Haven School Research Articles

Rosalyn Higgins on International Organizations and International Law: The Value and Limits of a Policy-Oriented Approach

Abstract Taking an approach to international law that embraced key features of the New Haven School, Rosalyn Higgins has made several important contributions to the law of international organizations. In 1963, at a time when no theory had addressed the work of the United Nations’ (UN) political organs, Higgins showed how General Assembly resolutions and other decisions contribute to the development of customary international law. She also demonstrated that, separate and apart from UN member states, the UN Secretariat was contributing to the development of customary international law regarding treaties. Later, as counsel for the International Tin Council and later rapporteur for the Institut de Droit International, Higgins put on the global agenda the issue of the accountability of international organizations for harm to third parties, highlighting gaps in existing law and competing policy concerns that precluded easy solutions. Higgins made two contributions in marking the path forward for theorizing about international organizations, one substantive and the other methodological. She highlighted the importance of considering international organizations in relation to the full range of actors with whom they interact, including private parties. As a methodological matter, Higgins demonstrated the value of an inductive approach where legal claims are grounded in close, detailed and careful observations of how international organizations actually operate.

The New Haven School Matters: An Inquiry into Insights of the Policy-oriented Jurisprudence for the Pedagogy of International Law in Iran

While the scope of the theories of international law has expanded over the past decades, the formalist rule-oriented approaches are still dominant scholarly traditions in Iranian legal studies. Describing the internal structure of the New Haven School of international law, the author suggests that the Iranian community of international law may embrace the methodological frame of policy-oriented jurisprudence in doctrinal legal research. It is an irrefutable fact that the rule-oriented schools (including positivism and natural law) could provide compelling insights into some features of international law; however, a profound understanding of the dynamic and changing process of international lawmaking requires moving beyond a set of supposedly fair and neutral legal rules. The policy-oriented perspective has provided a variety of intellectual tools and concepts (including the elements of the world constitutive process: participants, perspectives, arenas of decisions, bases of power, strategies and outcomes) to identify and influence the comprehensive process of authoritative decisions.

The Dead-end of the New Haven School of Constitutional Law

The Dead-end of the New Haven School of Constitutional Law

Transnational Law, Domestic Courts, and Global Governance

This working paper, which will not be submitted for publication, has been replaced by two separate articles: (1) Domestic Courts and Global Governance, 84 Tulane Law Review 67 (2009), which presents a substantially revised version of the conceptual and methodological argument; and (2) The Evolving Forum Shopping System, 96 Cornell Law Review (forthcoming), which contains an empirical analysis of forum non conveniens decisionmaking. If citing, please cite these new versions. Please do not cite this older working paper without the author’s permission.] Domestic courts are global governors. In the United States federal courts alone, thousands of disputes arising out of activity are heard each year. Substantively, the decisions of courts in these cases allocate resources among actors. Jurisdictionally, they allocate authority among sovereign states. When domestic courts publish their litigation decisions, they not only directly affect the litigants; they also provide information about how they are likely to decide similar cases in the future, information that can indirectly influence the strategic behavior of actors beyond a particular dispute. Yet the of activity by domestic courts - which I refer to as transnational judicial governance - has received little scholarly attention, even though legal scholars and political scientists have long appreciated the role of domestic courts in the of domestic activity, and are increasingly interested in the role of international courts in the of both domestic and international activity. As a result, we have a very limited understanding of how domestic courts behave as global governors, and why they govern the way they do. In this paper, I propose a governance-oriented approach for analyzing law aimed at improving our understanding of judicial governance. In Part I, I clarify the concept of judicial by exploring the global implications of judicial decisionmaking in litigation, and I attempt to demonstrate the importance of judicial as a distinct object of study. Part II describes the governance-oriented approach, including its focus on law in action and on the broad implications of domestic court decisionmaking for activity, and notes its affinities with legal realism and the New Haven school of international law. Part III illustrates the governance-oriented approach by applying it to the doctrine of forum non conveniens, using an original dataset of over 200 forum non conveniens decisions made by U.S. district court judges to evaluate this example of judicial according to the rule-of-law values of predictability and impartiality. Part IV concludes by using Part III's findings to asses whether domestic courts can effectively foster rule of law.

Educating American Lawyers: The New Haven School’s Jurisprudence of Personal Character

Abstract Using previously unexploited archival sources and unpublished teaching materials, this article rereads Harold Lasswell and Myres McDougal’s earliest 1943 statement of policy-oriented jurisprudence – what would become known as the ‘New Haven School’ – and examines their wartime careers in government and academia. It breaks with widely held current understandings of the New Haven School. First, Lasswell and McDougal’s work is re-periodized. Instead of a reactionary answer lawyers offered to international relations realists in the 1940s, I argue that policy-oriented jurisprudence was a product of interwar insecurities and the rising culture of American modernism from the 1920s. Second, notwithstanding frequent associations of the jurisprudence with interventionist, anti-communist American foreign policy during the Cold War, the article emphasizes Lasswell and McDougal’s engagement with progressive politics of the early 20th century – New Deal social planning and redistribution; psychoanalytically inspired social critique; Marxism and socialism. Third, I argue that the school’s primary intellectual origins are to be found not in American legal realism or positivist social science, but in philosophical pragmatism and psychoanalysis.

The UE-Vietnam Free Trade and Investment Protection Agreements: Legal and Economic Perspectives

Purpose: On 1 August 2020, the EU-Vietnam Free Trade Agreement went into force. After completing the EU-Vietnam Investment Protection Agreement's ratification, the two agreements will create the legal basis of strong economic relations between the parties. However, we argue that these agreements are an element of a broader strategy, pursuing the EU's economic and socio-political goals. Design/Methodology/Approach: The research is interdisciplinary, economic, and legal. We analyze the process of establishing the legal framework of EU-Vietnam relations and its context in the New Haven School's application schema, combining it with rational choice. The research was conducted based on public statistics and analysis of the literature on the subject. Findings: The EU pursues a policy of through trade. The agreements deepen Vietnam's participation in the universal economic and social system based on the UN Charter's values. They also strengthen the institutionalization of pluralism in relations in the Asia region and institutions and countries outside the region. Practical Implications: EVFTA and EVIPA represent a new approach of the EU to trade agreements and how to influence international relations in a system where the U.S. have lost their status as the only superpower, and China seeks to become a real global superpower. Realizing this change in EU trade policy is important for all Member States and other international relations actors. Originality/Value: The paper discusses important and current issues related to EU trade and investment policies and can develop future policy scenarios.

Universal Scale Tipping towards Balance-Applying the MFN Clauses in China-related Investment Arbitration: A New Haven School Reading

The extension of MFN clauses to dispute settlement under BITs is one of the most controversial areas in investment treaty law. Currently, the area is divided into two streams of case law. The award in Tze Yap Shum v Peru and other recent Chinese investment arbitral awards did not side the Maffezini stream. The question on which stream works the best for China is complicated and essentially a balancing exercise. This article examines the question from a Chinese perspective and adopts the analytical framework of the New Haven School. It identifies the issue of comparability of more preferential treatment as the key criterion in determining the question. It reviews the previous case law and assesses the economic, social and cultural factors shaping the Chinese investment policy. From there, the article seeks to discover if the current law helps fulfil China’s policy goals and proposes recommendations accordingly.

Whither the Principle of Self-determination in the Post-colonial Era? Building the Case for a Policy-oriented Approach

Abstract It is no secret that, since the end of decolonization, the principle of self-determination of peoples has been going through a veritable identity crisis. On the one hand, inconsistencies and double-standards are so commonplace in international practice as to justify the doubt that the law of self-determination is, in fact, power politics in disguise. On the other hand, a significant portion of the international community maintains that the principle has exhausted its historical function and applies only to a very limited number of cases (e.g. Palestine and Western Sahara). Yet self-determination of peoples is still well entrenched in international legal life. Against this background, international lawyers have been called upon to clarify how the customary principle on self-determination has changed in order to meet the challenges posed by the new global order. So far, however, the various attempts to overcome the colonial paradigm have not led to satisfactory results, being doomed to capitulate in the face of the fact that international practice in this field is either too sparse or is inconsistent. The main reason for this difficulty lies in the tendency to conceive of the law of self-determination in a traditional, ‘static’ fashion, as a set of clear-cut rules whose content has to be distilled, ultimately, in the light of accumulated past decisions. I will argue, by contrast, that the principle should be looked at in its ‘dynamic’ aspect, viz. as a ceaseless process through which the international community provides an authoritative response to demands for self-determination. My working hypothesis, specifically, is that a valuable contribution to such an investigation may be offered by the policy-oriented jurisprudence developed by the so-called ‘New Haven School’ of international law (NHS).

A typology of local governments’ engagement with human rights: Legal pluralist contributions to international law and human rights

Local governments around the world have been engaging with international law and policy at an exponential intensity, with prominent engagement in climate change, migration and more recently human rights. This engagement cannot be adequately understood within the terms and framework of positive international law alone. This contribution aims to map and create a grounded typology of local government engagement with human rights, encompassing both activities within their localities and outside - at national, international or transnational scales. The article introduces local governments’ engagement in the Formation of Human Rights, Implementation of Human Rights, Defence of Human Rights, Coordination of Human Rights, Dissemination of Human Rights and the Contestation of Human Rights as empirical ideal types that have emerged from data through grounded theory. Analysing this engagement from the perspectives of both positive international law as well as legal pluralism, with specific focus on the New Haven School of Law, the article argues that local governments are now at the core of a newly formed norm-generating community. Local governments engage with local and international actors and processes both within the rules of inclusion of contemporary international law-making - seeking to expand these norms to include local governments themselves - but they also contest and challenge the very rules of the game in the first place, and resort to creating “human rights in the city” as a body of norms parallel to international human rights law. Whether we accept a pluralist understanding of international law to include local governments and their human rights engagement, or whether we consider these developments to be outside international law, forming a parallel normative order in the legal pluralist sense, local government engagement with human rights has already succeeded in reaching and influencing many established international actors and has already infiltrated recent instruments of positive international law.

Legality of Autonomous Weapons Systems and their Implications on Existing International Humanitarian Law Principles Approach: New Haven School of International Legal Theory

The objective of this paper is to legally analyze the issues surrounding the use and regulation of Autonomous Weapons Systems (AWS) and their implications on the existing principles of International Humanitarian Law (IHL). The research and mode of approach towards this issue will be directed in consonance with the New Haven School of International Legal Thought. The paper will begin by defining the terms ‘AWS’ and ‘New Haven school’ for the purpose of this study. Subsequently, it will highlight the various notable issues of contention with relation to existing principles of IHL. In doing so, the paper will earmark these issues under the scope of the New Haven method and conclude exclusively to that school of international thought. 
 In its conclusion, this paper will emphasize the need for AWS in today’s world, and how regulation, rather than prohibition, would be the ideal solution towards addressing the conundrum of their legality. It will also distinguish the key elements of the New Haven school and how these were directly incorporated into this paper so as to arrive at the predicated resolution, emphasizing the need for legality of AWS to attain world peace and order.

Whither the Principle of Self-determination in the Post-colonial Era? Building the Case for a Policy-oriented Approach

It is no secret that, since the end of decolonization, the principle of self-determination of peoples has been going through a veritable identity crisis. On the one hand, inconsistencies and double-standards are so commonplace in international practice as to justify the doubt that the law of self-determination is, in fact, power politics in disguise. On the other hand, a significant portion of the international community maintains that the principle has exhausted its historical function and applies only to a very limited number of cases (e.g. Palestine and Western Sahara). Yet self-determination of peoples is still well entrenched in international legal life. Against this background, international lawyers have been called upon to clarify how the customary principle on self-determination has changed in order to meet the challenges posed by the new global order. So far, however, the various attempts to overcome the colonial paradigm have not led to satisfactory results, being doomed to capitulate in the face of the fact that international practice in this field is either too sparse or is inconsistent. The main reason for this difficulty lies in the tendency to conceive of the law of self-determination in a traditional, ‘static’ fashion, as a set of clear-cut rules whose content has to be distilled, ultimately, in the light of accumulated past decisions. I will argue, by contrast, that the principle should be looked at in its ‘dynamic’ aspect, viz. as a ceaseless process through which the international community provides an authoritative response to demands for self-determination. My working hypothesis, specifically, is that a valuable contribution to such an investigation may be offered by the policy-oriented jurisprudence developed by the so-called ‘New Haven School’ of international law (NHS).

How the Behavioural Turn in Law and Economics Vindicates the New Haven School

This article claims that the behavioural turn in Law and Economics vindicates the approach of the pre-turn New Haven School. Available accounts of the turn offer useful methodological insights but are unconvincing, because they tend to oversimplify the literature. Building on these insights, the pre- and post-turn literature are reviewed. In so doing, three levels of analysis—normative, descriptive, and prescriptive—are distinguished. Comparing the two strands of literature shows that some pre-turn positions are more in accord with the post-turn literature than others. Importantly, the approach of the Chicago School—mainstream in the pre-turn literature—has been deeply influenced by the turn, whereas the one of the New Haven School—then subjacent—is substantially compatible with the post-turn mainstream positions. It follows, then, that the turn vindicates, at least theoretically, the approach of the New Haven School.

Whither the Principle of Self-Determination in the Post-Colonial Era? The Case for a Policy-Oriented Approach

It is no secret that, since the end of decolonization, the principle of self-determination of peoples has been going through a veritable identity crisis. On the one hand, inconsistencies and double-standards are so commonplace in international practice as to justify the doubt that the law of self-determination is in fact power politics in disguise. On the other hand, a significant portion of the international community maintains that the principle has exhausted its historical function and applies only to a very limited number of hypotheses (e.g. Palestine or Western Sahara). Yet, self-determination of peoples and its jargon is still well entrenched in international legal life.Against this background, international lawyers are called upon to clarify how the customary principle on self-determination has changed in order to meet the challenges posed by the new global order. So far, however, the various attempts to overcome the colonial paradigm have not led to satisfactory results, being doomed to capitulate in the face of the fact that international practice in this field is either too poor or is inconsistent.The main reason for this difficulty lies in the penchant to conceive of the law of self-determination in a traditional, ‘static’ fashion, as a set of clear-cut rules whose content has to be distilled, ultimately, in the light of accumulated past decisions. I will argue, by contrast, that the principle at hand should be looked at in its ‘dynamic’ aspect, viz. as the ceaseless ‘process’ through which the international community provides an authoritative response to demands for self-determination. My working hypothesis, specifically, is that a valuable contribution to such an investigation may be offered by the policy-oriented jurisprudence developed by the so-called New Haven School of international law (NHS).

International Criminal Courts and Normative Legitimacy: An Achievable Goal?

Like any institution, international criminal courts must be seen as legitimate. The ultimate form of legitimacy that they can aspire to is normative legitimacy, meaning that their work is morally valued even when they issue contentious verdicts. Yet how realistic is it, in practice, for international criminal courts to achieve normative legitimacy? This is the central question that underpins this research, which, as its conceptual starting point, uses Mark C. Suchman’s typology of cognitive, pragmatic and normative legitimacy. Arguing that cognitive and pragmatic legitimacy are the building blocks for constructing normative legitimacy, the article concludes by demonstrating how the so-called New Haven School offers an important point of departure for addressing the practical challenges of achieving normative legitimacy.

Interpreting Exceptions in the WTO Agreement: Lessons from the New Haven School

This paper sets out the theoretical framework for the interpretation of exceptions drawing in particular from the New Haven School’s approach to interpreting international agreements. First, it sets out the anatomy of an exception. Second, it focuses on the issue as to whether existing exceptions in the WTO Agreement are exhaustive, using the China Raw Materials case as a basis for the analysis. Third, it examines the New Haven approach to interpretation with specific reference to the lessons it can avail in the interpretation of exceptions. Finally, there is an analysis of the practice of determining and analysing exceptions in the WTO, in particular where the exception is to be implied. The paper concludes that the WTO interpretative practice is in some respects incrementally reflecting the New Haven School’s approach to interpretation.

The Applicability of International Human Rights Law to the Regulation of International Trade of Genetically Modified Organisms: A New Haven Perspective

This article reviews the applicability of international human rights law to the regulation of international trade of genetically modified organisms (GMO) that may have adverse effects on human life and health. Rights to life and health are recognised by many international agreements as fundamental human rights. This article argues, from the perspective of the New Haven school of jurisprudence, that since the principle of human dignity as a legal source of fundamental human rights is a basic norm justifying all legal regulations and institutions, it must, in case of conflicts with provisions under the GATT/WTO Agreements, have priority over rules for free trade and investment liberalisation. In light of the rights to life and health being core human rights having the status of international custom or jus cogens, the author proposes several policy and legal requirements to ensure human dignity, as applied to regulations of international trade of GMO.

Discussion of T. H. Cheng's Monograph When International Law Works, and in Particular a Defence of the Nicaragua Judgment of the ICJ

In this monograph Professor Tai-Heng Cheng purports to set up a global perspective on the role of international law in international relations, and in particular on the conditions and ways through which it can be effective. The perspective is the one of the ‘rational’ decision-maker, in the best vein of the New Haven school, whose theoretical framework the author espouses completely and thoroughly. The book is a valuable contribution to international legal theory; it is not written in abstract and hollow words, but on the basis of a practical enquiry based on many examples. By adopting this perspective, it provides the reader with many interesting insights. In particular, it is enriching for the European reader, who is not used to this genuinely ‘US–American’ perspective. The various chapters of the book are as follows: ‘Confronting Anxieties about International Law’; ‘The Politics of Theorizing’; ‘Legalism and Morality’; ‘Judges’; ‘Arbitrators’; ‘Regulators’; ‘Legal Advisors’; ‘Officials’; and ‘Law beyond Cases’. The purpose of these lines is not to give a full account of that book. Nor is it to portray the numerous thought-provoking and fruitful aspects of the developments contained therein; nor, by the way, is it to criticize some points on which the ‘Europeans’ will easily disagree with the author, as on what is permitted to the US officials in Guantánamo (p. 227 ff.). The point is rather to spell out some cardinal aspects, which seem to the present author to be weaknesses of the general approach or inadequacies of particular points. The critical approach, which will here be put forward, should not lead the reader to believe that the book presently criticized is devoid of merit. On the contrary, the author of these lines would not have ventured into the exercise of writing an essay on it if he had believed that such was the case.

China’s Preferential Trade Remedy Approaches: A New Haven School Perspective

The proliferation of regionalism and increased use of trade remedies are two of the most remarkable features of contemporary world trade. Under the multilateral trading famework, individual World Trade Organization (WTO) Members still resort to varied trade remedy approaches in their preferential trade agreements (PTAs). China, as a latecomer of regionalism but a major participant in trade remedies, is particularly noteworthy in this regard. This article, from the perspective of the New Haven School jurisprudence of international law, outlines China’s trade remedy provisions and practices in its existing PTAs, analyses and appraises the rationales, outcomes as well as implications of those specific decisions, and forecasts the possible changes and alternatives for the future. It concludes that the current strategies and approaches in making preferential trade remedy arrangements are likely to be maintained even though China would play more important roles in the future international rule-making process.

The New Haven School of Legal Theory from the Perspective of Traditional Chinese Culture

Globalization has brought about an unprecedented degree of interaction and interdependence, not only between nation states but also between states and other entities, ranging from international organizations to individuals. A major consequence of international interaction is cultural exchange; therefore, any legal or social theory which has evolved in a particular society must take account of the socio-cultural context of other societies for it to be meaningfully applied elsewhere. This article argues that this is true of the New Haven School, a policy-oriented perspective on international law, which is rooted in American culture. This article takes the Chinese cultural context as a point of reference for comparative purposes. Traditional Chinese culture is one of the most profound cultures in the world. The influence of traditional Chinese culture on decision making and human behaviour is still obvious in modern China despite the fact that the study of traditional Chinese culture has experienced some setbacks in recent times. This article will examine some aspects of the New Haven School in the context of the values of traditional Chinese culture with a view to determining whether and in what aspects they may complement and supplement each other.

Factoring Cultural Element into Deciding the ‘Likeness’ of Cultural Products: A Perspective From the New Haven School

The ‘likeness’ of imported and domestic products serves as a prerequisite for national treatment under the WTO famework. This article tries to employ the jurisprudence of the New Haven School to examine both the GATT/WTO legislative framework on ‘like products’ and relevant judicial practice in ‘Canada-Periodicals’ and ‘China-Publications and Audiovisual Products’ with respect to GATT Art III (national treatment on internal taxation and domestic regulation). After pinpointing the ignorance of cultural values and associated problems, this article focuses on how to factor cultural elements into deciding the ‘likeness’ of cultural products. Specifically, one way suggested is to analyse the role that cultural elements may play in “consumers’ taste and conception”, one of the four traditional criteria in establishing the ‘likeness’. Another is to revisit the ‘aim and effect’ test so that a certain degree of discretion can be left for WTO adjudicators to consider the legitimate cultural policy objectives behind the Members’ regulatory measures. It is the author’s plea that given the widely recognized duality of cultural products, it becomes necessary to reconcile free trade and cultural diversity in the era of economic globalization. Factoring cultural elements into deciding the ‘likeness’ of cultural products acts as a crucial step towards this goal.