Case Concerning the Differences Between New Zealand and France Arising

from the Rainbow Warrior Affair

Facts:

A civilian vessel which was docked in New Zealand known as Rainbow Warrior
was destroyed by a team of French agents. The agents, Mafart and Prieur, were
extradited and New Zealand sought reparation from the incident. July 1985 a
team of French agents sabotaged and sank the Rainbow Warrior, a vessel
belonging to Greenpeace International, while it lay in harbour in New Zealand.
One member of the crew was killed. Two of the agents, Major Mafart and Captain
Prieur, were subsequently arrested in New Zealand and, having pleaded guilty to
charges of manslaughter and criminal damage, were sentenced by a New
Zealand court to ten years' imprisonment. A dispute arose between France,
which demanded the release of the two agents. New Zealand also complained
that France was threatening to disrupt New Zealand trade with the European
Communities unless the two agents were released.

The two States concluded an agreement in the form of an exchange of letters on

9 July 1986, which provided for the implementation of the ruling. Under the terms
of the First Agreement, Major Mafart and Captain Prieur were to be transferred to
a French military facility on the island of Hao for a period of not less than three
years. They will be prohibited from leaving the island for any reason, except with
the mutual consent of the two governments.

The 1986 Agreement contained provision for arbitration of any dispute arising out
of the agreement. After New Zealand invoked this provision, France and New
Zealand concluded a further agreement on 14 February 1989 ("the
Supplementary Agreement"), designating the three arbitrators and dealing with
the procedure for the arbitration.

New Zealand based its submissions on what, it maintained, were clear breaches
by France of the terms of the First Agreement, which could not be justified by
reference to any of the grounds recognized by the law of treaties for departing
from the terms of a treaty. France, on the other hand, argued that even though its
actions had not been in strict accordance with the letter of the First Agreement,
its international responsibility was not engaged because the international law of
State responsibility recognized notions of force majeure and distress which
exonerated France. France therefore submitted that the Tribunal should reject
these requests.

Issue:

Whether or not The settlement dispute is to be honored by New Zealand as the

French has jurisdiction over its agents

Ruling:

Yes, pursuant to their agreement in 1986, the French Government seeks the
immediate return of the two officers. It underlines that their imprisonment in New
Zealand is not justified, taking into account in particular the fact that they acted
under military orders and that France is ready to give an apology and to pay
compensation to New Zealand for the damage suffered. The New Zealand
position is that the sinking of the Rainbow Warrior involved not only a breach of
international law, but also the commission of a serious crime in New Zealand for
which the two officers received a lengthy sentence from a New Zealand court.

The Government of New Zealand should transfer Major Alain Mafart and Captain
Dominique Prieur to the French military authorities. Immediately thereafter, Major
Mafart and Captain Prieur should be transferred to a French military facility on an
isolated island outside of Europe for a period of three years. They should also be
prohibited from leaving the island for any reason, except with the mutual consent
of the two Governments. They should be isolated during their assignment on the
island from persons other than military or associated personnel and immediate
family and friends. They should be prohibited from any contact with the press or
other media whether in person or in writing or in any other manner. These
conditions should be strictly complied with and appropriate action should be
taken under the rules governing military discipline to enforce them.