Symposium: French Overseas Territories: Constitutional Statuses and Issues

Carine David

University of French Indies, Martinique

French overseas territories are made up of twelve territorial units, spread across the planet, eleven of them being inhabited. They make the French Exclusive Economic Zone (EEZ) the second largest in the world, after the United States of America.

New Caledonia, French Polynesia and Wallis-et-Futuna are in the Pacific Ocean and their legal status reflects significant autonomy. The French Southern and Antarctic Territories (TAAF) are the only uninhabited overseas territory. In the Indian Ocean, La Réunion and Mayotte are among the least autonomous overseas authorities in the Republic. Finally, the Atlantic Ocean and the Caribbean Sea form a kaleidoscope of territories with very different statuses: French Guiana is the only continental ultramarine territory, while Martinique, Guadeloupe, Saint-Martin and Saint-Barthélemy are included in the arc of the Lesser Antilles, the last two enjoying greater autonomy since 2007. Further North, along the Canadian coast, Saint-Pierre-et-Miquelon is unique in that it is the only non-tropical overseas territory, enjoying limited autonomy.

French overseas territories are characterized by growing statutory diversity, revealing historical and socio-cultural heterogeneity that has been reflected in their statutory evolution. From 1946, only territories with no desire for independence are included within the French Republic. The 1946 Constitution established a dichotomy with the “Overseas Departments (DOM)” governed by the principle of legislative identity and the “Overseas Territories (TOM)” enjoying greater autonomy. This distinction is maintained in Articles 73 (DOM) and 74 (TOM) of the 1958 French Constitution.

Accordingly, on the one hand, the territories of Article 73 of the Constitution (DOM) are Outermost Regions (OMRs) of the European Union, governed by the principle of legislative identity and whose law making power is limited to a subsidiary and regulatory power of execution. On the other hand, the territories under Article 74 of the Constitution (now called overseas territorial communities/collectivities COM since the constitutional review of 2003) are Overseas Countries and Territories (OCTs) of the European Union, endowed with a greater power of decision, though it can vary over a rather wide range from one territory to another.

Overall, it appears that the French State is struggling to overcome a very conservative view of its unitary nature. Entangled in a stereotypical perception of homogeneity which is based on the equality of citizens, the French Republic is struggling to cope with the demands of territories increasingly claiming autonomy. Another issue must be raised as to the two categories of territories, in addition to a special mention for New Caledonia (I focus on it below in more detail).

With regard to the least autonomous local authorities (those of article 73 of the Constitution), the Assises de l’Outre-Mer in 2018-19 and the “Blue Book” which resulted from it, illustrate the unease of the overseas populations about the governance of their territory, taking note of the insufficiency of public policies put in place and the inadequacy of the modes of governance. Negotiations between the respective overseas territory and Paris over actions to be taken to properly differentiate between the territories and advance locally relevant and substantial policy-options most of the time reach a dead end, despite evidence-based debates on “real equality”, countless parliamentary reports, reiterated demands of the local authorities, announcements of the French Government regarding the necessary differentiation between territories.

In March 2021, the 75th anniversary of overseas departmentalization will be celebrated, but local authorities falling within the scope of Article 73 of the Constitution have seen very few changes in their governance in three quarters of a century. Of course, a major change has been the one when overseas departments have become overseas regions. This, however, has been more an element of complexity than progress. When in the 1980s the national level provided for the creation of the region, the status has been extended to the DOM too. DOM then became DROM (départements et régions d’outre-mer). This led to the coexistence of two different local authorities having the same territorial jurisdiction but with own institutions and powers, respectively. This double level of administration adds to municipalities, the intercommunal level and, at last, the French state.

It took French Guiana and Martinique nearly 30 years to get rid of this double level of administration (2015) and to have one level of decentralization while remaining territories with very little autonomy. Saint-Pierre-et-Miquelon reluctantly tasted this status of assimilated territory (1976) and quickly returned to article 74 of the Constitution (1985). Saint-Martin and Saint-Barthélemy opted against assimilation thanks to a referendum allowing them to become autonomous local authorities (2007) and Mayotte, which has joined article 73 of the Constitution only in 2011 is already seeing the drawbacks, as the assimilation coming with the new status is hardly compatible with the cultural specificities of the Mayotte population (i.e. the Islamic customary law).

Regarding the territories falling under Article 74 of the Constitution, the French State more readily accepts that statutory differentiation and tailor-made statuses are occurring. A special mention must be made about New Caledonia, a territory in the process of emancipation. New Caledonia enjoys a specific constitutional status that grants the islands’ group strong autonomy, with broad legislative powers in important fields such as commercial and labor law and a very broad fiscal autonomy. The current process of emancipation will end after a third self-determination referendum which most likely will take place in 2022 (the first two having concluded to the rejection of independence 56% of No in 2018, 53% in 2018). The third consultation will then either lead to the definition of a new status of reinforced autonomy or the birth of a new State.

All in all, in Overseas France, for the past fifteen years, we have witnessed, as Senator Maus said, “the bursting of the uniformities imagined in 1946 and 1958”, which lead to a statutory mosaic as follows:

This kaleidoscope of governance and autonomy arrangements questions the State’s persistence in refusing to acknowledge the end of the bipolarity of French overseas constitutional law, and the obsolescence of overseas constitutional statuses. While overall there is no unanimous proposal, local actors, scholars, and most overseas territories experts seem to agree that time is ripe to eliminating the dichotomy laid down in the Articles 73 and 74 of the Constitution. So seem the proposals to express an almost unanimous demand for the disappearance of Article 73, which has become incapable of satisfying almost all the local entities where it is applied.

The constitutional framework of the French overseas territories must evolve. It becomes urgent to address the feeling of frustration linked to the infantilizing nature of State actions in Overseas France, felt by ever more overseas representatives. Indeed, the State’s paternalistic approach deprives local politics from demonstrating their ability to manage their territories and creates an increasing feeling of unease.

The management of the COVID-19 health crisis is an example of the State’s inability to transcribe into facts and regulations its discourse that advocated territorial differentiation and the empowerment of local actors. The State excessively empowers the representative of the central Government in the respective overseas territory by means of devolving powers. By doing so, it at last nips any decentralizing impetus in the bud. Like a parent jealous of its prerogatives and its authority over its offspring, the State seems incapable of moving towards a posture based on trust and partnership, despite its self-proclaimed reformist and liberal nature.

It is the very nature of the relationship between the French Republic and its overseas territories that needs to evolve. Comparative constitutional law allows us to see how other unitary States manage to disentangle themselves from their nature, how they can develop a real partnership with their overseas communities. The Dutch constitutional architecture serves as an example: the State sets aside its unitary nature whenever necessary and openly negotiates the autonomy needs of its overseas territories. Thus, while the BES islands (Saba, St Eustatius and Bonaire) are governed as if they were Dutch municipalities, the three other territories (Curaçao, Sint Maarten and Aruba) are excluded from the scope of the Constitution. So are their relations with the Crown being governed by a supra Constitutional text – the Charter for the Kingdom of the Netherlands – that allows significant autonomy to these territories.

Reconciling the founding principles of the French Republic with locally expressed expectations requires the mobilization of new means of governance, such as adaptive and polycentric governance. At last, it is autonomy arrangements that, based on the spirit of adaptive and polycentric governance, can innovate institutions, improve decision-making processes, and develop the potential of local “capabilities” for designing tailor-made public policies. The objective is to promote the ability of overseas territories to truly seize their opportunities and manage their specificities (constraints and assets) towards sustainable development, in line with Amartya Sen’s capability approach as a framework to the practice of development. The necessary tools for local authorities to become the master of their respective own destiny are, in the end, well known: 1) enlarging the scope of autonomy in important sectors, 2) adapting institutions, and 3) granting financial autonomy.

For now, it seems that the French Government is not yet ready to take such a plunge. Against this background, some local authorities (Martinique, French Guiana, Saint-Martin, Saint-Barthélemy, Guadeloupe and even Corsica) recently decided to work together in order to speak with “one voice” and put more pressure on the central Government as to their demands, tired of not being (properly) heard on issues affecting them.

Carine David is Professor of Public Law, University of French Indies (Martinique)

Suggested citation: Carine David, ‘French Overseas Territories: Constitutional Statuses and Issues’ IACL-AIDC Blog (10 November 2020) https://blog-iacl-aidc.org/2020-posts/2020/11/10/french-overseas-territories-constitutional-statuses-and-issues