17 January 2010

Who Constitutes “The People” of a Non Self-Governing Territory?

The subject of just who constitutes “the people” in the remaining non self-governing territories and in other non-independent countries continues to be central to confirming the right to self-determination, especially in view of increasing demographic diversity in many of these societies. The issue has been addressed to varying degrees in a number of the territories concerned, including the US-administered territories in the Pacific. Guam, for example, has already legislated a future self-determination referendum for the indigenous native Chamoru people, whilst the Northern Mariana Islands Commonwealth Covenant contains provisions protecting land ownership for the indigenous native inhabitants. The traditional rights system in American Samoa affirming similar powers is further indication.

In the Caribbean, the draft constitution adopted by the Fifth Constitutional Convention of the US Virgin Islands last year contains provisions which would recognise the native population which is comprised of mainly African descendents, and which was formally recognised by the US in the Treaty of Cession when the islands were sold in 1917 from one colonial power (Denmark) to the next (US). The constitutions of most of the British-administered territories in the Caribbean are perhaps the clearest in identifying “the people.” An historical examination of political and cultural identity in Caribbean non self-governing territories was published in a scholarly article in the 2009 edition of Caribbean Perspectives, a Journal of the Eastern Caribbean Centre of the University of the Virgin Islands, and should be featured in OTR shortly.

This question of who constitutes the people in non self-governing territories also has been fundamental in the self-determination process underway in French-administered Nouvelle-Calédonie (New Caledonia), a Melanisian non-independent country in the Pacific region. Analyst Sarimin J. Boengkih of Nouvelle-Calédonie (New Caledonia) provides an historical analysis of these often complex issues in that territory. The article, which follows, was originally written in follow-up to the conclusion of an Address delivered at the 2009 official commemoration of the 161st Anniversary of Emancipation Day in the former Danish West Indies by Governance Expert Dr. Carlyle Corbin.

Who Constitutes “The People?" - The Case of Nouvelle-Calédonie (New Caledonia)
By Sarimin J. Boengkih

I wish to share some thoughts on the matter of who constitutes “the people”. Of course and from a general point of view, it seems that one may refer to the United Nations document, “The Right to Self-Determination, Implementation of United Nations Resolutions” (U.N. Document E/CN.4/Sub.2/405/Rev.1,), a study by Hector Gros Espiell, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities appointed in 1974, especially paragraphs 42-45 C (Meaning of the expression “right of peoples under colonial and alien domination to self-determination”, pages 5 and 6).

If during the decolonisation era of the 1960s and 1970s, in every one’s mind there was no question about who constitutes the people as the decolonisation process was taking place in Africa and in the Pacific where the colonies were populated with the indigenous peoples controlled by a minority of expatriates and settlers.

Each Territory of the United Nations list has a different recent history, therefore my comment will focus on the situation in New Caledonia, under French rules, in effect one of Europe’s last remaining colonies in the Pacific region. During the last four decades, the Territory’s population has increased with a big help from migrants that today claim to also constitute the “people” and should be granted the right to participate in the future referendum on self-determination, as any colonised people. In another way, the migrants claim to be granted a new status. They moved from their ancestors‘ land in France to a Territory of the UN list of Non Self-Governing Territories, therefore they became colonised people. This cannot be accepted.

Since France took over the main island in 1853, the Kanak people, the indigenous people of New Caledonia, never stopped the struggle against colonisation and the occupation of its country by a foreign force. The path to colonial settlement has been paved with uprisings, bloody battles, fraternal killings, forced relocation of people on “native reserves”, and segregation laws until 1946 when French citizenship was granted to all Kanaks.

But less than thirty years later, the call for Kanak independence was revived, and the French government reacted with new policies to open the territory to “a massive immigration of French citizens from metropolitan France and French Territories to counter the threat to the French presence in New Caledonia constituted by the nationalistic claim of the indigenous population which could eventually be supported by possible allies from ethnic communities of the Pacific” (French Prime minister Pierre Mesmer in a letter to his Minister for Overseas Departments and territories in July 1972). In 1974, the outcomes of such immigration policies are clear : from representing 51.9% of the total population in 1951, the Kanak dropped down to 40.8% of the total population (1974 census). European settlers and new migrants make 40%, while minorities made of former indentured workers originated from former European colonies (Ducth Indies, Indochina, India) or Japan and from other French Territories make up 20%.

In 1983, talks between the French government, the pro-Kanak independence parties and the settlers ended with the official recognition by the French government of the innate and active rights of the Kanak people to independence and the rights of “the victims of History” – those non-indigenous New Caledonians who were forced by one mean or another to settle in the Territory to take part in the self-determination election.

On December 2, 1986, New Caledonia was (re-)enlisted on the United Nations decolonisation list as a Non Self-Governing Territory within the meaning of the Charter (Resolution 41/41/A). In that Resolution the General Assembly does not precisely say who constitutes “the people.” But the administering power is reminded (of) Resolution 35/118 that calls on “States parties to take the necessary measures to discourage or prevent the systematic influx of outside immigrants and settlers into Territories under colonial domination, which disrupts the demographic compositions of those Territories and may constitute a major obstacle to the genuine exercise of the right to self-determination and independence by the people of those Territories.”

In 1998, France, the pro-independence parties and the settlers’ party signed the Noumea Accord initiating a decolonisation process that should lead to a referendum on self-determination sometime between 2014 and 2019. The Noumea Accord starts with a Preamble in which the indigenous Kanak people is recognised as a people distinct from the French people. Article 4 of the Preamble says “ Decolonisation is the way to rebuild a lasting social bond between the communities living in New Caledonia today, by enabling the Kanak people to establish new relations with France, reflecting the realities of our time.” But the immigration from metropolitan France and from French Overseas Territories and Departments never stopped.

In 2000, the settlers’ party started a political controversy pretending that the Noumea Accord defined the electorate body of voters to participate in the provincial elections, and therefore in the self-determination referendum, to include the migrants that settled in the Territory after 1998. On the contrary, the pro-independence parties and the French government said the accord limited the voters to those residing in New Caledonia ten years prior to 1998. In 2007, the French Parliament passed a law confirming the limitation of the electoral body.

The settlers’ party Rassemblement-UMP keeps claiming that 18,000 French citizens that settled in the Territory since should be granted the right to participate in the referendum on self-determination. Despite the French Parliament’s 2007 decision, the two elected members to the French National Assembly representing New Caledonia are still campaigning, pretending that the basic voting rights of French citizens are being violated.

When considering that these 18,000 French citizens are entrepreneurs or highly qualified employees of the private sector, one can easily understand how much they can already weigh as obstacles to a genuine exercise of the right to self-determination and independence by the people of the Territory. Therefore they cannot be considered as part of the people.

It is obvious that all people living in the Territory at the time of the self-determination referendum are not “concerned” by the future of the Territory in which they have neither family interests nor determined economic interests that tie them to the past and heighten their awareness in the future of the Territory.