The Rainbow Warrior Case was a dispute between New Zealand and France that arose in the aftermath of the sinking of the ''Rainbow Warrior''. It was arbitrated by

UN Secretary-General The secretary-general of the United Nations (UNSG or UNSECGEN) is the chief administrative officer of the United Nations and head of the United Nations Secretariat, one of the United Nations System#Six principal organs, six principal organs of ...

Javier Pérez de Cuéllar Javier Felipe Ricardo Pérez de Cuéllar de la Guerra ( , ; 19 January 1920 – 4 March 2020) was a Peruvian diplomat and politician who served as the fifth secretary-general of the United Nations from 1982 to 1991. He later served as prime min ...

in 1986, and became significant in the subject of

public international law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...

for its implications on state responsibility.

Background

On 10 July 1985, an undercover operation conducted by the French military security service (

DGSE The Directorate-General for External Security (, , DGSE) is France's foreign intelligence agency, equivalent to the British MI6 and the American CIA, established on 27 November 1943. The DGSE safeguards French national security through intellige ...

) sank the Dutch-registered Greenpeace ship ''Rainbow Warrior'' berthed in

Auckland Harbour Auckland ( ; ) is a large metropolitan city in the North Island of New Zealand. It has an urban population of about It is located in the greater Auckland Region, the area governed by Auckland Council, which includes outlying rural areas and ...

, killing a Portuguese photographer,

Fernando Pereira Fernando Pereira (10 May 1950 – 10 July 1985) was a Portuguese-Dutch freelance photographer, who drowned when French intelligence ( DGSE) detonated a bomb and sank the ''Rainbow Warrior'', owned by the environmental organisation Greenpeace o ...

. The

Greenpeace Greenpeace is an independent global campaigning network, founded in Canada in 1971 by a group of Environmental movement, environmental activists. Greenpeace states its goal is to "ensure the ability of the Earth to nurture life in all its biod ...

ship was planning to disrupt French nuclear tests on the islands of

French Polynesia French Polynesia ( ; ; ) is an overseas collectivity of France and its sole #Governance, overseas country. It comprises 121 geographically dispersed islands and atolls stretching over more than in the Pacific Ocean, South Pacific Ocean. The t ...

. New Zealand subsequently caught and convicted two members of the French secret forces.

Legal consequences

After a series of diplomatic confrontations between France and New Zealand pertaining primarily to issues of compensation and the treatment of the apprehended agents, both governments decided to have their differences arbitrated by a tribunal chaired by then Secretary-General of the UN,

. His binding ruling was pronounced on 6 July 1986.

The case

Even though the actions of the French state were not a threat to "international peace and security" as held by the

UN Charter The Charter of the United Nations is the foundational treaty of the United Nations (UN). It establishes the purposes, governing structure, and overall framework of the United Nations System, UN system, including its United Nations System#Six ...

due to their limited objectives and impact, they were widely held to be acts of international delinquency comprising breach of

sovereignty Sovereignty can generally be defined as supreme authority. Sovereignty entails hierarchy within a state as well as external autonomy for states. In any state, sovereignty is assigned to the person, body or institution that has the ultimate au ...

and

espionage Espionage, spying, or intelligence gathering, as a subfield of the intelligence field, is the act of obtaining secret or confidential information ( intelligence). A person who commits espionage on a mission-specific contract is called an ...

(though peacetime espionage is not covered by international law). The French memorandum to the secretary general argued that Greenpeace was engaging in "hostile actions" and "illegal penetration" of French territory around the test site and New Zealand acted as a platform for those actions. These arguments were rejected as not fulfilling any of the criteria of international law pertaining to the use of force.

State responsibility

Nowadays conduct which would qualify as an Internationally Wrongful Act committed by an agent of a State can attributed to it via Art. 5 ARSIWA (compare for instance the Teheran Hostages Case by the ICJ), resulting in the obligation of cessation of the wrongful act, assurances of non-repetition and reparation, compare Art. 30 and 31 ARSIWA. France sought to rely on the doctrine of

force majeure In contract law, force majeure ( ; ) is a common clause in contracts which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, ...

in that the medical grounds used to repatriate the agents was unforeseen and beyond its control, thus the treaty's obligation for detention would be impossible. The Arbitration Panel rejected the use of force majeure; while repatriation was justified, the performance of France's obligations under the treaty was not yet rendered impossible.

The ruling

France, having admitted responsibility, focused its efforts on the

repatriation Repatriation is the return of a thing or person to its or their country of origin, respectively. The term may refer to non-human entities, such as converting a foreign currency into the currency of one's own country, as well as the return of mi ...

of its servicemen. This was agreed to by New Zealand on the condition that they would serve out the rest of their sentences. A compromise was reached by the mediation of the UN secretary general to three-year sentences on the French atoll of

Hao Hao or HAO may refer to: People * Hao (surname) (Chinese: ) * Hao (given name) * Hao (video gamer), Chinese professional ''Dota 2'' player * Heather O'Reilly, Professional soccer player Places * Hao (city), or Haojing (), capital of the Wes ...

(at a French naval base). France ultimately returned both agents to mainland France and freed them by May 1988, after less than two years on the atoll. In terms of reparations, France initially offered an official apology and acknowledgement of breach of international law. Additionally, the UN secretary-general awarded New Zealand US$6.5 million and a further NZ$3.5 million to establish the New Zealand / France Friendship Fund. This is in addition to compensation which France paid to Pereira's family and to Greenpeace (settled privately).

Consequences

The Rainbow Warrior case bolsters the notion that there is a doctrine of non-intervention in international law and that states will be punished for contravening it. It is also an interesting study of state responsibility, individual responsibility, use of force and reparations. Its consideration for international law is slightly hampered by the fact that it was decided by a single individual (the UN secretary general) as a special Tribunal not internationally established. This is because there existed jurisdictional obstacles for an application to the

International Court of Justice The International Court of Justice (ICJ; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...

by New Zealand, most importantly of which was that France did not (and still does not) recognise the jurisdiction of the Court as compulsory.

References

Sources

* Michael Pugh
"Legal Aspects of the Rainbow Warrior Affair"
''

The International and Comparative Law Quarterly The ''International & Comparative Law Quarterly'' is a law review published quarterly by the British Institute of International and Comparative Law. It was established in 1952 and covers comparative law as well as public and private international ...

'', Vol. 36, No. 3. (Jul., 1987), pp. 655–669,
Rainbow Warrior (NEW ZEALAND v. FRANCE) France-New Zealand Arbitration Tribunal. 30 April 1990
{{DEFAULTSORT:Rainbow Warrior Case (International Law) 1986 in case law Arbitration cases Sinking of the Rainbow Warrior 1986 in international relations 1986 in France 1986 in New Zealand International law