The High Commissioner of the Republic of France in New Caledonia (the High Commissioner) referred a application to the Administrative Court of New Caledonia for annulment of the entire Environmental Code (the Code) of the Province of the Loyalty Islands (the Province), which Code sought to regulate access to, and use of, customary lands and the public maritime domain, on the basis that it was ultra vires. The Administrative Court granted this application. The matter was referred by the Province to the Administrative Court of Appeal of Paris.

Held: Only arts 232-3 and 232-5 of the Code are cancelled insofar as they apply to foreign vessels; and in art 235-4, the word 'conforme' is cancelled. The surplus of the conclusions of the summary proceedings of the High Commissioner is rejected. The State (Minister of the Interior and Overseas Territories) is to pay the Province a sum of EUR 1,200 pursuant to the provisions of art L 761-1 of the Code of Administrative Justice. This judgment is to be notified to the Province and to the State.

The Provinces of New Caledonia are competent, with a view to preserving the environment, to adopt where necessary regulations subjecting certain activities likely to to be exercised in the maritime public domain, in particular of an economic nature, to a system of declaration or authorisation. The provisions of arts 232-2 to 232-5, and 232-7 of the Code were thus not adopted incompetently.

Article 235-4 of the Code provides:

The decision to suspend an access authorisation and/or activity shall mention the conditions for lifting the suspension decision. It may be lifted by the decision of the President of the Provincial Assembly, after the assent [après avis conforme] of the customary authorities concerned ... .

While no provision of the Organic Law prohibits a deliberation of a Provincial Assembly from imposing consultation with the customary authorities concerned before the taking of an individual decision by its President, they do not, however, authorise the Assembly to make the President's exercise of his power to carry out the deliberations of the Assembly and to manage the provincial public domain subject to the assent of these same authorities. Consequently, in art 235-4 of the Code, the word 'conforme' must be cancelled.

The High Commissioner further maintains that, by instituting a system of prior authorisation for the movement of vessels in the maritime public domain of the Province, the Code disregards the stipulations of UNCLOS relating to the right of innocent passage of foreign ships.

Article 232-3 of the Code provides that 'any access by ships to the provincial maritime public domain is subject to declaration or authorisation', and stipulates that ships must communicate their itinerary and manifest to the port authorities for each movement. Article 232-5 of the Code provides that all vessels, other than vessels for the regular transport of people and goods between the mainland and the islands, and between the islands, and cruise ships, are subject to authorisation. The request for authorisation is to be filed electronically, accompanied by the production of 'a navigation map, a declaration of the state of the ship, of the goods transported' and of the precise 'number of people on board'. The authorisation will be issued within one month.

Article 17 of UNCLOS, which has direct effect in France, and which does not include any restriction as to its application in New Caledonia, provides: 'Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.' Article 24 of UNCLOS provides:

Duties of the coastal State

1. The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not:

(a) impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; ...

These provisions thus guarantee a right of innocent passage to foreign ships, and not only a tolerance, without prejudice to the measures provided for in art 21 of UNCLOS, which are likely to be implemented by the coastal State in the following areas:

(a) the safety of navigation and the regulation of maritime traffic; ...

(d) the conservation of the living resources of the sea;

(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;

(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; ...

Article 8 of Ordinance No 2016-1687 of 8 December 2016 relating to maritime areas under the sovereignty or jurisdiction of the French Republic, applicable in New Caledonia by virtue of art 55 of the same law, further provides that: 'The right of innocent passage in the territorial sea is governed by Articles L. 5211-1 to L. 5211-5 of the Transport Code.'

The system of prior authorisation for the movement of vessels in the maritime public domain of the Province established by the Code must, in view of the administrative constraints which it imposes on foreign vessels, be regarded as having the consequence of hindering the innocent passage of foreign ships in the territorial sea, and of imposing on them obligations having the effect of preventing or restricting the exercise of this right of innocent passage within the meaning and application of art 24 of UNCLOS.

The High Commissioner is therefore justified in maintaining that the provisions of arts 232-3 and 232-5 of the Code are unlawful insofar as they apply to foreign vessels, and they must, to this extent, be cancelled.