First, Koskenniemi's talk was woven with the thread of historical contingency. I could not help thinking about the remarks as an application, in a very specific context, of Ibn Khadun's notions of historical cyclicity, not as imitation (there was a rejection of the error that one is doomed to repeat history precisely). Rather it was a nod toward the patterns of human behaviors that was refreshing, especially against the premise of orthodoxy that is still considerably invested in progress and culmination.
Sixth, and thus the enchantment with the tools of international law are (to mix metaphors) poisoned chalices. One uses them with the same foreknowledge that the Emperor Claudius ate the the poisoned mushrooms offered to him by his wife Agrippina to ensure the succession of her son Nero (Suetonius Claud. 43, 44). this is the sort of preservation that is ultimately fatal. That should be the ultimate disenchantment with the project of international law as instrument.
Seventh, the fatality of the instrumentalization of international law is something that cannot be avoided. The proffer of a solution to the problem of disenchantment only served to underline the futility of any such project. In the end all Koskenniemi could offer was lessons in shipbuilding on board the Titanic. We are all prisoners of the logic of the intellectual communities we serve. . . however much we undertake the role of Cassandra.
Seventh, listening to Pinto after Koskenniemi is like looking through the reverse side of a mirror. Here is the epitome of the conventional orthodoxy whose apogee was achieved in the 1990s on full display and in all of its exuberant confidence. That is critical, and innocent in the sense of lacking any sense of the danger that lurks around them.
Eighth, that innocent is abetted by the way that they have constructed the view of the world around them. Pinto could proudly (and deservedly so) point to the markers of 40 years of achievement to make the claim about the value of international's instrumentalism. Here one sees the vastly different view of onstrumentalism that separated Pinto from Koskenniemi--the former sees the instrument as indivisible from the normative structures that define it; the later sees the instrument as a thing apart from any specific normative content.
Ninth, as a consequence, when Pinto celebrates international law's instrumentalism, she is effectively celebrating ts core attributes--what she offers is a glorious paean to internationalization, judicialization and legalization bot as tools as as the normative values through which these were forged.
Tenth, it is in this light, of course, that Pinto can see what distresses Koskenniemi (his disenchantments) as the shaping of enchantment in the form of dialogue, tensions that produce progress, and the subsequent accomplishment palpable in preserving norms. Dialogue is easiest amongst (ideological) neighbors; that is the seed of instrumental progress through regional human rights and other international bodies producing an impetus in turn from regionalism to internationalization—it is a tale of regional human rights courts. But as well it is a tale of the triumph of internationalized human rights legalities against states and their sui generis constitutional orders
Eleventh, this optimistic progress infused view makes it all the easier to explain setbacks and failures. IN the context of the failures in Syria and Venezuela, such failures are explained as not a problem with the rules but in the failures of actors to follow them.
Twelfth, Pinto's analysis acquires it power through its focus. The focus of course are all on the elites and their interactions; the humble are the objects of these subjects of internationalization, of judicialization, and if legalization. One sees the rose; avoids thorns but unites the roots. But perhaps it is the roots that are the heart of the plant towards the welfare of which flowers leaves and thorns work.
Is Koskonniemi right? Is Rome burning while it’s elites focus on fiddle parties; are instrumented elite tools and if so should that worry us? Does Pinto have a point--these sorts of changes have always been an elite project with a slow socialization among the masses over time. That view in turn parallels the Leninist view of party work in a dictatorship of the proletariat (a view that in this political guide the liberal democratic West rejects even as it adopts in form in the context of the march of human rights and internationalist instrumental regimes).
Certainly form a Chinese Marxist perspective Pinto has the better of it. At the core of the rejection of Western forms is the premise that one cannot separate the ideology from the tools and that therefore adoption of Western tool sin governance necessarily brings the corruption of Western ideology. If that is indeed the case then Pinto's core assumptions have power. Yet Koskonniemi insight is also powerful--generalized ideology is of little practical effect in context. What matters more is the insight that the tools might be infused with a singular normative force given the proclivities of those who wield them now; and those proclivities are infinitely malleable. Either way, the pessimism lingers. There is nothing to suggest either that this elite project will deepen or that it will not be wielded differently when those who embrace distinctly different normative sensibilities.