The Rainbow Warrior PDF

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Topics Covered: The Rainbow Warrior case; French Secret agents attached mines to Greenpeace Rainbow Warrior ship; breaching the ruling of the arbitration; background and ruling; sources of law; Force majeure; Arbitration ruling; Punishment for France...

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Day7-The Rainbow Warrior (1990) Facts: o July 1985: French Secret agents attached mines to Greenpeace Rainbow Warrior ship  Why? France was about to conduct a nuclear test in French-Polynesia and the ship was protesting the environmental effects of that test  The plan was to plant 2 near the ship, one near propeller and one near engine. Each would go off after 10-min.  Ppl re-boarded after first one went off o 2 French agents were captures by New Zealand officials (only 2 of 6 that were involved)  plead guilty to charges in New Zealand courts, sentenced to 10 years o French govt was angry and demanded the release of their agents. Threatened to disrupt all New Zealand trade with Europe o N.Z. asked for damages for ship explosion in their territory o Both nations agreed to have the dispute settles by arbitrationselected Secretary General of UN as arbiter General Secretary ruling on case: o France should pay N.Z. $7 million o Having the two agents detained in a French military base on Hao for minimum of 3 years o Then, agents could only leave with consent from both nations 3 years later, France contacted N.Z. and asked if they could remove one agent b/c of medical reasons o N.Z. asked if they could send in their doctors to check before letting him go o French military didn’t allow N.Z. plane to landagent left w/o N.Z. ever giving consentDoctors checked him and said he was OK to come back to HaoFrance let him stay in France May 1988: France asked if second agent could leave b/c she was pregnant o But left for France before doctors could arrive, France claiming that agent’s father was dyingnever returned to Hao N.Z. accused France of breaching the ruling of the arbitration and breaching the original agreement they signed  They went to another arbitration b/c o In the original agreement, it was established that if there was a breach/alleged breach, a new arbitration would be constituted o Two countries signed another arbitration Legal issues: o Did France breach the original agreement and the decision of the arbitration? o Was distress a legal defense to that breach? o If there was a breach, does it owe N.Z. any reparations? Sources of law to be used for this arbitration? o Treaty law  Cited the Vienna Convention Art. 60defines a material breach of a treaty o Customary IL Arbitration ruling: France did breach the treaty but considers their defense o France said there were circumstances for their breach France argue: o Force majeure  a defense to the breach of a contract  If you can prove, then you are excused from breaching a contract  Includes a terrible/lucky event, requires distress which gives rise to a state of necessity

Ex. 2 nations signs a treaty; one nation agrees to send 10 ships to other nation; but while 10 ships are on-route to the other nation, there is a hurricane and 2 sink and rest are late; force majeure interfered (weather) with countries ability to fulfill their agreement Arbitration ruling: o The force majeure defense for France is not effective/valid b/c testing it isn’t possible  France wouldn’t allow doctors to examine the agents before they left Hao o Making the performance of the treaty more burdensome/difficult, is not enough for the force majeure defense  w/e distress arises, must make it necessary not to perform the treaty (impossible to) o Cites Art. 70 on Vienna Convention for consequences o Offers another possible defense—distress. Requires 3 things:  Breaching party must prove the existence of vary exceptional circumstances of extreme urgency & prompt recognition of these circumstances was obtained by the other party to the treaty  The reestablishment of compliance with the treaty as soon as this urgency subsides  Good faith effort to obtain consent from the other party Result: o b/c the inability to get medical conformation on Hao was not the fault of France or N.Z. and o b/c N.Z. later determined that there really was a medical emergency, France did not breach the treaty by moving one agent off of Hao o France did breach the treaty by failing to return him b/c emergency had passed o Distress case—France had breached the treaty in regard to second agent  Why? Allowed her to leave a day before the N.Z. doctors would arrive and examine her  Didn’t seek consent to keep her in France  Failed to return her after the emergency had passed Punishment for France: o N.Z. wanted France to cease the illegal activity, returning agents to Hao for remainder of sentence  Arbiter said that couldn’t happen b/c the agreement had already expired o France said only remedy was to agree that France breached the treaty/declare the wrong  Arbiter said that was wrong too  Order France to establish a fund to increase friendly relations b/w both nations 

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This case is much different than if it was in a Court of Law setting o There, the court would have been able to assess personal guilt/innocence/liability o Arbitration could only examine if a nation had violated a national law (perhaps a weakness)

Notes: 1. France breached treaty in regard to both secret agents...