions by its military as a whole, for actions of its military officers and soldiers, and even—where armed forces constitute an occupying power—for actions by third parties in exploiting the natural resources of other countries.67 The Court based its holdings on international humanitarian law, including the law of occupation, ultimately deciding not to rely on the public international law concept of permanent sovereignty over natural resources (a novel argument submitted by the DRC).68 The law of occupation was particularly important. The Court’s formulation is perhaps relevant to noninternational armed conflicts: The Court observes that, under customary international law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised.69
This formulation does not rest on the Hague Regulations, but uses the Hague Regulations as illustrative (so the formulation is not necessarily restricted to international conflicts). Moreover, the formulation refers to a hostile army, not to an occupying state, hostile state, or other state actor. As such, this formulation of the law of occupation appears to apply to noninternational armed conflict, as well as international armed conflict. The subsequent discussion (in paragraphs 173 et seq.) is framed in terms of whether a state is an occupying power, but that arguably is applying the general rule in paragraph 172 to the specific context of the case before
64. Armed Activities, para. 242. 65. Id. 66. Id., paras. 247–50. 67. Id., paras. 213, 240, 243, 248–50. 68. Id., para. 244. The Court did note, however, that “this principle . . . is a principle of customary international law,” but it was unclear whether the principle applied in the particular context of the case. Id. 69. Id., para. 172 (emphasis added).
INSTITU TIONALIZING PE ACEBUILDING
[ 235 ]
the Court. The question may remain, though, whether an occupying hostile army in a noninternational conflict has the same obligations as in an international conflict. The Court held Uganda responsible for the conduct of the Ugandan military in exploiting natural resources throughout the DRC. With respect to actions by thirdparty, nonstate actors, Uganda’s status as an occupying power was central to the Court’s analysis, imposing obligations on Uganda to “take appropriate measures to prevent the looting, plundering and exploitation of natural resources in the occupied territory . . . [by] private persons in this district and not only members of Ugandan military forces.”70 In this instance, the Court held that Uganda was an occupying power in Ituri, Uganda did not fulfill its obligations as an occupying power in Ituri, and was thus responsible for “all acts of looting, plundering and exploitation of natural resources” that occurred there.71 Notwithstanding the precedents just enumerated, the decision leaves some key questions unanswered. The Court did not address exploitation where there was no occupying power, nor did the Court explicitly address the context of noninternational armed conflicts. Moreover, it is unclear whether trading in conflict resources is a violation of international law.72 Together, these three cases—as well as the collection of UNCC decisions— illustrate the challenges that international tribunals are facing as they consider cases of first impression relating to environmental damage and exploitation of natural resources during armed conflict. The legal bases are not always clear, there remain many gaps (providing fodder for many law review articles), and there are relatively few precedents upon which to draw. And all the while, conflict resources continue to challenge many countries emerging from conflict.
II. TOWARD A MORE INSTITUTIONALIZED APPROACH
The experience, approaches, and lessons of the UNCC establish a historic precedent for other tribunals addressing conflict resources and wartime environmental
70. Id., para. 242. 71. Id., para. 250. 72. At least two countries have prosecuted people who traded in conflict resources. Belgium successfully prosecuted two men—Samih Ossaily and Aziz Nassour—for violating the UN embargo on conflict diamonds from Sierra Leone. See First Conviction for Trafficking in Blood Diamonds, Het Nieuwsblad, Dec. 7, 2004, available at http://www.nieuwsblad.be/Article/ Detail.aspx?articleID=ggqaq3c5. The Netherlands prosecuted and convicted (in 2006) Guus van Kouwenhoven of using Liberian timber revenues to engage in arms trade, in violation of the Security Council embargo (his conviction was overturned on appeal in 2008; in April 2010, the Dutch Supreme Court ordered a retrial). And France had initiated criminal charges against a French company for violating the Security Council ban on Liberian timber. Joe K. Roberts, Liberia: Timber Thieves? Millions—LBDI Accounts, Several Former Officials Listed as Legal Battle Begins in France, allAfrica.com, Dec. 15, 2009, available at http://allafrica.com/stories/ 200912151022.html.
[ 236 ]
Looking to the Future
damage. Other chapters in this volume examine issues related to the cause of action, potential claimants, potential defendants, and assessing and valuing environmental impacts. Moreover, the companion volume73 examines other claims, including the E claims, processed by the UNCC, which would also have direct bearing on tribunals addressing conflict resources. Although ad hoc, the UNCC provides a number of important lessons that could lay the foundation for a more systematic approach to adjudicating claims related to abuse of natural resources and damage to the environment during armed conflict. Security Council Resolution 687 set a precedent for holding parties liable for damages caused and creating a concrete fund to disburse compensation.74 Moreover, its multilateral approach held all states responsible for “the safeguarding of common concerns to protect and conserve the Earth’s natural heritage, irrespective of its territorial location,” helping to ensure that community interests—including environmental interests—receive proper attention in the transition from conflict to a durable peace.75 Since the 1990s, there has been a rapid growth in ad hoc tribunals and institutions designed to punish wartime wrongs, rebuild government and governance, and reweave social trust and cohesion—in short, to promote transitional justice.76 These bodies have yet to consistently address issues related to conflict resources or wartime environmental damage.77 Permanent institutions such as the International Court of Justice, the International Criminal Court, and the Permanent Court of Arbitration have started to consider cases related to natural resources and wartime environmental damage, but the nature of their limited mandates constrains their ability to address the issues fully.78
73. Gulf War Reparations and the UN Compensation: Designing Compensation After Conflict (C. Gibson & T. Feighery eds., Oxford University Press 2011). 74. Luan Low & David Hodgkinson, Compensation for Wartime Environmental Damage: Challenges to International Law after the Gulf War, 35 Va. J. Int’l L. 405 (1995). 75. Peter H. Sand, Compensation for Environmental Damage from the 1991 Gulf War, 35(6) Envtl Pol’y & L. 244 (December 2005). 76. Assessing the Impact of Transitional Justice: Challenges for Empirical Research (Hugo van der Merwe et al. eds., Washington, DC 2009), The Rule of Law and Transitional Justice in Conflict and Post-Conflict Countries: Report of the Secretary General, UN Doc. S/2004/616 (Aug. 23, 2004); Andrew G. Reiter, Transitional Justice Bibliography, ver. 4.0 (Nov. 4, 2009), available at http://sites.google.com/site/transitionaljusticedatabase/ transitional-justice-bibliography; Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vols. I–III (Neil Kritz ed., Washington, DC 1995). 77. Harwell, supra n. 10. 78. These constraints include: for the ICJ and the PCA, lack of compulsory jurisdiction and the focus on states as parties (although less so for the PCA, which does address disputes involving states, private parties, state entities, and intergovernmental organizations); and for the ICC, the exclusive emphasis on enumerated crimes. Another challenge for the PCA and ICJ, is that the disputes brought before them are generally between two parties. Where a dispute involves more than two parties, the claims must be filed separately and are processed separately, as in Serbia and Montenegro’s case(s) against ten NATO countries relating to the 1999 Kosovo Conflict. This can pose challenge where there are many potential claimants, as was the
INSTITU TIONALIZING PE ACEBUILDING
[ 237 ]
To more effectively provide compensation for environmental damage and looting of natural resources during armed conflict, future tribunals will need to move beyond the ad hoc model to a more institutionalized approach complete with permanent funding sources. A number of measures have been proposed.79 First, the international community should establish a permanent body to monitor wartime violations of international law and determine compensation for environmental damage. This could take the shape of a single institution for addressing both conflict resources and environmental damage, or—if necessary for administrative or political reasons—different institutions could address them separately. Consistency in procedure and jurisprudence would be helpful for judges, parties, and staff alike; the UNCC, Iraq, and the claimants found it challenging to deal with so many novel issues. Future institutions will likely face similar issues, including the types of claims that may be admissible, the kind and amount of evidence that will be required, the range of expertise necessary to staff the institution, and the benefits and challenges of electronic filing. The UNCC experience both reiterates the importance of continuity and building on previous experiences and provides potential models for how to address the specific issues. Institutional continuity would reduce the transaction costs associated with having to redevelop and adapt the administrative, legal, and valuation methodologies employed by previous ad hoc institutions to determine compensation every time a new armed conflict breaks out.80 Alternatively, the mandate of the Permanent Court of Arbitration (PCA) could be expanded, allowing it to play a role similar to that of the UNCC following the 1990–1991 Gulf War, but on a permanent basis. The PCA’s powers would have to be extended to cover disputes sparked by wartime environmental damages, and the Court would have to be granted the authority to appoint experts to assess environmental damage and compensation. The PCA has adopted two sets of optional rules on arbitration and conciliation of disputes related to the environment and/or natural resources, and these sets of optional rules could provide a conceptual foundation for such an expansion of a mandate.81 For example, the optional rules on
case with the UNCC. And it can become further complicated by numerous nonstate actors and other private parties. 79. The following analysis expands upon Mrema et al. (2009), supra n. 16, especially at 53–54. 80. It has been suggested that a permanent claims commission be established by multilateral treaty, which would entail permanent machinery for establishing ad hoc claims commissions rather than a permanent tribunal. New commissions would be formed either via agreement between the parties to a conflict or by imposition by the Security Council. See Menno T. Kamminga, Towards a Permanent International Claims Commission for Victims of Violations of International Humanitarian Law, 25 Windsor Y.B. Access Just. 23 (2007). 81. Permanent Court of Arbitration, Optional Rules for Arbitration of Disputes Relating to the Environment and/or Natural Resources (2001); Permanent Court of Arbitration, Optional Rules for Conciliation of Disputes Relating to the Environment and/or Natural Resources (2002).
[ 238 ]
Looking to the Future
environmental arbitration provide for the establishment of panels of environmental experts, as well as arbitrators and conciliators with expertise in environmental matters. These panels could, in theory, be expanded to provide for panels that could investigate environmental damage and conflict resources. Even if such an expansion of the PCA’s mandate occurred, though, it would likely be limited. The PCA generally is limited to situations in which both parties agree to submit a dispute to the PCA. Moreover, instances where there are multiple state and private parties to a dispute would entail a different approach than the PCA generally follows, and may necessitate the adoption of new administrative procedures. Furthermore, disputes regarding wartime environmental harm and conflict resources would be unlikely to be agreed to by both parties. Notwithstanding its limitations, there is merit in strengthening the capacity of the PCA to address natural resource and environmental disputes associated with armed conflict: the PCA’s decision in the Sudan Abyei dispute was an important precedent in deciding post-conflict disputes over territory and related resources, and the PCA could likely address other similar issues. However, cases related to conflict resources are likely to be more challenging, due to the often substantial funds that conflict resources generate, the benefits of conflict resources that inure to the elites, and the potential individual liability (criminal and financial) that may flow indirectly from a PCA decision on conflict resources. While it would be challenging to establish, a permanent UN institution with a mandate to investigate, monitor, and address environmental damage and illegal exploitation of natural resources during armed conflict would be the most effective. The institutional structure of the UNCC would be a logical starting point. Such a body should have a core set of mandates, namely the authority to investigate and adjudicate alleged violations of international law arising from both international and noninternational armed conflicts; the capacity to process claims relating to environmental damage, public health, loss of natural resources (including conflict resources), and environmental remediation; and the ability to develop mechanisms, procedures, and norms to redress the environmental impacts of armed conflict. This permanent UN body could provide the mechanism—perhaps triggered by the UN Security Council—for monitoring and enforcing sanctions and other measures related to conflict resources, or liaise with bodies responsible for such monitoring and enforcement on the ground, such as the UN Department of Peacekeeping Operations (which would also need a more consistent mandate to monitor the illegal exploitation and trade of conflict resources). Regardless of whether a new institution is established or the mandate of an existing institution is expanded, the international community should consider both procedural efficiency and equity. The UNCC dealt with its caseload comparatively quickly and cost-effectively, in large part because it was not a strictly adversarial process. Strict adversarial proceedings can significantly delay resolution of claims, as parties use procedural rules to draw out the process. This has been the case with both the Iran-U.S. Claims Tribunal (at the international level) and the Exxon Valdez INSTITU TIONALIZING PE ACEBUILDING
[ 239 ]
case (at the national level), both of which have yet to resolve all the claims after decades of motions, arguments, and appeals. In this respect, the UNCC could be an informative starting point for developing streamlined procedural rules that yield results in a time frame that are meaningful for environmental restoration. These may include, for example, limited rights of response and strict deadlines. In addition, the international community should consider means or mechanisms to address damages that may not become apparent until after the conclusion of the initial claims process (e.g., public health impacts due to environmental contaminants, which may take decades to manifest or clearly understand). Acknowledging the challenges associated with the establishment of a permanent body to investigate, monitor, and decide on issues related to conflict resources and environmental damage from armed conflict, there are a range of incremental measures that the United Nations and international community can take. As a first step, the United Nations should define “conflict resources.” This definition could focus on natural resources that are associated with violations to human rights and international humanitarian law, whether because they contribute to such violations or benefit from them. A clear definition would allow sanctions and other measures to be raised more easily and monitored more effectively. As a result the United Nations could more consistently and systematically include in the mandate of its peacekeeping missions provisions to track the extraction and trade of conflict resources, as well as step in where necessary to stem their flow.82 Definitions of “environment” and “natural resources”—which would affect subject matter jurisdiction—would also be central to the effective operation of other institutions addressing damage to and illegal exploitation of natural resources during conflict. Some institutions utilize a relatively restrictive definition of the types of harms that they will consider (such as the International Oil Pollution Compensation Funds). In order to effectively and equitably address wartime damage to the environment and natural resources, tribunals will need to adopt a broad and flexible definition of “environmental and natural resource damage,” similar to that under which the F4 Panel operated. Other discrete measures relate to international criminal law, concessions, and sustaining a technical and political dialogue on the matter. Participants in the First Review Conference of the International Criminal Court Statute in 2010 could have—but did not—expanded the Statute’s provisions for protecting the environment during armed conflict, both with respect to damage to the environment, as well as illegal exploitation of natural resources to fuel conflict. Future Review Conferences for the ICC may yet consider such expansion. Because natural resource concessions issued during conflicts often lack legitimacy and can destabilize post-conflict peacebuilding, the United Nations and other institutions should assist post-conflict countries in reviewing and modifying concessions as necessary.
82. Kamminga, supra n. 75, at 54.
[ 240 ]
Looking to the Future
Finally, the UN Secretary-General should submit an annual report to the UN General Assembly describing the environmental impacts of wars each reporting year and recommending ways to prevent and ameliorate resulting human suffering, as well as how natural resources can be used to support peacebuilding.83 While the various incremental measures will not fully address or resolve conflict resources or wartime environmental damage, they are steps in the right direction, lay the foundation for subsequent measures, and may be politically feasible. This chapter highlights two future directions where the UNCC can be particularly instructive. First, many countries have struggled with conflict resources over the past two decades, and second, there is a growing need for a more systematic, formalized, and permanent institutional approach to conflict resources and environmental damage during armed conflict. Future tribunals—whether ad hoc or permanent—will have a valuable touchstone in the UNCC’s precedent, approaches, and lessons.
83. Id.
INSTITU TIONALIZING PE ACEBUILDING
[ 241 ]
C HA P TER 1 0
The UNCC as a Model for Climate Compensation DANIEL A . FARBER *
INTRODUCTION
T
he UN Compensation Commission (UNCC), established in the aftermath of the first Gulf War, is the most ambitious effort the world has yet seen to provide compensation for environmental harms. The UNCC awarded US$5.26 billion in damages for environmental and public health damage caused by Iraq in the Gulf War, resulting from various forms of air, water, and soil pollution.1 This chapter considers how lessons learned from the UNCC experience could inform efforts to provide compensation for the greatest environmental harm in history, global climate change. The issue of climate compensation may be unfamiliar to many readers, but a quick introduction to the issue is sufficient to set the stage. War is far more dramatic than climate change. Yet, the insidious threat of a shift in global climate threatens harms that are no less serious. There is now little doubt that climate change is real or that it is caused by human activities, particularly emissions of CO2 from fossil fuels. The 2007 report of the Intergovernmental Panel on Climate Change (IPCC) explains the scientific consensus that: Global atmospheric concentrations of carbon dioxide, methane and nitrous oxide have increased markedly as a result of human activities since 1750 and now far exceed
* Sho Sato Professor of Law and Chair, Energy and Resources Group. 1. Peter H. Sand, Compensation for Environmental Damage from the 1991 Gulf War, 35 Envtl. Pol’y & L. 244 (2005).
pre-industrial values determined from ice cores spanning many thousands of years. The global increases in carbon dioxide concentration are due primarily to fossil fuel use and land-use change, while those of methane and nitrous oxide are primarily due to agriculture.2
Notably, because of improvements in modeling and data, the 2007 Report was able to eliminate some questions that had previously been raised about the evidence for climate change. Harm from climate change has the inevitability of a Greek tragedy, for we have already set in motion forces that will inflict harm on a global scale—we can limit but not eliminate the threat. Whatever mitigation measures are adopted, a significant degree of further climate change seems unavoidable. Mitigation may affect the degree of adaptation that is ultimately required, but in the short run it will have little effect in reducing climate change. As the IPCC explains, “[a]nthropogenic warming and sea level rise would continue for centuries due to the timescales associated with climate processes and feedbacks, even if greenhouse gas concentrations were to be stabilized.”3 The resulting harms will be felt unequally in different parts of the world, and emission levels also differ greatly between nations. For example, the United States was responsible for 20 percent of the world’s emissions in 2000, about equal to its share of world GDP. By contrast, the European Union was responsible for only 14 percent of the emissions (but received about as much of the world’s GDP as the United States).4 Together, the European Union and the United States contributed about a third of global emissions, although having far less than a third of world population. The key point is that it is the developed countries that have contributed the most to the atmosphere’s cumulative CO2 level, although developing countries such as China are rapidly increasing their own shares. In the meantime, as we will see in section I.A below, the least developed countries are at the most risk from climate impacts. This asymmetry between carbon emitters and climate victims makes compensation claims inevitable. The question of climate compensation is not merely academic. The United States and other developed countries will be the subject of demands for compensatory
2. Contribution of Working Group I to the Fourth Assessment Intergovernmental Panel on Climate Change, Climate Change 2007: The Physical Science Summary for Policymakers 1 (2007). The IPCC explains that “the understanding of anthropogenic warming and cooling influences on climate has improved since the Third Assessment Report (TAR), leading to very high confidence that the globally averaged net effect of human activities since 1750 has been one of warming, with a radiative forcing of +1.6 [+0.6 to +2.4] W m.” Id. at 4. 3. Id. at 17. 4. See Kevin A. Baumert, Timothy Herzog, & Jonathan Pershing, Navigating the Numbers: Greenhouse Gas Data and International Climate Policy, Table 1 (World Resources Institute 2005), available at http://www.wri.org/publication/navigating-the-numbers.
T H E U N C C A S A M O D E L F O R C L I M AT E C O M P E N S AT I O N
[ 243 ]
action for some years to come. The demands have already begun. Prior to the Bali conference,5 India announced that “costs of drought survival programs, flood shelters, malaria control, support to farmers, and other measures needed to help India’s more than 1 billion people adapt to climate change come to a significant 2 percent of India’s gross domestic product.”6 Demands for compensation made significant progress at Bali. The negotiators, including U.S. representatives, agreed to more generous funding than previously provided for developing countries. The Adaptation Fund will receive the proceeds from a 2 percent tax on transactions within the Clean Development Mechanism (whereby wealthier countries pay for emission reductions in developing countries) under the Kyoto Protocol. A sixteenmember board with representatives from developed and developing countries, all parties to the Kyoto Protocol, will oversee the Fund.7 It is, however, only a beginning, given the scope of the problem, and much remains to be learned about how to design a viable compensation system. Although this is only a small step toward compensation, it may represent the beginning of a much larger effort. Yet, we have little experience in providing compensation for widespread environmental harms in the international arena. Hence, it behooves us to learn as much as we can from the UNCC experience. After providing some background on relevant aspects of climate change, the chapter will consider the substantive (section II) and procedural (section III) lessons to be drawn from the UNCC. The chapter will highlight two main lessons from the UNCC experience. First, the most practical measure of compensation is the cost of projects to replace lost ecosystem services or of other restorative measures to counter the risk of climate harm and return the situation to the status quo ante. Second, rather than using a U.S.-style adversarial proceeding, the best procedure involves direct interaction between independent experts, the claimant, an independent body that can provide an objective viewpoint, and the funding nations at all stages of the process in designing and implementing restorative or adaptive measures.
I. BACKGROUND ON CLIMATE CHANGE IMPACTS AND RESPONSIBILITY
This section will review the impacts of climate change and resulting harms and adaptation costs. Readers who are already familiar with these issues should feel free
5. In 2007, the thirteenth Conference of the Parties to the UN Framework Convention on Climate Change was held in Bali, Indonesia and adopted a “roadmap” for negotiations to reach a global agreement on managing climate change. 6. Climate Change: India Says Global Pact on Climate Change Will Require Help With Adaptation Costs, 30 Int’l Env. Rep. 907 (2007). 7. See Peter Gelling, Focus at Climate Talks Shifts, N.Y. Times, Dec. 13, 2007.
[ 244 ]
Looking to the Future
to skip to the next section, but others will find enough background to enable them to understand the nature of the climate compensation problem.
A. Climate Change Impacts
The evidence indicates that a doubling of CO2 from preindustrial levels would result in a temperature increase between 1.5°C and 4.5°C (3.0–8.1°F) by the end of this century.8 Such a doubling is about the best that we could hope for in terms of mitigation efforts. For this reason, even in the best-case scenario, we will be faced with a number of adverse impacts from climate change—and indeed, we are already experiencing them. The changes seem to be occurring faster than expected, as shown by the alarming meltdown of Arctic sea ice.9 Sea level rise is one of the most predictable (and to some extent least avoidable) consequences of climate change.10 According to the IPCC, “[o]bservations since 1961 show that the average temperature of the global ocean has increased to depths of at least 3000 m and that the ocean has been absorbing more than 80% of the heat added to the climate system. Such warming causes seawater to expand, contributing to sea level rise.”11 Moreover, the IPCC reports that “[m]ountain glaciers and snow cover have declined on average in both hemispheres. Widespread decreases in glaciers and ice caps have contributed to sea level rise (ice caps do not include contributions from the Greenland and Antarctic ice sheets).”12 Although some other aspects of this report have been criticized and in some cases corrected, these assertions stand unchallenged. Thus, sea level rise is the opposite of being speculative. This rise in sea level will result in significant loss of coastal lands.13 To get a sense of the potential economic impact, consider the following estimates regarding sea level rise: A half-meter sea level rise would place US$185 billion of property in jeopardy by 2100, and the cost of protecting developed areas from a half-meter rise would be US$115 to US$274 billion.14 Sea level rise is not the only
8. See Richard A. Kerr, Latest Forecast: Stand By for a Warmer, But Not Scorching, World, 312 Science 351 (2006). For an up-to-date source of information on climate science, see http://www.realclimate.org/. 9. See David Perlman, New Alarm Is Raised over Melting Polar Ice, S.F. Chronicle, Dec. 13, 2007, at A22. 10. See e.g., K. Hasselman et al., The Challenge of Long-Term Climate Change, 302 Science 1923, 1924 (2003) (Figure 2) (predicting a two-meter increase in sea level under a “business as usual” scenario by 2100; but only 20 centimeters under an optimum regulatory strategy). 11. IPCC Physical Science Summary supra note 3, at 5. 12. Id. at 7. 13. A. Barrie Pittock, Climate Change: Turning Up the Heat (2005), gives examples, including China, id. at 264, India, Pakistan, Bangladesh, id. at 268, and the United States, id. at 278. 14. William E. Easterling III, Brian H. Hurd, & Joel B. Smith, Coping with Global Climate Change: The Role of Adaptation in the United States 14
T H E U N C C A S A M O D E L F O R C L I M AT E C O M P E N S AT I O N
[ 245 ]
near-term impact. The IPCC found that it “is very likely that hot extremes, heat waves, and heavy precipitation events will continue to become more frequent.”15 It also concurs that we are likely to see changes in tropical storms such as hurricanes: “Based on a range of models, it is likely that future tropical cyclones (typhoons and hurricanes) will become more intense, with larger peak wind speeds and more heavy precipitation associated with ongoing increases of tropical SSTs [surface sea temperatures].”16 Other adverse changes are also likely. According to the IPCC, drought-affected areas will increase.17 Moreover, impacts will be more severe if the temperature increase is greater than 2–3°C. At 4°C, losses could be 1–5 percent of global GDP.18 This is a global average, so impacts in some areas would be much more severe, while others may still receive small net benefits.19 In some places such as South Asia and Southern Africa, these climatic effects may put food security at risk.20 The next subsection considers potential efforts to limit the harms from these changes. The nearly inevitable impacts of climate change will force society to invest in costly adaptation measures. Adaptation has not received nearly as much attention as mitigation, but we can already begin to see the outlines of adaptation needs. Of course, the scale of adaptation required is related to the degree of mitigation: if we do nothing to limit emissions, climate change will be more drastic and the costs of adaptation will be correspondingly higher. The Stern Report contains the most extensive discussion of adaptation costs. The Report estimates that: Infrastructure is particularly vulnerable to heavier floods and storms, in part because OECD economies [the nations belonging to the Organization for Economic Co-operation and Development] invest around 20% of GDP or roughly US$5.5 trillion in fixed capital each year, of which just over one-quarter typically goes into construction (US$1.5 trillion—mostly for infrastructure and buildings). The additional costs of adapting this investment to a higher-risk future could be US$15–150 billion each year (0.05–0.5% of GDP), with one-third of the costs borne by the US and one-fifth in Japan.
(Pew Center on Global Climate Change 2004), available at http://www.pewclimate.org/ docUploads/Adaptation.pdf. This estimate may be on the high side, but even if we discount by a factor of two, the figures are still impressive. 15. IPCC Physical Science Summary, supra note 3, at 19. 16. Id. at 15. 17. IPCC, Summary for Policy Markers, in Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (2007) (hereinafter, IPCC Adaptation Summary). 18. Id., at 17. 19. Id. 20. David B. Lobell et al., Prioritizing Climate Change Adaptation Needs for Food Security in 2030, 319 Science 607 (2008).
[ 246 ]
Looking to the Future
This preliminary cost calculation assumes that adaptation requires extra investment of 1–10% to limit future damages from climate change.21
These amounts are not huge in comparison to the size of the global economy involved, but they are nevertheless very substantial burdens on particular actors. To these must be added the possible costs of harms that cannot be prevented through adaptation. In the nondeveloped world, adaptation may be beyond the capacity of local economies. The IPCC estimates that by the end of the century, projected sea level rise could involve much higher adaptation costs of 5–10 percent of GDP in Africa.22 Even by 2020, 75–250 million Africans will be subject to increased difficulty in obtaining water.23 Similarly, coastal areas, especially highly populated megadeltas in Asia, will be at higher risk of ocean and in some places river flooding.24 These risks will require large expenditures to either reduce flood risks or relocate affected populations. It may not be possible for the impacted nations to finance these expenditures, and in any event, it may be viewed as unjust for them to bear the expenses alone. The next subsection sketches some of the possible ways of providing compensation.
B. Possible Compensation Mechanisms
The Adaptation Fund mentioned in the Introduction section, above, is a start in the direction of reallocating some of these costs from victim countries to emitter countries. It remains to be seen how this process will develop, but it is not hard to imagine the evolution of a broader scale compensation effort. Although a perfect system is unattainable, it seems feasible to design a workable compensation scheme. Consider a possible international compensation commission. The commission would receive claims from countries that have incurred adaptation expenses such as strengthening sea walls or providing alternative sources of ecosystem services to replace lost wetlands.25 The commission would determine which adaptation expenses were reasonable, and would schedule them for compensation. By using adaptation costs rather than trying to attribute harm to
21. Nicholas Stern, The Economics of Climate Change: The Stern Review 417 (Cambridge University Press 2007). 22. IPCC Adaptation Summary, supra note 18, at 13. 23. Id., at 13. 24. Id. 25. For background on the concept of ecosystem services and the difficulties of measuring those services, see Symposium, 20 Stan. Envtl. L. J. 309 (2001); James Salzman, Creating Markets for Ecosystem Services: Notes from the Field, 80 NYU L. Rev. 870 (2005). See also Chapter 3 in this volume.
T H E U N C C A S A M O D E L F O R C L I M AT E C O M P E N S AT I O N
[ 247 ]
specific adverse events such as floods, the commission could avoid much of the need to make complex and highly contestable causation findings. The commission’s activities might be funded directly by cash contributions by governments, but an alternative payment system might be more appealing if an international trading system for greenhouse gases was in place. In this alternative way of financing compensation, a set number of greenhouse gas allowances could be set aside for the commission. The commission would use these allowances to pay claims; in turn, the claimants could sell them to greenhouse gas emitters on the open market. The net effect would be that the sources doing the least to reduce their emission levels, which would have the greatest need to purchase additional emission permits, would indirectly provide compensation for the expenses of adaptation. Thus, a wealth transfer would take place from poorly controlled sources of greenhouse gases to the victims of climate change. An alternative, along the lines of the Kyoto Protocol Adaptation Fund, would derive funding by taxing the purchase of emissions offsets via the Clean Development Mechanism. More ambitiously, the Fund could be supported through a tax on the issuance of emission allowances or on the purchase or sale of those allowances in the market. Although climate compensation is an issue of unprecedented scale, the UNCC provides possible guidance about how such a compensation system might be administered. We turn to an examination of the UNCC’s approach to compensation for environmental harms.
II. LESSONS REGARDING COMPENSATION STANDARDS AND MEASUREMENT OF DAMAGES
This section delves into the UNCC’s standards for providing compensation in more detail. It then considers the possible lessons for climate compensation.
A. Post-conflict Compensation Standards
Although public attention at the time of the Gulf War was understandably focused on the direct human costs of the conflict, the environmental impacts were huge. By the end of the Gulf War, the war zone had become an environmental disaster area, with over 600 oil wells on fire, large parts of the desert were covered with oily residue or torn up by heavy equipment, and coastal areas had been ravaged by oil spills.26 Paragraph 16 of Security Council Resolution 687 (1991) held that Iraq was
26. See Klee, Chapter 2, in this volume; Cymie R. Payne, Legal Liability for Environmental Damage: The United Nations Compensation Commission and the 1990–1991 Gulf War, in
[ 248 ]
Looking to the Future
“liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, national and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.”27 Compensable environmental claims included: (a) Abatement and prevention of environmental damage, such as expenses directly related to fighting oil fires and stemming the flow of oil in coastal and international waters; (b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; (c) Reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment; (d) Reasonable monitoring of public health and performing medical screenings for the purpose of investigating and combating increased health risks as a result of the environmental damage; and (e) Depletion of or damage to natural resources.28 There seems to be a growing international recognition that “environmental damages will often extend beyond that which can be readily quantified in terms of clean-up costs or property devaluation.”29 Thus, harm to “environmental values— biodiversity, amenity, etc.—sometimes referred to as ‘non-use’ values is, as a matter of principle, no less real and compensable than damage to property, though it may be difficult to quantify.”30 A critical decision by the UNCC was to award compensation for nonmarket environmental damages. The Governing Council allowed compensation for permanent or temporary damage to natural resources without commercial value. The Panel adopted “habitat equivalency analysis” as a way of calculating damages on the basis of the cost of environmental projects designed to replace the lost ecosystem services.31 When ecological services were irretrievably lost, compensatory projects were authorized as the basis for compensation.32 The Panel defined the
Governance, Natural Resources, and Post-Conflict Peacebuilding (C. Bruch, C. Muffett, & S.S. Nichols eds., Earthscan, London forthcoming 2011). 27. S.C. Res. 687, para 16, U.N. Doc. S/RES/687 (Apr. 3, 1991). 28. Governing Council Decision 7, S/AC.26/1991/7/Rev.1 (Nov. 28, 1991, as revised Mar. 17, 1992), para. 35. 29. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the Work of its 53d Session, UN Doc. A/56/10 (2001) (commentaries to art. 36(2), para 15). 30. Id. 31. Report and Recommendations made by the Panel of Commissioners Concerning the Fifth Instalment of “F4” Claims, U.N. Doc. S/AC.26/2005/10 ( June 30, 2005) (hereinafter, Fifth “F4” Report), paras. 72–82, 356, 420, 606. 32. Id. Huguenin, et al., Chapter 3, in this volume.
T H E U N C C A S A M O D E L F O R C L I M AT E C O M P E N S AT I O N
[ 249 ]
objective of remediation as “restoring the environment to pre-invasion conditions, in terms of its overall ecological functioning rather than on the removal of specific contaminants or restoration of the environmental to a particular physical condition.”33 It is also noteworthy that the UNCC imposed a duty to mitigate on victims, sometimes denying or reducing damages for failure to take reasonable remedial measures.34 In addition, the UNCC provided compensation for monitoring and damage assessment,35 which were allowed on the basis of a plausible risk of environmental harm even if tests eventually disproved the existence of damage.36 As examples of the UNCC approach: [T]he Panel made awards that were quantified according to the cost of various compensatory projects: a cooperative rangeland management program to restore rangeland and wildlife habitat damaged by the influx of refugees into Jordan, and shoreline preserves in Kuwait and Saudi Arabia. In another case—Iran’s claim for damage to rangelands from the presence of refugees—the Panel found it more appropriate to use the price of fodder to calculate an award rather than the value that Iran derived from lost ecological services.37
B. Using the UNCC Approach as a Model for Measuring Compensable Climate Harm
As a general matter, the UNCC’s use of restorative projects to gauge damage is attractive in the climate context and would translate into the funding of adaptation projects to counter the effects of climate change. The advantages are very similar in terms of increased manageability. For instance, sea level rise will sharply increase vulnerability to flooding in many coastal areas. The UNCC approach suggests that compensation should be based on the cost of restorative measures to return the flood risk to the status quo level. This
33. Sand, supra note 1. 34. Sand, Chapter 7, in this volume, text at notes 69–77. Providing redress is a central purpose of a liability system, but it is not the only purpose. Moral hazard is another factor in designing a liability system. A solution is to impose a duty to mitigate damages on injured parties. In other words, this would involve making an independent assessment of whether mitigation measures were reasonably necessary in light of alternatives or whether the injured party unduly exposed itself to risk. The UNCC process is instructive here. In principle, this provides a complete solution. In practice, of course, it increases the complexity and expense of proceedings, as well as the risk of error. In the UNCC case, however, the results seem to have been satisfactory. 35. Id., text at notes 19–33. 36. Sand, supra note 1. 37. Cymie R. Payne, UN Commission Awards Compensation for Environmental and Public Health Damage from 1990–91 Gulf War, Am. Soc’y Int’l L.: Insights (Aug. 10, 2005) available at http://www.asil.org/insights050810.cfm.
[ 250 ]
Looking to the Future
seems more appealing than the alternatives of compensating directly for heightened ex ante risk or for realized ex post flood damage. Providing financial compensation for the increase in the risk level probably runs counter to the stance of many legal systems on tort liability, and in addition would raise grave difficulties in terms of calculating risks, forecasting damages, and choosing the appropriate discount rate. Ex post compensation for flood damages would involve difficult questions of causation, given the difficulty of establishing that any given flood would not have happened in the absence of climate change. Limiting compensation to ex post damages would also penalize countries that invested in adaptation and therefore avoided harm from floods; those countries would be forced to bear their costs alone while countries that failed to take adequate precautionary measures would receive compensation for the resulting harm. In the specific context of harm to nonmarket environmental values, the UNCC approach is also appealing. Here, the alternative seems to be contingent valuation. Contingent valuation (CV) is a useful methodology that has been used in the United States in determining natural resource damages. Although some parties proposed the use of CV, the UNCC ultimately adopted a different approach to assessing damages. This methodology involves the use of survey techniques to determine what members of the public would be willing to pay to preserve a natural resource. In the context of a global problem like climate change, the technique presents particular difficulties. It is not clear whether the CV should cover value attached to the resource by people in the locality, those in the entire country or region, or by the global population. Designing and applying the surveys for use in developing countries would present particular challenges given the multiplicity of cultures and languages involved and the problems of conducting surveys in impoverished rural areas. There is also a great deal of controversy about the validity of CV, which would make it difficult to form an international consensus. Cass Sunstein, for example, finds many contingent valuation analyses difficult to take seriously. He stresses what he describes as the “astonishing and devastating fact” that willingness to pay seems constant regardless of the scale of the environmental problem. In responding to surveys, he contends, “people may be purchasing moral satisfaction rather than stating their real valuation,” merely proclaiming their unwillingness to feel responsible for environmental harms.38 Economists critical of contingent valuation view the resulting numbers as mostly reflecting the warm glow that people get by announcing their support for the environment. These critics doubt that people actually have preferences about specific environmental sites or that their responses
38. Cass R. Sunstein, Free Markets and Social Justice 142–43 (New York: Oxford University Press 1997). For an environmentalist critique of contingent valuation, see John Heyde, Is Contingent Valuation Worth the Trouble?, 62 U. Chi. L. Rev. 331 (1995).
T H E U N C C A S A M O D E L F O R C L I M AT E C O M P E N S AT I O N
[ 251 ]
reflect considered efforts to assess such preferences.39 But this view is by no means universal among economists. Advocates of contingent valuation argue that the critics have exaggerated the problems, that many problems can be limited through careful survey design, and that contingent valuation can be validated against other measures of environmental benefits. Be that as it may, obtaining international agreement to use this technique may be difficult. In addition, CV has the disadvantage of being based on willingness to pay and therefore being sensitive to the financial resources of the population surveyed. This seems particularly questionable when dealing with developing countries, where low incomes will skew the valuations. It is even more questionable in dealing with the least developed countries that would bear much of the brunt of climate change. A population that is struggling for day-to-day survival on cash incomes approaching zero is guaranteed to provide low monetary valuations for environmental resources, even if those resources have a high subjective value for the individuals involved. Thus, in the climate change context, use of CV would run into issues of distributive justice and would provide less meaningful information about the subjective value attached to resources. For these reasons, the UNCC project-based approach seems preferable as a method for assessing nonmarket values. This is not to say that it would be unproblematic in the context of climate change. The problem is that adaptation or restorative measures may simply not be possible for some forms of climate harm. The best that can be done may be to devise some effort toward a partial replacement of the ecosystem services lost, even though the compensation may fall well short of the true degree of damage.
III. LESSONS REGARDING COMPENSATION PROCEDURES
Some of the lessons of the UNCC relate to process rather than substance. The UNCC demonstrated that it is possible to quickly and efficiently process numerous claims for environmental damage.40 Julia Klee has highlighted some key features of the UNCC process: • Claims were subject to strict deadlines, as was claim processing. • The Panel began with simpler and more concrete claims to gain a learning experience before turning to the more difficult claims.
39. See Peter Diamond & Jerry Hausman, Contingent Valuation: Is Some Number Better Than No Number?, J. Econ. Persp. 45, 56, 63 (Fall 1994); Brian Binger et al., Contingent Valuation Methodology in the Natural Resource Damage Regulatory Process: Choice Theory and the Embedding Phenomenon, 35 Nat. Resources J. 443 (1995). 40. Payne, Chapter 1, in this volume, text at notes 56–98.
[ 252 ]
Looking to the Future
• Consultants began with detailed questionnaires and teleconferences, before proceeding to site visits by experts. • Monitoring and assessment projects were funded and tracked by the UNCC. • Substantial efforts were made to secure the active participation of the defendant (Iraq) in the claim assessment process.41 Although the Panel did decide contested issues, the process was far from the Anglo-American conception of a trial and had elements that were more akin to the European inquisitorial style or even in some respects to Alternative Dispute Resolution (ADR). Like the UNCC, a climate compensation commission would be faced with diverse forms of harm covering an even larger and more diverse geographic area. Because of its efficiency and ability to generate acceptable results under time constraints, the UNCC process seems appealing. In addition, the alternative of a more conventional adjudication—particularly one in the U.S. mode—seems distinctly unappealing. It is not impossible to imagine using something closer to American civil trials to determine liability. So far, however, the American legal system has found it very difficult to handle large numbers of cases involving high levels of harm. This has not been a problem with natural resource damages because U.S. law limits these claimants to government units as trustees for the environment. Other damage cases do pose the problem of large numbers, and those problems can be daunting. The American experience with asbestos litigation in this regard is quite sobering. The scale of U.S. asbestos litigation has been extraordinary. As of 2002, according to a RAND report, approximately 730,000 people had filed claims, and at least 8,400 entities had been named as defendants, though most defendants were in eight key industries.42 One prominent epidemiological model estimated over 200,000 asbestos-related cancer deaths from 1985 to 2009.43 If the asbestos cases had been combined into one lawsuit, the scale of the catastrophe would have been more apparent, but the large number of cases and their spatial and temporal diffuseness prevented full attention to the scale of the asbestos disaster. The resulting litigation has had huge economic impact. Total spending on the litigation through 2002 was about $70 billion. About one-third of the spending was in the form of defense costs, another quarter went to plaintiffs’ costs and fees, and
41. Klee, Chapter 2, in this volume, text at notes 9, 20–21, 24 (on deadlines); 28 (scheduling claims); 43 (use of teleconferences); 45–53 (monitoring and assessment claims); 54–60 (Iraq’s participation). 42. Stephen J. Carroll, Deborah Hensler, Jennifer Gross, Elizabeth M. Sloss, Matthias Schonlau, Allan Abrahamse, & J. Scott Ashwood., Asbestos Litigation xxiv–xxv (RAND Corporation, Santa Monica 2005). 43. Id., at xix–xx. The RAND researchers found some empirical confirmation for the model. Id., at 18–19.
T H E U N C C A S A M O D E L F O R C L I M AT E C O M P E N S AT I O N
[ 253 ]
the remaining 40 percent went to compensate plaintiffs.44 As of mid-2004, at least seventy-three defendants had filed for bankruptcy.45 In a recent development, W. R. Grace sought the approval of a bankruptcy court to settle all asbestos claims against it for $3 billion, with deferred payments being guaranteed by 50 percent of the company’s common stock.46 The legal system has seemingly been unable to find an appropriate procedural mechanism for handling this flood of litigation. Efforts to consolidate the litigation have been frustrating. In Amchem Products, Inc. v. Windsor,47 the Court rejected an ambitious effort to use the class action mechanism to settle the claims. The Court held that certification of the settlement class was improper because the interests of some class members were inadequately represented. The question of how to handle claims that have not yet matured has also plagued state courts. In a number of courts, unimpaired plaintiffs are allowed to file claims that are then relegated to the deferred docket; cases can only come off the deferred docket if the claimant meets specified medical criteria such as a diagnosis of malignancy.48 There have been a number of other attempts at procedural innovation to handle the flood of asbestos claims. Some judges have engaged in large-scale, non–class action consolidations, with fourteen of these consolidated cases involving hundreds (and sometimes thousands) of claimants.49 For instance, a Baltimore state judge heard over 8,000 claims against over 100 defendants.50 The largest known consolidated trial, involving 9,600 plaintiffs, was held in a specially constructed courtroom at the Jackson County Mississippi state fair grounds.51 Consolidation of this number of claims can involve great confusion; for example, by making it difficult even to track the outcomes in cases.52 In another effort at consolidation, federal courts have attempted to use the bankruptcy reorganization process as a way of settling massive numbers of claims, in a substitute for the class action procedures rejected in Amchem. Efforts to use prepackaged reorganization plans (“prepacks”) have run into some of the same difficulties that plagued the class action mechanism.53 The situation cried out for congressional attention, but no legislative solution was forthcoming.
44. Id., at xxvi. 45. Id., at xxvii. 46. W. R. Grace to Pay Estimated $3 Billion to Settle Present, Future Asbestos Claims, 39 Env. Rep. (BNA) 707 (Apr. 22, 2008). 47. 521 U.S. 591 (1997). 48. Carroll, supra note 98, at xxi. 49. Id., at xxii–xxiii. 50. Id., at 33. 51. Id.; see id., at 38–41 (listing large-scale trial consolidations). 52. Id., at 43. 53. See In re Combustion Engineers, 391 F.3d 190 (3d Cir. 2004) (rejecting prepack plan as inequitable and lacking statutory authorization).
[ 254 ]
Looking to the Future
The asbestos litigation is a cautionary tale about the difficulties confronted by the U.S. legal system in handling a massive number of claims. Some leadership from the U.S. Supreme Court, either through more aggressive interpretation of current law or through its rulemaking powers, might have led to a more effective procedural mechanism for handling the asbestos cases. With legislative assistance, some of these barriers may be surmountable. An American Bar Association (ABA) report recommends the following procedural reforms for dealing with similar issues in the context of post-disaster litigation: To improve judicial effectiveness in such cases courts should be granted authority: (a) to concentrate decision-making power in a single or small group of judges consistent with the right to jury trial; (b) to locate the proceedings in a single court or limited number of courts; (c) to designate a single set of legal principles to govern consistent with due process and applicable law; (d) to requisition adequate resources and personnel; (e) to utilize reasonable latitude in fact-finding consistent with the right to jury trial; (f) to take such steps as will streamline and speed the adjudicatory process; and (g) to recognize the propriety of pro rata and other forms of partial awards where necessary. Authorization to undertake such steps should be the subject of enabling legislation.54
Procedural reform for mass harms is the subject of active interest by procedural experts, with significant recommendations for change from the American Law Institute (ALI).55 An additional useful reform would be to encourage greater use of independent experts by the court, as in the UNCC practice.56 Perhaps these reforms will be successful, but their efficacy and political acceptability remain unknown at this point. It remains conceivable that a modified version of the American trial process could be used to handle claims for climate compensation. The reforms proposed by the ABA and the ALI may tame the difficulties of dealing with compensation for massive broad-scale harms. But so far, even in the purely domestic context,
54. American Bar Association, Rule of Law in Times of Major Disaster (September 2007), Principle 6 (commentary), available at http://www.abanet.org/litigation/ ruleoflaw/rol_disaster.pdf. The text of Principle 6 provides: “To the fullest extent permitted by law the persons affected by a major disaster should be compensated for their losses through insurance coverage and the operation of the judicial system.” Id. Principle 7 provides: Government payment of compensation or additional assistance to persons affected by a major disaster should be considered when government is either implicated in the major disaster or public authorities determine that it is in the public interest to do so. Principles of equal treatment, due process and transparency should govern the distribution of compensation and disaster assistance.
Id. 55. American Law Institute, Principles of the Law of Aggregate Litigation: Discussion Draft No. 2 (2007). 56. Federal Rule of Evidence 706 allows for the court to appoint its own expert, but judges rarely use this power. See Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 Duke L.J. 1263, 1304 (2007).
T H E U N C C A S A M O D E L F O R C L I M AT E C O M P E N S AT I O N
[ 255 ]
American-style civil procedure has proved incapable of dealing with massive harms. Adapting the system to the international context would be a daunting task even if a workable domestic solution could be found. In contrast to the American asbestos experience, the UNCC was able to assess billions of dollars of damages over a very short period and with remarkably low transaction costs. Moreover, because the international legal community has had a successful experience with this multilateral compensation mechanism, obtaining agreement on adapting this mechanism to a new problem would be easier than proposing a different approach, particularly one that lacked even a successful record of domestic application. For those who are concerned about the procedural difficult of managing claims for climate compensation, the UNCC experience should be reassuring.
IV. CONCLUSION
There is a lively debate about whether emitting countries have a moral obligation to reduce emissions or pay compensation to victim countries.57 In many respects, the case for compensation after the Gulf War was far simpler. The events giving rise to the UNCC were at the opposite end of the spectrum from climate change in several ways: a single intentional wrongdoer rather than a multitude of inadvertent or negligent actors; immediate direct impacts rather than complex long-term causation; easily identified harms to specific actors rather than difficult-to-attribute global weather changes. Thus, going from compensation for these wartime impacts on the environment to compensation for climate change is a leap. Nevertheless, the UNCC experience does establish that recoveries for widespread environmental damages (including nonmarket damages) are cognizable under international law. The UNCC precedent may also stand for deeper principles that are relevant to climate change. According to Peter Sand, Whereas the traditional focus of the international regime of state responsibility has been on bilateral relations (claimant/victim vs. respondent/tort-feasor), the practice of the UNCC’s F4 Panel introduced an important new multilateral dimension; viz., legal accountability of all states involved for the safeguarding of common concerns to protect and conserve the Earth’s natural heritage, irrespective of its territorial location.58
57. Some of the key contributions to this debate are collected in Michael P. Vandenbergh, Brook A. Ackerly, & Fred E. Forster, Micro-Offsets and Macro-Transformation: An Inconvenient View of Climate Change Justice, 33 Harv. Env. L. Rev. 303, 304 n.1 (2009). 58. Sand (note 1, supra) and Chapter 7 in this volume, text at notes 5–10.
[ 256 ]
Looking to the Future
That principle does seem to have broader application, including some implications for climate change, where the issue is precisely “legal accountability of all states involved for safeguarding of common concerns”—indeed for safeguarding planetary concerns, for as the first sentence of the UNFCC reminds us, climate change is a “common concern of mankind.” Thus, the creation of the UNCC may itself have significance as part of worldview in which climate compensation is warranted. But the most immediate implications of the UNCC experience are probably for the practical issues relating to climate compensation, not for the question of underlying justification. The environmental impacts of the Gulf War were multitudinous and varied, presenting considerable difficulty in terms of damage assessment. In that regard, the impacts were not unlike the varied impacts of climate change. The UNCC’s decisions are relevant precedent for extending compensation beyond harm to marketable resources to include environmental amenities, and for basing compensation on the cost of replacing ecosystem services. As we have seen, the UNCC’s approach to determining damages may provide a workable model in the context of climate change. By focusing on the expense of mitigating the environmental harm, the UNCC avoided difficult problems of identifying long-term environmental effects and valuing the resulting harms. In terms of process, the UNCC provides a model for awarding billions of dollars in compensation at relatively low cost and in a remarkably short period of time. Here again, the lesson for climate compensation is not hard to draw. We have the procedural tools at hand to create a workable compensation process, should we choose to do so. It would take a crystal ball to know whether large-scale compensation for climate change will be attempted. Some doubt that it should be. But in the event climate compensation comes to pass, the experience of the UNCC in awarding environmental damages will be a vital guidepost.
T H E U N C C A S A M O D E L F O R C L I M AT E C O M P E N S AT I O N
[ 257 ]
C HA P TER 1 1
Liability for Environmental Damages Toward Principles of Sustainable Governance ROBERT COSTANZ A
INTRODUCTION
I
raq’s invasion of Kuwait and the 1990–1991 Gulf War caused unprecedented environmental harm. The F4 Panel of the UN Compensation Commission (UNCC) was established to deal with compensation for these damages. This process set some important precedents for quantifying environmental damages and compensating injured parties. These precedents will be very valuable in dealing with ongoing and future environmental damages from a host of sources, including everything from the recent Deepwater Horizon oil spill in the Gulf of Mexico to global climate change. The science of estimating the value of environmental damages has progressed significantly since 1990, but it will always be difficult to quantify these damages with any degree of precision. Our current approach is to wait until the damages have occurred, and then try to estimate the cost of restoring the system to its prior state. This approach is fine in principle, but suffers from several important shortcomings in practice, including: (1) the burden of proof is on the damaged party (usually the public) to estimate the magnitude of damages, (2) the compensation for damages is in the future, often long after the damage has occurred, and (3) often only a fraction of the real cost of the damages are ever estimated or recovered.
An alternative approach involves a fundamental change in the burden of proof and how we deal with scientific uncertainty.1 We now live in a world full of humans and their artifacts, and our approach to environmental management needs to change fundamentally to take this into account.2 We need to recognize the high degree of interdependence between sustainable human well-being and the functioning of ecological systems. Natural capital is arguably more important to sustainable human well-being today than further growth in conventional built capital and GDP in rich countries.3 This implies a need to change our presumptions about damages and, indeed, our whole approach to economics and governance.
I. PRINCIPLES OF SUSTAINABLE GOVERNANCE
The key to achieving sustainable governance in the new full-world context is an integrated (across disciplines, stakeholder groups, and generations) approach based on the paradigm of “adaptive management,” whereby policy-making is an iterative experiment acknowledging uncertainty, rather than a static “answer.” Within this paradigm, six core principles have been identified (the Lisbon principles) that embody the essential criteria for sustainable governance.4 Some of them are already well accepted in the international community (for example, Principle 3); others are variations on well-known themes (for example, Principle 2 is an extension of the subsidiarity principle); while others are relatively new in international policy, although they have been well developed elsewhere (for example, Principle 4). The six Principles together form an indivisible collection of basic guidelines governing the use of common natural and social capital assets: Principle 1: Responsibility. Access to common asset resources carries attendant responsibilities to use them in an ecologically sustainable, economically efficient, and socially fair manner. Individual and corporate responsibilities and incentives should be aligned with each other and with broad social and ecological goals.
1. R. Costanza & L. Cornwell, The 4P Approach to Dealing with Scientific Uncertainty, 34 Environment 12–20, 42 (1992). 2. R. Costanza, Stewardship for a “Full” World, 107 Current History 30–35 (2008) (hereinafter, Costanza 2008). 3. R. Costanza, R. d’Arge, R. de Groot, S. Farber, M. Grasso, B. Hannon, S. Naeem, K. Limburg, J. Paruelo, R. V. O’Neill, R. Raskin, P. Sutton, & M. van den Belt, The Value of the World’s Ecosystem Services and Natural Capital, 387 Nature 253–60 (1997); Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: Synthesis (Washington, DC: Island Press 2005); The Economics of Ecosystems and Biodiversity: TEEB for Business ( Joshua Bishop & William Evison eds., 2009). 4. R. Costanza, F. Andrade, P. Antunes, M. van den Belt, D. Boersma, D. F. Boesch, F. Catarino, S. Hanna, K. Limburg, B. Low, M. Molitor, G. Pereira, S. Rayner, R. Santos, J. Wilson, & M. Young, Principles for Sustainable Governance of the Oceans, 281 Science 198–99 (1998).
L I A B I L I T Y F O R E N V I R O N M E N TA L DA M A G E S
[ 259 ]
Principle 2: Scale-matching. Problems of managing natural and social capital assets are rarely confined to a single scale. Decision-making should (1) be assigned to institutional levels that maximize input, (2) ensure the flow of information between institutional levels, (3) take ownership and actors into account, and (4) internalize costs and benefits. Appropriate scales of governance will be those that have the most relevant information, can respond quickly and efficiently, and are able to integrate across scale boundaries. Principle 3: Precaution.5 In the face of uncertainty about potentially irreversible impacts to natural and social capital assets, decisions concerning their use should err on the side of caution. The burden of proof should shift to those whose activities potentially damage natural and social capital. Principle 4: Adaptive management. Given that some level of uncertainty always exists in common asset management, decision-makers should continuously gather and integrate appropriate ecological, social, and economic information with the goal of adaptive improvement. Principle 5: Full cost allocation. All of the internal and external costs and benefits, including social and ecological, of alternative decisions concerning the use of natural and social capital should be identified and allocated. When appropriate, markets should be adjusted to reflect full costs. Principle 6: Participation. All stakeholders should be engaged in the formulation and implementation of decisions concerning natural and social capital assets. Full stakeholder awareness and participation contributes to credible, accepted rules that identify and assign the corresponding responsibilities appropriately.
II. APPLYING THE PRINCIPLES
The UNCC can be seen as an application of Principle 5: full cost allocation, and to some extent Principle 4, adaptive management.6 But to move forward, the
5. While the F4 Panel was hesitant to endorse doctrinal formulations of the “precautionary principle,” its substantial awards for the costs of precautionary environmental and public health monitoring and “risk discovery”—even in the absence of conclusive prior evidence of damage—went a long way in this direction. See in particular the Report and recommendations made by the Panel of Commissioners concerning the first instalment of “F4” claims, U.N. Doc. S/AC.26/2001/16 ( June 22, 2001), paras. 28–35; Sand, Chapter 7, in this volume, at notes 19–33; Sand & Hammitt, Chapter 8, in this volume, at notes 23–27. 6. Ecological adaptive management is exemplified by the F4 Panel’s directions to claimants to undertake long-term monitoring before, during and after remediation activities, and to use the information collected to adapt remediation programs in order to address negative impacts as they occur; the Follow-up Programme was structured to implement this approach. See, e.g., Report and recommendations made by the Panel of Commissioners concerning the third instalment of “F4” claims, UN Doc. S/AC.26/2003/31 (Dec. 18, 2003); 43 I.L.M. 704 (May 2004) at Introduction to Technical Annexes and Annex VI, para. 12. See also Payne, Chapter 5, in this volume, text at notes 99, 103, 111.
[ 260 ]
Looking to the Future
other principles need to be applied as well. Several new institutions have been proposed that apply these principles, including the following.
A. Redefine Well-Being Metrics
In the new full-world context, we first have to remember that the goal of an economy is to sustainably improve human well-being and quality of life. Material consumption and GDP are merely means to that end, not ends in themselves. We have to recognize, as both ancient wisdom and new psychological research tell us, that material consumption beyond real need can actually reduce overall wellbeing by creating an unending and unsatisfying drive for more stuff. Such a reorientation leads to specific tasks. We have to identify what actually contributes to human well-being and include the substantial contributions of natural and social capital, both of which have come under increasing stress. We have to be able to distinguish between real poverty in terms of low quality of life, and merely low monetary income. Ultimately, we have to identify what the economy actually is and what it is for, and a new model of development that acknowledges the new full-world context.7 There are many efforts underway to develop better well-being measures, but what is needed now is a global effort to build consensus in order for alternative measures to gain broad acceptance and credibility, and stable institutions to measure and report these new measures.8
B. Expand the “Commons Sector”
We need to greatly expand the commons sector of the economy, which would be responsible for managing existing common assets and for creating new ones. Some assets should be held in common because it is more just. This group includes resources created by nature or by society as a whole. Others should be held in common because it is more efficient. This group includes nonrival resources for which price rationing creates artificial shortages (i.e., information), or rival resources that generate nonrival benefits, such as ecosystem structure (i.e., forests). Others should be held in common because it is more sustainable. This group includes essential common pool resources and public goods.
7. Costanza 2008 at note 2. 8. R. Costanza, M. Hart, S. Posner, & J. Talberth, Beyond GDP: The Need for New Measures of Progress, in The Pardee Papers no. 4 (Boston University, Boston: The Frederick S. Pardee Center for the Study of the Longer-Range Future 2009), available at http://www.bu.edu/ pardee/publications/Pardee-Paper-004-Beyond%20GDP/.
L I A B I L I T Y F O R E N V I R O N M E N TA L DA M A G E S
[ 261 ]
Barnes suggests common asset trusts at various scales for expanding and managing the commons sector.9 Trusts can propertize the commons without privatizing them. The Alaska Permanent Fund and regional land trusts are existing examples. A proposed example aimed at massively reducing global carbon emissions and at the same time reducing poverty is the “Earth Atmospheric Trust.”10
C. Shifting the Burden of Proof
Our current approach to dealing with the risk of private interests damaging public environmental assets is to assign liability to the private interests, but with the burden of proof on the public. The public must demonstrate damages after the fact, claim compensation, endure a lengthy judicial process, and finally hope to recover just reparations. The UNCC operated within this structure. In addition, the total liability is often limited. For example, in the United States the Oil Pollution Prevention Act of 199011 limits the liability for oil spills to US$75 million, and the Price Anderson Act12 limits the liability for nuclear power plant accidents to US$10 billion. The Exxon Valdez oil spill resulted in an estimated US$3.4 billion in fines, compensation, and cleanup costs, and a court settlement of US$2.5 billion in punitive damages, that took decades of lawsuits after the incident, and was ultimately reduced by the Supreme Court to US$500 million in 2008. In many other parts of society, we require private interests to buy insurance to deal with the risks they impose on others and the public. For example, purchasing automobile insurance is now mandatory and assurance bonds are often required from building contractors. Requiring assurance bonds or insurance forces private interests to internalize the risk of their activities before the fact. It gives them strong financial incentives to reduce risks, since it is their own money that is at risk. The Deepwater Horizon (BP) oil well blowout incident resulted from inadequate attention by industry to the risks that the public was left to bear. Precautionary measures were known but not taken. Investments in safety devices (like the acoustic blowout preventer) were not made. Corners were cut. Short-term private profits motivated taking high risks with natural public assets. The BP spill has damaged several important natural capital assets whose value in supporting human well-being is huge, but is largely outside the market system.13 These nonmarketed “ecosystem
9. P. Barnes, Who Owns the Sky?: Our Common Assets and the Future of Capitalism (Washington DC: Island Press 2003). 10. P. Barnes, R. Costanza, P. Hawken, D. Orr, E. Ostrom, A. Umana, & O. Young, Creating an Earth Atmospheric Trust, 319 Science 724 (2008). 11. U.S. Oil Pollution Act of 1990, 33 U.S.C.§§2701–2762 (2006). 12. Price-Anderson Act of 1957, 42 U.S.C. § 2210 (2006). 13. D. P. Batker, I. de la Torre, R. Costanza, P. Swedeen, J. W. Day, Jr., R. Boumans, & K. Bagstad, Gaining Ground—Wetlands, Hurricanes and the Economy: The Value of Restoring the Mississippi River Delta (Tacoma, Wash.: Earth Economics
[ 262 ]
Looking to the Future
services” include climate regulation via the sequestration of carbon by coastal marshes and open water systems, storm protection by coastal wetlands,14 and cultural, recreation, and aesthetic values. Likewise, countries often go to war because they underestimate and externalize the risks and overestimate the benefits.15 The fundamental problem is that while private interests are ultimately liable for damages to public assets, they are only held accountable long after the fact and only partially. This gives private interests strong incentives to take large risks with public assets—far larger than they should from society’s point of view.
III. THE SOLUTIONS
The long-term solutions to these problems require fundamental changes to business-as-usual practices, including: 1. Assessment and incorporation of the full value of public natural capital assets into both corporate and public accounting and decision-making. 2. Assessment of the risks and worst-case damages that could result from incidents, based on damages to this more broadly assessed value. The UNCC F4 Panel results are a step in the right direction. 3. Application of the best science available about the complex linkages between human systems and the rest of nature. 4. Reversal of the burden of proof and requirement for corporations and other private interests to internalize and monetize their risks to public goods. One way to monetize these risks would be to require private interests to post an “assurance bond” large enough to cover the worst-case damages.16 A precedent for environmental assurance bonds are the producer-paid performance bonds often required for federal, state, or local government construction work. For example, the Miller Act,17 a 1935 U.S. federal statute, requires contractors performing construction work for the federal government to secure performance bonds. Bonds are frequently required for
2010), available at http://www.eartheconomics.org/FileLibrary/file/Reports/Louisiana/ Earth_Economics_Report_on_the_Mississippi_River_Delta_compressed.pdf. 14. For example, see, R. Costanza, O. M. Pérez-Maqueo, M. L. Martínez, P. Sutton, S. J. Anderson, & K. Mulder, The Value of Coastal Wetlands for Hurricane Protection, 37:4 Ambio 241–48 (2008). 15. B. Tuchman, The march of folly: from Troy to Vietnam (NY: Ballentine 1985). 16. R. Costanza & C. Perrings, A Flexible Assurance Bonding System for Improved Environmental Management, 2 Ecological Economics 57–76 (1990); R. Costanza & L. Cornwell, The 4P Approach to Dealing with Scientific Uncertainty, 34 Environment 12–20, 42 (1992). 17. 40 U.S.C. §§ 3131–3134.
L I A B I L I T Y F O R E N V I R O N M E N TA L DA M A G E S
[ 263 ]
construction work done in the private sector as well. Portions of the bond (plus interest) would be returned if and when the private interests could demonstrate that the suspected worst-case damages had not occurred or would be less than was originally assessed. If damages did occur, portions of the bond would be used to rehabilitate or repair the environment and to compensate injured parties. The critical feature is that the risk to the public asset is apparent to the private interests in financial terms before the fact, not as a liability that may or may not be enforced after the damage occurs.
IV. CONCLUSIONS
While it is unrealistic to think that society could require assurance bonds before countries would be permitted to go to war (since war is not permitted in any case), applications of the Lisbon principles of sustainable governance as described above would certainly limit environmental damages in most other cases. The precedents set by the F4 Panel will go a long way toward establishing the principles for estimation and fair compensation for environmental damage, whatever the source. Applying the full set of Lisbon principles would further extend these precedents to help create a sustainable and desirable future.
[ 264 ]
Looking to the Future
C HA P TER 1 2
The Profound Significance of the UNCC for the Environment DAVID D. CARON
INTRODUCTION
A
n oil spill of catastrophic proportions occurred in the Gulf of Mexico as this volume was completed in 2010. There is damage to property, horrendous loss of income, and damage to the environment that is widespread, severe, and, to some extent, unknown. The extent of the harm is reminiscent of the damage that flowed from President Saddam Hussein’s decision to start numerous oil well fires and release tremendous amounts of oil into the Persian Gulf. As with the 1991 Gulf War, a claims process is emerging for the Gulf of Mexico British Petroleum Deepwater Horizon Spill (BP spill). Kenneth Feinberg, the “claims czar” for the BP catastrophe in the Gulf, reportedly looks to adapt his experience with the claims process he devised following the 9/11 attacks. But the UN Compensation Commission (UNCC), another mass claims process, provides a more apt analogy. The 9/11 claims were filed by individuals seeking some recompense for the grievous loss of loved ones. In the case of the BP spill, like the Persian Gulf War, there in addition will be numerous corporate claims as well as claims by various public authorities for threats to public safety and health as well as damage to the environment. In this chapter, the experience of the UNCC with claims regarding the environment is told in terms of six lessons. Although potentially applicable to the BP spill context, these lessons are intended as general ones. Before addressing them, I consider why the lessons of the UNCC are not always readily apparent and how an environmental claim is fundamentally different from other claims present in a claims process.
I. HOW AND WHY THE UNCC HID SOME LESSONS
A methodological point about drawing lessons from the experience of the UNCC is important to emphasize at the outset. A recent story conveys the point. A member of the Secretariat of the UNCC a few years ago, then working in a different context, sought to support a proposition by drawing on the work of the UNCC. He was unable to do so because the jurisprudence of the UNCC in this regard had been scrubbed from the drafts of various UNCC decisions. He, a member of the Secretariat, and I, a Commissioner, had argued about this tendency on numerous occasions during the work of the panels. He had come to appreciate my resistance to scrubbing. Why did scrubbing take place? The work of the various panels of Commissioners were drafted in the form of “reports and recommendations” on instalments of claims. These reports and recommendations were to be considered by the Governing Council that would approve—or not approve—such recommendations as to the disposition of a group of claims. The constant presence in both the drafting and the approval was the Secretariat. The Secretariat aided the panels of commissioners who appeared for only several days a month and the Secretariat presented the reports and recommendations to the Governing Council, the members of which tended to appear only for a few days a month. And early on, a strategy of the Secretariat was to increase the likelihood of adoption of reports by the Governing Council by encouraging (repeatedly) the panels to restate anything in their reports that might be of notice and to remove anything in their reports that was not essential. As a result, what might be called the contributions to jurisprudence were often removed or reduced to such an extent that it takes an insider to even discern the trace. I emphasize this point because not all persons will agree with the six lessons I draw in this chapter. As indicated in my introduction to these volumes, the UNCC may be seen as having three dockets. First, the numerous claims of individuals limited in amount and handled as mass claims. Second, the fewer, but still significant, number of corporate claims for much larger amounts that were also handled with some mass claim techniques but which also were more individualized than the smaller claims of individuals. Third and last, the claims addressed by this volume— the claims of governments regarding the environment were relatively few in number, relatively large in amount and handled in an individualized manner. The scrubbing effect I describe was probably greatest with the second part of the docket. But the effect was present in the environmental claims as well.1
1. For a full account of the F4 claim process, see Klee, Chapter 2, in this volume.
[ 266 ]
Looking to the Future
II. HOW AN ENVIRONMENTAL CLAIM IS FUNDAMENTALLY DIFFERENT FROM OTHER CLAIMS
Before drawing lessons for future similarly situated commissions, it is critical to appreciate that environmental claims are at their foundation quite different from other claims. If this insight is not appreciated, then the future claims process will in likelihood fail to meet its fundamental purposes. It is on this point that the practice of the UNCC is of profound significance for the environment. The literature of the history of international environmental law identifies several milestones. One is the Stockholm Conference of 1972. Another is the Rio Conference of 1992. A more curious one, but central to this insight, is the Trail Smelter arbitration in which awards were made in 1938 and 1941.2 The Trail Smelter arbitration is relevant because it is often referred to as the first arbitration about the environment—even though the word “ecology,” and certainly the phrase “environmental movement,” did not enter common speech for several more decades. In that case, a smelter in the town of Trail in the eastern part of the Canadian Province of British Columbia had been releasing atmospheric pollutants that allegedly damaged orchards, timber, and crops in eastern Washington State. The arbitral tribunal found some of the alleged damage to have occurred and to be compensable, and awarded the U.S. monies for those portions. The significance of the Trail Smelter arbitration lies in the recognition that the awards did not involve environmental claims, it rather involved claims about private property where damage was measured in terms of commercial loss and the medium by which damage occurred was air transport of harmful pollutants. There is nothing new about international claims regarding property, including real property. Consequently, we are drawn to ask: “what is different about an ‘environmental’ claim?” The example of the Trail Smelter arbitration indicates that there are at least two possible meanings to “environmental claim.” On the one hand, there is the question of what the consequences of a catastrophe are for nature. On the other hand, there is the question of the consequences for property owners, where a catastrophe affects such owners’ interests through the disruption of the environment. If one is thinking in terms of the second aspect, there is no question in my view that international tribunals have addressed and can address environmental disruption claims when what is meant by that is resultant property damage (i.e., damage to real property, damage to crops, or damage to other parts of the environment with a commercial value) or health effects. In an instalment of corporate claims concluded at the UNCC, for example, monies were awarded for a claim by a corporation for
2. Trail Smelter Arbitration (United States v. Canada), 3 R. Int’l Arbitral Awards 1911 (1938); 3 R. Int’l Arbitral Awards 1938 (1941).
THE PROFOUND SIGNIFICANCE OF THE UNCC FOR THE ENVIRONMENT
[ 267 ]
the costs of repainting a small facility in Saudi Arabia near the border with Kuwait that had been covered with oily smoke from the fires.3 The challenge is to identify those aspects of an environmental claim that are fundamentally different from a property claim. Is it merely that different valuation methods need be devised for resources not already given a value by the market?4 If that is all that is different, then I find the difference not great. The experience of the UNCC tells us that there is more of a difference, a difference that goes fundamentally to the nature of a claim regarding the environment. It is this difference that claims processes—apart from the UNCC—have not taken into account adequately, and it is this failure that not only leaves the environmental issue perhaps unaddressed, but also makes the task of adjudicating the claim more difficult. At its root, the question that must be addressed is how a claims process may be said to be about the environment rather than the legal entity that may be said to own the property. If a claims process awards millions of dollars to a government for injury to its citizens and that government never transfers those funds to the particular persons, can it be said that the claims process succeeded in compensating individuals damaged by a catastrophe? The trend in answering that question today is “no”; it has not succeeded. Likewise, if a claims process awards billions of dollars to the government of a state after a sophisticated calculation of damage to the ecosystem of that state and that government never utilizes those funds to restore the environment or offset the damage that occurred, can it be said that the claims process succeeded in addressing the environmental damage caused by a catastrophe? As seen in this volume, the answer implicit in the approach of the F4 Panel was that if its work did not result in funds awarded being used to restore the environment or offset the damage that occurred, then it would have failed. In other words, a claims process addressing the environment inevitably seeks representation of a community’s interest in the environment. I approach this question of representation as a problem of agency.5 An agent acts on behalf of a principal. Framing the analysis in this way rephrases the questions before us: What does agency mean in terms of claims regarding the environment? What does it mean to act as an agent for the environment, for a community’s interest in that environment? An assessment of current institutions in terms of these questions reveals a quite weak position accorded to the environment. This position reflects the deeply
3. See Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of “E2” Claims, UN Doc. S/AC.26/1998/7 ( July 3, 1998), para. 251, and approved by Governing Council Decision 53, S/AC.26/1998/53 ( July 3, 1998). 4. For a discussion of various valuation methods, see Huguenin et al., Chapter 3, in this volume. 5. For a valuable introduction to agency as an analytical approach, see Principals and Agents: The Structure of Business ( John W. Pratt & Richard J. Zeckhauser eds., 1991). A parallel term in legal literature and legal doctrine is that of trusteeship: see Sand, Chapter 7 in this volume, text at notes 8–10 and sources cited therein.
[ 268 ]
Looking to the Future
embedded notion that it is the consequences of the catastrophe for the claimant, rather than the environment, that are to be addressed by such mechanisms. In other words, is the claimant a principal in possession of an asset called the environment, which has been damaged, or is the claimant instead an agent executing the directions and will of a community (the principal), regarding the environment? In the case of the UNCC, the claims of more than 2 million individuals were filed with the Commission primarily by governments. Two examples make clear, however, that the government filed such claims not as principal, but rather as agent of those individuals. First, in the UNCC it does not appear that a government has the capacity to prevent the presentation of the claim of a person resident in its territory. Under Decision 1 of the Governing Council, “the Council may request an appropriate person, authority or body to submit claims on behalf of persons who are not in a position to have their claim submitted by a Government.”6 The focus is thus on the individual and not the state within which the individual resides. Second and more significant, the government as agent is monitored by the UNCC in the performance of its role. Decision 18 of the Governing Council of the UNCC required that all governments receiving awards (1) prior to or immediately following receipt of payment, inform in writing the UNCC on the arrangements made for distribution of the funds to claimants; (2) within six months of receipt, distribute the specified funds to named claimants; (3) not later than three months after the deadline for distribution, inform the UNCC on the amounts distributed and the reasons for any nonpayment; and (4) after distribution of all payments received, provide a final summary account of all distributions made.7 Funds received, which were not distributed to claimants owing to inability to locate such claimants, “shall be reimbursed to the Compensation Fund.”8 The provisions of Decision 18 reflect an astounding shift in the last century. I do not mean to imply that the practice of diplomatic protection and espousal is gone, but rather that in certain institutional contexts we have witnessed the development of a view of the state as agent of individuals rather than as principal. The crucial point to note is that there was within the UNCC a similar even more profound development for environmental claims. How would the agency perspective be extended to claims regarding the environment? This question leads once again to an examination of the fundamental nature of a claim regarding the environment. The state as sovereign often is viewed as owning such aspects of the environment as parens patriae of the people. It is the
6. Governing Council Decision 1, Criteria for Expedited Processing of Urgent Claims, S/AC.26/1991/1 (Aug. 2, 1991), para. 19. 7. Governing Council Decision 18, Distribution of Payments and Transparency, U.N. Doc. S/AC.26/18 (Mar. 24, 1994), paras. I (2), I (3), I (4), and I (6) (hereinafter, Decision 18). For a discussion of Decision 18 in the context of the environmental claims, see Payne, Chapter 5, in this volume. 8. Decision 18, para. I(6).
THE PROFOUND SIGNIFICANCE OF THE UNCC FOR THE ENVIRONMENT
[ 269 ]
state that holds such aspects of the environment in trust as an agent of its nation and, increasingly, as the logical agent of the international community. The state is the natural candidate to be the agent because the land, the territory, is so fundamentally a part of the state.9 If the government is viewed as a principal rather than an agent, then the “environmental claim” is what that government defines it to be. If the government is the principal, then it is the government’s choice as to whether it wishes to bring a claim at all. It could decline to bring a claim, preferring to spend its investigatory resources on assisting individuals, corporations, and ministries in the preparation of their claims. If the government is the principal, it could also simply not spend the money to restore the environment. Unfortunately, this is what occurred in numerous cases following the Gulf War. Only a quite limited amount of monitoring and assessment was carried out with Gulf countries’ own funds, and very little restoration was done until the money was put up by the UNCC. The governments acted like principals with the choice of whether or not to restore the environment. An agency perspective in contrast would require the steward of a natural resource valued locally (and perhaps regionally and globally as well) to restore it regardless of who damaged it. A shift to greater use of the idea of agency thus requires that the terms of that agency be described robustly. First, the employment of an agency perspective on the claim of a state will require a test to distinguish when a state as claimant acts as principal or as agent. In broad terms, the line between agency and principal can be phrased in quite straightforward terms: When the state asserts an interest comparable to what a participant in the market would have, the state claims as a principal but the interest asserted cannot be one requiring a use of the environment contrary to the minimal requirements of applicable international environmental law. For example, assume there was a war in central Africa that destroyed many of the last rhinoceroses. On the one hand, the state as principal potentially could have a claim for loss of tourism at a government resort in the park. On the other hand, the state as principal could not claim for the export value of the rhino horns when either the harvesting or export of the horns is prohibited under applicable international law. In contrast, those state interests not comparable to what a private participant might assert—the costs of rhinoceros species recovery programs—would place the state in the position of an agent.10 Thus a state could assert claims as both principal and agent—principal for its loss of legitimate use, agent for what it holds in trust for a broader community.
9. Of course international organizations, scientific research institutions, and other nongovernmental organizations conceivably might play a role in such efforts. Such possibilities are not considered in this essay, however. 10. Although informed by different motives, the lessons and complexities of sovereign immunity might provide guidance on any elaboration of a distinction between a state claiming as agent or as principal.
[ 270 ]
Looking to the Future
Second, the employment of an agency perspective on the claim of a state will require a clear definition of the principal. An agent acts to protect the interests of the principal. In the case of the environment, the principal may be said to be the environment itself, but any examination of that choice leaves one without guidance as to what is to be valued more or less in an environment altered by war. In terms of sovereignty, the principal is the people of that nation. In terms of international law and international governance, it is the people of the nation with that minimum respect for the environment required by applicable international customary and treaty law. In this sense, the general international community has a baseline interest in the environment that each state should represent.11 This is a profound statement about international environmental law. It might be asserted that there is no general agreement as to limitations on state actions to utterly destroy the environment on its territory. Yet international environmental law increasingly circumscribes that assertion. And thus the agency approach, implicit for example in the UNCC tracking program for environmental claims, suggests that the minimum which can be compensated is also protected from the state itself. A related question asks whether there are agents other than the state that may present environmental claims. An international organization such as the UN Environment Programme (UNEP), for example, would perhaps more naturally have an eco-systemic perspective encompassing several states, although it would also have very little domestic political accountability in any of the states. The borders of the state in contrast may result in a state confining its claim and restoration efforts to its territories. This was illustrated within the UNCC by the separate marine claims for Iran, Kuwait, and Saudi Arabia, by the refusal of these and other countries to share data collected in the monitoring and assessment programs so as to develop restoration plans for the Gulf, and by their reluctance to share their experiences with restoration in the Follow-up Programme.12 A territorial view of an environmental claim thus leads potentially to redundancies in investigation of the harm. In this sense, state agents would have a duty to cooperate with other agents of a shared environment in pursuing their nation’s interests in that environment.13 Third, the employment of an agency perspective on the claim of a state will require the articulation of the minimal agency expectations of the international community and the possibly greater expectations of the nation involved. In terms of
11. Of course, the people of the nation involved may have an interest above and beyond the international community’s interest that the state as a matter of domestic legal order should represent as agent. 12. See Payne, Chapter 5, in this volume. 13. See Allen, Chapter 6, in this volume, where the converse responsibility outward in UNCC jurisprudence is discussed: “Similarly, the Panel alluded to the 1972 Stockholm Declaration and the 1992 Rio Declaration in stressing that claimants must consider the transboundary impacts of remediation measures they proposed to undertake. The Panel specifically invoked this principle in rejecting Iran’s proposal to use genetically modified bacteria to combat residual oil pollution in the Persian Gulf.”
THE PROFOUND SIGNIFICANCE OF THE UNCC FOR THE ENVIRONMENT
[ 271 ]
the international community, for example, the state should seek to mitigate the damage that has occurred, prepare contingency plans and protect sensitive habitats and species. These minimal interests in the environment in all likelihood will be required by the nation’s domestic legal order as well. Finally, an implication of thinking in terms of agency is that some issues surrounding valuation are clarified. Claims presented by a principal tend to be those market interests ascertainable by accepted methods. It is the claims as agent for more foundational, long-term and often yet unknown damage to the environment that are more problematic. Simultaneously, the terms of the agency give more guidance than merely restoration of the status quo ante, e.g., the removal of oil from rocks on a polluted shore. It may cost the same amount to clean oil from hard sandy areas as it does to restore a marsh—yet in terms of the health of the environment involved, it may be more important to restore the marsh. The terms of agency thus can provide priorities informing the agent, for example, to focus on critical habitats and the range of biodiversity. The duties of the agent to consider mitigation and restoration leads to the need for scientific assessment of the environmental impact that occurred. The knowledge gained through such efforts will in turn have a feedback effect on the suggested methods to be employed for valuation. It often seems that much of the natural resource valuation methods utilized in litigation can be a damage proxy for a lack of knowledge as to what should be done. In other words, estimating the cost of restoring the previous situation, even if other measures are to be ultimately taken, serves as a proxy for a value that can’t otherwise be calculated.
III. SIX LESSONS
In addition to an understanding of what is an environmental claim, a claims process addressing an environmental catastrophe on the scale of the Gulf War can take away six lessons from the UNCC. I present them as separate lessons, but as will be apparent, they are closely linked.
1. The Claims Process Is Not Separable from Response
It is a mistake to think that one can divorce the possibility of later compensation from decisions made to initiate cleanup, assess harm, and undertake restoration today. In the Persian Gulf, local governments’ efforts to address environmental damage slowed as they awaited funds. Eventually, authorities situated along the Gulf of Mexico coast will be compensated, at least in part, but providing interim payments could ensure that their work continues. Vague guidelines as to which efforts will be remunerated, and when, may lead to hesitation at the starting gate. [ 272 ]
Looking to the Future
2. The Harm to the Environment Is in All Likelihood Ongoing
The harm to the environment following a catastrophe such as the Gulf War will be ongoing for years. Environmental damage accumulates, and given that restoration is extremely difficult, every effort should be made to address the ongoing harm. Thus a terribly difficult problem for a claims commission will be how to act quickly. In a sense, such action—assuming the process could not be expedited—is a form of interim measures of protection. Given that knowledge of the ongoing damage is limited, the UNCC approached the problem by considering an instalment of claims aimed at ascertaining exactly what damage there was or was ongoing. In essence, the UNCC funded claims aimed at interrogating the environment as to what occurred. A proactive claims process aids the effort of responding to the disaster.
3. Investigating the Possibility of Damage Is Itself Compensable
Local and national government officials have a responsibility to ascertain, within reason, the extent of harm. Compensation follows environmental damage. But suppose a public authority spends funds to ascertain the extent of the damage. And having spent a significant amount of public funds does not find damage in a particular area. What then? An important lesson from the UNCC is that the presence of a large oil spill creates risks of future harm, which a government has the responsibility to take reasonable steps to assess as quickly and efficiently as possible. And the costs of those efforts should be compensated.
4. A Claims Process for Environmental Catastrophe Occupies a Unique Position of Knowledge and Coordination
A claims body can streamline the recovery effort. Courts typically focus on individual claims. Mass claims processes do, too, but also cast an eye on the larger situation. A claims commission like the UNCC receives a tremendous amount of information on the damage wreaked by oil on coasts, wildlife, and businesses. It will also influence decision-makers at all levels tasked with compensating victims. The commission thus occupies a key berth from which it can encourage assessments that answer questions shared by many claimants. In light of the giant data collection effort that will occur, the commission can coordinate data about the region which will further our long-term understanding of what occurred, how the environment was damaged, and how it can, we hope, be restored. A key element of a mass claims process is that the lawyers must think not only like lawyers with one client. They must focus simultaneously on the individual claimant and on the region as a whole, for the recovery of the region is an important part of the true recovery of each individual. THE PROFOUND SIGNIFICANCE OF THE UNCC FOR THE ENVIRONMENT
[ 273 ]
5. There Is Not Enough Money
A general lesson to be drawn from the UNCC is that there is not enough money and as a consequence in time there will be the challenge of addressing conflicting demands on limited funds. The UNCC had benefit from a garnishment of the revenue from the sale of Iraqi oil. In excess of US$50 billion went in this way to fund the operations of the UNCC and the satisfaction of its awards. The US$20 billion fund established by BP for the 2010 Deepwater Horizon spill is a great deal of money, but it also will not be enough. This observation is not offered as an argument that the fund should be greater in amount, rather it is offered as a likely fact. There often are no funds for compensation after a catastrophe. When there are funds, they almost always will be smaller than that required to satisfy all that is likely to be awarded for the consequences of the disaster. And thus there will be a tension between the amount of funds that should be allocated to research, planning, and restoration of the environment as opposed to the amount allocated for the payment of the immediate tangible claims of individuals, corporations, and public authorities. The UNCC is an example of how uncertainty as to the ultimate amount of funds available actually helped all concerned avoid this choice for quite some time. No one knew how much funds ultimately would be placed in the UNCC Compensation Fund so as to pay awards of the Commission. Until the Iraq War, the Compensation Fund received 30 percent of Iraq’s future oil revenues for a seemingly indefinite period. The claims before the UNCC totaled approximately US$200 billion. In contrast with this uncertain situation, let us assume that the Fund had been established with a set amount of US$80 billion. In that case, I believe there would have been a difficult discussion as to the priority to be given to the substantial amounts necessary to restore the environment. In essence, the claimant government would have a conflict of interest and need to mediate between its roles as agent for interests in the environment and agent for the claims of its nationals and corporations. Indeed, it may have a conflict of interest between its own claims as principal and as agent.
6. The Claims Process for Environmental Claims Extends Far into the Future
Given the previous lessons and the assumed presence of a significant disaster, it should likewise be assumed that the claims process extends far into the future. This is particularly the case in terms of any follow-up program where the claims institution monitors the performance of the agent; that is, tracks the execution of an agent’s stated plan to address environmental concerns. Moreover, to the extent that one wishes to put the process behind oneself, the lesson from the UNCC is that one
[ 274 ]
Looking to the Future
can only do so by possibly undermining the long-term goal of addressing the damage to the environment.
IV. CONCLUSION
The significance of the UNCC for claims regarding the environment is on the one hand simple and on the other hand profoundly important: An effective claims process for the environment requires a point of perspective shift from the classic interstate viewpoint to one where the interest of relevant communities in the health and sustainability of a damaged environment is the focus. The F4 Panel and staff of the UNCC in large measure took this shift, and it is a simply astounding achievement. If the shift is taken, then a number of issues will arise. I have attempted to address some of these in the six lessons I offer. I am confident there are more issues. The imagination, dedication, and genius of the F4 Commissioners and staff assure me that a future claims commission can carry this shift in perspective further for the benefit of all.
THE PROFOUND SIGNIFICANCE OF THE UNCC FOR THE ENVIRONMENT
[ 275 ]
This page intentionally left blank
Guidance for Researchers C YMIE R . PAYNE
C
alls for greater transparency with regard to the confidential claimant and respondent filings and expert reports commissioned by the panels notwithstanding, the UN Compensation Commission (UNCC)’s actions are well documented in the public record, through the official documents issued by the United Nations. As with courts and tribunals, the primary source materials for scholars and researchers of the UN Compensation Commission are the reports and decisions produced by the Commission and other related UN documents. This section briefly describes what can be found in these materials and where they can be located. While the terminology may seem opaque at first, the organization is straightforward. This information applies to the UNCC claims generally, with occasional special reference to the environmental claims.
I. PANEL REPORTS
The reports and recommendations on awards from the UNCC panels to the Governing Council are the best and authoritative source of information about who claimed how much for what; what evidence was presented; what Iraq argued in response; and how the awards were ultimately disposed of. The reports identify legal issues addressed by the panel and explain how they were resolved. Panel reports also contain relevant information on the procedures used for review of the claims, including whether documents were transmitted to Iraq, what procedural orders were issued by the panel of Commissioners, and whether oral proceedings were held. They identify sources of information relied on by the panel, including site visits, consultation with international organizations, and the use of expert consultants.
Panel reports can be found on the UNCC website (http://www.uncc.ch) and in the United Nations’ Official Documents System (http://documents.un.org/); selected reports have been republished in International Legal Materials. A number of early reports, along with other relevant documents such as claims forms, were republished in Arthur Rovine and Grant Hanessian (eds.), Gulf War Claims Reporter (Washington, DC: International Law Institute 1997). The reports can be searched by reference to a particular claim, claimant country, claimant type, or subject matter. Claims were categorized according to the type or size of the claims and the similarity of legal and factual issues.
Table 1. CATEGORIES OF CLAIMS Category
Subject Matter
Claims of Individuals A B C D
Departure from Iraq or Kuwait Serious personal injuries or death of spouse, child, or parent Losses up to US$100,000 Losses over US$100,000
Claims of Corporations E1 E2 E3 E4
Oil sector, including Well Blowout Control claim Non-Kuwaiti, excluding E3, E4, and E/F Non-Kuwaiti construction/engineering claims Kuwaiti private sector claims, excluding oil sector claims
Claims of Governments and International Organizations E/F F1 F2 F3 F4
Export guarantee and insurance Departure, evacuation, physical property, and int’l orgs. Jordan & Saudi Arabia, non-environmental damage Kuwait, non-environmental damage Environmental damage and depletion of natural resources
The environmental claims were included in the “F” category of government claims, in a subgrouping designated “F4.”1 All panel reports issued by the F4 panel of Commissioners are so designated in the title of the report, e.g., “Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of ‘F4’ Claims,” U.N. Doc. S/AC.26/2001/16. The F4 claims were further divided into five instalments, again according to similarity of legal and factual issues.2
1. See Payne, Chapter 1, at notes 88–95 and Klee, Chapter 2, at note 9 in this volume. 2. Id. at notes 25–32.
[ 278 ]
Guidance for Researchers
Table 2. CATEGORY “F4” INSTALMENTS Instalment, Report Number
Subject
Countries
Sources of Damage
1
Monitoring and assessment
Iran, Jordan,
Pollutants from oil well fires
S/AC.26/2001/16
of environmental damage,
Kuwait,
and fire-fighting;
including cultural heritage
Saudi Arabia,
Oil lakes formed by
and public health
Syria, Turkey
damaged wells; Mines, unexploded ordnance,
(principally future costs)
and other remnants of war; Movement of military vehicles and personnel, construction of military trenches, fortifications; Oil spills into the Persian Gulf from pipelines, offshore terminals, and tankers; and Movement and presence of 2
Abatement and prevention
Australia, Canada,
refugees. Pollutants from oil well fires;
S/AC.26/2002/26
of environmental damage
Germany, Iran,
Oil lakes formed by damaged
(incurred expenses)
Kuwait,
wells;
Netherlands,
Mines, unexploded
Saudi Arabia,
ordnance, and other
United Kingdom,
remnants of war; and
United States
Oil spills in the Persian Gulf from pipelines, offshore
3
Measures to clean and
Kuwait,
terminals, and tankers. Pollutants from oil well fires
S/AC.26/2003/31
restore the environment
Saudi Arabia
and fire-fighting;
(principally future costs)
Oil released from damaged oil wells; Mines, unexploded ordnance, and other remnants of war; Movement of military vehicles and personnel, construction of military trenches, fortifications; and Oil spills into the Persian Gulf from pipelines, offshore terminals, and tankers. (Continued)
Guidance for Researchers [ 279 ]
Table 2. CONTINUED Instalment, Report Number
Subject
Countries
Sources of Damage
4
Measures to clean and
Iran, Jordan,
Pollutants from oil well fires
S/AC.26/2004/16
restore the environment
Kuwait,
and fire-fighting;
S/AC.26/2004/17
(principally future costs)
Saudi Arabia,
Oil released from damaged oil
Syria, Turkey
wells and pipelines onto land; Oil trenches and pipelines; Mines, unexploded ordnance, and other remnants of war; Oil spills into the Persian Gulf from pipelines, offshore terminals, and tankers; and Movement and presence of
5
Measures to clean and
Iran, Jordan,
refugees. Pollutants from the oil well
S/AC.26/2005/10
restore the environment,
Kuwait,
fires and damaged oil wells in
depletion of or damage to
Saudi Arabia,
Kuwait;
natural resources, pure
Syria, Turkey
Oil spills into the Persian Gulf
(non-commercial)
from pipelines, offshore
environmental damage,
terminals, and tankers;
monitoring of public health
Mines, unexploded ordnance,
and medical screenings,
and other remnants of war;
other public health, cultural
Influx of refugees; and
heritage (future costs and
Exposure of populations to
incurred expenses)
pollutants from the oil well fires and oil spills in Kuwait and to hostilities and various acts of violence.
II. GOVERNING COUNCIL DECISIONS
Governing Council decisions are the authoritative source for binding policy decisions, such as criteria for claims categories (Decision 7) and the Rules (Decision 10). Decisions of the Council established additional rules for particular claims categories, which include decisions relevant to the environmental claims: - Decision 114 (revising procedures and providing technical expertise to Iraq for F4 claims); - Decisions 124, 226 (technical assistance to Iraq); - Decision 256, 267 (priority payment of environmental claims); [ 280 ]
Guidance for Researchers
- Decision 258 (follow-up program for environmental claims); - Decision 266, 268 (follow-up program administration and withholding of funds). Governing Council decisions are also the binding decisions on awards of compensation. The panels of Commissioners made recommendations of amounts that their review found to be supported by the evidence, while the Council approved the recommendations. Thus, each approved report on claims is matched with a Governing Council decision. Sometimes these decisions imposed conditions on the award, such as claimant reporting under Decision 18 or, in the case of the environmental claims, additional reporting. All numbered Governing Council decisions are published on the UNCC website and in the United Nations’ Official Documents System; rule-setting decisions have been republished in International Legal Materials. Important decisions and several unnumbered, restricted distribution Governing Council decisions (issued up to March 2001) were published in “UNCC, Basic Documents of the United Nations Compensation Commission,” U.N. Doc. S/AC.26/SER.A/1, vol. I (Geneva: United Nations Publications 2001). To date no other volumes in this series have been published.
III. SECURITY COUNCIL RESOLUTIONS AND OTHER DOCUMENTS
The basic legal framework of the UNCC is found in the Security Council’s resolutions, which establish Iraq’s liability, create the Commission, and set or modify the terms of its function. They are available on the internet through the United Nations’ Official Documents System. A considerable amount of information about the UNCC’s institutional history can be found in reports to the Security Council and General Assembly from the UN Secretary-General, the President of the Governing Council, and the ExecutiveSecretary of the United Nations. These documents are available through the United Nations’ Official Documents System.
IV. CONFIDENTIAL RECORDS
Access to many documents is limited and not available to the general researcher. The UNCC operated under strict rules of confidentiality. Article 30 of the rules stated: 1)
Unless otherwise provided in these procedures or decided by the Governing Council, all records received or developed by the Commission will be confidential, but the Secretariat may provide status reports to Governments, international organization or corporations
Guidance for Researchers [ 281 ]
2) 3)
making claims directly to the Commission in accordance with Article 5, paragraph 3, regarding claims that they have submitted. Panels will conduct their work in private. Commissioners shall not disclose, even after the termination of their functions, any information not in the public domain that has come to their knowledge by reason of their working for the Commission.
Consistent with the UN’s rules for the protection of individuals, the Rules also provide in Article 40 (5): Decisions of the Governing Council and, after the relevant decision is made, the associated report of the panel of Commissioners, will be made public, except the Executive Secretary will delete from the reports of panels of Commissioners the identities of individual claimants and other information determined by the panels to be confidential or privileged.
The confidentiality rule was applied broadly such that the general public does not have access to original claim files and accompanying evidence; Iraq’s comments and arguments; states’ comments on Article 16 reports3 indicating significant legal and factual issues raised by the claims; Secretariat reports to the Governing Council; minutes of Governing Council meetings; legal memos produced by the Secretariat for the use of the panels of Commissioners; or professional judgment reports of expert consultants that were retained to assist the panels of Commissioners. This rule extended to prohibit publication in scientific journals of observations made during site visits by scientific experts retained for the environmental claims program and the database created by the UN Environment Programme (UNEP).
V. ARCHIVES
In consultation with the UN Archives and Records Management System (ARMS), the Governing Council decided to archive UNCC records according to three categories: indefinite retention, fixed-term retention, and preexisting UN archiving regimes.4 The archives will be subject to confidentiality restrictions to be determined by the Governing Council and ARMS. Records considered to have historical or precedential value were to be retained by the United Nations indefinitely. Examples of records in this category include the publicly available panel reports and Governing Council decisions in all six official
3. For an explanation of Article 16 reports, see Payne, Chapter 1, in this volume, at notes 96–99. 4. See Klee, Chapter 2, section IV.D in this volume.
[ 282 ]
Guidance for Researchers
UN languages. Examples of confidential records that might be retained indefinitely would include guidelines provided by the F4 Panel for special procedures such as discussions between claimants or Iraq’s representatives and the Panel’s expert consultants; procedures used by the F4 team; and terms of reference for the expert consultants. UNCC policy directs that claim files and related records prepared by Iraq, the Secretariat, and expert consultants retained by the UNCC are to be retained for a fixed number of years following the last payment on the particular claim. After that time, they are to be destroyed.
Guidance for Researchers [ 283 ]
B I B L I O G R AP H Y OF L I TERATU RE O N T H E U N I TED NATI ON S COMP ENS A T I O N C OM M I S S I O N
BOOKS ABOUT THE UNITED NATIONS COMPENSATION COMMISSION Markus Eichhorst, Rechtsprobleme der United Nations Compensation Commission (Berlin: Duncker & Humblot 2002). Marco Frigessi di Rattalma, Nazioni Unite e danni derivanti dalla guerra del Golfo (Milan: Giuffré 1995). Marco Frigessi di Rattalma and Tullio Treves (eds.), The United Nations Compensation Commission—A Handbook (The Hague: Kluwer Law International 1999). Verena Jutte, Die United Nations Compensation Commission: Eine Darstellung von Aufbau und Verfahren sowie der historischen und rechtlichen Grundlagen, European university studies (Frankfurt: P. Lang 1999). Alexandros Kolliopoulos, La Commission d’indemnisation des Nations Unies et le Droit de la Responsabilité Internationale (Paris: Librairie Générale de Droit et de Jurisprudence 2001). Richard B. Lillich (ed.), The United Nations Compensation Commission, Thirteenth Sokol Colloquium (Irvington, NY: Transnational Publishers 1995). Brigitte Stern (ed.), Les aspects juridiques de la crise et de la guerre du Golfe, Cahiers Internationaux No. 666 (Nanterre: CEDIN 1991). COLLECTED DOCUMENTS Elihu Lauterpacht, The Kuwait Crisis: Basic Documents (Cambridge: Grotius 1991). Arthur Rovine and Grant Hanessian (eds.), Gulf War Claims Reporter (Washington, D Cambridge University Press C: International Law Institute 1997). Brigitte Stern et al. (eds.), La guerre du Golfe: le dossier d’une crise internationale 1990–1992 (Paris: La documentation française 1993). UNCC, Basic Documents of the United Nations Compensation Commission, UN doc. S/AC.26/SER.A/1, vol. I (Geneva: United Nations Publications 2001). UN Dep’t Pub. Info., The United Nations and the Iraq-Kuwait Conflict (1990–1996) (New York: United Nations 1996). BOOK CHAPTERS Roberto Ago, Conclusions du colloque ‘Responsabilité des Etats pour les dommages à l’environnement,’ in International Responsibility for Environmental Harm 493–99 (F. Francioni and T. Scovazzi eds., London: Graham & Trottman 1991).
Dhari Al-Ajmi and Raafat Misak, Impact of the Gulf War on the Desert Ecosystem in Kuwait, in The Middle Eastern Environment 166–77 (E. Watkins ed., Cambridge: St. Malo Press 1995). Laurence Boisson de Chazournes and Danio Campanelli, The United Nations Compensation Commission: Time for an Assessment?, in Peace in Liberty: Festschrift for Michael Bothe 3–17 (A. Fischer-Lescano, H.-P. Gasser, T. Marauhn, and N. Ronzitti eds., Nomos 2008). David D. Caron, Finding Out What the Oceans Claim: The1991 Gulf War, the Marine Environment, and the United Nations Compensation Commission, in Bringing New Law to Ocean Waters 393–415 (David D. Caron and Harry N. Scheiber eds., Leiden: Koninklijke Brill 2004). Lalanath deSilva, Additional Perspectives on the UNCC, in Governance, Natural Resources, and Post-Conflict Peacebuilding (C. Bruch, C. Muffett, and S.S. Nichols eds., Earthscan, London forthcoming 2011). Olufemi Elias, Sustainable Development, War Reparations and Environmental Damage, in Exploitation of Natural Resources in the 21st Century 67–90 (M. Fitzmaurice and M. Szuniewicz eds., The Hague: Kluwer Law International 2003). Olufemi Elias, The UN Compensation Commission and Liability for the Costs of Monitoring and Assessment of Environmental Damage, in Issues of State Responsibility before International Judicial Institutions 219–36 (M. Fitzmaurice and D. Sarooshi eds., Oxford, Portland: Hart Publishing 2004). Hazel Fox , Reparations and State Responsibility: Claims Against Iraq Arising out of the Invasion and Occupation of Kuwait, in The Gulf War 1990–91 in International and English Law 261–86 (P. Rowe ed., London: Routledge 1993). Philippe Gautier, Environmental Damage and the United Nations Claims Commission: New Directions for Future International Environmental Cases?, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 177–214 (T. M. Ndiaye and R. Wolfrum eds., Boston: Martinus Nijhoff, Leiden 2007). Leslie C. Green, State Responsibility and Civil Reparation for Environmental Damage, in Protection of the Environment During Armed Conflict 416–39 (R. J. Grunawalt, J. E. King , and R. S. McClain eds., Newport: Naval War College Press 1996). Jacques-Michel Grossen, Un quasi-arbitrage? A propos de la Commission de compensation des Nations Unies et de sa procédure, in Etudes de Droit International en l’Honneur de Pierre Lalive 509–16 (C. Dominicé ed., Basel: Helbing & Lichtenhahn 1993). Mojtaba Kazazi, Environmental Damage in the Practice of the UN Compensation Commission, in Environmental Damage in International and Comparative Law: Problems of Definition and Valuation 111–31 (M. Bowman and A. E. Boyle eds., Oxford: Oxford University Press 2002). Mojtaba Kazazi, The UNCC Follow-up Programme for Environmental Awards, in Law of the Sea, Environmental Law and Settlement of Disputes: Liber Amicorum Judge Thomas A. Mensah 1109–29 (T. M. Ndiaye and R. Wolfrum eds., Boston: Martinus Nijhoff, Leiden, 2007). Peter Malanczuk, The Law Applied by the United Nations (Security Council) Compensation Commission for Claims Against Iraq (1996), in Perspectives of Air Law, Space Law, and International Business Law for the Next Century: International Business and New Rules of State Responsibility? 117–45 (K. H. Boeckstiegel ed., Cologne: Carl Heymanns).
Bibliography of Literature [ 285 ]
Jean-Christophe Martin, La pratique de la Commission d’indemnisation des Nations Unies pour l’Irak en matière de réclamations environnementales, in Le droit international face aux enjeux environnementaux: Colloque d’Aix-en-Provence 2009 de la Société française pour le droit international 257–274 (Y. Kerbrat, S. MaljeanDubois and Rostane Mehdi eds., Paris: Pedone 2010). Jeffrey G. Miller, Civil Liability for War-Caused Environmental Damage: Models from United States Law, in The Environmental Consequences of War: Legal, Economic and Scientific Perspectives 392–438 ( J. E. Austin and C. E. Bruch eds., Cambridge: Cambridge University Press 2000). Karine Mollard-Bannelier, Une responsabilité pour la violation du jus ad bellum: Le cas exceptionnel de l’Irak, in La protection de l’environnement en temps de conflit armé, 407–41 (Paris: A. Pedone 2001). Felipe H. Paolillo, Nature et caractéristiques de la procédure devant la Commission d’indemnisation des Nations Unies, in Le développement du rôle du Conseil de Sécurité: Peace-Keeping and Peace-Building: The Development of the Role of the Security Council 287–302 (R. J. Dupuy ed., Dordrecht: Kluwer Academic Publishers 1993). Felipe H. Paolillo, Reclamaciones colectivas internacionales: el caso de los damnificados por la crisis del Golfo, in International Law in an Evolving World: Liber Amicorum in Tribute to Professor Eduardo Jiménez de Aréchaga 545–69 (M. Rama-Montaldo ed., Montevideo: Fundación de Cultura Universitaria 1994). Andreas Paulus, United Nations Compensation Commission, in The Charter of the United Nations: A Commentary I-551 (B. Simma, H. Mosler, A. Paulus, and E. Chaitidou eds., 2nd ed. Oxford: Oxford University Press 2002). Cymie R. Payne, Legal Liability for Environmental Damage: The United Nations Compensation Commission and the 1990–1991 Gulf War, in Governance, Natural Resources, and Post-Conflict Peacebuilding (C. Bruch, C. Muffett, and S.S. Nichols eds., Earthscan, London forthcoming 2011). Glen Plant, State Responsibility and Civil Liability for Environmental Damage Caused by Military Operations, in Protection of the Environment During Armed Conflict 440–46 (R. J. Grunawalt, J. E. King , and R. S. McClain eds., Newport: Naval War College Press 1996). Adam Roberts, The Law of War and Environmental Damage, in The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives 47–86 ( J. Austin and C. E. Bruch eds., Cambridge: Cambridge University Press 2000). Adam Roberts, Failures in Protecting the Environment in the 1990–91 Gulf War, in The Gulf War 1990–91 in International and English Law (P. Rowe ed., London: Routledge, 1993). Rajesh Singh, Raising the Stakes: Evidentiary Issues in Individual Claims before the United Nations Compensation Commission, in Redressing Injustices through Mass Claims Processes: Innovative Responses to Unique Challenges (International Bureau of the Permanent Court of Arbitration eds., Oxford: Oxford University Press 2006). Brigitte Stern, Une procédure mi-politique, mi-juridictionnelle: le règlement des réparations dues par l’Irak à la suite de la crise du Golfe, in Actualités des conflits internationaux, Rencontres internationales de l’IEP d’Aix en Provence, vol. 2, at 171–85 (Paris: Pedone 1993). Hans van Houtte, Hans Das, and Bart Delmartino, The United Nations Compensation Commission, in The Handbook of Reparations 321–89 (P. de Greiff ed., Oxford: Oxford University Press 2006).
[ 286 ]
Bibliography of Literature
Norbert Wuehler, The United Nations Compensation Commission, in State Responsibility and the Individual 243–329 (A. Randelzhofer and C. Tomuschat eds., The Hague: Kluwer Law International 1999). CONFERENCE PROCEEDINGS Hazel Fox , The Position of the Defendant State in Claims of War Damage, International Bar Association: XXIV Biennial IBA Conference, 20–25 September 1992, at Cannes. Proceedings, Claims Against Iraq: The UN Compensation Commission and Other Remedies, Am. Soc’y Int’l L., 86th Annual Meeting , Washington, DC, 2005. Panel Proceedings, International Claims Litigation II: A Case Study on the UNCC, Am. Soc’y Int’l L., 99th Annual Meeting , Washington, DC, 2005. Panel Proceedings, New Developments in International Environmental Law: Remarks, Am. Soc’y Int’l L., 85th Annual Meeting , Washington, DC, 1991. Symposium, The International Responses to Environmental Impacts of War, 17 Geo. Int’l Envtl. L. Rev. 567–649 (2005). Panel Proceedings, Has the Time Come for a Permanent War Damage Compensation Commission?, 7th Hague Joint Conference of the American Society of International Law and the Netherlands Society of International Law, June 30–July 2, 2005, in International Institutional Reform: 2005 Hague Joint Conference on Contemporary Issues of International Law 27–47 (A. Fijalkowska ed., Cambridge: Cambridge University Press 2007). PERIODICAL ARTICLES Walid Abdel-Nasser, The U.N. and War Reparations, Int’l Politics 26–40 (1993). Bachir G. Affaki, The United Nations Compensation Commission: A New Era in Claims Settlement?, 10 J. Int’l Arb. 21–57 (1993). Bachir G. Affaki, La commission d’indemnisation des Nations Unies: trois ans d’épreuve au service du règlement des différends internationaux, 20 Droit et Pratique du Commerce International 471–517 (1994). Roger P. Alford, Well Blowout Control Claim, 92 Am. J. Int’l L. 287–91 (1998). Carlos Alzamora, Reflections on the UN Compensation Commission, 9 Arb. Int’l 349–58 (1993). Mariano Aznar-Goméz, A Decade of Human Rights Protection by the UN Security Council: A Sketch of Deregulation?, 13 Eur. J. Int’l L. 223–41 (2002). Mariano Aznar-Goméz, Environmental Damages and the 1991 Gulf War: Some Yardsticks Before the UNCC, 14 Leiden J. Int’l L. 301–34 (2001). Markham Ball, The Iraq Claims Process—A Progress Report, 9 J. Int’l Arb. 37–50 (1992). M. Cherif Bassiouni, The United Nations Commission of Experts Established Pursuant to Security Council Resolution, 88 Am. J. Int’l L. 780 (1992). David Bederman, The United Nations Compensation Commission and the Tradition of International Claims Settlement, 27 NYU J. Int’l L. & Pol. 1 (1994). Ronald J. Bettauer, The United Nations Compensation Commission—Developments Since October 1992, 89 Am. J. Int’l L. 416–23 (1995). Jessica Bodack, International Law for the Masses, 15 Duke J. Comp. & Int’l L. 363–85 (2005). Sonja Boelaert-Suominen, Iraqi War Reparations and the Laws of War: A Discussion of the Current Work of the United Nations Compensation Commission with Specific Reference to Environmental Damage During Warfare, 50 Zeitschrift für öffentliches Recht/ Austrian J. Pub. & Int’l L. 225–316 (1996). Lazhar Bouony, Regards sur la Commission d’indemnisation des Nations Unies, 43 A.F.D.I. 116–31 (1997).
Bibliography of Literature [ 287 ]
Charles N. Brower, The United Nations Sets the Stage for Gulf War Compensation Claims, 8 J. Int’l Arb. 7–11 (1991). Charles N. Brower, The Lessons of the Iran-United States Claims Tribunal: How May They Be Applied in the Case of Iraq?, 32 Va. J. Int’l L. 421–30 (1992). Charles N. Brower, Richard B. Lillich and the United Nations Compensation Commission: Goodbye Forever to “Direct” versus “Indirect” Damages, 38 Va. J. Int’l L. 21–24 (1998). Edith Brown Weiss, Symposium: The International Responses to the Environmental Impacts of War—Introductory Remarks, 17 Geo. Int’l Envtl. L. Rev. 567–70 (2005). Carl E. Bruch, Closing Remarks: Symposium on “The International Responses to the Environmental Impacts of War,” 17 Geo. Int’l Envtl. L. Rev. 643–49 (2005). Danilo Campanelli, The United Nations Compensation Commission (UNCC): Reflections on Its Judicial Character, 4 The Law and Practice of International Courts and Tribunals 104–39 (2005). David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 Am. J. Int’l L. 552–58 (1993). David D. Caron, Introductory Note, United Nations Compensation Commission Governing Council Decisions 36 to 42 and Associated Panel Reports, 36 I.L.M. 1279 (1997). David D. Caron, The United Nations Compensation Commission for Claims Arising out of the 1991 Gulf War: The “Arising Prior to” Decision, 14 J. Transnat’l L. & Pol’y 217 (2005). David D. Caron and Brian Morris, The UN Compensation Commission: Practical Justice, Not Retribution, 13 Eur. J. Int’l L. 183–99 (2002). Maria Castellaneta, La responsabilità internazionale degli stati per danni all’ambiente causati nel corso di conflitti armati, 71 Rivista di Diritto Internazionale 632–72 (1998). John J. Chung , The United Nations Compensation Commission and the Balancing of Rights between Individual Claimants and the Government of Iraq, 10 UCLA J. Int’l L. & For. Aff. 141 (2005). Gilles Cottereau, De la responsabilité de l’Iraq selon la résolution 687 du Conseil de Sécurité, 37 Annuaire Français de Droit International 99–117 (1995). Gilles Cottereau, Responsabilité de l’Iraq: aperçu sur les indemnisations urgentes des personnes physiques, 37 Annuaire Français de Droit International 151 (1995). John R. Crook, The United Nations Compensation Commission—A New Structure to Enforce State Responsibility, 87 Am. J. Int’l L. 144–57 (1993). Pierre D’Argent, Le Fonds et la Commission de Compensation des Nations Unies, 25 Revue Belge de Droit International 485–518 (1992). Kanaga Dharmananda and T. Oelsner, The UN Compensation Commission’s Consideration of Damages in the Context of Gain, 8 Restitution L. Rev. 237 (2000). Yoran Dinstein, Protection of the Environment in International Armed Conflict, 5 Max Planck Yearbook of United Nations Law 523–49 (2001). Michael Durgavich, Resolving Disputes Arising out of the Persian Gulf War: Independent Enforceability of International Agreements to Arbitrate, 22 Cal. W. Int’l L. J. 389–428 (1991). Laura Edgerton, Eco-Terrorist Acts During the Persian Gulf War: Is International Law Sufficient to Hold Iraq Liable?, 22 Ga. J. Int’l & Comp. L. 151–74 (1992). Timothy Feighery, The Impact on the Economic and Social Fabric: Assessing the Costs of Iraq’s 1990 Invasion and Occupation of Kuwait—The United Nations Compensation Commission, 22 Refugee Surv. Q. 87–104 (2003). Florentino P. Feliciano, Marine Pollution and Spoliation of Natural Resources as War Measures: A Note on Some International Problems in the Gulf War, 14 Hous. J. Int’l L. 483–519 (1992).
[ 288 ]
Bibliography of Literature
Merritt B. Fox , Imposing Liability for Losses from Aggressive War: An Economic Analysis of the UN Compensation Commission, 13 Eur. J. Int’l L. 201–21 (2002). Marco Frigessi di Rattalma, Le régime de responsabilité internationale institué par le conseil d’administration de la commission de compensation des Nations Unies, 101 Revue générale de droit international public 45 (1997). John P. Gaffney, Due Process in the United Nations Compensation Commission, 15 Mealey’s Int’l Arb. Rep. 13 (2000). John P. Gaffney, Precedent in the United Nations Compensation Commission, 14 Mealey’s Int’l Arb. Rep. 1–6 (1999). John P. Gaffney, The Review of Corporate Claims by the United Nations Compensation Commission, Com. L. Prac. 80–86 (1999). John P. Gaffney, The United Nations Compensation Commission: A Structural and Procedural Overview, 65 J. Chartered Inst. Arb. 212 (1999). Massimo Galli, Sue or Lose: An Agenda for American Corporations and Companies Seeking Compensation from Iraq, 2 Colum. Bus. L. Rev. 241–77 (1993). Elyse J. Garmise, The Iraqi Claims Process and the Ghost of Versailles, 67 NYU L. Rev. 840 (1992). Andrea Gattini, La riparazione dei danni di guerra causati dall’ Iraq, 76 Rivista di Diritto Internazionale 1000–46 (1993). Andrea Gattini, The UN Compensation Commission: Old Rules, New Procedures on War Reparations, 13 Eur. J. Int’l L. 161–81 (2002). Christopher Gibson, Using Computers to Evaluate Claims at the United Nations Compensation Commission, 13 Arb. Int’l, 167–92 (1997). Stanley J. Glod, International Claims Arising from Iraq’s Invasion of Kuwait, 25 Int’l Law. 713–21 (1991). Bernhard Graefrath, Iraqi Reparations and the Security Council, 55 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (Heidelberg J. Int’l L.) 1–68 (1995). Bernhard Graefrath and Manfred Mohr, Legal Consequences of an Act of Aggression: The Case of the Iraqi Invasion and Occupation of Kuwait, 43 Austrian J. Publ. & Int’l L. 109–39 (1992). Pekka Haavisto, Symposium: The International Responses to the Environmental Impacts of War— Keynote Address, 17 Geo. Int’l Envtl. L. Rev. 570–90 (2005). Keith Harper, Does the United Nations Security Council Have the Competence to Act as a Court and Legislature?, 27 N.Y.U. J. Int’l L. & Pol. 103 (1994). James Harrison, Significant International Environmental Law Cases 2004, 17 J. Envtl. L. 452–53 (2005). James Harrison, Significant International Environmental Law Cases 2005, 18 J. Envtl. L. 1513–14 (2006). Veijo Heiskanen, Yhdistyneiden Kansakuntien korvauskomissio, 3 Eripainos, Lakimieslehdestä 404–21 (1995). Veijo Heiskanen, The United Nations Compensation Commission, 296 Recueil des Cours: Collected Courses of The Hague Academy of International Law 259–397 (2002). Veijo Heiskanen and Robert C. O’Brien, UN Compensation Commission Panel Sets Precedents on Government Claims, 92 Am. J. Int’l L. 339 (1998). William E. Huth, Iraq Claims Tribunal: A New Approach to Settlement of International Commercial Disputes, 23 Int’l Bus. Law. 430–35 (1995). Ibilola Jegede and Kanaga Dharmananda, The Triumph of Expediency: Decisions by the UN Compensation Commission on Dates for the Accrual of Interest, 17 J. Int’l Arb. 31–39 (2000).
Bibliography of Literature [ 289 ]
Eric T. Jensen, The International Law of Environmental Warfare: Active and Passive Damage during Armed Conflict, 38 Vand. J. Transnat’l L. 145 (2005). Christopher C. Joyner and James T. Kirkhope, The Persian Gulf War Oil Spill: Reassessing the Law of Environmental Protection and the Law of Armed Conflict, 24 Case W. Res. J. Int’l L. 29–62 (1992). Menno T. Kamminga, De United Nations Compensation Commission: wonderkind of wangedrocht?, 51 Ars Aequi: Juridisch Studentblad (A155): 580–86 (2002). Mojtaba Kazazi, An Overview of Evidence before the United Nations Compensation Commission, 1 Int’l L. Forum 219–24 (1999). Mojtaba Kazazi, The United Nations Compensation Commission: A Preliminary Study, 16–17 Bureau for Int’l Legal Serv. 105–48 (1992). Julia Klee, Symposium: The International Responses to the Environmental Impacts of War, 17 Geo. Int’l Envtl. L. Rev. 598–605 (2005). Richard H. Kreindler, Filing Claims Arising out of the Gulf War, Int’l Fin. L. Rev. 31–33 (1993). Anthony Leibler, Deliberate Wartime Environmental Damage: New Challenges for International Law, 23 Cal. W. Int’l L. J. 67–132 (1992). Bruno Leurent, Views on the UNCC and Its Adjudication of Contractual Claims, 17 J. Int’l Arb. 133–38 (2000). Adam A. Levy, The Persian Gulf War Cease-Fire Agreement Compared with the Japanese Peace Treaty in Terms of Reparations and Reconstruction, 10 Dick. J. Int’l L. 541–66 (1992). Rosemary E. Libera, Divide, Conquer and Pay: Civil Compensation for Wartime Damages, 24 B. C. Int’l & Comp. L. Rev. 291–311 (2001). Liesbeth Lijnzaad and Gerard J. Tanja, Protection of the Environment in Times of Armed Conflict: The Iraq-Kuwait War, 40 Neth. Int’l L. Rev. 9–199 (1993). Richard B. Lillich, The United Nations Compensation Commission, 1995, 30 Am. J. Int’l L. 532–34 (1996). Richard B. Lillich and Charles N. Brower, Opinion Regarding the Jurisdiction and Powers of the United Nations Compensation Commission February 10, 1992, 38 Va. J. Int’l L. 25–50 (1997). Charles L. Lim, On the Law, Procedures and Politics of the United Nations Compensation Commission, 4 Sing. J. Int’l & Comp. L. 436–78 (2000). Luan Low and David Hodgkinson, Compensation for Wartime Environmental Damage: Challenges to International Law after the Gulf War, 35 Va. J. Int’l L. 405–83 (1995). Ruth Mackenzie and Ruth Khalastchi, Liability and Compensation for Environmental Damage in the Context of the Work of the United Nations Compensation Commission, 5 Review of European Community & International Environmental Law 281–89 (2006). Francis E. McGovern, The What and Why of Claims Resolution Facilities, in The Civil Trial: Adaptation and Alternatives, 57 Stan. L. Rev. 1361 (2005). Keith P. MacManus, Note: Civil Liability for Wartime Environmental Damage: Adapting the United Nations Compensation Commission for the Iraq War, 33 B.C. Envtl. Aff. L. Rev. 417–48 (2006). Thilo Marauhn, Environmental Damage in Times of Armed Conflict: Not “Really” a Matter of Criminal Responsibility?, 840 Int’l Rev. of the Red Cross 1029–36 (2000). Grégoire Marchac, La compensation des dommages subis du fait de l’invasion et de l’occupation du Koweït par l’Iraq, 22 Droit et Pratique du Commerce International 450–81 (1996). Mohsen S. Marzouk, Iraqi Reparation after the Gulf War: How Much, How Likely?, 42 Rivista Internazionale di Scienze Economiche e Commerciali 635–47 (1995).
[ 290 ]
Bibliography of Literature
Mohsen S. Marzouk, The Evaluation of War Damage Costs: A Historical Overview and Implications to the Gulf War, 44 Rivista Internazionale di Scienze Economiche e Commerciali 549–75 (1997). Djamchid Momtaz, Les règles relatives à la protection de l’environnement au cours de conflits armés à l’épreuve du conflit entre l’Iraq et le Koweit, 37 Annuaire Français de Droit International 203–19 (1991). Ramanand Mundkur, Michael J. Mucchetti, and D. Craig Christensen, The Intersection of International Accounting Practices and International Law: The Review of Kuwaiti Corporate Claims at the United Nations Compensation Commission, 16 A.U. Int’l L. Rev. 1195–1239 (2001). Marian Nash (Leich), Claims Against Iraq: United Nations Compensation Commission, 92 Am. J. Int’l L. 346 (1992). Robert C. O’Brien, The Challenge of Verifying Corporate and Government Claims at the United Nations Compensation Commission, 31 Cornell Int’l L. J. 1–29 (1998). Margaret T. Okorodudu-Fubara, Oil in the Persian Gulf War: Legal Appraisal of an Environmental Warfare, 23 St. Mary’s L. J. 123–219 (1991). Lea C. Owen, Between Iraq and a Hard Place: The U.N. Compensation Commission and Its Treatment of Gulf War Claims, 31 Vand. J. Transnat’l L. 499–551 (1998). E. Patton, Gulf War: After Effects and Legal Consequences, 11 J. Energy & Nat. Resources L. 98–105 (1993). Cymie R. Payne, UN Commission Awards Compensation for Environmental and Public Health Damage from 1990–91 Gulf War, Am. Soc’y Int’l L.: Insights (August 10, 2005). Cymie R. Payne, Environmental Damage at the United Nations Compensation Commission, 2 Int’l Envtl. News 3 (2006). Glen Plant, Aspects of Marine Pollution during the Gulf War, 7 Int’l J. Marine & Coastal L. 217–31 (1992). Delissa A. Ridgway, The Legal Legacy of the Gulf War: Claims against Iraq, 13 J. Int’l Arb. 5–13 (1996). Adam Roberts, Environmental Destruction in the 1991 Gulf War, 291 Int’l Rev. of the Red Cross 538–53 (1994). Cesare P. R. Romano, Woe to the Vanquished? A Comparison of the Reparations Process after World War I (1914–18) and the Gulf War (1990–91), 2 Austrian Rev. Int’l & Eur. L. 361–90 (1997). Arthur Rovine, Part 1: An Iraq Claims Process: Where and How?, 1 Am. Rev. Int’l Arb. 411–18 (1990). Arthur Rovine, Part 2: An Iraq Claims Process: Where and How?, 2 Am. Rev. Int’l Arb. 102–09 (1990). Peter H. Sand, Compensation for Environmental Damage from the 1991 Gulf War, 35 Envtl. Pol’y & L. 244–249 (2005). Danesh Sarooshi, The Legal Framework Governing United Nations Subsidiary Organs, 27 Brit. YB Int’l L. 413 (1996). Oscar Schachter, United Nations Law in the Gulf Conflict, 85 Am. J. Int’l L. 452 (1991). Michael E. Schneider, How Fair and Efficient Is the United Nations Compensation Commission System?, 15 J. Int’l Arb. 15–26 (1998). Jessica E. Seacor, Environmental Terrorism: Lessons from the Oil Fires of Kuwait, 10 A.U. J. Int’l L. & Pol’y 481–523 (1994). Walter G. Sharp, The Effective Deterrence of Environmental Damage during Armed Conflict: A Case Analysis of the Persian Gulf War, 137 Mil. L. Rev. 1 (1992). Thomas R. Stauffer, Critical Review of UNCC Award for Lost Production and Lost Revenues, 44 Middle East Econ. Surv. 5, 29 (2001).
Bibliography of Literature [ 291 ]
Brigitte Stern, Un système hybride: la procédure de règlement pour la réparation des dommages résultant de l’occupation illicite du Koweit par l’Irak, 37 McGill L. J. 625–44 (1992). Paul C. Szasz, Environmental Destruction as a Method of Warfare: International Law Applicable to the Gulf War, 15 Disarmament 128–61. Sompong Sucharitkul, The Process of Peace-Making Following Operation “Desert Storm,” 43 Austrian J. Publ. Int’l. Law 1 (1992). Richard G. Tarasofsky, Legal Protection of the Environment during International Armed Conflict, 24 Netherlands Yearbook of International Law 17–79 (1993). Gregory Townsend, Comment: The Iraq Claims Process: A Progress Report on the United Nations Compensation Commission & U.S. Remedies, 17 Loy. L. A. Int’l & Comp. L. J. 973–1027 (1995). Nicolas C. Ulmer, Claimants’ Expectations from the United Nations Compensation Commission, 15 J. Int’l Arb. 7–14 (1998). Nicolas C. Ulmer, The Gulf War Claims Institution, 10 J. Int’l Arb. 85–93 (1993). Nicolas C. Ulmer, UNCC Shifts Focus to Corporate Claims, 25 Int’l Bus. Law. 369–70 (1997). L. Van Zoelen, De United Nations Compensation Commission: een stap vooruit in het internationale staatsaansprakelijkheidsrecht?, A155 Ars Aequi: Juridisch Studentenblad 738–43 (1996). Evan J. Wallach, The Use of Crude Oil by an Occupying Belligerent as a Munition de Guerre, 41 Int’l & Comp. L. Q. 287–310 (1992). Hans Wassgren, The UN Compensation Commission: Lessons of Legitimacy, State Responsibility and War Reparations, 11 Leiden J. Int’l L. 473–92 (1998). Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 Am. J. Int’l L. 516–35 (1991). Carmel Whelton, The United Nations Compensation Commission and International Claims Law: A Fresh Approach, 25 Ottawa L. Rev. 607–27 (1993). Fred Wooldridge and Olufemi Elias, Humanitarian Considerations in the Work of the United Nations Compensation Commission, 85 Int’l Rev. of the Red Cross 555 (2005). Norbert Wuehler, Ansprüche gegen Irak vor der United Nations Compensation Commission, 5 Betriebs-Berater 23–29 (1996). Norbert Wuehler, The United Nations Compensation Commission: A New Contribution to the Process of International Claims Resolution, 2 J. Int’l Econ. L. 249–72 (1999). Christopher York, International Law and the Collateral Effects of War on the Environment: The Persian Gulf, 7 S. Afr. J. Hum. Rts. 269–90 (1991). Rex J. Zedalis, Burning of the Kuwaiti Oilfields and the Laws of War, 24 Vand. J. Transnat’l L. 711–55 (1991). Rex J. Zedalis, Gulf War Compensation Standard: Concerns under the Charter, 26 Revue Belge de Droit International 333–50 (1993). BOOKS REFERRING TO THE UNITED NATIONS COMPENSATION COMMISSION William Arkin, Damian Durrant, and Marianne Cherni, On Impact: Modern Warfare and the Environment, A Case Study of the Gulf War (Washington DC: Greenpeace 1991). David Campbell, Politics without Principle: Sovereignty, Ethics and the Narratives of the Gulf War (Boulder, Colorado: Lynne Rienner Publishers 1993). Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge: Cambridge University Press 1993).
[ 292 ]
Bibliography of Literature
Francesco Francioni and Tullio Scovazzi eds., International Responsibility for Environmental Harm (London: Graham & Trottman 1991). Lawrence Freedman and Ephraim Karsh, The Gulf Conflict 1990–1991: Diplomacy and War in the New World Order (New Jersey: Princeton University Press 1992). Andrea Gattini, Le riparazioni di guerra nel diritto internazionale (Milan: CEDAM 2003). Richard Grunawalt, John E. King, and Ronald S. McClain eds., Protection of the Environment during Armed Conflict (Newport: Naval War College Press 1996). Menno T. Kamminga, Towards a Permanent International Claims Commission for Victims of Violations of International Humanitarian Law (The Hague: Grotius Centre for International Legal Studies 2005). Majid Khadduri and Edmund Ghareeb, War in the Gulf, 1990–1991: the IraqKuwait conflict and its implications (Oxford: Oxford University Press 1997). Andree Kirchner , Umweltschutz während bewaffneter Konflikte (Hamburg : Hamburg University 2003). Alexandre Kiss and Jean-Pierre Beurier , Droit International de l’ Environnment (3e édition, Paris: A. Pedone 2004). Karen Lee ed., International Environmental Law Reports: International Environmental Law in International Tribunals (D. Bethlehem, J. Crawford, C. A. R. Robb, and P. Sands eds., Cambridge: Cambridge University Press 2007). Kobi-Renée Leins, Environmental Law in War: Legal Limitations on Harming the Environment During Armed Conflict (Clayton/Australia: Monash Law Faculty 2001). Frank Maes ed., Marine Resource Damage Assessment: Liability and Compensation for Environmental Damage (Dordrecht: Springer 2005). Elizabeth M. Mrema, Carl Bruch, and Jordan Diamond, Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law (Nairobi: United Nations Environment Programme 2009). Céline Orengo, La réparation du dommage écologique en matière maritime: étude à la lumière de mécanismes d’indemnisation nationaux et internationaux (Nice: University of Nice 2007). Peter J. Rowe ed., The Gulf War 1990–91 in International and English Law (London: Routledge 1993). Alexandre Timoshenko ed., Liability and Compensation for Environmental Damage: Compilation of Documents (Nairobi: United Nations Environment Programme 1998). Hans-Henning Graf von Sponeck, A Different Kind of War: The UN Sanctions Regime in Iraq (Oxford: Berghahn 2006). Eric Watkins ed., The Middle Eastern Environment (Cambridge: St. Malo Press 1995). Rüdiger Wolfrum, Christine Langenfeld, and Petra Minnerop eds., Environmental Liability in International Law: Towards a Coherent Conception (Berlin: Erich Schmidt Verlag 2005).
Bibliography of Literature [ 293 ]
This page intentionally left blank
Basic Documents
This page intentionally left blank
S/RES/687 (1991) 8 April 1991
RESOLUTION 687 (1991) ADOPTED BY THE SECURITY COUNCIL AT ITS 2981ST MEETING, ON 3 APRIL 1991
The Security Council, Recalling its resolutions 660 (1990) of 2 August 1990, 661 (1990) of 6 August 1990, 662 (1990) of 9 August 1990, 664 (1990) of 18 August 1990, 665 (1990) of 25 August 1990, 666 (1990) of 13 September 1990, 667 (1990) of 16 September 1990, 669 (1990) of 24 September 1990, 670 (1990) of 25 September 1990, 674 (1990) of 29 October 1990, 677 (1990) of 28 November 1990, 678 (1990) of 29 November 1990 and 686 (1991) of 2 March 1991, Welcoming the restoration to Kuwait of its sovereignty, independence and territorial integrity and the return of its legitimate Government, Affirming the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq, and noting the intention expressed by the Member States cooperating with Kuwait under paragraph 2 of resolution 678 (1990) to bring their military presence in Iraq to an end as soon as possible consistent with paragraph 8 of resolution 686 (1991), Reaffirming the need to be assured of Iraq’s peaceful intentions in the light of its unlawful invasion and occupation of Kuwait, Taking note of the letter sent by the Minister for Foreign Affairs of Iraq on 27 February 1991 and those sent pursuant to resolution 686 (1991), Noting that Iraq and Kuwait, as independent sovereign States, signed at Baghdad on 4 October 1963 “Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters”, thereby recognizing formally the boundary between Iraq and Kuwait and the allocation of islands, which were registered with the United Nations in accordance with Article 102 of the Charter of the United Nations and in which Iraq recognized the independence and complete sovereignty of the State of Kuwait
within its borders as specified and accepted in the letter of the Prime Minister of Iraq dated 21 July 1932, and as accepted by the Ruler of Kuwait in his letter dated 10 August 1932, Conscious of the need for demarcation of the said boundary, Conscious also of the statements by Iraq threatening to use weapons in violation of its obligations under the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and of its prior use of chemical weapons and affirming that grave consequences would follow any further use by Iraq of such weapons, Recalling that Iraq has subscribed to the Declaration adopted by all States participating in the Conference of States Parties to the 1925 Geneva Protocol and Other Interested States, held in Paris from 7 to 11 January 1989, establishing the objective of universal elimination of chemical and biological weapons, Recalling also that Iraq has signed the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, of 10 April 1972, Noting the importance of Iraq ratifying this Convention, Noting moreover the importance of all States adhering to this Convention and encouraging its forthcoming Review Conference to reinforce the authority, efficiency and universal scope of the convention, Stressing the importance of an early conclusion by the Conference on Disarmament of its work on a Convention on the Universal Prohibition of Chemical Weapons and of universal adherence thereto, Aware of the use by Iraq of ballistic missiles in unprovoked attacks and therefore of the need to take specific measures in regard to such missiles located in Iraq, Concerned by the reports in the hands of Member States that Iraq has attempted to acquire materials for a nuclear-weapons programme contrary to its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968, Recalling the objective of the establishment of a nuclear-weapons-free zone in the region of the Middle East, Conscious of the threat that all weapons of mass destruction pose to peace and security in the area and of the need to work towards the establishment in the Middle East of a zone free of such weapons, Conscious also of the objective of achieving balanced and comprehensive control of armaments in the region, Conscious further of the importance of achieving the objectives noted above using all available means, including a dialogue among the States of the region, Noting that resolution 686 (1991) marked the lifting of the measures imposed by resolution 661 (1990) in so far as they applied to Kuwait, Noting that despite the progress being made in fulfilling the obligations of resolution 686 (1991), many Kuwaiti and third country nationals are still not accounted for and property remains unreturned, [ 298 ]
Security Council Resolution 687
Recalling the International Convention against the Taking of Hostages, opened for signature at New York on 18 December 1979, which categorizes all acts of taking hostages as manifestations of international terrorism, Deploring threats made by Iraq during the recent conflict to make use of terrorism against targets outside Iraq and the taking of hostages by Iraq, Taking note with grave concern of the reports of the Secretary-General of 20 March 1991 and 28 March 1991, and conscious of the necessity to meet urgently the humanitarian needs in Kuwait and Iraq, Bearing in mind its objective of restoring international peace and security in the area as set out in recent resolutions of the Security Council, Conscious of the need to take the following measures acting under Chapter VII of the Charter, 1. Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of this resolution, including a formal cease-fire;
A
2. Demands that Iraq and Kuwait respect the inviolability of the international boundary and the allocation of islands set out in the “Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters”, signed by them in the exercise of their sovereignty at Baghdad on 4 October 1963 and registered with the United Nations and published by the United Nations in document 7063, United Nations, Treaty Series, 1964; 3. Calls upon the Secretary-General to lend his assistance to make arrangements with Iraq and Kuwait to demarcate the boundary between Iraq and Kuwait, drawing on appropriate material, including the map transmitted by Security Council document S/22412 and to report back to the Security Council within one month; 4. Decides to guarantee the inviolability of the above-mentioned international boundary and to take as appropriate all necessary measures to that end in accordance with the Charter of the United Nations;
B
5. Requests the Secretary-General, after consulting with Iraq and Kuwait, to submit within three days to the Security Council for its approval a plan for the immediate deployment of a United Nations observer unit to monitor the Khor Abdullah and a demilitarized zone, which is hereby established, extending ten kilometres into Iraq and five kilometres into Kuwait from the boundary referred to in the “Agreed Minutes Between the State of Kuwait and the Republic of Iraq Regarding the Restoration of Friendly Relations, Recognition and Related Matters” of 4 October Security Council Resolution 687 [ 299 ]
1963; to deter violations of the boundary through its presence in and surveillance of the demilitarized zone; to observe any hostile or potentially hostile action mounted from the territory of one State to the other; and for the Secretary-General to report regularly to the Security Council on the operations of the unit, and immediately if there are serious violations of the zone or potential threats to peace; 6. Notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with resolution 678 (1990) to bring their military presence in Iraq to an end consistent with resolution 686 (1991);
C
7. Invites Iraq to reaffirm unconditionally its obligations under the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva on 17 June 1925, and to ratify the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, of 10 April 1972; 8. Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: (a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities; (b) All ballistic missiles with a range greater than 150 kilometres and related major parts, and repair and production facilities; 9. Decides, for the implementation of paragraph 8 above, the following: (a) Iraq shall submit to the Secretary-General, within fifteen days of the adoption of the present resolution, a declaration of the locations, amounts and types of all items specified in paragraph 8 and agree to urgent, on-site inspection as specified below; (b) The Secretary-General, in consultation with the appropriate Governments and, where appropriate, with the Director-General of the World Health Organization, within forty-five days of the passage of the present resolution, shall develop, and submit to the Council for approval, a plan calling for the completion of the following acts within forty-five days of such approval: (i) The forming of a Special Commission, which shall carry out immediate on-site inspection of Iraq’s biological, chemical and missile capabilities, [ 300 ]
Security Council Resolution 687
(ii)
(iii)
based on Iraq’s declarations and the designation of any additional locations by the Special Commission itself; The yielding by Iraq of possession to the Special Commission for destruction, removal or rendering harmless, taking into account the requirements of public safety, of all items specified under paragraph 8 (a) above, including items at the additional locations designated by the Special Commission under paragraph 9 (b) (i) above and the destruction by Iraq, under the supervision of the Special Commission, of all its missile capabilities, including launchers, as specified under paragraph 8 (b) above; The provision by the Special Commission of the assistance and cooperation to the Director-General of the International Atomic Energy Agency required in paragraphs 12 and 13 below;
10. Decides that Iraq shall unconditionally undertake not to use, develop, construct or acquire any of the items specified in paragraphs 8 and 9 above and requests the Secretary-General, in consultation with the Special Commission, to develop a plan for the future ongoing monitoring and verification of Iraq’s compliance with this paragraph, to be submitted to the Security Council for approval within one hundred and twenty days of the passage of this resolution; 11. Invites Iraq to reaffirm unconditionally its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968; 12. Decides that Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapons-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above; to submit to the Secretary-General and the Director-General of the International Atomic Energy Agency within fifteen days of the adoption of the present resolution a declaration of the locations, amounts, and types of all items specified above; to place all of its nuclear-weapons-usable materials under the exclusive control, for custody and removal, of the International Atomic Energy Agency, with the assistance and cooperation of the Special Commission as provided for in the plan of the Secretary-General discussed in paragraph 9 (b) above; to accept, in accordance with the arrangements provided for in paragraph 13 below, urgent onsite inspection and the destruction, removal or rendering harmless as appropriate of all items specified above; and to accept the plan discussed in paragraph 13 below for the future ongoing monitoring and verification of its compliance with these undertakings; 13. Requests the Director-General of the International Atomic Energy Agency, through the Secretary-General, with the assistance and cooperation of the Special Commission as provided for in the plan of the Secretary-General in paragraph 9 (b) above, to carry out immediate on-site inspection of Iraq’s nuclear capabilities based on Iraq’s declarations and the designation of any additional locations by the Special Commission; to develop a plan for submission to the Security Council Security Council Resolution 687 [ 301 ]
within forty-five days calling for the destruction, removal, or rendering harmless as appropriate of all items listed in paragraph 12 above; to carry out the plan within forty-five days following approval by the Security Council; and to develop a plan, taking into account the rights and obligations of Iraq under the Treaty on the NonProliferation of Nuclear Weapons of 1 July 1968, for the future ongoing monitoring and verification of Iraq’s compliance with paragraph 12 above, including an inventory of all nuclear material in Iraq subject to the Agency’s verification and inspections to confirm that Agency safeguards cover all relevant nuclear activities in Iraq, to be submitted to the Security Council for approval within one hundred and twenty days of the passage of the present resolution; 14. Takes note that the actions to be taken by Iraq in paragraphs 8, 9, 10, 11, 12 and 13 of the present resolution represent steps towards the goal of establishing in the Middle East a zone free from weapons of mass destruction and all missiles for their delivery and the objective of a global ban on chemical weapons;
D
15. Requests the Secretary-General to report to the Security Council on the steps taken to facilitate the return of all Kuwaiti property seized by Iraq, including a list of any property that Kuwait claims has not been returned or which has not been returned intact;
E
16. Reaffirms that Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2 August 1990, which will be addressed through the normal mechanisms, is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait; 17. Decides that all Iraqi statements made since 2 August 1990 repudiating its foreign debt are null and void, and demands that Iraq adhere scrupulously to all of its obligations concerning servicing and repayment of its foreign debt; 18. Decides also to create a fund to pay compensation for claims that fall within paragraph 16 above and to establish a Commission that will administer the fund; 19. Directs the Secretary-General to develop and present to the Security Council for decision, no later than thirty days following the adoption of the present resolution, recommendations for the fund to meet the requirement for the payment of claims established in accordance with paragraph 18 above and for a programme
[ 302 ]
Security Council Resolution 687
to implement the decisions in paragraphs 16, 17 and 18 above, including: administration of the fund; mechanisms for determining the appropriate level of Iraq’s contribution to the fund based on a percentage of the value of the exports of petroleum and petroleum products from Iraq not to exceed a figure to be suggested to the Council by the Secretary-General, taking into account the requirements of the people of Iraq, Iraq’s payment capacity as assessed in conjunction with the international financial institutions taking into consideration external debt service, and the needs of the Iraqi economy; arrangements for ensuring that payments are made to the fund; the process by which funds will be allocated and claims paid; appropriate procedures for evaluating losses, listing claims and verifying their validity and resolving disputed claims in respect of Iraq’s liability as specified in paragraph 16 above; and the composition of the Commission designated above;
F
20. Decides, effective immediately, that the prohibitions against the sale or supply to Iraq of commodities or products, other than medicine and health supplies, and prohibitions against financial transactions related thereto contained in resolution 661 (1990) shall not apply to foodstuffs notified to the Security Council Committee established by resolution 661 (1990) concerning the situation between Iraq and Kuwait or, with the approval of that Committee, under the simplified and accelerated “no-objection” procedure, to materials and supplies for essential civilian needs as identified in the report of the Secretary-General dated 20 March 1991, and in any further findings of humanitarian need by the Committee; 21. Decides that the Security Council shall review the provisions of paragraph 20 above every sixty days in the light of the policies and practices of the Government of Iraq, including the implementation of all relevant resolutions of the Security Council, for the purpose of determining whether to reduce or lift the prohibitions referred to therein; 22. Decides that upon the approval by the Security Council of the programme called for in paragraph 19 above and upon Council agreement that Iraq has completed all actions contemplated in paragraphs 8, 9, 10, 11, 12 and 13 above, the prohibitions against the import of commodities and products originating in Iraq and the prohibitions against financial transactions related thereto contained in resolution 661 (1990) shall have no further force or effect; 23. Decides that, pending action by the Security Council under paragraph 22 above, the Security Council Committee established by resolution 661 (1990) shall be empowered to approve, when required to assure adequate financial resources on the part of Iraq to carry out the activities under paragraph 20 above, exceptions to the prohibition against the import of commodities and products originating in Iraq;
Security Council Resolution 687 [ 303 ]
24. Decides that, in accordance with resolution 661 (1990) and subsequent related resolutions and until a further decision is taken by the Security Council, all States shall continue to prevent the sale or supply, or the promotion or facilitation of such sale or supply, to Iraq by their nationals, or from their territories or using their flag vessels or aircraft, of: (a) Arms and related materiel of all types, specifically including the sale or transfer through other means of all forms of conventional military equipment, including for paramilitary forces, and spare parts and components and their means of production, for such equipment; (b) Items specified and defined in paragraphs 8 and 12 above not otherwise covered above; (c) Technology under licensing or other transfer arrangements used in the production, utilization or stockpiling of items specified in subparagraphs (a) and (b) above; (d) Personnel or materials for training or technical support services relating to the design, development, manufacture, use, maintenance or support of items specified in subparagraphs (a) and (b) above; 25. Calls upon all States and international organizations to act strictly in accordance with paragraph 24 above, notwithstanding the existence of any contracts, agreements, licences or any other arrangements; 26. Requests the Secretary-General, in consultation with appropriate Governments, to develop within sixty days, for the approval of the Security Council, guidelines to facilitate full international implementation of paragraphs 24 and 25 above and paragraph 27 below, and to make them available to all States and to establish a procedure for updating these guidelines periodically; 27. Calls upon all States to maintain such national controls and procedures and to take such other actions consistent with the guidelines to be established by the Security Council under paragraph 26 above as may be necessary to ensure compliance with the terms of paragraph 24 above, and calls upon international organizations to take all appropriate steps to assist in ensuring such full compliance; 28. Agrees to review its decisions in paragraphs 22, 23, 24 and 25 above, except for the items specified and defined in paragraphs 8 and 12 above, on a regular basis and in any case one hundred and twenty days following passage of the present resolution, taking into account Iraq’s compliance with the resolution and general progress towards the control of armaments in the region; 29. Decides that all States, including Iraq, shall take the necessary measures to ensure that no claim shall lie at the instance of the Government of Iraq, or of any person or body in Iraq, or of any person claiming through or for the benefit of any such person or body, in connection with any contract or other transaction where its performance was affected by reason of the measures taken by the Security Council in resolution 661 (1990) and related resolutions; [ 304 ]
Security Council Resolution 687
G
30. Decides that, in furtherance of its commitment to facilitate the repatriation of all Kuwaiti and third country nationals, Iraq shall extend all necessary cooperation to the International Committee of the Red Cross, providing lists of such persons, facilitating the access of the International Committee of the Red Cross to all such persons wherever located or detained and facilitating the search by the International Committee of the Red Cross for those Kuwaiti and third country nationals still unaccounted for; 31. Invites the International Committee of the Red Cross to keep the SecretaryGeneral apprised as appropriate of all activities undertaken in connection with facilitating the repatriation or return of all Kuwaiti and third country nationals or their remains present in Iraq on or after 2 August 1990;
H
32. Requires Iraq to inform the Security Council that it will not commit or support any act of international terrorism or allow any organization directed towards commission of such acts to operate within its territory and to condemn unequivocally and renounce all acts, methods and practices of terrorism;
I
33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990); 34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.
Security Council Resolution 687 [ 305 ]
UNITED NATIONS
S
Security Council Distr. GENERAL S/AC.26/1991/7/Rev.1 17 March 1992 Original: ENGLISH
UNITED NATIONS COMPENSATION COMMISSION GOVERNING COUNCIL FIFTH SESSION GENEVA, 16–20 MARCH 1992 Decision taken by the Governing Council of the United Nations Compensation Commission during its third session, at the 18th meeting, held on 28 November 1991, as revised at the 24th meeting held on 16 March 1992 Criteria for additional Categories of Claims I. Criteria for processing of claims of individuals not otherwise covered
1. The following criteria will govern the submission of all claims of individuals not filed under the criteria adopted by the Governing Council on 2 August 1991, pursuant to resolution 687 (1991). 2. The following criteria are not intended to resolve every issue that may arise with respect to these claims. Rather, they are intended to provide sufficient guidance to enable Governments to prepare consolidated claims submissions.
3. The Commission will process the claims as expeditiously as possible. While decisions on the precise method of processing these claims will be made at a later stage the following steps are contemplated. The Secretariat will make a preliminary assessment of the claims to determine whether they meet the formal requirements established by the Governing Council. The claims would then be submitted to a panel or panels of Commissioners for review within a set timelimit. The Commissioners would be instructed to utilize different procedures appropriate to the character, amount and subject-matter of particular types of claims. In so far as possible, claims with significant common legal or factual issues should be processed together. The Commissioners would be asked to report to the Council on the claims received and the amount recommended for the claims submitted by each Government. The Council would then decide on the total amount to be allocated to each Government. The Council may decide to refer unusually large or complex claims to panels of Commissioners for detailed review, possibly involving additional written submissions and oral proceedings. In such a case, the individual would be allowed to present his or her case directly to the panel. 4. As contributions are made to the Fund, the Council will allocate those funds among the various categories of claims. If resources of the Fund are insufficient with respect to all claims processed to date, pro rata payments would be made to Governments periodically as funds become available. The Council will decide on the priority for payment of various categories of claims. 5. Claims may be submitted under this category for the loss of earnings or profits; the Commission will consider at a later time the circumstances in which such claims may be admitted, the amounts to be awarded, and the limits to be imposed thereon.
Claims covered
6. These payments are available with respect to any direct loss, damage, or injury (including death) to individuals as a result of Iraq’s unlawful invasion and occupation of Kuwait. This will include any loss suffered as a result of: (a) Military operations or threat of military action by either side during the period 2 August 1990 to 2 March 1991; (b) Departure from or inability to leave Iraq or Kuwait (or a decision not to return) during that period; (c) Actions by officials, employees or agents of the Government of Iraq or its controlled entities during that period in connection with the invasion or occupation; (d) The breakdown of civil order in Kuwait or Iraq during that period; or (e) Hostage-taking or other illegal detention. Governing Council Decision 7 [ 307 ]
7. These payments are available with respect to individuals who claim losses in excess of those compensable under claim forms B or C. These payments are also available with respect to individuals who have chosen not to file under claim form A, B, or C because their losses exceed $100,000. In addition, these payments are available to reimburse payments made or relief provided by individuals to others– for example, to employees or to others pursuant to contractual obligations–for losses covered by any of the criteria adopted by the Council. 8. Since these claims may be for substantial amounts, they must be supported by documentary and other appropriate evidence sufficient to demonstrate the circumstances and the amount of the claimed loss. 9. Direct losses as a result of Iraq’s unlawful invasion and occupation of Kuwait are eligible for compensation. Compensation will not be provided for losses suffered as a result of the trade embargo and related measures. Further guidance will be provided on the interpretation and application of this paragraph. 10. Any compensation, whether in funds or in kind, already received from any source will be deducted from the total amount of losses suffered.
Submission of claims
11. Claims will not be considered on behalf of Iraqi nationals who do not have bona fide nationality of any other State. 12. Claims will be submitted by Governments. Each Government may submit claims on behalf of its nationals, and may in its discretion also submit the claims of other persons resident in its territory. In addition, the Council may request an appropriate person, authority, or body to submit claims on behalf of persons who are not in a position to have their claims submitted by a Government. 13. Each consolidated claim must include: (a) For each separate claim, a signed statement by each individual covered containing: (i) his or her name and address, and any passport number or other identifying national number; (ii) a description of and documents evidencing the amount, type, and reason for each element of the loss; (iii) identification of any compensation, whether in funds or in kind, already received from any source for the claim asserted; (iv) his or her affirmation that the foregoing information is correct, and that no other claim for the same loss has been submitted to the Commission; (v) a copy of any previously submitted individual claim; and (b) The affirmation of the Government submitting the claim that, to the best of the information available to it, the individuals in question are its nationals or [ 308 ]
Governing Council Decision 7
residents, and the affirmation of the Government or of the person, authority, or body as referred to in paragraph 12 that it has no reason to believe that the information stated is incorrect. 14. The Executive Secretary (or a Commissioner) will prepare and the Executive Secretary will distribute a standard form for submission of these claims, incorporating the above elements in a clear and concise manner. Except as may otherwise be agreed between the Executive Secretary and the Government in question, claims will be submitted to the Executive Secretary by Governments or by persons, authorities, or bodies as referred to in paragraph 12 on the standard form and must include the information in an official language of the United Nations. Each Government may adopt such procedures as it finds appropriate in preparing its claims. The Executive Secretary (or a Commissioner) will be available to answer questions or provide assistance to any Governments which may request it. 15. Governments must submit all claims on behalf of individuals within one year of the date on which the Executive Secretary circulates these claims forms. The Council encourages the submission of such claims within six months from the date on which the Executive Secretary circulates to Governments the claims forms; and the Commission will thereupon give consideration to such claims as provided herein.
II. Criteria for processing claims of corporations and other entities
16. The following criteria will govern the submission of claims of corporations, other private legal entities and public-sector enterprises (hereinafter referred to as “corporations and other entities”) pursuant to resolution 687 (1991). 17. The following criteria are not intended to resolve every issue that may arise with respect to these claims. Rather, they are intended to provide sufficient guidance to enable Governments to prepare consolidated claims submissions. 18. The Commission will process the claims as expeditiously as possible. While decisions on the precise method of processing these claims will be made at a later stage the following steps are contemplated. The Secretariat will make a preliminary assessment of the claims to determine whether they meet the formal requirements established by the Governing Council. The claims would then be submitted to a panel or panels of Commissioners for review within a set time-limit. The Commissioners would be instructed to utilize different procedures appropriate to the character, amount and subject-matter of particular types of claims. In so far as possible, claims with significant common legal or factual issues should be processed together. The Commissioners would be asked to report to the Council on the claims received and the amount recommended for the claims submitted by each Government. The Council would then decide on the total amount to be allocated to each Government. The Council may decide to refer unusually large or complex Governing Council Decision 7 [ 309 ]
claims to panels of Commissioners for detailed review, possibly involving additional written submissions and oral proceedings. In such a case, the entity would be allowed to present its case directly to the panel. 19. As contributions are made to the Fund, the Council will allocate those funds among the various categories of claims. If resources of the Fund are insufficient with respect to all claims processed to date, pro rata payments would be made to Governments periodically as funds become available. The Council will decide on the priority for payment of various categories of claims. 20. Claims may be submitted under this category for the loss of earnings or profits; the Commission will consider at a later time the circumstances under which such claims may be admitted, the amounts to be awarded, and the limits to be imposed thereon.
Claims covered
21. These payments are available with respect to any direct loss, damage, or injury to corporations and other entities as a result of Iraq’s unlawful invasion and occupation of Kuwait. This will include any loss suffered as a result of: (a) Military operations or threat of military action by either side during the period 2 August 1990 to 2 March 1991; (b) Departure of persons from or their inability to leave Iraq or Kuwait (or a decision not to return) during that period; (c) Actions by officials, employees or agents of the Government of Iraq or its controlled entities during that period in connection with the invasion or occupation; (d) The breakdown of civil order in Kuwait or Iraq during that period; or (e) Hostage-taking or other illegal detention. 22. These payments are available to reimburse payments made or relief provided by corporations or other entities to others - for example, to employees, or to others pursuant to contractual obligations - for losses covered by any of the criteria adopted by the Council. 23. Since these claims may be for substantial amounts, they must be supported by documentary and other appropriate evidence sufficient to demonstrate the circumstances and the amount of the claimed loss. 24. Direct losses as a result of Iraq’s unlawful invasion and occupation of Kuwait are eligible for compensation. Compensation will not be provided for losses suffered as a result of the trade embargo and related measures. Further guidance will be provided on the interpretation and application of this paragraph. 25. Any compensation, whether in funds or in kind, already received from any source will be deducted from the total amount of losses suffered. [ 310 ]
Governing Council Decision 7
Submission of claims
26. Each Government may submit claims on behalf of corporations or other entities that, on the date on which the claim arose, were incorporated or organized under its law. Claims may be submitted on behalf of a corporation or other entity by only one Government. A corporation or other entity would be required to request the State of its incorporation or organization to submit its claim to the Commission. In the case of a corporation or other private legal entity whose State of incorporation or organization fails to submit, within the deadline established in paragraph 29, such claims falling within the applicable criteria, the corporation or other private legal entity may itself make a claim to the Commission within three months thereafter. It must submit at the same time an explanation as to why its claim is not being submitted by a Government, together with the relevant information specified in paragraph 27. In such a case, any award of the Commission will be paid directly to the corporation or other private legal entity. 27. Each consolidated claim must include: (a) For each separate claim, a signed statement by an authorized official of each corporation or other entity covered containing: (i) documents evidencing the name, address and place of incorporation or organization of the entity; (ii) a general description of the legal structure of the entity; (iii) a description of and documents evidencing the amount, type, and reason for each element of the loss; (iv) identification of any compensation, whether in funds or in kind, already received from any source for the claim asserted; (v) his or her name and address and affirmation that the foregoing information is correct, and that no other claim for the same loss has been submitted to the Commission; (b) The affirmation of the Government submitting the claim that, to the best of the information available to it, the entities in question are incorporated or organized under its law and the affirmation of the Government that it has no reason to believe that the information stated is incorrect. 28. The Executive Secretary (or a Commissioner) will prepare and the Executive Secretary will distribute a standard form for submission of these claims, incorporating the above elements in a clear and concise manner. Except as may otherwise be agreed between the Executive Secretary and the Government in question, claims will be submitted to the Executive Secretary by Governments on the standard form and must include the information in an official language of the United Nations. Each Government may adopt such procedures as it finds appropriate in preparing its claims. The Executive Secretary (or a Commissioner) will be Governing Council Decision 7 [ 311 ]
available to answer questions or provide assistance to any Governments which may request it. 29. Governments must submit all claims on behalf of corporations or other entities within one year of the date the Executive Secretary circulates the claims forms. The Council encourages the submission of such claims within six months from the date on which the Executive Secretary circulates to Governments the claims forms; and the Commission will thereupon give consideration to such claims as provided herein.
III. Criteria for processing claims of governments and international organizations
30. The following criteria will govern the submission of claims of Governments and international organizations pursuant to resolution 687 (1991). Each Government will submit claims of its own and those of its political subdivisions, or any agency, ministry, instrumentality, or entity controlled by it. 31. The following criteria are not intended to resolve every issue that may arise with respect to these claims. Rather, they are intended to provide sufficient guidance to enable Governments and international organizations to prepare consolidated claims submissions. 32. The Commission will process the claims as expeditiously as possible. While decisions on the precise method of processing these claims will be made at a later stage the following steps are contemplated. The Secretariat will make a preliminary assessment of the claims to determine whether they meet the formal requirements established by the Governing Council. The claims would then be submitted to a panel or panels of Commissioners for review within a set time-limit. The Commissioners would be instructed to utilize different procedures appropriate to the character, amount and subject-matter of particular types of claims. In so far as possible, claims with significant common legal or factual issues should be processed together. The Commissioners would be asked to report to the Council on the claims received and the amount recommended for the claims submitted by each Government. The Council would then decide on the total amount to be allocated to each Government. The Council may decide to refer unusually large or complex claims to panels of Commissioners for detailed review, possibly involving additional written submissions and oral proceedings. In such a case, when an international organization is involved, it would be allowed to present its case directly to the panel. 33. As contributions are made to the Fund, the Council will allocate those funds among the various categories of claims. If resources of the Fund are insufficient with respect to all claims processed to date, pro rata payments would be made to Governments periodically as funds become available. The Council will decide on the priority for payment of various categories of claims. [ 312 ]
Governing Council Decision 7
Claims covered
34. These payments are available with respect to any direct loss, damage, or injury to Governments or international organizations as a result of Iraq’s unlawful invasion and occupation of Kuwait. This will include any loss suffered as a result of: (a) Military operations or threat of military action by either side during the period 2 August 1990 to 2 March 1991; (b) Departure of persons from or their inability to leave Iraq or Kuwait (or a decision not to return) during that period; (c) Actions by officials, employees or agents of the Government of Iraq or its controlled entities during that period in connection with the invasion or occupation; (d) The breakdown of civil order in Kuwait or Iraq during that period; or (e) Hostage-taking or other illegal detention. 35. These payments are available with respect to direct environmental damage and the depletion of natural resources as a result of Iraq’s unlawful invasion and occupation of Kuwait. This will include losses or expenses resulting from: (a) Abatement and prevention of environmental damage, including expenses directly relating to fighting oil fires and stemming the flow of oil in coastal and international waters; (b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment; (c) Reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment; (d) Reasonable monitoring of public health and performing medical screenings for the purposes of investigation and combating increased health risks as a result of the environmental damage; and (e) Depletion of or damage to natural resources. 36. These payments will include loss of or damage to property of a Government, as well as losses and costs incurred by a Government in evacuating its nationals from Iraq or Kuwait. These payments are also available to reimburse payments made or relief provided by Governments or international organizations to others– for example to nationals, residents or employees or to others pursuant to contractual obligations - for losses covered by any of the criteria adopted by the Council. 37. Since these claims will be for substantial amounts, they must be supported by documentary and other appropriate evidence sufficient to demonstrate the circumstances and the amount of the claimed loss. Governing Council Decision 7 [ 313 ]
38. Direct losses as a result of Iraq’s unlawful invasion and occupation of Kuwait are eligible for compensation. Compensation will not be provided for losses suffered as a result of the trade embargo and related measures. Further guidance will be provided on the interpretation and application of this paragraph. 39. Any compensation, whether in funds or in kind, already received from any source will be deducted from the total amount of losses suffered.
Submission of claims
40. Each consolidated claim must include: (a) For each separate claim, a signed statement by an authorized official of the Government or international organization containing: (i) his or her name and address, and government agency instrumentality, or ministry or controlled entity, or the international organization, with which associated; (ii) a description of and documents evidencing the amount, type, and reason for each element of the loss; (iii) identification of any compensation, whether in funds or in kind, already received from any source for the claim asserted; (iv) his or her affirmation that the foregoing information is correct, and that no other claim for the same loss has been submitted to the Commission; (b) The affirmation of the Government or international organization submitting the consolidated claim that to the best of the information available to it, it has no reason to believe that the information stated is incorrect. 41. The Executive Secretary (or a Commissioner) will prepare and the Executive Secretary will distribute a standard form for submission of claims, incorporating the above elements in a clear and concise manner. Except as may otherwise be agreed between the Executive Secretary and the Government or international organization in question, claims will be submitted to the Executive Secretary on the standard form and must include the information in an official language of the United Nations. The Executive Secretary (or a Commissioner) will be available to answer questions or provide assistance to any Governments or international organizations which may request it. 42. Governments and international organizations must submit all claims within one year of the date on which the Executive Secretary circulates the standard form. The Council encourages the submission of such claims within six months from the date on which the Executive Secretary circulates to Governments and international organizations the claims forms; and the Commission will thereupon give consideration to such claims as provided herein. [ 314 ]
Governing Council Decision 7
UNITED NATIONS
S
Security Council Distr. GENERAL S/AC.26/1992/10 26 June 1992 Original: ENGLISH
UNITED NATIONS COMPENSATION COMMISSION GOVERNING COUNCIL SIXTH SESSION GENEVA, 22–26 JUNE 1992 Decision taken by the Governing Council of the United Nations Compensation Commission at the 27th meeting, Sixth session held on 26 June 1992
The Governing Council decides: To approve the Provisional Rules for Claims Procedure the text of which is annexed to the present decision.
ANNEX PROVISIONAL RULES FOR CLAIMS PROCEDURE I) General Provisions Article l. Use of Terms
The following definitions apply for the purpose of these Rules: 1) “Commission” means the United Nations Compensation Commission. 2) “Compensation Fund” or “Fund” means the United Nations Compensation Fund, created by paragraph 18 of Security Council resolution 637 (1991) and established by paragraph 3 of Security Council resolution 692 (1991) in accordance with section I of the Secretary-General’s Report (S/22559) dated 2 May 1991. 3) “Secretary-General” means the Secretary-General of the United Nations. 4) “Governing Council” or “Council” means the Governing Council of the Commission. 5) “Commissioners” means experts appointed by the Governing Council for the verification and evaluation of claims. 6) “Executive Secretary” means the Executive Secretary of the Commission and includes any Deputy of, or other person, authorized by the Executive Secretary. 7) “Secretariat” means the Secretariat of the Commission. 8) “Standard Forms” means claim forms prepared and distributed to Governments by the Executive Secretary for claims under claims criteria adopted by the Governing Council. 9) “Claim Forms” means standard forms and any other form agreed between the Executive Secretary and the Government or international organization in question for filing claims. 10) “Rules” means the Commission’s Provisional Rules for Claims Procedure. 11) “Criteria” means Criteria for Expedited Processing of Urgent Claims (Governing Council’s decision No. S/AC.26/1991/1 dated 2 August 1991), and Criteria for Additional Categories of Claims (Governing Council’s decision No. S/ AC.26/1991/7 dated 4 December 1991) as well as any other criteria that the Governing Council may adopt. 12) “Claimant” means any individual, corporation or other private legal entity, public sector entity, Government, or international organization that files a claim with the Commission. 13) “Person or Body” means an individual, corporation or ether private legal entity, public sector entity, Government, or international organization. 14) “International Organization” means an international organization of States. 15) “Documents” means all submissions and evidence presented by a claimant in support of a claim, in whatever form, including Statements of Claim in categories E and F. [ 316 ]
Governing Council Decision 10
16) “Database” means computerized information, pertaining to individual claimants and claims, kept by the Commission to assist in the processing of claims.
Article 2. Scope of the Rules
These Rules apply to processing of claims submitted to the Commission under the criteria adopted by the Governing Council.
Article 3. Calculation of Periods of Time
For the purposes of calculating a period of time under these Rules,” such period shall begin to run on the day following the day when the document is received or a notification is made. If the last day of such period is an official holiday or a nonbusiness day at the headquarters of the Commission, the period is extended until the first business day that follows. Official holidays and non-business days occurring during the running of the period of time are included in calculating the period. The Executive Secretary will issue a list of such days.
II) Submission and Filing of Claims Article 4. Submission of Claims
1) Claim forms and documents are to be submitted to the Commission at the Secretariat’s headquarters (Palais des Nations, Villa La Pelouse, Geneva, Switzerland). 2) Claim forms shall be deemed to have been submitted when they are physically delivered to and received by the Secretariat.
Article 5. Who May Submit Claims
1) Governments and international organizations are entitled to submit claims to the Commission. a)
A Government may submit claims on behalf of its nationals and, at its discretion, of other persons resident in its territory. In the case of Governments existing in the territory of a former federal state, one such Government may submit claims on behalf of nationals, corporations or other entities of another such Government, if both Governments agree. Governing Council Decision 10 [ 317 ]
b)
c) d)
A Government may submit claims on behalf of corporations or other entities that, on the date on which the claim arose, were incorporated or organized under the law of that State. If the Governments concerned agree, one Government may submit claims in respect of joint ventures on behalf of the nationals, corporations or other entities of other Governments. Claims may, be submitted on behalf of an individual, corporation or other entity by only one Government. International organizations may submit claims only on their own behalf.
2) An appropriate person, authority, or body appointed by the Governing Council may submit claims on behalf of persons who are net in a position to have their claims submitted by a Government. 3) A corporation or other private legal entity is required to request the State of its incorporation or organization to submit its claim to the Commission. In the case of a corporation or other private legal entity whose State of incorporation or organization fails to submit, within the time-limit established by the Governing Council, such claims falling within the applicable criteria, the corporation or other private legal entity may itself make a claim to the Commission within three months thereafter. It must provide at the same time an explanation as to why its claim is not being submitted by a Government.
Article 6. Claim Forms and Language
1) Except as may otherwise be agreed between the Executive Secretary and the Government or international organization in question, claims must be submitted on the standard forms prepared and distributed by the Secretariat. 2) Due to the fact that the Commission’s computerized software and database system, which is technically required for the processing of a large number of claims, has been designed in English, the working language of the claims procedure before the Commission will be English. 3) Claim forms can be submitted in any of the official languages of the United Nations. However, since English is the working language of the claims procedure and of the Commission’s computerized database, in cases where claim forms are not submitted in English, an English translation of the form must be provided. The translation as submitted, will serve as the basis for the evaluation of the claim. 4) With respect to claims in categories A, B and C, the documents supporting the claims are not required to be translated into English at the stage of the submission of the claims. The Secretariat, on the basis of methods adopted for processing and evaluation of claims, will notify each Government as to the extent of the translation required and the time-limit for providing it. 5) With respect to claims in categories D, E and F, all documents supporting the claims must also be submitted in English or be accompanied by an English translation. [ 318 ]
Governing Council Decision 10
6) In the case of oral proceedings, the Executive Secretary shall arrange for interpretation as necessary into and from other official languages of the United Nations.
Article 7. Format of Claims
1) Claim forms in category A must be submitted only in the computer format distributed by the Secretariat. Governments will maintain custody of the original paper copies of Form A and supporting documents and will make them available to the Commission upon request. 2) Claim forms and documents in all other categories must be submitted on paper. In addition to filing claims in these categories on paper, Governments may also submit them in a computer format. 3) All claim forms and documents filed with the Commission on paper are to be submitted on paper 8 1/2 inches x 11 inches or on A-4 size paper (21 cm x 29.5 cm) or on paper no larger than A-4. If a document cannot conveniently be reproduced on paper no larger than A-4, it is to be folded to A-4 size, unless the Executive Secretary agrees otherwise in special circumstances. 4) Claims and documents filed with the Commission in a computer format are to be submitted on MS/DOS or UNIX compatible formats, or in such other format as may be agreed to by the Executive Secretary.
Article 8. Copies
1) Except as otherwise agreed to by the Executive Secretary, claim forms and documents must be submitted with the following number of copies: For category A: 3 copies of micro floppy disk For categories B & C: 1 original and 2 copies For D & other categories: 1 original and 8 copies 2) The Secretariat, or the Commissioners, may request additional copies or accept, a smaller number in exceptional circumstances.
Article 9. Representatives
For the purpose of these Rules, all communications between the Commission’s Secretariat and a Government concerning claims shall take place through its Permanent Mission in Geneva. Further, except in cases where a specially authorized representative is designated by a Government: and notified to the Executive Secretary, the head of the Permanent Mission of a Government shall be considered as its representative before the Commission. Governments that do not maintain Governing Council Decision 10 [ 319 ]
Permanent Missions in Geneva and international organizations shall notify the name of their duly authorized representatives to the Executive Secretary.
Article 10. The Registry
A registry will be set up within the Secretariat. A member of the Secretariat will be designated by the Executive Secretary as Registry Officer. The Registry Officer will receive the claims and register them.
Article 11. Receipt of Claims
1) Upon the submission of a claim, the Registry Officer will issue a delivery receipt identifying the parcel received and confirming the date it was received and the person who presented it. 2) The Registry Officer will in due course verify: a)
b) c)
that the claim has been submitted by a person or body who, in accordance with the decisions of the Governing Council, has a right to file claims with the Commission; that the claim has been submitted within the relevant time-limit established by the Governing Council; that, in the case of a corporation or other private legal entity making a claim directly to the Commission in accordance with Article 5, paragraph 3, above: (i) evidence is attached indicating that a request was made by the entity concerned to the Stare of its incorporation or organization to submit its claim to the Commission; (ii) explanation is provided as to why the claim was not submitted by a Government.
Article 12. Unauthorized or Late Submissions
1) In the case of claims submitted by an unauthorized person or entity, including claims presented by a corporation or other private legal entity without showing that a previous request has been made to the State of its incorporation or organization, the Executive Secretary will return the documents received, and inform the person or entity concerned of the reasons why the claim cannot be registered. 2) In the case of claims submitted by an authorized person or body after the expiration of the time-limit set by the Governing Council for a given category of [ 320 ]
Governing Council Decision 10
claims, the Executive Secretary will report to the Governing Council. The Governing Council will decide whether to accept the late-filed claims or not.
Article 13. Filing Receipt
If the claim is submitted by an authorized person or body within the established time-limit, the Registry Officer will register the claim and issue a filing receipt indicating: a) b) c) d)
the claim and its category; the party who presented the claim; the number of claims contained in a consolidated claim; the number assigned to the claim for identification.
Article 14. Preliminary Assessment
1) The Secretariat will make a preliminary assessment of the claims received in order to determine whether they meet the formal requirements established by the Governing Council. To this end the Secretariat will verify: a) b) c)
d)
that the claims have been submitted on the appropriate claim forms with the required number of copies, and in English or with an English translation; that the claims contain the names and addresses of the claimants and, where applicable, evidence of the amount, type and causes of losses; that the affirmation by the Government has been included in respect of each consolidated claim stating that, 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; that all required affirmations have been given by each claimant.
2) In the case of claims of corporations and other legal entities the Secretariat will also verify that each separate claim contains: a) b)
c) d)
documents evidencing the name, address and place of incorporation or organization of the entity; evidence that the corporation or the legal entity was, on the date on which the claim arose, incorporated or organized under the law of the State the Government of which has submitted the claim; a general description of the legal structure of the entity; an affirmation by the authorized official for each corporation or other entity that the information contained in the claim is correct. Governing Council Decision 10 [ 321 ]
Article 15. Claims Not Meeting the Formal Requirements
If it is found that the claim does not meet the formal requirements established by the Governing Council, the Secretariat will notify the person or body that submitted the claim about that circumstance and will give it 60 days from the date of that notification to remedy the defect. If the formal requirements are net met within this period, the claim shall not be considered as filed.
Article 16. Reports and Views on Claims
1) The Executive Secretary will make periodic reports to the Governing Council concerning claims received. These reports shall be made as frequently as required to inform the Council of the Commission’s case load but not less than quarterly. The reports shall indicate: a) b) c) d)
Governments, international organizations or other eligible parties that have submitted claims; the categories of claims submitted; the number of claimants in each consolidated claim; the total amount of compensation sought in each consolidated claim;
In addition, each report may indicate significant legal and factual issues raised by the claims, if any. 2) The Executive Secretary’s report will be promptly circulated to the Government of Iraq as well as to all Governments and international organizations that have submitted claims. 3) Within 30 days in case of claims in Categories A, B and C, and 90 days in case of claims in other categories, of the date of the circulation of the Executive Secretary’s report, the Government of Iraq as well as Governments and international organizations that have submitted claims, may present their additional information and views concerning the report to the Executive Secretary for transmission to panels of Commissioners in accordance with Article 32. There shall be no extensions of the time-limits specified in this paragraph. 4) Requirements set forth in Articles 3, 4, 6 (3), 7, 8 and 11 (1). shall, apply to such additional information and views.
Article 17. Categorization of Claims
In order to facilitate the work of Commissioners and to ensure uniformity in the treatment of similar claims, the Secretariat will proceed to categorize claims
[ 322 ]
Governing Council Decision 10
according to, inter alia, the type or size of the claims and the similarity of legal and factual issues.
III) Commissioners Article 18. Appointment
1) Commissioners shall be appointed for specific tasks and terms by the Governing Council upon nomination by the Secretary-General on the basis of recommendations of the Executive Secretary. 2) The Secretary-General has established a Register of Experts which, as stated in his 12 June 1991 invitation for the submission of names of experts, while not limiting his selection, might be drawn upon when Commissioners are nominated for appointment. The Executive Secretary will keep and up-date the register.
Article 19. Qualifications
1) In nominating and appointing the Commissioners, due regard shall be paid to the need for geographical representation, professional qualifications, experience and integrity. 2) Commissioners will be experts in fields such as finance, law, accounting, insurance, environmental damage assessment, oil, trade and engineering. 3) Nominations and appointments of Commissioners shall be made paying due regard to the nature of the claims and categories of claims to be assigned to them.
Article 20. Procedure for Appointment:
1) The Executive Secretary will transmit to the Governing Council the nominations for Commissioners proposed by the Secretary-General, indicating which Commissioners are to serve on each panel and who, within each panel, will act as a Chairman. 2) The Executive Secretary will recommend to the Secretary-General for nomination as many panels of Commissioners as necessary to process claims in an expeditious manner. 3) When transmitting to the Governing Council the nominations for Commissioners, the Executive Secretary will specify the claims or categories of claims to be assigned to each panel, indicating the expertise and the number of Commissioners required.
Governing Council Decision 10 [ 323 ]
4) If the Governing Council does not agree on the appointment of a nominee for a panel, it will request the Secretary-General, through the Executive Secretary, to submit a new nomination. 5) If, at the time the Executive Secretary transmits the new nomination, the Governing Council is not in session, the new nomination will be communicated to the members of the Governing Council. The Governing Council may approve replacement Commissioners at intersessional meetings. 6) The same procedure will apply whenever a new Commissioner must be nominated.
Article 21. Requirements
1) Commissioners will act in their personal capacity. Commissioners shall not have financial interests in any of the claims submitted to them or to the panel to which they belong. They may not be associated with or have financial interests in any corporations whose claims have been submitted to them or to the panel to which they belong. 2) Commissioners shall not represent or advise any party or claimant concerning the preparation or presentation of their claims to the Commission during their service as Commissioner or for two years thereafter.
Article 22. Disclosure
1) All prospective Commissioners shall file a statement that shall disclose to the Executive Secretary any prior or actual relationship with Governments, corporations or individuals, or any other circumstances, that are likely to give rise to justifiable doubts as to his impartiality or independence with respect to his prospective tasks. This information will be provided to the Governing Council at the time the nomination of the prospective Commissioner is transmitted. 2) A Commissioner, once appointed, shall disclose to the Executive Secretary any new circumstances likely to give rise to justifiable doubts as to his impartiality or independence. 3) When any Commissioner obtains knowledge that any particular claim before his panel involves circumstances likely to give rise to justifiable doubts as to his impartiality or independence with respect to that claim or group of claims, he shall disclose such circumstances to the Executive Secretary and, if appropriate, shall disqualify himself as to that case. 4) If any Government, international organization, individual claimant, or Commissioner becomes aware of circumstances that give rise to justifiable doubts as to a Commissioner’s impartiality or independence, such circumstances must be
[ 324 ]
Governing Council Decision 10
communicated to the Executive Secretary nor later than fifteen days after they became known. 5) The Executive Secretary will inform the Governing Council about the circumstances brought to his attention or of which he learns that are likely to give rise to justifiable doubts as to the impartiality or independence of a Commissioner, transmitting a statement of the Commissioner concerned. 6) In any case in which such circumstances are disclosed to the Governing Council, it may determine whether the Commissioner should cease to act, either generally or with respect to a particular claim or claims. Pending such a determination by the Governing Council, the Commissioner concerned will continue to perform his tasks.
Article 23. Resignation
1) A Commissioner who intends to resign from his office shall communicate his decision, through the Executive Secretary, to the Governing Council. 2) A Commissioner who has submitted his resignation shall continue to perform his functions until such time as his resignation is accepted by the Governing Council.
Article 24. Completion of Work
If a Commissioner resigns during the course of consideration of any particular claim or group of claims, the Commissioner will continue to serve for the limited purpose of completing work on that particular claim or group of claims, unless excused by the Governing Council.
Article 25. Failure to Act
In the event that a Commissioner fails to act. or in the event of de jure or de facto impossibility of his performing his functions, the Executive Secretary shall inform the Governing Council, which may decide to replace the Commissioner in accordance with the procedures set forth in Article 20 (6).
Article 26. Privileges and Immunities
Commissioners, when performing functions for the Commission, will have the status of experts on mission within the meaning of Article VI of the Convention on the Privileges and Immunities of the United Nations of February 13, 1946.
Governing Council Decision 10 [ 325 ]
Article 27. Declaration
Every Commissioner shall, before taking up his duties, make the following declaration: “I solemnly declare that I will perform my duties and exercise my position as Commissioner honourably, faithfully, independently, impartially and conscientiously.” This declaration shall be signed and delivered to the Executive Secretary, and attached to the documents pertaining to the Commissioner’s appointment.
IV) Procedures Governing the Work of the Panels Article 28. Constitution of Panels
1) Unless otherwise decided by the Governing Council, Commissioners will work in panels of three members. Each of the members of a panel shall be of different nationality. 2) Priority is to be given to the establishment of panels of Commissioners to deal with claims in categories A, B and C.
Article 29. Organization of Work
Chairmen of the panels will organize the work of their respective panels so as to ensure the expeditious processing of the claims and the consistent application of the relevant criteria and these Rules.
Article 30. Confidentiality
1) Unless otherwise provided in these procedures or decided by the Governing Council, all records received or developed by the Commission will be confidential, but the Secretariat may provide status reports to Governments, international organizations or corporations making claims directly to the Commission in accordance with Article 5, paragraph 3, regarding claims that they have submitted. 2) Panels will conduct their work in private. 3) Commissioners shall not disclose, even after the termination of their functions, any information not in the public domain that has come to their knowledge by reason of their working for the Commission.
Article 31. Applicable Law
In considering the claims, Commissioners will apply Security Council resolution 687 (1991) and other relevant Security Council resolutions, the criteria established [ 326 ]
Governing Council Decision 10
by the Governing Council far particular categories of claims, and any pertinent decisions of the Governing Council. In addition, where necessary, Commissioners shall apply other relevant rules of international law.
Article 32. Submission of Claims to Panels
1) Following the appointment of Commissioners by the Governing Council, the Executive Secretary will submit to panels of Commissioners the single claims or categories of claims assigned to each of them together with the related documentation, containing the results of the preliminary assessment made by the Secretariat and any other information deemed to be useful for the work of the Commissioners, as well as the additional information and views submitted in accordance with Article 16. 2) Any information received by the Secretariat after the expiration of the time-limits as established in Article 16 will be submitted when received, but the work of the panel will not be delayed pending receipt or consideration of such information. 3) The Executive Secretary may, after consulting the relevant panel chairmen, reallocate a claim or claims from one panel to another in order to ensure the efficient processing of claims.
Article 33. Work of the Panels
1) After receiving claims from the Executive Secretary, Commissioners will examine them and meet to deliberate and prepare their recommendations to the Governing Council. 2) Panels of Commissioners will normally meet at the headquarters of the Secretariat. Meetings will be held to the extent deemed necessary by the Chairman of each panel. Commissioners will continue their work on the claims while away from the headquarters of the Secretariat, conducting the necessary communications among themselves and with the Secretariat. 3) Any recommendation or other decision of the panel shall be made by a majority of the Commissioners.
Article 34. Assistance by the Executive Secretary
1) The Executive Secretary and the staff of the Secretariat will provide administrative, technical and legal support to the Commissioners, including the development and maintenance of a computerized database for claims and assistance in obtaining additional information. Governing Council Decision 10 [ 327 ]
2) In considering the claims, the Commissioners will take into account the results of the preliminary assessment of claims made by the Secretariat in accordance with Article 14, as well as other information and views that the Executive Secretary may provide in accordance with Article 32. 3) A member of the Secretariat may attend sessions of the panel and may, if required, provide information to the Commissioners.
Article 35. Evidence
1) Each claimant is responsible for submitting documents and other evidence which demonstrate satisfactorily that a particular claim or group of claims is eligible for compensation pursuant to Security Council resolution 687 (1991). Each panel will determine the admissibility, relevance, materiality and weight of any documents and other evidence submitted. 2) With respect to claims received under the Criteria for Expedited Processing of Urgent Claims (S/AC.26/1991/1), the following guidelines will apply: a)
b)
c)
For the payment of fixed amounts in the case of departures, claimants are required to provide simple documentation of the fact and date of departure from Iraq or Kuwait. Documentation of the actual amount of loss will not be required. For the payment of fixed amounts in the case of serious personal injury not resulting in death, claimants are required to provide simple documentation of the fact and date of the injury; in the case of death, claimants are required to provide simple documentation of the death and family relationship. Documentation of the actual amount of loss will not be required. For consideration of claims up to US$ 100,000 of actual losses, such claims must be documented by appropriate evidence of the circumstances and amount of the claimed loss. Documents 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.
3) With respect to claims received under the Criteria for Processing Claims of Individuals not Otherwise Covered, Claims of Corporations and Other Entities, and Claims of Governments and International Organizations (S/AC.26/1991/ 7/Rev.1), such claims must be supported by documentary and other appropriate evidence sufficient to demonstrate the circumstances and amount of the claimed loss. 4) A panel of Commissioners may request evidence required under this Article.
[ 328 ]
Governing Council Decision 10
Article 36. Additional Information
A panel of Commissioners may: a)
b)
in unusually large or complex cases, request further written submissions and invite individuals, corporations or other entities, Governments or international organizations to present their views in oral proceedings; request additional information from any other source, including expert advice, as necessary.
Article 37. Review by Commissioners of Urgent Claims
With respect to claims received under the Criteria for Expedited Processing of Urgent claims (S/AC.26/1991/1), the following expedited procedures may be used: a)
b)
c)
d)
e)
The Secretariat will proceed to check individual claims by matching them, insofar as possible, against the information in its computerized database. The results of the database analysis may be cross checked by the panel. With respect to claims that cannot be completely verified through the computerized database, if the volume of claims is large, the panel may check individual claims on the basis of a sampling with further verification only as circumstances warrant. Each panel will make its recommendations on the basis of the documents submitted, taking into account the preliminary assessment conducted in accordance with Article 14, any other information and views submitted in accordance with Article 32 and any information submitted in accordance with Article 34. Each panel will normally make its recommendations without holding an oral proceeding. The panel may determine that special circumstances warrant holding an oral proceeding concerning a particular claim or claims. Each panel will complete its review of the claims assigned to it and issue its report as soon as possible but no later than 120 days from the date the claims in question are submitted to the panel. Each panel will report in writing through the Executive Secretary to the Governing Council on the claims received and the amount recommended to be allocated to each Government or other entity for each consolidated claim. Each report will briefly explain the reasons for the recommendations and, to the extent practicable within the time-limit, contain a breakdown of the recommendations in respect of individual claims within each consolidated claim.
Governing Council Decision 10 [ 329 ]
Article 38. Review by Commissioners of Other Claims
With respect to claims received under the Criteria for Processing of Claims of Individuals not Otherwise Covered; Claims of Corporations and Other Entities; and Claims of Governments and International Organizations (S/AC.26/l991/7/ Rev.l), the following procedures will be used: a) b) c)
d)
e)
In so far as possible, claims with significant common legal and factual issues will be processed together. Panels may adopt special procedures appropriate to the character, amount and subject-matter of the particular types of claims under consideration. Each panel will complete its 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, except for any unusually large or complex claims referred for derailed review, as described below. Each panel will make its recommendations on the basis of the documents submitted, taking into account the preliminary assessment conducted in accordance with Article 14, any other information and views submitted in accordance with Article 32 and any information submitted in accordance with Article 34. Unusually large or complex claims may receive detailed review, as appropriate. If so, the panel considering such a claim may, in its discretion, ask for additional written submissions and hold oral proceedings. In such a case, the individual, corporation, Government, international organization or other entity making the claim may present the case directly to the panel, and may be assisted by an attorney or other representative of choice. The panel will complete its review of the case and report in writing through the Executive Secretary its recommendations to the Governing Council within twelve months of the date the claim was submitted to the panel. Each panel will report in writing through the Executive Secretary to the Governing Council on the claims received and the amount recommended to be awarded for each claimant. Each report will briefly explain the reasons for the recommendations.
Article 39. Additional Time
If a panel considering a claim or group of claims cannot complete its work within the allotted time, the panel will notify the Governing Council through the Executive Secretary of the estimated additional time required. The Governing Council will decide whether the panel should continue its work on the claims or group of claims, with a time-limit to be decided by the Council, or should be discharged of the claim or group of claims, which would be given to another panel. [ 330 ]
Governing Council Decision 10
Article 40. Decisions
1) The 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. 2) The Governing Council may, in its discretion, return a particular claim or group of claims for further review by the Commissioners. 3) The Governing Council will make its decisions on amounts to be awarded at each session with respect to claims covered in any reports of Commissioners circulated to members of the Governing Council at least 3 0 days in advance of the session. 4) Decisions of the Governing Council will be final and are not subject to appeal or review on procedural, substantive or other grounds. 5) Decisions of the Governing Council and, after the relevant decision is made, the associated report of the panel of Commissioners, will be made public, except the Executive Secretary will delete from the reports of panels of Commissioners the identities of individual claimants and other information determined by the panels to be confidential or privileged.
Article 41. Correction of Decisions
1) Computational, clerical, typographical or other errors brought to the attention of the Executive Secretary within 60 days from the publication of the decisions and reports, will be reported by the Executive Secretary to the Governing Council. 2) The Governing Council will decide whether any action is necessary. If it is determined that a correction must be made, the Governing Council will direct the Executive Secretary as to the proper method of correction.
Article 42. Withdrawal of Claims
A claim pending before the Commission may be withdrawn at any time by the Government or entity that submitted the claim to the Commission. In any case where the claim has been paid, settled or otherwise resolved, it shall be withdrawn.
Article 43. Additional Procedural Rulings
Subject to the provisions of these procedures, Commissioners may make such additional procedural rulings as may be necessary to complete work on particular Governing Council Decision 10 [ 331 ]
cases or categories of cases. In so doing, the Commissioners may rely on the relevant UNCITRAL Rules for guidance. Commissioners may request the Governing Council to provide further guidance with respect to these procedures at any time. The Governing Council may adopt further procedures or revise these Rules when circumstances warrant.
[ 332 ]
Governing Council Decision 10
UNITED NATIONS
S
Security Council Distr. GENERAL S/AC.26/Dec.114 (2000) 7 December 2000 Original: ENGLISH
UNITED NATIONS COMPENSATION COMMISSION GOVERNING COUNCIL Decision concerning the review of current UNCC procedures taken by the Governing Council of the United Nations Compensation Commission at its 101st meeting, held on 7 December 2000 at Geneva
The Governing Council Decides to approve the conclusions reached by the Working Group on the review of current UNCC procedures, the text of which is annexed to the present decision.
ANNEX REVIEW OF CURRENT UNCC PROCEDURES Introduction
1. In September 2000, the Security Council reached an agreement that the current UNCC procedures be reviewed before the end of the year, taking into account the recommendations made by the Executive Secretary. Pursuant to the Governing Council’s recommendation, made at the thirty-seventh session, the Working Group has held a number of informal meetings in October and November 2000 for the purpose of carrying out that review, taking into account both the Executive Secretary’s recommendations and the proposals put forward by delegations at the meeting held on 30 October 2000. The results of the review are contained in this report. 2. As outlined in the Secretary-General’s report to the Security Council of 2 May 1991 (S/22559), the Governing Council has the responsibility for establishing guidelines on all policy matters, the Commissioners are in charge of the verification and valuation of the claims within the guidelines established by the Council and subject to approval by the Governing Council, and the secretariat provides services to, and carries out such tasks assigned to it by, the Council and the Commissioners. The Working Group is satisfied with this division of tasks between the Governing Council, the panels of Commissioners and the secretariat and is of the opinion that the work of the Commission to date has proceeded in a fair and efficient manner. It is not the objective of the Working Group, in conducting the review of current UNCC procedures, to make changes to this division of tasks. 3. The Working Group has considered the following proposals: (a) the panels of Commissioners shall prepare separate reports on claims exceeding USD 1 billion; (b) these reports are to be submitted to the Governing Council member states (with translation) at least three months before the session where they are to be considered; (c) full claim files for such claims shall be forwarded to Iraq for consideration; (d) Iraq should be given 12 months to consider such claim files, instead of the six months at present; (e) after having considered these claim files Iraq shall be allowed to submit written views and comments to the panels of Commissioners which are to be reviewed in the reports; (f) provisions shall be made by the panels of Commissioners to allow Iraqi representatives to participate in oral proceedings in such claims; (g) the Governing Council shall consider the panels’ reports for such claims in the presence of representatives of Iraq who will have the right to express their views on the matter; [ 334 ]
Governing Council Decision 114
(h) the Iraqi request for access to funds to pay for legal and technical experts to assist in its responses to claims is to be satisfied; (i) Council members should have more time (three months as a minimum) to review panel reports; (j) upon the request of any member of the Council, any document used by the secretariat or the panels for the processing of the claims should be provided; (k) a synthetic report should be submitted every six months to the Security Council on the work of the Commission, followed by an oral briefing for and consultations of the Security Council; (l) every claim file should be made available by the panels to Iraq, so as to enable it to make its comments and observations available in writing; (m) the time given to Iraq to respond should be increased from six months to 12 months; (n) panels should transmit their draft recommendations to the claimants and Iraq to get their observations in a limited time period, and the final reports of the panels should be written in the light of the observations made by the parties; (o) oral proceedings attended by the claimants and Iraqi experts should be scheduled by panels on a systematic basis; (p) technical expertise for Iraq should be financed by a reasonable amount of the Commission’s budget or its operating reserve or any other means deemed appropriate; (q) up to three months to review reports raising significant legal or technical issue or where substantial compensation is recommended; and (r) the provision of technical environmental expertise to Iraq for the review of the “F4” environmental claims. 4. After extensive discussions on all proposals, which included an exchange of views of a substantive nature with four Chairmen of the panels of Commissioners, the Working Group has agreed upon the following measures. The new arrangements will take effect as of the date of their adoption. 5. As these measures are being implemented immediately, the secretariat will inform the Governing Council as to any initial practical problems that may arise and where flexibility will be required, as will be the case, for instance, with the review period concerning the report on the first instalment of “F4” environmental monitoring and assessment claims.
I. Time Allowed for the Review of Reports
6. The current practice of the secretariat is to circulate the reports and recommendations of the panels of Commissioners to Governing Council members, in all Governing Council Decision 114 [ 335 ]
official UN languages, at least 30 days in advance of a session. However, depending on the nature of the report, it may be necessary to circulate certain reports and recommendations in advance of this 30-day period. The language of article 40(3) of the Provisional Rules for Claims Procedure allows for such flexibility in the sending of reports by stating that reports must be circulated “at least 30 days in advance of the session”. 7. In the opinion of the Working Group a three-month review period should be given to the following reports: (a) those reports containing claims with a recommended value of USD 100 million or more, with the exception of claims falling outside the jurisdiction of the Commission; (b) reports where new methodologies are elaborated; and (c) reports that contain significant legal, factual and technical issues. 8. It is for the panels to assess in advance whether such legal, factual or technical issues exist. The secretariat will inform the Council in advance where the panels have made such conclusions as to the need to provide reports for the three-month review. In case a three-month period was not provided for in advance, the Council may decide to extend the review period to three months whenever it is of the opinion that a particular report contains significant legal, factual or technical issues. 9. The three-month review period will start to run from the time that the report is available in all official UN languages. 10. In order to assist the Council members in the review of the reports referred to in paragraph seven, the secretariat will make a presentation on the claims contained in those reports at the commencement of the three-month review period. The secretariat is encouraged to continue the current practice of providing explanations and information regarding recommended awards to the members of the Governing Council. 11. The Council members will use this additional time to facilitate a decision on the panel’s recommendations at the Council session following the three-month period. 12. The panels of Commissioners will prepare a separate report for each claim with a recommended value of USD 1 billion or more. 13. The Governing Council encourages the panels to provide it in their reports, to the extent possible, with non-confidential factual and technical information that served as the basis of the panels’ recommendations, thus facilitating the Council’s review.
II. Transmission of Claim Files to Iraq
14. The secretariat provided a briefing to the Working Group on the current practice with respect to the classification of claims as being “unusually large or complex” and the transmission of claim files to Iraq, and outlined the criteria in [ 336 ]
Governing Council Decision 114
a note that was distributed to members on 31 October 2000. It is the Working Group’s understanding that the criteria used by the panels to determine whether to transmit a claim file to Iraq normally include: (a) the Government of the Republic of Iraq is a party to a contract forming part of the subject matter of the claim; or (b) if the situs of the alleged loss is in Iraq; or (c) if the Panel determines that the transmission of the claim file will otherwise facilitate the Panel’s verification and valuation of the claim; or (d) the amount claimed is more than USD 100 million. 15. It is the understanding of the Working Group that, when the criteria referred to in paragraph 14 are fulfilled, as a practical matter, full claim files (consisting of the claim form, statement of claim and all of the documents provided by the claimant as attached to the statement of claim) are sent to Iraq unless such claims fall outside the jurisdiction of the Commission. 16. The Working Group is of the opinion that the discretion to send claim files to Iraq should remain with the panels of Commissioners. However, the panels are encouraged to continue to apply the existing criteria relating to the transmission of files to Iraq. 17. The Working Group would welcome the discussion of this issue by the Chairmen of the panels of Commissioners at their next annual joint meeting, to help ensure consistency in the transmission of files. 18. At the June 2000 session, the Governing Council authorized the panels to make claim files available to Iraq prior to the formal commencement of the review of an instalment of claims. This decision may allow for some flexibility in the application of the six-month response rule. The Governing Council encourages the panels to make use of this flexibility to the maximum extent possible. However, the Working Group recommends that an additional six months should be given to Iraq to respond to claims with an asserted value of USD 1 billion or more that have not yet been taken up by the panels, or are under preparation, with the exception of claims falling outside the jurisdiction of the Commission. 19. Iraq’s written responses concerning the claims under consideration by the panel will be reflected by the panels in their reports.
III. Oral Proceedings
20. The secretariat explained the existing practice with respect to the convening of oral proceedings. Pursuant to article 36 of the Rules, panels of Commissioners may invite parties to present their views in oral proceedings. 21. The Working Group agrees that discretion in convening oral proceedings remains with the panels of Commissioners. The panels will schedule oral proceedings Governing Council Decision 114 [ 337 ]
where the claims have an asserted value of USD 1 billion or more, with the exception of claims falling outside the jurisdiction of the Commission or that are otherwise not compensable. The Governing Council encourages the panels to also schedule oral proceedings where the panels have determined that it would be useful to hear the views of the claimants and Iraq, and where: (a) the claims contain significant technical, legal and factual issues; or (b) the claims are substantive “F4” environmental claims.
IV. Technical Assistance
22. Taking into account the Executive Secretary’s recommendations, the Working Group discussed the issue of making funds available to Iraq for purposes of hiring experts to assist in preparing Iraq’s responses to claims in general and in particular the environmental claims. It has decided to consider further, with the assistance of the secretariat, various proposals relating to the provision of assistance to Iraq, noting that some Council members indicated that such proposals should not relate to claims other than the “F4” claims. The Working Group will continue its efforts to formulate acceptable specific recommendations, at the latest at the thirty-ninth session of the Governing Council, to be held in March 2001. In the meantime the Working Group recommends that the Governing Council should urge the “F4” panel to use its experts to ensure the full development of the facts and relevant technical issues, as well as to obtain the full range of views including those of the claimants and Iraq.
[ 338 ]
Governing Council Decision 114
UNITED NATIONS
S
Security Council Distr. GENERAL S/AC.26/Dec.l24 (2001) 19 June 2001 Original: ENGLISH
UNITED NATIONS COMPENSATION COMMISSION GOVERNING COUNCIL Decision concerning the arrangement to provide technical assistance to Iraq in respect of environmental claims before the UNCC taken by the Governing Council of the United Nations Compensation Commission at its 107th meeting, held on 19 June 2001 at Geneva
The Governing Council Decides, in concluding its review of UNCC procedures and pursuant to paragraph 22 of decision 114 (S/AC.26/Dec.114 (2000)), to adopt the conclusions of the Working Group on the provision of technical assistance to Iraq in respect of environmental claims before the UNCC, the text of which is annexed to the present decision.
ANNEX ARRANGEMENT TO PROVIDE TECHNICAL ASSISTANCE TO IRAQ IN RESPECT OF ENVIRONMENTAL CLAIMS BEFORE THE UNCC
1. The Governing Council decides to establish the following arrangement (“the Arrangement”) to provide technical assistance to the Government of the Republic of Iraq (“Iraq”) with respect to claims related to environmental damage and depletion of natural resources (“F4 claims”) before the UNCC. 2. The aim of the Arrangement is to facilitate the promotion of legitimate interests of Iraq with respect to “F4” claims, which give rise to particular questions due to their complexity and the limited amount of relevant international practice. It is furthermore aimed at assisting the “F4” Panel of Commissioners in the conduct of its tasks, through ensuring the full development of the facts and relevant technical issues, and in obtaining the full range of views including those of Iraq. 3. The technical assistance will be provided through a number of experts, to be selected freely by Iraq and approved by the Executive Secretary of the UNCC to ensure the necessary professional qualifications and experience. The Executive Secretary will regularly inform the Governing Council, and consult it in cases giving rise to particular questions. 4. The role of the experts will be to assist Iraq in preparing (a) responses to article 16 reports, (b) written submissions and oral proceedings before the panel in accordance with article 36 of the Provisional Rules for Claims Procedure (“the Rules”), and (c) any other communication with the UNCC on “F4” claims. 5. Iraq shall define and propose to the Executive Secretary tasks to be carried out by the experts, for approval of the related expenditures. Reasonable expenditures stemming from this Arrangement shall be covered from the UNCC administrative budget. 6. Payments under this Arrangement will be made directly by the UNCC to the experts. This will provide the necessary control mechanism to ensure that the funds are spent fully in accordance with the purpose of this Arrangement. 7. The total expenditures under this Arrangement are estimated at USD 3 to 5 million and may not exceed USD 5 million. The Governing Council may revise these figures at a later stage in light of new developments, and may decide to increase or decrease them. 8. The Arrangement is strictly limited to “F4” claims. It cannot be construed as a precedent with regard to any other category of claims before the UNCC, and it does not imply or create any changes to the Rules.
[ 340 ]
Governing Council Decision 124
UNITED NATIONS
S
Security Council Distr. GENERAL S/AC.26/Dec.258 (2005) 8 December 2005 Original: ENGLISH
UNITED NATIONS COMPENSATION COMMISSION GOVERNING COUNCIL Decision concerning follow-up programme for environmental claims awards taken by the Governing Council of the United Nations Compensation Commission at its 150th meeting, on 8 December 2005
The Governing Council. Having considered the draft guidelines prepared by the secretariat for a possible follow-up programme for environmental awards, Recalling decisions 132 (S/AC.26/Dec.132 (2001)), 212 (S/AC.26/Dec.212 (2003)), 234 (S/AC.26/Dec.234 (2004)) 235 (S/AC.26/Dec.235 (2004)) and 248 (S/AC.26/Dec.248 (2005)) of the Governing Council that established a tracking and reporting programme for environmental awards, Recalling also that decisions 212, 234, 235 and 248 provided that the Governing Council shall consider what further measures may be necessary to ensure that funds will only be used for reasonable projects, and shall specify any mechanism that may be necessary,
Recalling further the request by the Government of Iraq dated 16 December 2003 and the statements made at the opening plenary meetings of the fifty-third and fifty-fourth sessions regarding monitoring of the use of environmental awards and transparency in expenditures and the positive response by the F4 claimant Governments consisting of the Islamic Republic of Iran, the Hashemite Kingdom of Jordan, the State of Kuwait and the Kingdom of Saudi Arabia, Recalling the conclusion reached at the Governing Council’s fifty-sixth session that ongoing monitoring and assessment projects be included in the tracking and reporting programme, Noting the first regional meeting of F4 claimant Governments and the Government of Iraq under the UNCC auspices held in Kuwait in September 2005 where these issues were discussed and, as reflected in the Executive Summary of the meeting, participants agreed to a follow-up programme and the development of detailed guidelines by the Governing Council, Recalling the conclusion reached at the Governing Council’s fifty-seventh session acknowledging the initiative taken by the F4 claimant Governments and the Government of Iraq and directing the secretariat to prepare detailed guidelines for monitoring the technical and financial aspects of the environmental projects, Noting the second regional meeting of F4 claimant Governments and the Government of Iraq under UNCC auspices held in Geneva in November 2005 where, as reflected in the Executive Summary of the meeting, participants reviewed and considered the draft guidelines prepared by the secretariat and recommended that they be presented to the Governing Council, Noting also as reflected in the Executive Summary of the second regional meeting, that the costs of a possible follow-up programme would be borne by the claimant Governments, 1. Decides to adopt the guidelines for the environmental awards follow-up programme, as appended to the present decision, and directs the Executive Secretary to take the necessary steps to implement the programme; 2. Directs the Executive Secretary to deduct, on a biannual basis, a portion of the F4 awards, as agreed between the secretariat and the F4 claimant Governments, to cover any expenditures incurred by the UNCC for this purpose; 3. Directs also that the Executive Secretary withhold 15 per cent of the total F4 awards that fall within the scope of the follow-up programme, to each of the F4 claimant Governments, from the last payments to each Government and to release the withheld amounts upon satisfactory completion of the environmental projects. Where projects with long duration are being implemented in multiple phases, the Governing Council may decide to withhold a higher percentage of the relevant awards to be released proportionally to the successful completion of each phase; 4. Decides that for the five projects of long duration with awards greater than US$50 million, the claimant Government shall submit a proposal, prior to commencement, for phasing of the project and the allocation of award funds for each phase to the Governing Council for its approval; [ 342 ]
Governing Council Decision 258
5. Reaffirms that the relevant provisions of decisions 17 (S/AC.26/Dec.l7 (1994)) and 18 (S/AC.26/Dec.18 (1994)) and other relevant Governing Council decisions continue to apply; 6. Decides that prior to the eventual disestablishment of the UNCC Governing Council, the Council will consider further arrangements with regard to its review functions as set out in the guidelines.
APPENDIX GUIDELINES FOR THE FOLLOW-UP PROGRAMME FOR ENVIRONMENTAL AWARDS I. Scope and Process Overview
1. These guidelines will be used to monitor technical and financial aspects of projects funded by awards in the category F4 environmental claims that are covered by the Follow-up programme for environmental awards (the “Programme”). Information about the claims involved, including claim and instalment numbers and award amounts, is given in annex I to this document. 2. The Programme is established pursuant to paragraph 6 of Governing Council decision 132, concerning the first instalment of F4 claims and paragraph 5 of Governing Council decisions 212, 234, 235 and 248 concerning the third, fourth and fifth instalments of F4 claims. By paragraph 6 of decision 132, the Governing Council established a tracking and reporting programme “to ensure that funds are spent on conducting the environmental monitoring and assessment activities in a transparent and appropriate manner and that the funded projects remain reasonable monitoring and assessment activities”.
3. In paragraph 5 of Governing Council decisions 212, 234, 235 and 248, the Governing Council further directed that, “to ensure that funds are spent on conducting the environmental remediation activities and monitoring and assessment activity in a transparent and appropriate manner and that the funded projects remain reasonable remediation activities and monitoring and assessment activity, claimant Governments are directed to submit to the secretariat every six months progress reports concerning the status of the funds received and the environmental remediation projects and monitoring and assessment activity. The secretariat will keep the Governing Council informed of such progress reports for any appropriate action that may be required. The Governing Council shall consider what further measures may be necessary to ensure that the funds will only be used for reasonable remediation projects and monitoring and assessment activity, and shall specify any mechanism
Governing Council Decision 258 [ 343 ]
that may be necessary or take any appropriate action that may be required” (text in italics appears only in decision 248).
4. The Programme is a cooperative process involving: (a) The Governments of Iran, Jordan, Kuwait and Saudi Arabia (“claimant Governments”); (b) The Government of Iraq; (c) International or local experts who are independent with respect to the projects (the “Independent Reviewers”), as described in the Executive Summary of the September 2005 Meeting of the Claimant Countries, Iraq and the UNCC; (d) The Governing Council of the UNCC (the “Governing Council”); and (e) The secretariat of the UNCC (the “secretariat”). 5. The role of each of these entities in carrying out the Programme and the guidelines that apply to each of them are set out below. A flowchart of the process is attached here as annex II. In summary, the Programme will function as follows. The UNCC will monitor the Programme. Claimant countries will provide regular technical and financial reports for each project to the Independent Reviewers, according to the criteria and guidelines set out below. The Independent Reviewers will report their evaluation of the projects to the secretariat. The secretariat will, in turn report to the Governing Council. 6. Section II lists the entities involved in the Programme and describes their respective activities and the types of reports that they are required to produce. Sections III and IV set out the technical and financial review and reporting guidelines applicable to remediation and restoration projects; and Section V specifies the technical and financial guidelines that apply to monitoring and assessment projects. Section VI contains the guidelines for the selection of the Independent Reviewers.
II. Entities Involved and Their Roles A. Claimant Governments
7. The claimant Governments are responsible for the implementation of the remediation and restoration projects and for the management of award funds.
1. Activities
8. Each claimant Government will decide how projects are to be implemented and funds are to be allocated, based on the reports and recommendations of the [ 344 ]
Governing Council Decision 258
F4 panel of Commissioners, as approved by the Governing Council. UNCC monitoring will be implemented through the system of reporting and evaluation set out in these guidelines. 9. Each claimant Government will recommend experts to the UNCC, to act as Independent Reviewers of the projects, based on the criteria set forth in section VI.A. below. The claimant Government will provide the name, curriculum vitae (including a personal statement of independence and impartiality, interest and potential contribution) and a disclosure statement for each candidate for review and approval of the UNCC. 10. Each claimant Government will designate a national focal point (“NFP”) that will be the link between the agencies responsible for the projects and the UNCC. As mentioned in the Discussion Paper of September 2005, a regional committee of NFPs from claimant Governments and Iraq will meet for coordination, cooperation and exchange of information, as necessary. 11. The claimant Governments are responsible for reporting and responding to requests for information about ongoing monitoring and assessment projects and remediation and restoration projects. This includes reporting at least every six months to the Independent Reviewers, providing access to documents, project sites and personnel to the Independent Reviewers and to the UNCC. The claimant Governments will provide information to the Independent Reviewers, to support their production of semi-annual progress reports to the UNCC on each project, on a schedule to be agreed with the Independent Reviewers. In addition, claimant Governments shall ensure that the contractors and other personnel engaged in implementation of the projects cooperate with the Independent Reviewers and the UNCC.
2. Reports
12. Pursuant to the direction of the Governing Council, claimant Governments are required to report at the beginning of each project and every six months, to enable the UNCC to ensure that funds are spent on conducting the environmental remediation and restoration activities in a transparent and appropriate manner and that the funded projects remain reasonable remediation activities. Every six months, each claimant Government will report to the UNCC, through the Independent Reviewers, on its ongoing monitoring and assessment projects, according to the procedures set out in section V below. Critical stages in the implementation of the remediation and restoration projects on which information should be reported are: (a) Initial planning phase - Key decisions will be made during this period, and the claimant Governments should ensure that the UNCC is kept informed, through the Independent Reviewers, in a timely manner. During the initial Governing Council Decision 258 [ 345 ]
planning phase, work plans will be defined (including long-term environmental monitoring plans to guide project implementation overtime); draft agreements with public or private contractors will be developed; contracts will be established; environmental and financial assessments will be prepared; and any necessary field tests of restoration approaches are to be completed. In developing their initial work plans, claimant Governments should submit to the Independent Reviewers detailed summaries of any changes that have been made to the approach recommended by the F4 panel. (b) Project implementation - During the project implementation phase, the claimant Governments will report regularly to the UNCC, through the Independent Reviewers, on work progress, financial and environmental performance of the projects. (c) Project modifications or problems are identified - Each claimant Government has a continuing responsibility to provide timely reports to the Independent Reviewers whenever it proposes to make material technical or financial modifications to the projects, or if it identifies a significant problem with a project. When a claimant Government modifies a project, the Independent Reviewers should be notified and provided with a summary of the modification, as well as the reasons for the proposed modification and any anticipated environmental, financial/economic and scheduling implications. A claimant Government will notify and consult with the Independent Reviewers regarding any financial or technical problems, as soon as the Government becomes aware of the problem. 13. Claimant Governments will submit documents and information as requested by the Independent Reviewers for their technical and financial evaluation of projects. Such documents and information will include, but are not limited to, those relating to: (a) Procurement standards; (b) Terms of reference for implementation of the projects; (c) Details of consultants and contractors, and all contracts including those with principal contractors, subcontractors and consultants; (d) Contract value, scope of work and contract duration for each project; (e) Project work plans and detailed project budgets; (f) QA/QC protocols for technical and financial monitoring; (g) Criteria for the evaluation of remediation or restoration programmes; (h) Research reports and field studies documenting the rationale for the selection of remediation and restoration approaches that are different from the approach recommended by the F4 panel; (i) Periodic technical monitoring reports, as requested by the Independent Reviewers, consistent with the Technical Review and Reporting Guidelines in section III below; [ 346 ]
Governing Council Decision 258
(j)
Periodic financial monitoring and audit reports, as requested by the Independent Reviewers, including audited statements on expenditures related to the level of implementation, consistent with the Financial Review and Reporting Guidelines in section IV below.
14. For accomplishing its verification tasks, the UNCC will rely primarily on progress reports provided by the Independent Reviewers, based on information submitted to them by the claimant Governments. The UNCC may directly request that a claimant Government provide any documents or information that the UNCC considers to be necessary for its verification tasks.
B. Independent Reviewers
15. The Independent Reviewers are responsible for evaluating projects according to the technical and financial guidelines and reporting their findings to the UNCC. Independent Reviewers shall be prominent international or local experts proposed by the claimant Governments and approved by the UNCC, as described in section VI below. They shall be assisted by necessary support or management staff.
1. Activities
16. The main responsibilities of the Independent Reviewers are (a) to follow each project closely in cooperation with the claimant Governments and to provide regular monitoring and evaluation reports to the UNCC on the implementation of the remediation/restoration projects according to the technical and financial guidelines; (b) to identify any material modifications in the projects; (c) to identify significant problems that may arise in the implementation of the remediation/ restoration projects; and (d) to notify the secretariat of any such modifications and problems in a timely manner. The reports of the Independent Reviewers will be based on documents provided by claimant Governments, site inspections and discussion with project personnel, that they determine to be necessary. 17. The Independent Reviewers will also report to the UNCC on the monitoring and assessment projects as described in section V below.
2. Reports
18. The Independent Reviewers will submit to the UNCC a detailed report reviewing and evaluating each remediation/restoration project. Each report will identify the sources of information on which the evaluation is based and explain the Governing Council Decision 258 [ 347 ]
reasoning in detail, on a schedule mutually agreed with the UNCC to meet the requirement that the secretariat report to the Governing Council every six months. The report should include: (a) (b) (c) (d)
A concise summary of project plans; A concise statement of project status; A concise summary of the results of any environmental assessments; A summary of periodic and total expenditure reported by claim number and claim element; (e) A detailed evaluation of whether the technical and financial aspects of the projects remain reasonable; (f) Any other information, which in the opinion of the Independent Reviewers will assist the UNCC to determine whether the project continues to be a reasonable remediation/restoration project. 19. Key documents that the Independent Reviewers determine to be necessary for the UNCC to understand their report should be attached to the report. The Independent Reviewers will also provide a list of documents and other information that were considered in the preparation of the report, with a brief description of such documents and information. 20. The Independent Reviewers will inform the UNCC secretariat of any material modification to a project or significant problems in its implementation as soon as they become aware of such a modification or problem. They will provide an evaluation of the modification or problem to the UNCC on an expedited basis. Each semi-annual report to the UNCC will include an appendix giving a brief description of matters that arose during the review period, but which were not referred to the UNCC because the Independent Reviewers determined that they were not material or significant. 21. Every six months (or whenever requested by the UNCC), the Independent Reviewers will also submit to the UNCC a report on the monitoring and assessment projects, as described in section V below.
C. Iraq Activities
22. The Government of Iraq will designate a national focal point for contacts with the claimant Governments and the UNCC. As mentioned in the Discussion Paper of September 2005, a regional committee of NFPs from Iraq and claimant Governments will meet for coordination, cooperation and exchange of information, as necessary. The Government of Iraq will be informed of the projects and the progress made therein through meetings of the NFPs. 23. The Government of Iraq will be provided by the secretariat with copies of the final reports of the Independent Reviewers for Iraq’s response and comments. [ 348 ]
Governing Council Decision 258
Any response or comments received from Iraq by the secretariat will be submitted to the Governing Council. 24. It is noted that Iraq and the claimant Governments may cooperate through a regional cooperation programme that should also provide a means for Iraq to receive information about the environmental projects. The Government of Iraq may provide its views and comments through the meetings of the NFPs and through the UNCC.
D. UNCC secretariat
25. A small staff capable of addressing the scientific, economic and financial issues that will arise in relation to the monitoring and assessment activities or restoration and remediation projects will be attached to the secretariat. The secretariat will, as necessary, retain experts in appropriate fields to assist in project evaluation and reporting to the Governing Council.
1. Activities
26. The secretariat will work cooperatively with the claimant Governments and the Independent Reviewers to implement the Programme. In particular, it will communicate to the claimant Governments and the Independent Reviewers the needs and focus of the UNCC and indicate information that is needed by the Governing Council. The functions of the secretariat include undertaking site inspections, holding discussions with the claimant Governments or the Independent Reviewers and requesting information or additional reports on the monitoring and assessment activities and restoration and remediation projects. The secretariat will work with the Independent Reviewers to establish a schedule for the submission of semi-annual reports. 27. The secretariat will assess the environmental, economic and financial consequences of proposed work plans, project modifications and project implementation. The secretariat will refer any issues of significant concern to the Governing Council without delay.
2. Reports
28. Every six months, the secretariat will submit to the Governing Council an assessment of whether the funds awarded for environmental projects “are spent on conducting the environmental remediation activities and monitoring and assessment activity in a transparent and appropriate manner, and [whether] the funded projects remain reasonable remediation activities and monitoring and Governing Council Decision 258 [ 349 ]
assessment activity”. This assessment will be based on the reports of the Independent Reviewers.
E. UNCC Governing Council
29. The Governing Council will be responsible for deciding whether funds awarded for environmental projects “are spent on conducting the environmental remediation activities and monitoring and assessment activity in a transparent and appropriate manner, and [whether] the funded projects remain reasonable remediation activities and monitoring and assessment activity” based on periodic secretariat reports. 30. The Governing Council will decide on the steps that should be taken in respect of “unreasonable” activities that may be identified in any reports submitted by the secretariat. “Unreasonable activities” may relate to procedural, financial or environmental matters. 31. The Governing Council will direct the secretariat to withhold 15 per cent of each award, to be deducted from the last payments to each Government, to be released upon satisfactory completion of the environmental projects. Where projects with long duration are being implemented in multiple phases, the Governing Council may decide to withhold a higher percentage of the relevant awards to be released proportionally to the successful completion of each phase. 32. The provisions of decisions 17, 18, and other relevant Governing Council decisions will continue to apply.
III. Guidelines for Technical Review and Reporting for Remediation/ Restoration Projects A. General principles for remediation/restoration projects
33. The F4 panel has outlined the following seven general principles for guidance in the development and implementation of environmental remediation projects (third, fourth and fifth F4 reports). “(a) Remediation approaches or techniques that pose unacceptable risks of ecological harm should be avoided. “(b) Remediation activities should be undertaken only if they are likely to result in more positive than negative effects. “(c) Remediation techniques that facilitate natural recovery processes should be preferred, and active remediation should build on and enhance natural recovery that has already occurred. “(d) Remediation should rely on proven and well-established technologies and techniques in preference to experimental or untested approaches. [ 350 ]
Governing Council Decision 258
“(e) The effectiveness of remediation activities should be monitored to ensure that remediation targets are met. Remediation programmes should be designed to be sufficiently flexible and responsive to new information obtained from such monitoring. “(f) Where more than one remediation approach or technique is appropriate to achieve a desired remediation goal, the most cost-effective option should be selected. “(g) Remediation decisions should consider both the short-term and long-term effects of remediation activities on neighbouring ecosystems, including transboundary effects.” 34. The panel has also stressed that “primary emphasis must be placed on restoring the environment to pre-invasion conditions, in terms of its overall ecological functioning rather than removal of specific contaminants or restoration of the environment to a particular condition.” (third F4 instalment report, paragraph 48.) 35. A long-term monitoring plan that collects relevant data before, during and after remediation or restoration activities should be carefully integrated into the remediation project. In the course of remediation, remediation activities should be adapted in response to data and analysis developed through such a monitoring programme. This will provide opportunities to identify and address negative impacts of remediation activities, if any arise. It will also assist in identifying successful remediation or restoration approaches. 36. The criteria for the evaluation of the remediation or restoration project should be specified before the monitoring programme is implemented. The claimant Government’s planning team should consider carefully how data collected by the monitoring programme will be used to evaluate and, where appropriate, alter remediation decisions. Where quantitative indicators of ecological conditions are used, it is essential to determine in advance an appropriate sampling approach on the basis of which meaningful statistical comparisons can be made.
B. Technical monitoring indicators
37. For the Follow-up programme, the UNCC will rely on the claimant Governments for information on the design, implementation and performance of remediation measures. With respect to engineering components of the projects, this will include summary information on the technical specifications and rationale for the selection of remediation and restoration technologies and approaches. Of particular interest to the UNCC in assessing projects is information summarizing the results from further field tests to support the design and implementation of remediation and restoration projects, and the implications of such tests for the final selection of approaches. 38. In addition, the UNCC’s technical assessment of the reasonableness of projects will include consideration of information on progress in achieving the Governing Council Decision 258 [ 351 ]
schedules proposed by the claimant Governments. This will include, as appropriate, information on the physical progress achieved with specific projects (e.g., the proportion of the site area remediated) as well as other indicators of progress, such as drafts of contracts for conducting remediation activities. 39. The UNCC will also expect the claimant Governments to develop and report information on environmental indicators and related performance criteria that can be used to track the progress and effectiveness of restoration measures as compared to well-functioning reference ecosystems. 40. Environmental performance indicators, based on the conditions of each specific project area, should be developed to measure and track the type and extent of environmental restoration that is intended for each remediation/restoration project. Collectively, for each project the indicators should be those that can assist in evaluating whether the damaged resource is making adequate progress towards recovery as a result of the measures taken. Indicators should be selected to represent a variety of levels of ecosystem organization as appropriate for the particular project. These include such factors as (a) genetic, (b) species/population, (c) ecosystem, (d) community, and (e) landscape (see Holl, K.D. and J. Cairns, “Monitoring and Appraisal” in Handbook of Ecological Restoration. Perrow, M. and A. Davy, Cambridge University Press, 2002, page 422). Indicators should be selected to track positive restoration progress as well as any unintended adverse consequences of the restoration measures, particularly damage to neighbouring and previously undamaged ecosystems (e.g., remediation-induced sedimentation in undamaged marine environments adjacent to areas being remediated). 41. As widely recommended in the literature on monitoring environmental restoration projects, goals specified as performance criteria should be developed for each environmental indicator (see for example, Holl & Cairns, 2002; Society for Ecological Restoration International, Primer on Ecological Restoration). Such criteria will be useful for determining the rate of environmental progress and for ascertaining when restoration is complete. To the maximum extent feasible, performance criteria should be based on conditions in well-functioning reference ecosystems similar to the one being restored and for which there is empirical information about the state of the environmental indicators. Because of the inherent variability within ecological types, performance criteria are often defined in terms of an indicator’s range of values across well-functioning, comparable ecosystems (see Holl & Cairns, page 413). 42. More generally, environmental indicators and performance criteria should be chosen to provide empirical evidence of the effectiveness of the restoration measures in returning the damaged resource to a well-functioning condition. A wellfunctioning ecosystem can be characterized by a variety of attributes. Guidance developed by international experts on restoration science, practice and policy suggests that a well-functioning system includes a characteristic assemblage of native species, the presence of key functional groups of organisms necessary for
[ 352 ]
Governing Council Decision 258
development or stability of the restored ecosystem, the ability of the system to reproduce and sustain itself over time, the demonstrated resiliency of the system to stress, and the integration of the restored ecosystem into the larger ecological and social matrix of the landscape (see, e.g., www.ser.org/content/guidelines_ ecological_restoration.asp). The published literature on ecological restoration includes more detailed guidance on measuring restoration progress for specific ecosystems - see, for example, an approach that was developed for monitoring restoration of terrestrial ecosystems (www.cse.csiro.au/research/ras/efa/). While the UNCC does not have a preference for any specific approach, it will expect Independent Reviewers to evaluate the actual or potential success of restoration projects by reference to indicators of progress toward well-functioning, comparable ecosystems. Whenever necessary, the Independent Reviewers should verify restoration progress through field visits to the sites.
C. Material changes to projects
43. Where a claimant Government is proposing material changes to the projects as outlined in the F4 panel reports and annexes, the UNCC will consider the views of the Independent Reviewers on the extent to which the revised approach is better able to achieve appropriate remediation/restoration objectives. In particular, the Independent Reviewers should base their assessment of the proposed modification on empirical information on environmental indicators that demonstrates that the revised approach is a more effective way of achieving the remediation/restoration objectives. To the maximum feasible extent, data from field trials comparing the alternative approaches will be preferred. Such trials should be at a scale and for a duration appropriate to demonstrate the relative merits of the alternatives. In addition the Independent Reviewers should consider whether a change would have any significant unintended adverse consequences, particularly on neighbouring and previously undamaged ecosystems.
D. Phasing of projects
44. A phased approach should be taken to implementation of projects with long duration. Phasing is consistent with the F4 panel’s recommendation that “(t)he effectiveness of remediation activities should be monitored to ensure that remediation targets are met. Remediation projects should be designed to be sufficiently flexible and responsive to new information obtained from such monitoring”. Phasing would allow a particular restoration approach to be tested and evaluated for a smaller area before decisions are made to implement the approach across the entire area proposed to be remediated or restored.
Governing Council Decision 258 [ 353 ]
IV. Guidelines for Financial Review and Reporting for Remediation/Restoration Projects
45. The UNCC’s assessment to determine whether remediation and restoration projects remain reasonable will consider financial monitoring and audit information for all projects. To assist this assessment, claimant Governments should develop policies and procedures that ensure full transparency in management of funds awarded by the UNCC. In this regard, claimant Governments should: (a) Establish and maintain full control over the project including the management of the award funds and responsibility for the disbursement of funds to contracted parties. (b) Ensure transparent, competitive and effective procurement in compliance with applicable national laws and standards of international practice. (c) Ensure that contracts for remediation and restoration projects are designed to be flexible enough to accommodate changes to work programmes that may be suggested by the Independent Reviewers or the UNCC. (d) Assume financial management and accountability for all projects, including the capacity and competence to: (i) Record all transactions and balances; (ii) Disburse funds to contractors in a transparent and accountable manner; (iii) Prepare regular financial statements, by claim number and claim element, that are subject to acceptable auditing arrangements; (iv) Have adequate infrastructure and information systems to support project implementation, including the monitoring of the financial performance of subcontractors and out-sourced entities; (v) Ensure that funds are used for the intended purposes. (e) Ensure effective and on-going financial monitoring and evaluation with appropriate reporting and quality control mechanisms. (f) Assure appropriate internal and external accountability arrangements. (g) Assist the Independent Reviewers in their preparation of periodic verifications of financial activity and implementation activity. (h) Allow access by the UNCC and Independent Reviewers to all project financial documents and to financial monitoring and evaluation activities. 46. Where a claimant Government is recommending a material change to a project outlined in the panel report and annexes, the UNCC will consider whether the claimant has demonstrated that the revised or alternative approach is the most cost-effective method for achieving the remediation or restoration objectives recommended by the panel and approved by the Governing Council, taking into account the Independent Reviewers’ evaluation. [ 354 ]
Governing Council Decision 258
V. Guidelines for Technical and Financial Review and Reporting for Continuing Monitoring and Assessment Projects
47. The monitoring and assessment projects covered by the Programme include twelve environmental and public health projects for which compensation was awarded in the first F4 instalment and one public health monitoring project for which compensation was awarded in the fifth F4 instalment. 48. A programme by which the F4 panel tracked the use of funds awarded for monitoring and assessment projects was established pursuant to paragraph 6 of Governing Council decision 132. Under this programme, claimant Governments were required to report on the use of funds awarded for environmental monitoring and assessment claims. Tracking of the use of funds by the F4 panel ended in March 2005 when the panel completed its review of the F4 claims. The agreement between the UNCC and the United Nations Environment Programme (“UNEP”), under which UNEP provided assistance to the panel, also came to an end at the same time. 49. At its fifty-sixth session in June 2005, the Governing Council adopted the recommendation set out in paragraphs 12 to 14 of the eighth report of the F4 panel of Commissioners concerning the tracking of the progress of environmental monitoring and assessment projects compensated pursuant to Governing Council decision 132. The recommendation of the panel was for the continuation of a number of on-going public health studies being conducted by the Governments of Kuwait and Saudi Arabia and several studies on natural resources damage that are being conducted by the Government of Kuwait. The Governing Council decided that, consistent with Governing Council decision 132, the claimant Governments would continue to submit periodic reports on the progress of these studies. 50. Final results of the monitoring and assessment projects produced by claimant Governments should be taken into consideration in tracking the use of award funds for environmental remediation and restoration activities, where appropriate. 51. The tracking mechanism for these continuing monitoring and assessment studies will operate as follows: (a) Claimant Governments will submit periodic progress reports on the monitoring and assessment projects to the Independent Reviewers; (b) Claimant Governments will certify, with each final monitoring and assessment report submitted to the Independent Reviewers, that the funds awarded for monitoring and assessment have been audited in accordance with the respective Government’s generally accepted auditing standards, and will provide appropriate audit certifications; (c) The Independent Reviewers will review progress reports submitted by claimant Governments from a financial perspective, and will report on financial and project status information to the UNCC. Before submitting Governing Council Decision 258 [ 355 ]
their report on a project to the UNCC, the Independent Reviewers will seek answers to any questions raised by the report, through written and oral exchanges with the claimant Government concerned and, as necessary, site inspections. The Independent Reviewers’ reports will include an evaluation of the progress of each project, taking into account expenditure on the project; (d) The Independent Reviewers will review monitoring and assessment information submitted by claimant Governments from a scientific and technical perspective. The Independent Reviewers will evaluate the information produced by the monitoring and assessment projects, and report to the UNCC. The report shall indicate whether the Independent Reviewers are satisfied that the claimant Government has spent the funds in a manner consistent with the approved plans, that interim results suggest continuation of the project is reasonable, and that no impediments have arisen that would jeopardize the successful completion of the project. As part of their review, the Independent Reviewers may use the environmental databank developed by UNEP containing the information submitted from the monitoring and assessment projects and maintained and updated by the claimant Governments; (e) The UNCC may indicate any further issues that should be addressed by the Independent Reviewers. For example, the UNCC may direct the Independent Reviewers to seek clarifications of information submitted by the claimant Governments and any issues arising from such information; (f) Taking into consideration all of the information provided to it, including any comments and views that it may have received from the Government of Iraq, the secretariat will report to the Governing Council, indicating whether, in its view, the funds awarded are being spent “on conducting the monitoring and assessment activities in a transparent and appropriate manner and that the funded projects remain reasonable monitoring and assessment activities”, as required by decision 132. The secretariat will make such recommendations to the Governing Council, as it may consider necessary.
VI. Other Matters A. Selection of Independent Reviewers
52. The UNCC’s assessment of the reasonableness of proposed remediation and restoration projects will rely heavily on reports from the Independent Reviewers. Accordingly, the selection process for the Independent Reviewers should be such that it can guarantee the technical and financial qualifications and independence of the persons selected. The Reviewers should be selected with due regard to the need [ 356 ]
Governing Council Decision 258
for a high level of professional expertise, experience and integrity. Each Independent Reviewer will act in his or her personal capacity, rather than as a representative of a government or an institution. A person selected as an Independent Reviewer shall not be involved in or have financial interests in any of the projects under the Follow-up Programme. An Independent Reviewer may not be associated with or have financial interest in any corporations or institutions that have contracts to carry out work on the projects under the Programme. 53. In reviewing the persons nominated by claimant Governments as Independent Reviewers, the UNCC will consider the following information for each person nominated, and may wish to contact potential candidates: (a) A detailed curriculum vitae documenting the candidate’s expertise and prominence in his or her field. The curriculum vitae should include a statement of the candidate’s qualification and professional experience, interest in the specific areas of the relevant projects, and the candidate’s potential contribution to the review process; (b) A signed statement that discloses any prior or actual organizational or financial relationship with the Governments or firms or individuals involved with the projects, or any other circumstances that are likely to give rise to actual or perceived justifiable doubts as to the candidate’s impartiality or independence with respect to the prospective tasks. The statement should acknowledge that, if appointed, the Independent Reviewer will have an ongoing obligation to disclose to the UNCC any new circumstances likely to give rise to justifiable doubts as to his or her impartiality or independence. 54. In approving the claimant Governments’ nominees, the UNCC will also consider the extent to which the persons proposed by the Government are likely, collectively, to provide the full range of expertise required to evaluate the projects. In principle, all projects will likely involve scientific, engineering, economic and financial issues. However, within these four broad categories, the specific types of expertise required will depend on the nature of the particular projects. For example, the experts required for marine restoration projects will probably be different from those needed for terrestrial projects.
B. Costs
55. A portion of the awards, as may be specified, may be used for the costs of the Follow-up Programme. Subject to a separate agreement between the UNCC and the claimant Governments, the relevant costs of the UNCC, including costs of experts to be retained, as necessary, to assist in project evaluation and reporting to the Governing Council, will be borne proportionally by the claimant Governments Governing Council Decision 258 [ 357 ]
as part of the Follow-up Programme costs. In the evaluation of the projects, the UNCC will use such funds proportionally with respect to projects of each claimant Government. Should the costs related to the projects of a particular claimant Government exceed the amount available, the additional costs will be borne by that Government.
Annex 1 of Decision 258 is reprinted at pages 119–121. Annex 2 of Decision 258 is reprinted at pages 125.
[ 358 ]
Governing Council Decision 258
Nature, Vol. 401 No. 6748 (2 September 1999)
This page intentionally left blank
I N DE X
Note: Bold page numbers indicate the full-text of the document. Adaptation Fund of the Kyoto Protocol, 244, 247–48 Additional Protocol I to the 1949 Geneva Conventions (1977), 156 ADR (Alternative Dispute Resolution), 253 Afghanistan, 226 Africa, 246, 247 agency, 109n19, 174, 268–72 agricultural claims, 116n49, 154, 163, 165–66 air pollution exposure claims, 200–202, 209, 214 Albania, 161 al-Bashir, Omar, 225 Allen, José R., xi, 24, 32n13, 141–69 Allied Coalition Forces, 4, 145, 185n66, 196 Alternative Dispute Resolution (ADR), 253 Amchem Products, Inc. v. Windsor, 254 American Cancer Society, 204, 205 American Law Institute (ALI), 255 Angola, 226, 227, 228 Armed Activities case, 235–36 Article 16 reports, 21, 98, 149, 151–52, 282, 322, 327, 340 Article 34 notifications, 20–21, 47, 54, 59, 82, 327, 329, 330 Article 41 corrections, 21–22, 23t, 331 asbestos litigation, 253–56 Asia, 246, 247 audit certifications for awards, 51n52, 109110, 136 audits and award corrections, 21–23, 23t, 61–62 award fund withholding, Follow-up Programme, 128–29, 189 Azraq wetlands, 86–87, 184n57
baseline, defined under the U.S. Oil Pollution Act of 1990, 73f bioremediation, 101–2 Bockarie, Sam, 232 Border dispute, 4, 5n14 BP Deepwater Horizon oil spill See Deepwater Horizon oil spill Bruch, Carl, xi, 24, 221–41 Burgeap of France, 95 CALPUFF (CALifornia Lagrangian PUFF), 204 Cambodia, 224, 226 Caron, David D., xi, 24, 109n19, 174nn9-10, 265–75 Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, 190 causation and directness, 159–60 CERCLA, 71–72 Champ, Patricia A., 80 China, 243 Chorzów Factory case, 8n32, 146, 182, 200 claimant governments confidentiality and intellectual property rights of, 133–34 Follow-up Programme and, 125t, 126–27, 133 mitigation and containment duty, 186–87 monitoring and assessment claims petition by, 157 RERAG meetings, 133–35, 138, 189–90 UNCC innovation regarding, 106 See also Specific countries
claims amount sought and awarded, 3t Article 34 Notifications, 20–21 category A & B, 3t, 13t, 14–15, 20t, 31 category C, 3t, 13t, 16, 20t, 31 category D, 3t, 13t, 16, 20t, 31 category E, 3t, 13t, 17–18, 20t, 31, 165, 225 environmental claims compared to other claims, 267–72 invoice, 115–16, 279t oil related, 31n9, 87, 98, 99, 100, 144–45 overview of claims before the UNCC, 1–4, 3t preexisting conditions and practices and, 162 review process, 12–21 tracking awards during claims review, 50-52, 108–15 transparency and return of undistributed funds, 108–9, 108nn14, 16, 109n19 unexploded ordnance, 160 See also corporate claims; environmental claims (F4 claims); government claims; individual claims; oil spills (Gulf War); oil well fires (Gulf War); public health claims claims by type, 279–80t agricultural, 116n49, 154, 163, 165–66 air pollution exposure, 200–202, 209, 214 cultural heritage, 37, 86n59 increased mortality, 202–5, 212 livestock, 84 marine resources, 37, 84, 163, 271 mental pain and anguish, 197 post-traumatic stress disorder, 116n49, 205–8, 210, 211, 212 recreational opportunity losses, 90–91, 166n131, 183n54 refugee related, 84, 116n49, 185, 185n59, 210–11 terrestrial, 37, 84, 98, 154, 166n130 water resources, 37, 84, 98, 154, 162, 163, 164 wetlands, 86–87 wildlife habitats, 182–83 Clean Development Mechanism of the Kyoto Protocol, 244, 248 climate change impacts, 245–47 [ 362 ]
Index
scientific data regarding, 242–43 U.S and EU emissions, 243 See also Kyoto Protocol climate compensation U.S. civil procedure for, 253–56 possible compensation mechanisms, 247–48 UNCC as model for, 248–53, 256–57 Colombia, 226 commercial value of resources, 2, 155, 155n66, 166, 181, 249 community interests, 106, 173, 249, 257, 261, 270 Compensation Fund See UN Compensation Commission (UNCC) compensatory restoration, 69, 72, 73, 74, 77–78, 77n29, 87–88, 96, 100, 121t, 131, 167, 182, 184, 187, 250 complementary restoration, 74, 77n29 Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 71–72 computer technology, use of for mass claims, 15–17 confidentiality for claimant governments, 133–34, 192, 281 conflict resources case law regarding, 231–36 defined and terms used, 226, 229 future tribunals regarding, 236–41 international trade in, 227 misappropriation of, 229–36 overview, 226–27 peacebuilding and transitional justice, 221–26 UN efforts to address, 227–28 See also military activities consultants, environmental claims, 17, 32, 43–45, 81–82, 82n45, 175 consultants, public health claims, 208 contingent valuation, 80, 90, 166, 183, 184n54, 251–52 contributory fault, 63, 160–66, 164n122 Corfu Channel case, 161 corporate claims category E claims review procedures, 17–18, 31 industries affected, 18 oil well fires and spills, 12, 31n9 priority of, 12
Costanza, Robert, xi, 24, 90, 183n49, 200n35, 256–264 Côte d’Ivoire, 226, 228 cultural heritage claims, 37, 86, 86n59, 96, 163 damage estimation and restoration planning, 77–80 Declaration of the United Nations Conference on the Human Environment, 147, 187 Deepwater Horizon oil spill, 2n6, 190, 262, 265 Democratic Republic of the Congo (DRC), 227–28 depletion of natural resources See environmental damage deterrence effect of liability, 216, 217n118 Development Fund for Iraq (DFI), 9n40, 10n44 Diplomatic and Consular Personnel, 161 diplomatic protection principles, 105–6, 106nn2–3, 109, 269 direct loss criteria, 12 directness and causation, 159–60 Dodge, Richard E., 79 DOI NRDA regulation See NRDA regulations Donlan, Michael C., xi, 24, 67–94 DRC (Democratic Republic of the Congo), 227–28 DRC v. Uganda, 233–36, 233n58 due process and F4 claims, 17n76, 147–52 Ecological services, 77f, 78–79, 182, 184, 249 Egyptian Workers’ Claim, 16 EIA (environmental impact assessments), 137, 137n110 ELD (Environmental Liability Directive), 73–74, 77n29 environmental claims (F4 claims) categories of, 87, 96 compensation sought and awarded, 20t compensation threshold for, 155–57 consultants for, 81–82, 82n45, 175 contributory fault and, 160–66, 164n122
directness and causation and, 159–60 due process and, 147–52 evidence base for the, 99–101, 165, 183 legal framework or the Panel’s review and resolution of, 142–47 limited knowledge of environmental conditions in claimant countries and, 80, 81–83, 97, 177 linking alleged injuries to Iraq’s actions and, 84–87, 102–3 lost value claims, 78–79, 87, 90–91, 181 multiple definitions of environmental damage and, 69, 83–84, 181 nature and scope of the damage to be reviewed, 35–37, 36nn21, 24 numbers of, 20t quantification of ecological losses, 76–80, 180–84 recommended approaches for future, 62–66, 91–92, 135–38, 168–69, 192, 238–41, 247, 252–57, 261–64, 272–75 reports approved, 13t restoration cost claims, 87–89 review time, 39–40, 41 risk assessments and remedial options, 101–2 scaling claimed compensation to injury, 87–91 security issues and sanctions impact on, 103–4 site visits and, 82, 91, 97 solicited information, 47 subdivisions of, 37–39, 37nn26–28, 38nn29–30, 39n32 valuation methodologies, 64–65, 87–91, 166–69, 192 value of, 32, 32n12 See also F4 Panel; monitoring and assessment (M&A) activities; natural resource damage assessments (NRDA) environmental damage assessment and valuation overview, 67–69 commercial value of resources, 2, 155, 155n66, 166, 181, 249 definition by EU of, 74 definition by U.S. of, 83 definitions (multiple) of, 69, 83–84, 152–55, 180 Index [ 363 ]
environmental damage (Cont’d) environmental impact studies, 110–11 estimating value of, 58–59, 182 Iraq’s liability for damages, 30, 68, 142–43, 143n11, 146, 147, 154, 155–56, 171, 248–49 Kuwait invasion by Iraq, 5–7, 5n19 mitigation and containment, 186–87 quantification of, 180–84 state responsibility for, xx, 156, 173, 190–92, 256 U.S. practices regarding, 68–69, 92, 101 vs. depletion of natural resources, 152–55, 180 See also conflict resources; natural resource damage assessments (NRDA) environmental impact assessments (EIA), 137, 137n110 environmental indicators, 132 Environmental Liability Directive (ELD) (European Union), 73–74, 77n29, 78 environmental monitoring See monitoring and assessment (M&A) activities environmental remediation and restoration claims See substantive claims environmental Secretariat of the UNCC archiving records by the, 62, 282–283 creation of the, 32 F4 Panel, 42–43 European Union emissions, 243 Environmental Liability Directive, 73–74, 77n29, 78, 91 public interests in, 174 Exxon Valdez oil spill, 68, 239, 262 F4 claims See environmental claims (F4 claims) F4 Panel appointment, 32, 32n13 communications with affected governments, 45–46 on compensation threshold for F4 claims, 155–57 consultants to the, 40–41, 43–45, 44n36, 45n38, 175, 208 contributory fault and F4 claims, 160–66, 164n122 defining claims, 46–48, 47nn40, 42 [ 364 ]
Index
on directness and causation for F4 claims, 159–60 due process for F4 claims, 147–52 electronic filings of information accepted by, 58–59 environmental Secretariat for the, 32, 42–43 extension of claims review time, 56–58, 56n61, 57n62, 58n64 Follow-up Programme, 60–61, 118–138 Iraq participation in the review process, 34, 53–56, 57–58, 59, 175–76 legal framework for F4 claims used by the, 142–47 on M&A activities compensation eligibility, 157–59 on mitigation and containment, 186–87 as model for resolution of claims regarding environmental damage, 168–69, 170, 191nn94–95, 192n101, 220, 224–25, 236–41 monitoring and assessment projects funding and tracking, 49–52, 50n46, 51n52, 109–115, 187–90 monitoring and assessment projects reviewed by the, 48–49, 109–15, 157–59, 177–80, 215–16 Monitoring and Assessment Tracking Programme, 110, 110n22 OIOS review of F4 activity, 22–23, 61–62, 179n31, 199n26 overview, 24–25 projects completed and ongoing, 59–60 public health claims and, 195–99 public interest functions of the, 174–76 quantification of ecological losses by the, 180–84 reports, 111, 278, 279–80t review process refined by the, 52–53 schedule for reviews and meetings, 41–42 sources of law applied by the, 141–42 substantive public health claims review by, 208–14 valuation methodologies used by the, 166–69, 192 See also environmental claims (F4 claims); UN Compensation Commission (UNCC) Farber, Daniel A., xii, 24, 242–57 Feinberg, Kenneth, 265
Fishman, Akiva, xii, 24, 221–41 Follow-up Programme for Environmental Awards creation of, 60–61, 123–24 data collection, 134–35, 135n108 environmental and public health impacts studies, 110 F4 Panel recommendation regarding the, 60–61, 187–90 financial oversight of, 133 functions and roles of participants, 124–27, 125t Governing Council Decision 258, 119–121t, 125t, 341–48 monitoring and assessment activities, 114–15 oversight, 107–8, 136 overview, 118–23 projects for the, 119–21t, 194 public access to data, 134–35, 135n108 regional cooperation meetings, 133–35, 189–190 scientific reasonableness assessment, 129–32 transparency for UNCC and Iraq, 137–38 withholding of award funds, 128–29, 189 See also substantive claims Forces Nouvelles, 226 Fourth Geneva Convention See Geneva Convention, Fourth France, 9 Freeman, A.M., 80 Future Generations Fund (Kuwait), 19 Gbao, Augustine, 232 Geneva Convention, Fourth Iraq’s invasion of Kuwait as violation of the, 4 on pillage, 229, 230 Geneva Conventions, Additional Protocol I to the 1949 Geneva Conventions (1977), 156 Governing Council of the UNCC establishment and composition 10, 30 F4 Panel decisions and the, 152
Follow-up Programme for Environmental Awards and the, 122–23, 124–26, 124nn67–69, 125t, 128–29 Governing Council Decision 1, 12, 14, 269 Governing Council Decision 7, 33, 36, 306–14 award funds for purposes outlined in, 111 on environmental damages Iraq was responsible for, 68, 143–44, 143n11, 146 international law and, 147 on Iraq liability, 154 monitoring and assessment claims and, 158, 159 prioritization of claims, 14 Governing Council Decision 10, 315–32 Governing Council Decision 18, 108–9, 108nn14, 16, 110, 112, 269 payment reporting under, 116 Governing Council Decision 46, 165, 197–98 Governing Council Decision 100, 116 Governing Council Decision 114, 53, 55, 57, 333–338 Governing Council Decision 124, 53, 339–40 Governing Council Decision 132, 50–51, 110, 112–13, 113n37, 115 Governing Council Decision 212, 116 Governing Council Decision 227, 118n55 Governing Council Decision 234, 116 Governing Council Decision 235, 116 Governing Council Decision 248, 116 Governing Council Decision 258, 110, 122n62, 123nn64–66, 128, 341–58 Governing Council Decision 266, 122n62, 189 Governing Council Decision documents, 280–81 government claims category F claims review procedures, 8, 17–19 claimant government processes and programs, 59 F4 category, 19, 171 government as agent, 173, 269–70 international organizations submitting, 18–19 Gulf of Aqaba coastline, Jordan, 84 Index [ 365 ]
Gulf War environmental impacts of the, 5–6 Iraq invasion of Kuwait, 4–7 persons displaced by, 6 habitat equivalency analysis (HEA), 78–79, 166–67, 182, 249 Hague Convention (No. IV) Respecting the Laws and Customs of War on Land, 229, 230, 235 Hammitt, James K., xii, 24, 193–217 Harvard Six Cities study, 204 high-temperature thermal desorption (HTTD), 89, 99, 101–2 Huguenin, Michael T., xii, 24, 67–94 humanitarian claims See individual claims humanitarian compensation, 185–86 claims overview, 3t Hussein, Saddam, 8, 265 sanction program and, 9 HYSPLIT model, 204, 205 ICJ (International Court of Justice), 224, 233–234, 237, 237n78 increased mortality claims, 202–205, 212 India, 244 individual claims categories A and B, 12, 14–15 categories C and D, 16 compensation sought and awarded, 20t mass claims techniques used for, 14–17 mental pain and suffering claims 197 numbers of, 20t organization submitting claims for individuals, 9 prioritization of, 12 injury defined under CERCLA, 75 defined under the Oil Pollution Act of 1990, 73f injury determination, in practice, 74–76 injury quantification, 76–77 inquisitorial vs. adversarial procedure, 175, 240 in-situ bioremediation, 89, 101–2 Intergovernmental Panel on Climate Change (IPCC), 242–43, 245–46, 247 [ 366 ]
Index
interim loss, 69–78, 87, 96, 155n66, 181 International Court of Justice (ICJ), 224, 233–34, 237, 237n78 International Criminal Court (ICC), 225, 230, 237 international law conflict resources, 229–36 Iraq’s invasion of Kuwait as violation of, xvii–xviii, 4–5, 142–43, 143n11 public health claims under, 196–97 Resolution 687 and, 146 state responsibility for environmental damage, xx, 156, 173, 190–92, 256 threshold for compensation, 143n11, 155–56 UNCC/F4 Panel use of, 11, 145–46 UNCC innovation regarding, 105–6, 106n2, 170–74 International Law Commission, 161 International Oil Pollution Compensation Funds (IOPCF), 70–71, 180, 195 international organizations, submitting claims to the UNCC, 9, 18–19, 187n94 international trade in conflict resources, 227 invoice claims, 115–16, 279t IPCC (Intergovernmental Panel on Climate Change), 242–243, 245–246, 247 Iran claims brought by, 84, 86n59, 90, 116n49, 144, 160, 163, 182–183, 185, 200–201, 207–208, 271, 279–280t controls for monitoring and assessment projects in, 110 Follow-up Programme establishment and, 124 Follow-up Programme projects in, 119t preliminary discussions with, 32n11 public health damages awarded to, 209–10, 216t seizure of hostages at the U.S. embassy in, 161 Iranian Fishery Company, 144 Iran-US Claims Tribunal, 10 Iraq on compensation threshold for F4 claims, 156 F4 Panel review process and, 34, 53–56, 57–58, 59, 147–52, 176 Follow-up Programme and, 123–24, 126, 133–34, 189
foreign nationals in, 6 invasion of Kuwait, 4–7 liability for damage as a result of Kuwait invasion, 6–7, 30, 68, 142–43, 143n11, 171 Iraq advisory team evidence used by the, 99–101 linking alleged injuries to Iraq’s actions and, 102–3 members of the, 95–96 monitoring and assessment programs and the, 97–99 objectives of the, 96 risk assessments and remedial options, 101–2 security issues and sanctions impact on, 103–4 Israel, 190–91 Jodl, Alfred, 224 Jordan claims brought by, 84, 86–87, 154, 159, 163, 164, 166n130, 167, 182, 185, 279–280t controls for monitoring and assessment projects in, 110 Follow-up Programme and, 119t, 124, 128, 128n81, 133 preliminary discussions with, 32n11 public health damages awarded to, 210–11, 216t restoration actions proposed by, 82–83, 88 Jubail Wildlife Sanctuary, Saudi Arabia, 99 Kallon, Morris, 232 Khmer Rouge, 226 Kimberley Process Certification Scheme, 228 King Abdullah Reef, Jordan, 84 KISR (Kuwait Institute of Scientific Research), 100 Klee, Julia, xii, 24, 29–66 Kosovo Conflict, 224 Kuwait claims brought by, 19, 31n9, 32n11, 34n18, 84, 90–91, 98, 100, 116n49, 144–45, 154, 160, 162, 163, 166nn130–131, 167, 182, 203–5, 205–6, 271, 279–280t
environmental damage as result of Gulf War, 5–7, 5n19, 100 Follow-up Programme and, 120–21t, 124, 128, 133, 134 foreign nationals in, 6 future remedial measures claims, 39n32 Iraq invasion of, 4–7 monitoring and assessment projects in, 110, 144–45 oil sector and government claims owed to, 2n5 oil sector claims, 17–18 proposed remedial remedies, 101–2 public health damages awarded to, 211–12, 216t restoration actions proposed by, 82–83 UN ban on products and commodities from, 227 Kuwaiti Investment Authority, 19 Kuwait Institute of Scientific Research (KISR), 100 Kuwait Oil Company, 31n9, 101, 172n4 Kuwait Petroleum Corporation, award for commercial losses of the, 2 Kyoto Protocol to the UN Framework Convention on Climate Change, 244 Lebanon oil spill, 190–91 Liberia, 226, 227–28 Lisbon principles of sustainable governance, 259–64 livestock claims, 84 looting, 17, 225, 229–31, 232–33, 234, 235, 236, 238 See also conflict resources Lorentz, W.P., 79 M&A activities See monitoring and assessment (M&A) activities marine resources claims, 37, 84, 163, 182–83, 271 mass claims, 4 McCay, Deborah French, 79 McGovern, Francis, 14 Memorandum of Understanding between UNCC and UNEP (Aug. 5, 2002), 98, 113n40, 187 Mensah, Thomas A., xii, xvi–xx, 24, 32n13 mental pain and anguish claims, 197 Index [ 367 ]
MEPA (Saudi Arabia’s Meteorological and Environmental Protection Administration), 99 military activities compensation for, 145, 185n66, 196 data collection and, 86, 86n57 post-conflict damage, 186–87, 196 statistics regarding, 221–22 See also conflict resources Miller Act of 1935, 263 Milon, J. Walter, 79 mitigation duties, 160–66, 186–87, 250 Model for the Assessment and Remediation of Sediment (MARS), 183, 183n50 modeling for loss valuation, 82–83, 166–67, 182–83 monitoring and assessment (M&A) activities air pollution exposure, 200–202 compensation eligibility, 157–59, 250 data used by F4 panel, 82 Follow-up Programme, 60–61, 114–15 funded and tracked by the UNCC, 49–52, 50n46, 51n52, 109–15 liability for, 177–80 ongoing, 59–60, 179, 216 projects completed, 59–60, 113, 113n41 public health claims, 60, 68, 119, 120t, 121t, 144, 145, 147, 177, 193, 194, 215–16, 216t reasonability of proposed, 198–99 reviewed by the F4 Panel, 48–49, 109–15 timing of, 97, 97–99, 101–2, 179 tracking awards regarding, 109–15, 187–90 types of claims, 96 Monitoring and Assessment Tracking Programme, 110, 110n22 Monte Carlo methods, 85, 85n56 Montenegro, 237n78 mortality, increased, 202–5, 212 National Touristic Camp, Jordan, 84 National Union for the Total Independence of Angola (UNITA), 226, 227 natural resource damage assessments (NRDA) frameworks for, 69–74
[ 368 ]
Index
injury determination, 74–76 injury quantification, 76–77 in practice, 74–77 process transparency, 92 regulations, 70–71 restoration planning and damage estimation, 77–80 timely data collection, 91 U.S. practices regarding, 68–69, 92 See also environmental claims (F4 Claims) natural resource depletion See environmental damage natural resources, defined under the Oil Pollution Act of 1990, 73f NRDA See natural resource damage assessments (NRDA) NRDA regulations equivalency methods, 78 as framework for assessing damages, 71–72 injury determination, 75–76 as source for definitions and procedures, 91 Nuremberg Tribunals, 223–24, 230 Office of Internal Oversight Services (OIOS), 22–23, 61–62, 179n31, 199n26 Oil-for-Food Program, 22n102, 23n106 Oil Pollution Act of 1990 (U.S.), 72–73, 73f, 262 Oil-related claims, 2, 2n5, 31n9, 87, 97, 98, 99, 100, 144–45 Oil Spill Contingency and Response Model (OSCAR), 183 oil spills (Gulf War) contributory fault and the, 63, 162–63 damage threshold for, 156–57 evidence for damage caused by, 97 Follow-up Programme remediation for, 128, 131 government sector and cost of, 12 oil spill (Lebanon), 190–91 oil well fires (Gulf War) air pollution exposure, 200–202, 209, 214–15 corporate oil sector and cost of, 12 damage threshold for, 156–57
government sector and cost of, 12 increased mortality, 202–5 mitigation and containment of, 186 overview of Gulf War, 5–7, 5n19 property damage from, 267–68 OSCAR (Oil Spill Contingency and Response Model), 183 Palestinians, 9 Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the DRC, 228 parallel or concurrent causes, 160–66, 164n122 Paterson, Robert W., xii, 24, 67–94 pathway, defined under the U.S. Oil Pollution Act of 1990, 73f Payne, Cymie R., xiii, 1–25, 24, 25, 105–38, 277–283 PCA (Permanent Court of Arbitration), 224, 237, 237n78, 238–40 peacebuilding and transitional justice, 221–26 See also conflict resources Peacebuilding Commission, 222, 228 Pérez de Cuéllar, Javier, 5 Permanent Court of Arbitration (PCA), 224, 237, 237n78, 238–40 Peru, 226 Petersen, Timothy B., 79t pillage, 225, 229–31 See also conflict resources Porter Commission, 235 post-traumatic stress disorder (PTSD), 205–8, 210, 211, 212 precautionary principle/approach, 177, 260 pre-existing contamination, 84–85, 161–165 presumptive remedies, 101 Price Anderson Act of 2006 (U.S.), 262 primary restoration, 69, 72, 73, 77, 96, 100, 167 Provisional Rules See Rules for Claims Procedure PTSD (post-traumatic stress disorder), 205–208, 210, 211, 212 public health claims, 159 air pollution exposure, 200–202, 209, 214
amounts and payments, 216t causation and directness, 160 evidence base, 212–215 increased mortality, 202–5, 212 M&A activities, 60, 68, 119, 120t, 121t, 144, 145, 147, 177, 193, 194, 215–16, 216t mandate of the F4 Panel and, 195–96 mental pain and anguish, 197 oversight program, 107 overview of, 193–94, 214–17 review criteria, 197–99 standing for health claims submission, 172n4, 196–97 substantive, 208–14 valuation of, 199–200 public health impact studies, 110, 145 public trusteeship, 174, 262, 270 pure ecological loss, 180–81 Ramsar Convention on Wetlands of International Importance, 86n60, 184n57 recreational opportunity losses claims, 90–91, 166n131, 183n54 reference sites, 82, 82n47 refugees, 9, 12 claims for costs related to, 84, 116n49, 185, 185n59, 210–11 injury to coral reefs by, 84 Jordan’s economy and public health and, 160 statistics regarding, 6 water resources and, 163 Regional Environmental Remediation Advisory Group (RERAG), 133–35, 138, 189–90 remediation compensatory, 74 complementary, 74 U.S vs. EU meaning of, 77n29 remediation and restoration claims See substantive claims Rendulic, Lothar, 224 RERAG See Regional Environmental Remediation Advisory Group (RERAG)
Index [ 369 ]
Resolution 687 (UN Security Council 1991), 297–305 Compensation Fund purpose under, 8, 122 compensation threshold under, 143n11, 156 establishment of the UNCC, 7, 11 Governing Council decisions clarifying, 12 international law and, 6–7, 146 Iraq’s liability for damages, 30, 68, 142–43, 143n11, 146, 147, 154, 155–56, 248–49 monitoring and assessment claims and, 158, 159 precedent regarding damages, 237 public health claims under, 196–97 resource equivalency analysis (REA), 78n31, 79 restoration defined under the U.S. Oil Pollution Act of 1990, 73f U.S vs. EU meaning of, 77n29 restoration planning and damage estimation, 77–80 revealed preference methods, 80 Revolutionary United Front (RUF), 226, 227, 232–33 Rio Declaration on Environment and Development, 147, 187, 267 risk assessments and selection of remedial options, 101–2 risk discovery costs, 174, 177–80 Rome Statute of the International Criminal Court, 229–30, 230 RUF (Revolutionary United Front), 226, 227, 232–33 Rules for (UNCC) Claims Procedures Article 31, 141–42 Article 35, 197 Article 40, 21, 35 Rumaila oil field, 4 sanctions against Iraq, 9, 227 conflict resources, 227 Sand, Peter H., xiii, 24, 32n13, 170–92, 193–217 Sankoh, Foday Saybana, 232
[ 370 ]
Index
Saudi Arabia, 32n11, 200, 201–2 claims brought by, 84, 87, 98, 99, 162, 164, 165–66, 182, 202–3, 206–7, 271, 279–280t controls for monitoring and assessment projects in, 110 Follow-up Programme and, 121t, 124, 128–29, 133 Meteorological and Environmental Protection Administration (MEPA), 99 monitoring and assessment claims petition by, 157 oil spill and the coastline and salt marshes of, 99, 128, 128n84 public health damages awarded to, 213–14, 216t remedial techniques proposed by, 101 restoration actions proposed by, 82–83, 88 Serbia, 237n78 services, defined under the U.S. Oil Pollution Act of 1990, 73f Sesay et al., Prosecutor, 232–33 Sesay, Issa Hassan, 232 Sierra Leone, 224, 226, 227, 227–28, 322–23 Sinclair Knight Merz (SKM), 95 site visits, 82, 91 solidarity costs, 185–186, 191 Somalia, 226 South Sudan, 224 Sperduto, Molly B., 79 Standard Operating Procedures, 20 State responsibility F4 Panel approach to, 173–74 international law and, 6-7, 190–92 mitigation and containment, 186–87 recent catastrophic environmental damage and, 190–91 structure of the law of state responsibility, 172–73 Stern Report, 246–47 Stockholm Declaration on the Human Environment (1972), 147, 187, 267 substantive claims, 36n24, 116–18 award funds for, 117–18, 117nn52, 54, 118n55 magnitude and complexity of, 150 oversight of, 107–8, 135–36 project phasing, 136–37
public health, 208–14 transparency and, 137–38 See also Follow-up Programme for Environmental Awards Sudan, 224 sunken oil, 87 Sunstein, Cass, 251 Superfund (CERCLA), 71–72 sustainable governance, 259–64 Syria, 32n11 claims brought by, 84, 86, 86n59, 279–280t controls for monitoring and assessment projects in, 110 public health damages awarded to, 214, 216t tarcrete, 6, 100 Taylor, Charles, 226, 227, 232–33, 233n57 Taylor, Prosecutor v., 232–33, 233n57 technical annexes to F4 panel reports, 176 temporary loss of resource use, 78–79, 181 terrestrial claims, 37, 84, 98, 154, 166n130 terrorism, 231 Trail Smelter case, 146, 182, 267 transitional justice and peacebuilding, 221–26 See also conflict resources transparency, 65, 92, 108–09, 137–38, 188, 191–92 travel cost surveys, 69, 70, 79–80, 145, 183 Treaty of Versailles, 148, 223 Turkey, 32n11, 185, 279–280t Tyre oil spill (Lebanon), 190–91 Uganda, DRC v., 233–36, 233n58 Uganda’s Peoples Defense Forces (UPDF), 233 UN Charter Article 2, 233 chapter VII, 7–8 Iraq’s invasion of Kuwait as violation of the, 4 UN Commission on International Trade Law (UNCITRAL) Rules, 10 UN Compensation Commission (UNCC) award corrections and audits, 21–23 claim process challenges faced by the, 29–34
claims review process, 12–21 climate change compensation modeled on the, 248–53, 256–57 Compensation Fund administration and purpose, 8–9, 122 composition of the, 30 computer technology, used by, 15–17 disestablishment of the, 122–23 documents by and regarding the, 266, 277–93 electronic filings of information accepted by, 58–59 on environmental claims, 35, 44 environmental claims lessons from the UNCC process, 272–75 environmental information database, 98 establishment and early operation of the, 7–10 evaluation of the F4 environmental claims, 96 events leading to the creation of the, 4–7 Follow-up Programme information to be provided to the, 132, 133 Follow-up Programme oversight role of the, 136 innovation regarding international law, 105–6, 106, 106n2, 170–74 institutional structure of the, 10–12 Memorandum of Understanding with UNEP, 98, 113n40, 187 monitoring and assessment projects funded and tracked by the, 49–52, 50n46, 51n52 Oil-for-Food Program vs. the, 22n102, 23n106 overview of claims before the, 1–4, 3t precedent for future tribunals, 168–69, 170, 191nn94–95, 192n101, 220, 224–25, 236–41 procedures, 333–38 Secretariat Follow-up Programme and the, 60–61, 124–27, 125t Valuation and Verification Branch (VVSB), 113, 115, 117 solicitation for consulting services, 359 sustainable governance principles and the, 260–61, 260nn5–6, 262–64 See also F4 Panel; Governing Council Index [ 371 ]
UN constraints on conflict resources, 227–28, 233 UN Development Programme (UNDP), 8, 11 UN Environment Programme (UNEP) environmental assessments begun by, 33, 35 on environmental damage and depletion of natural resources, 65, 153–54 environmental information database, 98 Memorandum of Understanding with UNCC, 11, 98, 113n40, 187 monitoring and assessment activities, 114, 115 monitoring and assessment reports, 58, 113 post-conflict peacebuilding, 222 scientific tracking responsibility of, 52 UN High Commissioner for Refugees (UNHCR), 9 UNITA (National Union for the Total Independence of Angola), 226, 227 United States asbestos litigation, 253–56 climate change and, 243, 244 complaints issued against Iraq, 9 environmental and public heath expense compensation, 145 habitat equivalency analyses, 78–79 liability regarding the Deepwater Horizon disaster, 190 military expense compensation, 145 practices regarding environmental damages, 68–69, 92, 101, 136n109 UN Office of Internal Oversight Services (OIOS), 22–23, 61–62, 178n31, 199n26 UN Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the DRC, 235 UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), 9
[ 372 ]
Index
UN Security Council conflict resources and the, 227–228, 233 documents, 281–282 establishment of the UNCC, 7–8 reaction to the invasion of Kuwait, 4–5 Resolution 687, 146, 297–305 Resolution 1483, 117 Unsworth, Robert E., 79 UN Working Capital Fund, 10 UPDF (Uganda’s Peoples Defense Forces), 233 U.S. Agency for Toxic Substances and Disease Registry, 145 U.S. Department of the Interior (DOI), 71–72 U.S. Environmental Protection Agency (EPA), 80 U.S. National Oceanic and Atmospheric Administration (NOAA), 72 habitat equivalency analysis (HEA), 79 U.S. Office of Management and Budget (OMB), 80 Valuation and Verification Branch See UNCC valuation methodologies, 67–80, 166–69, 182–184, 251–52 van Geel, Alexandra E., xiii, 24, 67–94, 79 Versailles Treaty, 148, 223 Vienna Conventions on Diplomatic and Consular Relations, 4 War crimes, 8, 232–33 See also conflict resources water resources claims, 37, 84, 98, 154, 162, 163, 164 Well Blowout Control (WBC) claim, 17–18 wetlands, 86–87 Wilde, Larraine, xiii, 24, 95–104 wildlife habitat claims, 182–83 Working Capital Fund of the United Nations, 10
