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This chapter discusses the first constitutive element of the doctrine of superior responsibility, namely, the requirement that there must exist a relationship of authority between the accused and those who committed the underlying offence in such a way that the accused (as superior) was able to control those subordinates and was able to prevent or punish their crimes. The concept, relevance, and importance of a vertical chain of command between the superior and the perpetrator; the nature and scope of that relationship (de jure or de facto); and the issue of the time at which such a relationship of subordination must be established are discussed.

This concluding chapter returns to the conjectures developed in Chapter 2, extracting insights from the book’s empirical chapters to explore how context shapes the authority of ICs. While several of the conjectures were confirmed, others were not. We focus in particular on the limited impact of IC design features, the distinctive challenges faced by international criminal tribunals, and by ICs created during the post-Cold War era. The final section revisits the distinction between IC authority and IC power. We explain why IC authority is likely to remain fragile, and we revisit our claim that authority can not only increase but also stagnate or diminish over time.

This introductory chapter locates this book’s approach within the dominant approaches to studying the authority of international institutions. The scholarship on authority is vast; the chapter focuses on four key perspectives: legal formalist approaches; normative approaches, including legitimate or ideal authority; sociological legitimacy theories; and compliance studies and performative approaches. The framework developed in this book to measure de facto authority makes a number of bold conceptual claims that challenge these existing scholarships on international courts (ICs). Perhaps most controversially, the book separates the study of authority from the study of legitimacy and argues that IC authority can be identified and assessed by studying the practices of key audiences—litigants, similarly situated potential litigants, governments, judges, and other communities. Finally, the framework rejects a number of claims voiced in global governance debates which assume that IC authority is an all-or-nothing binary.

This chapter examines how the theoretical framework presented in this book fits with the substantive chapters. It argues that if the authors maintain their position about motivational agnosticism, they should reconsider whether “de facto authority” is the best label for the kind of impact of international courts (ICs) at various levels that concerns them. At times their claims seem to fit better with an aspiration to map the ICs’ power more generally. The chapter then questions the framework’s explicit bracketing of social legitimacy in the sense of actors’ beliefs about normative legitimacy. It concludes by suggesting one area for future research where scholarship on social and normative legitimacy may in fact be relevant to understand the politics and legitimation strategies of international courts with variable authority.

This chapter argues that the framework chapter’s understanding of de facto authority above all fits the relationship between international courts (ICs) and the parties to a case. Questions arise when it comes to intermediate and extensive audiences. The way in which ICs exercise authority beyond any concrete dispute is, above all, due to the sway they hold over the legal discourse—their semantic authority. ICs have the capacity to establish content-laden reference points for legal discourse that other actors can hardly escape. The chapter also claims that the distinction of authority from persuasion should be maintained as a constitutive feature of both concepts. This is not only in line with a strong tradition of the authority concept, but also clarifies the legitimacy challenge.

This chapter discusses the Andean Tribunal Justice (the ATJ or Tribunal) and considers how the ATJ has fared during a period of regional political crisis and declining governmental support for Andean Community institutions. The “island” of narrow, intermediate, and extensive authority for intellectual property disputes that developed prior to the mid-2000s is resilient and even thriving, even as the ATJ’s de jure authority has contracted and its de facto authority has been threatened by proposals by Ecuador to merge the Andean Community with MERCOSUR and by politically high-profile noncompliance suits involving Ecuadoran import restrictions. Yet even in these contentious cases, the Andean legal system—backstopped by overlapping constraints of the World Trade Organization (WTO)—pushed Ecuador to offer plausible legal grounds to defend its import restrictions. The chapter concludes by exploring the relationship between the ATJ’s de facto authority and its limited power to shape regional economic policy.

This chapter examines whether the ECOWAS Community Court of Justice (ECCJ or Court), as an international court operating in the West African region with its peculiar sociopolitical and economic context, enjoys any form or degree of actual authority in any of its main functions. The ECCJ’s two contrasting epochs represent a variation in the authority of the Court. Whereas under its 1991 Protocol, the Court enjoyed limited de jure authority with little potential for growing its de facto authority, the 2005 Supplementary Protocol introduced expansions that increased the potential for enhanced de facto authority. Ultimately, the Court’s authority varies significantly both in terms of areas of competence, as among different court-users and in relation to wider communities in its State Parties. Arguably, these variations indicate that different factors influence the responses that the Court attracts from different user-groups.

This chapter focuses on the relations between the four main stages of de facto authority laid out in this book’s framework, and the respective legitimacy of the international courts (ICs) in question. It also shows that interesting questions about moral legitimacy are brought to light by the transitions from narrow to intermediary and to the extensive and perhaps popular authority of ICs. The chapter then acknowledges that the realities of the development of ICs, and the fascinating ways in which they gain—or sometimes fail to gain—practical authority, put some pressure on established ways of thinking about matters of legitimacy of practical authorities. As in much else in the domain of international law, both the realities on the ground and the theorizing about them are very much works in progress.

This chapter considers efforts to assess the authority of international courts. The framework proposed in this book suggests that court authority can be inferred from the behavior of governments and it imagines an ideal-type authority relation by which subjects acquiesce to courts out of respect for their authority. These two constitute a research program that aims to identify changes in behavior that follow from court authority rather than from the interests of the actors. There is a mismatch between the concept of authority and the methodology of content-independent behavioralism. The behavioral approach severs courts from the political motivations of those who create and use them, and directs research away from questions about the political goals that animate international legalization. A more dialogic approach may be useful, that considers the internal perspective of the actor and explores the purposes of these agents to understand why they do the things they do.