The Function of International Law in Modern International Relations: A Constructivist Perspective

Research Article
Open access

The Function of International Law in Modern International Relations: A Constructivist Perspective

Yujia Xie 1*
  • 1 Durham University    
  • *corresponding author npcd44@durham.ac.uk
Published on 27 September 2024 | https://doi.org/10.54254/2753-7048/55/20240132
LNEP Vol.55
ISSN (Print): 2753-7056
ISSN (Online): 2753-7048
ISBN (Print): 978-1-83558-473-6
ISBN (Online): 978-1-83558-474-3

Abstract

Following World War II, the ongoing process of globalisation led to a proliferation of international conflicts and disputes, prompting an increase in the application and regulation of international law. International law, as a legally binding framework for the rights and responsibilities of sovereign states and other entities with international status, has been crucial in reducing global strife, maintaining peace and promoting cooperation. The post-Cold War era coincided with the rise of constructivist theory, which offers a sociological perspective on world politics, emphasising social normative structures over economic material ones. This perspective underscores the influential role of ideas, norms, and culture in shaping state behaviour constructively. Theoretically, constructivist theories within international relations elucidate the legal function of international law while bolstering its authority and status; thereby further explaining its significance within global affairs. The research encompasses three main components: First, an exploration of the theoretical underpinnings of international law and an analysis of constructivism within the field of international relations will be presented. Secondly, a detailed examination of specific operational mechanisms in modern international relations and their contribution to establishing an orderly framework will be undertaken; and thirdly case analysis to examine how these mechanisms have influenced specific events thus revealing their practical impact. Ultimately concluding that as a normative institutional construct, international law has significantly contributed towards rule-making processes conflict resolution efforts as well as maintaining order within global relations while also highlighting that its construction is an ongoing evolutionary process necessitating continual adjustment within the broader context.

Keywords:

International Law, International Relations, Constructivism, International Order

Xie,Y. (2024). The Function of International Law in Modern International Relations: A Constructivist Perspective. Lecture Notes in Education Psychology and Public Media,55,257-269.
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1. Introduction

After World War II, with the continuous expansion of globalisation, the mutual interconnection and interdependence of the international community have been increasingly strengthened. Friendly cooperation between countries in economic trade, political collaboration, and military exercises has deepened. However, international conflicts have also become increasingly prevalent, leading to a complex web of relationships among nations. For example, conflicts such as the Russia-Ukraine dispute are dominated by sovereign state actors. Simultaneously, terrorist activities continue to spread globally. The 911 terrorist attacks in the United States resulted in over two thousand casualties, with an increasing number of ordinary citizens becoming victims of terror violence events. These issues are influenced by globalization and have led to numerous innocent lives being sacrificed and significant disruptions to international peace and stability.

Therefore, there is a need for a binding and effective approach to problem-solving within the international community. "International law is a process for resolving problems" indicates a demand for effective regulation through the international legal system to establish stable order [1,2].

In China, although there have been numerous authoritative studies about the contribution of international law in today's global affairs, its integration with current international situations is still at a nascent stage. Particularly, further in-depth analysis of international law from the constructivist perspective within international relations theory is required. A comprehensive review of existing literature reveals that many scholars predominantly focus on studying the evolution of international law from a micro-level standpoint. Hence, commencing with a broad perspective and examining the reciprocal relationship between global law and international affairs from a constructivist theoretical viewpoint continues to present significant opportunities for additional investigation. In conclusion, whether viewed from the functional aspect of international law or as an interdisciplinary study within the field of international relations, it holds prominent theoretical and practical value for addressing current global conflicts and contributing to both legal and academic advancements in this discipline.

Firstly, from a practical standpoint, international law and international relations are inherently interconnected. Without the backdrop of international relations, it is impossible to comprehend international law. To put it another way, the fundamental purpose of international law is to address real-world issues that arise from international relations; otherwise, it would be mere rhetoric and unsustainable in operation.

Secondly, from a theoretical perspective, the constructivist viewpoint emphasizes its dynamic and interdependent nature within today's complex and ever-changing environment. It also underscores that it encompasses more than just simple rules or norms--it fundamentally reflects the shared interests of all involved parties and seeks pathways to reach agreements. Simultaneously, this perspective fosters in-depth discussions on the process of rule-making and implementation while providing a profound, comprehensive foundation with high feasibility for future work. On another note, its theoretical core essentially includes national interests and international order. The issues it addresses are primarily related to globalization and global governance. Particularly noteworthy is that constructivist international relations theory leverages ontological advantages by conceptually recognizing international law as "law" while asserting that the enforcement power of international law lies not in sanctions but rather in its inherent "legitimacy." This grants international law not only a status as an integral component of the global structure but also attributes to it a role in constructing state identity and interests. These theoretical implications hold significant academic value for advancing international law and studying International Relations.

2. Literature Review

The international academic community's interest in the interdisciplinary study of international law and international relations is growing, making this field a highly regarded third discipline. Therefore, this research aims to systematically organize existing literature, provide a preliminary explanation of the significance of the chosen topic, and offer an initial exploration of constructivist theory to guide the establishment of a basic theoretical framework.

First and foremost, drawing on existing literature, the study of international law has undergone significant transformations, particularly in its historical analysis. Historically, the development of international law has often been driven by theoretical history and has tended to overlook the complexity of its contextual background. Wilhelm Grewe's approach in "Epochen der Völkerrechtsgeschichte" involves dividing history into different epochs, which may oversimplify the evolution of legal principles. In contrast, a shift towards contextual history emerged in the 1990s under the guidance of scholars such as Martti Koskenniemi and Benedict Kingsbury. These historians advocate for a deeper engagement with historical themes within their contexts and emphasize that understanding the past requires recognition of the social and political environment that shaped legal practices. This approach aims to bridge the gap between historical narratives and contemporary legal frameworks [3].

Simultaneously, there has been a critical reevaluation of normative texts. Lauren Benton criticizes international law's excessive focus on normative texts, arguing that this creates a narrow perspective while overlooking diverse practices and experiences within non-European legal systems as well as interactions between different normative systems. She contends that incorporating interpretations from non-European countries and exploring interactions between different normative systems can enrich our understanding of international law development [3].

Recent studies have underscored the importance of interdisciplinary approaches in understanding the history of international law; by integrating perspectives from different academic disciplines, scholars can achieve a more holistic grasp of the evolution of international law and its impact on contemporary global relations. This approach encourages dialogue between theory and practice while recognizing that legal development is influenced by multiple factors [3].

In short, scholarly literature in international law research reflects an increasing awareness regarding contextual factors' significance in shaping legal narratives. Therefore, through adopting more nuanced interdisciplinary methods, scholars can better comprehend both the complexity inherent to international law as well as its historical developmental processes--thus elucidating why this research topic was chosen.

Secondly, in theory, constructivism has advanced as a prominent theoretical approach within international relations, challenging mainstream realist and liberal paradigms. This approach underscores the social construction of international reality, positing that a nation's identity and interests are not predetermined but rather shaped through social interaction and shared norms. The ascendancy of constructivism has prompted a re-conceptualization of the landscape of international relations theory, particularly in terms of how scholars comprehend state behaviour and the role of international norms.

A fundamental aspect of constructivism involves critiquing rationalist theories which categorize realism, liberalism, and Marxism under a unified rationalist framework. Constructivists argue that these theories overlook the importance of normative context within social structures and state operations. By positioning constructivism in opposition to rationalism, scholars underscore the limitations inherent in purely materialistic understandings of international relations. They demonstrate that state behaviour is often influenced by social norms and collective identity rather than solely driven by power considerations. Furthermore, constructivism contends that an intrinsic feature of the global system is its "deep structure" comprised of governing norms dictating state interactions. This deep structure encompasses various norms related to human rights, economic practices, and bureaucratic governance which states internalize over time. The interplay between these norms and state behaviour elucidates how they constrain and shape state actions within the global community--providing a nuanced understanding of power dynamics in international relations [4].

The constructivist perspective also emphasizes the pivotal role played by identity in shaping state interests. States are viewed as entities adapting to prevailing norms while responding to their societal milieu--a viewpoint challenging notions portraying states as single actors with fixed interests; it illustrates instead how their policies are influenced by conformity to international standards and expectations [5]. Notable scholars such as John Ruggie and Jeffrey Checkel have contributed significantly towards comprehending how constructivism bridges gaps between rationalism and critical theory--emphasizing persuasion’s significance alongside learning when shaping political identities and interests on an international scale. The demise of the Cold War provided fertile ground for constructivist thought, as it explained major systemic changes that traditional theories struggled to address. In summary, it emphasizes the role of ideas, social norms, identity, and these factors shaping international politics, which are often overlooked by the new utilitarian approach that primarily focuses on material interests [6].

In conclusion, this study synthesizes perspectives from the existing literature to posit that constructivist theory serves a mutually reinforcing function in the realms of international law and international relations. This influence is shaped by factors like power, interests, and ideas, aligning with the core tenets of constructivist theory.

3. The Interaction between International Law, Constructivism, and Modern International Relations

The intricate interplay between international law, international relations, and constructivist theory forms a pivotal nexus for elucidating global governance's complexities and state behaviour's evolution. International law, characterized by its established norms and principles, serves as a regulatory framework that not only governs the interactions of sovereign entities but also significantly shapes the identity and interests of these actors within the international arena. It is within this legal structure that states engage in negotiations and assert their entitlements and obligations, thereby influencing the broader context of international relations. Simultaneously, the field of international relations provides the contextual backdrop where international law is both applied and contested. The actions of states and non-state entities are often guided by their perceptions, interests, and power dynamics that define their interactions. In this context, constructivism emerges as a critical theoretical perspective emphasizing social constructs, shared ideologies, and collective identities in shaping the norms inherent in international law. Advocates of constructivism argue that international law goes beyond being mere binding regulations; it is shaped by social processes and historical circumstances that influence how states perceive their roles and obligations on the global stage. Within this triadic interaction, the interplay between international law and international relations extends beyond mere influence to embody a reciprocal relationship wherein legal norms can inform political realities while political dynamics can reshape legal frameworks. Constructivism further enriches this discourse by highlighting how state identities and interests are constructed through legal frameworks--demonstrating that international law functions as both an instrument of power and a catalyst for promoting cooperation. As this paper delves deeper into understanding this triadic relationship comprehensively, it becomes increasingly evident that grasping the intricacies governing these elements' interaction is imperative for understanding contemporary global affairs' complexities--the evolving paradigms surrounding state sovereignty's legitimacy and authority in an ever-more interconnected world.

3.1. Development of International Law

International law encompasses an extensive system of regulations and principles that regulate the activities and connections between sovereign states and other global entities. It provides a structured approach to regulating conduct in various areas, including diplomacy, trade, human rights, and conflict resolution. The essence of international law resides in its capacity to manage the intricacies of global interactions, ensuring adherence to agreed-upon norms and standards [7].

Initially, international law primarily focused on treaties and agreements between states as the foundational "source" of law recognized under Article 38 of the Statute of the International Court of Justice. While binding for the involved parties, these treaties often represented a limited scope of law addressing specific bilateral or multilateral relationships. The procedural aspects have also evolved emphasizing transparency, collective decision-making processes, and standards for behaviour among states. The call for "constitutional law" applicable to international economic bodies reflects an aspiration towards a more organized and principled approach to international cooperation including establishing norms that facilitate fair bargaining and resource-sharing among nations thereby enhancing effectiveness in implementing international agreements [8].

In brief, international law, as a body of rules and principles governing the relations between sovereign states and other international actors, has evolved significantly over centuries. Its historical development can be broadly categorized into three distinct phases:

First, Ancient International Law. The historical antecedents of international law can be identified in the ancient civilizations, where rudimentary forms of legal norms governed interactions among states and tribes. In ancient Egypt, as early as 1296 B.C., a treaty concluded between Pharaoh Ramses II of the Nineteenth Dynasty and Hattusili III, King of the Hittites, is considered to be the oldest treaty ever discovered [9]. In ancient India, the Code of Manu established a system of prohibiting the use of poisonous weapons in war and the harming of prisoners and the wounded. In ancient Rome, the law of nations was formed to deal specifically with disputes between Romans and foreigners and between foreigners and foreigners and was enforced by foreign judges, etc. Ancient China also had certain concepts and norms of statecraft, for example, ancient documents such as the Book of Rites and the Book of Shangshu recorded some concepts and treaties about mutual respect and peaceful coexistence between countries. These concepts and norms of statecraft can be regarded as the germination and nurturing of international law in ancient China. In ancient Mesopotamia, for instance, the Code of Hammurabi (circa 1754 BCE) laid down principles that regulated commerce and diplomatic relations, establishing a framework for dispute resolution. Moreover, the Roman Empire significantly contributed to the foundations of international law through its development of ius gentium (the law of nations). This legal framework recognized certain universal principles that applied to all peoples, irrespective of their local customs. The Romans distinguished between private law and public law, with ius gentium serving as a precursor to modern notions of international law by emphasizing the importance of treaties and diplomatic immunity. The legacy of these early legal traditions laid the groundwork for the more structured systems of international law that would emerge in later centuries. During this period, only some principles and systems of international law appeared sporadically, lacking systematic and universal applicability. Meanwhile, because of the role of ancient religious forces, some rules of international law were mostly confused with religious teachings.

Second, Modern International Law. The transition to modern international law can be traced to the late medieval and early modern periods, particularly during the Renaissance and the Age of Enlightenment. This era witnessed a burgeoning awareness of state sovereignty and the need for codified legal frameworks to regulate interstate relations. The Peace of Westphalia in 1648, which ended the Thirty Years' War, was a pivotal juncture in the formation of international law, enshrining the principles of territorial integrity and non-interference in the domestic affairs of states. This convention is often cited as the cornerstone of the modern international system as it recognised the doctrine of state sovereignty as the fundamental principle of international relations. Seventeenth-century Europe also produced prominent legal scholars like Hugo Grotius, whose seminal work "De Jure Belli ac Pacis" (On the Law of War and Peace) laid the intellectual foundations for modern international law. Subsequent international treaties, such as the Treaty of Paris (1856) and the Hague Conventions (1899 and 1907), further consolidated the frame of modern international law by addressing issues related to conduct during war, detainee treatment and civilian protection.

Third, Contemporary International Law. The contemporary phase of international law came into being in the aftermath of WWII, motivated by the imperative to forestall future conflicts and foster global cooperation. The principle of prohibiting the use of force to impose one's policies on other nations, first established in the 1928 Kellogg-Briand Pact as modern international law, served as the foundation for the establishment of the UN with the signing of the UN Charter in 1945. The Paris Non-Aggression Pact explicitly prohibited the use of force to impose one's policies, marking the end of the era in which war was commonly used to resolve disputes since the dawn of human civilization. However, the pact was only a general, principle-based provision and did not establish specific rules for resolving disputes peacefully, nor did it set standards for judging the use of force "for one's interests" versus "not for one's interests."

Despite this, the principle revealed by the fact that the use of force to further one's interests is prohibited has had a groundbreaking significance, legally declaring war itself to be illegal. The UN Charter, signed in 1945, expanded upon the principles of the 1928 Kellogg-Briand Pact by prohibiting the application of coercive force in mutual relations and its threat, while also clearly delineating between legitimate and illegitimate uses of force. Then again, it learned from the failure of the League of Nations Covenant and established a system of collective security balance, and granted the UN executive agencies the necessary enforcement power to prevent and punish acts that undermine international peace. This is the first instance in history where a collective security system has been established and effectively operated on a global scale, demonstrating that the maintenance of order in the new era has reached a new level through collective security.

In addition to the UN, the development of international human rights law has been a defining feature of contemporary international law. The Universal Declaration of Human Rights (1948) and subsequent treaties, such as the International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966), have laid down a robust framework for safeguarding individual rights at an international scale. This evolution signifies a shift from a state-centric focus to a more individual-oriented approach in international law.

Thus, The history of the development of international law demonstrates that it evolves in tandem with the progression of international relations and that the international law prevailing in each era reflects the distinctive features of the corresponding international relations. Notably, the Cold War has undergone profound changes in international relations, and the principles and rules of international law have evolved accordingly. Consequently, it is obvious that without international relations, the formation and advancement of international law would not be feasible.

3.2. The Function of International Law in Shaping Global Interactions

International law serves as a critical framework that governs the interactions and relationships among states and non-state actors in the global arena. Its regulatory role in international relations can be examined through three fundamental aspects: the provision of the international institutional framework, the regulation of specific international behaviours, and the construction of standards of international values. Each of these dimensions underscores the significance of international law in fostering cooperation, maintaining order, and promoting justice on a global scale.

Firstly, international law emerged in conjunction with an interdependent global society, aiming to offer a fundamental institutional structure for international interactions. This allows actors within the international community to conduct their affairs predictably. The effectiveness of international law in this regard is derived not only from written international legal documents but also from normative documents with legal binding power, such as internationally recognized rules, principles, and procedures. For instance, the principles of sovereign equality and non-intervention essential to preserving world peace and security are enshrined in the UN Charter. By providing patterns of institutional governance, international law plays a central part in generating a predictable and stabilising global order, thereby reducing the potential for conflict and misperception.

Secondly, the regulation of specific international behaviours is another vital aspect of the regulatory role of international law. Through treaties, conventions, and customary practices, international law delineates acceptable and unacceptable behaviours among states. To sustain regular relations between countries and advance international peace and prosperity, adherence to specific protocols is imperative. International law serves as the legal manifestation of international relations and establishes the rules of conduct for states in their interactions on the global stage. Specific rights and obligations are directly stipulated for states within certain codified international treaties. While states may avail themselves of these rights, they are also duty-bound to fulfil corresponding obligations. Some fundamental principles of international law, such as respect for state sovereignty and territorial integrity, as well as non-interference in a state's internal affairs, represent not only the rights but also the obligations of states. The enjoyment of international rights and the assumption of international obligations are essential attributes of states. International law formalizes certain specific rights and obligations between states in a legal framework with binding force that should be collectively observed by all countries. By systematizing norms and regulations, international law functions as a mechanism for ensuring accountability, thereby ensuring that states adhere to their commitments and are held accountable for any violations. This regulatory function not only promotes compliance but also fosters trust among states, as adherence to international law signals a commitment to shared values and mutual respect.

Lastly, the construction of standards of international values represents a crucial component of international law's regulatory mandate. International law reflects and shapes the collective values of the global community, promoting principles such as human rights and democracy. Instruments like the Universal Declaration of Human Rights embody these values, establishing a normative framework that guides state behaviour and influences domestic legal systems. By articulating shared values, international law encourages states to aspire to higher standards of governance and social justice. Furthermore, the promotion of these values through international law catalyzes social change, inspiring movements for democracy and human rights globally. The internalization of these values by states not only enhances their legitimacy but also contributes to a more just and equitable international system.

3.3. The Role of Constructivism in Interpreting International Law

Constructivism, as a theoretical approach, as summarised in the previous literature review, emphasizes the social construction of reality, suggesting that state behaviour is not solely driven by material interests but also by ideational factors such as identity, norms, and values. Thus, this paper argues that international law plays a pivotal role in constructing national identity, shaping national interests, and establishing international order, thereby influencing the dynamics of contemporary international relations.

3.3.1. International Law and National Identity

A primary feature of contemporary international law is to determine and influence the identity of sovereign states by reinforcing the sovereign principle [10].

Through critiquing Hobbes' state theory and analyzing the nature of power, he argues that norms do not stem from power but are inherent in interactions among individuals. He suggests that the emergence and exercise of power must be grounded in norms with intersubjective significance. In other words, norms are omnipresent, and exercising power cannot evade issues related to meaning. Power involves questions about meaning and legitimacy, which must be assessed against social norms. Given that social norms are pervasive and serve as standards for people seeking meaning in their actions, how do these norms shape decisions and influence behaviour? Traditional understandings have often emphasized the constraining role of norms while overlooking their proactive function [11]. People typically guide their behaviour based on a common understanding, and others discern their identity through outward behaviour, such as the Ten Commandments in the Bible. This norm is reflected in global relations as international law. Therefore, international law's influence on global behaviour involves not only compliance and enforcement but a legitimacy process of acceptance and compliance. The development and evolution of the Ten Commandments serve as an example that parallels international law. International law not only constrains specific actions of international actors but also actively constructs these actions. By establishing specific rules for various forms of behaviour, international law induces standardization of actions among different members of the global community, facilitating smooth communication and management within international relations, transnational interactions, and relationships between diverse cultures. In turn, this transforms shared expectations and aspirations within the global community into reality.

In essence, the foundational norms of international law influence the conduct of states on the global stage, through these acts, international actors construct their national identity.

3.3.2. International Law and the Construction of National Interests

National interests are a cornerstone of international relations and have pivotal importance in comprehending how the world interacts. International law is the outcome of nations' pursuit of their interests and the mutual compromises they engage in with one another. "Self-interest is the fundamental reason why national policies are not only reasonable but also necessary, and there is no need to make any hypocritical pretence about it. Acting in one's interest as a principle generally requires no proof, although in specific cases it may require such proof [12]." In other words, cooperation between the parties is based on the coordination of resources, information, and interests, and international law rules provide a systematic and open framework that makes it easier for countries to exchange information and enhance its accuracy, increase trust between them and reduce unnecessary costs. This enables the various actors to take actions in their interactions that are conducive to improving and enhancing bilateral relations to safeguard their own and the common and fundamental interests of all humanity, and it is the mutual interests of sovereign states that make international law able to exist and develop smoothly over a long period.

Take national economic interests as an example, constructivist theory provides a valuable lens: in international law, the concept of national economic interests plays a central role in shaping the behaviour of states and the development of international economic law. However, the construction of these interests is not a static or objective process but is rather a dynamic and socially constructed phenomenon. International law has established the identity status of participants in international economic cooperation. With the increasing interconnectedness of the world, frequent cross-border interactions, and the rapid progress of the information technology revolution, the world has transitioned into a new era characterized by mutual interdependence. The participants in international exchanges have evolved from the traditional state model to a variety of actor models, including states, non-governmental organizations, and transnational corporations. These emerging international actors have enriched the content of international law, giving rise to it and creating multiple actor identities with legal status, which is of great significance for achieving common interests. It also provides a normative framework within which states define and pursue their economic objectives. For instance, trade agreements, investment treaties, and intellectual property laws establish the parameters for economic engagement between states, influencing how countries perceive their interests and opportunities in the global marketplace.

3.3.3. International Law in Shaping the International Order

The notion of international order is inextricably linked to the presence and implementation of international law. Constructivists argue that order does not result from power dynamics or material capabilities alone; rather, it is shaped by shared norms, values, and legal frameworks that govern state interactions. International law serves as a foundational element of this order, providing the rules and principles that guide behaviour and facilitate cooperation among states.

Stanley Hoffmann posited that "order" denotes "law and order," signifying the strict implementation of governance rules, while "social order" refers to the norms, practices, and processes that fulfil the "fundamental needs of social groups." He initially conceptualized international order as a form of world order and delineated three inseparable defining elements: firstly, the world order represents an idealized model characterized by harmonious relations between states; secondly, it signifies essential conditions for states to coexist amicably along with well-established procedures providing effective tools to prevent violence and chaos; thirdly, it embodies an ordered state necessary for resolving disputes and conflicts, as well as engaging in international cooperation for common development [13]. Following his definition, it can be inferred that the international order is oriented towards preserving the continued existence of the global system while also safeguarding national autonomy and extraterritorial sovereignty, and prioritizing peacemaking as fundamental, primary, or universal objectives. The concept of peace here does not entail universal permanent peace in an idealistic sense but rather denotes a state where no wars break out among members. The analysis therefore suggests that international law constructively shapes a predictable framework for managing interstate relations. For example, by placing these transnational challenges, such as terrorism and human rights violations, under a legal framework that encourages States to cooperate and develop collective solutions, international law reinforces that order depends on cooperation and mutual respect for legal norms. In this way, international law not only constructs the parameters of State behaviour but also shapes the essence of the global order.

4. The Situation of International Law in Action

In the contemporary landscape of international relations, the role of international law has become increasingly significant, yet it is fraught with complexities and dilemmas, particularly in solving practical problems, it faces the challenges of the security dilemma, power politics and hegemony.

4.1. Dilemma of the Functioning of International Law

At the heart of international relations lies the security dilemma, a concept that underscores the paradoxical nature of state security. The "security dilemma" is a core concept in neorealism. Ken Booth has categorized the security dilemma into two types based on the purposefulness of actions: the "inadvertent security dilemma," where a country's defensive actions, due to their carelessness and communication failures, lead to concerns about its security from other countries, triggering a cycle of reactions; and the "deliberate security dilemma," where a country's deliberate actions put another country in a security predicament. Because every country faces such a security predicament in the international community, no country can rule out using force. Consequently, when one country takes action for defence purposes, it may be interpreted by another as an aggressive move, leading to active military measures in response. This cycle disrupts the balance between countries [14]. Kenneth Waltz provided an insightful summary of this "security dilemma," stating that "the use of force and its control have been central issues in international politics since Thucydides' time in Greece and Kautilya's era in India." In this context, countries are unable to discern each other's intentions; therefore they arm themselves for safety. However, this leads to increased insecurity and prompts further weapon acquisitions because any means used by one nation to protect itself is perceived as a threat by others who then arm themselves as well. This perpetual cycle makes it challenging for international law to fulfil its role in maintaining peace and stability within contemporary international relations [15]. International law attempts to address the security dilemma through various treaties and agreements aimed at arms control, disarmament, and confidence-building measures. Instruments like the Nuclear Non-Proliferation Treaty (NPT) and the UN Charter serve as frameworks for states to navigate their security concerns while adhering to legal norms that promote peace and stability. However, the effectiveness of these legal frameworks is often undermined by the very nature of power politics, where states prioritize their national interests over collective security. In other words, power politics, characterized by the pursuit of national interests and the competition for influence and resources, further complicates the establishment of a cohesive international legal order. States operate within a system where power dynamics dictate their interactions, often leading to a zero-sum mentality. In this environment, international law can be perceived as a tool for the powerful to legitimize their dominance while marginalizing weaker states.

Another aspect, one of the main challenges posed by hegemony in international law is the unequal enforcement of legal norms. Hegemony can be understood as the dominance or leadership of one state or a group of states over others in international politics and law. In the realm of international law, hegemony often manifests in the form of influential states using their power and influence to shape the legal framework in ways that serve their interests, while smaller or less influential states may lack the means to challenge or resist such efforts. This can result in the unequal treatment of states, as well as the imposition of rules and norms that reflect the preferences of the dominant powers. The hegemony dilemma in international law arises from this unequal distribution of power and the resulting threats to the legality and validity of the global legal system [16]. Another limitation of hegemony in international law is the potential for legal fragmentation and conflict. When powerful states use their influence to promote their legal preferences, it can lead to the proliferation of competing legal regimes and standards. This can create confusion and uncertainty for states and other actors, increasing the risk of legal disputes and conflicts. The economic sanctions imposed on certain countries by powerful countries like the US and its allies are a prominent example. While economic sanctions are generally recognized as a legitimate tool, they often give rise to intense debates regarding their legality and fairness, particularly when unilaterally imposed by dominant powers. Such unilateral actions may result in severe humanitarian consequences for the civilian population of the targeted country, prompting ethical concerns about the broader impact of these sanctions. Furthermore, when these measures lack endorsement from international bodies such as the United Nations, questions arise concerning their legitimacy and potential geopolitical manipulation, as powerful nations may utilize sanctions to advance their strategic interests rather than uphold international norms.

Another case is the International Criminal Court (ICC), established to provide a mechanism for global accountability for grave crimes like war crimes, human rights abuses and genocide. The ICC represents significant progress in pursuing justice worldwide; however, due to reluctance from certain influential states--particularly the United States--to acknowledge and submit to its jurisdiction, its efficacy has been noticeably compromised. This hesitance not only undermines the authority and operational capacity of the court but also raises grave concerns about challenges posed by hegemonic powers within international law. The refusal of influential states to engage with the International Criminal Court reflects broader tensions between national sovereignty and collective responsibility in upholding international justice--a struggle that ultimately highlights ongoing efforts to establish an equitable legal framework beyond considerations solely driven by powerful entities' interests.

4.2. Analysis of the Causes of the Predicament

There are many factors contributing to the problems faced by international law in dealing with modern international relations, which will be analysed in terms of the internal factors of international law. There are three main aspects of internal factors:

4.2.1. Uncertainty and Fragmentation of Legislation

In general, drafting legislation takes two forms: enactment and ratification. International law is established through agreements among nations, a process distinct from the typical domestic legislative procedures. This method requires two forces: necessity and mutual consent. Except for a few fundamental international legal principles such as state sovereignty, most international legal norms arise from mutual agreement among sovereign entities (i.e., individual countries) or are stipulated by powerful or dominant states during specific historical periods, effectively becoming "principles" that weaker states have no choice but to adhere to. Each country is bound only by those international legal norms to which it has agreed, resulting in numerous uncertainties within international legal relations. Specifically, the act of signing and ratifying a treaty is entirely contingent upon a nation's volition, leading to diverse subjects covered by treaties. Due to each country possessing unique interests and survival imperatives, when engaging with other parties they tend to prioritize their interests in forming various types of treaties. Consequently, this often results in an inability to reach consensus on related issues and leads to inadequate corresponding management. The content of these agreements is determined through negotiation among all involved parties; consequently, the obligations assumed by each party and the rights enjoyed depend on their respective core interests. "States generally do not want to enter into treaties that may be used against them in future" [17]. Therefore different treaties contain varying rights and obligations, if the interests of the parties change, mutual consent loses its foundation, leading to corresponding alterations in international treaty provisions.

If the shifts occur within power dynamics between nations, the rationality and validity of the previous rules will face challenges and even be abolished or revised. Even if a regulation was signed based on mutual agreement, it is often accompanied by reservations to meet its own needs so that it can apply other norms but not to itself. In addition, to seek a common basis for the harmonious coexistence of the interests of all countries, the international law principles reflected in general treaties are often vague or ambiguous so that all countries can interpret the agreed text as consistent with their national interests, which leads to the fragmentation and chaos of international law. The fragmentation of international law also manifests itself in its application within each country. Despite the provisions of Article 27 of the Vienna Convention on the Law of Treaties, which prohibits states from using their domestic law to evade international legal obligations, there are significant differences in practice regarding the direct applicability of international treaties within the domestic law of state parties. For example, Article 142 of China's General Civil Law stipulates: When discrepancies exist between international treaties signed or joined by China and China's domestic laws, the treaty provisions will take precedence, except for any specific content reserved by China. However, after being signed and taking effect in England and Wales, it did not become an effective local law directly; it needs to be "transformed" into a valid internal law through a special legislative procedure. Moreover, for instance, the proliferation of bilateral and multilateral treaties has resulted in overlapping obligations and conflicting interpretations. This fragmentation complicates the resolution of disputes and undermines the predictability that is essential for states to adhere to international norms. Therefore, the inherent uncertainty and fragmentation of international law make it a "highly fragmented and disconnected legal system".

4.2.2. Inequality in Judicial Adjudication

Another significant internal factor is the unequal access to justice experienced by states and individuals. The equality principle is a bedrock tenet of international law. It stipulates that all states, irrespective of their size, strength, population, political system, or economic system, are equally standing enjoy the same rights and bear equivalent obligations under international law. State equality should be substantive rather than merely formal; however, achieving complete equality in real-world politics is challenging. In practice, the right to speak is often determined by power dynamics [18]. The disparity in resources and capabilities among states creates a system where powerful nations can leverage their influence to shape legal outcomes in their favor, while weaker states struggle to assert their rights. This inequity is particularly evident in cases brought before international tribunals, where the ability to access legal representation and resources can determine the outcome of disputes. A pertinent example is the International Court of Justice (ICJ), which adjudicates disputes between states. While the ICJ operates on sovereignty and equal rights, the reality is that wealthier nations often possess the financial means to engage in prolonged legal battles, while less affluent states may lack the resources to defend their interests adequately. The case of Nicaragua v. United States (1986) illustrates this disparity; Nicaragua, a smaller and less economically powerful state, successfully brought a case against the U.S. for its military actions in the region. However, the enforcement of the ICJ's ruling was largely ineffective, highlighting the challenges faced by weaker states in securing justice.

4.2.3. Weakness in Judicial Enforcement

International disputes can be resolved through international mediation, conciliation, and arbitration by the ICJ, all of which are based on the self-restraint and mutual agreement of sovereign states. Generally speaking, a mediator facilitates negotiations between the disputing parties to resolve the dispute without proposing specific solutions, while a conciliator can propose their solutions and assist the disputing parties in reaching a compromise. However, there may be unjust and unreasonable circumstances in accepting conciliation, which may exacerbate the resurgence of the next crisis. Whether to submit the dispute to the court for resolution depends on whether the relevant parties agree to its jurisdiction. If either party or both parties decline to bring the dispute before a judicial court, then the court lacks the authority to hear the case. In the East Karelia case, the Permanent Court of Justice reaffirmed that it is a firmly rooted principle of international law that no state can be obliged to subject its controversies with another state to mediation, arbitration or any other peaceful means of settlement without its express consent. Such agreement can be expressed as a one-time voluntary undertaking or only for a specific situation beyond existing obligations [19]. Meanwhile, the absence of a binding enforcement mechanism and tools in international law has hindered the implementation of judgments from the International Court of Justice, leaving victimized countries with no recourse but to seek support from the United Nations Security Council. While the United Nations Charter grants the Security Council certain powers for collective action, its scope is limited and typically applies only to acts of aggression or other breaches of peace, achievable only under exceptional circumstances [20].

UN Security Council sanctions are often perceived by some powerful nations as justifications and tools for exercising hegemony or even engaging in aggressive behaviour. In addition to relying on international institutions, if a country experiences violations of international law by another state, it may resort to individual self-help measures such as protests, warnings, demanding compensation and an apology to safeguard its rights. It can also use public opinion to expose and condemn these violations or even launch a defensive war. However, these self-help rights and retaliatory measures can only be exercised by the injured party with authority over enforcement; other parties have no obligation to enforce them. Therefore, enforcement mechanisms largely depend on power dynamics between violators and victims. The situation in Syria provides a compelling example of the constraints on international law enforcement. Despite multiple UN Security Council resolutions condemning human rights abuses and war violations during the civil war in Syria, enforcement has been hampered by geopolitical interests and the veto power of permanent members. The failure to hold those responsible for atrocities to account undermines the credibility of international law and raises questions about its effectiveness in addressing security dilemmas.

5. Conclusion

In conclusion, this paper employs a constructivist viewpoint to scrutinize the place of international law in contemporary global relations. By delving into the social construction of international law and its impact on state conduct, it becomes apparent that international law is crucial in moulding the behaviour of states and global actors. From the establishment of norms and standards to the enforcement of rules, international law exerts significant influence on modern global politics. Furthermore, the constructivist viewpoint offers valuable insights into how international law shapes state identities, interests, and interactions. Essentially, the interaction among global law, international affairs, and constructivist theory emphasizes the necessity of considering social construction when comprehending the function and impact of international law in contemporary global politics. Despite inherent fragmentation, inequality, and weaknesses in practical application leading to security dilemmas as well as challenges from power politics and hegemony; however, there is an undeniable trend towards legalism replacing power dynamics, equality supplanting subjugation, and peace prevailing over war. Looking ahead to prospects requires further research on perfecting and leveraging international law as a tool for addressing global challenges while fostering cooperation among nations.


References

[1]. Nussbaum, A. (1947). A concise history of the law of nations. New York: The Macmillan Company.

[2]. Leung, S. (2011). International Law. Journal of Wuhan University (Social Science Edition), 4.

[3]. Andrew, F. (2018). Context in the history of international law. Journal of the History of International Law, 20(1), p.1-9.

[4]. Dormer, R. (2018). The impact of constructivism on international relations theory: a history. Kwansei Gakuin University Social Sciences Review, 22, 51-64.

[5]. Hobson, J. M. (2000). The state and international relations. Cambridge University Press.

[6]. Brunnée, J., & Toope, S. J. (2012). Constructivism and international law. Cambridge University Press

[7]. Katz, M. (1963). The international aspects of law concepts and terminology. American Journal of International Law, 57(4),871-873.

[8]. Schachter, O. (1976). The evolving international law of development. Columbia Journal of Transnational Law, 15(1),1-16.

[9]. Tong Lianfa. (1994). Public International Law. Liaoning University Press.

[10]. Brunnée, J., & Toope, S. J. (2000). International Law and Constructivism: Elements of an International Theory of International Law, Columbia Journal of Transnational Law, 39,38.

[11]. Qin, Yaqing. (2006). Culture and International Society: A Study of Constructivist Theory of International Relations. Beijing: World Knowledge Press.

[12]. Yasuaki, O. (2003). International law in and with international politics: The functions of international law in international society. European Journal of International Law, 14(1),105-139.

[13]. Mahan, A. T. (2011). The Influence of Sea Power upon History. Read Books Ltd.

[14]. Bull, H. (2012). The anarchical society: A study of order in world politics. Bloomsbury Publishing.

[15]. Wheeler, N., & Booth, K. (1992). The security dilemma. In Dilemmas of World Politics. Oxford University Press. 29-60 Waltz Kenneth, N. (1979). Theory of international politics/Kenneth N. Waltz.–Michigan.

[16]. Waltz Kenneth, N. (1979). Theory of international politics/Kenneth N. Waltz.–Michigan.

[17]. Krisch, N. (2005). International law in times of hegemony: unequal power and the shaping of the international legal order. European Journal of International Law, 16(3),369-408.

[18]. MODERN, A. S. (1984). Modern Introduction To International Law. London: Routledge.

[19]. Yu, Zhengliang. (2000). International Relations in the Age of Globalisation. Fudan University Press.

[20]. Morgenthau, H. J. (1973). Politics Among Nations: the Struggle for Power and Peace (5th ed). Alfred A. Knopf. 360-380.


Cite this article

Xie,Y. (2024). The Function of International Law in Modern International Relations: A Constructivist Perspective. Lecture Notes in Education Psychology and Public Media,55,257-269.

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Volume title: Proceedings of the 3rd International Conference on International Law and Legal Policy

ISBN:978-1-83558-473-6(Print) / 978-1-83558-474-3(Online)
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Conference date: 27 September 2024
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Volume number: Vol.55
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References

[1]. Nussbaum, A. (1947). A concise history of the law of nations. New York: The Macmillan Company.

[2]. Leung, S. (2011). International Law. Journal of Wuhan University (Social Science Edition), 4.

[3]. Andrew, F. (2018). Context in the history of international law. Journal of the History of International Law, 20(1), p.1-9.

[4]. Dormer, R. (2018). The impact of constructivism on international relations theory: a history. Kwansei Gakuin University Social Sciences Review, 22, 51-64.

[5]. Hobson, J. M. (2000). The state and international relations. Cambridge University Press.

[6]. Brunnée, J., & Toope, S. J. (2012). Constructivism and international law. Cambridge University Press

[7]. Katz, M. (1963). The international aspects of law concepts and terminology. American Journal of International Law, 57(4),871-873.

[8]. Schachter, O. (1976). The evolving international law of development. Columbia Journal of Transnational Law, 15(1),1-16.

[9]. Tong Lianfa. (1994). Public International Law. Liaoning University Press.

[10]. Brunnée, J., & Toope, S. J. (2000). International Law and Constructivism: Elements of an International Theory of International Law, Columbia Journal of Transnational Law, 39,38.

[11]. Qin, Yaqing. (2006). Culture and International Society: A Study of Constructivist Theory of International Relations. Beijing: World Knowledge Press.

[12]. Yasuaki, O. (2003). International law in and with international politics: The functions of international law in international society. European Journal of International Law, 14(1),105-139.

[13]. Mahan, A. T. (2011). The Influence of Sea Power upon History. Read Books Ltd.

[14]. Bull, H. (2012). The anarchical society: A study of order in world politics. Bloomsbury Publishing.

[15]. Wheeler, N., & Booth, K. (1992). The security dilemma. In Dilemmas of World Politics. Oxford University Press. 29-60 Waltz Kenneth, N. (1979). Theory of international politics/Kenneth N. Waltz.–Michigan.

[16]. Waltz Kenneth, N. (1979). Theory of international politics/Kenneth N. Waltz.–Michigan.

[17]. Krisch, N. (2005). International law in times of hegemony: unequal power and the shaping of the international legal order. European Journal of International Law, 16(3),369-408.

[18]. MODERN, A. S. (1984). Modern Introduction To International Law. London: Routledge.

[19]. Yu, Zhengliang. (2000). International Relations in the Age of Globalisation. Fudan University Press.

[20]. Morgenthau, H. J. (1973). Politics Among Nations: the Struggle for Power and Peace (5th ed). Alfred A. Knopf. 360-380.