A/HRC/36/44
State. Unlawful assertion of jurisdiction through extraterritorial application of domestic
(sanctions) measures, to the extent that it results in adverse effects (economic or otherwise)
on third countries, should also entail the international responsibility of the targeting State.
V. Options for the establishment of specialized compensation
commissions for victims of unilateral coercive measures
41.
The Special Rapporteur has previously mentioned the possibility of establishing a
compensation commission for the purpose of providing effective compensation to victims
of unilateral coercive measures (see A/HRC/33/48, paras. 48-50 and 74). It is submitted
that this option would be the clearest way to ensure general availability of remedies for
victims since, to date, few international forums are available to victims, whether States,
individuals or entities, as a matter of fact and law, and there remains a measure of
controversy as to the competence of United Nations human rights bodies to address claims
based on the effects of imposition of unilateral coercive measures.
42.
It is submitted that such a compensation commission could draw on the model of
past similar mechanisms, which were most often created to address the need to provide for
remedies for victims of armed conflict. In particular, the precedent of the United Nations
Compensation Commission should be considered. The Commission was established as a
subsidiary organ of the Security Council by resolution 687 (1991), with a mandate to
review, decide and pay the claims for which Iraq was liable as a result of its unlawful
invasion of Kuwait.37 Despite criticism of the Commission, related mainly to the politicized
circumstances of its creation, the lack of application of the rule of law in the adjudication of
claims and the origin of the resources allocated to the victims (which were diverted from
Iraqi oil export revenue), lessons may be drawn from the functioning of the Commission,
and some of its features are of direct relevance to the right of victims to seek reparations for
violations of human rights.
43.
An enquiry may also need to be conducted on the relevance of other compensation
commissions, whatever their title. A number of such mechanisms were set up in the past,
whether by agreement between the States concerned or by decision of the Security Council.
44.
Such a compensation commission could be set up under the Security Council or,
alternatively, be established by means of a multilateral convention negotiated under the
auspices of the United Nations.
45.
An important issue is that of the resources and financing of the compensation
commission. States which have imposed unilateral coercive measures on other States could
be called upon to contribute financially to it. It is also submitted that one pragmatic
possibility for the financing of the compensation commission would be to provide for the
diversion of all or part of the financial contributions of the targeted State to multilateral
financial institutions and its subsequent allocation to the compensation commission,
without any negative consequence for the targeted country. The latter would therefore
retain its full membership rights, including voting rights, in the multilateral financial
institution(s) concerned, as if the contributions had not been diverted.
46.
The institutional features and modalities of functioning of the compensation
commission call for special attention. A preliminary issue to be addressed is whether it
would be preferable to establish a single, all-purpose compensation commission for all
existing sanctions regimes or, alternatively, several compensation commissions, each
designed to provide for the reparations of damage suffered by victims of a single sanctions
regime.
37
12
See M. Frigessi di Rattalma and T. Treves, eds., The United Nations Compensation Commission, A
Handbook (The Hague, Kluwer Law International, 1999); H.M. Holtzmann and E. Kristjánsdóttir,
International Mass Claims Processes: Legal and Practical Perspectives (Oxford, Oxford University
Press, 2007).
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