What will the future “State of New Caledonia” be like with the Bougival Agreement?

The APROFED association is getting back to you this weekend following the announcement made in the principles of the draft Bougival agreement on the future of the territory of the creation of a “sui generis State of New Caledonia”.

Since this announcement, questions have been flying. Some believe it will be an integrated state within France, while others believe it will be a federated, associated, hybrid, or even independent state, or even a protectorate, a term used during the colonial era.

What is it really?

As already mentioned in several of our articles, the Latin term sui generis roughly means “specific,” “special,” and does not fit into any pre-established category. This clearly reflects the French characteristic of always wanting to stand out from the crowd.

As a reminder, there are currently 3 types of state organization , namely:

– unitary or centralizing, like France,

– federal , bringing together several federated states, sharing decisions with them, as in Germany,

– or hybrid , located halfway between the first two, like the regional states , in Spain for example, which are former unitary states having begun their transformation towards a federal or associated system in the Pacific Ocean which can be fully sovereign, therefore independent, like the Cook Islands or non-sovereign like Puerto Rico, both wanting to be able to govern themselves while benefiting from the aid and protection of generally more powerful neighboring states.

These 3 organizations can also be grouped into only 2 categories, namely unitary states and so-called composite states (federal and hybrid).

Some also describe the unitary state as an integrated state . We have heard some elected officials on the loyalist side describe the future Caledonian state in this way.

Now, what is a unitary or integrated state ? We asked AI for this, which provided us with the following answer, namely that an integrated state is a concept in political science and public law that designates a highly centralized state , where all political, administrative and legal powers are concentrated at the national level . Unlike a federal or regionalized state, local entities (municipalities, departments, provinces, etc.) do not have real political autonomy : they only exercise powers delegated by the central power. France is a unitary state even if it is today decentralized. It is characterized by

– a single Constitution and a single legal system throughout its territory,

– a single legislative power, with its national Parliament,

– a unity of sovereignty : only the central authority holds sovereignty (no sharing with federated entities),

– a hierarchical administration controlled by the central State : local authorities carry out missions decided by the center,

– homogeneity of laws and public policies throughout the territory.

However, it is easy to see certain differences with the case of New Caledonia which distinguish it from this type of organization both at the local level itself where the government of New Caledonia shares certain powers with its 3 provinces, which was the basis of the Matignon-Oudinot and Noumea agreements. The same is true in its relationship with France , where by its legislative specificity, New Caledonia is not subject to all metropolitan laws , it has its own legislative instrument, called Congress , which allows it to vote its own laws, called “country laws”. According to some, it already has a sort of Constitution which is the preamble of the Noumea Accord which with the Bougival agreement will take the name of fundamental law, another qualifier used to designate a Constitution, as in Germany.

Thus, New Caledonia deviates from this designation of integrated or unitary State in theory . In practice, although metropolitan laws do not automatically apply on the territory, the “country laws” emanating from the country are systematically controlled, or even rejected by the French State through its Council of State and/or the Constitutional Council, denoting a desire of the central State to always want to control everything. The loyalists with their project of hyper-provincialization would like to see the government and the Congress of New Caledonia disappear in favor of each province, and if possible return certain powers that they possess to France . If this were to happen, we would indeed have a reinforced recentralization of French power over NC and the loss of the latter’s autonomy as in the 1960s.

Now, autonomy is one of the main characteristics found in a federal-type organization. But what is a federal state?

A federal state is a form of political organization in which several political entities (called federated states , provinces , cantons or regions ) unite within a central state while retaining a certain autonomy . As can be seen, in a federal state, there is also a central state, reminiscent of the unitary or integrated state seen previously. The difference is that in a federal state , power is shared between the center and the federated entities. It is no longer concentrated essentially by the center. The United States, Canada, Switzerland or Germany are examples of federal states. They are characterized by a distribution of powers. The federal state exercises powers of national interest (army, currency, diplomacy, etc.). The infra-state entities that are the federated states manage internal areas (education, local police, transport, etc.), according to the constitution. There is a single federal Constitution that sets out the respective powers and cannot be amended without the agreement of the federated states, which also have their own constitutions. Citizens belong to both the federal state and their federated state; they have dual citizenship . The federated states participate in central institutions, often through a bicameral parliament (with one chamber representing the federated states).

Through this description, it is therefore possible to find certain characteristics in the current internal organization of New Caledonia, in its relationship with France and in the proposals put forward within the Bougival Agreement . As already mentioned, New Caledonia already has a large degree of autonomy , both political, administrative and legislative. Through the Matignon Agreements which organize its territory as a federal structure, New Caledonia is granted, via the Noumea Agreement, exclusive powers , distributed between the State, the local government and the provinces, which are moreover irreversible. The French State cannot recover them. Local elected officials, with their deputies and senators, continue to participate in the life of the central State by sitting and voting on laws within the French Parliament on national subjects. Given all of these characteristics, many experts believe that France is already a de facto federal state that ignores itself, particularly in its relationship with its overseas territories.

Here again, in order to be fully qualified as a federal organization, New Caledonia would have to have its own courts and therefore judicial jurisdiction at least for the powers it currently manages, as Carine David points out (see DECRYPTION. New Caledonia Agreement: what does the concept of “State” mean? ). The Bougival Agreement allows for this provision in its Title II.1.c – Revision . Pending this transfer, the French State retains the sovereign jurisdiction of justice. It would therefore be interesting to apply to judicial jurisdiction the proposal made by the State concerning that of diplomacy, namely to transfer to New Caledonia international relations in the field of jurisdiction specific to Caledonian institutions (agriculture, tourism, employment, housing, etc.). Implementing this provision will prove more complex, as the French government requires, in return, a majority of elected representatives at the NC congress in favor of this provision, as well as popular approval by referendum. However, for the time being, no majority has emerged for this purpose.

As a reminder, a federated state is equivalent to an associated but not sovereign state . The Latin term federated means to associate, to unite by an alliance.

The difference between a non-sovereign associated state and a federated state lies mainly in the degree of sovereignty, the nature of their connection with the central state and their international legal status.

As seen previously, the federated state is an integral part of a sovereign state like the non-sovereign associated state which has a certain internal autonomy but is not a sovereign state under international law. Both do not have full sovereignty ; international sovereignty belongs to the state with which they are associated/federated. Some federated and/or associated states may nevertheless have international personality or limited diplomatic autonomy. Both do not normally have a seat at the UN . If the federated state is organized according to a Constitution, the status of the non-sovereign associated state is generally the result of a bilateral agreement. The federated state cannot secede unilaterally unless the mention is provided for in the federal constitution as in Ethiopia. The non-sovereign associated state can terminate the association and request independence if this is provided for in the agreement. Another difference, this time of a historical-geographical nature, is that federated states are closer to the federal states with which they are associated both historically and geographically. Conversely, associated states are more often distant territories (islands), not geographically intertwined with the sovereign territory with which they wish to associate and have a recent history with it, most often dating back to the colonial period.

Once again, it is possible to bring the current and future status of New Caledonia closer to this concept of non-sovereign associated (federated) State thanks to the Matignon-Oudinot, Noumea and now Bougival agreements which, through an agreement, aim to bring the territory of New Caledonia closer to France, each 20,000 km apart, while allowing it diplomatic autonomy limited to these areas of competence and with the possibility of breaking the link in order to acquire full sovereignty, in other words independence, under certain conditions however, which would lead it to have to manage its internal and external security, its currency, etc. alone, at least initially, while waiting to establish new interdependencies with other States.

The difference between the non-sovereign (federated) associated State and the sovereign associated State is obviously found in the qualifier for which the sovereign associated State would have its sovereign powers as a completely independent State before delegating them by agreement that can be denounced at any time to another State so that it assumes management . This State is very often the former administering power, not to say colonial, but it can be otherwise. Article II.1.c – Revision of the Bougival Agreement which allows the transfer of sovereign powers from France to the NC under conditions stipulates that in the event of adoption of such a resolution, a working committee will be set up between the State and a special delegation of the NC Congress in order to study the modalities and the financial, legal and technical implications of this transfer. Thus, the option of the associated State is also possible.

As for the protectorate, it is a form of political relationship in which a powerful state (the protector) exercises control or influence over another state (the protected state) , while leaving it a certain internal autonomy. The protected state often retains its local institutions and its head of state, but it loses some of its independence, particularly in diplomacy and defense. The protector state undertakes to defend the protected state against external threats. Unlike a colony, where the territory is directly administered by a foreign power, the protectorate leaves an appearance of autonomy. This was the case of Morocco and Tunisia , which were French protectorates at the beginning of the 20th century. If this status was generally the first proposed by most European countries in their conquest of the world to discovered territories, it was very quickly replaced by that of colony, with direct administration, to the great displeasure of the populations there. Although entitled “independence-association”, the status formulated by E. Pisani in 1985 was in reality a protectorate status.

The example of Morocco is revealing here insofar as the President of the French Republic declared himself, almost a year ago to the day, in favour of an internal autonomy status, similar to that of Bougival, proposed by Morocco to the authorities of Western Sahara (cf. President Macron supports the autonomy plan for Western Sahara – APROFED ).

There remains the example of the so-called regional state , which is found in Spain, Italy, and the United Kingdom. This is also a form of hybrid political organization located between the unitary state and the federal state . A regional state is a decentralized unitary state where certain regions have a large political, administrative, and financial autonomy, but the central state remains sovereign and preserves the unity of the state. Although the regions can have their own institutions (parliaments, regional governments) and significant legislative powers, the regional state is determined by the fact that there can only be one Constitution, one citizenship, one national parliament. Unlike associated and federal states, regions cannot legally detach themselves from the state.

Although New Caledonia has been defined by many, since the Matignon-Oudinot and Noumea agreements, as a territory resembling a non-sovereign federated or associated state, as stipulated by Ferdinand Mélin-Soucramanien (see DECRYPTION. New Caledonia Agreement: what does the notion of “State” mean? ), daily practice in its relationship with the State is in fact closer to a regional state, like the region of Catalonia in Spain or Scotland in the United Kingdom. The Bougival Agreement allows for the development of a fundamental law (Constitution), dual nationality (citizenship) and the shared exercise of sovereign powers such as diplomacy and others at the request of the Caledonian Congress, aiming to continue the trajectory desired by the previously mentioned agreements of the 1980s and 1990s to place New Caledonia as close as possible to a federated, non-sovereign associated State than to a regional State . Nevertheless, the Bougival Agreement clearly stipulates that these new attributions, although they can be implemented from 2026, will not be automatic and will have to be the subject of a new local consensus at the level of the Caledonian Congress in order to submit the request to the State. As the Minister for Overseas Territories emphasized following the Bougival Agreement, “the most difficult part undoubtedly remains to be done.”

We can thus see through this analysis that New Caledonia presents similarities with several of these definitions without corresponding to one of them in particular, hence its name of “sui generis”. If the status of the Noumea Accords remained the basis of the negotiations with a view to arriving at that of Bougival , the latter, as you can see, leaves the door open to all the partners of this agreement in principle to move towards not one but several solutions, in a progressive manner. The difficulty is to move forward together in the same direction. Which is not easy when we see that with each construction of an infrastructure provided by the State to the independence supporters (airport, prison, hospital, etc.), the loyalists cry out against injustice, like children, and also ask for them, of course, much bigger. Hoping that this title of “State of New Caledonia” is not a new decoy of the French State which, through its Constitutional Council, would consider, as for the “overseas countries (POM)” that this title would have no value, bringing de facto new troubles in the archipelago within 5 to 10 years, for failure to respect the given word, once again. As the FNSC, a moderate Caledonian party, pointed out in 1982, we can change things, we can try to stop the course of history and the rise of violence. It is time to move towards the Kanaks and not to move away from them (Barbançon, 2008). This country cannot be built without the Kanaks or against them. Barbançon explained that the Caledonian is “often closer to the Kanak than to the metropolitan… a Caledonian is an Oceanian of European origin.” (cf. CHAPPELL David, The Kanak Awakening, The Rise of Nationalism in New Caledonia, UNC-Madrépores, 2013, p.253).Hoping that the word given at Bougival will not be betrayed as in Nainville les Roches, where the FI of the time formed a provisional government in order to prepare for total autonomy. This was on September 24, 1984 (Rollat, 1989).

This agreement is already attracting interest from other overseas territories such as Guyana, French Polynesia and Corsica, which are also due to rediscuss their status with Paris shortly. The central government has nevertheless already closed this door by explaining that the Caledonian case was specific due to its past as a settlement colony like Algeria (see: The future Caledonian State, a model for other overseas territories? “The solutions we have found are only for New Caledonia,” replies Manuel Valls ), risking this decision to bring about probable new tensions in other overseas territories for breaking the principle of equality that the Parisian Jacobins have defended for more than 200 years but only apply when it suits them. It remains to be seen whether the other metropolitan regions of France and Navarre will follow suit, like Alsace, Brittany, the Basque Country, Occitanie, etc., in order to also ask to become States within France, as mentioned in the following article (see The furtive agreement on New Caledonia destroys national unity ), which would surprise us, because if France knows that one day or another it will be forced to adopt a federal scheme, it is perpetuating in the meantime with New Caledonia what it has always undertaken for almost 2 centuries, namely an intransigent centralism with regard to its metropolitan local authorities and specific statuses for its overseas territories which it does not consider as real French lands but only riches belonging to France.