Rainbow Warrior Case

On 10 July 1985, an undercover operation conducted by the French military

security service (DGSE) sank the Dutch-registered Greenpeace ship Rainbow Warrior berthed in Auckland Harbour, killing a Portuguese photographer, Fernando Pereira. The Greenpeace ship was planning to disrupt French nuclear tests on the islands of French Polynesia. New Zealand subsequently caught and convicted two members of the French secret forces.{{Cite web |url=https://www.theguardian.com/environment/2014/sep/24/rainbow-warrior-sinking-greenpeace-france-1985-archive |title=French inquiry into bombing of Greenpeace's Rainbow Warrior: from the archive, 24 September 1985 |last1=Page |first1=Campbell |last2=Templeton |first2=Ian |date=2014-09-24 |website=The Guardian |access-date=2020-04-08}}{{Cite web |url=https://www.theguardian.com/politics/2005/aug/23/uk.freedomofinformation |title=How Rainbow Warrior was played down |last1=Brown |first1=Paul |last2=Evans |first2=Rob |date=2005-08-23 |website=The Guardian |access-date=2020-04-08}}{{Cite news |url=https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10333759 |title=Reality behind the Rainbow Warrior outrage |last=Armstrong |first=John |date=2005-07-02 |newspaper=The New Zealand Herald |access-date=2020-04-08}}

After a series of diplomatic confrontations between France and New Zealand pertaining primarily to issues of compensation and the treatment of the apprehended agents, both governments decided to have their differences arbitrated by a tribunal chaired by then Secretary-General of the UN, Javier Pérez de Cuéllar. His binding ruling was pronounced on 6 July 1986.{{Cite web |url=https://legal.un.org/riaa/cases/vol_XX/215-284.pdf |title=Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair |date=30 April 1990}}

{{See also|Caroline affair}}

Even though the actions of the French state were not a threat to "international peace and security" as held by the UN Charter due to their limited objectives and impact, they were widely held to be acts of international delinquency comprising breach of sovereignty and espionage (though peacetime espionage is not covered by international law). The French memorandum to the secretary general argued that Greenpeace was engaging in "hostile actions" and "illegal penetration" of French territory around the test site and New Zealand acted as a platform for those actions. These arguments were rejected as not fulfilling any of the criteria of international law pertaining to the use of force.{{citation needed|date=April 2020}}

Nowadays conduct which would qualify as an Internationally Wrongful Act committed by an agent of a State can attributed to it via Art. 5 ARSIWA (compare for instance the Teheran Hostages Case by the ICJ), resulting in the obligation of cessation of the wrongful act, assurances of non-repetition and reparation, compare Art. 30 and 31 ARSIWA.{{citation needed|date=April 2020}}

France sought to rely on the doctrine of force majeure in that the medical grounds used to repatriate the agents was unforeseen and beyond its control, thus the treaty's obligation for detention would be impossible. The Arbitration Panel rejected the use of force majeure; while repatriation was justified, the performance of France's obligations under the treaty was not yet rendered impossible.{{Cite web |url=http://www.iilj.org/courses/documents/RainbowWarrior.pdf |archive-url=https://web.archive.org/web/20091229222010/http://www.iilj.org/courses/documents/RainbowWarrior.pdf |url-status=dead |archive-date=2009-12-29 |title=Rainbow Warrior (NEW ZEALAND v. FRANCE) |date=2009-12-29 |access-date=2020-04-08|author=Jiménez de Aréchaga|author2=Sir Kenneth Keith|author3=Professor Bredin}}

France, having admitted responsibility, focused its efforts on the repatriation of its servicemen. This was agreed to by New Zealand on the condition that they would serve out the rest of their sentences. A compromise was reached by the mediation of the UN secretary general to three-year sentences on the French atoll of Hao (at a French naval base). France ultimately returned both agents to mainland France and freed them by May 1988, after less than two years on the atoll.{{Cite web |url=http://archive.greenpeace.org/comms/rw/pkbomb.html |archive-url=https://web.archive.org/web/20120310214637/http://archive.greenpeace.org/comms/rw/pkbomb.html |url-status=dead |archive-date=2012-03-10 |title=THE BOMBING OF THE WARRIOR |date=2012-03-10 |access-date=2020-04-08}}

In terms of reparations, France initially offered an official apology and acknowledgement of breach of international law.{{Cite web |url=https://www.nytimes.com/1987/10/03/world/france-must-pay-greenpeace-8-million-in-sinking-of-ship.html |title=France Must Pay Greenpeace $8 Million in Sinking of Ship |last1=Shabecoff |first1=Philip |date=1987-10-03 |website=The New York Times |access-date=2020-04-08}} Additionally, the UN secretary-general awarded New Zealand US$6.5 million and a further NZ$3.5 million to establish the New Zealand / France Friendship Fund.{{Cite web |url=https://legal.un.org/riaa/cases/vol_XX/215-284.pdf |title=Case concerning the difference between New Zealand and France concerning the interpretation or application of two agreements, concluded on 9 July 1986 between the two States and which related to the problems arising from the Rainbow Warrior Affair |date=30 April 1990}}{{cite book|last1=Boczek|first1=Boleslaw Adam|title=International Law: A Dictionary|date=2005|publisher=The Scarecrow Press, Inc|location=Maryland|isbn=0-8108-5078-8|page=97|url=https://books.google.com/books?id=NR7mFXCB-wgC&q=french+government+apologises+to+New+zealand+for+rainbow+warrior+1986&pg=PA97|access-date=7 May 2016}} This is in addition to compensation which France paid to Pereira's family and to Greenpeace (settled privately).{{Cite web |url=https://legal.un.org/riaa/cases/vol_XIX/199-221.pdf |title=Case concerning the differences between New Zealand and France arising from the Rainbow Warrior affair |website=United Nations}}

The Rainbow Warrior case bolsters the notion that there is a doctrine of non-intervention in international law and that states will be punished for contravening it. It is also an interesting study of state responsibility, individual responsibility, use of force and reparations. Its consideration for international law is slightly hampered by the fact that it was decided by a single individual (the UN secretary general) as a special Tribunal not internationally established. This is because there existed jurisdictional obstacles for an application to the International Court of Justice by New Zealand, most importantly of which was that France did not (and still does not) recognise the jurisdiction of the Court as compulsory.{{cite web|title=Declarations Recognizing the Jurisdiction of the Court as Compulsory|url=http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3|access-date=14 March 2011}}

• The Rainbow Warrior Conspiracy, 1988 miniseries
• The Rainbow Warrior, 1993 film

{{Reflist}}

• Michael Pugh: [https://www.jstor.org/stable/760487 "Legal Aspects of the Rainbow Warrior Affair"], The International and Comparative Law Quarterly, Vol. 36, No. 3. (Jul., 1987), pp. 655–669,
• [https://web.archive.org/web/20091229222010/http://www.iilj.org/courses/documents/RainbowWarrior.pdf Rainbow Warrior (NEW ZEALAND v. FRANCE) France-New Zealand Arbitration Tribunal. 30 April 1990]

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Category:1986 in case law

Category:Arbitration cases

Category:Sinking of the Rainbow Warrior

Category:1986 in international relations

Category:1986 in France

Category:1986 in New Zealand

Category:International law