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  • Print publication year: 2019
  • Online publication date: November 2019

New Caledonia: Legal Pluralism and Diversity of Interpretation of Fundamental Rights (Common Law, Customary Law, Reservation Related to Indigenous Rights): The Example of New Caledonia

Summary

The subject of this chapter is not specific to a territory. But it is extremely complex, and it is easier to consider it through the example of New Caledonia. To understand this complexity the very special status of New Caledonia must first be explained. It is a Pacific island a few hours by plane from New Zealand and Australia, but it is a French territory. However, New Caledonia has a sui generis legal status. Its operation is regulated directly by the French Constitution and by an organic law of 19 March 1999. It is still a part of France, but it is autonomous in many respects and it will be more and more autonomous as a gradual transfer of state powers to New Caledonia is underway. Since 1 July 2013, New Caledonia is especially competent in civil law, in commercial law and in the rules governing civil status. The Caledonian Congress is competent to enact its own laws, which are called country laws, in almost all areas of civil law. Thus, reforms passed by the French national parliament since 1 July 2013 do not apply in New Caledonia. In other words, New Caledonia is still part of the French territory but does not always have the same legislation as the rest of France.

Furthermore, this singularity is not restrained to a difference in civil law. Another item must also be taken into account in order to understand the legal difficulties existing in New Caledonia. Two personal statuses exist and each one is governed by a different legal corpus. The first one is called ordinary civil status and is regulated by common civil law. The second one is called customary civil status and is regulated by the Kanak custom.

This notion of status should not be understood in a strict sense. When a person has the customary civil status, all of his/her ‘civil rights’ are governed by the Kanak custom. Not only is the personal status such as marriage, parentage, divorce concerned … but the entire status which includes inheritance, property, contracts … in short, everything.

Legal pluralism therefore exists at different levels in New Caledonia. First, at the level of civil law. Civil law is not always the same as in metropolitan France, it depends on the reforms which have been adopted in metropolitan France and New Caledonia since 1 July 2013.