Symposium: French Overseas Territories: Situating New Caledonia Within French Republican Traditions

Eoin Daly

National University of Ireland, Galway

This post is about the constitutional background to New Caledonia’s unique status within France, and the location of this constitutional status within highly contested republican concepts and traditions. Specifically, I outline certain ways in which New Caledonia’s legislative autonomy is a departure from constitutional orthodoxies that are linked with France’s republican identity.

Universalism and legal pluralism in French tradition

Constitutionally speaking, the specificity of New Caledonia’s status as a ‘sui generis’ French collectivité d’outre mer lies in its system of legislative autonomy. The Congrès of New Caledonia enjoys a freestanding legislative power to enact a category of legislation – lois du pays – that has no equivalent elsewhere in the French overseas départements or collectivités. In effect, this amounts to a kind of legal pluralism, within French territory, that marks a departure from republican principles, enshrined in French constitutional law, that have been adapted and relaxed in recent decades.

The idea of legislative pluralism – of competing or overlapping legislative jurisdictions over the same sovereign territory – is historically anathema to French republican principles. ‘Universalism’, as a component of this tradition, has been translated partly as an insistence on legal and legislative uniformity, and a rejection of differentiated or identity-based rights, paralleling a wider rejection of normative multiculturalism or communautarisme (‘communalism’).

This ‘universalist’ tradition is reflected in a trio of constitutional principles that historically tended to preclude legal pluralism or differentiation: laïcité – the principle of constitutional secularism – which prohibits recognition of religious rights; equality before the law, which prohibits group-based legislative classifications; and, most importantly for current purposes, the indivisibility of the Republic, which has been interpreted as prohibiting legal recognition of plural ‘peoples’ within France.

In metropolitan as well as overseas France, this universalist tradition precludes legal recognition of minority or group-based rights. This was echoed in Tonnerre’s famous assertion to the National Assembly, in 1789, that ‘we must accord the Jews nothing as a nation, but everything as individuals: they must neither become a state nor a separate order, but become individual citizens’.

While this universalism has of course been critiqued as itself being an insidious form of cultural majoritarianism, it has received a peculiar translation in relation to issues of territorial organisation. On the one hand, the republican tradition precludes official recognition of say, customary or religious legal systems, with republican legal identity closely associated with the post-revolutionary achievement of national legal uniformity under the Code Civil of 1804. And while there is de facto legal differentiation at the regional and local levels, such adaptations are, on the other hand, contingent on authorisation by a unitary national legislature.

Universalism in colonial and postcolonial France

Of course, legal universalism was never a reality in overseas France, particularly during the colonial period. Instead, indigenous peoples were subject to various arrangements including the notorious Code de l’indigénat (‘indigenous code’) that was applied to Muslim subjects, particularly in Algeria, even after its assimilation within metropolitan France. France typically allowed the maintenance of customary and religious adjudication in colonised territories, in various forms, while establishing parallel civil jurisdictions for French citizens.

In the post-colonial period, the 1958 Constitution recognised the colonies’ right to secede. Moreover, the Conseil Constitutionnel ruled that the Constitution did not limit this right to the initial right of secession, but also guaranteed an on-going right for the overseas populations to determine their future and territorial status within the Republic.

Therefore, overseas territories were never subject to an undifferentiated ‘common’ law notwithstanding their assimilation within the post-imperial republic. The basic tenets of legislative uniformity and equality before the law have been derogated from, accordingly, in several respects. For example, the electorate for New Caledonia’s autonomy plebiscite in 1998 was restricted to those resident on the island for at least ten years, while provision was made for positive discrimination, in public employment, for residents with a durable connection to the island – confounding metropolitan constitutional orthodoxies.

The complex law of territorial organisation in the French overseas also reflects various compromises to these traditional orthodoxies. France integrated certain overseas territories, such as Guadeloupe, Réunion and Martinique, as départements in 1946, and this entailed certain compromises to the general constitutional principle of legislative uniformity. The départements d’outre-mer (DOMs) are subject to a principle of ‘legislative unity’, meaning that national legislation automatically applies unless otherwise stated by the relevant parliamentary statute. Yet this allows for some degree of legislative differentiation. Article 73 of the Constitution of the Fourth Republic (1946) provided that the parliament could differentiate or adapt legislation in the DOMs on an exceptional basis. This arrangement was maintained under the Fifth Republic. The power to vary legislation in the DOMs is subject to certain limits; in particular, in light of the countervailing principle of equality, departures from legislative unity must be based on specific situational differences between the métropole and the department in question.

In this light, the principle of republican indivisibility no longer entails legislative uniformity as envisaged in republican orthodoxies. A 2003 constitutional amendment went a step further, providing for extensive decentralisation. The amendment gave the DOMs themselves a limited power to derogate from national legislative provisions, subject to parliamentary supervision and oversight.

A further category of overseas territories – the collectivités d’outre-mer (formerly territoires d’outre-mer) – were assimilated in the Republic but never integrated as départements, and correspondingly they enjoy a greater degree of legislative autonomy. ­­These collectivités, including French Polynesia and St-Pierre-et-Miquelon, are not subject to parliamentary legislation unless expressly stated otherwise – with the Constitution of the Fifth Republic explicitly recognising their ‘particular organisation’. Although entirely a part of the territory of the Republic, they enjoy varying degrees of legislative autonomy as provided for in specific parliamentary statutes (lois organiques).

Such arrangements never conceded any form of asymmetric federalism, and never expressly derogated from the singularity of the national legislative power, notwithstanding de facto legal diversity in different territorial arrangements. New Caledonia, however, is an exception, because a 1998 amendment to the French Constitution effectively enshrined its legislative autonomy. This amendment recognised a category of legislation – lois du pays – that New Caledonia can enact independent of any authorisation or oversight by the national legislature, essentially entailing a form of asymmetric federalism previously thought anathema to French tradition. For some commentators, this represents an increasingly ‘contractual’ conception of the relationship between the central State and the infra-state territorial authorities.

Conclusion

The New Caledonian situation focuses attention anew on the complex constitutional arrangements in the French overseas territories that depart from traditional republican orthodoxies. While these accommodations are largely driven by pragmatism and the realpolitik of postcolonial politics, they may also be situated within a wider ‘crisis of universalism’ in French politics itself, with the social republic facing a crisis of legitimation since the turn to neoliberalism in the 1980s, and traditional conceptualisations of social and political unity correspondingly coming under strain.

Eoin Daly is Lecturer Above the Bar at the School of Law, National University of Ireland, Galway.

Suggested citation: E Daly, “Situating New Caledonia Within French Republican Traditions” IACL-AIDC Blog (17 November 2020) https://blog-iacl-aidc.org/constitutionalism-and-pluralism-in-overseas-france/2020/11/14/situating-new-caledonia-within-french-republican-traditions