Federalism versus decentralization

The status of New Caledonia leads some to describe its relationship with the State as federal.

In practice, the federal state controls the federated states just as France controls New Caledonia.

Each federated state has its own powers and organization, as defined by its constitution .

New Caledonia is an overseas collectivity with special status . The archipelago benefits from a provisional sui-generis (specific) status, enshrined in Title XIII of the French Constitution of 4 October 1958.

Its unique status results from the Noumea Peace Accords of 1998. An organic law of March 19, 1999 sets out the framework within which it operates.

Article 2 of this organic law lists the institutions of the community. This is how we learn that New Caledonia will have a congress (legislative), a government (executive) , …

It was this creation of a second parliament and local government within a unitary state that led some to define the link uniting France and New Caledonia as federalist in 1999.

This designation is also used to describe the internal organization of New Caledonia, which is subdivided into 3 provinces (a sort of department). According to Article 20, the provinces are competent in all matters that are not devolved to the State or to New Caledonia […] or to the municipalities. Robert Bertram thus speaks of an “asymmetrical internal federalism” and Jean-Yves Faberon, for his part, of a “nested federalism” ¹ .

If the creation of a government and a parliament were implemented with a view to New Caledonia’s possible accession to full sovereignty and therefore independence , the fact that France will never accede to this eventuality makes these institutions, for some, puppet institutions or decoys .

This is why it is surprising that other overseas territories such as French Polynesia ² or even Corsica ³ , knowing this situation, wish to acquire a status like that of New Caledonia.

This illusion is all the more true through the scope of application of the skills. Indeed, if New Caledonia has the power to act on a large number of skills such as education, work, trade, communications, civil security, etc. and it can legislate on these through “country laws” via its congress , the latter must however pass under the Caudine Forks of the Council of State,  supposedly for advice, and the control of the Constitutional Council ⁴ in order to verify their conformity with the French constitution. It should also be remembered that the High Commissioner of the Republic in New Caledonia can request a new deliberation from the congress and that the country laws are entrusted to him for promulgation, meaning that only the State can make a country law enforceable .

Thus, the State having the final say is in reality the true legislator and continues to control the powers attributed to New Caledonia, normally irreversible. The example of the law on local employment which took more than 10 years to be promulgated to ultimately continue to favor access to employment for metropolitan residents in New Caledonia, particularly to key management positions, is a good example ⁵ . The Council of State ⁶ and Constitutional having given very largely negative opinions ⁷ thus obliging the Caledonian leaders to modify the law according to the wishes of the State.

The circumvention of certain local powers through a sovereign State jurisdiction, namely justice, is another example of New Caledonia’s pretense of controlling its powers. The COVID-19 period has demonstrated this. While the territory, competent in health matters, was implementing a quarantine period for people entering the country while covid free, the courts allowed some to abstain from the obligatory 14 days (see N-Caledonia: the independentists ready to mobilize on nickel and the coronavirus (lefigaro.fr) , Covid-19: the sanitary fortnight weakened in New Caledonia – New Caledonia the 1st (francetvinfo.fr) , State of health emergency and conflict of sovereignty in New Caledonia By Mathias Chauchat – JP blog (juspoliticum.com) ), thus allowing the virus to enter the territory and officially causing at least 300 deaths. Professor Guy Agniel had also criticized the attitude of the Council of State, mentioning that by introducing the State more and more into the decentralized system of New Caledonia, the High Court […] seeks to take back by legal means what it has granted on the political ground . (cf. rjpenc.nc)

Thus, despite expanded institutions and powers, New Caledonia is in reality only subject to a facade of autonomy which is nothing other than decentralization, thus remaining under the surveillance and control of the State.

The legality control, by which the State representative (High Commissioner) ensures that the acts taken by local authorities and certain public establishments comply with the law, is also criticized . Although today this control is almost non-existent, the High Commissioner can nevertheless challenge local acts that he considers illegal before the administrative judge, the only one able to pronounce their annulment. Rarely implemented in New Caledonia, this control, present within article 27 of the organic law, is the subject of a request for transfer on the part of the independence supporters ⁸ .

Nevertheless, all the institutional arrangements in place today would allow the establishment of true federalism . This would require , in addition to the irreversibility of powers, that the laws of countries having appeals to the powers specific to New Caledonia are no longer subject to approval by the French State, that Article 27 is transferred to the country and that the judicial power (justice + police) is also transferred to the territory , becoming a local power, thus allowing it, in addition to the legislative and executive powers, to access the status of State as formulated by Montesquieu (1689-1755).

Law No. 2015-29 of 16 January 2015 on the delimitation of regions, which notably involves a redrawing of the regions, reducing the metropolitan regions from 22 to 13, by causing them to merge, can be seen as the beginnings of a metropolitan federal state . Originally based on a reform aimed at increasing the size of the regions in order to attract larger subsidies from the European Union, the French regions are thus beginning to resemble the German Landers, federated states within the federal state of Germany.

The transformation into a federal system would thus make it possible to correct the numerous criticisms linked to the different waves of decentralization, such as the lack of clarity regarding the powers of each administrative level noted by the OECD and the Court of Auditors in 2007 and 2009, as well as inadequate funding for local authorities . For the editorialist of Challenges, Ghislaine Ottenheimer , decentralization is described as an absolute fiasco. For her, “It’s as if the political power had pretended. Pretending to reform, pretending to share, pretending to be effective.” The reality is that the decentralization policy initiated since the 1980s is part of a desire to calm regionalist demands , originally supported by federalists. However, despite several waves of decentralization, France in 2020 is considered one of the most centralized democracies . The general code of local authorities leaves little autonomy to local authorities ⁹ .