Marrani, David --- "Asia Pacific: Will New Caledonia Be Another Tokelau? Autonomy or Independence?" [2006] AltLawJl 27; (2006) 31(2) Alternative Law Journal 102

ASIA-PACIFIC: Insights from the region: WILL NEW CALEDONIA BE ANOTHER TOKELAU?

• Autonomy or independence?
• The French Constitution recognises the possible self determination of New Caledonia
• The French Constitution covers the possible self determination of New Caledonia
• Conclusion

ASIA-PACIFIC
Insights from the region
WILL NEW CALEDONIA
BE ANOTHER TOKELAU?

Autonomy or independence?

The recently held referendum on self-determination of Tokelau had a negative outcome.^[1] ‘Tokelau remains on the list of non-self-governing territories of the United Nations. Under Article 73 of the United Nations Charter New Zealand will continue to work with Tokelau to strengthen internal self-government with a view to eventual decolonisation by a future vote’.^[2] The future of the territory has been decided by its people and it was not agreed that it should separate from New Zealand. This highlights the situation of many of the territories and islands of the Pacific. In the case of Tokelau, the territory was and will remain under New Zealand administration. What about the territories under French administration?

The strongest example and incidentally the nearest to both Tokelau and New Zealand is New Caledonia. Nouvelle-Caledonie, in French, belongs to Melanesia. It has an area of 18,575 sq km and its Economic Exclusive Zone covers 1.4 million square kilometres. It comprises a large island, Grande-Terre (400 km by 50 km), the Ile des Pins, the archipels of Belep, Huon and Surprise, the Iles de Chesterfield and Recif of Bellone, the four Iles Loyauté (Ouvéa, Lifou, Tiga et Maré), Îles Warpole, de l’Astrolabe, Matthew et Fearn, Hunter and some remote small islands. Its population has reached 196,836 inhabitants (1996 census).

New Caledonia has been under French administration since the 19th century.^[3] It was under direct colonial administration until 1860 when it was declared an autonomous colony. The situation remained unchanged until the end of the Second World War. Between 1945 and now, the administration of the territory has constantly changed. It seems that the French state has been unable to organise a definite administrative framework for the territory. It has in fact been unable to manage adequately the relationship with one of its most peripheral territories. This is not only linked to the strong and dogmatic way the French Republic considers the ideal of unity, but also to the development of the legal principle of the self-determination since the middle of the 20th century.

The French Constitution recognises the possible self determination of New Caledonia

The relationship between France and New Caledonia emphasises the vast problem of dealing with the idea of self-determination in the 21st century. The right of people to self-administer, or ‘the right of cohesive national groups (‘peoples’) to choose for themselves a form of political organisation and their relation to other groups’^[4] has become a constitutional principle as confirmed by the Fifth Republic (1958) Constitution. First, the Preamble of the Constitution (para 2) combined with art 53 refers to the right of self-determination: an overseas territory may be able to secede without this being considered a contradiction with the principle of indivisibility. This is one of the pillars of the French Republic (as held by the constitutional court on the territory of Mayotte).^[5] Second, this is now applied to the case of New Caledonia, through a practical development of this idea that can be found in one of the chapters of the Constitution (Titre XIII Dispositions transitoires relatives a la Nouvelle-Caledonie).

Nouvelle-Calédonie has become what is qualified under French law a sui generis collectivité d’outre-mer,^[6] that is an overseas local authority with strong particularities. The current administrative organisation has been designed under the accord de Nouméa (Nouméa Agreement) of 5 May 1998,^[7] confirmed by local referendum on 8 November 1998,^[8] and legalised by Loi organique, a special statute law completing the French Constitution.^[9]An ordinary statute law completes this special one. In consequence, the framework, ‘statut’, is now founded on the French Constitution (Titre XIII, ie art 76 and 77 1958 Constitution) and the two laws from 1999^[10] that govern the institutions relating to autonomy given to the territory.

The Congres is certainly the most important institution. It is a local assembly in charge of rule-making for the territory. This is done within the scope of the competence transferred from the state to the territory, in 12 listed areas of intervention of Congres (art 99, L 99–209). The rules adopted — Loi de Pays — are similar to statute law, as is the terminology used, and are a new concept of local law. Rules adopted in other forms of decentralised assembly (on continental France for example) have the character of administrative acts — a statutory instrument of local authorities. These rules are subject to control of their legality through judicial review before Tribunal Administratifs, the local administrative courts. The Loi de Pays will not be controlled through judicial review but through constitutional review. Only the Conseil Constitutionnel, the French Constitutional Court, will know of these norms.^[11] The question of the rule-making function of the Congres is of extreme importance as the power of Congres within these 12 listed areas is equal to the role of law-maker. In this respect, the decentralisation in the case of New Caledonia, with the subjacent idea of self-determination is closer to the idea of devolution in the case of the UK constitution.^[12]

The French Constitution covers the possible self determination of New Caledonia

The progress towards independence seems definitive. Signs that something is going further than just a mere new institutional administrative design for the territory, are probably the presence within the statut of the four ‘elements’: the organisation of the referendum on self determination, the recognition of a civil status, the creation of a citizenship of New Caledonia, and the widening of the external relations of the territory. Although linked, the four elements may be subdivided. The first element strongly refers to self-determination.

The Titre XI of the L 99–209 entitled la consultation sur l’accession a la pleine souverainete (consultation on the accession to full sovereignty), covers the final aspects of the possibility of self-determination for New Caledonia. This is a development of one particular point of art 77 of the 1958 Constitution stating that a law was to be approved to determine the conditions and timeframe within which the concerned populations of New Caledonia would be consulted on the point of independence. This is the letter and the spirit of the L 99–209 from 1999. Indeed, art 217 states that the referendum must be organised during the period between 2014 and six months before 2019. If by 2018, the Congres has not decided on a date, the French government will set up the date for the consultation instead. In the case of the Congres being dissolved, no consultation will be organised within six months after the date of its dissolution. If the outcome is positive, the territory will be independent. If it is not positive, a new consultation will be organised, after a ‘cooling off period’ of at least six months after the previous referendum. The new consultation will then be organised within 18 months following the request of the high commissioner (representing the French state in the territory), and the condition of not being within the period of six months before 2019 will have to be respected.

Article 218 L 99–209 lists who can be registered as potential voters for the referendum. First are those who were electors for the referendum of 8 November 1998, or who were not electors for this referendum but fulfilled the condition of domicile which was requested by the would-be electors to this referendum, or those who were not electors for the 1998 referendum and could not fulfil the condition of domicile requested because of family, professional or medical reasons. Second come those individuals who are under customary civil status, or who have their centre of material and moral interests in New Caledonia and were either born in New Caledonia or have at least one parent born there, or who could establish continuous residence in New Caledonia for 20 years from the date of the consultation and ending on the 31 December 2014. Finally, individuals who are born before 1 January 1989 who have lived in New Caledonia from 1988 to 1998 or were born after 1 January 1989 and have at least one parent who was an elector in the 1998 referendum are potential voters. This very specific and complex electorate should be compared as a matter of interest with the simple electorate of Tokelau!^[13]

Conclusion

It is unclear whether the future of the territory of New Caledonia lies outside the French Republic. It is also unclear whether independence of New Caledonia will mean peace and prosperity for either the Kanak people or the populations of New Caledonia. It is obvious that France has probably forgotten, for many reasons, to take into consideration the specificities of its overseas populations and sometimes the reality of the French population itself. ‘Postcolonial voices from the so-called periphery have to play a weightier role, not only for understanding the periphery, but also for understanding the so-called centre’.^[14] The idea of ‘people’ in French constitutional law meant that populations were not recognised. Perhaps this should be linked with the recent riots in Paris and the main French cities.^[15] Perhaps it is time to adapt the French constitutional framework to fit with a civil society that has become pluri-ethnic, multicultural and transnational.

DAVID MARRANI teaches public and comparative law at the University of Essex (UK).

© 2006 David Marrani

email: [e-mail]

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^[1] <http://www.timesonline.co.uk/article/0,,3-2044406,00.html> at 20 April 2006. <http://www.tokelau.org.nz/selfdeter/tokrefresult.html> at 20 April 2006 for the full results of the referendum.

^[2] Kolouei O'Brien speech inauguration and referendum: <http://www.tokelau.org.nz/selfdeter/uluspeech.html> at 20 April 2006

^[3] New Caledonia became a French colony on 24 September 1853. Preamble Noumea Agreement, 5 May 1998. Accord sur la Nouvelle-Caledonie signe a Noumea le 5 mai 1998; JORF, 27 May 1998, 8039–8044.

^[4] Ian Brownlie, Principles of Public International Law (2003) 553.

^[5] Cons Const, No 2000–428, DC, 4 May 2000, loi organisant une consultation de la population de Mayotte; JORF, 10 May 2000, 6976.

^[6] Part 1, Rapport d’information du senat, No 216, 16 February 1994 <http://www.senat.fr/rap/r03-216/r03-216_mono.html> at 20 April 2006.

^[7] Noumea Agreement, 5 May 1998. Accord sur la Nouvelle-Caledonie signe a Noumea le 5 mai 1998; JORF, 27 May 1998, 8039–8044.

^[8] Decret 98–733 portant organisation de la consultation des populations de Nouvelle-Caledonie prevue par l’article 76 de la Constitution, 20 August 1998; JORF, 22 August 1998, 12844–12847 and Decision proclamant les resultants de la consultation des populations de Nouvelle-Caledonie du dimanche 8 novembre 1998, November 9, 1998; JORF 10 November 1998, 16956.

^[9] Commentators have considered that Cons Const, No 99–410 DC, 15 March 1999 incorporates the Noumea agreement into the French constitutional norms (O Gohin <www.conseil-constitutionnel.fr/cahiers/ccc12/05gohin.htm> at 20 April 2006).

^[10] Loi 99–209 organique relative a la Nouvelle-Caledonie, 19 March 1999; JORF 21 March 1999, 4197–4226 rect. April 16, 1999, 5610, thereinafter refered to as L 99–209 and Loi 99-210 relative a la Nouvelle-Caledonie, March 19, 1999. JORF March, 21, 1999, 4226–4223, thereinafter refered to as L 99–210.

^[11] The first control happened in 2000 on a matter of taxation. Cons Const, 27 January 2000, Loi du pays relative à l’institution d’une taxe générale sur les services; JORF, 29 January 2000, 1536.

^[12] Richard Cornes, ‘Devolution and England: what is on offer?’ in N Bamforth and P Leyland (eds) Public Law in a Multi-layered Constitution (2003) 109–110.

^[13] <http://www.tokelau.org.nz/selfdeter/whocanvote.html> at 20 April 2006

^[14] Ulrich Beck and Johannes Willms, Conversation with Ulrich Beck (2004) 16.

^[15] <http://www.lematin.ch/nwmatinhome/nwmatinheadactu/actu_monde/_les_jeunes_des_banlieus.html> at 20 April 2006. Also Luc Bronner, ‘Crise des banlieues, l’onde de choc’, Le Monde (Paris), 6 January 2006.