The New Caledonian issue is an issue of empire

France cheated to create empire, and it is cheating to preserve it

There is a common misconception in the common law countries (such as England & Wales, the United States of America, Canada, Australia) that the law is made by the judges. Judge-made law, or case law, allied to the ideas of precedent and stare decisis rattle around to conclude in the imprecision of principles that float hither and thither in the air as long-established or existing since time immemorial (which is to say, after the year 1189), whose practical implementation is left to wizened old men and women sitting on high benches, wearing half-moon glasses and horse-hair wigs.

In the continent of Europe, a contrary view prevails: the law is not made by judges, but by le législateur (de wetgever, der Gesetzgeber, and so on, depending on where exactly the law is being made), the task of the bench (without horse-hair, this time) being to determine the law. It’s a subtle, but important, distinction; and it is a fallacy. In today’s world, judges neither make law nor find law. They do as they are told.

“‘Judge-made’ is a phrase the realists use. In fact it is more often lawyer-made. Although it gains the force of law only through the rulings of the courts, a new idea originates usually in an advocate’s head. This is not because lawyers lose intelligence when they ascend to the bench. It is because the air is thinner at that elevation; there is not the rich atmosphere of the need to win. The lawyer-as-champion faced with adverse precedent is apt to respond with more imagination than the lawyer-as-arbiter sitting neutrally in judgment. Not that judges contribute no creative thought. They contribute much; but not as much.” (Charles Rembar: The Law of the Land.)

Take the biggest democracy in the world: India. It is currently in the throes of a general election and, come June, its prime minister will be reconfirmed as Narendra Modi. That’s not a prediction, it’s a certainty, at least insofar as a posit that the sun will rise in the east and set in the west is a prediction, for in that there is a tinge more doubt than that Mr Modi will lose the election. His path to absolute and crushing power, allied to strong suspicions of the BJP’s involvement in multiple disappearances and deaths, in respect of which, for our present purposes, no person of responsibility has been condemned by a court of law, has been ably secured over a good number of years by dint of mechanisms that ensure the courts do as they are told (called corruption and threats). Whether the American Supreme Court does as it is told or simply as it is bidden, what it does is manifestly done to the satisfaction of a certain wing of the political debate, with certain of its members manifestly having enjoyed luxuriant hospitality at the hands of parties with an indirect interest in the matters on which the court has ruled.

But of the US and India I did not wish to speak today, but rather of a quite different part of the world, one that is precisely equidistant between the former two: New Caledonia. In terms of what its name means, New Caledonia ought to be the same place as Nova Scotia, since the two names mean exactly the same thing: New Scotland (broadly, the names Scotia and Caledonia were applied by Imperial Rome to the portion of Britain north of the Antonine Wall, roughly the line across Scotland from Glasgow to Edinburgh, and now serve as romantic references to Scotland as a whole.) The reason why New Caledonia is presently a part of France is due to colonial conquest. Having been discovered by James Cook and claimed for the British Empire, it was pinched by the French in the mid-19th century, and has remained French ever since.

French colonies have either quietly acquiesced in their French affiliations, such as in Guadeloupe, Martinique (in the Caribbean) and St Pierre et Miquelon (all the way north, along Canada, or so I’m reliably informed), or have violently thrown off French hegemony (as in Haiti or Algeria), or are within France’s sphere without being under French hegemony (as in Monte Carlo—a relationship that one can broadly liken to that of a mobster and his moll).

New Caledonia is described as a sui generis collectivity. Sui generis (which means in a class of its own) means it is special, and one should always be wary of things that are special, a word that can be construed variously as crazy, savage, destined to be murdered (as in Sonderbehandlung—the euphemism used when Jews were dispatched to gas chambers by the SS) or ... something we don’t know anything about or don’t know what to do with.

As with any colony (aside from Haiti), one is invariably presented with a mix of indigenous people and colonisers. Anyone else who is there, is there by invitation of the first two groups, or is an invader to both of them. Haiti is different in that the indigenous people of the island of Hispaniola were wiped out by smallpox (imported by the European colonialists) or slavery, and today’s Haitian population is exclusively born of the folk of African origin who were imported as slaves by the French colonialists before the French were expelled 1791-1804.

And what is currently happening in New Caledonia is not far removed from what happened in Haiti 220 years ago. It’s different, but not far removed.

Call them as special as you want, colonies are colonies. There’s a large amount of hogwash that is told about crown dependencies, overseas departments, overseas territories, condominiums and whatnot, but when you, as a European nation, have a large if not exclusive say in the affairs of a dot of land on the other side of the globe, it’s a colony. And colonies are there for one of two purposes: as strategic military outposts, and as farmland or mines productive of bounty for the profit of the master nation. (I nearly wrote home country, but where home is situated depends somewhat on your outlook.)

I’m thinking very hard but I give up: I cannot think of a single colony that a colonial master ever, ever, in the history of mankind, packed his bags and voluntarily went back to HIS home. Colonies may well be where the Europeans, be they einheimisch or ausgewandert, spend their summer holidays these days, but they are not places that their conquerors have ever considered for a stay that was anything but permanent. And that is certainly the case with New Caledonia—it ain’t that special for the case to be otherwise.

So, imagine if the rule of law, by which the future of the country is, by virtue of its constitution, determinable by the votes of the people, as to whether it remains under the panoply of the French Empire (a term I use just to avoid any misconception as to what is going on here) or ventures forth alone over the stormy seas of a Pacific Ocean embattled by great superpowers. Let the people decide!

Independence for New Caledonia has, it is true, been rejected in the past, three times no less (2018, 2020 and 2021). In each case, majorities voted to remain French: 58 per cent, 53 per cent and 96 per cent. The third, high, figure was the result of a boycott by the pro-independence group, who had asked for a delay in the referendum in the post-pandemic world. France refused. It didn’t refuse for no reason.

The indigenous population are the Kanaks. It’s their home. Most other ethnic peoples in New Caledonia are there because they came from France, or they came for the nickel industry (surprise, surprise, there are large deposits in the island group) and there arrives a point at which one needs to examine what is an incomer and what is a native. Namibia, a former German colony in southwest Africa, wrangles with this problem even today. Its population is split between native Nam and Herero tribes and white settlers, whose families have been there since the German colonial times ended in 1919. The whites are as African as the blacks, of that there is little doubt in my conception. The problem lies in the fact that most of the productive farmland is owned by the whites, with the blacks still doing most of the spadework. And it is that fact which is hard to escape when it comes to judging colonies, because it means that legal standings and judicial positions are but paper niceties that mask a hard reality on the ground: the whites are the masters, and the blacks are the lackeys.

Having secured their 96 per cent majority for French rule in 2021, what is it that the French special authorities fear in New Caledonia? Well, what they fear is the drop in popularity for their rule between 2018 and 2020. Because, if that drops by a further five per cent, they will lose New Caledonia.

No one is asking judges in the special territory to determine what the law is, nor to make a finding on what the law will be. What the French in Paris want is for the judges to have no choice but to find a law that Paris itself has determined, which it is doing by gerrymandering the qualifications for voting. Paris is altering the constitution of a country on the other side of the world.

Nothing will incite violence more readily than (a) hurt pride and (b) stolen land. France took the islands in 1858, and it took its men to fight its wars, it has taken its mineral resources and it has ruled with iron hands over its peoples. It is time for the French Empire to pack its bags and go home, for there is law in New Caledonia, but no justice. Tell the judges to make justice, not law.

Image: Two Kanak warriors posing with penis gourds and spears, around 1880.