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

Authors

  • Fran Marko Stojković Law student from University of Zagreb

Abstract

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.

Keywords: sovereignty, confederation, federation, federal theory, European Union, Association of Southeast Asian Nations.

 

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This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License.

 

Suggested citation: FM Stojković, ‘Rethinking the Binary Federal Theory: A Search for the EU’s and ASEAN’s Place in the Confederal-Federal Dichotomy’ (2020) 16 CYELP 61.

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Published

2020-12-22

How to Cite

Stojković, F. M. (2020). Rethinking the Binary Federal Theory: A Search for the EU’s and ASEAN’s Place in the Confederal-Federal Dichotomy. Croatian Yearbook of European Law and Policy, 16(2020), 61–93. Retrieved from https://www.cyelp.com/index.php/cyelp/article/view/405

Issue

Vol. 16 (2020)

Section

Articles

License

Copyright (c) 2020 Fran Marko Stojković

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