Sunday, March 25, 2012

The Rainbow Warrior Case | New Zealand v. France case brief

The Rainbow Warrior Case (New Zealand v. France, Arbitration 1990; p. 251)
  • Fr special agents sink Greenpeace vessel in New Zealand. Fr and NZ went to mediation. Agents supposed to stay on island for three years. They didn’t.
  • Good thing about arbitration is that you can choose the issues.
  • Fr breached the arbitration agreement by taking people out of Hao and not returning them.
  • France’s force majure argument: ct says no necessity here b/c no absolute and material impossibility.
  • The arbitration agreement governed by:
    • Vienna Convention
    • Customary law of treaties.
  • Muth: Ct was right. Really no distress here b/c no danger to life.
  • Sources of Law: Drafts of Intl Law Commission (representing 54 countries). Intl tribunal shave used these as law like w/ Restatements in the US.
  • Decision of the arbitration tribunal was based on:
    • Treaty btwn Fr and NZ
    • Customary intl law reference to this but w/o stating what principle is (so leave tribunal w/ option of defining these principles).
  • Public arbitration remedies:
    • Satisfaction
    • Set up fund (here)
    • Efficacy of these remedies here?
  • Fr has continued nuclear testing in this area of the world.
  • N. 6, p. 259-60: question of compromissory clauses in treaties—allowing for arbiters to hear disputes. US v. France—air landings in Fr and US—Fr due to oil crisis wanted to use smaller overseas planes so US banned Air France flights to LA. Principle: Even while arbitrations are going on, US had the right to act in a unilateral method to preserve its rights.

B. The International Court
  • Judges: supposed to be selected by geographic distribution
  • Qualifications: purely political process (elected by General Assembly)—many are academics; very difficult for judge in natl ct to get elected b/c usually don’t have the experience w/ intl law cases.
  • Ct mostly gives advisory opinions—it wldn’t make sense to give it appellate pwrs over all other nation’s cts.
  • Muth: Not so sure it is a good ct.
  • Influence of the Ct: very removed—most people don’t know it is a ct—intl—esp b/c it isn’t in Geneva. Things have changed for the better.
  • More than ½ of ICJ disputes are territorial. Lawyers sometimes have problems w/ evidence b/c many times there are really no documents.
  • Two ways to get to the Ct:
    • Compulsory jurisdiction (US withdrew from this) Fr and UK recognized it in the next case.
    • Compromissory Clause

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