An emerging “Islandian” sovereignty of non-self-governing islands

Introduction

The decolonization process of the world’s remaining 40-odd non-self-governing islands—scattered over the globe as the reminders of colonialism—came to a halt in the 1980s. Since the 1980s, more than a dozen non-self-governing islands have held referendums on independence and large majorities of voters on all these islands have voted against it. On several non-self-governing islands, referendums on independence are still being planned—New Caledonia, as a French territory in the Pacific, is one example—but going by past results, it seems unlikely any of these islands will vote to sever their colonial ties. However, a closer look at the relationships between colonial metropoles and non-self-governing islands suggests that the islands are not rejecting change; they are rather active in changing that relationship and they are quite successful in doing so on their own terms. This paper addresses the question of how non-self-governing islands are shaping their relationship with their (neo-) colonial metropoles. It will investigate these relationships in a theoretical framework that takes elements from the classic concept of Westphalian sovereignty as well as from the emerging concept of Indigenous sovereignty.

Today’s concept of sovereignty has its origins in the negotiations that resulted in the seventeenth-century’s Peace of Westphalia in Europe. Arguably, the Peace of Westphalia was the foundation for early nineteenth-century nationalism and mid-twentieth-century decolonization, leading to today’s notion of state sovereignty. However, accelerating globalization since the 1990s has led to various critical analyses that question the contemporary validity or relevance of Westphalian state sovereignty. In addition to these critical analyses, the 2000s have also seen the concept of Indigenous sovereignty become increasingly prominent, both in scholarly debate and in international diplomatic platforms. Against the backdrop of these debates, the conduct of non-self-governing islands and their negotiations with their colonial metropoles may represent yet another approach to sovereignty. In this approach, non-self-governing islands seem to be expressing “a different appetite for sovereignty,” in which they are negotiating “innovative autonomy arrangements” rather than seeking Westphalian state sovereignty. ¹

One of the effects of these “innovative autonomy arrangements” is that despite comparable starting points in the 1960s and 1970s, the socio-economic development indices for non-self-governing islands significantly exceed the indices for sovereign island states in the 2000s. This paper expands our understanding of these arrangements between metropole and non-self-governing islands by exploring the political and cultural aspects that accompany, or reinforce, the relational and economic dynamics of the arrangements. This paper also investigates the relevance for non-self-governing islands of the efforts by Indigenous peoples to arrive at “constructive arrangements with States,” which fall equally short of sovereign statehood. ²

This paper begins by reviewing the cumulative origins of the concept of Westphalian sovereignty. It then outlines diverse critiques of this concept as they have emerged since the early 2000s. After this, the paper presents a desktop analysis of case studies on the negotiations between Pacific, Atlantic, and Caribbean non-self-governing islands and their metropoles. This analysis finds five common mechanisms that occur in these negotiations. We believe that these five mechanisms characterize a unique approach to sovereignty that may be labelled “Islandian sovereignty.” To test this hypothesis, we looked for the occurrence of these five mechanisms in the relations between France and one of its overseas territories in the Pacific with a significant Indigenous population: New Caledonia.

The origins of Westphalian sovereignty

The treaties at the foundation of the 1648 Peace of Westphalia mark the first of three critical steps in defining state sovereignty. These treaties introduced the principle of a state’s right to self-determination—or its corollaries of non-intervention by outside powers and sovereignty in matters of local policymaking. These peace treaties also asserted for the first time that, in principle, all states were equal. As dozens of states negotiated these peace treaties, the representatives of well-established and larger states began, even if grudgingly, to treat the new and smaller states as equals. France, for example, complained bitterly in 1648 that the representatives of the new and smaller states were “desiring to receive from us the same honours that they grant us.” ³

The second step toward today’s concept of state sovereignty was taken by nationalist movements in the early nineteenth century. Until then, the sovereign states that had emerged were generally ruled by elites on the basis of hereditary claims or divine right. The right to sovereignty of these elites was fundamentally challenged by the French Revolution’s Declaration of the Rights of Man and of the Citizen, which stated, “The principle of all sovereignty resides essentially in the nation.” ⁴ Subsequent nationalist declarations of independence in the nineteenth century built on this principle of connecting sovereignty with all the people of the land. For instance, Haiti’s Declaration of Independence from France in 1804 states, “We must, with one last act of national authority, forever assure the empire of liberty in the country of our birth.” The local elites of Bogotá rebelled against the Spanish king in 1809 by similarly claiming, “We are the descendants of those who shed their blood to acquire these lands.” ⁵

The third step toward today’s concept of state sovereignty was taken in the decolonization processes after the Second World War. Before this time, all claims to sovereignty had been made, or imagined, by the leaders of local rebellions who challenged the status quo that upheld their rulers’ claim to sovereignty. The 1960 United Nations (UN) “Declaration on the Granting of Independence to Colonial Countries and Peoples” inverted this by proclaiming that “all peoples have an inalienable right to… their sovereignty and the integrity of their national territory,” and it declared that this “process of liberation is irresistible and irreversible.” In addition, the UN declared, “the peoples of the world ardently desire the end of colonialism in all its manifestations.” ⁶ From here on, people living in a defined territory had the international right to sovereignty, whether they fought for it or not. By the mid-1970s, most colonies had become independent sovereign states.

Within the framework of the UN, the formal path toward recognition as a sovereign member state is clear. According to the UN Charter, applicants for membership need to declare themselves to be a state, be peace-loving, accept the UN Charter, be willing to carry out the obligations contained in the charter, and demonstrate their ability to implement these obligations. ⁷ As for declaring to be a state, it should be noted that there is no formal UN definition of statehood. Instead, “the most widely accepted source as to a definition of statehood is the Montevideo Convention of 1933.” ⁸ Article 1 in this convention declares that a state is simply constituted by a permanent population; a defined territory; a government; and a capacity to enter into relations with other states. These qualifications per se do not appear too onerous for a people living in a certain territory who seek to claim sovereign statehood and apply for UN membership. ⁹

Critiquing Westphalian sovereignty

Notwithstanding the fact that the Westphalian concept of state sovereignty is generally still the dominant concept in international political arenas such as the UN, it has been critiqued from a number of theoretical or political perspectives—including Marxism, postmodernism, postcolonialism, and feminist theory. Likewise, many people have challenged the concept on the basis of their lived experiences, ranging from the Indigenous to the colonial settlers’ histories. To contextualize our argument for an Islandian sovereignty of non-self-governing islands, we believe it is helpful to highlight several of these lines of critique of the concept of Westphalian sovereignty.

One line of critique doubts the historical accuracy regarding the motives for signing Westphalian peace treaties and argues that the significance attributed to these treaties is rather ex post: “really a product of the nineteenth- and twentieth-century fixation on the concept of sovereignty.” ¹⁰ Another line of critique finds Westphalian sovereignty predicated on the imposition of a colonial or imperial “Eurocentric metanarrative.” ¹¹ Yet another critique points out that the Westphalian principles such as non-intervention are professed only when convenient. Krasner, for example, concludes that the principle of state sovereignty is “organized hypocrisy,” because large powers have continued to violate the principles of non-intervention. ¹² In contrast, scholars who focus on accelerating globalization and accompanying deregulation conclude that the dissolution of borders and loss of border controls are effectively undermining a sovereign state’s capacity to attribute significance, impose a narrative, or respond to a violation of Westphalian principles. In their critique, the state’s loss of the capacity to control who and what is inside or outside its territory impairs its ability to enforce any policy as an expression of its existence. Some of their titles speak volumes: “sovereignty and state… in jeopardy” and “the withering away of the state.” ¹³

An entirely different set of critiques points out that the last two decades have seen an increasing decoupling of the Westphalian concept of sovereignty from two of its classic constituent elements: a territory and a state. The concept of “sovereignty without territory” is becoming visible in the increasing number, authority, and capabilities of global agencies whose power to develop and enforce policies is comparable to a state’s sovereignty. These bodies can be multilateral agencies or international treaties—for example, the UN Security Council, the World Trade Organization (WTO), or the International Criminal Court (ICC)—and in some instances they not only compare to but also overrule a sovereign state’s right to self-determination. Such interventions can be on moral grounds, as in the case of genocide, but also on commercial grounds, enabling a corporation to take a sovereign state to court on the basis of a free trade agreement. ¹⁴

While thinking of sovereignty without a territory challenges the dominant concept of Westphalian sovereignty, equally challenging is conceiving sovereignty without a state. The 2007 UN Declaration on the Rights of Indigenous Peoples is a prominent illustration of moves toward a concept of “sovereignty without a state.” At first glance, the declaration seems to predicate itself on the classic elements of Westphalian sovereignty. It refers to the principle of equality—“indigenous peoples are equal to all other peoples”—and it underscores their “right to self-determination.” It also recognizes that Indigenous peoples possess the “rights to their lands.” ¹⁵ While such claims would generally precede the desire to establish a state, the representatives of Indigenous people negotiating the declaration assuaged fears of UN member states concerning separatism by accepting Article 46, which states that the declaration cannot be used to impair “the territorial integrity or political unity of sovereign and independent States.” ¹⁶ Importantly, the UN declaration thereby lays the foundations for a way of thinking about sovereignty that is not predominantly focused on the separation option. Rather, “this indigenous modality [finds] the resources with which to critically cultivate the relationship” with the colonial metropole. ¹⁷ Over the last several years, there is a growing political practice of Indigenous governance that shows “striking commonalities” across Canada, Australia, New Zealand, and the United States, suggesting that a globally recognizable concept of Indigenous sovereignty is emerging that sees Indigenous peoples and the colonial state engage in a fashion that has been described as a “nation-to-nation” relationship. ¹⁸

The above critiques not only illustrate divergent views on the concept of Westphalian sovereignty, but they also suggest that by the early twenty-first century, it is perhaps losing its dominance. Not only do alternative views on what constitutes sovereignty emerge in debates across the globe; alternative political practices do as well. In local political practices around sovereignty, we believe the UN declaration’s repeated appeal for “constructive arrangements” between Indigenous peoples and states is important because we see similarities with the “innovative autonomy arrangements” between non-self-governing islands and their metropoles, which we review next.

Mechanisms underpinning the sovereignty of non-self-governing islands

Establishing a list of the world’s non-self-governing islands is not as straightforward as it would seem; this is partly due to wide diversity in the aforementioned innovative autonomy arrangements with their respective colonial metropoles. A starting point would be the islands on the list of non-self-governing territories produced by the UN Special Committee on Decolonization. Fifteen of the 17 territories on this UN list are islands. Another diplomatic source would be the Central Intelligence Agency’s (CIA) World Factbook list of “nonindependent entities associated in some way with a particular independent state.” All of these “nonindependent entities” are islands. After removing duplications from the UN list, this adds another 19 islands to our list. (The expression “associated in some way” is probably a diplomatic description of what others described earlier as “innovative autonomy arrangements.”) In addition, there are several islands that are far-flung overseas territories; remnants of the metropoles’ colonial power that appear neither on the UN list nor on the CIA list. There are several of these islands, far beyond their metropole’s exclusive economic zone where it could claim sovereignty rights according the UN’s Convention on the Law of the Sea. We have added eight such islands to our list and thus arrive at a total of 42 non-self-governing islands (see Table 1).

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Table 1.

List of non-self-governing islands.⁶⁸

Islands on the UN list of “non-self-governing territories”		Metropole	Population	Most recent referendum on independence (year; percentage against)
1.	French Polynesia	F	268,000	–
2.	New Caledonia	F	269,000	1987; 98%
3.	Tokelau	NZ	1,000	2007; 65%
4.	Bermuda	UK	62,000	1995; 74%
5.	Anguilla	UK	16,000	–
6.	British Virgin Islands	UK	28,000	–
7.	Cayman Islands	UK	56,000	–
8.	Falkland Islands	UK	3,000	2013; 100%
9.	Montserrat	UK	5,000	–
10.	Pitcairn	UK	50	–
11.	St. Helena, Ascension, T da Cunha	UK	8,000	–
12.	Turks and Caicos Islands	UK	31,000	–
13.	American Samoa	US	55,000	–
14.	Guam	US	160,000	–
15.	United States Virgin Islands	US	107,000	1993; 82%
Islands on the CIA list of “nonindependent entities” and not already on the UN list
16.	Christmas Island	AUS	2,000	–
17.	Cocos (Keeling) Islands	AUS	1,000	1984; 96%
18.	Norfolk Island	AUS	2,000	–
19.	Saint Barthélemy	F	9,000	–
20.	Saint Martin	F	78,000	–
21.	Saint Pierre and Miquelon	F	6,000	–
22.	Wallis and Futuna	F	16,000	–
23.	Svalbard	N	3,000	–
24.	Aruba	NL	103,000	–
25.	Curaçao	NL	153,000	2005; 95%
26.	Sint Maarten	NL	34,000	2000; 86%
27.	Cook Islands	NZ	15,000	–
28.	Niue	NZ	1,000	–
29.	British Indian Ocean Territory	UK	3,000	–
30.	Northern Mariana Islands	US	52,000	1975; 79%
31.	Republic of Marshall Islands	US	53,000	–
32.	Federated States Micronesia	US	106,000	–
33.	Palau	US	18,000	–
34.	Puerto Rico	US	3,474,000	2012; 94%
Other non-self-governing islands that are remnants of colonial histories
35.	Rapa Nui	Chile	6,000	–
36.	Faroe Islands	DK	51,000	–
37.	Greenland	DK	56,000	–
38.	Guadeloupe	F	404,000	–
39.	Mayotte	F	213,000	2009; 95%
40.	Bonaire	NL	17,000	2004; 99%
41.	Saba	NL	2,000	2004; 99%
42.	Sint Eustatius	NL	4,000	2005; 99%

Others have made similar lists and arrived at higher numbers; some counts have resulted in totals of over a hundred “subnational island jurisdictions.” ¹⁹ However, while these long lists are useful in exploring the particular character of islands as opposed to continental polities, we believe these lists may also obscure some important differences among subnational island jurisdictions. One important difference is that the long lists include non-self-governing islands that are geographically and culturally relatively closer to their metropoles (for example, New Zealand’s Chatham Islands; Britain’s Crown Dependencies Jersey, Guernsey, and the Isle of Man; and France’s Corsica), whereas our list concentrates on islands that are more far-flung and more culturally distinct from their metropoles and whose connections to the metropole were mostly imposed in the time of imperial colonialism. We believe these differences add several layers of complexity to the relationship between metropoles and the islands on our list. Debate (including referendums) about decolonization is one of these added layers of complexity and one that contributes to what we define as the emergence of a unique, Islandian, form of sovereignty.

One striking aspect of the decolonization process of islands is that throughout the 1960s and 1970s most colonized islands opted for independence, but since the early 1980s no non-self-governing island has acquired full independence from its colonial metropole. Instead, they seem to opt for exploring “the fine line between autonomy and sovereignty.” ²⁰ In the 1980s, it became clear that for many newly independent island states, the problems of “smallness… and colonially induced dependence” came to “haunt the island states in a way unimagined at the time of independence.” ²¹ Several researchers argued that these island states were left weaker because of their dependency on MIgration, Remittances, Aid and programmes to sustain Bureacracies—the so-called “MIRAB model.” ²² More recent and longitudinal analyses of economic and social indicators have confirmed that non-self-governing islands within the constitutional frameworks of colonial metropoles actually fare better than sovereign islands. McElroy and Parry, for example, compared 25 non-self-governing islands and 30 sovereign islands over the 1985–2010 period. They found that per capita income on non-self-governing islands is about double and infant mortality is roughly half in comparison with sovereign islands. ²³

By the mid-2000s, some researchers moved away from the models of vulnerability and dependency of islands. A new perspective suggested that islands are not so much dependent on outside resources, but are instead astutely creating structures and networks to exploit these resources. This perspective argues that islands—and particularly non-self-governing islands—actively manage their powers with regard to people, resources, overseas para-diplomacy, finance/taxation, and transportation—a model captured in the acronym “PROFIT.” ²⁴

It could be argued that these autonomy arrangements between non-self-governing islands and their metropoles are nothing unusual and merely part of governance practices within many Organization for Economic Cooperation and Development (OECD) countries toward increasing decentralization, partial sovereignty, or asymmetrical federalism for ethnic or national minorities. Rather than breaking away, “contemporary minority nationalist movements have recognized the limitations of sovereignty and traditional statehood and are seeking new forms of recognition and autonomy.” ²⁵ However, after reviewing many of these “new forms of… autonomy,” Hepburn concluded that islands as sub-national jurisdictions seem to develop a particular mix that is different from other sub-national regions. “These bilateral systems of self and shared rule occur almost exclusively on islands,” and she wonders, “what makes islands so special?” ²⁶

Although Hepburn did not attempt to answer this question, we reviewed case studies of the dynamics between the 40-odd non-self-governing islands that we identified earlier and the remaining (neo-) colonial metropoles of France, the Netherlands, the UK, Denmark, New Zealand, and the US. Our review of these case studies concentrates on identifying the mechanisms that drive the relationships between metropoles and non-self-governing islands and in doing so shape a unique, Islandian, form of sovereignty. We found five such mechanisms. We believe these five mechanisms assist in explaining how non-self-governing islands create these new forms of autonomy. A careful understanding of the “how” will assist us in eventually finding answers to the question “why” non-self-governing islands—simply called “islands” from here on—are a special case.

The first mechanism is that islands vote “no” in independence referendums. About one-third of the islands have held referendums to determine whether to seek full sovereignty from their metropoles. There is no clear pattern in terms of who initiates these referendums. In some cases, island authorities promote a vote and elsewhere the metropole imposes the referendum. There is, however, a very clear pattern in the outcome of these referendums; the “no” votes consistently dominate.

The year 1983 marks a turning point. St. Kitts and Nevis accepted independence from the UK, but in the same year the people of the Federated States of Micronesia (FSM) voted in a referendum in favour of association with the US rather than full independence. In 1995, a vast majority of the people of Bermuda said “no” in a referendum proposing independence from the UK. Aruba, one of the Dutch Antilles, had voted to break away from the union with the other Dutch Antilles in a referendum in 1977, and after negotiating with the metropole over a series of legal statuses with an increasing autonomy, agreed to a date for full independence in 1996. However, in 1995, on the eve of independence, Aruba cancelled the impending independence and successfully negotiated a continued constitutional relationship with the Netherlands. In a series of referendums between 2000 and 2005, the remaining five Dutch Antilles also voted overwhelmingly against independence. Likewise, in a 2009 referendum, 95 percent of the population of the French territory of Mayotte in the Indian Ocean voted in favour of full administrative integration into France rather than independence. Tokelau, as another example, voted twice on the independence question—in 2006 and in 2007—both times deciding to maintain its constitutional link with New Zealand. Table 1 also lists the most recent referendums on independence on non-self-governing islands.

A second mechanism is that islands continuously negotiate constitutional exceptions. As islands reject Westphalian sovereignty, they engage in repeated—almost continuous—negotiations with their metropoles to obtain a unique status within their respective metropolitan constitutions. French and Dutch legal frameworks refer to these as sui generis statuses: unique, one-of-a-kind autonomy arrangements. One review captured this by listing 11 legal definitions to categorize the various constitutional frameworks of the 40-odd islands that are not states with Westphalian sovereignty. ²⁷ Another review of the varied constitutional statuses of Pacific islands concluded along similar lines: “There is no straightforward divide between fully independent nation-states and territories integrated into other nation-states. There is a wide range of constitutional arrangements.” ²⁸

Most French overseas territories have constitutional statuses that “have evolved progressively at different speeds and degrees” and “today there are as many statuses as there are overseas territories.” ²⁹ Many of the UK’s overseas territories have been experiencing similar dynamics. ³⁰ In 1954, under pressure from the UN, the Netherlands changed its constitution to include its six Caribbean territories as six federated countries named the Dutch Antilles. By the mid-1970s, Aruba negotiated its sui generis status, and after the five referendums in the 2000s led to a stalemate, the Dutch Constitution was changed again to award each of the three larger islands its own sui generis status, and integrate the remaining three with a fourth sui generis status as “special municipalities” with a range of unique rights, including the right of three islands to manage their own currencies. ³¹ The US has different constitutional arrangements with seven groups of Pacific islands. Three have “compacts of free association,” but each of these compacts differs from the other. Comparable in peculiarity with the Dutch “special municipalities” is the unique position of the people of American Samoa; they “are nationals but not citizens of the United States.” ³²

A third mechanism is that islands get away with bending their metropoles’ laws or regulations. While many islands secure constitutional exceptions to accommodate their particular circumstances vis-à-vis other sub-national entities such as regions or provinces, they are otherwise expected to abide by their metropole’s rules and regulations. Yet, there are numerous examples of islands that effectively do not. Islands often get away with bending, ignoring, or postponing the application of these laws or regulations to an extent inconceivable for other sub-national entities.

For example, the Dutch Parliament legalized same-sex marriages in 2001. However, Aruba’s Island Parliament argued that gay marriage went against local values and refused to comply. After prolonged legal wrangling in courts, Aruba was forced in 2013 to “recognize” gay marriages registered in the Netherlands, but it persists in its refusal to register them in Aruba. ³³ Similarly, the French constitution is founded on the principle of a secular state. To underscore the full separation of state and church, it states that “the Republic neither recognizes, nor salaries, nor subsidizes any religion.” ³⁴ Nonetheless, as a result of repeated and continuous local negotiations, the French state has recognized the leading role of the Catholic Church in education on one of its Pacific territories, Wallis and Futuna, by signing serial contracts since 1969 outsourcing the islands’ entire primary education system to the church and subsidizing all related expenses. ³⁵

A fourth mechanism is that islands manage public budgets whose shortfalls in domestic revenues are complemented by significant financial transfers from the metropole. Governing bodies of islands within a metropolitan constitutional framework generally possess significant degrees of autonomy in managing their public budget, but unlike sovereign states, they find that shortfalls in their domestic tax revenues are generally covered or underwritten by the metropole.

Three examples may illustrate this mechanism. First, in 2004, the Dutch minister of overseas territories reported that it was very difficult and time-consuming to understand how the local tax revenues were calculated and collected on the Dutch Antilles. Civil servants sent to investigate found that only USD$6 million in local income tax was collected instead of the USD$66 million that was invoiced. ³⁶ This shortfall in local tax revenues was greater than in preceding decades, but not by much. Since the 1950s, the Dutch government has been transferring ever-increasing amounts to the governments of the Dutch Antilles to cover the shortfalls in the Antilles’ projected local tax revenues. These transfers reached $3,939 per inhabitant of the Dutch Antilles in 2010. ³⁷ A second example is the budgetary transfers between the Cook Islands and New Zealand. The Cook Islands’ budget over the 2004 to 2009 period was supported by grants from New Zealand, fluctuating between 16 and 21 percent of the islands’ annual public budget. The agreement for the fiscal year 2015-2016 saw a fairly typical transfer of$18.6 million from New Zealand to the Cook Islands, mostly for public expenditure in health and education. With a Cook Islands population of around 17,500, this means an annual per capita transfer of$1,062. ³⁸ FSM, as a third example, receives budgetary support from the US in “Noncompact and Compact-Related Grant Funds” mostly for transport, education, and health services. Between 2007 and 2011, the annual average of transfers was $113.7 million. With a population of 103,000 people, this averaged nearly $1,100 per capita per year. ³⁹

A fifth and final mechanism is that islands within a constitutional metropolitan framework can sign international treaties or agreements beneficial to them, but uncomfortable for their metropole and/or contrary to its interests. Signing international treaties is conventionally the prerogative of sovereign states. In fact, the UN considered this to be additional “evidence that the international community had accepted the [signing territory] as a ‘State’ under international law.” ⁴⁰ Nonetheless, non-self-governing islands succeed in convincing established sovereign states to sign international bilateral agreements with them, even if these diverge from their sovereign metropoles’ interests. This growing capacity of islands for “overseas para-diplomacy” is an essential element of what Oberst and McElroy have described as islands’ PROFIT model (see footnote 24).

The Faroe Islands, for example, signed free trade or most-favoured-nation agreements with Norway, Switzerland, and Russia, which is quite contrary to Denmark’s position. ⁴¹ In the 1980s, the Cook Islands government was negotiating a trade agreement with the government of the Republic of China in Taiwan. This made New Zealand very uncomfortable and it “expressed its strong disapproval” of these negotiations. In an elegant response, the Cook Islands ensured that New Zealand saved face, and yet secured its trade deals, by signing trading agreements with Taiwanese companies instead of the Taiwanese government. ⁴²

Another source of tension between metropoles and islands revolves around the banking and offshore financial services provided by the latter. Niue and the Cook Islands were among the islands listed in 2000 by international regulators as having “the lowest quality of financial supervision.” ⁴³ In spite of repeated efforts since the early 2000s to redress these international concerns, which also affect New Zealand’s international reputation, Niue featured prominently in the leaked Panama Papers in 2016 as the fifth-ranked “most popular tax haven” harbouring nearly 10,000 off-shore companies. ⁴⁴

New Caledonia and its emerging sovereignty

The following part of this paper tests for the prevalence of these five mechanisms in the relationship between France and New Caledonia, a French overseas territory in the Pacific with a population of about 250,000. Most of the inhabitants live on one main island, although there are several smaller islands, totalling about 18,500 km². France declared New Caledonia a colony in 1853 and used it primarily as a penal colony until the early 1900s. Colonial legislation was harsh and colonial rule prolonged. The Indigenous people—called Kanak—only acquired the right to vote in 1957. Today, Kanak represent about 39 percent of the population, while descendants of European settlers constitute about 27 percent. The remaining population is of a diverse ethnic immigrant background. ⁴⁵

New Caledonia ranks high on the United Nations Development Program’s (UNDP) Human Development Index, but wealth is distributed unequally with a Gini index of 0.42, compared to France’s 0.32. New Caledonia’s inequality has a sharp ethnic profile, with Kanak faring the worst. Unemployment among Kanak stands at 28 percent, among others at 9 percent. The average monthly household income in the predominantly Kanak North Province is $2,575 whereas it is almost twice that much ($5,085) in the predominantly European South Province. ⁴⁶ In the 1960s, there was a boom in nickel mining—New Caledonia possesses about 25 percent of the world’s nickel reserves—and the accompanying labour immigration and settlement policies saw Kanak as a proportion of the islands’ population reduced to that of the largest minority. New Caledonia remains on the list of territories maintained by the UN Committee on Decolonization.

Since the Second World War, New Caledonia’s constitutional relationship with France has varied. In the postwar period of 1946–1963, the territory held a relatively large degree of autonomy. However, this was followed by strong re-centralization in the 1960s and 1970s during the growth in nickel mining. The rise of a vocal independence movement in the 1980s resulted in violent civil conflicts in that decade, still referred to rather euphemistically by many as “the events.” The conflicts ended in 1988 with an agreement for a ten-year period to restore local autonomy and introduce measures to increase representation of Kanak in institutional, political, and economic structures. This 1988 Matignon Agreement was signed by leading Kanak representatives favouring independence (indépendantistes) as well as representatives of European settlers who wanted to remain a French territory (loyalistes).

Progress in achieving the objectives of the Matignon Agreement was slow, and it was followed in 1998 by the Nouméa Agreement, which moved explicitly toward a referendum on independence, to be organized before 2018. The preamble of the Nouméa Agreement clearly explores a new model for sovereignty by talking of “the acknowledgement of its [New Caledonia’s] sovereignty, as a prerequisite for the foundation of a new, shared, sovereignty in a common destiny.” As it detailed steps for a gradual transfer of political powers to New Caledonia, it noted that “the transferred competencies cannot revert back to the State, which expresses the principle of irreversibility.” ⁴⁷

Defining Kanak sovereignty

Earlier, we noted how political and economic analyses of islands have shifted from “vulnerable and dependent” to “networking and negotiating.” In the case of the Pacific, much of the debate around Indigenous or Pacific concepts of sovereignty is captured in Hau’ofa’s seminal 1993 essay “Sea of Islands.” He critiqued the image of “vulnerable and dependent” and began to see the Pacific no longer as “islands in a far sea,” but as “a sea of islands.” ⁴⁸ He, and successive scholars and advocates, no longer upheld the image of a small and fragmented Pacific; they perceived a large and connected “Oceania.” In New Caledonia, these sharp cultural and political shifts were voiced by Tjibaou, one of the most outspoken Kanak leaders of the indépendantistes since the 1970s.

After initially arguing for full sovereignty in the early 1980s, Tjibaou reconsidered this position and began, in opposition to more radical Kanak movements, supporting the Matignon Agreement for a more gradual transfer of power. He used a variation of a Kanak proverb to explain his changed view: “We don’t want to leave France by the front door and then return begging at the window.” In a more detailed explanation, Tjibaou defines Kanak sovereignty as the power to negotiate and balance dependencies, interdependencies, and sovereignty, and not the power to establish sovereign institutions. “Sovereignty is the right to choose partners… It is sovereignty that gives us the right and the power to negotiate interdependencies. For a small country like ours, independence comes down to calculating interdependencies.” ⁴⁹

Arguably, the 1988 Matignon and the 1998 Nouméa agreements that build toward an “irreversible” transfer of political powers to New Caledonia have been as much the result of the violent “events” of the 1980s as of the astute negotiations by Kanak. In addition, the two agreements not only transfer political powers to New Caledonia—and in particular to its three provincial governments—but they also detail and finance a process of economic redress between Kanak and other communities. One cornerstone of this “economic rebalancing” is the establishment of a nickel metallurgic plant worth over $2 billion in the North Province, to counterbalance the plants in the South Province. ⁵⁰ In the course of the last two decades, this process of a negotiated decolonization has supported a growing Kanak elite and Kanak nationalism, emerging from a rather polycephalous pre-colonial polity, that are now actively shaping “a conception of sovereignty at the intersection of Kanak and Western sociopolitical modalities.” ⁵¹

The mechanisms underpinning New Caledonia’s sovereignty

The first mechanism suggesting Islandian sovereignty—voting “no” in independence referendums—is visible in New Caledonia’s referendums of 1958 and 1987, but with caveats. In the 1958 referendum, French colonies such as New Caledonia were offered a choice to remain a French territory or become an independent country. Nearly all voters in New Caledonia opted to remain a French territory. At the time, however, very few French territories had independence movements and only one colony—Guinea—voted for independence. In New Caledonia, the political party Caledonian Union had a majority in the Territorial Assembly and while it sought greater autonomy from Paris, it argued this was best achieved within a constitutional bond with France. The 1987 referendum on independence was boycotted by the indépendantistes because the French government allowed all people with a residency of more than three years to vote. Considering the large immigration numbers in the 1970s and 1980s, this electorate was bound to vote “no”—and it did. The boycott, and France’s refusal to allow UN observers to verify the voting process, undermined the legitimacy of this referendum, even though it is doubtful the indépendantistes would have obtained a majority.

In the following year, loyalistes, indépendantistes, and the French government negotiated the 1988 Matignon Agreement, which also included the decision to postpone any further referendums for at least a decade. Indépendantistes believed the delay would allow them to better prepare for independence by training people and building Kanak institutions in the newly established provincial governments. Many loyalistes, on the other hand, hoped the delayed referendum would provide time to redress Kanak grievances. The 1998 Nouméa Agreement envisages another referendum on independence before 2018. Polling results throughout 2014 and 2015 rather consistently suggest a majority of the population will still vote “no” to independence.

The second mechanism—continuous negotiations around the constitutional statuses of islands—is particularly conspicuous in New Caledonia. Since 1946, it has had ten different constitutional arrangements, leading to descriptions such as the “institutional yo-yo” and the “waltz of statuses.” ⁵² As the negotiations between loyalistes, indépendantistes, and the French state resulted in the 1998 Nouméa Agreement, they effectively agreed to a process of institutional reform preparing for independence along carefully agreed, detailed steps over a ten-year period. However, several of these steps do not sit well with the French Constitution. For example, the Nouméa Agreement disallows citizens who arrived in New Caledonia after 1998 to vote in the referendum; it also enforces regulations that curtail the employment of non-resident citizens; and it transfers more powers to the three Provincial Assemblies and the New Caledonian Congress than any other local or regional authority in France, while also acknowledging certain powers to customary authorities. As a consequence, the French Parliament was forced to add an “Article XIII” to France’s Constitution, detailing New Caledonia’s unique sui generis status. ⁵³

The 2014 elections have seen the three pro-independence parties progress toward 25 seats, while the opposing three loyalist parties have 29 seats in New Caledonia’s Congress. However, many people on both sides acknowledge that under current circumstances, a referendum on independence is unlikely to resolve the tensions constructively. It is therefore not surprising there are now reports that some leaders on both sides are discussing the idea of “a third agreement”—yet another unique constitutional arrangement. A group of visiting French senators gave further weight to this idea when they reported in December 2014 that a third accord might be appropriate. ⁵⁴

The third mechanism in the relation between metropole and non-self-governing islands that indicates Islandian sovereignty—“getting away with” bending metropolitan rules and regulations—is equally prominent in New Caledonia. For example, New Caledonian civil servants took the New Caledonia government to court in 2011 over alleged breaches of their rights to organize in the workplace. Ultimately, the matter ended up before France’s Constitutional Council who ruled the New Caledonia government should provide regulations regarding the right to organize in the workplace by January 2013. Until now (May 2016), the New Caledonia government has effectively ignored the court’s ruling and matters remain unresolved. ⁵⁵ Similarly, the New Caledonia government is legally required to uphold the French Charter for the Environment of 2004. However, when local authorities in New Caledonia duly tightened regulations in the consent process for the use of agro-chemicals and the approval process for phytosanitary products in agriculture, New Caledonia’s Administrative Tribunal in 2008 annulled these local regulations. They did so because these regulations were deemed inappropriate. As a consequence, New Caledonia does not meet France’s environmental standards. ⁵⁶

The above examples refer to New Caledonia’s domestic sphere, but its government also gets away with bending regulations in an international sphere, often by using metropolitan France as a shield. For example, New Caledonia breaches Kyoto targets for CO₂ emissions in a dramatic fashion using a smart “legalistic sleight of hand.” ⁵⁷ Similarly, New Caledonia gets away with bending WTO rules. On the one hand, its businesses benefit from duty-free and quota-free access to the European Union (EU) markets, while on the other hand these businesses are protected from competition by an array of import tariffs that average about 29 percent. ⁵⁸ Obviously, this lack of reciprocity could be challenged. However, because New Caledonia is not a WTO member, any challenger to New Caledonia’s tariffs would have to direct itself to France and that would quite possibly have much wider ramifications. France and EU member states are New Caledonia’s largest trading partners, providing 36 percent of imports and taking 29 percent of exports. The remaining trade is distributed more or less equally over several countries in the region. ⁵⁹ Several of these countries could complain about New Caledonia’s tariffs in the WTO, but according to a prominent law firm in New Caledonia, none has ever done so because legal and political costs probably outweigh potential trade benefits. ⁶⁰

The fourth mechanism—financial transfers from the metropole making up for shortfalls in an island’s domestic revenues—is also evident in New Caledonia. These transfers arrive via two channels. One channel comprises transfers from France’s treasury for recurrent public budgets in New Caledonia. A significant portion of this is expenditure in the education and health sectors, including salaries as well as education materials and drugs. It also includes wages and associated costs for other public services such as the military, the police, and expatriate civil servants (i.e., staff recruited in metropolitan France). Efforts to calculate the exact volumes of these transfers are hampered by the fact that these transfers appear under different, and not always clear, headings in the balance of payments. For example, the transfers covering the salaries and allowances of expatriate civil servants are recorded as income for the New Caledonia government. Over the last two decades, transfers from the metropolitan treasury have always constituted an important, if fluctuating, part of New Caledonia’s public budget. Since 1997, the lowest percentage of income from the metropole was 34 percent in 2007 and the highest was 47 percent in 2000. ⁶¹

The second channel for metropolitan transfers includes financial support and tax exemptions for local development projects for the “rebalancing” of New Caledonia’s economic structures. The Matignon and Nouméa agreements included funding arrangements from which local authorities finance projects in social housing, public works, transport, education, and health infrastructure. Between 1990 and 2013, the three provinces and the 33 municipalities secured about $2.2 billion, averaging $86 million per year. ⁶² Moreover, there are also metropolitan transfers to rebalance the economic inequalities between the Kanak-dominated North Province and Loyalty Islands Province and, on the other hand, the European-dominated South Province. One specific transfer is a one-off payment to support the development of the nickel mining sector in the North Province. In calculations for the French Senate, it is estimated the French state paid a total of $820 million in tax exemptions, loans, and compensations to the mining companies involved. ⁶³ Another metropolitan transfer includes tax benefits for investments made by metropolitan private companies in New Caledonia. The volume of these tax benefits is hard to determine because they are not recorded if they are under certain thresholds. While acknowledging that New Caledonia’s annual accounts do not include all metropolitan transfers, the above outlined transfers clearly illustrate that those transfers are significant. From what is recorded in the annual accounts, the French state’s expenditure in New Caledonia reached $1.72 billion in 2013, approximately $6,800 per capita. ⁶⁴

Finally, the fifth mechanism suggesting Islandian sovereignty—islands signing international treaties and agreements that may be uncomfortable to metropolitan interests—is becoming increasingly apparent in New Caledonia. The provincial governments in particular have signed agreements that not only bring international players into the domestic sphere, but also make the provincial governments international players themselves. In the domestic sphere, for example, both the indépendantiste dominated North Province and the loyaliste dominated South Province have successfully courted non-French corporations to invest in the development of the nickel mining industry, thus opening up a field that hitherto had been the exclusive monopoly of French corporations. In the South Province, a new hydro-metallurgic plant has been established that is presently owned by the Brazilian Vale Corporation (69 percent), a Japanese conglomerate (21 percent), and New Caledonia’s three provinces (10 percent). Politically even more significant has been the establishment of a pyro-metallurgic nickel plant in the North Province—the cornerstone of the economic rebalancing outlined above. Here the North Province has a 51 percent share in the nickel plant in cooperation with South Korean and Chinese corporations as shareholders. ⁶⁵

In the international sphere, New Caledonia’s local authorities have also signed economic and political agreements that have raised concerns in Paris. For example, in 2012, the North Province purchased a majority share in a nickel processing plant in the Chinese province of Guanxi. This has been labelled “a feat of strength,” as the North Province’s negotiators secured a legal exception from the Chinese government to laws prohibiting majority ownership by a foreign company in China’s metallurgic sector. ⁶⁶ A political agreement that continuously raises eyebrows in Paris is the membership of the leading indépendantiste party (i.e., the FLNKS, the Kanak Socialist National Liberation Front) in the inter-governmental regional body called the Melanesian Spearhead Group. This Spearhead Group brings together the governments of Vanuatu, Fiji, Papua New Guinea, and the Solomon Islands, representing the vast majority of the population and economic resources in the Pacific region. The fact that the FLNKS represents New Caledonia, and not the government of New Caledonia, is a constant reminder of the fact that the Spearhead Group was established at the height of violent civil conflict in New Caledonia in the 1980s, primarily in support of the independence movement. Since the late 1990s, the group has successfully expanded its political and economic clout in the region and as the group’s relevance grows, so does the uneasiness of metropolitan France and the New Caledonian loyalistes at their exclusion in such agreements. ⁶⁷

On reflection, searching out and securing agreements that are contrary to metropolitan interests may be precisely what Tjibaou meant in the 1980s when he defined sovereignty as “the power to negotiate interdependencies.” Today’s Kanak leaders may use the agreements with China and the Melanesian Spearhead Group quite strategically, at a time when many Western countries worry about China’s growing presence in the Pacific. In addition, the regional powers Australia and New Zealand are uncertain how to respond to the growing political and economic influence of the Melanesian Spearhead Group.

Conclusions

None of today’s 40-odd non-self-governing islands that have a constitutional arrangement with a colonial metropole seem to strive for political independence in a classic, Westphalian definition. In fact, since the early 1980s none of these islands has voted “yes” when presented with a choice in an independence referendum. The diverse debates over the last two decades—comprising historical critiques, the effects of globalization, and Indigenous perspectives—suggest that the idea of the Westphalian sovereign state may be waning or undergoing fundamental modifications. Islands, particularly those holding constitutional ties to their metropoles, are actively and creatively modifying the moulds of Westphalian sovereignty, and so contours of an Islandian sovereignty may be emerging.

In this paper, we have presented a review of case studies to show five mechanisms that characterize the dynamics of the relationship between non-self-governing islands and their metropoles. These include saying “no” to Westphalian independence, negotiating continuously over ever-changing constitutional statuses, getting away with bending metropolitan regulations, complementing short-falls in domestic tax revenues by metropolitan transfers into the islands’ public budgets, and signing agreements that are beneficial to the islands but may be uncomfortable to the metropole. A detailed case study of New Caledonia illustrated the existence of these mechanisms.

We believe more case-study testing of the existence of these five mechanisms in specific non-self-governing islands is needed— not only to determine the extent of the reliability of our hypothesis that a specific Islandian sovereignty is emerging, but also to move beyond the characterization of its features and start exploring why it happens. What drives these never-ending negotiations? Can we ascertain the extent to which they differ from other negotiations over decentralization or asymmetrical federalism?

The case study of New Caledonia also shows that depicting islands—particularly non-self-governing islands—as dependent and vulnerable is no longer convincing. A more appropriate depiction would show them as astute and active agents who lever all their resources, including their metropolitan contacts, to connect with third parties and access additional resources to increase their choices and overall resource base. In addition, New Caledonia’s Indigenous Kanak are playing a leading role in negotiating the constitutional implications of Indigenous sovereignty in a French context as well as managing the multi-billion-dollar economic opportunities of “the fine line between autonomy and sovereignty.” Kanak leader Tjibaou was far-sighted when he talked about the negotiated character of sovereignty, defining it as “the right and the power to negotiate interdependencies.” Sovereignty for non-self-governing islands is not so much expressed in concluding independence negotiations with their respective metropoles, but in the ability to sustain negotiations and relations with their metropole—even if, or especially when, the metropole appears not too keen on continuing.