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Epistemic Forces in International Law

Foundational Doctrines and Techniques of International Legal Argumentation

Jean d’Aspremont

Epistemic Forces in International Law examines the methodological choices of international lawyers through considering theories of statehood, sources, institutions and law-making. From this examination, Jean d'Aspremont presents a discerning insight into the way in which international lawyers shape their arguments to secure validation within the international law community.
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Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

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What are international mass claims commissions?

Righting Wrongs after Conflict

Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

International Mass Claims Commissions (IMCCs) are ad hoc bodies whose structure, jurisdiction, procedure and ability to provide remedy vary considerably. Chapter 1 analyses their common features, including the fact that IMCCs are ad hoc binding dispute resolution mechanisms, which are structured and act like judicial bodies. They are created after an event of international relevance, and are international law instruments which engage the responsibility of states. The chapter clarifies the differences between IMCCs and other similar domestic and international mechanisms that may share some, but not all, of the characteristics of IMCCs. It offers an historical overview of IMCCs and an initial introduction to the most relevant modern examples of IMCCs, including the Iran–US Claims Tribunal, the United Nations Compensation Commission and the Eritrea–Ethiopia Claims Commission. List of Keywords: definition of claims commission, characteristics of claims commissions, differences between IMCCs and other similar instruments, historical IMCCs, Iran–US Claims Tribunal, United Nations Compensation Commission and the Eritrea–Ethiopia Claims Commission.

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Why a claims commission?

Righting Wrongs after Conflict

Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

For any particular international dispute, there might be any number of different ways of peaceable resolution, some legal and others political or diplomatic. Claims commissions are a form of international arbitration that provide particular benefits, chief among them flexibility and the voluntary involvement of the parties in the creation and workings of the litigation. They are distinctive in that they focus on compensatory justice for violations of international law. Mass claims disputes are jurisdictionally and procedurally ill-suited to any currently existing standing court. For this reason they serve the interests of the international community as well as the interests of the state parties that create them. List of Keywords: Ad hoc litigation, arbitration, flexibility, party consent, interests of the international community.

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The legal and operating structure

Righting Wrongs after Conflict

Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

Chapter 3 explores the legal and operational structures shared by the IMCCs examined in this book. The discussion of legal structure focuses on how the scalability and procedural and substantive legal flexibility of the arbitral model allow parties to craft a vehicle that lends itself to efficient resolution of mass claims. The discussion of operational structure focuses on the human element: the process of selecting and vetting a qualified panel of commissioners to undertake the work of the IMCC and the unique role of the president in overseeing the entity. It also discusses the particulars of creating an administrative support structure to assist the panel. List of Keywords: Legal characteristics of IMCCs, party structure, party autonomy, qualifications of commissioners, role of the president, role of the secretariat/registry.

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Who are the claimants and what are the claims?

Righting Wrongs after Conflict

Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

This chapter examines the kind of claimants to whom an international claim process is open and the types of claims that those selected claimants can bring for resolution and compensation in front of a claims commission. All IMCCs recognize states as claimants, either on their own behalf, or on behalf of their nationals. Certain claims commissions, notably the IUSCT, accepted claims filed directly by both natural persons and corporations. International organizations generally cannot submit claims, though the UNCC provided they could submit claims on behalf of certain individuals. In parallel to the kinds of claimants, the choice of the types of claims that will be heard by the IMCC is also key to its success. Certainly, the kind of claims is strictly linked to the events that resulted in the creation of the IMCC and to the types of losses and injury suffered. Thus, claims heard by the IUSCT mostly related to contracts, while claims submitted to the EECC predominately relate to breaches of humanitarian law. List of Keywords: types of claimants, states as claimants, individuals as claimants, types of claims, number of claims, small and large claims.

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The financial structure of claims commissions

Righting Wrongs after Conflict

Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

Chapter 5 explores the financial issues that arise as an IMCC decides how to conducts its affairs and calibrate its ambitions to its resources. Because detailed, comparable financial data for IMCCs is unavailable, the discussion augments the experience of the three IMCCs that are the primary subject of the book with four additional IMCCs. The discussion begins with a description of funding mechanisms and how these mechanisms affect not only operational costs but whether an IMCC can successfully discharge its mandate. A final section discusses the various categories of costs that IMCCs might incur and how they relate to each other. List of Keywords: funding of an IMCC, security of funding, financial management, categories of cost, drivers of cost, the role of technology.

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Problems of proof and evidence

Righting Wrongs after Conflict

Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

Ad hoc tribunals must deal with novel procedural questions as they proceed through litigation. This is particularly so with IMCCs, which are difficult to manage and present difficult problems of admissibility and probative value of evidence. IMCCs tend toward flexibility and permissiveness. Because the commission itself is the finder of fact, it is not essential that admissibility be used to prevent consideration of irrelevant or prejudicial materials. The greatest evidentiary problem that most IMCCs are likely to face is the establishment and application of a fair standard of proof. List of Keywords: burden of proof, standard of proof, admissibility, finder of fact.

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Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

Compliance is likely to be problematic in any international adjudication because, given the absence of any world government, failure to comply cannot be met with a show of force. This regrettable but unavoidable fact of life requires careful attention to the possibility of other means of ensuring compliance. Several of the modern mass claims compensation commissions have operated by first providing a fund from which judgments can be paid, but this is a difficult strategy to pursue unless the parties have large assets under the control of the international community. Set-offs seem to be an obvious and practical solution to symmetric compliance issues, but in fact they create more problems than they solve. List of Keywords: remedies, compliance, set-offs, strategic planning.

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Conclusions

Righting Wrongs after Conflict

Lea Brilmayer, Chiara Giorgetti and Lorraine Charlton

Chapter 8 summarizes the basic points made throughout the book, highlighting some common themes. The insights developed in the first seven chapters are applied to the possibility of a mechanism for compensation for “loss and damage” due to global climate change, which seems to have been contemplated by the drafters of the Paris Agreement List of Keywords: climate change, Paris Agreement, future applications of the IMCC model.