Saturday, May 17, 2014

Rainbow Warrior Affair case brief summary

Rainbow Warrior Affair
o       Greenpeace ship was docked in New Zealand outfitting to go protest French nuclear testing in the South Pacific. French covert security forces placed a bomb on the ship and killed a crew member. Two of the French operatives were captured by New Zealand authorities. The operatives were charged with arson and manslaughter to which they plead guilty. New Zealand demanded compensation and remedy from France and punishment of the two operatives. France agreed to compensate, but wanted the release of the French operatives because they were following military orders and therefore were not liable for their actions. New Zealand argued that to release them to France where they would not be punished would undermine the New Zealand legal system, and refused to release the operatives. France restricted trade from New Zealand to the European Community. New Zealand complained to General Agreement on Tariffs and Trade (GATT) and Organization for Economic Cooperation and Development(OECD).
o       Secret negotiations lead to submission of dispute to UN for resolution.
§         The resolution decided by the Secretary General awarded money to New Zealand and the operative were to be released to French custody were they would serve no less than three years on Hao.
o       UN Secretary General has the power to mediate disputes between parties.
o       Domestic politics necessitated official resolution by the UN because the resolution by neutral third party alleviates political leaders from domestic criticism.
o       Powerful state accepted legal responsibility to an international NGO and a foreign national is an important recognition and acceptance of international law regarding human rights.
§         Individuals and non-state actor have increasing value in international legal system.
o       International disapproval of France’s actions demonstrates recognition of the validity of the international system and the necessity for it.

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Rainbow Warrior Affair
FACTS:
·         Greenpeace owned a ship, Rainbow Warrior; sent to New Zealand to support its decision to close ports to ships w/nuclear weapons; later go to France later to protest nuclear tests
o   while docked in New Zealand, France DGSE members bombed ship => destroyed ship, & killed Dutch crewman Fernando Pereira; 2 DGSE agents arrested (Mafart & Prieur)
·         France “had to admit” fault b/c two of the agents were captured => 2 agents tried in New Zealand courts, although France argued against it; wants custody over them
o   France argues that b/c the state will take responsibility, individuals can’t be charged; they were simply following orders, so it’s not their fault/responsibility (Nuremberg)
·         Tried to negotiate, but they were deadlocked => UN Secretary Gen. for binding decision
o   Part of the job for intl organizations is to do this, to mediate/arbitrate/resolve disputes
o   QUES: Why did they choose to go to the Secretary General rather than litigate?
§  A lot of what was decided by Sec. Gen. had already been agreed to in private negotiations b/t the two; THUS this was “for show”, make official, confirm, etc.
§  It gives a kind of oral legitimacy
OPINION (UN Secretary General):
·         France must give a formal and unqualified apology to New Zealand (b/t the prime ministers)
·         France owes New Zealand $7 million in compensation (compromise between 9 and 4 million)
·         The two agents should be handed over to Fr. authorities from New Zealand
o   Serve three year sentence at Fr. military facility, Hao island w/ other agreements…
·         France should not interfere in New Zealand’s trade w/ Europe…
·         Any further/future disagreements will be decided by arbitral tribunal
AFTERMATH (of decision):
·         The two agents were transferred; apology given & compensation paid to family members of Pereira, Greenpeace arbitral settlement, etc.
·         Does this case demonstrate intl law’s relevance, flexibility, & efficacy in resolving intl disputes (many believe so)??? Did intl law prevail here?
o   Most of the agreements under Secretary General had already been made in private bilaterally; went to neutral third party for political insulation…
o   ALSO, two agents did NOT spend three years; taken off w/o consent, against terms…
§  New Zealand informed of breach (notices), called for arbitral tribunal
·         Panel ruled in favor of New Zealand that there was a breach; but b/c the 3 yrs had passed, rather than re-imprisoning agents, public condemnation of France as well as fund for friendly relations ($2 mil)

1 comment:

  1. Rainbow Warrior Case – Greenpeace Boat
    - FACTS: France did not accept Nuclear Non-Proliferation Treaty (Test Ban Treaty), moves above ground tests from Algeria to Polynesia. NZ doesn’t want them to. Greenpeace takes activist approach and announces it will sail Rainbow Warrior into test zone as protest. French agents acting under orders sink ship in Auckland Harbor, killing Dutch crew member on board. Two French agents caught – Major Mafart and Captain Prieur.
    o Boat owned by an international organization rather than a state – that’s an important point.
    - Why doesn’t NZ bring action in French courts (A – action legal in France), or simply bring murder charges against agents (A- no compensation for state acts, for Dutch crew member or for Greenpeace damages). Why did parties agree to submit it to UN Secretary General? Getting very messy politically – trade implications, France had a black eye, low cost solution.
    - DAMGES AWARDED: Pay money to NZ, family and Greenpeace (after arbitral award), transfer of two defendants to French prison in Polynesia. Post case –France brings both back to France because of pregnancy and illness), more payments.
    - TAKEAWAYS:
    o Not classic international law – individuals affected, both the dead crew member and his family (have rights) and the two French soldiers (responsibilities), NGO become an actor as well.
    o While positive law (consented to by states) is predominant law, new processes, new players have entered the realm of international law.
    o IL process can happen in many ways
    § another example: bilateral discussion for reparations – example – World Bank employee’s family in Central Africa whose family was assaulted

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