For a federated state, it is necessary to recover competence in matters of justice

The APROFED association is getting back to you this week following the analysis made by several legal experts already known to Caledonians for their work on New Caledonia in an article dated July 16 in NC1ere deciphering the notion of the Caledonian State (see DECRYPTION. New Caledonia Agreement: what does the notion of the Caledonian “State” mean? ).

It can be read that for the constitutionalist Ferdinand Mélin-Soucramanien ,  “it is a federal type relationship between New Caledonia and the French Republic. With the particularity that the federal type relationship only exists with New Caledonia.”  The academic believes that it is an  “asymmetrical federalism,”  practiced by many other countries.  “That is to say, a unitary relationship with certain communities and a federal one with others.”

According to Léa Havard , there are elements that resemble a federated state.

However, Carine David points out that in federal states , for example, they have jurisdiction over justice. This is not the case here.

This is in fact what the association has been demanding since its creation (see with France – APROFED ; The APROFED association for legislative sovereignty – APROFED ).

It would therefore be appropriate within the draft Bougival agreement to integrate, like international relations, judicial competence into the field of competences specific to Caledonian institutions, in the future special organic law and fundamental law.

Without the recovery of this judicial competence, we would de facto have a Noumea Accord bis, a new status quo for an indefinite period, benefiting the State but not the Caledonians and thus making the Bougival Agreement a “stillborn” agreement according to some (see A “stillborn” project: The Bougival Agreement between France and New Caledonia is already generating criticism on the ground – Le Temps ) and for others the future State of New Caledonia, a “false State”, in a “false association” and a “false sovereignty” (see With the Bougival Agreement, is the fear of a “loss” of New Caledonia well-founded? ), attributes of facade sovereignty (see The executive commission of the Caledonian Union castigates the Bougival Agreement), in other words, a scam, a deception, a fraud.

Without judicial competence, the future State of New Caledonia would at best be a regional State, known as a community State, as in Spain , like the region of Catalonia and as described by David Chappell who believes that the French Parliament is inventing an unprecedented form of regionalism (cf. CHAPPELL David, The Kanak Awakening, The Rise of Nationalism in New Caledonia, UNC-Madrépores, 2013, p.240). When we know how the relationship between this region and the central State ended, this hardly encourages us to take the same path. Can we see here the influence of the Minister of Overseas Territories, Manuel Valls, or is he simply taking up an idea already presented by the former Senator P.Frogier (see New Caledonia 2025, after the insurrectional crisis of May-July 2024, what future? by F.Angleviel – APROFED ), namely to transform the country into the “Autonomous Community of New Caledonia and Kanaky (CANCK)” . The French State thus practices the same method as with the EU, namely to dress up in a federal veil the fact of favoring on the contrary an ever more unitary method.

If this is the purpose of the Bougival agreement project, the association would be obliged to call for abstention during the popular consultation to be organised in February 2026.

Yes, to a federated (or non-sovereign associated) state with shared sovereignty (legislative or internal). No to a hybrid regional state, integrated into an increasingly centralizing France.

Proudhon declared in the “federative principle” that the 20th century will open the era of federations… (which Michel Rocard did for New Caledonia with the Matignon-Oudinot and then Noumea agreements) … or humanity will begin a purgatory of 1,000 years again . It is therefore time to finalize these agreements by finally establishing a federated State of New Caledonia having regained its internal autonomy that the French State had conceded to it in the 1950s and taken back shortly after.

The announcement of an amendment to the Bougival Agreement, enacting the transfer of judicial jurisdiction to New Caledonia, must be made within two months. The association fears that without this measure, the infamous unilateral declaration of independence will be announced on September 24, 2025, by certain pro-independence and traditional parties that already challenge the proponents of the draft Bougival Agreement.

Without this amendment, “popular actions” are again to be expected, warns the UC (see The Caledonian Union renounces its signature | La Dépêche de Nouméa ).

It should be remembered that the attribution of judicial jurisdiction to an infra-state entity is possible since it is already in practice in European countries such as Germany or Austria (see question posed to the IA at the end of the article).

Furthermore, if the Vienna Convention of 1969 recognizes that any State has the capacity to conduct treaties allowing the future Caledonian State to de facto recover competence in international relations, the transformation of New Caledonia into a State would also de facto lead it, in view of numerous international conventions, to manage judicial obligations in various and varied fields, as the IA reminds us below.

AI reminds us that judicial competence is considered an inherent attribute of state sovereignty (a customary principle of international law).

1. Customary principle: judicial competence as an attribute of sovereignty

International law recognizes that every State has the right to exercise its judicial jurisdiction within its territory (principle of territorial sovereignty).

• • Lotus Judgment (PCIJ, 1927) : ” Limitations on the independence of States are not presumed “, which means that in principle a State is free to exercise its jurisdiction (territorial, personal, universal) as long as it does not violate a prohibitive rule.

• • This is not an obligation , but an inherent right . A state could, in theory, choose not to exercise judicial jurisdiction (for example, by not prosecuting certain ordinary crimes), as long as this does not violate specific international obligations.

2. Cases where treaties impose judicial jurisdiction

Certain international treaties expressly require States to provide for and exercise their judicial jurisdiction , especially for serious crimes, according to the principle “aut dedere aut judicare” (extradite or try):

 Examples:

• • Convention against Torture (1984, Arts. 5-7) – obligation to establish jurisdiction and to prosecute or extradite.

• • Geneva Conventions (1949) and Additional Protocols – obligation to prosecute serious violations (war crimes).

• • Convention on the Suppression of Genocide (1948, Art. 6) – obligation to try or surrender to a competent international tribunal.

• • Conventions against piracy, air terrorism, etc. – imposition of compulsory jurisdiction in certain cases.

Summary

Here, judicial jurisdiction becomes an international obligation , but only in the cases provided for by these treaties.

3. Conclusion

 There is no general rule requiring a state to exercise its judicial jurisdiction in all matters.
 However, under customary law, judicial jurisdiction is an essential attribute of sovereignty.
 In certain specific areas (serious international crimes), treaties impose mandatory jurisdiction.

It would therefore be appropriate for the future Caledonian State to exchange these international judicial obligations with the French State for those specific to Caledonian jurisdictions.

Question to AI: Is judicial jurisdiction shared in a federal state with the federated states?

AI Response:

Yes, in a federal state, judicial jurisdiction is generally shared between the federal state and the federated states , but this distribution varies depending on the constitutions and legal traditions specific to each federation.

 1. General principle

• • In a federal state, sovereignty is divided between the federal state and the federated states .

• • Each level of government ( federal and federated ) in principle has its own judicial system in areas where it has legislative competence .

Thus, judicial competence follows legislative competence :

• • If a matter falls under federal jurisdiction (e.g. criminal law, foreign trade), it is in principle the federal courts that decide.

• • If a matter falls within the jurisdiction of a federal state (e.g. civil law, family law in certain countries), the courts of the federal state have jurisdiction.

 2. Concrete examples

• • UNITED STATES :

• • • Each state has its own judicial system (state supreme courts, state courts).

• • • The federal government has its own courts (district courts, Supreme Court), which have jurisdiction over cases arising under the federal Constitution or federal laws.

• • • There may be competing jurisdictions (for example in criminal matters).

• • Germany :

• • • The states have their own ordinary courts for most matters.

• • • But certain federal jurisdictions (Bundesgerichtshof, Bundesverfassungsgericht) ensure the unity of federal law.

• • Swiss :

• • • The cantons organize their justice for the majority of cases.

• • • The Federal Court has jurisdiction as a court of last instance and for certain federal matters.

 3. Nuances

• • In some federal states, justice is highly centralised (e.g. Belgium, where despite federalism, justice remains organised at the federal level).

• • In others, it is largely decentralized (e.g., the United States).

Conclusion

Yes, judicial jurisdiction is shared , but not necessarily equally . Federal logic implies that each level of government in principle has its own jurisdictions within its areas of competence. However, federal control (Supreme Court or Constitutional Court) often ensures the unity of the legal order.