Public international law, Draft article on State Responsibility, International Arbitration - attribution - Green Peace - Nuclear Explosion - precluding wrongfulness, reparation, repatriation ,

1. RAINBOW WARRIOR
and
State Responsibility
KANNAN KUNNATHULLY
ASSISTANT PROFESOR
SCHOOL OF LAW

2. SOUTH OF NEW
ZEALAND
FRANCE
REGULARLY CONDUCT
NUCLEAR
EXPERIEMENT

3. CIRCUMSTANCES LEADING TO FACT OF
LEGAL DISPUTE
1. FRANCE CONDUCTED MANY NUCLEAR EXPLOSIONS
2. GREEN PEACE IS AN INTERNATIONAL
ORGANISATION WORKING TO PROTECT
ENVIRONMENT
3. GREEN PEACE CAME TO KNOW THAT FRANCE IS
GOING TO NUCLEAR EXPLOSION AGAIN.
4. TO PROTEST, GREEN PEACE SENT ONE OF THEIR
SHIP TO THE TEST SITE. THE NAME OF THE SHIP IS
‘RAINBOW WARRIOR’.

4. Conti…..
5. GREEN PEACE WITH IT CREW ON BOARD WENT TO THE TEST SITE
AND STARTED TO PROTEST AGAINST THE NUCLEAR EXPLOSION AT SEA.
6. BECAUSE OF PRESENCE OF A CIVILAN SHIP, FRANCE HAS TO
POSTPONE THE NUCLEAR TEST. THIS WAS A HOT NEWS IN MANY
COUNTRIES AND GOT INTERNATIONAL ATTENTION.
7. AFTER ONE MONTH OF PROTEST, THE GOODS AND FOODS RAN OUT.
TO FILL THE PROVISIONS AGAIN, GREEN PEACE WAS TAKEN TO THE
NEAREST PORT, WHICH WAS NEW ZEALAND. CREW BELIEVED THAT
BEFORE THEY RETURN. FRANCE WILL NOT CONDUCT EXPLOSION.
8. FRANCE HAS A VERY DIFFERENT IDEA.
9. WHEN RAINBOW WARRIOR WAS DOCKED AT NEWZEALAND PORT,
FRANCE SENT FOUR OF ITS SECRET AGENTS (SPY). PLANTED A BOMB
ON THE SHIP AND EXPLODED.
10. GREEN PEACE GOT DAMAGED AND SUNG INSIDE THE WATER
11. ONE EMPLOYEE OF GREEN PEACE WAS KILLED IN THE INCIDENT.

6. ROLE OF FRANCE
 MANY NATIONS INCLUDING FRANCE CONTEMNED
THIS ACT OF TERRORISM ON GREEN PEACE AND
RAINBOW WARRIOR.
 THINGS GOT A TURN WHEN TWO FRENCH AGENT
GOT ARRESTED IN CONNENCTION OF BOMBING OF
RAINBOW WARRIOR
 FRANCE INITIALLY DENIED ITS INVOLVEMENT
 SUBSEQUENTLY THEY ADMITED THEIR INVOLVEMENT

7. Dominique Prieur Alain Mafart

8. TREATIES SIGNED BY FRANCE AND
NEWZEALAND
 THREE TREATIES (BILATERAL TREATIES( WERE ENTERED INTO.
 THE SUBJECT MATTER OF THE TREATY IS IN CONNECTION WITH THE SPIES
 NEWZEALAND PUNISHED THE SPIES AND SENTENCED THEM TO PRISON
 THE TERMS OF THE TREATY INCLUDE
WHERE THE SPIES HAS TO UNDERGO PRISON TERMS, MUTUAL AGREEMENT ON THE LOCATION OF
PRISON, ETC
 FRANCE AND NEWZELAND AGREED TO
“transferred CONVICTS to a French military facility on the island of Hao for a
period of not less than three years. They will be prohibited from leaving the
island for any reason, except with the mutual consent of the two governments
ONE AMONG THE TREATY CONTAIN AN ARBITRATION CLAUSE TO SETTLE THE DISPUTE ARISING OUT OF
THE BILATERAL AGREEMENT

9. FACTS OF THE CASE
 WHILE UNDERGOING THE PRISON TERMS, WITHIN 3 YEARS
 ALAIN MAFART WAS DIAGNOISED WITH CANCER
AND
 DOMINIQUE PRIEUR GOT PREGNANT
 FRANCE SEND THEIR AIRFORCE TAKEN THE TWO PRISONERS
AND REPATRIATED THEM TO THE MOTHERLAND WITHOUT
THE PERMISSION OF NEWZEALAND
 FRANCE VIOLATED THE TREATY TERMS AND ITS OBLIGATION
 NEWZEALAND INVOKED STATE RESPONSIBILITY.

10. ARBITRATION
France-New Zealand Arbitration Tribunal, 82 I.L.R. 500 (1990)
 AS PER THE ARBITRATION AGREEMENT, AN ARBITRATION
TRIBUNAL WAS CONSTITUTED.
 THE ARBITRATION WAS PRESIDED BY
JIMÉNEZ DE ARÉCHAGA, CHAIRMAN;
SIR KENNETH KEITH AND PROFESSOR BREDIN, MEMBERS)

11. STATE RESPONSIBILITY
INTERNATIONAL LAW COMMISSION –DRAFT ARTICLE ON STATE
RESPONSIBILITY (ILC –DASR)
 ATTRIBUTION:- WHETHER THE UNLAWFUL ACT OF BOMBING CAN BE
ATTRIBUTED TO FRANCE.
 FRANCE INITIALLY ARGUED THAT THERE IS NO LINK. HENCE IT CANNOT BE
ATTRIBUTED TO FRANCE
 LATER THEY AGREED THE LIABILITY AND ADMITTED THE BREACH
 AS PER ARTICLE 4 OF DASR– THE ACTION OF ORGAN OF STATE AMOUNTING TO
INTERNATIONAL WRONGFULNESS, STATE SHALL BE LIABLE
 AS PER ARTICLE 11 OF DASR – IF THE STATE ADMIT THE WRONGFULNESS, THE
LIABILITY IS IMPUTED TO IT.
 HENCE THE LINK IS CREATED AND FRANCE LIABLE

12. FORCE MAJEURE and NECESSITY
 THE FRANCE ARGUED THAT THE ACTED WAS DONE ON NECESSITY
(BETTER MEDICAL TREATMENT) AND BEYOND THEIR CONTROL
(FORCE MAJEURE – PRECLUDING WRONGFULNESS – ARTICLE 23
AND 25 OF DASR)
 ON THE MEDICAL GROUND OF PREGNANCY, CANCER, HEALTH
ISSUES
 NEWZEALAND ARGUED THAT THEY WERE READY TO PROVIDE THE
MEDICAL ASSISTANCE. BUT THE FRANCE ADAMANTLY REPATRIATED
THE CONVICTS TO FRANCE. THIS IS IN VIOLATION OF THE TERMS
OF TREATIES
 ARBITRATION TRIBUNAL OVER RULED THE FRENCH ARGUMENT
AND SUSTAINED THE NEWZEALAND CONTENTION.
 THE QUESTION OF NECESSITY NEVER ARISE BECAUSE THE EQUAL
MEDICAL TREATMENT IS AVAILABLE WITH NEWZEALAND WHICH
WAS OFFERED BUT DISMISSED BY FRANCE

13. REPARATIONS
 COMPENSATION (ARTICLE 31 AND 36 – DASR)
- $7 MILLION DOLLAR WAS AWARDED AND FRANCE
GAVE THE SAME TO NEWZEALAND
 ASSURANCE OF NON REPETITION
SINCE IT IS AN ONE TIME EVENT, THE QUESTION OF
NON-REPETITION WAS NEVER ARISE AND HENCE
DISCARDED
 APOLOGY – FRANCE ON THEIR MEDIA STATEMENT
CONDEMNED THE BOMBING AS WELL AS THE
REPATRIATIONS. THE TRIBUNAL CONSIDERD IT AS
APOLOGY