Applications of the New Haven School: Student Scholarship

by Jose Minan

The third panel of the Young Scholars Conference presented student scholarship that applies the lessons of the New Haven School to current international legal problems. The student presenters offered empirical analyses of contemporary phenomena ranging from Geneva Convention compliance to the WTO Dispute Resolution Mechanism, with responses from moderators Paul Dubinsky, Noah Novogrodsky and Beth Van Schaack. Within each piece of scholarship, fundamental principles of the New Haven School, particularly norm creation and process, were scrutinized for relevance to contemporary international issues.

The first presenter, Michael Gottesman, analyzed why states abide by the Geneva Convention and examined the role which reciprocity plays in such situations. His work, Revising the Golden Rule: Reciprocity and the Geneva Conventions in Modern Conflicts, employed quantitative analysis to examine the treatment of prisoners-of-war in interstate conflicts, particularly whether the actions of State A towards POWs from State B dictated how State B treated POWs from State A. In examining what has happened “on the ground,” Michael found that considerations of reciprocity do matter in determining how states treat one another, even in the absence of an explicit requirement of reciprocity in the Geneva Conventions. In his response to the paper, Noah Novogrodsky noted that it would be essential to define exactly how reciprocity applied in the current context – between and among which legal actors.

Nicole Hallett, in her work National Human Rights Institutions: Bringing Human Rights Home, approached a key component of the New Haven School (the process of norm internalization) and considered its applicability in the role of NRHIs. Since the 1970s, there has been a massive proliferation of NHRIs. NHRIs intersect the domestic and international realm. As quasi-judicial bodies that link governmental and non-governmental entities, they provide conduits through which states can create norms and internalize them. While the theory offered useful insight, moderator Paul Dubinsky observed that it would also be helpful to consider the alternative – whether NHRIs actually impede progress in internalizing human rights norms by giving the mere appearance of progress.

Ji Li’s “See You in Court!” to “See You in Geneva!” An Empirical Study of the Role of Social Norms in International Trade Dispute Resolution scrutinized whether some countries remain more willing to use international adjudication—in this context, the WTO Dispute Settlement Mechanism (DSM)—than other countries. Noting that few have paid attention to the area of trade in examining normative theories, Ji employed statistical analysis to find that more litigious countries (those with higher lawyer/population ratios) were in fact more litigious in the WTO DSM. Li concluded that social norms matter in considering dispute resolution behavior and decision-makers’ motivations. Professor Dubinsky offered that, while different cultural approaches to conflict resolution are important, it must be equally important to examine how that culture would distinguish between insiders and outsiders with the possibility for varying effects in international adjudication.

The final paper, presented by Dakota Rudesill, examined the Revolution in Military Affairs (RMA) and whether the RMA brought with it greater responsibility for unintended casualties in armed conflict. The paper, Precision War and Responsibility, concludes that, though there is a duty of care between the military and civilians, the RMA cannot be viewed as mandating a duty of perfect effects (i.e. governments cannot be held strictly liable for the unintended effects of their military actions). Rudesill observed that the migration of duty of care norms—from domestic common law up to international tribunals, over to international agreements, down to domestic military policy—was consistent with the New Haven School’s transnational norm diffusion. What began on the state level (a simple duty of care, as in tort law) moved up to the international arena with the Nuremburg and Far East trials, then laterally shifted to the Geneva Protocol I in Article 57’s precautions against attack, and then moved back down to the state level in state military regulations and pamphlets requiring armed conflicts which take reasonable precautions to reduce risk and unintentional harm.

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