Tuesday 6 November 2012

Public International Law Case Study: Rainbow Warrior Case


Read the summary of the Rainbow Warrior case and then do the exercises on it below.

The Rainbow Warrior case was a dispute between New Zealand and France. It arose following the sinking of the Greenpeace ship the Rainbow Warrior by French secret forces in Auckland harbour in 1985. In legal terms, the case deals with the nature of (1) ____________. It reinforces the concept that international law contains a doctrine of (2) ____________ which states will be punished for contravening.

For many years France had been conducting underground nuclear tests on the Mururoa Atoll in French Polynesia, claiming that these tests had no impact on the environment. Greenpeace had led protests against the French tests for more than 15 years, including attempts in 1973 and 1982 to send ships into the waters prohibited for navigation by France. In 1985 Greenpeace again planned to send several ships, including the British-registered Rainbow Warrior, into the neighbourhood of the nuclear testing area. On 10 July 1985, an undercover operation ordered by the French military service sank the Rainbow Warrior in New Zealand’s Auckland harbour using two explosive devices, killing one crewman in the process. 

Following this event, two French agents caught in New Zealand were sentenced to ten years’ imprisonment for (3) ___________ and seven years for wilful damage, the terms to run concurrently. The French government refused to extradite other French officials involved in the action to New Zealand, and sought (4) ___________ for the release and return to France of the two agents, arguing that they had acted under military orders.

New Zealand suspended the negotiations in May 1986 after France had imposed (5) ___________ which impeded New Zealand imports. In June 1986 the two states agreed to refer all issues to the Secretary-General of the United Nations, Perez de Cuéllar, for resolution. Mr de Cuéllar achieved a quick (6) ____________ by July 1986, which required France to convey to New Zealand ‘a formal and unqualified apology for the attack, contrary to international law’, to pay USD 7 million to New Zealand as (7) ____________, and to stop impeding New Zealand imports into the EC. New Zealand was required to transfer the two agents to the French military authorities, who were to keep them isolated under military discipline for a period of three years on the island of Hao in French Polynesia. They were not to be permitted to leave the island except with ‘the (8) ____________ of the two Governments’. The ruling also provided a method of (9) ___________ for further disputes between the two parties. 

However, at the end of 1987 and some months later in 1988 France allowed both agents to leave Hao and return to France, partly for alleged medical reasons. This led to a decision of an arbitral tribunal on 30 April 1990, which distinguished between the two repatriation cases. In the first case, France was not found to be in breach of its obligations towards New Zealand by repatriating the agent in December 1987. However, in the second case France was held responsible for a breach by failing to make a good faith effort to secure New Zealand’s consent to the repatriation. The Tribunal also made a recommendation that the two governments should establish a fund aimed at promoting friendly relations between the citizens of both countries, into which the French government was asked to pay USD 2 million.

In addition to the main case described above, there were also (10) ___________. France reached a settlement with the family of the dead crewman and admitted liability towards Greenpeace which resulted in an arbitral award of damages.

Exercise 1: legal terminology

Fill the numbered gaps in the text above with the correct word or phrase from the list below.

a) settlement
b) state responsibility
c) negotiations
d) binding arbitration
e) private claims
f) compensation
g) mutual consent
h) non-intervention
i) manslaughter
j) economic sanctions

Exercise 2: comprehension

Consider the questions below. In each case, decide which of the four statements (a) to (d) given in respect of each question corresponds most closely to the meaning of the passage.

(1) The two French agents who carried out the sinking of the Rainbow Warrior: Zealand:

a) were sentenced to a total term of imprisonment of 17 years by the New Zealand courts.
b) were sentenced to a total term of 10 years by the New Zealand courts.
c) were not handed over to New Zealand by the French government.
d) also murdered one of the Rainbow Warrior’s crew.

(2) The settlement terms achieved by Perez de Cuéllar:

a) required France to buy more imports from New Zealand.
b) required New Zealand to pay USD 7 million to France.
c) required New Zealand to keep the agents imprisoned for a period of three years on an island in French Polynesia.
d) required France to apologise to New Zealand for the sinking of the Rainbow Warrior. 

(3) There was a further arbitration hearing of the case in April 1990:

a) to decide on the question of the repatriation of the two agents to France.
b) to handle the private claims arising from the sinking of the Rainbow Warrior.
c) because a mechanism for arbitration had been established in Perez de Cuéllar’s original settlement.
d) to decide on the amount of compensation to be paid by France.

(4) France was asked to pay USD 2 million:

a) to the family of the dead crewman.
b) into a fund aimed at promoting friendly relations between France and New Zealand.
c) to Greenpeace.
d) to the New Zealand government.

(5) The legal significance of the Rainbow Warrior case:

a) has to do with the concept of state responsibility.
b) is obscure.
c) is that it underscores the concept that states have a duty of non-intervention.
d) is that it is illegal to sink ships belonging to other parties.

Exercise 3: research 

The theory of the law of state responsibility has developed considerably since the Rainbow Warrior case, in particular due to the adoption of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts by the International Law Commission (ILC) in August 2001. Read the Draft Articles here: http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/9_6_2001.pdf

Then consider the following questions:

1) Under what circumstances can one state be held responsible for wrongful acts committed by another state?
2) Under what circumstances can an act committed by an individual be considered as a wrongful act of a state?

Refer to the Answer Key for the answers.

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