A long-standing debate amongst international relations scholars has surrounded the question of whether international institutions with judicial authority enjoy more autonomy and discretion than other global institutions. This is mainly because international courts are established as impartial third-party actors tasked with performing adjudicative functions for conflicting parties. As such, the delegation contracts of international institutions with judicial authority are expected to minimize control by states, even in cases where the members of a court engage in judicial overreach. This article contributes to that debate by examining the case of the crisis of the WTO Appellate Body. The article analyzes the Trump administration's successful efforts at rendering dysfunctional one of the most powerful courts in the international system. The findings showcase how powerful states are capable and willing to take advantage of the available control mechanisms and the institutional opportunity structures inherent in the design of international courts. The article speaks to the scholarship on the contestation of international institutions. The analysis relies on original data obtained through 22 interviews with WTO officials, state representatives, and experts.
Policy Implications
- Powerful international courts should not be viewed as immortal and shielded from state control. Protectionist, anti-multilateralist states are willing to take advantage of opportunity structures embedded within the institutional design of such organizations to exert their influence and control on them in pursuit of their interests.
- Politicization of, and state influence on, international institutions can ultimately lead to a weakening of the authority and autonomy of these institutions. Careful designing of international institutions to ensure that states cannot take advantage of institutional opportunity structures is imperative for avoiding this.
- The Appellate Body's current dysfunctionality is very costly for the WTO, arguably threatening the future of its multilateral institutional framework for governing global trade. This dysfunctionality should not be understood as unique to the WTO but as a warning to other international legal institutions of the opportunity structures that powerful states may use to disrupt their functionality.