The New Caledonia (Kanaky) Crisis says Something about Remaining Non-self-governing Territories

[Géraldine Giraudeau is a Professor of Law at the University of Paris-Saclay (UVSQ)]

Introduction

Since May 13, in the context of a controversial project on electoral reform, New Caledonia (Kanaky), an archipelago of South Pacific under French administration has been in the grip of a violence that has already caused at least 11 deaths, numerous injuries and considerable damage. After more than 30 years of peace, these are tragic events. The situation is legitimately causing great concern in the region, and a PIF (Pacific Islands Forum) mission could be deployed in the coming weeks.

So many things could be written about this Melanesian piece of land – to me one of the most spectacular places on earth –, about the complexity of the Caledonian society, about the wish of the vast majority of its population for a common and peaceful future, about its history, about its status under domestic law, about the political courage it took to reach a set of agreements building a legal framework for emancipation, about the disastrous choices that led to the current tragedy, or about the role of foreign powers in the equation.

This short post will nevertheless only focus on an international law perspective, and will try to underline what this crisis says about non-self-governing territories: despite lots of singularities, the Caledonian destiny is also relevant to assess in some ways the actuality of non-self-governing territories international regime.

Administering Powers’ Vision vs. United Nations’ One

The current situation of New Caledonia (Kanaky) is symptomatic of the ever-widening gap between, on one hand, the UN perspective on decolonization and the legal regime described in Chapter XI of the Charter, and, on the other hand, the perception of what decolonization is or should be by the administering powers. This is particularly true of France or the UK, which had no choice but to recognize the right to self-determination under the pressure of the “two big ones” in 1945, namely the US and the USSR. Paris has always acted as it wished to maintain control on the decolonization process, which is still considered in the national debate as being an internal issue more than an international one. It had actually stopped to communicate the information requested under Chapter XI of the UN Charter no later than in 1947. The reregistration of New Caledonia in 1986, and of French Polynesia in 2013, in the UN list of non-self-governing territories, with the support of the Pacific states, has provoked the indignation of the authorities – in particular regarding the second one: France had systematically refused to participate to the General Assembly fourth commission’s work on French Polynesia until last year.

Complexity of the Application of Self-determination and Limits of the Referendums

The Caledonian experience is also a very appealing illustration of how the practical application of the right to self-determination can be difficult, as well as it shows the limits of the use of referendums in such a process. It is not the only one. As we know the consultations held in Bermuda or in Tokelau didn’t allow the territories to be removed from the UN list set up under Chapter XI. 

Self-determination referendums are always sensitive, notably because they require to formulate a question (a very binary one in most cases) and to identify the electoral body, that is to say to identify who’s aimed to be consulted on such a crucial scrutiny. Limits are needed indeed, as no limit would allow the possibility of drowning out local voices. 

In New Caledonia (Kanaky) the question of who should be allowed to vote is a long-standing issue. It gave rise to a set of origins and residency criteria which could be negotiated, notably because the Kanak representatives accepted the idea of opening the titularity of self-determination beyond the indigenous people, in 1983, during the dialogue of Nainville-Les-Roches. There is no definition of ‘people’ in international law, and, to avoid the problem, the UN General Assembly resolutions refer to the ‘people of New Caledonia’ even if there is no legal existence of a people of New Caledonia as such in the French legal order (whereas there is a legal recognition of the Kanak people).

Four self-determination referendums were organized in New Caledonia (Kanaky) with no concrete pacification resulting from them. The first one of 1987, which was held in a very tense context, was boycotted by the pro-independence parties. A year later, after the dramatic events of the hostage-taking and bloody repression on the island of Ouvéa, the Matignon-Oudinot agreements provided for a new consultation, which was postponed 10 years later. In 1998, the agreement of Nouméa – one of the most beautiful texts of the French constitutional order –, provided for the same consultation and the possibility to organize two more referendums in case of a majority of ‘no’ to the independence to the two previous ones. In 2018, 56,40% of voters rejected the independence against 43,60 of ‘yes’. In 2019, the gap slightly narrowed, resulting in 53,26 % in disfavor of independence for 46,74% in favor. 

The third referendum, held in December 2021, is the most problematic one. The Kanak leaders asked for the consultation to be postponed because of the pandemic and the bereavements it caused. Such demand was rejected by the French government, a referendum was held and boycotted by the pro-independence parties, resulting in an expected overwhelming majority (96,50%) of ‘no’. The legality of such a referendum was challenged but confirmed by the national judge. In the national debate, the real reasons for the original demand for postponing were the object of a controversy (‘loyalists’ would consider it was only a way of gaining time towards probable defeat). What is sure though, is that while considered legal by the national judge, the referendum is not considered legitimate by the representatives of the local indigenous people. Such decalage could only appear a worrying precarious basis for further discussion. Since then, the dialogue has indeed been almost impossible: how to manage discussions between some interlocutors who consider the self-governing process to be achieved and some others who consider it is not? 

The aftermath was even worse. The government, in a hurry to resolve the thorny issue of the electorate rights on the local institutions (an electoral body can’t legally be limited forever, that is true, but was there any urgency?), conducted a chain of initiatives which led to an explosion of tensions.

Perspectives for the UN List on Non-self-governing Territories

Finally, New Caledonia (Kanaky)’s current impasse raises questions about the future of the UN Charter Chapter XI regime. The list of non-self-governing territories is very incomplete – it is far from being an exhaustive reflection of colonial reality. It has also been static for years (last move being the reregistration of French Polynesia) and gives rise each year to quite unproductive exchanges of views between administering powers and local speakers.

Of course, it hasn’t escaped anyone’s notice that except for Western Sahara and Gibraltar, the remaining non-self-governing territories as identified by the UN are all islands. This is not a coincidence, and can be explained by historical and geographical factors. These islands question the many forms self-determination can take (see Rothwell, Islands and International Law, Hart, 2022). Jean-Marie Tjibaou, emblematic leader of the Kanak independence movement, used to talk about “managing the interdependence”. That would imply rethinking the path to emancipation from the administering powers, and more generally the links with overseas territories, in the light of both domestic and international law.

Photo attribution: “New Caledonia Barrier Reef – Horizon” Eustaquio Santimano is licenced under CC BY-NC-SA 2.0.