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The Rainbow Warrior Case (Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500)[1] is a widely cited Public International Law arbitration case which addresses and decides upon the legal defences of Force Majeure and Distress to a claim of state responsibility[2]. The case concerns a supposed breach of treaty after the French bombing of the Rainbow Warrior ship docked in Auckland harbour.
The case concluded that France was responsible for the breach of treaty. This responsibility manifested in a repatriation of those at fault in addition to reparations.
Background
Breach of Domestic Criminal Law Facts
On 10 July 1985 French forces sent two secret service agents to bomb the Rainbow Warrior ship docked in Auckland Harbour with the aim of disrupting nuclear testing. During this operation Fernando Periera, a Dutch crew member, was killed. On 10 July, the two secret service agents were arrested by New Zealand authorities. They were consequently arrested and prosecuted for charges of manslaughter and wilful damage to a ship by means of explosive.[3]
Breach of International Law Facts
New Zealand claimed that the attack was, more broadly, a violation of territorial sovereignty. After arbitration proceedings commenced, France and New Zealand came to the agreement that the two secret service agents would be restrained to an Island in French Polynesia for three years. Before this three-year period had elapsed, the female secret service agent became pregnant. France argued that it was unfair to restrain a pregnant woman and advocated for her return. In addition to this, France noted that there were compelling medical reasons for which the male agent should also be sent home. To this, New Zealand agreed reluctantly and upon the condition that the two agents would be returned after medical emergency was no longer imminent. By this time, the three-year period had expired, and France argued that the agents’ sentence had been served. New Zealand argued that not sending the agents back to French Polynesia constituted an original breach of treaty, and that each day this did not happen constituted a continuing breach. The New Zealand government sought reparations in the form of apologies and compensation.[4]
The Case
Fundamental Legal Questions
The Arbitration case concerns two key legal questions.
Firstly, did the health of France’s nationals give rise to the defences of Force Majeure and Distress?
Secondly, were these available defences to a claim of state responsibility based on breach of a treaty even though such defences were not regarded as reasons for non-performance of a treaty obligation in the law of treaties?[5]
| Imon9716/Rainbow Warrior Case | |
|---|---|
| Decided | 6 July 1986 |
| Citation(s) | Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500. |
| Keywords | |
The Law of State Responsibility
As outlined by Caroline Crawford, “the rules of state responsibility determine when a state will be considered responsible for wrongful acts or omissions, and the consequences that flow therefrom.” Primary rules of state responsibility refer to obligations that exist under a treaty whilst secondary rules of state responsibility, codified and developed by the International Law Commission, form the basis for assessing the consequences of the internationally wrongful acts of states.[6]
As states conduct many of their activities through individuals, attribution determines which of these individuals and their conduct will give rise to the principle of responsibility.[7]
Force Majeure
According to Article 23 of the ASR, “wrongfulness is precluded if due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.”[8] This occurrence must render compliance impossible, not merely more difficult or burdensome. The defence may not be invoked if: “(a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it or (b) the state has assumed the risk of it occurring.”[9]
Distress
According to Article 4 of the ASR, “wrongfulness if precluded if it is the only reasonable way of saving wrongdoer’s life, or the life of someone entrusted to the wrongdoer’s care. It may not be invoked if “(a) the situation of distress is due, either alone or in combination with other factors, to the conduct of the State invoking it; or (b) the act in question is likely to create a comparable or greater peril.”[10]
Arguments
New Zealand
New Zealand argued that the attack against the rainbow warrior was a violation of normative international law, national sovereignty and the United Nations Charter. They additionally characterised the French attack as a state sanctioned and state authorised one which was undertaken with a total disregard for innocent life.[11]
New Zealand’s argument relied heavily on a letter from the President of the French Republic to the Prime Minister of New Zealand which described the incident as “a criminal attack committed on your territory and which cannot for any reason be excused”[12] and stated that, “I intend that this affair be treated with the greatest severity and that your country be able to count on France’s full collaboration.”[13]
As such, the redress sought by New Zealand was two-fold. New Zealand first requested a formal and unqualified apology for the total violation of its autonomy under international law, in accordance with that law. Secondly, as international law stipulates that states are entitled to reimbursement of costs directly resulting from another state’s unlawful behaviour,[14] New Zealand requested compensation from France to cover the multitude of practical costs incurred to the New Zealand Police, the Department of Justice, the Ministry of Defence, the Ministry of Foreign Affairs, the Department of Scientific and Industrial Research, the Security Intelligence Service, the Solicitor-General and the Auckland Harbour Board. In addition to these practical costs, New Zealand also sought compensation for the intangible affront and insult to their national sovereignty. Considering the costs incurred, New Zealand requested that this compensation be no less than US $9 million.[15]
Finally, in regard to the prisoners, New Zealand held the position that “there should be no release to freedom, that any transfer should be to custody, and that there should be a means of verifying that.”[16] New Zealand argued that 'superior orders' is not a defence in New Zealand law, nor International law as established within the decisions of the Nuremberg Tribunal and subsequent post-Nuremberg war crimes trials.[17]
France
France was willing to apologise for the attack. Regarding the issue of compensation, France argued that the figure should be no more than US $4 million and that costs incurred were vastly overstated. Finally, the French Government sought the immediate return of its two secret service officers. It argued that their detention in New Zealand was unjustified, particularly considering their actions were brought about by military orders.[18]
The Decision
Apology
The Secretary General of the United Nations ruled that a formal and unqualified apology for the attack was required. This must be accompanied by the recognition that the attack was a breach of international law.[19]
Compensation
As New Zealand requested that the figure should be no less than US $9 million and France requested that the figure be no more than US $4 million, the Secretary General of the United Nations ruled that France should pay US $7 million dollars to the New Zealand Government for all costs and damages incurred.[20]
The Two French Service Agents
This third issue was the most contentious, at both a bilateral agreement and international arbitration level.
In order to reconcile the conflicting interests of both countries, the Secretary General of the United Nations ruled that the New Zealand government should transfer the French Secret Service Agents to the French Military. After, the agents should be relocated to a French military facility outside of Europe for three years. The Secretary General of the United Nations recommended the French Polynesian island of Hao. Here, they should be prohibited from leaving or contacting the media.[21]
Trade Issues
On the issue of trade, the Secretary General of the United Nations ruled that France should not oppose New Zealand imports or take any measures that might impede upon pre-existing trade agreements.[22]
Arbitration
The Secretary General of the United Nations ruled that a conciliatory mechanism should exist for future disagreements as a result of his ruling. Each government was asked to select of member of the tribunal and agree that the decision of the tribunal was binding.[23]
Action
Ultimately, France admitted responsibility. As France’s primary goal was the repatriation of the French agents, New Zealand agreed so long as the full sentences would be carried out. After United Nations mediation, it was decided that the three-year sentence would instead be served at the French naval base, Hao.
In addition to the official apology provided by French officials, United Nations mediation deemed a US$6.5 million and NZ$3.5 million reparation fund necessary.[24]
Legal Principles/Consequences
Three further broad conclusions were made regarding the legal principles of state responsibility, force majeure and distress.
State Responsibility
The violation by a state of a treaty obligation gives rise to state responsibility, including the determination of circumstances which exclude wrongfulness.[25]
Force Majeure
Force Majeure is absolute and applies only in circumstances where compliance by a state with an international obligation is rendered impossible. It did not apply where circumstances merely made compliance more burdensome or difficult, as in this case.[26]
Distress
Distress involves a choice between departure from an international obligation and a serious threat to the life or physical integrity of a state organ or of persons entrusted to its care. For distress to be applicable, three conditions were requested; exceptional medical circumstances of extreme urgency and a recognition of those demonstrated by the other party, a re-establishment of the situation as soon as the emergency disappeared, and a good faith attempt to obtain the consent of New Zealand.[27]
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Davidson, J Scott. “The Rainbow Warrior Arbitration Concerning the Treatment of the French Agents Mafart and Prieur.” The International and Comparative Law Quarterly 40 (April 1991): 446–57, 450.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Pugh, Michael. “Legal Aspects of the Rainbow Warrior Affair.” The International and Comparative Law Quarterly 36 (July 1987): 655–69.
- ^ Responsibility of States for Internationally Wrongful Acts, 2001.
- ^ Responsibility of States for Internationally Wrongful Acts, 2001.
- ^ Responsibility of States for Internationally Wrongful Acts, 2001.
- ^ Responsibility of States for Internationally Wrongful Acts, 2001.
- ^ Responsibility of States for Internationally Wrongful Acts, 2001.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ Rainbow Warrior Arbitration (New Zealand v France) (1990) 82 ILR 500.
- ^ “United Nations Secretary - General: Ruling on the Rainbow Warrior Affair Between France and New Zealand.” International Legal Materials 26, no. 5 (September 1987): 1346–73.
- ^ Pugh, Michael. “Legal Aspects of the Rainbow Warrior Affair.” The International and Comparative Law Quarterly 36 (July 1987): 655–69.
- ^ “United Nations Secretary - General: Ruling on the Rainbow Warrior Affair Between France and New Zealand.” International Legal Materials 26, no. 5 (September 1987): 1346–73.