Rethinking the Binary Federal Theory: A Search for the EU’s and ASEAN’s Place in the Confederal-Federal Dichotomy

• Main Author: Fran Marko Stojković
• Format: Article
• Language: English
• Published: University of Zagreb, Faculty of Law 2020-12-01
• Series: Croatian Yearbook of European Law and Policy
• Subjects: sovereignty; confederation; federation; federal theory; european union; association of southeast asian nations
• Online Access: https://www.cyelp.com/index.php/cyelp/article/view/405
• ISSN: 1845-5662; 1848-9958

This paper argues that the traditional binary federal theory, which distinguishes between concepts of confederation and federation, is not adequate for explaining the legal nature of various unions of states. In reaching such a conclusion, the paper first defines the traditional federal theory. It presents how both the concepts of a federation and a confederation, with all their associated characteristics, derive from the old absolute understanding of sovereignty. The unitary constitutional theory, which is the only constitutional theory compatible with this notion of federalism, is also explained. Afterwards, the legal structures of two very different integrational projects, the EU and ASEAN, are examined in the light of the traditional federal theory with the aim of concluding whether these entities are confederations or federations. It is suggested how and why ASEAN easily fits into the confederal category, while the EU defies both the federal and confederal box. From the results of such an analysis, a conclusion is drawn on why the theory is inadequate to explain the legal nature of certain unions, such as the EU. It is claimed that the theory, which is based on the idea of absolute sovereignty, has failed to readapt itself to the existence of unions of states in which absolute sovereignty is wholly absent. The paper concludes with a brief discussion on how the theory should be reformed to better fit the legal reality. It is suggested that a more spectral view on federalism is needed, either some brand-new one or the one conceptualised by James Madison back in the 18th century.