Thursday, March 28, 2019

Brief Thoughts on the 2019 Grotius Lecture at the ASIL Annual Meeting: Martti Koskenniemi, "Enchanted by the Tools? International Law and Enlightenment" in Light of Mónica Pinto's Address, "International Law as an Instrument: Dialogues, Tensions, and Accomplishments

It was with great anticipation that I attended the 2019 Grotius Lecture at the Annual Meeting of the American Society of International Law.  This year's speaker, Martti Koskenniemi was bound to deliver insights not quite orthodox, even as they adhered to the spirit of orthodoxy in a loving kind of way.  He did not disappoint. 

Professor Koskenniemi's lecture, entitled, Enchanted by the Tools? International Law and Enlightenment, played with and against the theme of the 2019 ASIL Conference--International Law as an Instrument, as well as against the orthodoxies it was meant to underline, well brought out by Professor Mónica Pinto of the University of Buenos Aires in her ASIL Assembly Keynote Address: International Law as an Instrument: Dialogues, Tensions, and Accomplishments

Both addresses are worth considerable reflection. The Grotius Lecture may be accessed HERE.  Professor Pinto's keynote is available here. What follows are a few very brief personal reflections on the reactions they elicited .

Koskenniemi's Disenchantment:

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. 

Second, I heard the remarks as a sort of nostalgic silver age look back at a embers (the heat of which could still be felt) of a golden age. The apogee of that golden age was the 1990s.  One can understand that view. The flush of possibility (and the arrogance, intellectual and otherwise) was that unleashed in an era when it was possible to surmise that anything was possible with the projection of a set of normative positions that then seemed both eternal and universally embraced (at least by the people who count) was then irresistible. But all of its great promise--some realized or on the road to realization--now seems ever more remote in an age of resistance, and of exhaustion.

Third, that notion of exhaustion was also palpable.  There was a sense of intellectual exhaustion, of political exhaustion, and of cultural exhaustion in the face of a resistance borne of the relentless reminder of the abyss (one common to all projects of this kind, but no matter) between the promise of international law's normative regimes, and the realities of its implementation, especially in those "lecturing states" whose example showed its failures rather than its possibilities. 

Fourth, cynicism appears to color the instrumentalist golden thread that serves as the weft for the weaving that is this silver age of international law's project.  Professor Koskenniemi did not embrace cynicism so much as acknowledge its power to drive international law's project. And yet that acknowledgment itself suggested both the connection between cynicism and instrumentalism, but also the corroding effect of cynical instrumentalism on the normative warp of the international law project's normative weave.

Fifth, there is a short road from cynicism to fear. . . .or at least worry.  And indeed, the sense of fear--well hidden behind the elegantly turned phrases that marked the lecture--bubbles just beneath its surface.   There is a fear that we have not moved from a golden to a silver age, but rather that the entire multi-century project is itself in peril. There is a fear, as well, that the project will become something a a zombie (and thus the wefting quality of cynicism in the international law project.  That is,  there is a fear that the instruments of international law will lose entirely their normative bearings; and so shorn of its principles, become useful to any group for any ends. Instrumentalism owes no allegiance and serves equally any master with the will and capacity to wield it.

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.  

Pinto's Enchantment

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.

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