Rainbow Warrior Case Of 1982

Rainbow Warrior Case Of 1982

Author: S.Shaalini, VITSOL, Chennai.

Abstract

The determination of settling disputes between countries is known as International Arbitration. The fundamental purpose of dispute resolution is linked to the drive of the United Nations ‘to maintain international peace and security. There are several important international dispute cases in the history viz., the Alabama Claims, Jay Treaty (1974), the Rainbow warrior case etc. This article deals about one such Landmark case namely, “Rainbow Warrior” case of 1982 which outlines how the bombing of the ship was executed by the   French intelligence agents, the legal violations associated with this dispute, how the arbitration process resolved the dispute between the countries.

INTRODUCTION:

New Zealand is a small country. France is a major political power, a permanent member of the United Nations Security Council, a militarily powerful state, and a nuclear weapons state. In recent years, many countries have adopted the practice of including arbitration clauses while entering into agreements. They demand that in the event of a dispute between the parties, it shall not be resolved by State courts but referred to a third party, which is an expert of their choice. In general, the arbitration panels are usually  encompassed by more than one person, typically attorneys. International arbitration is consensual unbiased, obligatory, private and enforceable means of international dispute resolution, which is typically faster and less expensive when compared with conventional jurisdictional state court process

International arbitration is occasionally termed a hybrid form of international dispute resolution, since it combinations elements of civil law procedure and common law procedure, while permitting the parties a substantial opportunity to design the arbitral procedure under which their dispute will be determined. International arbitration can be used to resolve any dispute that is considered to be “arbitrable,” a term whose scope varies from State-to-State, but which includes the majority of commercial disputes.

There were many cases which were held important at the International Criminal Court (ICC), and one such important case was the “RAINBOW WARRIOR CASE OF I982” The Rainbow Warrior Case was a dispute between 2 states Viz., France and New Zealand  that arose in the result of the sinking of the Rainbow Warrior ship.  It was arbitrated by Mr. Javier Pérez de CuéllarUN Secretary -General in 1986, and became important in the subject of Public International Law.

RAINBOW WARRIOR CASE OF I982  – AN OVERVIEW:

The international relations / Bilateral relations between New Zealand and France have been generally good since World War I and World War II, with both countries working closely whenever the conflicts occurred but the relationship was severely threatened after the sinking of the Rainbow Warrior in Auckland on 10 July 1985.

On July 10, 1985, the Greenpeace ship Rainbow Warrior, which was due to sail to Moruroa Atoll from New Zealand to protest French atmospheric nuclear-weapons tests there, was sunk by two bomb explosions while it was docked in Auckland Harbour, N.Z. This bomb attack was planted by the French intelligence agents. It was carefully executed in such a manner that the attack on the Rainbow Warrior was without casualties. They made the first shot in the form of a “warning shot” to give people time to get off the boat and then the second would sink it.

A support team of agents from France posing as tourists would ensure that the explosives and the frogmen[1] spent as little time together as possible. During this bomb blast, one of the 11 crew members on board has been killed who was a Portuguese photographer. Two of the French agents were subsequently arrested in New Zealand.

The central event in this account—the destruction of the Greenpeace ship Rainbow Warrior—was an “international incident” since it involved an illegal act committed by the agents of one State within the territory of another State. A narrow legal perspective would then see the matter as a clear violation of one State’s sovereignty by another.

LEGALITY ASSOCIATED WITH THE RAINBOW WARRIOR ISSUE:

ALLEGATIONS AND PUNISHMENT
Charges / Allegation of NZ Against FranceManslaughter[2] and criminal damage
Punishment by NZ to The 2 French AgentsSentenced to ten years of Imprisonment 
INTERNATIONAL DISPUTES ON THIS CASE
Demand from FranceTo release the detained of the 2 agents If not released, New Zealand’s trade disruption with the European communities
Demand from NZClaimed compensation for the damage
ANTICIPATED TRADE EFFECT
  Crippling of NZ economy  NZ at that time was heavily dependent on agricultural exports to Britain and any disruption  on this was expected to  cripple NZ economy  
RESULT  Badly strained bilateral relations    
METHOD ADOPTED FOR RESOLVING THE DISPUTEIn July 1986, a United Nations-sponsored mediation between New Zealand and France INITITATED (arbitration)
JUDGEMENT OF ARBITRATIONThe transfer of the two prisoners to the French Polynesian island of Hao FROM NZ to serve 3 years in prisonApology by France to NZ NZD 13 million payment from France to New Zealand as compensation.

HOW COUNTRIES ACCEPTED ARBITRATION FOR DISPUTE RESOLUTION:

The Rainbow Warrior case strengthens the notion that there is a doctrine[3] of non-intervention in international law and that states will be penalized for breaching it. It is also an exciting study of state responsibility, individual responsibility, use of force. Its contemplation for international law is slightly hindered by the fact that it was decided by a single individual (the UN secretary general) as a special Tribunal[4]not internationally recognized. This is because there existed jurisdictional problems 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 essential

HOW THE ARBITRATION WAS SETTLED:

New Zealand Versus France: Conciliation and The Secretary-General’s Regime (Arbitrator)

In terms of legal interest, a central aspect of the legal process arising from the Rainbow Warrior incident was the resolution of the claims made by New Zealand against France. In itself, the outcome was of interest as an example of the use of the office of UN Secretary-General in the role of conciliation, following the inability of the parties to reach a negotiated settlement

SL NONZ CLAIMFRANCE CLAIMARBITRATOR’S ACTION
  1  New Zealand seeks an apology and claims that it was under national criminal law within New Zealand and France, and less directly rules and procedures within the EC legal order.    France is prepared to give apology but with conditionsNew Zealand seeks an apology. France is prepared to give one Arbitrator ruling is that the Prime Minister of France should convey to the Prime Minister of New Zealand a formal and unqualified apology for the attack, contrary to international law, on the “Rainbow Warrior” by French service agents which took place on 10 July 1985.
    2  The sinking of the “Rainbow Warrior” involved not only a breach of international law, but also the charge of a serious crime in New Zealand for which the 2 French officers received a sentence from a New Zealand court. Further, NZ claims that their release to freedom would undermine the integrity of the New Zealand judicial system.          The French Government seeks the immediate return of the two officers as the imprisonment is not justifiable. The reason being that they acted under military orders and that France is ready to give an apology and to pay compensation to New Zealand for the damage suffered.    1)New Zealand should transfer 2 French agents to the French military authorities immediately and in turn, French military should send them to an isolated island outside of Europe – Island of Hao in French Polynesia for a period of 3 years. 2) While in Isolated island, they are Prohibited from leaving the island for any reason, except with the mutual consent of the 2 Governments. They should be prohibited from any contact with the press or other media whether in person or in writing or in any other manner.   The above conditions should be strictly complied with and proper action should be taken under the rules governing military discipline to enforce them. 3) The French Government should every 3 months convey to the NZ Government and to the Secretary-General of the United Nations, through diplomatic channels, full reports on the situation of 2 French agents in order to allow the New Zealand Government to be sure that decisions taken are being implemented. 4) If New Zealand Government desires a visit to the French military facility in question may be made, by mutual agreement between the 2 Governments, by an agreed third party.  
     New Zealand position that there should be no release to freedom, and the 2 officers should continue their sentence in France if we accept to release them, and that there should be a means of verifying that.    The French response to that is that there is no basis either in international law or in French law on which the two could serve out any portion of their New Zealand sentence in France

CONCLUSION:

The Rainbow Warrior case reinforces the concept that there is a principle of non-intervention in international law and that states will be punished for breaking it. This article also comprehensively addressed the scope of state responsibility, individual responsibility, use of force and damages. Further, this case is a classic example for resolving the international disputes without following the International laws and thru’ Arbitrations.

REFERENCES:

https://en.wikipedia.org/wiki/Rainbow_Warrior_Case

https://www.lawteacher.net/free-law-essays/international-law/the-sinking-of-the-rainbow-warrior-international-law-essay.php

https://en.wikipedia.org/wiki/Sinking_of_the_Rainbow_Warrior

[1] Frogmen-a person who swims under water wearing a rubber suit, flippers, and an oxygen supply.

[2] Manslaughter-the crime of killing a human being without malice aforethought, or in circumstances not amounting to murder.

[3] Doctrine-A legal rule, tenet, theory, or principle

[4] Tribunal- a court of justice.

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