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This chapter discusses how the authority of the Appellate Body (AB) of the World Trade Organization (WTO) rapidly became extensive. It nonetheless remains fragile given geopolitical shifts that have helped catalyze the rise of neo-nationalist trade politics in the United States. The establishment of extensive AB authority represented a legalization leap in which international dispute settlement moved from limited narrow authority under the General Agreement on Tariffs and Trade (GATT) to significantly more expansive authority. However, the WTO is an interstate dispute settlement system, so private parties have no direct access to the AB. The AB thus confronts state pressure and at times shapes its decisions to facilitate WTO Member compliance with them. The AB’s authority appears threatened by the US refusal to approve the launching of the selection process to replace retiring AB members. The United States is reacting, in particular, to AB rulings against US import relief practices.

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 studies the transformation of the authority of the European Court of Human Rights (ECtHR) since its genesis. It shows how the ECtHR, until the mid-to-late 1970s, struggled to maintain narrow legal authority. Both the Court’s caseload and civil society engagement changed fundamentally however throughout the late 1980s and the 1990s when the ECtHR gained intermediate and extensive authority in large parts of Europe. During this period, the Court became the de facto Supreme Court of human rights in Europe. Starting around 2000, the Court became increasingly overburdened. It was in the context that a number of member states launched a systematic critique of both the Court’s power over national law and politics and the quality of the Court’s judges and their judgments. This discontent climaxed with the 2012 Brighton Declaration, adopted by all forty-seven member states, which began an institutionalized process that aimed to limit the ECtHR’s power.