* B.Sc.Pol, B.A, M.A, B.Civ.Law, M.Civ.Law, LLM, Postgrad.Dipl.International Business Law, Solicitor of the Senior Courts of England Wales and Avocat au Barreau de Paris.

[1]     For an historical introduction to the colonial past and decolonization of New Caledonia see Alan Berman, ‘Future Kanak Independence in New Caledonia: reality or illusion?’ (1998) 34-2 Stanford Journal of International Law 287–346.

[2]     See Dominique Custos, ‘New Caledonia, a Case of Shared Sovereignty within the French Republic: Appearance or Reality?’ (2007) 13(1) European Public Law 100.

[3]     As explained by Dominique Custos, ‘the “overseas department” status allowed for similar, albeit adapted, institutions and laws as the rest of the French ‘departments’, and has applied to Guadeloupe, French Guiana, Martinique and Reunion’. Ibid 100.

[4]      See for example the Decree on Forests of 18 March 1910 and the Decree on Forest Protection of 15 September 1943.

[5]     For example, Acts related to the water irrigation regulations of 29 April 1845 and 11 August 1847 and the Draining Act of 10 June 1854.

[6]     This decision also resulted from France’s refusal as admninistering power to provide information to the United Nations General Assembly, which was presented as a fait accompli to the UN. For an historical analysis of this evolution, see Jean-Marc Regnault, L’ONU, la France et les décolonisations tardives: L’exemple des terres françaises d’Océanie (2013); see also Alan Berman, above n 1, 287–289 and ‘The Noumea Accords: Emancipation or Colonial Harness?’ (2001) 36 Texas International Law Journal 278.

[7]     See Mathias Chauchat and Vincent P. Cogliati-Bantz, ‘Nationality and citizenship in a devolution context: Australian and New Caledonian experiences’ (2008) 27-2 University of Queensland Law Journal 200.

[8]     In this respect, the constitutional history of New Caledonia illustrates the following paradox described by John Elster: ‘the task of constitution-making generally emerges in conditions that are likely to work against good constitution-making. Being written for the indefinite future, constitutions ought to be adopted in maximally calm and undisturbed conditions’ but ‘the public will to make major constitutional change is unlikely to be present unless a crisis is impending’. John Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 394.

[9]     See Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 41/41A, UN GAOR, 41^st sess, 92^nd plen mtg, Supp No 53, UN Doc A/RES/41/41A (2 December 1986) 49.

[10]   F.L.N.K.S stands for Front de Libération Nationale Kanak et Socialiste (‘Kanak Socialist National Liberation Front’).

[11]   R.P.C.R stands for Rassemblement pour la Calédonie dans la Republique (‘Rally for New Caledonia within the Republic’).

[12]   In this respect, the ten-year transitional regime contemplated by the Matignon-Oudinot Accords provided a model for the constitutional reform process needed for conflict resolution in Bougainville at the same period, in which the constitutional law specialist Yash Ghai was involved. As he explains, ‘the Papua New Guinea settlement gives the people of Bougainville the option to raise the issue of secession after a suitable period when the new autonomy arrangements have been given a chance’. Yash Ghai, ‘A journey around constitutions: reflections on contemporary constitutions’ (2005) 122 South African Law Journal 824.

[13]   Which was a condition for ending the troubles in Kanak-controlled areas. As explained by Donald L. Horowitz, ‘there is no doubt that a key claim in settlement negotiations to end secessionist warfare will be that the rebels or regional politicians who succeed them control the putative secessionist region and be allowed to rule it autonomously’. Donald L. Horowitz, ‘Conciliatory Institutions and Constitutional Processes in Post-conflict States’ (2008) 49 William and Mary Law Review 1238.

[14]   The focus on local development was key in the Matignon-Oudinot Accords, so that the Kanak people can not only improve their political and administrative autonomy, but also their financial autonomy. As explained by Nicholas R.L Haysom:

…in many developing countries there are simply no economic sector and no economic opportunities to speak outside the state itself. The economy is the polity (…) When this is combined with the group-based politics of divided societies, the necessary implication is that minorities are destined to be perpetual losers both economically and politically. Not surprisingly, the temptation for such minorities is to choose to opt out of the constitutional framework, and to demand a separate existence within, or secession from, the new state.

‘Constitution Making and Nation Builing’ in Raoul Blindenbacher and Arnold Koller (eds), Federalism in a Changing World: Learning from each other (2002) 221.

[15]   For an analysis of the history of this transition, see Alan Berman, above n 6, 278–280; François Luchaire, Le statut constitutionnel de la Nouvelle-Calédonie (2000) 30–50; Jean-Yves Faberon, ‘Nouvelle-Calédonie et Constitution: la révision constitutionnelle du 20 juillet 1998’ (1999) Revue du Droit Public et de la Science Politique en France et à l’Etranger 113–130.

[16]   The Kanak population is in a position to control majority in two of the three Provinces of New Caledonia because the geographical boundaries of these Provinces have been mainly designed along the geographical boundaries of the local ethnicities. As explained by Lauren E. Miller, this type of policy of ethnic separation may increase inter-cultural potential conflict instead of reducing it. ‘Designing Constitution-Making Processes’ in Laurel E.Miller (ed), Framing the State in Times of Transition (2010) 601–665.

[17]   As explained by Thomas Fleiner et al, in multicultural states which need to guarantee equality for majorities as well as minorities, ‘a political compromise has to be found between a cultural majority having enough power to define a majority regime on the one hand, and cultural minorities seeking recognition in the constitutional framework and participation in political decision making on the other. The institutional equilibrium is always compromise between a majority regime and institutional forms of minority protection and power sharing’. ‘Federalism, Decentralisation and Conflict Management in Multicultural States’, in Raoul Blindenbacher and Arnold Koller (eds), Federalism in a Changing World: Learning from each other (2002) 208.

[18]   As explained by Yash Ghai, ‘central to this framework is the constitutional recognition of communities as corporate groups and the bearers of political entitlements’; see above n 12, 818; see also Donald L. Horowitz, above n 13, 1215–1216; and Arendt Lijphart, ‘Constitutional Design for Divided Societies’ (2004) 15(2) Journal of Democracy 96–109.

[19]   The inconvenience of the majority rule often explains the need for further strengthening of consociational democracy, as agreed in the case of the Noumea Accord. See Donald L. Horowitz, above n 13, 1215–1216. The reference to the risks of a negative vote on the conflictual issue of self-determination was naturally used by the political forces opposed to the secession of New Caledonia in order to reach an agreement with the pro-independence movement, which also illustrates the role of threat-based bargaining in constitutional reforms. As explained by John Elster, threat-based bargaining can operate ‘as a mechanism of aggregation. Vote trading may of course also be considered in this perspective, with the threat being that of with-holding one’s vote on an issue of vital importance to the opponent’. John Elster, above n 8, 390–395.

[20]   Like the Matignon-Oudinot Accords, the Noumea Accord was designed and structured only on existing dominant party lines, and were not designed on the basis of a full participatory constitution revision process.

These Accords were peace negotiations as well as institutional arrangements, which ideally would have required separate processes. As explained by Nicholas R.L Haysom, above n 14, 233:

…when the processes are conflated, the constitution making process is unlikely to be transparent, inclusive or popular. Peace negotiations typically take place between the principal protagonists-government/military junta and insurgent leaders-in secret. They exclude significant players such as internal opposition parties, or other ethnic nationalities. This poses risks to the long-term or broader constitutional acceptability of any arrangements agreed to.

On the contrary, participatory constitution making and revision processes such as the ones experimented in Canada, South Africa, Nicaragua or Rwanda may include the establishment of elected constitutional reform commissions, training and sensitization of the population about the Constitution, consultation of the population on the content of the draft Constitution prior to its negotiation, validation of the draft Constitution, approval of the final text of the Constitution by referendum, review of the Constitution even after its implementation, or other innovations. For an analysis of these techniques, which were not used in New Caledonia apart from the approval referendum, see Vivien Hart, “Democratic Constitution Making”, in U.N Institute for Peace Special Report 107 (July 2003) 455–458.

[21]   The replacement of majoritarian democracy by consensual democracy is typical of consociational constitutional arrangements. See Daniel L. Horowitz, above n 13, 1216.

[22]   27 May 1998, 8039–8044 [hereinafter Noumea Accord]. For a general review see Alan Berman, above n 6, 277–297; Jean-Yves Faberon, above n 15, 113–130; Olivier Gohin, ‘L’évolution institutionnelle du statut de la Nouvelle-Calédonie’ (1999) Actualité Juridique Droit Administratif (AJDA) 51; G. Rossinyol, ‘Les accords de Nouméa du 5 mai 1998: un nouveau statut pour la Nouvelle-Calédonie’ (2000) Revue du Droit Public et de la Science Politique en France et à l’Etranger 445–486.

[23]   In this respect, the origin of the Noumea Accord may be characterised as ‘historic revenge for lost self-determination, past discrimination, or other past wrongs’, to follow the typology proposed for the ‘causes of conflict within multicultural states’ by Thomas Fleiner et al, above n 17, 202.

[24]   Combined with the French state’s undertaking to finance a Cultural Memorial of the Kanak Culture, the different obligations and transfers of powers accepted by the French state in order to promote the Kanak culture and traditions have introduced in the constitutional reform a strong emotional element, which confirms that passion plays a role in constitution making and reform. As explained by John Elster, above n 8, 364–396, feelings like self-love, amour propre or community pride charge the language of constitution with emotional concepts. As he explains, ‘we find [passion] both in the framers and in the assumption they make about the framed (…) the call for a new constitution usually arises in turbulent circumstances, which tend to foster passion rather than reason’. On the relationship between Constitution and culture, see also Gunter Frankenberg, ‘Comparing Constitution: Ideas, ideals, and ideology – toward a layered narrative’ (2006) 3 International Journal of Constitutional Law 439–459.

[25]   Hence the establishment of Kanak customary authorities (autorités coutumières) and special land status for customary lands (terres coutumières). The 1998 reform was needed because of the incapacity of the French traditional constitutional model to address the questions raised by cultural or ethnic minorities, in particular the question of ‘who should govern whom’, as analysed by Thomas Fleiner et al, above n 17, 199–201. As explained by these authors, France remains an old nation-state, where

nation is made by the Constitution (…) held together by political values (…) it can incorporate other cultures as long as no political recognition is claimed for them (…) This implies that individuals are conceived as rational human beings who ignore their cultural roots (...) Their cultural identity is of no political value (…) Cultures that consider themselves excluded, and in particular those that previously inhabited the territory, may not find the ideology of the melting pot acceptable, and to that extent may threaten the legitimacy of the state.

[26]   Even though this new local citizenship status is not defined by reference to ethnic conditions, but by residence conditions, as we will explain later, the Noumea Accord reflects the dynamics of ethnic politics in that it is based on a clear separation of the Kanaks from the rest of the New Caledonian population. To a certain extent, the Kanak identity is also defined by opposition to the rest of the local population. Furthermore, the Noumea Accord of 1998 also recognises the Kanak people as a ‘people’ (peuple), i.e. a nation-in-waiting, rather than a minority ‘population’ (population). This recognition of a people that would be distinct from the French people, and therefore the French nation, is unprecedented in French constitutional law, because of the indivisibility of the French nation stated under Article 3 of the Constitution of the French Republic. This terminology implies that the Kanaks qualify as a colonised people rather than an ethnic minority, which opens new Kanak perspectives for a decolonisation process that would be based on UN principles and practice rather than French constitutional law. As explained by Ulrich Preuss, ‘ethnic politics involves a “re-naturalization” politics in that “ascriptive” properties determine the perception of oneself, of others, and of society at large’. See Ulrich Preuss, ‘Rule-making and policy actors in the transition and the issue of the strategy of transformation’ (2001) 53 Studies in East European Thought 193.

[27]   For a complete review of the complete devolution process in respect of these different matters, see Jean-Yves Faberon, above n 15, 113–130; Jean-Yves Faberon and Guy Agniel, La souveraineté partagée en Nouvelle-Calédonie et en droit comparé (2000); Olivier Gohin, above n 22, 51; Philippe Portet, ‘Le nouveau statut de la Nouvelle-Calédonie’ (1999) 3 Revue de la Recherche Juridique 938; François Luchaire, above n 15; Mathias Chauchat, ‘Transferts de compétence et avenir de la Nouvelle-Calédonie’ (2007) Actualité Juridique Droit Administratif (AJDA) 2243–2247.

[28]   Following the ten-year transitional period contemplated by the Matignon-Oudinot Accords, the new transitional phase reserved by the Noumea Accord for the preparation of the referendum on the emancipation of New Caledonia confirms that ‘important design and process elements can add tens of years to constitutional lives, perhaps allowing the charters to survive even these intense shocks’ as noticed by Tom Ginsburg, Zachary Elkins and James Melton, The Lifespan of Written Constitutions (2007) 3. However, a time-limit for the transition is also necessary because, as explained by John Elster, ‘if people find themselves with all the time they need to find a good solution, no solution at all may emerge’. Above n 8, 395. For contrary examples that do not validate this statement, such as the latest Polish constitutional reform, see Laurel E. Miller, above n 16, 638–639.

[29]   See Noumea Accord, Paragraphs 3.3 and 5.

[30]   As explained by Laurel E. Miller, above n 16, 625, an interim constitutional arrangement

may take a variery of forms, including a fully elaborated but explicitly temporary constitution, a statute that serves in place of a constitution, or a political agreement among conflicting parties who intend to engage in constitution making. Whatever the form, two main aspects of such arrangements relevant to constitution-making processes are, first, the provision of operative transitional measures intended to serve as a constitutional placeholder, and, second, the specification of fundamental principles to guide the future…

[31]   This major constitutional reform was a condition of the political stabilization of New Caledonia required by the deferral of the referendum on the independence of the territory for an additional period of ten years. It illustrates ‘the role that negotiations over a constitution play in resolving conflict, rather than making a constitution after conflict has ended’, as explained by Yash Ghai, above n 12, 824. In this respect the experience of New Caledonia offers some similarities with the interim constitutional arrangements used in South Africa in 1993, which were ‘intermediate reforms made for a transitional period where there is a need for immediate compromises not suited for a constitution that is meant to endure, and where it is not feasible to craft those compromises in a democratic and transparent forum’, as described by Laurel E. Miller, above n 16, 625.

[32]   Conseil constitutionnel [French Constitutional Court], decision n^o 99-409 DC, 15 March 1999, on New Caledonia, NOR CSCL 9903472S and NOR CSCL 9903473S. Here again the case study of New Caledonia offers some similarities with the 1993 constitutional reform process in South Africa, where the Constitutional Court also protected the constitutional rank of the initial constitutional arrangement, even though this document was agreed on an interim basis. For an analysis of the South African constitutional reform, see Laurel E. Miller, above n 16, 626–627.

[33]   Because of this sequencing, and the articulation of its different steps, and its intention to rebuild a new social contract of government in New Caledonia, the language of the Noumea Accord reflects more a constitution-building process than a simple constitution-making process. On the distinction between constitution building and constitution making, see IDEA Report (2011).

[34]   As explained by Alan Berman, above n 6, 282, ‘France was forced to revise its constitution to allow for a change in the territorial status of New Caledonia within the French Republic’.

[35]   Loi Constitutionnelle n^o 98-610 du 20 juillet 1998 [Constitutional Act] (France) JO, 21 July 1998, 1143. This Constitutional Act was subsequently revised by the Loi Constitutionnelle n^o 2007-237 du 23 février 2007 [Constitutional Act] (France) JO, 24 February 2007, 3354. For a critical review of this Act, see Olivier Gohin, above n 22, 51; Jean-Yves Faberon, above n 15, 113–130.

[36]   Pursuant to Article 2 of Loi Constitutionnelle n^o 98-610 du 20 juillet 1998 [Constitutional Act] (France) JO, 21 July 1998 concerning New Caledonia. For a full description of the approval process, see Jean-Yves Faberon, above n 15, 113–130.

[37]   Under French constitutional law, statutes can be promulgated in two forms: ordinary statutes or organic/institutional statutes. Institutional or organic statutes are designed to implement the Constitution as they further provide for the organization of powers or entities of a constitutional nature.

[38]   See Loi Organique n^o 99-209 du 19 mars 1999 [Organic or Institutional Act] (France) JO 21 March 1999, 4197. Pursuant to Article 3 of the Constitutional Act No 98-610 of 20 July 1998 relating to New Caledonia, the purpose of this act of enforcement was to ‘ensure the development of New Caledonia with full respect of the orientation set down by the [Noumea Accord] and in compliance with the procedures required in respect of the same, the transfer of State power to the institutions of New Caledonia, timing and procedures for these transfers, and the sharing of the resulting costs’.

[39]   Loi Ordinaire n^o 99-210 du 19 mars 1999 [Ordinary Act] (France) JO, 21 March 1999, 4226 (relating to New Caledonia).

[40]   It was modified by the Loi Organique n^o 2007-223 du 21 février 2007 (France) JO, 14 April 2007, 6818; the Loi Organique n^o 2009-969 du 3 août 2009 (France) JO, 6 August 2009,13095; the Loi Organique n^o 2009-1523 du 10 décembre 2009 (France) JO, 11 December 2009, 21379; the Loi Organique n^o 2011-333 du 29 mars 2011 (France) JO, 30 March 2011, 5497; the Loi Organique n^o 2011-410 du 14 avril 2011 (France) JO, 19 April 2011, 6826; the Loi Organique n^o 2011-870 du 25 juillet 2011 (France) JO, 26 July 2011, 12705; the Loi Organique n^o 2013-906 du 11 octobre 2013 (France) JO, 12 October 2013, 16824; the Loi Organique n^o 2013-1027 du 15 novembre 2013 (France) JO, 16 November 2013, 18616; and the Loi Organique n^o 2015-987 du 5 août 2015 (France) JO, 6 August 2015, 13481. We refer here to the consolidated and updated version of the Organic Act No 99-209 of 19 March 2009 [hereinafter Organic Act No 99-209] as available from the French official legislation website, www.legifrance.fr. For a review of the recent evolution of the status of New Caledonia see Mathias Chauchat, above n 27, 2243–2247; Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 193; Laurence Henry, ‘La Nouvelle Calédonie est-elle encore une collectivité territoriale de la République?’ (2008) Revue de la Recherche Juridique: Droit Prospectif 2135–2149.

[41]   See Ernest A. Young, ‘The Constitution Outside the Constitution’ (2008) 117 Yale Law Journal 100; see also Tom Ginsburg, Zachary Elkins and Justin Blount, ‘Does the Process of Constitution-Making Matter?’ (2009) 5 Annual Review of Law and Social Sciences 201.

[42] The purpose of the Noumea Accord was supposed to ‘ensure the development of New Caledonia with full respect of the orientation set down by this agreement and in compliance with the procedures required in respect of same, the transfer of State power to the institutions of New Caledonia, timing and procedures for these transfers, and the sharing of resulting costs’. Article 3, Loi Constitutionnelle n° 98-610 du 20 juillet 1998 concerning New Caledonia.

[43] As explained by Dominique Custos, above n 2, 99,

this term refers to the transitional partitioning of powers between the French Republic and one of its territories in the Pacific in which the indigenous Melanesian people have been fighting for independence and have been opposed to descendants of French settlers advocating French rule. Under such “shared sovereignty”, henceforth inscribed in a specific title (Title XIII) of transitional provisions of the 1958 Constitution, the powers of the central government are enumerated.

[44]   In accordance with Paragraph 3 of the Preamble of the Noumea Accord, there is immediate devolution of powers in the area of employment regulation, trade, natural resources and primary education, postal and telecommunication services, shipping services, administration of the Provinces and customary mediation in sentencing. During the second and third five-year Congressional terms of office, other powers are transferred to New Caledonia, including: policing and security regulations for domestic air and sea traffic; rules for civil defense; accounting and financial regulations for Territorial local administration entities; civil and commercial law; land ownership, real property rights; rules for administration of communes (municipal districts); administrative control over local administration entities and their controlled entities and secondary education. For more details see François Luchaire, above n 15, 35.

[45]   As explained by Vivien Hart, above n 20, 449. As she suggests, ‘“interim” or “transitional” constitutions that include guarantees for a continuing, open and inclusive process for the longer term offer one solution to urgent needs for a framework of governance in new, divided, or war-torn nations’.

[46]   Which are all techniques and policies that can be used by multicultural states to meet the challenge of multiculturalism according to Thomas Fleiner et al, above n 17, 204–205.

[47]   See Articles 28, 29 and 30 of the Organic Act No 99-209. In accordance with Article 28 of this Act, the President of the Government can negotiate international treaties and accords in respect of matters which are relevant to the New Caledonian authorities, provided that the French central government authorises this negotiation and delegates the power to sign. On such international powers see Cameron Diver, ‘La Nouvelle-Calédonie dans l’exercice des ses relations internationales: l’Accord de Siège entre le Gouvernement de la République Française et la Communauté du Pacifique’ (2004) 3(1) Revue Juridique, Politique et Economique de la Nouvelle Caledonie 10–13.

[48]   As a result of the 1998 reform, New Caledonia is also divided in three different Provinces: the North Province, the South Province (including Kunié Island) and the Province of Loyalty (Loyauté) Islands (Ouvéa, Lifou, Tiga and Maré). For further definitions, see Olivier Gohin, above n 22, 51; Jean-Yves Faberon and Guy Agniel, above n 27; François Luchaire, above n 15.

[49]   In accordance with Article 99 of the Organic Act No 99-209 the New Caledonian Congress has legislative competence for essential matters, including:

2°-    Regulations concerning the calculation base and collection of all taxes duties or levies whatsoever;

3°-    Basic principles of labor law, trade union law and social security law;

4°-    Regulations relating to foreign worker access to the job market; (…)

6°-    Rules relating to hydrocarbons, nickel, chrome, cobalt and rare earth elements; (…)

      8°-    Rules concerning access to employment; (…)

      10°-  Underlying principles concerning ownership, real property rights and civil and commercial obligations.

[50]   See also Article 2.1.3 of the Noumea Accord. The legislative nature of the lois du pays has been acknowledged by most of French constitutional law specialists; for instance, see Olivier Gohin, above n 22, 51; Régis Fraisse, ‘La hiérarchie des normes applicables en Nouvelle-Calédonie’ (2000) 16-1 Revue Française de Droit Administratif 81.

[51]   This condition was included in the Noumea Accord itself (Article 2.1.3) in order to guarantee a maximum legal force of the loi du pays against any potentially conflicting rule, except Constitutional rules. In accordance with Article 73 of the Organic Act No 99-209, the draft lois du pays can be initiated either by the Government of New Caledonia or directly by the Congress of New Caledonia.

[52]   This allocation of competence and ‘shared sovereignty’ to the New Caledonian Congress is a direct consequence of the intention of the French public authorities to grant genuine legislative power to this representative assembly, identical to those exercised by the mainland French Parliament. As explained by Dominique Custos, above n 2, 115:

these local institutions are the national ones in miniature (…) Until shared sovereignty, as an Overseas Territory, New Caledonia’s Congress could only issue administrative acts subject to judicial review by administrative courts. Under shared sovereignty, in addition to its rulemaking powers, as an ‘Overseas country’, New Caledonia’s Congress may vote statutes, which are called statutes of the country, in enumerated areas. It is symptomatic that the procedural provisions regarding the formation of these local statutes mirror those applicable to the only statutes known in French law until then, i.e those adopted by the national parliament.

[53]   See arts 39–42 of the Organic Act No 99-209.

[54]   See ibid art 24.

[55]   See ibid arts 28–33.

[56]   This competence also derives from Article 22-1o of the Organic Act No 99-209, which situplates that the New Caledonian authorities have jurisdiction in respect of the following matters:

taxes, duties and levies collected for the benefit of New Caledonia; creation or allocation of taxes, levies and duties for the benefit of funds reserved for local municipalities, public establishments or organisations vested with public service responsabilities; creation of taxes, duties and levies for the benefit of the Provinces, the Communes, and public establishments of cooperation between the Communes…

[57]   In accordance with Articles 22 and 99 of the Organic Act No 99-209.

[58]   In this respect, this constitutional design is also intended to prevent political conflicts by enabling an acceleration of economic development at local level. As explained by Thomas Fleiner et al, above n 17, 210, ‘decentralised forms of government help to dilute potential conflicts by giving some political power and some control over economic resources to all parts of the population, including minorities’.

[59]   Article 99-6 of the Organic Act No 99-209 explicitly included one specific provision in this purpose, in order to authorise the Congress of New Caledonia to legislate in respect of ‘hydrocarbons, nickel, chrome, cobalt and rare earth elements’. This competence was extended to rare earth elements under the last revision of the Organic Act No 99-209 by the Organic Act No 2013-1027 of 15 November 2013 (see Loi Organique No 2013-1027 du 15 novembre 2013 (France) JO, 16 November 2013, 18616).

[60]   The Congress of New Caledonia is empowered to enact tax laws as well as mineral laws, in accordance with Article 99-1 and 6 of the Organic Act No 99-209. The French territory of New Caledonia is part of a group of countries which have the largest nickel deposits of the world, which may be estimated at some 40 million tonnes, representing one quarter of the world’s known nickel resources. Nickel represents the principal source of export earnings. For further details and references on nickel mining in New Caledonia, see Guillaume P. Blanc, ‘Environmental regulations and mining industry in New Caledonia’ (1999) Mining Journal, Mining Environmental Management supplement 17–18; Elsa Faugere and Isabelle Merle, La Nouvelle-Calédonie, vers un destin commun? (2010).

[61]   For an overview of the competence of the Congress of New Caledonia in respect of mining, see Guillaume P. Blanc, ‘Recent changes in the Institutional and Legal Framework for the Mining Industry in New Caledonia’ (2002) 6 International Energy Law and Taxation Review 146–152.

[62]   This citizenship was defined by reference to residency in order to avoid any reference to ethnic or racial conditions, which would have created discriminations totally incompatible with French constitutional law. In this respect, the 1998 constitutional reform used an inclusive method

by which the democracy can function in a more inclusive manner, granting greater benefits for minorities, a stake holding and ownership of the system without recourse to the explicit constitutionalisation of ethnic categories (…) By choosing not to constitutionalise an ethnic basis of representation, it allows the society to move towards interest-based politics, and the impact of other cross-cutting identities (e.g.class, region, occupation) to blur the raw ethnic dyamic encouraged by opportunistic elites.

Nicholas R.L. Haysom, above n 14, 225.

[63]   For an analysis of this citizenship from a comparative Australian-New Caledonian perspective, see Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 193.

[64]   As explained by Mathias Chauchat and Vincent P. Cogliati-Bantz, ‘while a New Caledonian citizenship was created in 1998 by agreement between the French and New Caledonian representatives, this local status is superimposed on the French citizenship that New Caledonians possess and therefore is concurrently held with their French nationality’. Ibid 193.

[65]   This innovation reveals that ‘constitutional frameworks, whether inherited or long entrenched, appear incapable of managing the increasing assertiveness of identity politics’ where ‘conflicts are about the very sense of who the protagonists are, and about the survival or recognition of their identity (…) Whether there is little or no shared concept of the “nation”, only the group identities matter’. Nicholas R.L. Haysom, above n 14, 216–218.

[66]   See above n 2, 120.

[67]   In accordance with the Noumea Accord, the Congress of New Caledonia voted in 2010 a loi du pays which defines three new ‘identity symbols’ (signes identitaires) for New Caledonia, including a new anthem and new symbols on New Caledonian bank notes. See loi du pays n^o 2010-11 du 9 septembre 2010 (New Caledonia) JONC N° 8537, 8264. With the consociational model, as explained by Donald L. Horowitz, above 13, 1215–1216, ‘the underlying principles are proportional inclusion, mutual group vetoes on major issues and group cultural autonomy’; see also Arendt Lijphart, above n 18, 96–109.

[68]   The restrictive rules governing access to New Caledonian citizenship, the New Caledonian electorate and the electorate allowed to vote on the emancipation of the territory are designed to secure a possible majority position to the Kanak voters in respect of key elections related to matters of major concern for them, i.e. Provincial elections and the future consultation on self-determination. These provisions have been sharply contested by the 23,000 French citizens who are not able to vote in elections for the three provincial assemblies and Congress. However, a succession of international bodies has recognised that these alleged ‘discriminatory’ laws are valid in the context of a decolonisation process. An appeal to the UN Human Rights Committee was rejected in July 2002, and the January 2005 ruling by the European Court of Human Rights in the case of Py v. France (European Court of Human Rights, Application No 66289/01, 6 June 2005), rejected claims that restricting voting rights for French nationals in assembly elections was discriminatory. For further details, see Nic Maclellan, ‘Under a new flag? Defining citizenship in New Caledonia’ (SSGM Discussion paper 2010/2, State, Society and Governance in Melanesia Project, ANU, Canberra, 2010).

[69]   This policy is typical of affirmative action models which promote equality for all communities. As explained by Thomas Fleiner et al, above n 17, 204, ‘some states may go beyond tolerance by extending it not only to individuals but also to their communities, through a policy of affirmative action, falling short of collective rights. Affirmative action is directed to individuals who have unequal opportunities because they belong to a minority against which there is or has been discrimination’.

[70]   As classified by Yash Ghai. The constitutional reform of New Caledonia belongs to both generations of constitutions. It integrates some of the features of an independence constitution because it intends to achieve the decolonization process, but it also innovates with constitutional asymmetries and consociational rules in order to do justice to the native ethnic group of the Kanaks. As Yash Ghai explains, in independence constitutions ‘the structures of the state were redesigned to introduce democratic forms of representation based on a new concept of citizenship, not always equal or universal and also qualified by differentiation and inequality explicit in customary laws’; see above n 12, 817–819; see also Donald L. Horowitz, above n 13, 1213.

[71]   As explained by Dominique Custos, above n 2, 99: ‘Evaluated against the backdrop of the evolution of the French constitutional system, the status of New Caledonia appears to be a transitional and isolated regime in the overall constitutional scheme on which it has already produced some systemic effects’.

[72]   This reform was implemented by the Organic Act No 99-509 dated March 19, 1999.

[73]   New Caledonia is now subject to new Sections 76 and 77 of the French Constitution and is excluded from the scope of application of sections of the Title XII of the French Constitution that are entirely devoted to Overseas Territories (Sections 73–74).

[74]   See Article 74 of the French Constitution.

[75]   As explained by Dominique Custos, above n 2, 127, ‘it constitutes a third category of French overseas sub-national units which currently, under the constitution, has no specific name’.

[76]   See Article 1.5 of the Preamble of the Noumea Accord.

[77]   See Olivier Gohin, above n 22, 52; for a dissenting opinion, see Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 193.

[78]   See Noumea Accord (France) JO, 27 May 1998, 8039–8044.

[79]   For a description of the different categories of overseas territorial units see François Luchaire, above n 15; and also Jean Gicquel et Jean-Éric Gicquel, Droit constitutionnel et institutions politiques (2009); see also Michel de Guillenchmidt, Droit constitutionnel et institutions politiques (2008). 

[80]   As it is expressly declared by the French Parliament: ‘Although New Caledonia is a collectivity, it has such a specific status that it is governed by a reserved title of the French Constitution. It is no longer a territoire d’outre-mer (TOM), and it is not a collectivité territoriale de la République as governed by article 72 of the French Constitution’. See Parliamentary debates on the draft Organic Law relating to the legal status of New Caledonia, (France) JO Senat CR, 3 February 1999, 651 (Amendment n° 233 submitted by Senator Simon Loueckhote).

As one of the leading Magistrates of the Administrative Court of Noumea (Tribunal Administratif de Nouméa) noticed, ‘New Caledonia is no longer neither a T.O.M. nor a Collectivité Territoriale de la République like Saint-Pierre-et-Miquelon and Mayotte.’ Regis Fraisse, above n 50, 77.

[81]   The Conseil d’Etat, i.e. the French highest administrative court, ruled in 2006 that New Caledonia cannot qualify as an ‘Overseas Territorial Collectivity’ (Collectivité Territoriale d’Outre-Mer) as defined under Article 72 of Title XII of the French Constitution. See Conseil d’Etat [French Administrative Court], Section du Contentieux, 13 December 2006 [2006] Rec Lebon (case law decision 279323, M.Genelle), also published in Actualité Juridique-Droit Administratif (AJDA) 363 (commentaries by F. Lenica and J. Boucher). See also Stephane Verclytte, ‘La Nouvelle-Caledonie n’est plus une collectivite territoriale’ (2007) Revue française de droit administratif 18–26. See also comments of Mathias Chauchat, above n 27, 2243.

[82]   See above n 6, 282.

[83]   See Olivier Gohin, above n 22, 51.

[84]   Ibid 507.

[85]   Conseil d’Etat [French Administrative Court] 27 February 1970 reported in [1970] Said Ali Tourqui Rec Lebon 138, also published in Actualité Juridique Droit Administratif (AJDA) (1970) 220, with commentaries of Renaud Denoix de Saint-Marc (available at http://legimobile.fr/fr/jp/a/ce/as/1970/2/27/77577/).

[86]   (France) JO, 2 March 2004, 4183.

[87]   Regarding a comparative analysis of both the status of New Caledonia and French Polynesia, see Philippe Portet, ‘Le nouveau statut de la Nouvelle-Calédonie’ (1999) 3 Revue de la Recherche Juridique 938; Yves Brard, ‘Nouvelle-Calédonie et Polynésie française: les lois du pays’ (2001) 112 Petites Affiches 11.

[88]   According to Mathias Chauchat, the status of New Caledonia is even an alien construction (étrangeté) from a French law perspective. See above n 27, 2243.

[89]   Dominique Custos, above n 2, 128.

[90]   As explained by Dominique Custos, ‘in the case of France, habitually considered the epitome of centralization this choice of technique is particularly significant as it denotes a certain balance between a centre and a periphery which equally have the ability to exercise powers’. Ibid 104.

[91]   As explained by Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 201, this methodology ‘follows the US and Australian federal models: it enumerates the Caledonian powers (like the Commonwealth powers) and leaves all unlisted powers to the “Provinces” (like the States in Australia)’.

[92]   In accordance with Paragraph 5 of the Noumea Accord. According to some authors, this transfer of powers is irreversible and effective by the prescribed time limit under the constitutional provisions of the Noumea Accord, even though no legislation is enacted by the Congress of New Caledonia to schedule it. See Mathias Chauchat, above n 27, 2243–2247. Contra Olivier Gohin, ‘Comment dépanner l’Accord de Nouméa?’ (2008) Actualité Juridique –Droit Administratif (AJDA), 291.

[93]   The dynamics of federalism also often derive from the consociational goals of constitutional arrangements aimed at strengthening autonomy and power-sharing, if not self-determination, as it is the case in New Caledonia. As noticed by Donald L. Horowitz, above n 13, 1218, ‘Consociationalists see federalism as a device to foster group autonomy in homogeneous regions or provinces’.

[94]   As explained by Dominique Custos, above n 2, 116:

First the partition of the statutory power among different levels of government is in conflict with the classical politico-administrative organization of a unitary state such as France. In such a state, the expression of the general will is monopolized by the national parliament, consequently, local assemblies are confined to delegated legislation. The recognition of a New Caledonian source of statutory law (…) reflects a distribution of the expression of sovereignty among the different levels of government. To this extent, the sovereignty is shared and the legislative power is an undeniable asset of the co-sovereign status of New Caledonia. Thus such a feature provides a tangible power with which New Caledonia satisfies an important element of the autonomy requirement of the federate state.

[95]   As explained by Thomas Fleiner et al, above n 17, 206–207:

Decentralisation gives communities limited autonomy and thus self-government. But central power continues to be exercised in accordance with the majority principle, and the decision as to what minority should have how much governmental power continues to depend on the majority. Only a balance between self-rule and shared rule can give communities the opportunity to promote their cultures within their territories.Only on this basis is it possible to provide the necessary base for the balanced development of all communities, together with the majority of the citizens and the people. Such a result can be constitutionally achieved only through a federal design.

[96]   As mentioned in the very first article of the French Constitution: ‘France shall be an indivisible, secular, democratic and social Republic’. Article 3 further provides that ‘national sovereignty shall belong to the people, who shall exercise it through their representatives and by means of referendum. No section of the people, nor any individual may arrogate to itself, or to himself, the exercise thereof’.

[97]   As explained by certain constitutionalists, France has always been ‘a unitary state, mono-constitutional and mono-legislative’. Olivier Gohin, above n 92, 291.

[98]   See Dominique Custos, above n 2, 117. According to Thomas Fleiner et al, above n 17, 201, an old nation-state ‘is unable to accommodate a fragmented political identity (…). Either the minorities must be integrated within the majority culture, destroying their original cultural roots, or they must be denied the opportunity to enhance their cultural identity through political means. A fragmented political identity is rejected as a solution, because of is threat to the unity, homogeneity, and the very roots of the state’s existence’. Although this evolution conflicts with French constitutional law, it remains quite compatible with public international law, in particular UN principles and practice of decolonisation, which recognises the specific rights of colonised peoples to claim their right to self-determination in a non-self-governing territory.

[99]   See above n 14, 224–225.

[100] See Dominique Custos, above n 2, 105 and 129.

[101] The status of New Caledonia still does not meet all the conditions of a federate state, in particular because of the lack of constitutional guarantees which protect the authority of the different New Caledonian powers, the lack of financial guarantees regarding the adequate provision of resources to the New Caledonian authorities, the existence of New Caledonian citizenship which creates an inequality incompatible with the equality of all citizens in a federal state, or the right to secede reserved for New Caledonian citizens. As explained by Nicholas R.L Haysom, ‘federal units do not usually have the right to secede as matter of conventional practice or even under international law’, above n 14, 228. For other differences between the New Caledonian status and the federal model, see Dominique Custos, above n 2, 128–129.

[102] As explained by David Marrani, ‘it is obvious that France has probably forgotten, for many reasons, to take into consideration the specificities of its overseas populations and sometimes the reality of the French population itself’. David Marrani, ‘Will New Caledonia be another Tokelau?’ (2006) 31-2 Alternative Law Journal 103.

[103] Even though this reform does not apply to New Caledonia. See Mathias Chauchat, above n 27, 2244.

[104] In accordance with the new Article 1 of the French Constitution resulting from the amendment of 28 March 2003, France ‘shall be organized on a decentralized basis’.

[105] Although, as explained, such statutes of the French Polynesia do not have legislative force, unlike the lois du pays voted by the Congress of New Caledonia. See Yves Brard, above n 87, 11; Dominique Custos, above n 2, 97.

[106] Dominique Custos, above n 2, 131.

[107] There are also similarities between the European Union citizenship and the New Caledonian citizenship. The status of New Caledonia was influenced by the debates about European Union citizenship, and, in return, may have influenced the evolution of French constitutional law in respect of the applicability in France of both the European and French citizenships. According to Mathias Chauchat, and Vincent P. Cogliati-Bantz, above n 7, 199, ‘reference to the European evolution could not have been ignored by the negotiators of the Noumea Agreement’.

[108] In this respect, the evolution of the New Caledonian status has sub-national as well as supra-national effects, which reflect the dynamics affecting the national levels of government in different old nation-states like France. As explained by Vivien Hart, ‘Nation-states, defined by established boundaries and the sole possession of sovereignty, have been challenged from inside by claims for self-determination or secession, and from without by the proliferation of transnational political or economic treaties and powers with global reach’. Vivien Hart, above n 20, 451. For similar comments, see Yash Ghai, above n 12, 808.

[109] For a comparison between the New Caledonian devolution process and the UK devolution process, see David Marrani, above n 102, 102–103.

[110] As explained by Dominique Custos, above n 2, 131, ‘whether it is analysed as an apparent or a real albeit partial partition of sovereignty, the Franco-Caledonian shared sovereignty emerges as an institutional laboratory whose catalytic effects run from the Pacific to the mainland and overseas France’.

[111] According to certain constitutionalists, the Noumea Accord generated a form of New Caledonian Constitution artificially inserted into the French Constitution through the creation of a new and isolated Title, i.e. Title XIII. It has been argued that this Title is so ‘heretic’ compared to the rest of the French Constitution that it creates another Constitution rather than amends the existing one. See Mathias Chauchat, above n 27, 2244; Olivier Gohin, above n 92, 291.

[112] For certain constitutionalists, it is the entire French public law that is destabilized by the constitutional reform of the status of New Caledonia. See Olivier Gohin, above n 92, 291.

[113] See Dominique Custos, above n 2, 131–133.

[114] Held on 8 November 1998.

[115] Held on 20 July 1998.

[116] See Article 90 of the Organic Act No 99-209.

[117] For a critical review of the Noumea Accord as a simple disguisement of post-colonial tactics, see Alan Berman, above n 6, 277–297. Contra Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 193.

[118] According to Vivien Hart, above n 20, 454–458, public participatory constitutionalism is based on the idea that

citizens also participate directly in the conduct of public affairs when they choose or change their constitution (…) “participation is now promoted as both a right and a necessity. The right is established in international declarations and conventions adopted by most nations, as well as in many recent national constitutions. The necessity stems in part from the forceful advocacy of democracy as the sole model for legitimate governance in a would-be “new world order”. Ironically, older nations in the western liberal tradition from which such calls have come have not often themselves extended the idea of democratic governance to constitution making.

France clearly belongs to this tradition, whereas there is international legal recognition of the right of the population, specially native tribes, to participate into constitution making or reform beyond the act of voting, as explained by Vivien Hart by reference to the United Nations Committee on Human Rights (UNHCR) Marshall v. Canada ruling (Human Rights Committee, Views: Communication No 205/1986, 43^rd sess, UN Doc CCPR/C/43/D/205/1986 (4 November 1991) and the UNHCR General Comment on Article 25 of the United Nations International Covenant on Civil and Political Rights (ICCPR) (Human Rights Committee, CCPR General Comment No. 25: Article 25 (Participation in Public Affairs and the Right to Vote), The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service, 57^th sess, UN Doc CCPR/C/21/Rev.1/Add.7 (12 July 1996). See Vivien Hart, above n 20, 454–458.

[119] If this transfer is defined as irreversible, the document which defines this transfer as irreversible, is not itself irreversible, in spite of its constitutional nature, because French constitutional law is not irreversible. See Olivier Gohin, above n 92, 293.

[120] Conseil Constitutionnel [French Constitutional Court], decision DC N°82-142, 27 July 1982 reported in JO, 29 July 1982, 2424. The Conseil Constitutionnel has held that ‘the legislator cannot bind itself, as a law may always and with no conditions whether or not implicit, be repealed or amended by a subsequent law’.

[121] See above n 102, 103.

[122] See Alan Berman, above n 6, 292; Dominique Custos, above n 2, 124.

[123] The associated statehood option has been considered multiple times, even by the Kanak pro-independence F.L.N.K.S movement, before and after the Noumea Accord, and even more recently in 2006 during its 37th Congress. In addition, this solution would be compatible with UN international rules since the UN General Assembly Resolution 1541 (XV) of 15 December 1960 declares that a non self-governing territory can be said to have reached a full measure of self-government by emergence as a sovereign independent State, free association with an independent State, or integration with an independent State. See Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 205.

[124] As explained by Dominique Custos, above n 2, 125, ‘such an imbalance in respective means of protection of their jurisdiction between France and New Caledonia is indicative of mechanisms of control of sub-national governments within a unitary state and greatly contradicts the reciprocity of constitutional guarantee of respective jurisdictions in a federal state’.

[125] See Articles 200 and 204 of the Organic Act No 99-209.

[126] See Dominique Custos, above n 2, 122.

[127] The precedence of Organic Acts, and in particular the Organic Act No 99-209, was confirmed in the first case law decision of the Conseil Constitutionnel issued in respect of a loi de pays on 27 January 2000. Decision n° 2000-1 LP, 20 March 2000, on the loi du pays of New Caledonia concerning the introduction of a general tax on services, as published in [2000] Actualité Juridique Droit Administratif (AJDA), 252, with commentaries of Eric Schoettl and Olivier Gohin.

[128] See Conseil Constitutionnel [French Constitutional Court], decision n° 95-364 DC, 8 February 1995, RJC-I, 637.

[129] For an example of applicability of a General Law Principle in New Caledonia, see Michel Joyau, ‘Libertés médicales, principes généraux du droit et Nouvelle-Calédonie (à propos de l’arret du Conseil d’Etat du 18 février 1998 Section locale du Pacifique Sud de l’Ordre des Médecins’ (1999) 15 Revue Française de Droit Administratif 67–76.

[130] For a more detailed review of the legal status and regime of the loi du pays in general under New Caledonian and French law, see the Ph.D. thesis of Carine Gindre David, Essai sur la loi du pays calédonienne, la dualité de la source législative dans l’Etat unitaire français (2009). See also Regis Fraisse, above n 50, 81; and Claire Marliac-Negrier, ‘Du particularisme législatif: à propos de la nouvelle catégorie juridique des lois du pays en Nouvelle-Calédonie’ (2003) 57 Revue Juridique et Politique des Etats Francophones 173–211.

[131] In accordance with Article 100 of the Organic Act No 99-209 concerning New Caledonia, the prior review by the Conseil d’Etat applies in any circumstances, whether or not the draft loi du pays is initiated by the Government of New Caledonia or directly by the Congress of New Caledonia.

      The Conseil d’Etat will quite obviously apply the principles which it has itself set down for the purposes of its jurdisction over administrative acts referred to it for examination in the event of disputes. Its opinion N° 364083 of 23 November 1999 on the loi du pays of 7 December 1999 reintroducing the general tax on services, confirms this interpretation: for commentators, the Conseil d’Etat did not only exercise its control a priori, in line with its checking of the legal basis of the framework of disputes. It also anticipated a future constitutionality check by verifying the validity of legal provisions with regard to higher constitutional principles. See comments made by Olivier Gohin (2000) Actualite Juridique Droit Administratif 256.

      As a result, the Government of New Caledonia immediately rewrote the law to comply with the objections of the Conseil d’Etat (see comments of Olivier Gohin, ibid 256). Because of the preventive control exercised by the Conseil d’Etat, there have not been many referrals of lois du pays to the Conseil Constitutionnel.

[132] In its opinion, the Conseil d’Etat can therefore check the compliance of the loi du pays with constitutional principles as well as international conventions, including international tax treaties. See Conseil d’Etat [French Administrative Court], Assembly, 5 March 1999, Rouquette, reported in [1999] Revue Française de Droit Administratif 357, with conclusions from Christine Maugüé.

[133] See Article 104 of the Organic Act No 99-209 concerning New Caledonia.

[134] The executive powers reserved for the Delegate of the French Central Goverment enable the French state to exercise preventive controls in respect of the legislation contemplated by the Congress of New Caledonia, through this referral process, but also through the participation of the Delegate or High-Commissioneer into various Consultative Committees which must be consulted on draft laws of the Congress of New Caledonia in certain areas of particular importance for the economy of the territory, such as the Conseil des Mines (Mining Council), which is the specific Consultative authority in charge of all draft laws dealing with mineral resources and investments in the mineral sector in New Caledonia. The French Government’s Delegate (Haut-Commissaire de la République Française) is the President of the Mining Council. Article 42-I-§.1 of the Organic Act No 99-209.

[135] See Article 104 of the Organic Act No 99-209 concerning New Caledonia. A referral of a loi du pays to the Conseil Constitutionnel was rejected because it had not been signed by a sufficient number of Congress Members. See Conseil constitutionnel [French Constitutional Court], decision n^o 2006-2-LP, 5 avril 2006 reported in JO, 11 April 2006, 5439.

[136] Regarding the ‘question of constitutionality’ see Louis Favoreu, Droit constitutionnel (2009) 99.

[137] Which modified Article 61-1 of the French Constitution under the terms of Article 29 of the Loi Constitutionnelle (Constitutional Act) No 2008-724 of 20 July 2008. This major reform was extended to New Caledonia by the Organic Act No 2009-1523 of 10 December 2009 which modified Article 107 of the Organic Act No 99-209 relating to the jurisdiction of the Conseil Constitutionnel in respect of lois du pays.

[138] See Conseil constitutionnel [French Constitutional Court], decision n^o 2011-205 QPC, 9 December 2011 reported in JO, 10 December 2011, 20991. Following this decision, some New Caledonian associations and companies tried to challenge the constitutionality of different lois du pays, including the Mining Code of New Caledonia (though without any success). See Conseil constitutionnel [French Constitutional Court], decision n^o 2013-308 QPC, 26 April 2013 reported in JO, 28 April 2013, 7401; see also Conseil constitutionnel [French Constitutional Court], decision n^o 2012-258 QPC, 22 June 2012 reported in JO, 23 June 2012, 10356.

[139] See Conseil constitutionnel [French Constitutional Court], decision n^o 99-409, 15 March 1999 reported in JO, 21 March 1999, 4234, s. 17.

[140] For a review of such complaints and the relevant decisions of the European Court of Human Rights, see Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 203.

[141] For a more detailed analysis of the tax status of New Caledonian lois du pays, see Guillaume P. Blanc, ‘Une norme fiscale singulière en Nouvelle-Calédonie: la loi du pays’ (2003) Revue du Droit Fiscal 2.

[142] Principle set down by Article 14 of the Declaration of Human Rights of 26 August 1789, which has constitutional force.

[143] In accordance with constitutional case law, tax laws can have retroactive effect. See Conseil constitutionnel [French Constitutional Court], decision n^o DC 84-384, 29 December 1984 reported in JO, 30 December 1984, 4167; Decision n^o DC 95-369 of 28 December 1995 reported in JO, 31 December 1995, 19099; Decision n^o DC 88-250, 29 December 1988 reported in JO, 30 December 1988, 16700, and in Recueil des Décisions du Conseil Constitutionnel, 267. See also Decision n^o DC 91-298, 24 July 1991 reported in JO, 26 July 1991, 9920, and in Recueil des Décisions du Conseil Constitutionnel, 82.

[144] In particular, certain authors have underlined the possible inconstitutional nature of the loi du pays No 2002-018 of 16 April 2002 relating to tax stability of companies of the mining and metallurgical sector, according to which ‘the exoneration of duties, taxes and levies cannot be withdrawn during the entire application period of the tax ruling’ granted under the terms of Article L-45-bis –5-I of the New Caledonian Tax Code resulting from the loi du pays No 2001-009 of 17 July 2001. See Mathias Chauchat, ‘Recréer une fiscalité minière’ (Paper presented at the Exploitation et politique minières dans le Pacifique, Histoire, enjeux et perspectives conference, Noumea, New Caledonia, 22–25 November 2011) 7.

[145] As explained by Alan Berman, above n 6, 284, ‘under the Noumea Accords, the process of decolonization is slated to take place in stages, beginning with jointly-shared sovereignty with France over New Caledonia as a preparatory phase in the progression toward full sovereignty’.

[146] See Paragraph 1 of the Preamble of the Noumea Accord.

[147] In particular because the laws of the colonised people were not acknowledged or respected by the French colonial army and administration when France took possession of New Caledonia in 1853. For an analysis of this contradiction, see Alan Berman, above n 6, 283; see also Nehad Bhuta, ‘New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional Transformation’ (2010) University of Toronto Law Journal 12. According to Bhuta, a colonial power which qualifies as illegal occupier cannot either continue to exercise sovereign rights in the colonized territory, or design a new constitution for the colonized territory. As he explains, ‘even if the occupier could entrench the entire legal order, it is not authorised to devise the means of replacing it’; therefore, should France qualify as an illegal occupier of New Caledonia from the beginning of the colonization of this territory, which is suggested by Alan Berman, it should not only be obliged to withdraw from New Caledonia. It should also be prevented from exercising any role in the design of the final status of New Caledonia and its accession to ‘full-sovereignty’ or independence.

[148] The Congress of New Caledonia is given the right to choose the date of the referendum, which must be held between 2014 and 2018, and the formulation of the question, but such decisions require a majority of three-fifths of the Members of the Congress. If that majority cannot be obtained, the French state itself (and not the Congress) will submit the question for referendum. See Paragraph 5 of the Noumea Accord and comments by Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 204. It must be noted that the Organic Act No 99-209 was recently modified by the Organic Act No 2015-987 of 5 August 2015 ((France) JO, 6 August 2015, 13481), in order to secure the right for the Congress to organise up to three successive consultations on accession to “full-sovereignty”, during the term of the Congress commencing in 2014, and better define the organisation of such consultation, which shows the intention of the French state to push the Congress to act and avoid a new deferral of this type of referendum.

[149] The right of all peoples to self-determination is part of international human rights law and customary international law and has been enshrined in the UN Charter and other international treaties ratified by France. See Articles 1(2) and 55 of the UN Charter. See also Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. See also the Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Res 1514 (XV), 15^th sess, 947^th plen mtg (14 December 1960).

[150] See above n 6, 293. This statement must be qualified in that the Noumea Accord accepts that ‘the way of emancipation shall be brought to the attention of the United Nations’ (Paragraph 3.2.1). For certain authors, this shows that ‘the Noumea Accords provides guarantees to the United Nations’. Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 201 and nn 96 and 124. It must be also mentioned that the elected Territorial Assembly of New Caledonia already exercised its right to vote on the independence of New Caledonia, which it rejected on 17 December 1958.

[151] See Olivier Gohin, above n 22, 51.

[152] See Jean-Yves Faberon and Guy Agniel, above n 27, 275 and 282–284.

[153] See Loi Constitutionnelle n^o 2007-237 du 23 février 2007 (France) JO, 23 February 2007, 3354 and comments by Mathias Chauchat and Vincent P. Cogliati-Bantz, above n 7, 199.

[154] As explained by Vivien Hart, above n 20, 451,

traditional constitution making as a conclusion of conflict and codification of a settlement that intends permanence and stability can seem to threaten rather than reassure. Citizens who actively reject a final act of closure seek instead assurances that constitution making will not freeze the present distribution of power into place for the long term, nor exclude the possibility of new participants and different outcomes …(…) We used to think of a constitution as a contract, negotiated by appropriate representatives, concluded, signed, and observed. The constitution of new constitutionalism is, in contrast, a conversation, conducted by all concerned, open to new entrants and issues, seeking a workable formula that will be sustainable rather than assuredly stable.

On the polarizing dangers of consociationalist arrangements, see also Donald L. Horowitz, above n 13, 1221–1223.

[155] Which also illustrates the weakness of consociationalist constitutional models. According to Donald L. Horowitz, above n 13, 1220, ‘Civil wars (…) can sometimes be brought to an end with consociational arrangements, but the desirability and durability of such agreements are often in doubt’.

[156] See in this respect her analysis of the South Africa interim constitutional reform, above n 20, 455–458.

[157] See above n 12, 824; see also for similar comments Tom Ginsburg, Zachary Elkins and James Melton, above n 28.

[158] And ‘they are, as has been said, “possibility-engendering (Holmes) rather than devices that aim at the consolidation of a particular policy as willed by the people in a particular situation under particular conditions’. Ulrich Preuss, above n 26, 190.

[159] As explained by Dominique Custos, above n 2, 126, ‘New Caledonia’s regime does not quite fit any ideal type, as it exhibits a specific mix of unitary, regional and federal institutional features, it is hybrid’.

[160] Referring himself to the case of New Caledonia, Yash Ghai, above n 12, 804, explains that

“today’s constitutions are based on what has been called internal self-determination, and aim to disaggregate state sovereignty into distinct packages (not merely in the form of federalism, but also other complex forms of dividing and sharing power (…) The skill required for contemporary constitution-making is to diffuse (or perhaps obfuscate) sovereignty”. As he explains, “indeed, some recent settlements have been possible only by keeping open the option of sovereignty: in French New Caledonia and in Papua New Guinea (…) a group has reserved or been granted (the formulation depending on who you are) the entitlement to exercise the right of external self-determination (that is to say, secession and separate sovereignty) after a suitable period.