Concerted Adjudication in Cases of Shared Responsibility
SHARES Research Paper 40 (2014), ACIL 2014-17
Published in: (2014) 46(3) New York Journal of International Law and Politics 809-847.
In this article, I address the question of the grounds on which an international court that is asked to determine the responsibility of a state and the possible consequences thereof should attach weight to prior judicial findings by different courts in relation to other actors that have contributed to the same harm and who on that ground can be considered co-responsible parties.
The paper argues that in situations where multiple parties contribute to an indivisible harm, there are good reasons for a court that adjudicates claims against one contributing actor to consider and attach weight to judgments of other courts in relation to other contributors. This will allow the court to get a fuller factual account of the various contributions to the harm and their interrelationship, and to better assess the scope of shared responsibilities. In this respect, that concerted judicial action is a proper response to the concerted state action that results in shared responsibility. However, the paper also indicates that international law provides little guidance as to the role and weight of determinations made by other courts in the construction of shared responsibility. The procedural uncertainty of the role and weight of cross-judging reflects a more fundamental uncertainty on, and tension between, the underlying principles of shared responsibility, from which procedural law should derive its direction.