1987

AT

Rainbow Warrior - Incident - Arbitration New Zealand v France 26 ILM 1346 UNRIAA, vol. XX (1990)

The Rainbow Warrior, a Greenpeace vessel, was blown up in New Zealand by French secret service agents July 1985, a Netherlands citizen was killed; it was leaving to protest against French nuclear test in the Pacific. Two agents, Alain Marfat and Dominique Prieur were sentenced to 10 years in prison in NZ. Following negotiations. UNSG issued an arbitral award July 1986: France should formally apologize for the breach and pay US$7 million to New Zealand; the secret agents were transferred to France who was to custody them for 3 years (1987-1989) in an isolated island. It was prohibited to leave the island except for mutual consent of the governments Rainbow Warrior Arbitration involved the failure of France to detain the agents on the French Pacific island of Hao, as required by an agreement between France and New Zealand after the award of the Rainbow Warrior incident. Mafart had an abdominal problem, Dominique was 6 weeks pregnant, and her father was dying of cancer New Zealand argued that the law of treaties primarily governed issues of the performance of a treaty, and that the law of State responsibility had a merely supplementary role. New Zealand claimed that the only excuses for failure to comply with a treaty obligation were those contained in the Vienna Convention on the Law of Treaties (e.g. impossibility of performance, fundamental change of circumstances). The Tribunal held that both the law of treaties and the law of State responsibility had to be applied, the former to determine whether the treaty was still in force, the latter to determine what the consequences were of any breach of the treaty while it was in force (including the question whether the wrongfulness of any apparent breach was precluded): ‘the legal consequences of a breach of a treaty, including the determination of the circumstances that may exclude wrongfulness ... and the appropriate remedies for breach, are subjects that belong to the customary law of State responsibility. The reason is that the general principles of international law concerning State responsibility are equally applicable in the case of breach of treaty obligation, since in the international law field there is no distinction between contractual and tortious responsibility, so that any violation by a State of any obligation, of whatever origin, gives rise to State responsibility and, consequently, to the duty of reparation. The particular treaty itself might of course limit or extend the general law of State responsibility, for instance by establishing a system of remedies for it’

France relied on force majeure as a circumstance precluding the wrongfulness of its conduct in removing the officers from Hao and not returning them following medical treatment. Tribunal held ‘NZ is right in asserting that force majeure is not relevant to the case because the test of its applicability is of absolute and material impossibility, circumstances rendering performance more difficult or burdensome does not constitute fore majeure. France also sought to justify its conduct in removing the two officers from the island of Hao on the ground of “circumstances of distress in a case of extreme urgency involving elementary humanitarian considerations affecting the acting organs of the State” The tribunal upheld the reasoning in case of Mafart. Tribunal required France to show three requirements: existence of very exceptional circumstances of extreme urgency involving medical consideration and recognition of the other party; re-establishment of the original situation of compliance as soon as the reasons of emergency had disappeared; good-faith effort to try to obtain the consent (this element did not appear in Dominique) of New Zealand in terms of the 1986 Agreement Tribunal expressed doubt as to the existence of the excuse of necessity although the point did not need to be developed since France did not rely on that excuse. The tribunal held ‘state of necessity, refers to situations of grave and imminent danger to the State as such and to its vital interests.’ New Zealand sought the return of the two agents to detention on the island of Hao, since (as the Tribunal held) the circumstances relied on by France to justify their continued removal either did not exist or were no longer operative, NZ had expressly renounced any demand for compensation. According to New Zealand, France was thus obliged to return them to and to detain them on the island for the balance of the three years; that obligation had not expired since time spent off the island was not to be counted for that purpose. The Tribunal disagreed. In its view, the obligation was for a fixed term which had expired, and there was thus no question of cessation (restitution of performance) ‘It is clear that the breach consisting in the failure of returning to Hao the two agents has been not only a material but also a continuous breach. And this classification is not purely theoretical, but, on the contrary, it has practical consequences, since the seriousness of the breach and its prolongation in time cannot fail to have considerable bearing on the establishment of the reparation which is adequate for a violation presenting these two features’ ‘The ‘time of commission of the breach’ constituted an uninterrupted period, which was not and could not be intermittent… if breach was a continuous one that means that violated obligation also had to be running continuously and without interruption Since it had begun on 22 July 1986, it has to end on 22 July 1989, at the expiry of the three years stipulated. Thus, while France continues to be liable for the breaches which occurred before 22 July 1989, it cannot be said today that France is now in breach of its international obligations’