Robert Cooter (UC Berkeley Law) & Neil Siegel (Duke University School of Law) have posted Collective Action Internationalism on SSRN. Here is the abstract:
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The most important theorists of international law, including Grotius and Pufendorf, devised theories that address the daunting collective action problems that face sovereign nation states. These theories are particularly targeted at the problems or armed conflict and economic warfare, which threaten to disrupt peace and prosperity in the international order. The basic problem of international law is that individual nation states cannot solve a variety of collective action problems without norms backed by coercive sanctions that change the payoff structure of international prisoner's dilemmas and commons problems.
A system of international law ideally gives nation states and international institutions the power to do what each does best. Although treaties and customary norms sometimes coincide with the optimal allocation of authority between the two kinds of institutions, the match is haphazard at best and leads, in important cases, to substantial dead weight losses by failing to empower supernational (international and transnational) institutions to act coercively. We propose a better foundation for international law. Our theory distinguishes activities that pose collective action problems from those that do not. This approach flows directly from the relative advantages of supernational institutions and nation states. We show that international law mostly concerns collective action problems created by international externalities and global markets. We conclude that international law authorizes supernational institutions, such as the United Nations Security Council, the WTO, and the World Court to engage in international governance activities to solve these collective action problems.
Although our theory provides a sound foundation for much of the conventional wisdom about international law, it also leads to conclusions that may surprise some international law theorists. In particular, the need for institutions that can change payoff structures for collective action problems leads inexorably to the conclusion that existing institutions do not require the assent of national governments to create international law norms or to use military and economic force to deter violations of such norms. Thus, decisions of such institutions are binding on all nation states--irrespective of their status as signatories to relevant treaties. Moreover, supermajority decision rules are inherently incompatible with international law, because they recreate the very collective action problems that international governance institutes function to solve. We conclude that such institutions are inherently empowered to sanction violations of international norms by simple majority vote. This inherent authority includes the power to commandeer the armed forces of particular nation states, with or without consent of the institutions of the national government. Stated in simpler terms, the existing norms of international law already establish what is sometimes called "world government."
