The Confederal Comeback: Rediscovering the Confederal Form for a Transnational World

Author:Armin Cuyvers
DOI:http://doi.org/10.1111/eulj.12062
Publication Date:01 Nov 2013
The Confederal Comeback:
Rediscovering the Confederal Form for
a Transnational World
Armin Cuyvers*
Abstract: This contribution approaches the EU as a modified confederal system. It
subsequently suggests that such modified confederal arrangements form a prima facie
attractive model for transnational government more generally. To this end the EU is
comparatively contrasted with the US Confederation, which was established directly
after American independence, on the one hand and with its subsequent evolution into a
federate state on the other—a comparison that demonstrates how the EU has combined
a confederal foundation with some crucial federate reinforcements in its constitutional
superstructure. Subsequently it is demonstrated how these modifications have addressed
several of the classic weaknesses of the confederal form and may further help to open up
the potential inherent in the confederal form for complementary transnational govern-
ment more generally.
I Introduction
Increasingly, globalisation and interdependence require us to realign the scope and
structure of government with the reality that needs governing. To this end significant
amounts of public authority are being transferred from the national level to transna-
tional structures for governance such as the EU, ASEAN, MERCOSUR and the East
African Community (EAC). One result of this transfer is that states are losing their
virtually exclusive relevance for the exercise of public authority. We, in turn, are
challenged to go beyond the legal, theoretical and even mental boundaries of the
traditional statal framework.
Yet at the same time states remain essential for the organisation of public authority.
The state remains a unique nexus of effective institutionalised authority, (democratic)
legitimacy, identity and solidarity.1And despite passionate visions of a post-
Westphalian world, serious replacements to fill the statal void are in rather short
supply. Instead of aiming to eradicate the statal system, transnational government
should, therefore, aim to complement it. It should build on the strong points and
* Assistant Professor, University of Leiden, Departments of European Law and Jurisprudence. I
would like to thank the organisers and all participants of the WISH 2012 conference at the Peking
University School of Transnational Law for their valuable inspiration and suggestions, obviously
retaining full ownership of any remaining errors.
1J. Habermas, ‘The European Nation State. Its Achievements and Its Limitations. On the Past and
Future of Sovereignty and Citizenship’, (1996) 9 Ratio Juris 125 et seq.
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European Law Journal, Vol. 19, No. 6, November 2013, pp. 711–738.
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significant achievements of the statal system yet supplement it where its shortfalls and
weaknesses are reaching problematic levels. The aim, so to speak, should be a neo-
Westphalian order instead of a post-Westphalian one.
This contribution suggests that confederal arrangements form a prima facie attrac-
tive model for precisely such a complementary approach.2To that end it will be
argued that the confederal form, if properly modified, holds significant potential for
regional integration and for transnational governance in general. This potential has so
far been largely ignored3—not surprisingly so, as confederations are not exactly
known for their effectiveness or longevity. Yet, as will be suggested, it is precisely in
the globalising reality materialising around us that the confederal form may finally
come into its own. For it is this reality in which the confederal form can evolve in a
way that reduces some of its most intrinsic flaws and in which the potential for flexible
and multilevel governance inherent in the confederal DNA can be realised.
A Structure, Approach and Limits
To support and illustrate these claims we first turn to the EU in a comparative
perspective to the US. The EU will be comparatively contrasted with two American
benchmarks. On the one hand the EU will be compared with the US Con-
federation, which was established directly after American independence. On the
other hand the EU will be set against the subsequent US evolution into a federate
state (section III). This comparison will demonstrate how the EU has combined a
confederal foundation with some crucial federate reinforcements in its constitutional
superstructure (section IV). Subsequently it will be explored to what extent the
modified confederal system of the EU may reduce certain key weaknesses of the
classic confederal form (section V). These federate modifications are then used to
help explain why the EU has survived and relatively thrived so far and to assess the
potential of the modified confederal form for transnational government more
generally (section V).
Obviously the overwhelming breadth and complexity of the questions and concepts
engaged with necessitates care and modesty in any conclusions drawn. This necessity
is only compounded by the comparative nature—over time, contexts and
disciplines—of the exercise proposed. To the extent possible these pitfalls are
addressed via a careful structuring and limitation of the proposed comparison. They
are further reduced by the explicitly modest aim to only illustrate the prima facie
attractiveness of the confederal form for transnational governance. Nevertheless a
general caveat remains in order here, in addition to the more specific limitations that
2As Elazar has indicated, it is not a coincidence that ‘With the emergence of permanent multinational
“communities”, of which the European Community is the prime example, we are now witnessing a
revival of confederal arrangements.’ D.J. Elazar, Exploring Federalism (University of Alabama Press,
2006), at 51.
3Understandably the focus has traditionally been more on federate comparisons, in which there is a
rich and apparently reviving tradition. See amongst many others M. Cappelletti, M. Secombe and
J.H.H. Weiler (eds), Integration through Law—Europe and the American Federal Experience, Vol. I (De
Gruyter, 1986); K. Lenaerts, ‘Federalism: Essential Concepts in Evolution—the Case of the European
Union’, (1998) 21 Fordham International Law Journal 746; A. von Bogdandy, ‘The European Union as
a Supranational Federation: A Conceptual Attempt in the Light of the Amsterdam Treaty’, (2000) 6
Columbia Journal of European Law 27; R. Schütze, ‘On “Federal” Ground: the European Union as an
(Inter)National Phenomenon’, (2009) 46 Common Market Law Review 1096.
European Law Journal Volume 19
712 © 2013 John Wiley & Sons Ltd.

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