Confederation vs. Federal State: Legal and Structural Differences

Confederation of States: Definition and Structure

Concept of a Confederation

According to García Pelayo, a Confederation is the relationship between States, created by an international agreement, with the intention of perpetuity, which leads to a power that is exerted on Member States and not, immediately, on individuals.

Legal Nature and Historical Context

From a historical point of view, the Confederation has a fluid nature, often seen as a mere alliance between a League and a Federal State. In any case, it belongs primarily to international law, since it holds no immediate power over the citizens of each State. When in doubt, the competition and the law of the particular state prevail.

Constitutional scholars are interested in its study for two reasons: it is often the historical background of the federal state, and it serves to make the distinction between a Confederation and a Federal State.

Basic Organizational Outline

1. Purpose and Security

   The primary purpose is pursuing the internal and external security of those States. This excludes the ius belli (right to wage war) between members and—especially—against third parties without the intervention of the Confederation, except in special cases.

2. The Key Organ: Congress or Diet

   The key organ of the Confederation is a congress or diet, consisting of representatives appointed by the competent bodies of each participating State. These agents are subject to mandatory instructions (instructions from their governments). Confederal decisions are taken unanimously, or at least with the consent of two-thirds or three-quarters of the members. The decisions of the Confederacy are not directly binding on individuals but on the states. Therefore, to become valid law for the citizens, processing through the legal rules of each Member State is required.

3. Differences from the Federal State

   There are three important differences:

   • Sovereignty: In the Federal State, the Federation or central state has its own separate sovereignty from the sovereignty of the Member States. In the Confederation, each Member State retains its full sovereignty. States remain sovereign in the fullest sense.

   • Authority over Citizens: In the Federal State, the central government exercises direct authority over citizens throughout the country through its own power holders (federal organs), without the intervention of the Member States. In the Confederation, decisions are not directly binding on citizens, but only on the Member States.

   • Constitutional Basis: In the Federal State, the essential foundations of federal relations are established in a formal constitutional document. There is a federal state constitution. This is not the case with the Confederation.