Opinion on the Bougival Agreement – Part 1

The association is returning to you exceptionally today following the announced signing of an agreement in Bougival between Caledonian representatives and the State concerning the institutional future of New Caledonia.

While the association could welcome this agreement, which is in line with those of Matignon and Noumea aimed at establishing a sort of Caledonian federated state, as Laurent Chatenay, former New Caledonian elected official, points out (see New Caledonia: “The Bougival agreement only serves to contain a possible effect of autonomist contagion” ), with the qualification of State given to the territory and the possibility of a fundamental law , in other words its own Constitution, we question certain points of this agreement which we have reviewed and for which we give you our opinion here.

This will be in two parts given the document presented and the number of comments it has generated. You will therefore find the first part of our opinion below.

It should be noted that the text we are relying on here is entitled, in French,  “projet d’accord sur l’avenir de la Nouvelle-Calédonie”  and is therefore not the final version with signatures . It is therefore possible that some elements may have been modified since then.

Thus, we can read in the principles, page 2, that the territory will take the name “State of New Caledonia” in order to satisfy one of the main demands of the first people. However, this will remain at the level of Title XIII of the French Constitution, namely a sui generis status, therefore specific and transitional , which means that it can still evolve. To this end, the association hopes that this status will not be misused as was the term “overseas country” (P.O.M.), once given to the territory, term having no meaning in French law (see CHAPPELL David, The Kanak Awakening, The Rise of Nationalism in New Caledonia, UNC-Madrépores, 2013, p.240), which, according to the Constitutional Council, had no legal impact on French law, in other words, no value.

It is stipulated that this new State may be recognized by the international community. This is not mentioned at all in the entire UN document. For good reason, because it is not a question of obtaining a seat at the United Nations but of being able to establish international relations with other States concerning the competences that NC possesses (agriculture, tourism, etc.) as stipulated in the “international relations” section of the agreement on page 7. Thus, the territory could in principle go and discuss with representatives of other States without being accompanied by the French State, like the State of California for the United States. The French State retains the sovereign competence of diplomacy for sovereign areas. Concerning the seat at the UN, NC could not obtain it in any case because it does not meet the criteria of the Montevideo Convention of 1933, since it is not independent and even if it did, it would still require a veto from one of the members of the Security Council as Kosovo experienced. The association therefore welcomes the consensus reached on this point by all stakeholders.

Still in the principles we learn that Caledonians will be able to acquire their own nationality, coupled with French and European nationality . This is specified on page 4. It should see the light of day, next year in 2026. If this notion goes hand in hand with the creation of a State, the association nevertheless questions 2 points . The first stated in the agreement is that a person renouncing French nationality would also lose Caledonian nationality. Would this make him stateless ? The second is in practice. It should be remembered that in the Noumea agreement a Caledonian citizenship was to be put in place in order to allow the natives of the country to benefit from advantages of rights and duties that foreigners but also compared to our more numerous metropolitan compatriots: a sort of local preference or positive discrimination. However, this has never been implemented or falsely. The most striking example is the local employment law, which does not protect locals at all. Thus, the criteria listed on page 5 for acquiring this new nationality seem to once again point in this direction by granting it to just about everyone. How would natives from the original people and victims of history be better protected?

Regarding the fundamental law (or Constitution) specific to New Caledonia set out in the principles, this is detailed in more detail on page 4. To be voted on by the NC Congress during the term of office beginning in 2026, its role will be to define the territory’s capacity for self-organization. Even if the terms of competence, otherwise sovereignty or internal autonomy, disappear from the draft agreement compared to that presented by the Minister of Overseas Territories in February 2025, the fact remains that this fundamental law will aim at the new State of NC to acquire the increased capacity to reform its institutions without normally going through the French State. It will be able to establish new principles of internal governance and distribution of competences between the institutions of New Caledonia. It will be adopted and revisable, it would seem, by and only by the NC Congress. Although the principles of the French Constitution must be respected, which should be recalled, it would seem, as in a federated state, that the metropolitan legislature will not be able to rule on it, even if it is part of the French Constitution. As in the United States, only the highest judicial authority, which is the Supreme Court, can have a right to review the Constitution of a federated state. Thus, the Caledonian “country laws”, within its jurisdiction, may, if the Caledonian legislature stipulates via this fundamental law, no longer be subject to the Council of State and/or Constitutional Council each time. In any case, this is what we hope for so that NC truly has its internal sovereignty, although this term is no longer used here. If this were not to be the case, then it would once again be a deception of the State.

The association notes, however, that despite the implementation of this future Constitution, many points of the agreement that should thus fall under the sole responsibility of the NC leaders are addressed in this agreement, which seems somewhat contradictory. Furthermore, there are numerous mentions of procedures passing through organic laws, thus noting the still notable presence of the State in areas in which it should no longer intervene (Nickel, social, economic, organization of the provinces, etc.) cited on pages 6 and 10 to 12. Hoping again that this is simply to enact this new agreement and then basta, as our Corsican friends would say.

It is interesting to note that the basis of the Noumea Accord remains in force as requested by the independence supporters . It may, however, evolve on the basis of proposals from members of Congress.

On this subject, the association is concerned about the evolution of the members of the Congress proposed on pages 3, 5 and 6 which gives a predominance to the Southern Province, where the majority of the population and the economy are concentrated, as the loyalists demanded. The Southern Province will thus acquire the majority of seats and therefore votes in the Congress, thus being able to block the implementation of the fundamental law, therefore of nationality and the transfer of powers going so far as to transfer them back to France, thus distorting the present agreement. Through this majority of loyalists, the State thus retains de facto control over the NC . The association thus hopes that this agreement will not be like that of Noumea, a new decoy.

A counterpart to the 32 members of the Southern Province would have been to integrate the customary senators as a 2nd legislative chamber and no longer simply consultative as today in order to obtain a sort of balance added to the 19 cumulative members of the Northern and Island provinces. It would seem according to journalistic sources that non-elected members would integrate the Congress, to compensate for this imbalance by integrating a sort of participatory democracy . Would these be the members of the CESE or drawn by lot from the population, to be seen?

The association also questions the two main points of contention: the electoral body and the right to self-determination. The latter remains on page 2, guaranteed by international law, but is not mentioned again thereafter. Some loyalist elected officials commented on the Bougival Agreement, mentioning that the new State of New Caledonia was now integrated into France, and this definitively. However, the maintenance of the territory by France in Title XIII of the French Constitution demonstrates the opposite, since it is provisional. What about maintaining New Caledonia’s inclusion on the list of non-self-governing territories to be decolonized? As for the electoral body, which unleashed passions and the insurrection of 2024 , mentioned on page 5, it will be based on the special referendum list for the validation of the new agreement by the population and, with regard to the provinces, on page 6, for natives and people residing in the territory for at least 15 years on the date of the election, therefore with a thawed electoral body. It should be noted that the thawing of the electoral body will be taken into account during the amendment to the French Constitution scheduled for the end of 2025 to incorporate the Bougival Agreement, while the details of the other measures will not be planned until March 2026 as part of the adoption of the special organic law by the National Assembly.And if this special organic law were not passed, we would simply have a de facto thawing of the electoral body and a return to square one.

The association is saddened that so much destruction and death had to be experienced to get to this point. Furthermore, if the self-determination vote remains possible, why open up the electoral body and give Caledonian nationality to people with less than 20-30 years of territory, who are described as “Caledonians at heart” or even only 5 years in the case of unions (see Page 5, marriage or PACS). Thus, for the 2026 elections, people present in NC, until 2021 will be able to express themselves. As a reminder, Jean Marie Tjibaou, father of the current pro-independence MP, was in favor of an electoral body with 10 years of residence, thus allowing the integration of people before 1968, before the nickel boom and the massive immigration that followed. In this regard, the association had already made its position known, based on an electoral body open to people born in the territory for three generations, with an exception for so-called Caledonians of the heart. It appears, however, that new residents will have to apply for New Caledonian nationality in order to ultimately vote in provincial elections and therefore for Congress. 

As a reminder, the APROFED association is made up of both natives and Caledonians, known as “hearts”, from all the representative communities of the country.

We are therefore pleased that an agreement has been reached, even if it could have been reached before it resulted in deaths . We are pleased that this agreement, even if ambiguous on certain points, tends towards the establishment of a federated state or non-sovereign associated state , even if it is not called that and remains with a sui generis status. Jean-Éric Schoettl, former Secretary General of the Constitutional Council, declared that the new status of New Caledonia would resemble that of a State of the French Community of 1958 (see Jean-Éric Schoettl: “Constitutional law must remove the ambiguities” of the New Caledonia agreement). This time, we hope that the State is sincere to avoid this agreement ending up like General de Gaulle’s French Commonwealth, namely stillborn.

The association hopes, given the statements made by the separatists at the beginning of the summit, that it was not concluded under any pressure, not to mention threats from the state, particularly financial, against the NC, to reach this agreement and avoid a snub to the President of the Republic, as he has been to his American counterpart in the Russian, Iranian, and Palestinian affairs.

The association remains vigilant in the next 6 to 12 months, awaiting the publication of the detailed agreement on which the population and us at the same time will have to vote, in order to hope that it is neither a decoy, nor, as in the 1980s, yet another statute (Lemoine, Pisani, Pons) or a Noumea Accord bis aimed at maintaining the status quo. It is worth recalling here that the Matgnon Accords of 1988 were also described as a “superficial change of the smoke and mirrors type” which in practice would restore power to the settler oligarchy (Connell, 1988).

It will also be necessary to await the passage through parliament and then the Congress of Versailles where it could be modified. We also hope that it does not cause a further dissolution of the assembly and the fall of the central government by a motion of censure, insofar as this agreement risks causing certain fundamentals changes of French law.

The association hopes that on the pro-independence side, activists will also demonstrate the same vigilance in light of the State’s promises, which are too often flouted, and will therefore not hold it against their delegation, which went to mainland France to negotiate. The delegation, knowing full well the risks it faced upon returning home, is better than anyone else for the Caledonian pro-independence MP, to the extent that all the leaders who demanded independence in 1978 were killed (L’express, June 2, 1989). It is worth noting the clarification made by the FLNKS regarding this agreement, namely that it remains a political commitment, an agreement in principle, a step, a project, and therefore not definitive.

The association will get back to you during the week to continue to analyze this project and share its further opinion with you.