Project Report on

“CONFEDERATION: A THEORETICAL AND HISTORICAL ANALYSIS”

Submitted to:

Ms. Aditi Singh

(Assistant Professor, Faculty for Constitution (Hons. I, Federalism))

Submitted by:

Moulik Shrivastava

Roll No. 86

Semester VII (C)

Date of Submission: 29/11/2020

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH
 CONTENTS

Certificate of Declaration 3

Acknowledgements 4

Introduction 5
Objectives 6
Research Methodology 6

Elements sine qua non to Confederation 6

Sovereignty held by member states 6
Weak Central Authority 7
Status of Apex Judiciary 7
Powers Derived from a Treaty 7
Rights of secession 8

Historical Glimpse of Confederation 8

The Swiss Confederation 8
The German Confederation 9
The US Confederation 10

Status quo of European Union: Is it a Confederation 12

CONCLUSION 13

BIBLIOGRAPHY 14

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 Certificate of Declaration

I hereby declare that the project work entitled “Confederation: A Theoretical and Historical
Analysis” submitted to HNLU, Raipur, is an original work, which has been done by me under
the able guidance of Ms. Aditi Singh, Faculty Member, HNLU, Raipur.

Name: Moulik Shrivastava

Roll Number: 86

Semester: VII

Section: C

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 Acknowledgements

At the very beginning, I would like to thank all those who were the ‘guiding lights’ behind this
project. First of all I would like to take this opportunity with esteem privilege to express my
heartfelt thanks and gratitude to my course teacher Ms. Aditi Singh, (Assistant Professor,
Faculty for Constitution, Federalism (Hons. I)), for having faith in me and awarding me this
significant project topic. Her consistent supervision, constant inspiration and invaluable guidance
have been of immense help in carrying out the project work with success.

Subsequently I would like to thank my university for providing such an enriched Library, the
computer lab, internet facility without which this project would have been in a distant realm.

I extend my heartfelt thanks to my family and friends for their moral support and encouragement.
I also take this opportunity to thank all those people who contributed in their own small ways for
the completion of this project.

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 1. Introduction

The research on confederations and their working mechanisms has become a subject matter of
various interdisciplinary studies; to count a few, international private law (conflict of laws),
business studies and international relations & diplomacy. The same has gained significance as
reformations in every field are irresistible due to the paddles of globalisation. It is reckoned by
Yuval Noah Harari that “...the decisions we make now will have an impact for years and decades
and will reconfigure the planet. We will have to choose between uniting humanity or selfishness
and nationalisms”.1 Therefore, on connecting a few dots, it becomes relevant as to why the study
of confederations will bind the fallouts of the mid/late 21st century. Climate change, carbon
footprints, refugee and immigration policies, inhuman treatment of citizens, increasing debt and
falling economies are some of many adversities that the confederations like the UN inter alia its
limbs like the UNSC, UNGA, ECOSOC, UNICEF etc. are taking into consideration of.

A confederation is a league of self-governing states that united for a common purpose or action. 2
This confederation of states is usually formed by a treaty as a way of dealing with very important
issues such as defense, economic relations, and foreign affairs. In this regard, the central
government provides support for all its member states. In the modern world, we cannot find
perfect examples of confederation. The political philosopher Emmerich de Vattel said: "Several
sovereign and independent states may unite themselves together by a perpetual confederacy
without each in particular ceasing to be a perfect state.... The deliberations in common will offer
no violence to the sovereignty of each member"

This project report emphasises on what the theory on confederation suggests and also digs into
the historical backdrop of confederation by studying the mechanisms of the then Swiss, German
and American confederations.

1 https://www.euractiv.com/section/global-europe/interview/harari-we-will-have-to-choose-between-
uniting-humanity-or-selfishness-and-nationalisms/
2 https://www.politicalsciencenotes.com/articles/confederation-meaning-and-examples-of-confederation/
314

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1.1. Objectives

1) To discuss the theoretical aspect of confederation

2) To detail the historical disposition of confederation
3) To elucidate the Status quo of confederation mechanism

1.2. Research Methodology

This project work is descriptive & analytical in approach. It is largely based on the theoretical
and historical analysis of confederation. Books & other references as guided by faculty of
Constitution (Hons. I) were primarily helpful for the completion of this project.

2. Elements sine qua non to Confederation

2.1. Sovereignty held by member states

In a confederation, the autonomy and sovereignty is held by the member states of the
confederation. To put it in simpler terms, the confederation, even on an unanimous consensus
cannot possess the authority over the actions of the confederate state. If any action or omission to
certain direction by the confederation does not seem justified, the confederation may put an
estoppel upon the membership of the sovereign state unanimously, but may not consider doing
this prior to the action being brought into limelight. Albeit, the promises made by the confederate
states may be broken at any cost and time. It could be understood as a fiduciary relationship
among confederates form a confederation.

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2.2. Weak Central Authority

The confederate states demand sovereignty in their actions and global diplomacy. And it is well
established that sovereignty cannot be compromised with another sovereign power at the top-
brass. Therefore, the central authority only has limited powers; often becomes a toothless tiger.

For example, the UN could only put limitations and sanctions on a particular member state for
breaching the articles of its Charter. It may be said that the outcomes of the central authority
affect the member states indirectly (for example, trade ban or ban on certain supplies or sending
forces to execute an operation or UN peace force operations) and not directly.

2.3. Status of Apex Judiciary

The Apex judiciary is a weak judicial body as it does not interfere with the regional countries’
judicial system; in other words the decisions are not binding upon the confederates. There is no
such concept as precedents, nevertheless the decisions by such apex court exercises advisory
jurisdiction.

For example, one of the six principal organs of the UN: the International Court of Justice only
gives advisory opinions on the disputes brought before it inter alia matters pertaining to
international legal issues. The “compulsory jurisdiction” applies exclusively to those cases where
both parties to a dispute agree to submit to the decision of the ICJ. However, in practice, the
situations are delicate and are finally presented before the UNSC to decide upon. The situation is
somewhat dichotomous vis-a-vis the role of Court of Justice of the European Union, which is
discussed later in the project.

2.4. Powers Derived from a Treaty

The member states negotiate a treaty, a negotiable instrument used to form international
relations, in order to enter into a confederation. The confederal government and institutions
therein can exercise only those powers that are explicitly stated in the document that established

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 the confederation per se. It can only do what it is expressly permitted to do; it cannot broaden its
powers through interpretation.

2.5. Rights of secession

Ordinarily, member-states of a confederation are permitted to leave or secede from the

confederation. In contrast, nearly all federations prohibit secession by constituent states. For
example, the United Kingdom of Great Britain invoked article 50 of the Treaty of European
Union to secede from the union.3

3. Historical Glimpse of Confederation

“The more you know about the past, the better prepared you are for the future”

-Theodore Roosevelt

In this section we shall study the then confederal structure of Switzerland, Germany and the short
lived confederation of the US. On an historical outlook, confederation can be seen as
predecessors of federations,4 as the independent political territories used to come together as
‘member states’ (distinct in respective language); and would join hands in order to experiment if
that conjugation worked out.5 The following are some pertinent nation states that are give an
insight into the historical inputs of confederation:

3.1. The Swiss Confederation

The establishment of the ‘Old Swiss Confederacy’ can be credited to the late medieval period, as
a result of a series of military successes against Austria and Burgundy. The Swiss independence
from the Holy Roman Empire was formally recognized in the Peace of Westphalia in 1648.

3 https://www.politicalsciencenotes.com/articles/confederation-meaning-and-examples-of-confederation/
314
4 https://guides.skylinecollege.edu/c.php?g=279117#:~:text=Confederal%20System&text=Nations
%20can%20choose%20to%20follow,America%20(1861%2D1865).
5 https://www.instituteforgovernment.org.uk/brexit/brexit-brief-article-50

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 The Old Swiss Confederacy, or in linguistic jargon known as ‘Res publica Helvetiorum’
(Republic of the Swiss) was a loose confederation of independent small states, or Cantons within
the Holy Roman Empire. The cantons formed an alliance among the valley communities of the
central Alps. It was governed by the nobles of various cantons independently. The confederation
was born of eight cantons (the ‘Acht Orte’), and was politically and militarily successful for
more than a century; its success attracted a couple more cantons and they summed up to thirteen
(the ‘Dreizehn Orte’) by 1513.

The Swiss reformation divided the confederacy into ‘Reformed’ and ‘Catholic’ parties, which
tightened the tensions among citizenry from 16th to 18th centuries. Subsequently, the federal diet
(‘tagsatzung’) was often paralysed by hostility between the factions.

The 1798 French revolution raged for imposition of a premier unified constitution, which
centralised the government and effectively abolished the cantons. Then in the times of war, in
1803 to be precise, Napoleon organised a meeting that resulted into the ‘Act of Mediation’ which
restored the Swiss autonomy and introduced a Confederation of 19 cantons.

A series of wars continued inter alia, the Sonderbund War of 1848, which transformed the
Confederation. While the rest of Europe saw revolutionary uprisings; the Swiss, united like never
before, drew up a constitution which provided a federal layout inspired from the American
structure. This constitution provided for a central authority while leaving the cantons the right to
self-government on local issues. The national assembly was divided into bicameral legislature
and referendums were executed in order to amend the constitution.

Although it is called the Swiss Confederation for historical subjectivity, it has been a Federal
State post 1848. The share of power is between the Confederation (Central state based in capital
city of Bern) and the cantons (constituent states) and the communes.

3.2. The German Confederation

German Confederation, organization of 39 German states, established by the Congress of Vienna

in 1815 to replace the destroyed Holy Roman Empire. It was a loose political association, formed

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 for mutual defense and on linguistic grounds, with no central executive or judiciary. Delegates
met in a federal assembly dominated by Austria. Amid a growing call for reform and economic
integration, conservative leaders, including Klemens, prince von Metternich, persuaded the
confederation’s princes to pass the repressive Carlsbad Decrees (1819), and in the 1830s
Metternich led the federal assembly in passing additional measures to crush liberalism and
nationalism.6

The late 18th century was a period of political, economic, intellectual, and cultural reforms, the
Enlightenment (Locke, Rousseau, Voltaire, and Adam Smith), but also involving early
Romanticism, and climaxing with the French Revolution, where freedom of the individual and
nation was asserted against privilege and custom. Representing a great variety of types and
theories, they were largely a response to the disintegration of previous cultural patterns, coupled
with new patterns of production, specifically the rise of industrial capitalism. German artists and
intellectuals, heavily influenced by the French Revolution, turned to Romanticism.

Unification exposed tensions caused by religious, linguistic, social, and cultural differences
among the inhabitants of the new nation, suggesting that 1871 only represented one moment in
the larger unification process. Given the mountainous terrains of much of the territory, it was
inevitable that isolated peoples would develop cultural, educational, linguistic, and religious
differences over such a long period.

3.3. The US Confederation

America’s first constitution, the Articles of Confederation, was ratified in 1781, a time when the
nation was a loose confederation of states, each operating like independent countries. The
national government was composed of a single legislature, the Congress of the Confederation;
there was no president or judicial branch. The Articles of Confederation gave Congress the
power to govern foreign affairs, conduct war and regulate currency; however, in reality these
powers were sharply limited because Congress had no authority to enforce its requests to the
states for money or troops.

6 https://courses.lumenlearning.com/boundless-worldhistory/chapter/german-unification/.

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In 1783, the then confederation gained independence from Great Britain, and it was celebrated as
the American Revolution which made it more evident that the republic demanded for a stronger
central government in order to stabilize discrepancies.

In 1786, Alexander Hamilton, a lawyer and politician from New York, called for a constitutional
convention to discuss the matter. The Confederation Congress, which in February 1787 endorsed
the idea, invited all 13 states to send delegates to a meeting in Philadelphia.7

In 1787, the Declaration of Independence was adopted in the presence of representative delegates
from the 13 states. George Washington was unanimously selected as the president of the
convention, who in September 1787 signed the document.

In no less time, the Constitution was ratified by all states till March 4, 1789. The U.S. The
Supreme Court held its first session marking the date when the federal system of government
was fully operative.8

7 https://www.history.com/topics/united-states-constitution/constitution#:~:text=The%20Constitution%20of
%20the%20United,the%20Constitutional%20Convention%20in%20Philadelphia.
8 https://www.history.com/topics/us-government/supreme-court-facts.

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 4. Status quo of European Union: Is it a Confederation

The European Union suggests that new types of confederation that combine confederal and
federal principles can be viable ways of promoting political and economic integration in specific
regions. In the EU, sovereignty is upheld by the Member States, currently 27 of them are
independent yet in consonance with the compromises made towards the Union. The central
authority functions in three different institutions i.e. the Council of European Union, the
European Parliament and the European Commision. The Commission makes proposals for the
new laws to be made, which are further deliberated upon by the Parliament and the Council.
Each institution has reasonably fair representation of all member states.

Two primary sources of the EU are the Treaty of European Union and the Treaty of Functioning
of European Union; and the Member States are subjected to both of these treaties in order to
participate in policy making processes within the EU. Any nation may join in the Treaty by way
of provisions for accession and negotiation thereof among the existing Member States.

The laws made by the EU institutions are in three forms

1. Regulations carry a binding force throughout every Member State and they enter into
force on a set date. Example, the Brussels Regulation on Jurisdiction and Recognition
and Enforcement of Judgments in Civil and Commercial Matters (recast) 1215/2012.9
2. Directives lay down certain results that must be achieved but each Member State has
autonomy to decide how it would transpose the given directive. 10 Directive 2002/46 on
the approximation of the laws of the Member States relating to food supplements.
3. Decisions are EU laws relating to specific cases and directed to individual or several
Member States, companies or private individuals. They are binding upon those to whom
they are directed. Commission Implementing Decision 2016/1189 authorizing UV-treated
milk as a novel food.

9 https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32012R1215.
10 https://www.usda-eu.org/eu-basics-questions/difference-between-a-regulation-directive-and-decision/
#:~:text=Regulations%20have%20binding%20legal%20force,in%20all%20the%20Member
%20States.&text=Directives%20lay%20down%20certain%20results,transpose%20directives%20into
%20national%20laws..

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The chief judicial body of the EU is the Court of Justice of the European Union (the CJEU). The
status of the Judicial body is neither too dominating nor too liberal vis-a-vis the respective
judiciaries of the Member States. If the courts of the Member States require an interpretation of
the CJEU, they may apply for the same by way of preliminary referencing. The subjects for
preliminary referencing are restricted to interpretation of the laws and regulations that operate
within the EU and only those of them that are constructed by the European Parliament. Those
decisions carry a binding force so as to facilitate smooth movement of judgment throughout the
European Union.

There exists a provision for secession. By invoking article 50 of the Treaty of European Union,
any Member State, either with a deal or no-deal, may exit from the European Union. 11 The UK
has exited from the rest of the Union in January 2020, and is set to depart from all connections
with the EU on 31st December, 2020.

CONCLUSION

On doing a historical and theoretical analysis on confederations, it is well understood that

confederations were an important catalyst in the formation of present day federations. The very
nature of confederation, given the historical background indicates that past confederations were
formed for reasons of defense and military requirements. However, the present day
confederations emphasise more on trade and business, judicial cooperation and social justices.
Therefore, it is argued here that confederations cannot end in any era, rather they are born under
the need of time and given situations. The EU can be said to closely resemble a confederation
that is formed primarily to facilitate cross-border trade and commercial activities via the single
market system.

11https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012M050 .

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 BIBLIOGRAPHY

● https://eur-lex.europa.eu/
● https://heinonline.org/HOL/Welcome
● https://www.jstor.org/
● https://www.usda-eu.org/eu-basics-questions/
● https://www.history.com/topics/us-government/supreme-court-facts
● https://courses.lumenlearning.com/
● https://www.ch.ch/en/demokratie/

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