Apportioning Responsibility Among Joint Tortfeasors for International Law Violations

Last spring I spoke at a Pepperdine torts conference addressing the globalization of tort law. Lots of famous torts scholars in the room, including my former classmate at NYU, Harvard Professor Jonathan Goldberg. I was the only international law guy in the crowd, which actually worked to my advantage given the topic. I chose for my topic what domestic tort law might be able to teach international law about apportioning responsibility among joint tortfeasors.

As of late I have been feverishly working on the symposium paper, and I have come to believe that there is a tremendous amount of fruitful research that could be done regarding the nexus between international law and domestic torts. It is a topic that intersects both public and private international law, a perfect issue for a guy like me who labors in both fields.

Of course the issue of apportioning responsibility for international violations is particularly relevant today, as non-state actors are increasingly charged with aiding and abetting human rights violations. Everyone is focused on whether corporations have rights and duties under international law and, if so, the appropriate standard for aiding and abetting liability (the “purpose” test vs. the “knowledge” test). Curiously, no one is focusing on whether corporations should be jointly and severally liable for a violation, or just severally liable. If a corporation was a minor player in an international law violation, should it be stuck with, say 10% of the damages, or 100%?

One of the issues that I have uncovered is whether public international law or private international law should govern the question of apportioning responsibility, and in making that determination if it matters whether the forum is a domestic court or an international tribunal. I’ll save that for a later discussion.

Assuming for the moment that public international law controls the question of apportioning responsibility, there is a vexing problem as to whether the traditional international law rule of individual liability should be applied, or if one should discern a general principle of international law based on the prevailing practices in most domestic legal systems, which arguably would impose joint and several liability on all joint tortfeasors.

Commentary to Article 47 of the ILC’s Draft Articles on State Responsibility states that:

It is important not to assume that internal law concepts and rules in this field can be applied directly to international law. Terms such as ‘joint,’ ‘joint and several’ and ‘solidary’ responsibility derive from different legal traditions and analogies must be applied with care. In international law, the general principle in the case of a plurality of responsible States is that each State is separately responsible for conduct attributable to it…. The principle of independent responsibility reflects the position under general international law, in the absence of agreement to the contrary between the States concerned.

But does that conclusion also apply now that non-state actors are subjects of international law? If a corporation, an individual, and a State jointly decide to torture someone, does the ILC rule of “independent responsibility” apply? By way of comparison, a review of most major legal systems reveals that joint and several liability is the norm for torts in which the parties acted in concert. If that is so, then one might fashion a general principle of international law from such practice and conclude that joint and several liability is appropriate.

So which is it? No one seems to be asking the question or thinking through possible answers. I’ll say more once the symposium piece is finished, but I just wanted to flag the issue for our readers now.