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)
Rainbow Warrior Case – Greenpeace Boat
ReplyDelete- 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