Technocrats on Top?

Journal of European Public Policy, Vol. 9, No. 2, April 2002, Oxford

With governments delegating more and more power to international organizations such as the International Criminal Court, the World Trade Organization, and the European Union (EU), two questions naturally arise: When and why do international institutions gain autonomy from the governments that create them? Will global bureaucrats use their autonomy to subvert the policies of national governments?

In a recent article in the bimonthly Journal of European Public Policy, Dorothee Heisenberg, assistant professor at Johns Hopkins University’s School of Advanced International Studies, and Amy Richmond, research associate at Prairie Research Associates in Canada, analyze the EU’s most independent institutions: the European Central Bank (ECB) and the European Court of Justice (ECJ). The ECB, created in 1998, is more autonomous than any central bank in modern history and has unquestioned authority over its member governments. The 50-year-old ECJ functions as a constitutional court that has established the supremacy of European law in EU member states.

Heisenberg and Richmond’s basic claim is straightforward: The most important factor shaping the autonomy of these two bodies (and how each uses that autonomy) is the intent of the founders who originally delegated power to them. When national governments set out to create independent organizations with tightly circumscribed mandates, as in the case of the ECB, the resulting institutions retain considerable independence and are resistant to threats of national noncompliance. Yet these institutions must remain within the restricted scope defined by their statutes, with little flexibility if circumstances change. Thus the ECB was explicitly designed to mirror the German Bundesbank — an outcome imposed by intense German pressure.

By contrast, when national governments establish open-ended institutions under loose mandates, as with the ECJ, autonomy is more tenuous but can also evolve in unforeseen ways. The critical element to the ECJ’s success was the inclusion of Article 177 in the European Community’s founding charter, which allows national courts to refer cases directly to the ECJ without approval by national governments, thus transforming domestic courts into potential enforcers of European law. This clause was inserted in 1957 on the advice of legal experts, without any understanding of its potential significance. Readers might question the utility of comparing the young ECB with the aged ECJ. The full range of the court’s autonomous powers is evident now only because the court has been shaped by decades of incremental assertion of judicial prerogatives. Still, the general notion that institutions with tightly formulated mandates are less likely to move in unexpected directions will appear relatively uncontroversial to anyone familiar with international organizations.

More troubling, however, are some of Heisenberg and Richmond’s more specific and speculative claims, which rest on loose methods of gathering and interpreting evidence. Two examples suffice: First, is the ECB, as the authors claim, really more resistant to national noncompliance (say, by governments running excessive national budget deficits) than the ECJ because the central bank can respond with direct punishment? Professors Peter Hall of Harvard University and Robert Franzese Jr. of the University of Michigan argue convincingly that collective-action problems will undermine the imposition of European monetary discipline on individual economies. If most economic policymakers in Europe act responsibly, the ECB cannot direct policy to punish an individual government. This inability creates a clear incentive to "free ride." On this point, Heisenberg and Richmond fail to mention that one of their case studies — the recent Irish refusal to alter fiscal policy in the face of ECB criticism — seems to disprove their basic claim.

Second, does the autonomy of national institutions, such as domestic European courts, necessarily widen the gap between international organizations and national governments, as the authors maintain? Legal scholars such as New York University’s Joseph Weiler argue — with better evidence — the opposite: Powerful national courts have recently imposed an effective check on the ECJ in part because they are more attuned to local priorities.

Heisenberg and Richmond’s article is not the final word on the autonomy of international organizations, even within the European context. But it does direct our attention toward critical concerns that have ramifications beyond Europe. Whether you are unilateralist, multilateralist, or something in between, your policy prescriptions are necessarily grounded in speculative answers to precisely the questions Heisenberg and Richmond have posed.