Rainbow Warrior (New Zealand v. France)

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Citation. France-New Zealand Arbitration Tribunal, 82 I.L.R. 500 (1990).

Brief Fact Summary. Two agents, who were convicted of destroying a ship docked in New Zealand, were removed by France on the premise that they required emergency medical treatment.

Synopsis of Rule of Law. The wrongfulness of an act of a state not in consonance with an international obligation is precluded by the “distress” of the author state if there exists a situation of extreme peril in which the organ of the state has, at that particular moment, no means of saving himself or persons entrusted to his care other than to act in a manner inconsistent with the requirements of the obligation.

Facts. A civilian vessel which was docked in New Zealand was destroyed by a team of French agents. The agents, Mafart and Prieur, were extradited and New Zealand sought reparation from the incident. The agents were transferred to a French military facility and subsequently transported to Paris on the basis that they needed medical attention. This dispute was brought before an arbitral tribunal in which New Zealand demanded a declaration that France had breached its obligation and ordered that it return the agents to the facility for the remainder of their sentences.

Issue. Is the wrongfulness of an act of a state not in consonance with an international obligation precluded by the “distress” of the author state if there exists a situation of extreme peril in which the organ of the state has, at that particular moment, no means of saving himself or persons entrusted to his care other than to act in a manner inconsistent with the requirements of the obligation at issue?

Held. Yes. the wrongfulness of an act of a state not in consonance with an international obligation is precluded by the “distress” of the author state if there exists a situation of extreme peril in which the organ of the state has, at that particular moment, no means of saving himself or persons entrusted to his care other than to act in a manner inconsistent with the requirements of the obligation.
In order to justify France conduct, three conditions are required: (1) very exceptional circumstances of extreme urgency involving medical or other considerations, provided by New Zealand; (2) the reestablishment of the original situation of compliance; and (3) a good faith effort to try to obtain the consent of New Zealand. While the removal of Mafart was justified, the removal of Prieur without the knowledge of New Zealand was unjustifiable; and this was a material breach on the part of France.

Discussion. France contention that the circumstances here constituted a force majeure was rejected by the court. “force majeure” is usually invoked to justify unintentional acts and refers to “unforeseen external events” that render it “materially impossible” to act in conformity with the obligation.