Public Power and Preventive Responsibility: Attributing the Wrongs of International Joint Ventures
Distribution of Responsibilities in International Law (André Nollkaemper & Dov Jacobs eds., Cambridge University Press, 2015)
36 Pages Posted: 9 Apr 2016 Last revised: 8 May 2019
Date Written: 2015
When the actions of lawful joint ventures involving a number of states and international organizations result in global public wrongs, responsibility must be attributed to the participant states or organizations that hold the levers of control most relevant to preventing the conduct in question. This proposed standard (1) builds on the normative trend in international law emphasizing the state’s inherent moral obligation to prevent such wrongdoing, (2) recognizes the vital role of international cooperative ventures in furthering the project of international law, (3) is sensitive to the difficulty of developing systems of contribution and indemnification at the international level, (4) advances the project of deterrence, and (5) preserves the right to reparation. As such, this “power-to-prevent” standard is superior to the dominant preference for one or another formalism (whether “ultimate authority and control,” “overall operational control,” blanket multiple attribution akin to joint and several liability, or even the Nicaragua-inspired interpretation of “effective control”). It would apply to a broad range of international collective enterprises, including multi-national forces, peacekeeping operations, Fronted operations, joint policing, joint anti-piracy patrols, joint prisons, and joint territorial administrations. A broader standard of blanket multiple attribution akin to joint and several liability may be appropriate when the enterprise itself is unlawful.
Suggested Citation: Suggested Citation