The Politics of International Norms: Subsidiarity and the Imperfect Competence Regime of the European Union
| Author | Kees Van Kersbergen,Bertjan Verbeek |
| Published date | 01 June 2007 |
| Date | 01 June 2007 |
| DOI | http://doi.org/10.1177/1354066107076955 |
| Subject Matter | Articles |
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The Politics of International Norms:
Subsidiarity and the Imperfect Competence
Regime of the European Union
K E E S VA N K E R S B E R G E N and B E RT J A N V E R B E E K
Vrije Universiteit, The Netherlands and Radboud University,
The Netherlands
Theories on the role of norms in international relations generally neg-
lect the possibility that after their adoption a new battle over their pre-
cise meaning ensues, especially when a norm remains vague and illusive.
Norm implementation is not only a matter of internalization and com-
pliance, but also of redefinition. Building on insights from rationalist
and constructivist approaches, this article advances the idea of recurrent
battles for and over norms in international politics. It argues that the
analytical tools of international regime theory are instrumental in track-
ing such battles. This framework is applied to the history and role of
subsidiarity as a norm in the competence regime of the European Union
between 1991 and 2005. Its main finding is that the issue of subsidiar-
ity was not a matter of norm internalization, but concerned a recurrent
battle between old and newly empowered actors over its precise mean-
ing, eventually favouring the member states’ prerogative.
KEY WORDS ♦ constructivism ♦ European Union ♦ international
norms ♦ international regime theory ♦ subsidiarity
Introduction
The evolution of subsidiarity in the European Union (EU) poses a puzzle for
International Relations (IR) theories on the role of norms in international
politics. On the one hand, its adoption at the 1990 Maastricht summit
seemed a clear indication of the acceptance of an international norm that
structured the distribution of competences between the supranational
European Journal of International Relations Copyright © 2007
SAGE Publications and ECPR-European Consortium for Political Research, Vol. 13(2): 217–238
[DOI: 10.1177/1354066107076955]
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European Journal of International Relations 13(2)
European institutions, notably the European Commission, and the member
states. The norm stated that decisions should be taken at a level as low as
possible. The collateral concept of proportionality added that the EU should
act only to the extent that is needed to accomplish its objectives and no
further. Since the adoption of subsidiarity, however, its application has pro-
duced further skirmishes between various actors in the EU polity, including
the Commission, the member states, the regions, and the European Court
of Justice (ECJ), resulting in a renewed battle for the precise contents of the
norm. This battle was first extended to include a new norm, the so-called
Open Method of Coordination (OMC), and has entered its latest stage dur-
ing the European Convention, which produced a European Constitutional
treaty, in which subsidiarity has become a weapon in the hands of national
parliaments. As a matter of fact, the failure of the ratification of this treaty
during the spring of 2005 has heartened some proponents of subsidiarity.
They claim that now only subsidiarity might save Europe from institutional
deadlock (e.g. Cooper, 2005).
These developments underscore a problem in many IR theories of inter-
national norms. These theories tend to focus on the adoption and impact of
international norms, but often assume that a norm, once adopted, retains its
original meaning. This especially concerns theories that attempt to account for
permanent changes in actors’ preferences (or even identities) in terms of inter-
national norms. For instance, Finnemore and Sikkink (1998: 892–3) argue that
‘agreement among a critical mass of actors on some emergent norm can create
a tipping point after which agreement becomes widespread …’. Similarly, Klotz
(1995: 23–5) discusses various causes of norm change, but then argues that the
crucial question is how norms become institutionalized. She does not raise the
possibility that international norms, once adopted, are themselves subject to
new battles over their meaning and usefulness. Such battles can be expected to
occur in classical intergovernmental arrangements: the reinforcement of a norm
here is difficult because of the relative lack of legal enforcement mechanisms.
One would expect norm reinforcement to be easier and less conflictual in more
supranational contexts, because such systems at least have some form of norm
reinforcing mechanisms, such as an advanced system of law. Yet, because the
polity of the EU is simultaneously an intergovernmental and a supranational
polity, a battle over norms remains a distinct possibility here too.
We set out to demonstrate three claims. First, the current literature on the
role of norms in international cooperation pays insufficient attention to the
possibility that norms are adopted because they mean different things to dif-
ferent actors and that, in consequence, compliance with a norm is partly a
product of the recurrence of policy differences already existing before the
adoption of the norm. Actors may make strategic use of such a situation.
Second, this negligence can be remedied by fusing contemporary notions of
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van Kersbergen and Verbeek: The Politics of International Norms
norms diffusion with the traditional tools of international regime theory. The
wider concept of ‘regime’ allows for identifying degrees of norms compliance
and tracking changes therein. Third, even in highly institutionalized environ-
ments such as the EU, the adoption of and compliance with norms rests with
the strategic behaviour of actors. This is explained by the character of the EU,
which is simultaneously an inter-state system and a ‘domestic-like’ polity. This
goes against the intuitively plausible hypothesis that states can control the cre-
ation of norms only with increased difficulty, the denser and more complex
the international legal system becomes in which they are operating (Hurrell,
2002: 146). The Janus-faced like character of the EU, however, enables
actors to engage in a battle to ‘redefine’ previously agreed upon norms.
A consequence of these claims would be that intergovernmentalist and
multi-level governance approaches to the EU are better reconceived and
reformulated as approaches that recognize that the EU consists of a func-
tionally linked and hierarchically ordered set of international regimes. For this
reason, we argue that old-fashioned regime theory is well equipped for deal-
ing with the issue of norms battle. We illustrate this by analysing the role of
subsidiarity in what we will call the imperfect competence regime of the EU.
The article is structured as follows. In the following section, we demonstrate
that IR approaches to the role of norms in international relations neglect the
issues of norm vagueness and elusiveness and of battles over existing norms.
Next, we argue that regime theory enables us to remedy this shortcoming
without compromising valuable insights from rationalist and constructivist
approaches to international norms. We subsequently illustrate this claim by
describing and analysing in regime-theoretical terms the role and history of
subsidiarity as a norm in the European competence regime between 1990
and 2005. We end with a conclusion.
What International Norms Theory Neglects
Despite the attention IR theory has paid to the role of international norms
over the past 20 years or so, it has neglected one important phenomenon,
namely the possibility that the adoption of international norms does not
produce clear-cut compliance or disobedience, but rather ushers in a new
phase of battle over the norm itself. Those IR theories that consider norms
to be relevant usually argue that norms either affect actors’ strategic calcula-
tions or are highly consequential for actors’ preferences and even identities.
Nevertheless, they assume that the norm is clear, and once established, is the
object for determining its effect. We argue that established norms are them-
selves subject to renewed battles.
Only a few diehard realists (e.g. Mearsheimer, 1994–1995) still argue that
international norms simply reflect the distribution of power and have no
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European Journal of International Relations 13(2)
effect of their own (cf. Krasner, 1983b: 5–7). Currently, most theories of
International Relations consider international norms to be relevant in
accounting for the behaviour of international actors. These theories have their
roots in at least four theoretical bodies, the so-called English school of inter-
national relations (Bull, 1977; Dunne, 1998), transnationalism (Keohane and
Nye, 1972; Risse-Kappen, 1995), international regime theory (Krasner, 1983a,
1983b), and, more recently, social constructivism (Klotz, 1995; Finnemore,
2003). These approaches differ in one important respect, that is, the mech-
anism of norms, or the precise manner in which norms are relevant. Two pos-
itions are usually taken. The first position considers norms to have an impact
because they affect the strategic calculations of actors, often states or their
governments. Actors know that their present behaviour regarding observing
or disregarding an international norm will affect how other actors will judge
their likely behaviour in the future. Establishing or maintaining a good repu-
tation usually helps to further an actor’s long-term interest. This mechanism
operates more strongly if the international system that actors are operating in
is...
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