구성주의 국제관계이론과 국제법: 자결권을 중심으로

Although international politics or international relations(IR) and international law(IL) as disciplines have a common academic interest in investigating the nature of international society, there has been little meaningful scholarly dialogue between them. This is largely due to the perception that IL is essentially a ‘normative discipline’, thus it is very difficult to pursue academic collaboration with IR, because the academic objective of the latter is to analyze causal relationships of social phenomena by means of scientific research. However, the end of the Cold War, which was concluded without devastating military conflicts, has triggered the pursuit of academic collaboration between these two distinct but related disciplines for the exploration of the fundamental features of the new international order. This has been initiated and pioneered by a group of liberalist-oriented IR and IL scholars whose scholarly research focuses on the importance of international norms and organizations in understanding the operations of international society. With these academic streams in mind, this article attempts to examine the implications of constructivism, which is being regarded as the most recent IR theory within which international law is considered as critical in the development of international society. Constructivism places great weight on the utility of the social theoretical approach to understanding the nature of international society and is primarily concerned with the importance of ‘identities’ and ‘interactions’ of international actors in appreciating the characteristics of international society. According to the views of the constructivists, states, as main actors of international society, are basically ‘social beings’ which could pursue common interests and values by way of internalizing international norms and socialization processes, not(as realists argue) as passive beings absolutely dominated and limited by the structure of international society. In any society, as actors behave in the way that is influenced and reflected by diverse norms, customs and values, from the perspective of constructivism, international law is one of the critical elements for the maintenance of international society. For constructivists, international law is a dynamic set of rules and principles, not simply a set of static and fixed given rules. International law is understood as a comprehensive normative system which is subject to constant interactions and communicative processes among diverse international actors, such as states, international organizations, non-governmental organizations, individuals, etc. In particular, constructivism shows its persuasive argumentative aspects regarding the discussion of the implications of the right to self-determination, the essence of which remains obscure in contemporary international law. The problem of vagueness and ambiguities of the nature of the right to self-determination, although declared as a peremptory norm of international law by the ICJ, may be partially resolved by the constructivist approach to the issue within which the nature of the right to self-determination is investigated in a dynamic way that puts great emphasis on the communicative processes between international actors centered around the principle of self-determination. The fact that the ICJ, in its advisory opinion on Kosovo’s declaration of independence in 2010, could not provide clear and detailed accounts of the essence of the right to self-determination with reference to such fundamental self-determination issues, as dimensions of external and internal self-determination as well as the relationship between the right to self-determination to the right to democracy and others, also indicates eloquently that the understanding of the status of the right to self-determination has not been yet shared confidently among international actors. This also reveals that constant communicative processes for the nature of the right to self-determination will be needed more and more among international actors in the contemporary international legal order. From the interpretations of the constructivists, particularly those who have been influenced by Habermas’s communicative action theory, the right to self-determination has been developing and evolving in a ‘people-centric’ way through the continuing communicative processes among international actors. In this way, constructivism opens up new possibilities for a more persuasive and multi-dimensional understanding of core topics of IL including the right to self-determination, which goes beyond traditionally established theoretical frameworks of legal positivism and natural law theories.