The French Republic’s (In)Divisibility

On Thursday 28 September 2023, French President Emmanuel Macron called, in front of the Corsican Assembly, for Corsica to be given ‘autonomy within the Republic’. The French government and Corsican elected representatives have six months to produce a text which, if approved by the Corsican Assembly, will serve as the basis for an amendment to the French Constitution. Nonetheless, the political reactivation of an old constitutional principle might get in the way. In particular, conservative parliamentarians can be expected to invoke the principle of the indivisibility of the Republic in the constitutional amendment process. Despite the principle’s long-standing presence in republican constitutional history, we argue that it cannot serve as a constitutional argument against Corsican autonomy, both because the Constitution allows amendments despite contradictory principles and because it has always tolerated a certain degree of divisibility.

Corsican Autonomy: Its History and Status

The prospect of autonomy status for Corsica is a small but remarkable step in a long constitutional and political struggle between French centralists and Corsican autonomy – and even independence – aspirations.

A broader Corsican independence movement emerged in the 1960s, when French people who had been residents of Algeria for generations (the so-called pieds-noirs) were forced to leave the country after Algerian independence and settled in Corsica. Fearing land grabbing, Corsicans called for ‘corsification’ of the island’s economy. In 1998, the murder of French prefect Claude Érignac by a Corsican marked the culmination of growing tensions between Corsica and the French government. Nevertheless, this event led most Corsican politicians to reconsider their political support for the independence movement, committing themselves instead to achieving greater autonomy for Corsica through a legal process within the French Republic.

Today, the pro-independence movement is more of a minority, while the majority are calling for the island’s legal autonomy. From an administrative point of view, Corsica already has a special status among the various territorial collectivities of the Republic. Since 2018, the term ‘Corsican Collectivity’ has been used instead of the neutral terms of ‘territorial collectivity’ to underline Corsica’s special administrative status. However, this status has few practical consequences. It grants Corsica its own deliberative body – the Corsican Assembly, elected by universal suffrage, as well as an Executive Council made up of a president and ten members elected by the Assembly. Corsica differs from other French territorial collectivities (Municipalities, Regions, Departments, e.g. Paris or Marseille) in that there is a clearer demarcation between the elected deliberative body and the executive. For example, the Corsican Assembly, on the proposal of the Executive Council, can decide on the construction of new housing and the distribution of financial aid granted by the French State. It approves the general budget and exercises administrative control over the Corsican Executive Council. However, it cannot pass its own laws.

The New Caledonian Model as a Blueprint?

If Corsica’s autonomy were to be strengthened following Macron’s announcement, there are various different models under the current constitutional settlement that could be followed.

New Caledonia possesses the most extensive autonomy status following the 1998 ‘Nouméa Accord’ which added a new section to the Constitution (Art. 76 and 77). Its implementing law provides for New Caledonia to have its own political institutions, including a Congress and a Government, and lays the foundations for a New Caledonian citizenship distinct from French nationality. New Caledonia is also free to determine its identity signs alongside the national emblem and the symbols of the Republic. Yet, the most notable aspect of New Caledonian autonomy is  the long list of legislative powers that were transferred to its Congress. Thus, its Congress can pass tax laws and can lay down rules on access to employment for foreign nationals, determine trade union law and social security law. In the areas of its competences, the Congress may even authorise the President of the New Caledonian Government to negotiate agreements with one or more States.

Even more, New Caledonian autonomy allows for a possible evolution towards independence, with the Nouméa Accord framing New Caledonia’s autonomy as a form of transitional status on the way to realising its own sovereign existence. Recognition of New Caledonia’s special status led to the organization of three referenda between 2018 and 2021 in which New Caledonians had to decide whether they wished to remain in or leave the French Republic. However, in the last referendum, which confirmed the two previous results of remaining in the Republic, not even half of those eligible to vote participated.

A less radical alternative would be to grant an autonomous status for Corsica similar to that of the Overseas Collectivities. This would require, at the very least, that certain legislative powers be transferred to Corsica, thus going beyond mere free administration. The Corsican Assembly would then have the power to pass its own laws. A ‘minimal transfer’ could take the form of a ‘power of adaptation’ of French laws to Corsican specificities. This corresponds to a demand of the moderate right-wing opposition in the Corsican Assembly and is already part of the Constitution with regards to the status of French Overseas Collectivities.

For his part, President Macron has remained very vague about a transfer of legislative powers to Corsica’s Assembly. He simply spoke out in favour of recognizing the specific characteristics of the Corsican community: a historical, linguistic and cultural island community. This could be done by improving the recognition of bilingualism, including by encouraging the learning of Corsican at school and in the public arena – without Corsican becoming a second official language on the island. Such a move would be in line with a more general, recent trend to protect regional languages as France’s ‘national treasure and linguistic heritage’. However, this would be far from a real recognition of an autonomous status for Corsica.

France as an Indivisible Republic?

Notably, the recognition of autonomy aspirations of a region that is considered part of the French metropolitan territory would amount to a real paradigm shift. Thus, no French region on the European continent has been granted autonomous legislative status, be it an island or mainland. However, even if the French government and the Corsican Assembly can agree on the details in a joint bill, for the proposal to take effect it must also clear the hurdle of the constitutional amendment procedure. Yet, there is a real risk that an old, maybe useless [p. 937], constitutional principle will get in the way.

According to article 89 § 2 of the Constitution, an amendment must be passed by the two Houses in identical terms and then be approved by referendum. However, if the President, on the proposal of the Prime Minister, introduces the constitution-amending law to Parliament, a referendum is not mandatory (art. 89 § 3). Under the Fifth Republic, only one referendum was held under article 89 to reduce the presidential term from seven to five years. In light of this constitutional practice, if the French Government tables a constitutional amendment law with the Corsican Assembly, the procedure will certainly not involve a referendum. Instead, the amendment will need to be approved by the two Houses of Parliament convened in Congress with a three-fifths majority.

However, neither in the Senate nor in the National Assembly does Macron’s party have an absolute majority. While it has a relative majority in the National Assembly, Les Républicains have a relative majority in the Senate. As the latter generally advocate centralism and the ‘unity’ of the Republic, they are likely to oppose any constitutional amendment that grants Corsica more autonomy. This not only concerns the idea of modelling Corsica’s autonomy on that of New Caledonia – the chairman of Les Républicains has already made it clear that he believes this would lead to a dead end because the question of independence would naturally arise. But even the transfer or recognition of lesser competences is unlikely to pass because of concerns that it would open the door to a quasi-federal state, which conservative French politicians reject.

Les Républicains will likely rely on the principle of the indivisibility of the Republic as a political argument against amending the Constitution. Contained in article 1 of the Constitution which states that France is an indivisible (…) Republic, the principle first appeared in the post-revolutionary Convention from 25 September 1792. It is historically reminiscent of the indivisibility of the sovereign, which was maintained with a few interruptions under the various French republics and in a turbulent colonial context. Yet, it was the French Constitutional Council that revived the principle under the Fifth Republic, particularly in the 90s, when France was faced with new regionalist and autonomist movements.

In 1999, the Council held that the indivisibility of the Republic would preclude the recognition of collective rights for any group defined by a community of origin, culture, language or belief [pts. 5, 6, 10]. At the same time, it derived from article 1 a constitutional principle of ‘unicity’ of the French people and declared both to be guarantees of the equality of citizens before the law. On the ‘Corsican question’ [pt. 92] in particular, it held that a legislative recognition of a ‘Corsican people, a component of the French people’ was contrary to the Constitution, which recognizes only the French people [pt. 13]. In 2001, conservative members of parliament argued before the Council that delegating certain legislative powers to the Corsican territorial collectivity would undermine the indivisibility of the Republic [pt. 19]. The Council censured the legislative provision, briefly and imprecisely noting that the law in question had intervened in an area not covered by the Constitution, which did not provide for a territorial collectivity to be empowered to take measures falling within the scope of the law [pts. 20, 21].

In fact, the Constitutional Council, through its judicial interpretation of the principle of indivisibility, has provided political arguments against an autonomous status for Corsica. Thus, the chairman of Les Républicains in the Senate has already declared that the legal recognition of a Corsican people would be a ‘red line’, leading to separatism.

Political, Not Constitutional Objections

While any draft constitutional amendment is thus likely to face clear political hurdles, there are notably no constitutional objections to its adoption. Thus, the Constitutional Council considers the constituent power to be sovereign. Therefore, there is no objection to the inclusion in the Constitution of new provisions that derogate from an existing constitutional principle [pt. 19]. Of course, it can serve as a constitutional argument for the repeal of an ordinary law, as in the examples above. But: while the principle of the indivisibility of the Republic and the ‘unicity’ of the French people can be politically mobilised, it cannot establish the unconstitutionality of a constitutional amendment law.

While there is no constitutional obstacle to enhancing Corsica’s autonomy, political considerations are likely to play the decisive role for the time being. The various reactions in Metropolitan France show the discord of the indivisible Republic. In fact, Macron’s remarks seem to have given a boost to other autonomy aspirations in France. The president of the region of Brittany has already called for ‘the same thing’ for Brittany in order to free France from ‘passéiste centralism’. As it is unlikely that Macron will agree on the need for other French regions to be ‘freed’, there is a risk that Macron’s announcement will be nothing more than a political promise in a vacuum.