Guest Editor's Introduction: Squaring the Circle: Constitutionalism and Pluralism in Overseas France

Elisabeth Alber

Eurac Research Institute for Comparative Federalism

For this blog symposium, the IACL Blog editors asked contributors to reflect on the constitutional status of, and issues in, Overseas France (termed as seen from metropolitan France). This request – and my response to it with this introductory overview that shows the topic’s multiplicity and complexity – prompted reflection on the meaning and value of studying small (sub-national) islands’ jurisdictions from the viewpoint of comparative constitutional law and beyond.

It is not by chance that this blog symposium is published in November 2020. Two years ago, on 4 November 2018, in the French Pacific overseas collectivity of New Caledonia, the first of three referendums on independence was held, while on 4 October 2020 the second one took place. In both instances, voters said No to getting full independence from France when asked the question “Do you want New Caledonia to accede to full sovereignty and become independent?”. I explained the referendums’ results and their unique constitutional nature as a cycle of referendums that were deferred under a peace agreement in the post “New Caledonia Rejects Once Again Full Independence, but the Die Is Not Yet Entirely Cast”.

This and the posts in the upcoming days and weeks not only aim at reflecting on the current events in New Caledonia and its sui generis, federal-like arrangement, but they do take the events in, and the specificities of, New Caledonia as an opportunity to draw attention to five additional issues. First, the evolution and status quo of legal and societal pluralism in worldwide France. Second, the question of how pluralism (understood as an interplay of conflicting and competing positions resulting in overlapping legislative jurisdictions) does challenge the French “universalist” tradition (i.e. its constitutional principles of secularism, equality before the law, and the principle of indivisibility of the Republic). Third, the implications resulting from debates and scholarly work in disciplines other than constitutional law on constitutional developments in Overseas France. Fourth, the question of how constitutional status and issues in Overseas France compare to other European Overseas Territories. Fifth, the question of how constitutional developments in Overseas France relate to the process of decolonization and European Overseas Law.

To this end, this blog symposium shows how Overseas France with its twelve worldwide territories does speak to global debates on constitutionalism and pluralism. All overseas territories have very different governance and autonomy arrangements that can provide valuable insights on how the presumed incompatibility of constitutionalism (understood in unitary and hierarchical terms) and pluralism (understood in non-hierarchical terms as a means to recognize and accommodate societal diversity) can or cannot be overcome. The question of how pluralism as an interpretation of social diversity is perceived and dealt with, and to what extent such pluralism is recognized and accommodated legally, was and still is a difficult and contested one in Overseas France. Since the 18th century, France has used the notion of legislative specialty to manage the recognition of diversity in overseas territories, with different legal treatments of more integrated overseas departments/regions and other overseas areas that are connected to metropolitan France by looser constitutional ties.

Out of twelve French Overseas Territories, eleven are inhabited and all eleven except one (i.e. French Guiana) are (a group of) islands. The variety of constitutional arrangements that define the political status of Overseas France may be reduced, in essence, to two main forms: Overseas Departments (DOM) governed by the principle of legislative identity, and Overseas Territories (TOM) enjoying greater autonomy. In practice, however, each French-administered overseas area is subject to different rules, as rules may be adapted to the specific characteristics and constraints of local communities also in the DOM (article 73 of the French Constitution).

As remains of the French colonial empire, all French Overseas Territories are in the end characterized by growing statutory diversity revealing historical and socio-cultural heterogeneity. Such heterogeneity affected and still affects to a very different extent the relations of each overseas territory with metropolitan France, the European Union (EU), supranational bodies, and actors present in the respective geographic region.

While New Caledonia started to vote on independence, in 2011 Mayotte became the 101st French department after several referendums on its constitutional status, and the first French department with an overwhelmingly Muslim population. Mayotte is one of the four islands of the archipelago of the Comoros in the Indian Ocean. Unlike the other three islands, Mayotte voted to remain part of France at independence in 1975. The separation of Mayotte from the other three Comoros islands was troublesome, and it breached a UN resolution passed in 1960 ruling that during decolonization all existing boundaries must be respected. Today, the island is still claimed by the Union of the Comoros. Mayotte’s process of departmentalization, and thus the full inclusion of the citizens of Mayotte as French nationals, shows in an exemplary manner how the new status as a French department is hardly compatible with the island’s socio-cultural history based on Islamic law and African customary law. France also reluctantly supports the tenets of the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP), and Mayotte’s citizens have struggled to adapt to the reforms of the civil status and local laws that have led to a significant decrease of the relevance of customary rights and the Cadi Tribunals as an authority.  

Mayotte’s system of legal pluralism and customary law next to the ones in the French Pacific collectivities of New Caledonia and Wallis and Futuna exemplify the implementation of article 75 of the 1958 French Constitution that allows territories that are not subject to the Civil Code to maintain personal law systems. In those systems, the existence of separate personal status is officially recognized, with the Pacific currently being an area in which such legal pluralism is even strengthening. Wallis and Futuna serves as an example of how customary authorities and practices have been successfully incorporated into local-metropolitan authorities, rather than promoting co-existence only. The French administrative and justice system (droit commun) and the customary system (droit coutumier) coexist with responsibilities being distributed between the French administration led by a prefect, the customary authority led by three kings and high chiefs, and the territorial assembly, resulting in a system of polyarchy characterized by a plurality of leaders and power centers.    

As a rule, colonial powers, though to a very different extent, were not passive onlookers but active agents in the construction of multiple legal orders. They assigned to customary laws specific, often truncated, interpretations that could coexist. Customary law was typically incorporated in colonial legal orders, while establishing parallel civil jurisdictions. Colonial legal orders, as argued from the viewpoint of anthropology of law, often were mediated through relationships and networks in “semi-autonomous fields”, and their normative orders. Of course, colonial powers attributed a different strategic value to each of their overseas territories and thus they have differed in their capacity to safeguard their strategic interests by means of direct, constitutional relations – with France’s constitutional ties spanning well over the globe.

Against this background, debates on “Islandian sovereignty” have been conflict-ridden to date, both in general terms as to metropole-island relations and in more specific terms as to triangular negotiations of island sovereignty (when indigenous interests and customary authorities in metropole-islands relations are officially and permanently included). Such debates are perceived and managed very differently across governmental levels, within and beyond regional areas. Scholars have clearly documented the economic, political, and social advantages of small subnational islands’ jurisdictions, and claimed that they are predicated on relatively benign relationships. Such benefits and the efficacy of metropole-island relations are, however, increasingly questioned, not least because economic inequalities among indigenous communities and “settlers’ generations” continue to persist. For these reasons, independence, dependance and interdependencies, statehood, (non-/semi- and shared) sovereignty and autonomy, are increasingly (re-)negotiated at the local, subnational, national (in the metropoles as a homeland or central territory of the former colonial empire) and supranational level (in EU’s “paradiplomacy” or, where applicable, within the EU Law of the Overseas, in international maritime and indigenous law, and in international relations).

For example, think of how the issue of sovereignty and indigenous self-determination unfolds in the latest constitutional developments across different small (subnational) islands’ jurisdictions in the Pacific, and in Australia. As explained in the blog post “Oceanic Currents: Constitutional Developments in the Pacific”, “[n]ot all assertions of sovereignty are directed to secession. Claims to sovereignty also underlie current advocacy in the region for the meaningful constitutional recognition of Indigenous peoples, as polities within state borders with their own identity, laws, and political processes”. Alternatively, as argued elsewhere regarding the case of New Caledonia, “[t]he referendum is the political translation of a broader, societal process of redefining a society, which has yet to be analyzed as such.” Studies on constitution making in the Pacific show how different debates and their institutional solutions are clearly embedded in their own regional, historical contexts. Zooming in to the French Pacific, the establishment and politics in regional organizations such as the Pacific Islands Forum (founded in 1971) and the Melanesian Spearhead Group (established in 1986) are an example in this regard. As a product of regional pan-Pacific (indigenous) solidarity, they were created out of regional concerns for decolonization. In addition, debates on “Islandian sovereignty” are fueled also within islands’ groups resulting in conflictual inter-islands’ relationships in which the peripheral island(s) of an islands’ group claim their autonomy and, at times, independence from the central island. The French Pacific again serves as an example with the cases of the Belep Islands (New Caledonia) and Futuna (Wallis and Futuna).

As this post has shown, reflecting on Overseas France requires us not only to transcend disciplinary boundaries, but to think globally and regionally too. On the one hand, French-administered territories outside Europe are located across many and very diverse geographic regions. On the other hand, despite or due to their constitutional ties to metropolitan France (and the EU), they were and are still subject to conflictual dynamics in “relational constitutionalism” – within their geographic region and beyond. As explained in the above-mentioned examples, law and politics in their own (macro-)regional areas are not always compatible with “imported” legal orders and political interests. Moreover, conflicts may arise within the very same geographic region not only with “neighbors” but also because French-administered territories are subject to different legal treatments. The French Caribbean is an example in this regard.  

Of course, in this blog-symposium we cannot present all the possible themes available regarding the (in)compatibility of constitutionalism and pluralism in French-administered territories nor can we represent all the perspectives that are present in the debates on “Islandian sovereignty” in Overseas France. My hope is that the posts of this symposium help enrich the debates about Overseas France by providing accounts that have up to now been underexplored, or that simply co-existed within French- and English-language academia without really “talking to each other”.

In the upcoming days and weeks, six contributors translate this hope into action with the following five posts. They are published in the following order:

1. World-Wide France and (Colonial) EU Law Today (5 November, Dimitry Kochenov);

2. French Overseas Territories: Constitutional Status and Issues (10 November, Carine David);

3. One Island, Two Nations and a European Union: St Martin (12 November, Gerhard Hoogers and Gohar Karapetian);

4. Situating New Caledonia within French Republican Traditions (17 November, Eoin Daly);

5. Les résultats du 4 octobre 2020 sur la pleine souveraineté de la Nouvelle-Calédonie projettent une société divisée dans « le jour d’après » (19 November, Mathias Chauchat).

My sincere thanks go to the contributors in the blog-symposium and the editorial team of IACL-AIDC for assisting and hosting us. Je tiens aussi à remercier tous les membres du Laboratoire de Recherches Juridique et Économique (LARJE) de l’Université de la Nouvelle-Calédonie qui ont consacré leur temps à faire progresser ma compréhension de la complexité constitutionnelle et sociétale de l'Outre-mer français, en particulier de la Nouvelle-Calédonie.

Elisabeth Alber is Senior Researcher at the Eurac Research Institute for Comparative Federalism and member of the IACL Research Group on Constitutionalism and Societal Pluralism: Diversity Governance Compared. In November 2018, she was Visiting Fellow at the Law Faculty of the University of New Caledonia in the LARJE-Research Centre for Law and Economics.

Suggested Citation: Elisabeth Alber, ‘Guest Editor's Introduction: Squaring the Circle: Constitutionalism and Pluralism in Overseas France’ IACL-AIDC Blog (3 November 2020) https://blog-iacl-aidc.org/constitutionalism-and-pluralism-in-overseas-france/2020/11/3/guest-editors-introduction-squaring-the-circle-constitutionalism-and-pluralism-in-overseas-france