A. Definition
1 A confederation is a governmental entity created by independent sovereign State[s] that join together to perform some governmental functions under common authority (Sovereignty; Territorial Integrity and Political Independence). A confederation is a stronger form of association than an alliance (Alliances), but is weaker than a federation. The individual member units retain their status as sovereign States, and are separately recognized as members of the international community. This distinguishes a confederation from a federation in which the constituent States surrender their sovereignty to a central authority retaining only internal constitutional autonomy. A confederation may also include additional territories that are dependent territories of one or more of the constituent States or, indeed, of the confederation itself. In order for an entity to be a confederation it must have institutions with authority to make specified decisions. These institutions may take the form of legislative or executive bodies or judicial institutions. The institutions need not be elaborate, but they must be more than mere diplomatic consultation[s] or negotiation[s]. A treaty merely creating standards or rules is not enough to establish a confederation. The confederation may, however, rely primarily on its constituent members to carry out its decisions.
B. Examples of Confederations
2 Examples of confederations abound in ancient history. There were many confederations among the city-States of ancient Greece, although some of them may have been little more than alliances (see also History of International Law, Ancient Times to 1648). Some more modern examples provide a better basis for understanding the concept.
1. The Swiss Confederation
3 In Europe, the Swiss Confederation provides an early example. Founded in 1291, it was originally an association of three mountain cantons, seeking to protect their independence against the emperor of the Holy Roman Empire. The original confederation was based upon the Federal Charter of the Eternal Alliance of the Three Forest Cantons, which can be seen as a treaty, and was reinforced by an oath taken by the founders. Switzerland remained a confederation, with fiercely independent cantons bound together in only loose association, until 1848, when a new constitution introduced a system that is more properly called a federation. For some ceremonial purposes, and on its coinage, Switzerland still calls itself a confederation, but that is a mere historical reference.
2. The United States of America
4 In North America during and after the War of Independence (1776â€"83), the newly independent colonies regarded themselves as 13 separate and independent States (Colonialism; Decolonization: British Territories). Initially they created the Continental Congress for the purpose of co-ordinating their war efforts. In 1777 the colonies entered into the Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia (‘Articles of Confederation’) which provided a more regular structure for their co-operation.
5 Although not formally denominated a treaty, it was an agreement among the States themselves, not a constituent document created by the people (Peoples). The Articles of Confederation established the Congress of the Confederation, which conducted international relations on their behalf, participated in the settlement of disputes among States and governed the undeveloped territories to the west, but which had only limited authority over other matters and almost no financial resources. Although criticized for its weakness, the government under the Articles of Confederation had some successes (Governments). It resolved disputed land claims in the frontier parts of the United States, enacted the Ordinance for the Government of the Territory of the United States Northwest of the River Ohio (‘Northwest Ordinance’) and directly governed new territories until they could become States. Within a decade of its establishment there were calls for reform. A convention to revise and improve the Articles of Confederation was called in 1787. It chose, however, to propose an entirely new structure on a federal model. The Articles of Confederation ended in 1789 when the Constitution of the United States of America (‘US Constitution’), establishing a federal system, took effect.
6 In 1861, the southern US states sought to secede from the US (Secession). They formed what they called the Confederate States of America. A close examination of the history and the Constitution of the Confederate States of America shows, however, that it was never a confederation, but rather a looser form of federation. The individual states of that entity were never recognized internationally as sovereign (Recognition).
3. The Benelux Economic Union
7 The Benelux Economic Union provides a current example. It was founded in 1958 by three States—Belgium, Luxembourg, and the Netherlands—to co-ordinate certain governmental powers among them. After the formation of the European Communities (European [Economic] Community [EEC]), and especially after the intensification of the authority and powers in the European Union, the functions of the Benelux Union have become less significant, since all three of its members also participate in that broader entity. It continues to provide common regulations for trademarks and design standards for the three States.
4. The Commonwealth of Independent States
8 The Commonwealth of Independent States (‘CIS’) provides a recent example. It was formed in 1993 by many of the States that had been part of the recently dissolved Union of Soviet Socialist Republics (Dismemberment of States; Russia). The Charter of the CIS (‘CIS Charter’) is a treaty that recognizes the equality and independence of each of the members (States, Sovereign Equality). It expressly provides that the CIS is not a State and does not possess supranational powers (Art. 1 CIS Charter; see also Supranational Law). Each of the Member States has separate diplomatic representation to other States and has its own membership in the United Nations (UN) (International Organizations or Institutions, Membership). The CIS Charter also assures the right of Member States to secede (Art. 9 CIS Charter). The principal organ of the CIS is the Council of Heads of States (Heads of State). The CIS has served as a vehicle for promoting co-operation among the former Soviet States on a number of issues in economic, military and internal affairs, although individual States have retained autonomy. In recent years the CIS appears to have waned in authority as some of the individual States have asserted greater independence. (see also Territorial Integrity and Political Independence).
C. The Conduct of International Relations by Confederations
9 States in a confederation retain their sovereign status. In principle they can conduct their own foreign relations. Each of the Member States of a confederation must agree to any treaties or other international obligations separately before they become effective for that State (Treaties, Conclusion and Entry into Force). The independent diplomatic representation of the members of the CIS is an example of this principle. Individual States may, however, use the diplomatic services of the central confederation authorities or of one of the other confederation members in their representation to foreign States.
D. Other Aspects
1. The Evolution of Confederations
10 Confederations are inherently dynamic forms of association; some last for hundreds of years; others evolve into different kinds of relationships; some fade into mere treaty relationships and others become federal states. Confederations are an effort to provide a precarious balance between the separate interests of the individual Member States to control their own affairs, and their common interest for unified action on selected issues (see also Domaine réservé). Shifts in those forces and in the allegiances of the individuals within their boundaries may lead to constitutional changes. Individuals who are citizens of Member States of the confederation may increasingly identify with the common whole, rather than primarily with the separate parts. Thus many confederations slowly evolve into federations, as did the US in its transition from the Articles of Confederation to the US Constitution, or as Switzerland did in its constitutional changes of 1848. Other confederations slowly dissolve, if the common concerns uniting them decline in significance and the individual States reassert greater independence.
11 While confederations represent major stages in the development of governance of an area, they are usually only part of a process of development of relations among the constituent units and their people.
2. The European Union
12 While the EU has some of the attributes of a confederation, many commentators prefer to classify it as a regional economic organization (Economic Organizations and Groups, International). In the EU, Member States retain their own international legal personality (Subjects of International Law). They relinquish some decision-making authority to institutions of the EU with respect to certain issues (European Community and Union Law and Domestic [Municipal] Law). It has authority over a broad range of issues, including economic issues, the free movement of persons and goods within its territory (Goods, Free Circulation of; Movement, Freedom of, International Protection), harmonization of legislation relating to many subjects (Unification and Harmonization of Laws), and the protection of certain rights.
13 Despite the broad scope of its authority, its resistance to adopting a constitution to replace its treaty-based structure, the ability of some of its Member States effectively to veto proposed projects, the continued international personality and diplomatic representation of the individual Member States despite the limited international personality of the organization and the continuing role of the States rather than their citizens (European Citizenship) in many aspects of the formulation of EU policy all support the position that the EU is clearly not a federation and probably not a confederation.
14 The German Federal Constitutional Court held in Maastricht (Bundesverfassungsgericht [German Constitutional Court 2nd Senate] [12 October 1993] 89 BVerfGE 155) that although it is bound to accept interpretations of European law given by the European Court of Justice, it is still free to decide independently whether the subject-matter of that legislation is within the competence delegated to the EU. Such a power of an organ of a single Member State to nullify acts of a supranational organization, such as the EU, clearly means that the organization cannot be considered a federal State.
15 The EU has experienced rapid evolution of its basic structure. If closer forms of legal relationships are established, especially those in which its institutions may conclusively decide both the scope of their own authority and the substantive content of their decisions, the EU may become regarded as a federation or confederation.
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