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Forging Flexibility - the British 'No' to
Schengen*
Antje Wiener**
Institue of European
Studies, Queens University, Belfast
Introduction [1]
Schengen [2] is
about border politics, i.e. politics and
policymaking about border crossing in the widest meaning
of the sense of the term 'border'. As such it touches on
the core areas of governance. Any decision to join the
Schengen process involves therefore considerations about
the meaning of border politics and the norms that guide
them in the context of the respective member state, or, member state to
be. So far, thirteen of the fifteen current member states
of the European Union (EU) have signed the Schengen
Implementation Agreement (SIA) and hence agreed to
implement the Schengen acquis. [3] While the majority
of EU member states as well as Iceland and Norway as
associated members have been relatively keen on signing
the SIA, the UK, Ireland and to a limited extent Denmark
have, so far, maintained a disinterest in signing and,
subsequently, compliance with the Schengen acquis.
[4] They
either oppose becoming a full member and prefer, to
opt-into specific areas of the SIA only like the UK. Or,
they object to the communitarisation of the Schengen acquis
as in the case of Denmark.
So far, the literature on Schengen has largely dealt
with two aspects. It has either been predominantly
engaged in trying to make sense of Schengen, or rather,
the sheer amount of technical data relating to it,
ranging from the vast piles of the Schengen acquis
to the cornucopia of involved
working groups and committees. Much of the acquis,
including the material, the institutional and the
substantive aspects of Schengen have indeed remained
barely known to even participating policy-makers, let
alone the public. [5]
Or, it has concentrated on the
Schengen implications for changing migration policy in
Europe. [6] In turn,
there has been little theoretical work on Schengen from
the perspective of shifting politics of governance, and
specifically, decision-making `between' international
politics, European integration and domestic politics. [7] However, recent
work on European integration in the social sciences, as
well as legal debates over the concept of flexibility
and/or the nature of the `European' polity [8], offer promising
avenues towards a more theoretically informed approach to
Schengen. [9] This
paper elaborates on them. A note of caution is in order,
however. The intention of the paper is to shift the angle
on Schengen and raise a number of questions about the
crucial role of norms in decision-making processes. It
does not aim at presenting an empirically sustained
constribution to theorizing governance. Instead, it seeks
to bring the role of Schengen in shifting perspectives on
governance to the fore.
As an empirical angle the paper
draws on the hearings on Schengen that were held in the
British House of Lords European Communities Committee. [10] It is argued
that, the discourse presented in the minutes of these
hearings bring an interesting perspective on British
border politics to the fore which facilitates an view on
the Schengen agreement and its implications for
governance between Europe and the nation-state. The
hearings suggest that the British `no' to Schengen may
not be sufficiently explained with reference to British
Euroscepticism. A closer investigation of possible other
factors that are of significance for decisions about
supranational rules in core policy sectors is therefore
required. For example, the dual character of norms
(stable and unstable) as well as the level of norm
construction (national and supranational) are crucial
factors in the Schengen equation not only for the UK but
for all participating member states.
As this paper proceeds to show, an interdisciplinary
perspective that draws on the constructivist assumption
of intersubjectivity on the one hand, and on
metaconstitutional theorising about the Europolity as a
non-state polity, on the other, brings a curious twist to
the fore. In fact, once working with a constructivist
approach that identifies a dual character of norms
as stable structuring as well as unstable constructed
factors in the policy process, it follows that the
British `no' has been substantial to forging
flexibility as a constitutional principle in the
`European' polity (Curtin 1995, Shaw 1999, Shaw and
Wiener, forthcoming, Wallace 2000). As will be
demonstrated, the Schengen process, including its
inception and its current communitarization has
contributed to further European integration. That is,
flexibility appears to have assumed a place within the
`embedded acquis communautaire' of institutional deepening (Wiener 1998b). Indeed, the
flexibility principle has already been singled out as
crucial to other core policy areas in the EU, such as,
for example enlargement. [11]
The paper is organised in three further sections. Section
2 briefly introduces basic information about the
Schengen Convention and defines the current conditions
under which decisions on the Schengen acquis are
made. It suggests that constitutional variables have a
significant impact on decisions about changes in in core
areas of governance such as, for example, border
politics. Section 3 sheds light on the puzzle of
the British ,no` to Schengen. Section 4 develops
the theoretical argument, elaborating on the influence of
norms in decision-making situations. The paper concludes
by generating a path for further empirical work.
2 The Schengen Case
In 1985, the governments of five European Economic
Communities (EEC) member states signed an agreement
toward the "gradual abolition of checks at their
common borders" in Schengen, a small town in
Luxembourg. The agreement sought to abolish controls on
the internal borders between Belgium, the Netherlands,
Luxembourg, France and Germany. The shared interest in
moving ahead towards creating an common market without
internal frontiers within the EEC made the governments of
these member states act on an intergovernmental basis.
The goal was "facilitating the transport and
movement of goods" (Meijers, 1991, p. 155, Appendix
2). Since the harmonisation of border politics appeared
unlikely to be achievable within the common market
framework, at the time, the Schengen signatories decided
to pursue their shared goal unhampered by EEC
legislation, and opted for and out-of community approach
instead. On the basis of co-ordinated action outside the
Communities border politics were hence
fragmented in 1985 (Gehring 1998, Wiener
1998a, Ch. 10, p. 228). It is however important to note
that the fragmented border politics was explicitly linked
with the common market legislation.
All provisions of the convention were only to apply
insofar as they are compatible with Community law. [12] The border
politics were eventually to contribute to creating an
internal market without internal frontiers (Hailbronner
and Thiery 1997, 957 ff.).
In other words, former Commission President Jacques
Delors' popular slogan of "Europe '92" was now
pursued in two arenas, inside, as well as outside
Community structures, if with actors who often
participated in committees of both organisations.
Commission and other Euro-enthusiasts backed the plan.
They were hoping that Schengen would turn into a
"laboratory", or even better, an
"engine" which would push the complex issue of
border politics, i.e. the realisation of the four
freedoms of movement of goods, services, capital and persons according to the Treaty of Rome
(Wiener 1998a, Ch. 9, 10). Realisation of the four
freedoms became a particularly important goal for the
realisation of a "People's Europe." [13] It was the basic
condition for creating a feeling of belonging, based on a
stronger bond between the Community
and its citizens. In practice, the idea was that crossing
borders without being stopped for controls was a major
issue on the agenda of creating a European identity. [14] Once the Schengen
states had successfully implemented the Schengen acquis,
however, no later than 31 December 1992, border politics
was to return into Community policy.
While in 1990, the Schengen states signed the
"Convention Applying the Schengen Agreement,"
the 1992 deadline for creating the internal market passed
without much progress in
implementing the Schengen acquis. Some Commission
officials now considered the Schengen a possible
"graveyard instead of a laboratory for the EC,"
[15] whilst members
of the European Parliament expected Schengen to produce a
boomerang effect that would produce
aversion against the EC among European
citizens. [16] They
were feared that, when in March 1995 a number of
governments decided to go ahead and put the Schengen
Agreement into force, instead of creating a stronger bond
of belonging based on open borders, European citizens
found themselves checked at internal Community borders
among Schengen and non-Schengen
states. Finally, at the 1997-97 Amsterdam
intergovernmental conference (IGC), the EU member states
decided to incorporate the Schengen acquis into
the Community legal order by means of a protocol annexed
to the Treaty. [17]
Once identified, the Schengen acquis will be
transferred into the first (European Community) and Third
(Justice and Home Affairs) pillars with movement matters
relating to the first pillar and police matters to the
third pillar, respectively (Petite, 1998, Part I, p. 4 of
5).
Three major aspects of the Schengen acquis have
implications for the area of national border politics for
all signing member states. The first issue is the
abolition of controls at "internal borders". It
entails the removal of border checkpoints at borders
among Schengen Member States. The
second issue refers to the implementation of
"flanking measures". Such measures include
setting up new control mechanisms that substitute the
abolition of border controls, for example, by introducing
"spot-checks" in the wider border areas, and by
enforcing external borders of the Schengen territory. [18] The third issue
which has been established by the
Amsterdam Treaty will trigger a "ventilation
exercise". That is, by the process of transferring
part of the Schengen acquis into the First Pillar,
and thereby subjecting them to Community law, on the one
hand, and by leaving part of the acquis in the
Third Pillar of Justice and Home Affairs that is managed
on an intergovernmental basis. [19]
The result is an extremely
complex approach to compliance with Schengen rules, in
particular for those Member States that have chosen to
opt-out of the Schengen process and that may choose to
opt into specific areas of Schengen later. [20] Why do some
states decide to adopt and implement the Schengen acquis
whereas others opposed the project in 1985 when the
Schengen Agreement was first signed, and subsequently
preferred to opt into certain areas of Schengen based on
the principle of flexibility that was established at
Amsterdam? In other words, why this denial or reluctance
to join a club that appears to be gaining popularity
lately, particularly, and perhaps specifically in the
German member state of the EU. What are the implications
of handling the difference in dealing with Schengen among
EU member states for the emergent `European' polity?
European integration literature offers two answers to
the first set of questions. The first answer refers to
the UK's geographical location as a condition which,
specifically in the 1980s when the creation of a single
market without internal frontiers was first discussed,
led to override the shared norm of European integration.
The long prevailing British argument is that, as an
island, the UK has a comparative advantage in the field
of border politics. In other words, the government feels
maintains that based on its geographic location the UK's
immigration control is reduced to certain main ports of
entry such as airport, seaports, and, now, the Channel
tunnel. Joining Schengen would mean significant changes
in UK border politics. For example, in a White Paper
titled "Fairer, Faster and Firmer - A Modern
Approach to Immigration and Asylum" the United
Kingdom government's policy on frontier controls is
characterised in the following way:
- "frontier controls are 'an effective means
of controlling immigration and of combating
terrorism and other crime'
- these controls 'match both the geography and
traditions of the country and have ensured a high
degree of personal freedom within the UK'
- this approach is different from that in mainland
Europe, 'where because of the difficulty of
policing long land frontiers, there is much
greater dependence on internal controls such as
identity checks'." [21]
It could, however, easily be stated that for example,
Italy could feel equally threatened by Schengen. It could
further be argued that, in the age of the aeroplane, and
with the Eurotunnel in service, geographic location is no
longer as strong a factor to distinguish UK security
interests from other countries as it once was. The
reasons for opting out of the European norm therefore
appear to lose persuasive strength. The following
citation from a witness hearing on the costs and benefits
of joining Schengen in the British House of Lords
demonstrates the limited weight of the argument of
geographic location for taking a decision on Schengen.
Being asked by the Chairman of the Committee:
"... Do you accept that Britains geographical
position is different and therefore I do have a
justification to opt out, or do you take the more
sceptical view and believe that border control, as such,
is not the key question?" (Question 130, p. 7/11,
asked by Lord Wallace of Saltaire)
Professor Groenendijk answers a few questions down the
line in the same hearing:
"... I will not deny that Britain has a special
geographic position. However, I think the way the border
control tradition in Britain has been established, is not
specifically related to its geographic position. There
are other European countries like, for instance, Germany
and the Netherlands who have long relied on strict
control at the external borders and few controls inside
while, for instance, Belgium and France have a long
tradition of not so strict controls at the external
borders but more controls inside the country. As to that
aspect, Britain is not so typical in its reliance on
strong external border controls, that is not a typical
British tradition only." (Question 132, p. 9/11)
(emphasis added, AW)
In other words, on a cost-benefit scale, and comparing
the British situation with experience in other Schengen
member states, a British decision to join Schengen would
not necessarily imply a set-back compared to the current
system of border controls.
The second position has been developed within the
framework of constructivist theorising in European
integration. It proceeds from the observation that
socialisation matters to the extent that
ideas and identity constructions become consensual
when actors thoroughly internalise them, perceive them as
their own, and take them for granted (Marcussen et
al. 1999, p. 617, see also: Finnemore and Sikkink 1998,
Risse and Wiener 1999). This research finds that the UK's
national interest has created a context for
identity-options, which does not allow the government to
easily opt in favour of European norms. In other words,
this research has demonstrated that Europe is
still perceived as Britain's other (Marcussen
et al. 1999, p. 625). The chosen policy suggests an
identity that does not resonate with the majority of the
policy addressees. Due to the slowly changing national
interest that prevails as a main factor in the formation
of public opinion, the new Blair government cannot simply
move in and go ahead and change its policies regarding
the EU. This situation significantly restricts the
identity-options available to the UK as a potential
Schengen member state as well.
Identity-options are crucial for the negotiation and
implementation of supranationally established rules in
the respective domestic environments of the signing
member states. This paper draws on this insight. It
argues, however, that identity-options are specifically
important for major decisions that have a broad popular
impact, such as, for example the introduction of the
Euro. Other decisions that are less exposed to popular
scrutiny require more specific insights into why
decision-makers make certain choices. Therefore, this
paper seeks to push further. It suggests examining the
impact of the `situatedness' of decision-makers. That is,
it pursues the question of which social norms make
decision-makers decide as they do. To that end it
elaborates on the impact of the dual character of norms
on decision-makers. This perspective draws on two aspects
that are important for analysing decision-makers'
behaviour in the Schengen process.
First, Schengen impacts on the core components which
define the sovereign status of nation-states in global
politics, i.e. borders, security and, citizenship
(de Witte 1998, Kratochwil 1994, Linklater 1996, Waever
et al. 1993, Zuern 1998). Its constitutional implications
therefore touch the values established by and entrenched
in the constitutional context
of the Schengen member states. The question is hence,
whether or not Schengen policy resonates with these
contextual variables. [22]
Secondly, Schengen does not present a decision-making
situation within a clearly set time frame. Instead, it
needs to be viewed as a process that develops over time.
In other words, the potential for (a) incremental
institution building, and (b) the construction of shared
values among the participating decision makers need to be
taken into account. [23]
Both have the potential to contribute to building
institutions and constructing norms that subsequently
become part of the acquis communautaire. As such
these processes have substantial impact on European
integration. They may crucially impact on
decision-makers' contexts, identities, and, subsequently
behaviour according. The identity of the decision-makers
which reflects, among other things, alternating practices
in national and supranational
contexts. It is therefore of critical importance to the
explanation of supranational decision-making. [24] The British
discourse in the process of taking a decision about
Schengen exemplifies the situation. During the hearing
with witnesses in the House of Lords, the issue of
fairness and the threat of racial discrimination as a
consequence to the abolition of border controls and the
establishment of the flanking measure of spot-checking.
The investigating committee raised concerns about racial
discrimination, asking:
"How do you interpret the strictness of a control
with the promotion of good race relations in the country?
Do you think that genuine visitors are being put through
the same machinery as illegal immigrants before their
entry over here and that it has an adverse effect on good
relations in this country?" (Question 93, p. 5/8
asked by the Chairman, Lord Lester of Herne Hill)
The following response shows that while inflicting
harm on race relations may not be intended, the checking
of identity cards is deemed necessary nonetheless. This
appears to create concern about the justness of the
procedure among those who are responsible for the
implementation of the Schengen measures.
"We certainly have no reason to believe that the
control is acting in a way that is inimical or harmful to
good race relations. ... Clearly, it is a more thorough
control in respect of Third country nationals arriving in
this country but many of those who arrive here of course
arrive from elsewhere in the world. Therefore, were they
arriving in Schengen, they would be undergoing a similar
kind of control. Against that, I would put the point,
which the government I know attaches great importance to,
that the alternative to that kind of border control
will be the kind of internal control that involves a much
higher degree of discretion and intervention, seeking
production of identity documents, which the government views as
likely to be more harmful. In that context, I think
they would be mindful, among other things, of the current
debate associated with the Stephen Lawrence inquiry on
police relations with ethnic minority communities." [25]
In a country with a civil liberties tradition that
does not follow the rule of compulsory identity card
carrying, the perspective of establishing flanking
measures according to the Schengen acquis, do not
appear to resonate well.
3 The Puzzle: Opting out Despite Shared Interests
This section discusses a number of supranational
conditions and their potential resonance with British
security interests which would suggest a positive
attitude towards Schengen. It first situates the British
puzzle in the larger context of supranational norms that
have contributed to policy changes in the area of border
politics. The subsequent section 4 places the
Schengen decision-making process within the larger
context of polity-formation.
Two types of supranational conditions suggest that the
British 'no' to Schengen stands in opposition
to British interests in security and democratic
performance. The first condition is actually best
characterised as a norm which is defined by the shared
objectives that are part of the acquis communautaire,
that is, the shared body of legislation, the rules,
procedures, directives and regulations of the EU. [26] It can be argued
that British and continental European governments
actually share an interest in the area of border
politics. For example, the free movement of workers has
been a shared objective of the EEC, and now EC for
decades (Hailbronner and Thiery 1997, p. 957). The
amendment of Article F of the TEU towards the inclusion
of a section on Freedom, Security and Justice further
sustains the concern about security. The second
supranational condition with an impact on decision-making
in the area of border politics include the
"securitisation" of border politics (Buzan et
al. 1998, Huysmans 1997), on the one hand, and an
increasing decline in the legitimating role of
majoritarian rule in liberal democracies (Held 1992). The
first implies a shared strong interest in securing
borders, and keeping so-called third-country nationals
out. The second suggests that output-oriented policy
making is gaining weight in comparison with
input-oriented democratic legitimation. Schengen
does potentially offer an answer to both. Still, the UK
does not wish to join the Schengen club, despite a shared
interest in a given issue area, and strong supranational
conditions which would favour such a step. [27] In the following
I elaborate on these observations.
From Co-operation to Integration: An Emergent
European Norm
In itself, the refusal to join an international
co-operation agreement is not puzzling. After all, states
do have different interests and therefore pursue
different political agendas. For realists, the puzzle
would not occur at all. Under conditions of anarchy,
states would only cooperate in case of threat. Liberal
and neorealist approaches in international relations
theory accept co-operation as a means to achieve gains
for all actors involved. In turn, constructivists would
argue that states are part of a structured relationship
that stems from the interrelation between states and
increasingly other actors in global politics as well.
Co-operation within this structure is not unlikely but to
be expected. It is even more likely when institutional
arrangements have been purposefully constructed with a
view to increase co-operation among states such as, for
example, NATO, WTO, NAFTA, the UN, the EU, and Schengen
as well.
However, it needs to be noted that among these
institutional arrangements, the EU is an exceptional
case. It is less than a state and more than a regime.
Crucially, it is an arrangement that facilitates
co-operation to an extent that differs from other
international organisations because it always involves
the assumption that the interest in participating in the
co-operative process is expected to override national
interests. This expectation manifests itself in the EU's
first pillar of community legislation, which stipulates
that most decisions are to be taken by qualified majority
voting.
When analysing the EU, it is important to note that
what was once a regime has developed institutional
features beyond original design and certainly beyond the
purpose of managing economic interdependence. As it now
stands, the regime is not exclusively based on the
original set of political and legal organs, but has come
to include shared norms, commonly accepted rules and
decision-making procedures. Subsequently, decision-making
in the `European' polity is not only guided by the shared
legal and institutional property of the EC/EU. It is also
both result and part of an ongoing process of
construction that is driven by the process of governance
beyond the nation state.
The potential of overriding national interest is hence
shared by the participating actors in EU politics. It has
become a rule that is legally grounded in the practice of
qualified majority voting in the Council of Ministers. In
accepting this rule co-operation has acquired the meaning
of 'co-operating towards European integration.' It is
possible then to conclude that in the case of the EU,
co-operation is larger than the sum of the co-operating
actors and the rules that guide them. The ongoing process
of European integration has thus produced an
institutional arrangement that is more than a regime. It
is a polity, albeit a non-state polity.
If the structural force of shared norms such as
'co-operating to further integrate' did actually impact
on actors' identity, interest and behaviour, and then one
would not expect significant variation among European
member states' attitude towards Schengen. After all, the
Schengen Agreement was perceived as a process of
co-ordinated extra-community action that would enforce
the abolition of internal EU borders (Gehring 1998). By
increasing the realisation of the four freedoms of
movement of capital, goods, services and persons,
Schengen would therefore ultimately contribute to the
process of European integration. If European integration
is perceived as 'a good thing', and Schengen is
considered an "engine" or a
"laboratory" that in the process of European
integration (Wiener 1998a), then it follows that the SIA
would resonate perfectly well with the EU member states.
In other words, signing the SIA and complying with the
Schengen acquis could be expected to raise
substantial support from all EU member states. That is
however, not the case. Not now and it was not true either
about 15 years ago, when the Schengen Agreement was first
signed.
Unless it were convincingly shown that there is no
shared norm of European integration, that
intergovernmentalism were back and, with it, a strong
national interest of keeping control over national
borders, the strong structural push factors suggest that
the British opting-out remains a puzzle. While it has,
indeed, been argued that the IGCs at Maastricht (1990-91)
and at Amsterdam are the markers of a return to the
perils of intergovernmentalism in the EU, this paper
proceeds to show, that curiously, the British 'no' to
Schengen actually furthers European integration by
forging flexibility. The resistance to sign on as a
member state has caused an opening in constitutional
politics.
Security Risks and the Democracy Deficit
Beyond shared European norms, two further conditions
suggest a shared interest in participating rather than
opting out of Schengen for the UK. One condition is the
now familiar phenomenon of the 'democracy deficit' in the
EU and elsewhere. The other is the phenomenon of
securitisation, that is, a growing perception of threat
among the population. While the democracy deficit has
long been discussed as a particular problem stemming from
the EU's institutional arrangements that lack electoral
legitimation, the notion of democratic deficit has also
been underscored by a thinning out of national
identities, and in efficient national policy performance.
Without providing much more detail at this point, in a
nutshell it can be stated that the democratic deficit is
a globally occurring condition that structures governance
in one way or another (Z�rn 1998). Supporting 'human
rights', creating 'democratic conditions' throughout the
globe, supporting 'sustainable development',
participating in 'peace-making', and much less
spectacularsince less successfulcreating jobs
and/or job security have been reactions to the condition
of democracy deficit.
This assessment of the democracy deficit as a
condition with structural impact on actors is based on
the observation that, legitimate governance depends on
three necessary conditions. The first is input-oriented
legitimacy i.e. representation based on voting
procedures which are specific to the respective
democratic order. The second condition is output-oriented
legitimacy, i.e. efficient policy performance of
the government. The third condition is the normative
requirement of a shared collective identity which makes
input-based decision-making acceptable to the minority,
on the one hand, and that evaluates efficiency, on the
other. As Scharpf stresses, without this shared
collective identity, a society is unable to provide the
solidarity that is the necessary condition for minorities
to accept and tolerate majority decisions (Scharpf 1995,
pp. 2-3]. As long as these three conditions remain at
equilibrium, the expectation is that legitimate
governance is relatively stable. The balance between
these three conditions has, however, lost stability. If
the stability of this legitimacy balance has been the
core of post-war western democracies, then a shift in
this balance is likely change the conditions.
The second supranational
condition is the phenomenon of the
securitisation of migration policy and hence
of 'border politics is of particular importance. [28] According to the
migration literature, migration has been increasingly
presented as a security threat. In the process,
terrorism, drug dealing, and trade with human
beingsespecially women, Mafia and other
criminal elements have been linked to border politics.
Policy reactions to the securitisation of border politics
include anything from increasing internal security
measures, enforcing border patrols, to installing new
security systems on a general level. More specifically,
in Europe, these innovations include enforcing external
border controls and spot-checking, as well as setting up
new security institutions such as, for example Europol,
the European police agency ("Die Woche",
January 1999).
The so-called flanking measures that are part of the
Schengen acquis entail a number of measures
designed to increase security. Indeed, as some have
observed, Schengen appears to be more of a security
convention than a convention towards the abolition of
borders. As such, becoming a Schengen member includes the
opportunity to demonstrate the achievement of badly
needed efficiency with a view to increasing legitimacy at
home simply on the basis of supporting the creation of
Europol.
In other words, if it were true, that on the one hand,
- EU member state action is linked to the existence
of the shared norm of European integration, as 'a
good thing',
- that state action on a global scale is
increasingly structured by conditions of an
increasing crisis of majoritarian rule and that,
furthermore, an increasing securitisation of
border politics favours an increase in security
measures by national governments,
- and if it were also true that, on the other hand,
- Schengen provides a number of policies that are
so-called flanking measures which are intended to
set up new security controls within Schengenland,
then, the UK's opting out of Schengen is puzzling.
What remains to be explained is, why does a government
(a) prefer to evoke the image of opposing the shared norm
which, surely, will create a disadvantage in the ongoing
history of co-operation/integration, and (b) let the
chance to increase government legitimacy pass.
It is suggested that the answer to this puzzle lies
hidden in the complexity of context variables. Thus, two
sets of stable 'norms' that are supranationally shared
can be identified. They include first an increasing
acceptance of European integration as a 'good thing'. The
second stable condition for decision-making in the
context of the 'European' mixed polity is a growing need
for output-oriented legitimacy which could be achieved,
for example, by successful policing on the basis of the
new Schengen Information System (SIS). These
supranational conditions are in conflict with the
nationally entrenched context variables. In part, these
are set by the citizenship discourse that contributes to
establish the "borders of order" in a
particular polity (Kratochwil 1994). In the following, I
turn to these domestically set norms. I argue that the
stability of national norms is the decisive factor in the
Schengen equation, because, on the one hand, they
influence opting out, and now, opting into Schengen,
whereas on the other hand, their stickiness has had a
substantial impact on forging flexibility. The
negotiations over Schengen have made flexibility socially
acceptable in the `European' polity.
Supranational Conditions versus Domestic Norms
The observation that the discourse of citizenship
defines the borders of political order in specific
settings (Kratochwil 1994) begins with the assumption
that citizenship is always more than the sum of its
parts. At the centre of this argument lies the assumption
that intersubjective practices such as social and
communicative action contribute to the meaning of the
border of order at specific times and places. If this
intersubjective perspective is accepted as one crucial
dimension in defining borders, then perceptions of
borders and how to deal with them differ according to
discursively constructed communities.
Clearly, the limits of such communities are always
subject to change. They are therefore potentially
shifting. They may, however, crystallise over long
periods of time, as occurred, for example during the
post-war period. In such periods, the limits of the
discursively defined community, and subsequently, the
limits of shared norms remained stable. A change in the
perception of borders, however, has an impact on how to
deal with borders. It destabilises decision-makers' view
on whether or not to accept rules that aim at changing
border politics. If this observation were correct, then
it would follow that compliance with Schengen rules is,
in no small part, dependent on changing perceptions of
borders. A view of the concept of borders underscores the
crucial question about the stability of national norms
for decisions about Schengen rules.
Border politics have been crucial to and are
influenced by state-formation in the modern world. They
are core to the concept of sovereignty, both in setting
its legal boundaries and in constructing the social
boundaries (de Witte 1998, p. 277, Biersteker and Weber
1996). Specifically, the process of
citizenship practice that sets the terms of citizenship
in a given context has been invariably linked with and
constitutive for the formation of modern-nation states. [29] Towards the end
of the 20th century that relation has begun to change.
Citizenship is now increasingly fragmented and moving
away from the single rooted identity that was core to the
power of sovereign nation-states in the Westphalian
system of states (Wiener 1997, Meehan 1997, Benhabib
1998). Borders are subject to frequent crossing,
globalisation and migration flows impact on a changing
perception of borders of order. Polities are found to be
more medieval than modern in shape.
That is, they are at times overlapping, come in different
sizes, entail multiple ways of political organisation
(Ferguson and Mansbach 1996). [30]
The EU is a prime example of this process.
This change in the shape of polity has implications
for the substance of polities as well. That is, one or
more of the four basic dimensions of a
polityauthority, identity, the ability to mobilise
citizens and the capacity to grant continuity in the
institutional structure (Ferguson and Mansbach 1996, p.
xx)will eventually change as well. The question is,
whether and if so, how, these processes implicate changes
on perceptions of the border of order in the EU member
states. In other words, and with a view to the Schengen
case in particular, it needs to be established what
decision-makers consider as just and fair and on what
grounds. In the following, I elaborate on the dual
character of norms and its role in the decision-making
process over Schengen.
4 The Dual Character of Norms
On the one hand, the sui generis status of the
mixed `European' polity remains a matter of dispute among
students of European integration to this day. On the
other hand, the state-based tools of much of European
integration research, in political science and law in
particular, are increasingly problematic for analyses of
a polity which, as Amsterdam made very clear, keeps
forging flexibility as a core governing principle. This
section elaborates on the implications of the dual
character of norms for the mixed `European' polity. It is
argued that this impact is, indeed, twofold. It refers to
decision-making in a mixed polity setting, on the one
hand, and on the impact on the forging new constitutional
principles, such as flexibility, on the other. In
conclusion, this section finds that the identification
the 'situatedness' of decision-makers allows for explaining
decisions. Beyond that, it opens perspectives for understanding
the role of the peculiar locus 'in between' polity
levels, legal frameworks, and, indeed, polities (Curtin
1996) in the process of constructing the `European'
polity as a non-state, and despite states (Shaw and
Wiener, forthcoming).
The argument is interdisciplinary, in so far, as it
combines legal and political science theoretical debates
on European integration. It builds on constructivist
approaches to European integration that stress that
socialisation and intersubjectivity matter for
decision-making (Christiansen et al. 1999, Walker
forthcoming, respectively). It further draws on recent
metaconstitutional theorising by legal scholars. The
paper proposes a focus on the 'situatedness' of
decision-makers that is, it stresses the crucial impact
of differently established understandings of
constitutional norms and demonstrates the impact of
nationally embedded norms on decision-makers' behaviour
in supranational contexts. While supranational norms do
condition the behaviour of domestic actors, the role of
constitutive norms within domestic frameworks must not be
underestimated. Different perceptions of constitutionally
entrenched values can be of significance for both, making
decisions in a multi-level polity such as the EU, and, in
turn, forging flexibility as one core principle of
governance in this polity.
As one of the policy sectors where flexibility has
been institutionalised Schengen challenges long-standing
assumptions about the politics of international relations
in a system of states. Crucially, IR theorists have
argued that this system is structured by the principle of
anarchy (Waltz 1979), and based on the mutual acceptance
of national sovereignty, i.e. a level of
governance out of reach of constitutional law and with
little impact on national constitutional change.
Similarly, lawyers traditionally make a sharp distinction
between international and constitutional law. However,
the global system increasingly resembles, in its
features, much more a medieval pattern where polities of
different shape and institutional order partially overlap
(Ferguson and Mansbach 1996).
In that context, Schengen also poses a threat to the
cosy niches of domestically established and nationally
guarded constitutional contexts. As the safeguard of
national borders is threatened by the new border politics
that come with Schengen, those domestic constitutional
contexts are equally at stake. Ironically, the British
'no' to Schengen has contributed to forging flexibility
as a core governing principle in European integration
after Amsterdam. Yet, the increasing acceptance of this
principle as a European norm, further constitutionalises
European integration. If Euroscepticism were the main
motivation for British decision-makers to withhold from
Schengen membership, the consequences of the British 'no'
were diametrically opposed to that intention.
Two leading observations guide the argument. They stem
are part of the constructivist approach offered in this
paper. First, if it is true, that "(T)he
universality of law, its 'justness,' does not consist in
its abstractness; rather, it is constituted by its
respect for the rights and duties that we, as fully
situated persons, have" (Kratochwil 1994, pp.
495-96) then, being situated in a specific constitutional
context implies that the understanding of norms is
equally specific. To know what is just or fair, then,
depends on a number of contextual variables. Secondly, if
intersubjectivity matters to norm construction, then it
follows that norms do not only structure decision-makers'
behaviour, but they are also constructed by them. As the
paper proceeds to discuss, norms cannot be taken as
stable over long periods of time. This complicates
investigations that consider norms as causal factors.
To explain decisions on constitutionally entrenched
issues such as border politics as in the Schengen case,
it is not sufficient to observe the strategic steps of
decision-making. Where a decision is being made is
crucial. This position is defined by a time axis, as well
as by the location within the multi-level governance
structure of the EU. Both define the contextual variables
that are influential for situating decision-makers. In
the EU, in particular, such processes, almost as a rule,
lie in an area which has been defined as in
between (Curtin 1996). In other words, it can
neither be reached by domestic constitutional law, nor by
international law, statist approaches to politics and law
often contribute to confuse, rather than clarify the
issue (Shaw and Wiener, forthcoming).
Different from the "modern constructivist"
(Katzenstein, Keohane and Krasner 1998) rationale that
focuses on the impact of supranational cultural norms on
domestic behaviour, the perspective on the dual character
of norms requires a more careful elaboration on the fluid
aspects of norms. In other words, in situations where the
stability of norms cannot be taken as given, and fluidity
is a likely option, further conceptual definition is
required. It follows that the context for decision-making
is not only set by stable supranational and national
norms, it also contributes to the process of establishing
and/or creating new norms, i.e. to the process of
forging flexibility. The dual character of norms points
to the following causal relations: The less stable
national norms get, the more likely is a decision to opt
into the Schengen acquis. Curiously, with a view
to the process of forging flexibility in the 'European'
mixed polity, this same relation implies, that the more
likely a British decision to accept Schengen rules, the
more likely is a decrease in the importance of
flexibility as a governing principle in the Schengen
context.
This section raises the issue that further to being
stable factors with structuring capacityas
demonstrated by students of international relations
(Katzenstein et al. 1997)norms also entail unstable
qualities. That is, norms do not only possess structuring
capacity, the are also subject to reconstruction. While
as a general rule, norms are sticky and change slowly
(Risse, forthcoming) they do possess potential for
change. The key task is therefore to establish when and
where, in the context of multi-level governance, norms
are stable, and, in turn, when and where they are subject
to change. As this section suggests, for an understanding
of decisions that appear contradictory in a larger
normative context, it is helpful to begin with
identifying the dual character of norms. The following,
first briefly recalls the main features of multi-level
governance in a mixed-polity, then stresses the helpful
conceptual window that is opened by taking the avenue of
metaconstitutionalism, and finally turns to
constructivist approaches to European integration.
The Mixed Polity
European integration has created a 'mixed polity' in a
world of states. The mixed polity status has gained a new
quality with the Amsterdam IGC which contributed to
giving the concept of flexibility almost constitutional
status. With a view to the role of constitutionalism in
this mixed polity, it has been argued that Amsterdam
offers new insights into the role of law indeed. As Neil
Walker has pointed out, "Amsterdam is both instrumental
and reflexive. It both adds to the unplanned
architectural sprawl of flexibility, particularly in
documenting the latest compromises over Schengen and the
Third Pillar, and begins to reflect upon, learn from and
impose certain design and a certain set of ordering
principles upon the flexible arrangements already in
place ... " (Walker, forthcoming, p. 4).
The Amsterdam decision to bring the Schengen acquis
of the 1985 Schengen Agreement on the abolition of border
controls into the EU's pillar structure is a core factor
of this shift. As this paper seeks to demonstrate, in
political terms, the decision to institutionalise the
practice of opting into certain policies that are
regulated on the supranational level while opting out
from others, represents a critical turning point towards
forging flexibility as a core principle of governance.
Three components need to be distinguished when dealing
with a mixed polity. They include the type of
integration, i.e. positive, negative, differentiated
(Scharpf 1999), norm acceptance from, i.e. politically,
legally, socially (Zuern and Wolf 1999) and, as this
paper stresses, the `constitutional character' of policy,
i.e. international law, domestic constitutional law, or
neither of both (Walker, forthcoming).
The Dual Quality of Norms
Where and when a decision is being taken is crucial
for explaining the outcome. As such, recognising the
context of decision-making situations is widely shared
among political scientists ranging from the rationalist
to the reflectivist (for the range, see: Christiansen et
al. 1999, pp. 536, 543). Context always matters. The
controversial question is, however, how does context
matter, and, more specifically, which are significant
causal factors that make actors decide in one way and not
in another? In situations of co-operation and bargaining
beyond the institutional structures of nation-states, the
main point of dispute among rationalists and
reflectivists has been the assumption of stability and
change that frames decision-making. Rationalists seek to
establish stable factors and cannot account for change
during the decision-making process itself. They calculate
with stable identities and interests and seek to isolate
significantly influential factors that cause actors to
behave in one way and not in another. In turn,
reflectivists work with the assumption of fluidity and
change throughout. That is, the negotiating process is
likely to cause changes in identity and hence interests.
To work with the law-like theoretical foundations of the
natural sciences, means to cast social relations in stone
and hence undermine their flexible quality. At this
point, the differences between the two poles became
political: the radically critical approach of the
reflectivists challenges the conservative assumptions of
the rationalists. This stalemate hampered fruitful
conversation among scholars of international relations
(IR) theory until constructivists began to establish a
middle ground between the two radical poles (Adler 1997,
Checkel 1998, Christiansen et al. 1999).
Conclusion
The paper sought to demonstrate that 'Euroscepticism'
was not the decisive motivation for the British 'no' to
Schengen. Instead, the paper identified the influence of
contextual variables such as supranational and domestic
conditions. Based on the constructivist assumption that
socialisation and intersubjectivity matter, it suggested
to situate decision-makers. In particular, it pointed to
the dual character of norms as structuring factors that
inform decision-makers, albeit often invisible and as
constructive components in the process of European
polity-formation. As such, the paper showed that the
controversial debates over the implementation of the
Schengen acquis has contributed to forging
flexibility as a governing principle in 'European'
politics. The interdisciplinary political scientist and
legal approach of the paper brought to bear findings of
the creeping constitutionalism, that has assumed pace
specifically after the Amsterdam IGC. Beyond offering an
explanation of the British 'no', the paper thus opened a
theoretically informed perspective on the Schengen case
as one that entails key features of the process that is
forging flexibility.
The working hypothesis underlying this paper was that
changes in border perceptions differ in European
countries. This assumption was based on the finding that
Europeanisation involves the two dimensions of available
identity-options to state actors on the one hand, and
entrenched constitutional rules, values and norms, on the
other. At a time when supranational conditions are the
samealbeit with a different impactfor all
participating actors, domestically entrenched norms still
potentially differ in decisive ways. The British puzzle
suggests that this difference matter. A preliminary
conclusion of the cursory insight into the discourse on
Schengen that is related to the decision-making about
opting into certain aspects of Schengen, is therefore
that a specific practice of civil rights, or, a
particular citizenship practice for that matter,
contributes to a particular understanding of justness.
For example, in the British case of compliance with
Schengen a change of border politics poses the threat of
changing the British understanding of justice because
opening the borders threatens to lead to a change in this
particular situatedness of British citizens.
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Footnotes
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For publication in: Euopean Journal of Migration and
the Law
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Reader at the institute of European Studies,
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[1]
This paper highlights aspects of an ongoing research
project on Governance under Changing Conditions of
Democracy that is currently conducted by the author
(Wiener, in preparation). For comments on the research
project I would like to thank the participants of
research seminars in 1999 at ARENA, University of Oslo,
ECPR workshops at Mannheim, the Free University of
Berlin, University of Hannover, University of Nijmegen,
as well as the panel participants at ECSA-US, Pittsburgh.
For comments on earlier versions of this specific paper I
would like to thank Gordon Anthony and Elspeth Guild. The
responsibility for this version is the author's.
[2]
The term `Schengen' is used in this paper with reference
to the process that was conducive to the signing of the
Schengen Implementation Agreement (SIA)
[3]
At this stage, nine states have fully implemented the
Schengen acquis.
[4]
It needs to be noted that Ireland has decided to withhold
from signing Schengen because of its common travel area
with the United Kingdom. Denmark has signed Schengen,
however objects to the communitarisation of Schengen,
that is, it will opt-out of the transfer of parts of the
Schengen acquis into the First Pillar. It is
further important to note that all candidate countries
for EU enlargement (current top candidates are: Poland,
Hungary, Slovenia, Estonia, the Czech Republic and
Cyprus) must comply with the Schengen acquis
before joining the EU.
[5]
See, in particular, work by Den Boer, Taschner,
Hoogenboom, Bolten, Weber-Paranelli, as well as political
contributions by Lode van Outrive while a socialist MEP
in Brussels.
[6]
See, in particular, work by Favell, Bigo, Geddes, Guild,
Huysmans, Lavenex, for an overview, see JEMS Special
Issue 1999.
[7]
For an exception see Thomas Gehring work on co-ordinated
action outside the EC/EU that is couched in international
relations theorizing on cooperation under anarchy
(Gehring 1998).
[8]
The term 'European' is put in inverted commas when
referring to only part of Europe such as the European
Union (EU).
[9]
See, for example, Shaw 1998, Leslie 2000, Stubb 2000,
Wallace 2000, von Bogdandy 1999, Curtin and Dekker 1999,
De Burca and Scott, forthcoming, Walker, forthcoming,
respectively.
[10]
See: European Communities 31st Report,
London: House of Lords, European Communities Committee.
[11]
Thus, a group of three Wise Men has suggested
to flesh out the principle of flexibility
with a view to preparation for enlargement. See:
Frankfurter Rundschau online, 19 Oct. 99, , p. 1
[12]
Schengen Convention, Title VIII, cited in: Wiener 1998,
p. 229
[13]
Bulletin, European Communities, Supplement 7, 1985
A People's Europe. Reports from the ad hoc
Committee.
[14]
Faced with EC member states who were not interested in
joining Schengen, Martin Bangemann, Commissioner in DG
III, at the time, suggested to "wave" a closed
passport at external Schengen frontiers. Thus, European
citizens could be identified by UK migration officers
without being decriminated on the basis of time. The
action was dubbed the "Bangemann wave" and has
remained practice to this date. For a more detailed
description, see: Wiener 1998a, p. 243; for the current
application of the policy, see: Hose of Lords 1999,
Question 121, p. 3/11, answer by Kees Goenendijk.
[15]
Comment by Commissioner Martin Bangemann, DG III cited
in: Wiener 1998a, p. 241)
[16]
See: Agence Europe, No. 5859, 18 November 1992, p. 3
(c.f. Wiener 1998a, p. 241)
[17]
See: Treaty of Amsterdam, Protocols, B. Protocols annexed
to the Treaty on European Union and the Treaty
establishing the European Community Protocol
integrating the Schengen acquis into the framework of the
European Union.
[18]
For details on the Schengen Agreement, the Schengen
Convention, and the conditions for implementing and
communitarising the acquis in the 1990s, see the
excellent report by the British House of Lords, European
Communities Committee, at .
[19]
The concept of ventilation is explained by Mr Adrian
Fortescue of the Secretariat-General, European Commission
[Lords, 1999 #11], Question 218, p. 2/3
[20]
This process is further complicated by the addition of a
new Title IV on migration and asylum into the Amsterdam
Treaty.
[21]
Committee on European Communities of the British House of
Lords, Seventh Report, 1999, Part 2, p. 2/4
[22]
I thank Jeff Checkel for pointing out the importance of
the `resonance' factor.
[23]
See: March and Olson 1998, and Koslowski and Kratochwil
1994, respectively.
[24]
See, for example, Ulrich Sedelmeier's work on eastern
enlargement of the EU (Sedelmeier 1998).
[25]
Question 93, p. 5/8, Mr Boys Smith, Home Office, British
House of Lords Hearings (emphasis added, AW).
[26]
On the acquis communautaire, its role and the way it
is embedded in social processes, see
Wiener 1998b.
[27]
The larger project involves a comparison with the German
case. This paper is however, limited to identifying the
British puzzle.
[28]
This condition has been identified on the basis of
speech-acts that contribute to the politicisation of
particular contexts. See, for example Buzan, Waever and
de Wilde who note that "(T)he process of
securitisation is what in language theory is called a
speech act. It is not interesting as a sign referring to
something more real; it is the utterance itself that is
the act. By saying the words, something is done (like
betting, giving a promise, naming a ship)." (Buzan
et al. 1998, p. 26).
[29]
See: Bendix 1964, Marshall 1950; for the concept of
"routinising relations" see: Tilly 1975; for
the concept of "citizenship practice" see:
Wiener 1998a Ch. 2.
[30]
Some have indeed described polities such as the
Euro-polity as "postmodern" (Caporaso 1996,
Ruggie 1993).
[Date of publication in the ARENA
Working Paper series: 15.01.2000]
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