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Max Planck Encyclopedia of Public International Law [MPEPIL]

Rainbow Warrior, The

Cristina Hoss, Jason Morgan-Foster

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 26 June 2019

Ships / vessels — Responsibility of states

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

The Rainbow Warrior case is considered a leading precedent in the field of State responsibility. The role it has played in theory and practice may appear exaggerated to some observers, given that it is comprised partly of mediation and partly of arbitration, neither of which carry the same authority as a ruling by an international court or tribunal. However, the Rainbow Warrior case is one of the causes célèbres of the law of State responsibility, and is also referenced with regard to numerous other areas of international law, including the absence of a superior orders defence in international criminal law, the co-application of conventional and customary law, the problem of low-level uses of force, and the importance of the principle of good faith (bona fide).

B.  Factual Background

Since 1966 France had been carrying out nuclear tests in the Mururoa Atoll in French Polynesia (Nuclear Tests Cases), and a new series of tests was planned in 1985. These tests were opposed by the environmental non-governmental organization Greenpeace, which sent its vessel, Rainbow Warrior, to Auckland, New Zealand in order to protest the French nuclear activities (Non-Governmental Organizations). On 10 July 1985 the ship was lying in Auckland harbour when an explosion sunk the vessel, killing one person, the Dutch-Portuguese photographer Fernando Pereira. France initially denied any involvement.

On 22 September 1985 the Prime Minister of France issued a communiqué confirming that the Rainbow Warrior had been sunk by agents of the French Directorate General of External Security (‘DGSE’), under orders, and the French Minister for External Affairs indicated to the Prime Minister of New Zealand that France was ready to undertake reparations for that action. The incident also led to the resignation of the French Minister of Defence and the dismissal of the Director-General of the DGSE.

Two agents of the DGSE, Major Mafart and Captain Prieur—who had been posing as Swiss tourists under the names Alain and Sophie Turenge—were arrested in New Zealand in relation to the incident, and on 4 November 1985 they pleaded guilty to charges of manslaughter and wilful damage to a ship by means of an explosive. On 22 November 1985 they were sentenced by the Chief Justice of New Zealand to a term of 10 years’ imprisonment.

A dispute arose between New Zealand, which pressed for compensation, and France, which demanded the release of the two agents. New Zealand complained that France was threatening to disrupt New Zealand trade with the European Communities unless the two agents were released (see also Countermeasures). In June 1986 following an appeal by the Prime Minister of the Netherlands, the two States referred all the problems between them arising from the Rainbow Warrior affair to the Secretary-General of the United Nations for a binding ruling (Peaceful Settlement of International Disputes). The two States agreed to be bound by the ruling, which was to be both ‘equitable and principled’ (Equity in International Law; Ex aequo et bono).

C.  The Secretary-General’s Ruling of 6 July 1986

1.  Responsibility

New Zealand submitted that ‘[t]he international legal responsibility of the French Government was engaged at every stage of this affair and not merely in its authorisation and initiation’ (Memorandum of the Government of New Zealand to the Secretary-General of the United Nations; ‘NZ Memorandum’ 202). It noted that in a letter of 8 August 1985 from the President of the French Republic to the Prime Minister of New Zealand, it was stated that the incident was ‘a criminal attack committed on your territory and which cannot for any reason be excused’ (NZ Memorandum 202). It observed that the consequent police investigation was the largest single investigation into criminal activity that had ever taken place in New Zealand.

France emphasized that ‘[t]he attack against the Rainbow Warrior originates in the illegal actions of the “Greenpeace” organisation’ (Memorandum of the Government of the French Republic to the Secretary-General of the United Nations; ‘French Memorandum’; at 209) and could not ‘be understood without recalling the interventions of certain New Zealand authorities in French internal affairs, especially with respect to the nuclear tests conducted on Mururoa’ (see also Intervention, Prohibition of). Nevertheless, France acknowledged that ‘the attack carried out against the Rainbow Warrior took place in violation of the territorial sovereignty of New Zealand and that it was therefore committed in violation of international law’ (see also Sovereignty) and that ‘New Zealand consequently has a right to compensation for the harm which it directly suffered from that attack’ (French Memorandum at 209).

2.  Reparations

New Zealand sought reparations in the form of a) a formal and unqualified apology for the violation of its sovereignty and its rights under international law; b) reimbursement of all costs which were the direct result of France’s unlawful acts; and c) compensation for the violation of its sovereignty. It contended that total compensation for b) and c), should be not less than US$9 million.

France stated that the French Prime Minister was ready to address a formal and unconditional letter of apology to the New Zealand Prime Minister, and that France was also prepared to pay compensation. However, France considered that such compensation must be limited to the material damage suffered by New Zealand, because any moral damage suffered would be fully compensated by its formal and unconditional apology (citing the Corfu Channel Case). France contended that total compensation of US$4 million ‘would be a lavish calculation’ (French Memorandum 210).

10  The Secretary-General ruled that the French Prime Minister should convey a formal and unqualified apology to the Prime Minister of New Zealand, and that the French Government should pay US$7 million in compensation. This ruling on monetary compensation has been interpreted by some as evidence of pecuniary compensation for moral damages in international law (also referred to in the legal doctrine as ‘punitive damages’). In particular, the special rapporteur of the ILC, Gaetano Arangio-Ruiz, cited the Secretary-General’s Rainbow Warrior ruling as evidence of such an ‘afflictive form’ of satisfaction (UN ILC Special Rapporteur G Arangio-Ruiz ‘Second Report on State Responsibility’ [9 and 22 June 1989] [1989] vol II part I UNYBILC para. 140). The difficulty with this view is that the ruling does not distinguish between moral and material damage, but rather determines a lump sum for compensation of all damages, in accordance with the claims of the parties. It is therefore doubtful whether any conclusion can be drawn as to the recognition in international law of ‘punitive damages’.

3.  Trade Matters

11  With respect to trade matters, New Zealand sought a guarantee that France would not oppose continuing imports of New Zealand butter into the United Kingdom in 1987 and 1988 at levels proposed by the Commission of the European Communities, subject to certain limits, and that France would not take any measures which might impair the implementation of the Agreement in the Form of an Exchange of Letters between the European Economic Community and New Zealand on Trade in Mutton, Lamb and Goatmeat ([done 14 October 1980, entered into force 20 October 1980] [1980] OJ L275/28). France denied any connection between actions it had taken in the trade field and the Rainbow Warrior dispute. The Secretary-General ruled that France should not oppose continuing imports of New Zealand butter into the United Kingdom in 1987 and 1988 at levels proposed by the Commission of the European Communities, subject to certain limits, and that France should not take measures that might impair the implementation of the agreement on Trade in Mutton, Lamb and Goatmeat.

4.  The Situation of Major Mafart and Captain Prieur

12  Concerning the two French agents, France contended that in offering its official apology to New Zealand, compensation to New Zealand, and compensation to the victims, it had assumed all responsibilities incumbent upon it, in place of the persons having acted on its behalf, and that by this assumption of responsibility it was entitled to obtain the release of its agents. It made reference to the Caroline incident, in which the British government assumed responsibility for the acts of a British commando unit (Caroline, The). It noted that New Zealand could legally deport the individuals, but stressed that France could not execute the prison sentences pronounced in New Zealand since no penal transfer treaty existed between the two States, no sentence had been pronounced against them in France, and none ever would be since they had acted under orders.

13  New Zealand contended that ‘superior orders’ is not a defence in New Zealand law, in the legal systems of most countries, and certainly not in international law (citing the Nuremberg Trials). Moreover, it argued that as a result of the constitutional principle common to many democracies that prevents the executive branch from interfering in judicial matters for political purposes, it could not have negotiated concerning the two individuals while their cases were before its courts (Negotiation). Under New Zealand law, the individuals could be deported after final conviction and sentencing, but New Zealand was ‘wholly unwilling to exercise that power in circumstances that would give the prisoners their freedom in return for an acknowledgement by France of responsibility under international law and payment of compensation’ (NZ Memorandum 204). However, it was ready to explore possibilities for the individuals to serve their sentences outside New Zealand.

14  The Secretary-General ruled that New Zealand should transfer Major Mafart and Captain Prieur to the French military authorities, who would immediately transfer them to the French military facility on the isolated island of Hao in French Polynesia, where they would remain for a period of three years. During this time they would be prohibited from leaving the island for any reason, except with the mutual consent of the two governments; would be isolated from persons other than military or associated personnel and immediate family and friends; and would be prohibited any contact with the media. France would convey full reports on their status to New Zealand and to the Secretary-General every three months. A visit to the French military facility on Hao could be made by an agreed third party at New Zealand’s request.

5.  Enforcement

15  New Zealand insisted that any settlement of the matter must contain a provision for compulsory and legally binding adjudication, to which France was not opposed. The Secretary-General’s ruling was implemented by the Exchanges of Letters between the Government of New Zealand and the Government of France concerning the Implementation of the Ruling of 6 July 1986 by the Secretary-General of the United Nations Pertaining to the Differences between the Two Governments Arising from the Rainbow Warrior Affair (‘1986 Exchange of Letters’), which included provisions for the establishment of an arbitral tribunal consisting of three members to resolve any dispute concerning those letters’ interpretation or application. The Secretary-General also took note of the assurances made by the French government that the family of the photographer killed in the incident would be compensated.

D.  Parallel Proceedings

16  In addition to the inter-State dispute submitted to the Secretary-General, the French government agreed to an arbitral procedure with the Stichting Greenpeace Council, on behalf of all Greenpeace organizations, concerning the compensation owed to the non-governmental organization. The award is confidential because one of the two parties did not agree to its publication (the arbitrators were: Sir Owen Woodhouse from New Zealand, François Terré from France, and President Reymond appointed by the President of the Swiss Federal Court). France’s responsibility in principle for the damages suffered by Greenpeace having been accepted before the institution of arbitral proceedings, the arbitrators only had to assess the value of the damage and order compensation, which they did in an award dated 30 September 1987 under English law, granting ordinary damages and additional damages but refusing to award any punitive damages.

17  Another possibility for Greenpeace would have been to bring a case in a New Zealand court. In light of the nature of the crimes committed by its agents, the question would arise whether France could evoke State immunity in such a setting. Alternatively, Greenpeace could have asked the government of any of its national branches, most likely the government of the Netherlands, to exercise diplomatic protection over the victim and attempt to bring the claim before the International Court of Justice (ICJ), or Greenpeace itself could have brought a tort action against the agents. The New Zealand government, in its Memorandum filed for the Secretary-General, had indeed emphasized that because the vessel was not flying a New Zealand flag, and because the fatality was not of a New Zealand national (Nationality), it lacked standing to bring a claim on behalf of either.

E.  Factual Developments Subsequent to the Secretary-General’s Ruling

18  Major Mafart and Captain Prieur were transferred to Hao on 23 July 1986.

1.  The Case of Major Mafart

19  On 10 December 1987 the commander of the Hao military base notified the French Ministry of Defence that Major Mafart was experiencing ‘stabbing abdominal pains’, noted that he had ‘a history of similar, and still unlabeled, problems’, and recommended that he be evacuated to Paris on Sunday, 13 December 1987. In a series of communications in the intervening three-day period, New Zealand and France attempted to negotiate a means by which a New Zealand doctor could examine Major Mafart on Hao prior to New Zealand formally agreeing to his departure from the island, but they were unable to reach agreement. In particular, France was unwilling to allow a New Zealand aircraft to land on Hao, but argued that any other solution would take too much time, thus posing a risk to Major Mafart’s health. Major Mafart was evacuated from Hao, without New Zealand’s consent, on 13 December 1987 on board a 20 hour French military flight to Paris. A note of 14 December 1987 from the French Ambassador to the New Zealand Ministry of Foreign Affairs stated that ‘[i]n carrying out their duty to protect the health of their agents, the French authorities, in this case of force majeure, are forced to proceed, without any further delay, with the French officer’s health-related repatriation’ (Rainbow Warrior [New Zealand v France] [Award of 30 April 1990]; ‘Arbitral Award’ para. 24).

20  In Paris Major Mafart was examined numerous times by a New Zealand doctor. He stated upon first examining Major Mafart, on 14 December 1987, that he agreed that ‘Mafart needed detailed investigations which were not available on Hao’, but that it was ‘highly arguable whether an emergency evacuation as opposed to a planned urgent evacuation was necessary’ (Arbitral Award para. 28). Initially recommending that Major Mafart stay in Paris for further examination, by 12 February 1988 the New Zealand doctor advised that he could be returned to Hao. He reiterated this on 21 July 1988, noting no change in Mafart’s clinical condition. In contrast, the French medical team treating Mafart concluded on 28 January 1988 that ‘on the basis of the standards of fitness governing military personnel, he must be considered as unfit to serve overseas for an indefinite period’ (Arbitral Award para. 40). Major Mafart was never returned to Hao.

2.  The Case of Captain Prieur

21  On 3 May 1988 France notified New Zealand that Captain Prieur was six weeks pregnant. France contended that the medical facilities on Hao were inadequate to handle the pregnancy, noting that Captain Prieur was almost 39 years old, that it would be her first child, and raising other issues concerning her gynecological history. New Zealand once again requested that it be allowed to conduct its own medical examination prior to repatriation, to which France agreed. However, while a New Zealand doctor was en route to Hao, France notified New Zealand that Captain Prieur required immediate repatriation because her father was dying of cancer. On 5 May 1988 New Zealand refused to agree to repatriation on the basis of the state of health of Captain Prieur’s father. One hour later, France stated that ‘[t]he French Government considers it impossible, for obvious humanitarian reasons, to keep Mrs. Prieur on Hao while her father is dying in Paris’ and that she ‘will therefore depart immediately for Paris’ (Arbitral Award para. 55). One hour after that, Captain Prieur left Hao for Paris. She never returned to Hao.

F.  The Arbitral Award of 30 April 1990

1.  The Contentions of the Parties

22  New Zealand sought a declaration that France had breached its obligations to it a) by failing to seek in good faith New Zealand’s consent to the removal of Major Mafart and Captain Prieur, b) by removing them from Hao, and c) by failing to return them to Hao. In addition, it sought a declaration that France was under an obligation to return Major Mafart and Captain Prieur to Hao for the balance of the three-year period, and an order requiring France to do so. New Zealand did not, however, seek any kind of monetary compensation.

23  France contended that while ‘the provisions of the Agreement have not been literally honored’ (Arbitral Award para. 71), the two agents’ removal was justified by the special circumstances particular to each case. Concerning its failure to subsequently return the agents to Hao, France argued that Major Mafart had been declared unfit to serve overseas for an indeterminate period and Captain Prieur could not return because ‘after the birth of her child on 15 December 1988, obvious humanitarian considerations prevented her being returned either with or without her child’ (Arbitral Award para. 70). It argued with respect to both individuals that ‘the obligation to return can have no existence after 22 July 1989, the expiration date of the 1986 Agreement’ (Arbitral Award para. 66).

2.  The Applicable Law

24  Art. 2 Supplementary Agreement between the Government of the French Republic and the Government of New Zealand relating to an Arbitral Tribunal of 14 February 1989, provided that ‘[t]he decisions of the Tribunal shall be taken on the basis of the Agreements concluded between the Government of the French Republic and the Government of New Zealand by exchanges of letters of 9 July 1986, this Agreement and the applicable rules and principles of international law’. With reference to the ‘applicable rules and principles of international law’, France contended that the 1986 Exchange of Letters must be read subject to the customary law of State responsibility, in particular the circumstances precluding wrongfulness developed in the work on State responsibility by the International Law Commission (ILC). In contrast, New Zealand argued that the question fell to be decided solely with regard to the law of treaties, because reference to customary international law, such as the law on State responsibility, is only permitted a) to clarify some ambiguity in the treaty, b) to fill an evident gap, or c) to invalidate a treaty provision by reference to a rule of ius cogens.

25  The Arbitral Tribunal concluded that both the customary law of treaties and the customary law of State responsibility were relevant and applicable to the dispute. It explained that certain specific provisions of customary law in the Vienna Convention on the Law of Treaties (1969) (‘VCLT’) were relevant—such as Art. 60 defining material breach and Art. 70 concerning the legal consequences of the expiry of a treaty—but that the legal consequences of a breach of a treaty, including the determination of the circumstances that may preclude wrongfulness, as well as remedies, are subjects that belong to the customary law of State responsibility. Citing the Permanent Court of International Justice (PCIJ) in the Chorzów Factory Case and the ICJ in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) (Advisory Opinion), the Tribunal explained that no distinction exists between contractual and tortious responsibility in international law, so ‘any violation by a State of any obligation, of whatever origin, gives rise to State responsibility and consequently, to the duty of reparation’ (Arbitral Award para. 75; see also Peace Treaties with Bulgaria, Hungary and Romania, Interpretation of [Advisory Opinions]; German Interests in Polish Upper Silesia, Cases concerning the).

3.  Circumstances Precluding Wrongfulness

26  The Tribunal examined in detail whether France’s actions could be justified with regard to the circumstances precluding wrongfulness in the law of State responsibility, in particular the doctrines of force majeure and distress. Referring to Art. 31 (1) ILC Draft Articles on State Responsibility of 1979, it concluded that force majeure only applied to cases of absolute and material impossibility, not to circumstances merely rendering performance more difficult or burdensome, and thus held unanimously that it did not apply to the case. The Tribunal distinguished distress from force majeure, arguing that distress was less absolute in that ‘the State organ admittedly has a choice, even if it is only between conduct not in conformity with an international obligation and conduct which is in conformity with the obligation but involves a sacrifice that it is unreasonable to demand’ (Arbitral Award para. 78; citing UN ILC ‘Report of the International Law Commission on the Work of its Thirty-First Session’ [14 May–3 August 1979] [1979] vol II part II UNYBILC 122 para. 3). It also distinguished the doctrine of necessity, the general acceptance of which was controversial (Necessity, State of). In the context of the case, the Tribunal held that in order for France to justify its conduct with reference to the doctrine of distress, it would have to show a) the existence of very exceptional circumstances of extreme urgency involving medical or other considerations of an elementary nature, b) a good faith effort to obtain the consent of New Zealand for the repatriation of Major Mafart and Captain Prieur, and c) their return to Hao as soon as the reasons of emergency had disappeared.

27  Applying these circumstances to the case of Major Mafart, the Tribunal concluded by two votes to one that his initial evacuation, albeit without the consent of New Zealand, was not wrongful since subsequent examination showed that he required medical treatment not available in Hao. In his separate opinion, arbitrator Sir Kenneth Keith dissented on this point and underlined the particular importance of the timing of France’s action showing in his view that there was no sufficient urgency in Major Mafart’s case. On the other hand, the Tribunal unanimously concluded that France had breached its obligations to New Zealand by not returning Major Mafart to Hao after 12 February 1988, when he was found to have recovered, and that the fact that he was not fit for French military service overseas was no justification for keeping him in mainland France since his assignment required no military service at all.

28  As to Captain Prieur, the Tribunal unanimously held that France had not endeavoured in good faith to secure the consent of New Zealand prior to Captain Prieur’s repatriation, and that consequently it had committed a material breach of its obligations to New Zealand by repatriating Captain Prieur. It also found that France had committed a material breach of its obligations in failing to return Captain Prieur to Hao, noting that the fact that she may have been permitted under French military law to stay in mainland France was no justification, because a State may not rely upon its own domestic law as grounds for failure to comply with its international obligations.

4.  Classification of the Breaches

29  The Tribunal unanimously held that the breaches by France of its international obligations towards New Zealand constituted material breaches under Art. 60 (3) (b) VCLT. It then applied the distinction drawn by the ILC in its 1996 Draft Articles on State Responsibility ([1996] GAOR 51st Session Supp 10, 125) between ‘instantaneous breaches’ (Art. 24) and ‘continuous breaches’ (Art. 25 (1)), concluding that the failure to return the two agents to Hao constituted a continuous breach, emphasizing that this classification was not purely theoretical since it could affect the amount of reparation due.

5.  Duration of the Obligations

30  A majority of the Tribunal found that France’s obligations regarding the two agents under the 1986 Exchange of Letters came to an end on 22 July 1989, three years after the agents were handed over by New Zealand. It reasoned that France had committed an uninterrupted and continuing breach with respect to each agent until that date, with the result that the period of operation of the obligation had ceased on that date. Accordingly, it rejected New Zealand’s request for an order that France return the two agents to Hao. In his separate opinion, Sir Kenneth Keith concluded that the ‘ordinary meaning’ of the 1986 Exchange of Letters, in light of those letters’ ‘object and purpose’, was that Major Mafart and Captain Prieur would spend an aggregate of three years on Hao (Separate Opinion of Sir Kenneth Keith para. 27 ; see also Interpretation in International Law). The award was cited in the 1996 Draft Articles on State Responsibility in support of the assertion that cessation was a consequence of all wrongful acts extending in time, whether the act of the State constituted an action or an omission (see the commentary to Art. 41 [former Art. 6] 1996 Draft Articles on State Responsibility, vol II part II UNYBILC 58 para. 16).

6.  Remedies

31  The Tribunal unanimously held that it could not accept New Zealand’s request for a declaration and an order that Major Mafart and Captain Prieur return to the island of Hao, since the majority had found that the obligation to hold them on Hao had expired on 22 July 1989, and an order for the cessation or discontinuance of wrongful acts or omissions is only justified in cases of continuing breaches of international obligations which are still in force at the time the judicial order is issued (citing the United States Diplomatic and Consular Staff in Tehran Case [United States of America v Iran] and the Military and Paramilitary Activities in and against Nicaragua Case [Nicaragua v United States of America]). With regard to non-material damage, the Tribunal reasoned that it was not, in principle, excluded from awarding monetary compensation, but it refrained from doing so in this particular case because New Zealand had not requested it. Considering that a declaration by an international tribunal that a State had committed a violation of its international obligations towards another State was a widely accepted form of satisfaction, the Tribunal concluded that the condemnation of France, made public by the Tribunal’s decision, constituted appropriate satisfaction for the legal and moral damage caused to New Zealand. Finally, the Tribunal unanimously recommended that, in order to promote the process of reconciliation, France and New Zealand should establish a fund to promote close and friendly relations between the citizens of the two countries, and that France should make an initial contribution of US$2 million to that fund.

G.  Evaluation and Contemporary Relevance of the Rainbow Warrior Case

32  The Rainbow Warrior Arbitral Award has influenced international law in several respects. Perhaps most importantly, the Arbitral Award has made several notable contributions to the law of State responsibility. First, the case highlights the distinction between the law of treaties, as codified in the 1969 VCLT, and the law of State responsibility, which was at that time in the process of codification by the ILC (see also Codification and Progressive Development of International Law). Specifically, the case is referenced to highlight the distinction between the circumstances precluding wrongfulness in the law of State responsibility and doctrines governing the termination or suspension of treaties in the law of treaties. The commentary to Chapter V of the 2001 Articles on State Responsibility, concerning circumstances precluding wrongfulness, refers to the conclusion reached in the Rainbow Warrior Arbitral Award that in any given situation, both the law of treaties and the law of State responsibility must be applied, the former to determine whether the treaty was still in force, and the latter to determine what the consequences were of any breach of the treaty while it was in force (at para. 3).

33  Secondly, the case is often cited for the fundamental proposition in the law of State responsibility that every internationally wrongful act of a State entails the international responsibility of that State. Indeed, the commentary to Art. 1 Articles on State Responsibility, which codifies this principle, quotes the statement in the Rainbow Warrior Arbitral Award that ‘any violation by a State of any obligation, of whatever origin, gives rise to State responsibility’ (at para. 2). Moreover, the case provides a pertinent example of the principle of objective responsibility in international law, ie State responsibility for acts committed by that State’s officials or organs. Under the principle of objective responsibility, the fact that the French Defence Minister and French intelligence agency knew of the operation to sink the Rainbow Warrior was sufficient to hold France liable for the acts of Mafart and Prieur as its agents; New Zealand need not prove who actually authorized the sinking (see also the Corfu Channel Case).

34  Thirdly, the case raises the distinction in the law of State responsibility between ‘instantaneous breaches’ and ‘continuous breaches’. As discussed above, the Tribunal concluded that the failure to return the French agents to Hao constituted a continuous breach rather than an instantaneous breach as defined in the Draft Articles on State Responsibility adopted by the ILC on first reading in 1996. While the term ‘instantaneous breach’ was dropped in the 2001 Articles on State Responsibility, the distinction remains, appearing in Art. 14 (1) and 14 (2), the commentary to which cites the Rainbow Warrior Arbitral Award (at para. 8).

35  Fourthly, the Arbitral Award addresses several important aspects concerning reparations in the law of State responsibility. In particular, the Arbitral Award is one of the most significant examples of the declaration of wrongfulness as a form of satisfaction (at paras 121–23), but it was far from being the first precedent in that respect. In support of this form of satisfaction, the Arbitral Award cites precedents going back to the Affaire du Carthage (France v Italy) ([1913] 11 RIAA 449) and Affaire du Manouba (France v Italy) ([1913] 11 RIAA 463) and the judgment of the ICJ in the Corfu Channel Case. In that judgment the ICJ held that the United Kingdom had violated Albanian sovereignty by certain operations of the Royal Navy and that that declaration by the ICJ constituted in itself appropriate satisfaction. This has been seen as support for the assertion that such declarations of wrongfulness constitute the appropriate form of satisfaction for legal damages, ie that they provide redress for the immaterial damage caused by the mere commission of the wrongful act (more recent examples at the ICJ include the LaGrand Case [Germany v United States of America] and the Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case [Bosnia and Herzegovina v Serbia and Montenegro]). While New Zealand distinguished two different immaterial damages—namely, the legal damage caused by the very breach of the treaty obligations and the moral damage described as the ‘deep offence to the honour, dignity and prestige of the State’ caused by that breach—the arbitrators did not endorse that distinction. Rather, the award summed up by stating that the damage caused by the breach was of a moral, political, and legal nature.

36  As noted before (see para. 31 above), the 1990 award also contained a rather unusual form of reparation. At point nine of the operative part, the award recommended the creation of a fund ‘to promote close and friendly relations between the citizens of the two countries’ (Arbitral Award para. 127), and further recommended that the Government of the French Republic make an initial contribution to that fund equivalent to US$2 million. This element of the operative part has been seen as a ‘constructive’ form of satisfaction (see generally Dominicé) which aims at the improvement of future relations, not between the States but between their citizens. The recommendation of the Arbitral Tribunal was followed by the Agreement between the Government of the French Republic and the Government of New Zealand on the Establishment of a Fund to Promote Friendly Relations between Citizens of the Two Countries of 29 April 1991. That fund, the New Zealand/France Friendship Fund or Fonds de l’amitié France/Nouvelle Zélande is still in existence and, according to its statute, promotes ‘friendly relations between the citizens of the two countries’ and ‘seeks to enhance and deepen the historical, constructive and vibrant relationship between France and New Zealand…by providing financial assistance to projects which lead to ongoing links, understanding and friendship between the citizens of the two countries, especially young citizens’.

37  The Rainbow Warrior case has also had an influence on other areas of international law. For example, the award is significant for its explicit conclusion that international law does not recognize the defence of superior orders, a reaffirmation of the conclusions of the Nuremberg Tribunal and a harbinger of the future codification of this principle in the statutes of the ad hoc war crimes tribunals and the Rome Statute of the International Criminal Court. It also reiterates the important principle that the assumption of responsibility by a State for acts contrary to international law which it authorized does not absolve its individual agents from liability for the commission of those acts. Moreover, the award of the tribunal may be cited for the important proposition that even if a dispute concerns specific provisions of treaty law, customary law continues to apply along with the treaty. In this case, this question arose with respect to the applicability of the customary law of State responsibility. The Tribunal stated that

without prejudice to the terms of the agreement which the Parties signed…the existence in this case of circumstances excluding wrongfulness as well as the questions of appropriate remedies, should be answered in the context and in the light of the customary Law of State Responsibility. (At para. 75)

38  The award also provides a pertinent example of the problem, still very much in existence today, surrounding the treatment by international law of low-level uses of force not carried out as part of an armed conflict. New Zealand first treated the French agents as common criminals to which New Zealand criminal law would apply, but then later, before the Arbitral Tribunal, also presented arguments based on international criminal law (citing the Nuremberg Trials for the proposition that ‘superior orders’ was not a defence in international law). Because such acts, along with acts of ‘international delinquency’, guerilla activity, terrorism, and sabotage, may not meet a threshold necessary to constitute armed conflict, international humanitarian law may not be triggered, and questions arise as to the scope of applicable international legal norms.

39  Finally, the case is also referenced with regard to the concept of good faith in international law, since a primary function of the Tribunal was to determine whether France had breached its obligations to New Zealand by failing to seek in good faith the latter’s consent to the removal of Major Mafart and Captain Prieur. Although the Tribunal seems to have avoided the issue of good faith with respect to Major Mafart, concluding that ‘there were many factors, not the fault of any party, nor questioning their good faith’ Arbitral Award para. 80, which prevented France from obtaining New Zealand’s consent in the short time available, it unanimously held with respect to Captain Prieur that France had breached its obligations to New Zealand by not endeavouring in good faith to secure the latter’s consent prior to Prieur’s repatriation.

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