The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Cambridge University Press has just published "Distribution of Responsibilities in International Law," edited by professors André Nollkaemper of the University of Amsterdam and Dov Jacobs of Leiden University. They have put together an impressive volume dealing with situations where multiple states or international legal entities may share legal responsibility for a given situation. I have a chapter in the book dealing with piracy, with some unexpectedly relevant insights into inter-state responsibility for migrants and refugees.
Here is the publisher's description of the book: "Drawing on disciplines such as political theory, moral philosophy, and economics, this volume enquires into the bases and justifications for apportionment of responsibilities that can support a critique of current international law, offers insight into the justification of alternative interpretations, and provides inspiration for reform and further development of international law."
My chapter is "Pirate 'Gaolbalisation': Dividing Responsibility Among States,
Companies, and Criminals." It deals with the problem of international cooperating in piracy suppression, which involves responsibility by many countries (and the attendant free rider problems), as well as intriguing questions of divided responsibility between public actors (navies, courts) and private ones (shippers, security companies).
The chapter focuses on a noteworthy example of shared responsibility that has emerged in the counter-piracy context. While all nations have in theory a duty to repress piracy, a market-type mechanism has evolved for implementing this duty. Nations with a comparative advantage in maritime security capture the pirates, while those with more streamlined justice systems prosecute them, and a third set of jurisdictions incarcerates them. Each level of piracy suppression is provided by the most efficient set of jurisdiction, with side payments between them.
The international response to Somali piracy has developed into a complex, multi-sided enterprise in which international law enforcement duties are disaggregated among states. The traditionally unified functions of policy, prosecution and incarceration have been divided and assigned to different countries, based on considerations of economic efficiency and comparative advantage.
The chapter concluded by showing how the international legal response to piracy—in which various countries contract among themselves to assign particular functions to more efficient jurisdictions—is also being applied to dealing with migrant flows. Australia, Israel and now the European Union are finding ways to redistribute responsibility among states population flows. Just as arresting states have created a market for piracy prosecution and detention, refugee recipients can create a market for refuge.