More than One Way to Be of Use

Professor Sykes’s elegant article explains with great clarity how rational self-interest alone can both justify and explain states’ compliance with international agreements. Such agreements will effectively constrain the behavior of states when all states involved stand to gain from cooperation and some effective enforcement mechanism is available. Crucial to his argument is that enforcement does not have to take the form of literal force by some central enforcer; an agreement may be self-enforcing in that noncompliance may be sanctioned by other states’ refusal to cooperate with the noncomplier in the future. Sykes’s analysis of the circumstances when these conditions are met is enlightening and convincing. It also clearly helps to explain why some kinds of international agreement, such as those relating to trade, tend to be more closely complied with than others, such as those relating to human rights. It is hardly surprising that we would see greater compliance where self-interest lines up with compliance. But Sykes also makes the strong claim that it is only in those circumstances where self-interest lines up with compliance that international law is “useful.” This claim is more taken for granted than defended, and it seems to me to be wrong. Furthermore, the upshot of Sykes’s argument is more radical even than that strong claim suggests. For on his analysis, at least as presented in this article, law as such plays no useful role at all. Nothing in the analysis turns on the legal status of international agreements. Legal status appears to make no difference to the self-interested calculation. The distinction between “soft law” and treaties is erased. The entire analysis could go forward, and even presumably be extended to more informal cooperation along the lines of customary international law, without mentioning the word “law” at all.