A/HRC/18/35/Add.6 customary criminal justice system – including the use of corporal punishment, lack of provisions for the accused to speak in his/her own defence and collective punishment – are not permitted under French penal law and are viewed as inconsistent with France’s human rights obligations. Furthermore, execution of punishments by Kanak authorities under customary law is, in some cases, itself a crime under French penal law. According to information received by the Special Rapporteur, this has created a kind of legal vacuum, whereby the French criminal justice system is viewed by customary authorities as insufficient to correct Kanak offenders, but at the same time, the exercise of customary criminal justice is not permitted under French law. Moreover, as with civil matters, criminal offences are often, as a matter of practice, handled by customary chiefs who follow customary criminal procedure and sentencing. B. Kanak participation in the political arena and governance 24. Self-determination for indigenous peoples entails, in addition to maintaining their own autonomous institutions of authority, the right to participate fully in the life of the State, as affirmed by the Declaration on the Rights of Indigenous Peoples (art. 5). The Nouméa Accord provides for the establishment of a Congress of New Caledonia made up of representatives of the three Provincial Assemblies, with 59 per cent of representatives from South Province, 28 per cent from North Province and 13 per cent from Loyalty Islands Province, reflecting the population distribution.8 In total, Kanak representatives make up roughly 48 per cent of Congress. It is apparent that most Kanaks support proindependence political parties affiliated with FLNKS, the national liberation movement of the 1970s and 1980s, while most New Caledonians of European descent favour loyalist or non-independist parties. Under the Accord, Congress appoints the Government of New Caledonia, also with proportionate representation, led by a chief executive as President of the Government of New Caledonia. 25. Under the framework of the Nouméa Accord, Kanaks also have broader participation in the political life of the territory through the Customary Senate, an advisory body made up of 16 senators, two from each of the eight customary areas of New Caledonia.9 Congress must consult the Customary Senate on all issues affecting Kanak identity, although in the event of a stalemate between the two bodies, the position of Congress shall prevail.10 The Customary Senate has the power to propose and call for a vote on new laws related to Kanak identity. 11 In addition, members of the Customary Senate sit on the Economic and Social Council, an advisory body that must be consulted whenever Congress debates any issues of economic or social character. 12 26. While the Special Rapporteur heard a great deal of support for the Customary Senate, he also heard broad frustration that there is no obligation on the part of Congress to take up proposals made by the Customary Senate, that it lacks binding decision-making powers, and that its ability to support activities is hampered by limited funding. Additionally, Kanak representatives expressed concern that the influence of the Customary 8 9 10 11 12 See Government of New Caledonia, Composition of Congress available at http://www.gouv.nc/portal/page/portal/gouv/institutions/congres/composition_congres. Senators are selected according to the customs of their constituency, except for the initial selection in 2005, when they were all selected by popular vote. See Organic law no. 99-209 of 19 March 1999, concerning New Caledonia, art. 137. Nouméa Accord, art. 2.1.4(a). Organic law no. 99-209 (1999), art. 145. Nouméa Accord, art. 2.1.4(b). 9