case concerning the difference between new zealand and france which related to the problems arising...

7/29/2019 Case Concerning the Difference Between New Zealand and France Which Related to the Problems Arising From th

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REPORTS OF INTERNATIONALARBITRAL AWARDS

RECUEIL DES SENTENCESARBITRALES

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

30 April 1990

XX pp. 215-284VOLUME

NATIONS UNIES - UNITED NATIONSCopyright (c) 2006


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PART III

Case concerning the difference between New Zealandand France concerning the interpretation orapplication of two agreements concluded on 9 July 1986between the two States and which related tothe problems arising from the Rainbow Warrior AffairDecision of 30 April 1990

Affaire concernant les problmes ns entrela Nouvelle-Zlande et la France relatifs l'interprtationou l'application de deux accords conclusle 9 juillet 1986, lesquels concernaient les problmesdcoulant de l'affaire du Rainbow WarriorSentence du 30 avril 1990


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CASE CONCERNING THE DIFFERENCE BETWEEN NEW ZEA-LAND AND FRANCE CONCERNING THE INTERPRETA-TION OR APPLICATION OF TWO AGREEMENTS, CON-CLUDED ON 9 JULY 1986 BETWEEN THE TWO STATESAND WHICH RELATED TO THE PROBLEMS ARISINGFROM THE RAINBOW WARRIOR AFFAIR*30 APRIL 1990

Violation of a treaty obligation by a treaty partnerRequirement of good faith toseek consent of the other treaty partner before deviating from the treaty obligationRequirement of mutual consent of treaty partnersObligation to act in good faithRequirement of providing full information in a timely manner to the other treatypartnerRequirement of not impeding a party's efforts to verify the information sub-mitted by the other partyRequirement of allowing the other party a reasonable oppor-tunity to reach an informed decision.Relationship between the requirement of mutual consent and unilateral acts of treaty

partnersInvocation of internal law as a justification for non-performance of treatyobligationsChange of circumstances as a reason for non-compliance with treaty obli-gationsCircumstances justifying the continuous breach of a treaty obligationCessa-tion of a wrongful act.Customary sources for determining applicable rules and principles of internationallawInterpretation of treatiesThe law of international responsibilityCircumstancesprecluding illegality of an otherwise wrongful act (force majeure, fortuitous event, dis-tress, state of necessity)Relationship between breach of a treaty and the law of inter-national responsibilityLaw applicable to the determination of the effects of a breach ofa treaty.Tempus commissi delictuDuration of a treaty obligationExistence of damage asa prerequisite for reliefTypes of damage (material, economic, legal, moral, political)Appropriate remedies (restitutio in integrum, satisfaction in the form of a declaration

of cessation of the wrongful act and declaration of obligation)Reparation in the form ofan indemnity for non-material damages.Eduardo Jimenez de Archaga, ChairmanSir Kenneth Keith,Prof. Jean-Denis Bredin, MembersRegistrar: Michael F. HoelleringAssistant Registrar: Philippe P. Chalandon

* The Award was rendered in English and French.217


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218 NEW ZEALAND/FRANCEI. AGREEMENT TO ARBITRATE

1. On 9 July 1986 the Governments of France and of New Zealandconcluded in Paris by an Exchange of Letters* an Agreement submittingto arbitration any dispute concerning the interpretation or application oftwo other Agreements concluded on the same date, which related to theproblems arising from the Rainbow Warrior affair.The text of the letter sent by the Prime Minister of France andaccepted by the New Zealand Government runs as follows:I have the honour to refer to the two Agreements concluded today in the light ofthe ruling of the Secretary-General of the United Nations.On the basis of that ruling, I have the honour further to propose that any dispute

concerning the interpretation or application of either of these two Agreements whichit has not been possible to resolve through the diplomatic channel shall, at therequest of either of our two Governments, be submitted to an Arbitral Tribunalunder the following conditions:(a) each Government shall designate a member of the Tribunal within 30 daysof the date of the delivery by either Government to the other of a written request forarbitration of the dispute, and the two Governments shall, within 60 days of thatdate, appoint a third member of the Tribunal who shall be its Chairman;(b) if, within the times prescribed, either Government fails to designate a mem-ber of the Tribunal or the third member is not agreed the Secretary-General of theUnited Nations shall be requested to make the necessary appointment after consul-tations with the two Governments by choosing the member or members of theTribunal;(c) a majority of the members of the Tribunal shall constitute a quorum and alldecisions shall be made by a majority vote;(d) the decisions of the Tribunal, including all rulings concerning its constitu-tion, procedure and jurisdiction, shall be binding on the two Governments.If the foregoing is acceptable to the Government of New Zealand, I wouldpropose that the present letter and your response to it to that effect should constitutean agreement between our two Governments with effect from today's date.

2. On 14 February 1989 the Parties concluded in New York thefollowing Supplementary Agreement relating to the present ArbitralTribunal:The Government of New Zealand and the Government of the French RepublicR E C A L L I N G the three Agreements concluded by Exchanges of Letters of 9 July1986 following the ruling of the Secretary-General of the United Nations relating tothe Rainbow Warrior affair;R E C A L L I N G F U R T H E R that the third Agreement establishes an arbitral procedurefor the settlement of any dispute concerning the interpretation or application ofeither of the first two Agreements which it has not been possible to settle through thediplomatic channel;N O T I N G that the Government of New Zealand by diplomatic Note of 22 Sep-tember 1988 requested that this procedure be used to settle such a dispute;N O T I N G A L S O that in accordance with the third Agreement an Arbitral Tribunalhas been constituted comprising:Dr. Eduardo Jimenez de Archaga, Chairman of the Tribunal, appointed by thetwo Governments i

* For the exchange of letters see United Nations, Reports of International ArbitralAwards, vol. XIX, pp. 216-221 .


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C A S E C O N C E R N I N G RAINBOW WARRIOR A F F A I R 2 1 9S ir Kenneth K eith, designated by the G overnment of N ew Zealand,Mr. Jean-Denis Bredin, designated by the G overnment of the F rench R epublic;BE A R I N G I N MIND the provisions of the third A greement;B E L I E V I N G it desirable to supplement those prov isions of the third A greementrelating to the functioning and procedures of the Tribunal;H A V E A G R E E D A S FO L L O W S :

Article 11. S ubject to paragraphs 2 , 3, and 4 of this A rticle, the composition of theTribunal shall remain unchanged throughout the period in which it is exercising itsfunctions.2. In the event that either the arbitrator designated by the G overnment of N ew

Zealand or the arbitrator designated by the G overnment of the F rench R epublic is,for any reason, unable or unwilling to act as such, the vacancy may be filled by theG overnment which designated that arbitrator.3. The proceedings of the Tribunal shall be suspended during a period oftwenty days from the date on which the Tribunal has acknowledged such a vacancy.If at the end of that period the arbitrator has not been replaced by the G overnmentwhich designated him the proceedings of the Tribunal shall nonetheless resume.4. In the event that the Chairman of the Tribunal is, for any reason, unable orunwilling to act as such , he shall be replaced by agreement between the two G ov-ernme nts. If the two G overnments are unable to agree within a period of fortydays from the date on which the Tribunal has acknowledged such a vacancy, theS ecretary-G eneral of the U nited N ations shall be requested to make the necessaryappointment after consultation with the two G overnments. The proceedings of the

Tribunal shall be suspended until such time as the vacancy has been filled.Article 2

The decisions of the Tribunal shall be made on the basis of the A greementsconcluded between the G overnment of N ew Zealand and the G overnment of theF rench R epublic by E xchanges of L etters on 9 July 1986, this A greement and theapplicable rules and principles of international law.Article 3

1. E ach G overnmen t shall, within fourteen days of the entry into force of thisA greemen t, appoint an A gent for the purpo ses of the arbitration and shall commu-nicate the name and address of its A gent to the other G overnment and to theC hairman of the Tribunal.2. E ach A gent may appoint a deputy or dep uties. The names and addresses ofsuch deputies shall also be communicated to the other G overnment and to theC hairman of the Tribunal.

Article 41. The Tribunal shall meet at N ew Y ork at such days and times as it maydetermine after cons ultation with the A gents.2. The Tribunal after con sultation with the A gents shall designate a R egistrarand may engage such staff and secure such services and equipment as it deemsnecessary.

Article 51. The procedure shall consist of two parts: written and oral.


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2 2 0 N E W ZE A L A N D /F R A N C E2 . The written pleadings shall consist of:(a ) A Memorial, which shall be submitted by the G overnment of N ewZealand to the R egistrar of the Tribunal and to the F rench A gent within eightweeks after entry into force of this A greemen t;(b) A C ounter-Memorial, which shall be submitted by the G overnment ofthe F rench R epublic to the R egistrar of the Tribunal and the N ew ZealandA gent within eight weeks after the date of receipt by the F rench A gent of theN ew Zealand Memorial;(c) A R eply, which shall be submitted by the G overnment of N ew Zealandto the R egistrar of the Tribunal and the F rench A gent within four weeks afterthe date of receipt by the N ew Zealand A gent of the F rench C ounter-Memorial;

(d ) A R ejoinder, which shall be submitted by the G overnment of theF rench R epublic to the R egistrar of the Tribunal and the N ew Zealand A gentwithin four weeks after the date of receipt by the F rench A gent of the N ewZealand R eply;(e ) S uch other written m aterial as the Tribunal may determine to be neces-sary.3. The R egistrar shall notify the two A gents of the address for d eposit ofwritten pleadings and other written material.4. Each document shall be communicated in six copies.5. The Tribunal may extend the above time limits at the request of eitherG overnment.6. The oral hearings shall follow the written proceedings after an interval ofnot less than two weeks.7. E ach G overnment shall be represented at the oral hearings by its A gent or

deputy A gent and such counsel and experts as it deems necessary for this purpo se.Article 6

E ach G overnment shall present its written pleadings and oral submissions to theTribunal in E nglish o r in F rench. A ll decisions of the Tribunal shall be delivered inboth languages. V erbatim records of the oral proceedings shall be produced eachday in the language in which each statement was delivered. The Tribunal shallarrange for such translation and interpretation services as may be necessary andshall keep a verbatim record of all oral proceedings in E nglish and F rench .Article 7

1 . O n completion of the proceedings, the Tribunal shall render its A ward assoon as possible and shall forward a copy of the A ward, signed by the C hairman andthe R egistrar of the Tribunal, to the two A gents.2 . The A ward shall state in full the reasons for the conclusions rea ched .

Article 8The identity of the A gents and counsel of the two G overnmen ts, as well as thewhole of the Tribunal's A ward, may be made public. The Tribunal may also decide,after consultation with the two A gents and giving full weight to the views of each, tomake public the written pleadings and the records of the oral hearings.

Article 9A ny dispute between the two G overnments as to the interpretation of theA ward may, at the request of either G overnment, be referred to the Tribunal forclarification within three mon ths after the d ate of receipt of the A ward by its A gent.


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C A S E C O N C E R N I N G RAINBOW WARRIOR A F F A I R 2 2 1Article 10

The present A greement shall enter into force on the date of signature.I I . S U M M A R Y O F TH E PR O C E E DIN G S

3. In accordance with A rticle 3 of the S upplementary A greement,each G overnment communicated to the C hairman of the Tribunal thename and address of its A gent.The A gent appointed by N ew Zealand is Mr. C hristopher DavidBeeby, Deputy S ecretary, Ministry of E xternal R elations and Trade,N ew Zealand.The A gent appointed by F rance is Mr. Jean-Pierre Puissochet,C ounselor of S tate, Director of L egal A ffairs, M inistry of F oreignA ffairs, F rance.4. O n 8 May 1989, the Tribunal met in N ew York and appointedMichael F . H oellering as R egistrar, and Philippe P. C halandon as A s-sistant R egistrar.5. The two G overnm ents filed their written pleadings within theagreed time limits.O n 5 A pril 1989 the G overnment of N ew Zealand submitted aMemorial with A nnexes.O n I June 1989 the G overnment of F rance submitted a C ounter-Memorial with A nnexes.O n 30 June 1989 and on 2 7 July 1989 respectively, the partiessubmitted their R eply with further A nnexes and a R ejoinder.6. With the written stage of the proceedings concluded the Tri-bun al, following con sultations w ith the A gents of both P arties, fixed thedate of the opening of oral proceedings for 31 O ctober 1989. O ralproceedings were held in N ew York from 31 O ctober to 3 N ovember1989. The following persons attended:F or N ew Zealand:R t. H on. D. R . L ange, A ttorney G eneral, as L eader of the Del-egation,Mr. C . D. Beeby, Deputy S ecretary, Ministry of E xternal R elationsand Trade, as A gent and C ounsel,Professor D . W. Bowett, Q. C ., Whewell Professor of In ternationalL aw, U niversity of C ambridge, as C ounsel,Mr. C . R . K eating, A ssistant S ecretary, Ministry of E xternal R ela-tions and Trade, as C ounsel,Mr. D . J. M cKay, C ounsellor, Ministry of E xternal R elations andTrade, as C ounsel,M s. J. A . L ake, L egal C onsultant, Ministry of E xternal R elationsand Trade, as C ounsel;F o r F r a n c e :M r. Jean-Pierre Puissochet, C ounselor of S tate, Director of L egalA ffairs, M inistry of F oreign A ffairs, as A gent and C ounsel,


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222 NEW ZEALAND/FRANCEMr. Prosper Weil, Professor of the Paris University of Law, Eco-nomics and Social Sciences, as Counsel,Mrs. Brigitte Stern, Professor of the University of Paris X at Nan-terre, as Counsel,Mr. Vincent Coussirat-Coustre, Professor of the University ofLille II, as Counsel,Mrs. Marie-Reine d'Haussy, Assistant Director, Legal Depart-ment, Ministry of Foreign Affairs, as Counsel,Mr. Franois Alabrune, Secretary, Legal Department, Ministry ofForeign Affairs, as Counsel,Mr. Jean-Paul Esquirol, Controller-General of the Army, asExpert,Mr. Jean-Paul Algret, Lieutenant Colonel, as Expert,Professor Charles Laverdant, Member of the Academy of Medi-cine, as Expert.The oral proceedings were recorded in conformity with Article 6 of theSupplementary Agreement.

III. FINAL SUBMISSIONS OF THE PARTIES7. The final submissions of the parties are as follows:For New Zealand, in the Memorial:

144. In conclusion, New Zealand respectfully requests the Tribunal to grantthe following relief:(a) A declaration that the French Republic:(i) breached its obligations to New Zealand by failing to seek in good faiththe consent of New Zealand to the removal of Major Mafart and Cap-tain Prieur from the island of Hao;

(ii) breached its obligations to New Zealand by the removal of MajorMafart and Captain Prieur from the island of Hao;(iii) is in breach of its obligations to New Zealand by the continuous ab-sence of Major Mafart and Captain Prieur from the island of Hao;(iv) is under an obligation to return Major Mafart and Captain Prieurpromptly to the island of Hao for the balance of their three year periodsin accordance with the conditions of the First Agreement;

(b) An order that the French Republic shall promptly return Major Mafart andCaptain Prieur to the island of Hao for the balance of their three yearperiods in accordance with the conditions of the First Agreement.For France, in the Counter-Memorial:

ConclusionFor all the reasons set out in the foregoing chapters, the Government of the FrenchRepublic respectfully requests that the Arbitral Tribunal reject the requests of NewZealand.

For New Zealand, in the Reply:Conclusion

In its Counter-Memorial France has failed to establish any reason, whether byreference to law or fact, why New Zealand should not be granted the relief it seeks.


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CASE CONCERNING RAINBOW WARRIOR AFFAIR 223Accordingly, New Zealand respectfully maintains its request for a declaration andan order for specific performance, as set out in paragraph 144 of its Memorial.

For France, in the Rejoinder:Conclusion

For all the reasons set out in the foregoing chapters, the Government of the FrenchRepublic once again respectfully requests that the Arbitral Tribunal reject the re-quests of New Zealand.Oral conclusions:For New Zealand:

Mr. President, I have made it clear that New Zealand sees no reason to make anymodification of its request to this Tribunal for a declaration and order as set out inparagraph 144 of the New Zealand Memorial.For France:I ts Agent reaffirmed its earlier " . . . conclusions whose main thrust is to encourageyou to reject the entire New Zealand request".

IV. THE FACTSThe 1986 Ruling and Agreements

8. On 10 July 1985, a civilian vessel, the Rainbow Warrior, notflying the New Zealand flag, was sunk at its moorings in AucklandHarbour, New Zealand, as a result of extensive damage caused by twohigh-explosive devices. One person, a Netherlands citizen, Mr. Fer-nando Pereira, was killed as a result of this action: he drowned when theship sank.9. On 12 July 1985, two agents of the French Directorate Generalof External Security (D.G.S.E.) were interviewed by the New ZealandPolice and subsequently arrested and prosecuted. On 4 November 1985,they pleaded guilty in the District Court in Auckland, New Zealand, tocharges of manslaughter and wilful damage to a ship by means of anexplosive. On 22 November 1985, the two agents, Alain Mafart andDominique Prieur, were sentenced by the Chief Justice of New Zealandto a term of 10 years imprisonment.1 0. On 22 September 1985, the Prime Minister of France issued acommuniqu confirming that the Rainbow Warriorhad been sunk byagents of the D.G.S.E. under orders. On the same day, the FrenchMinister for External Affairs indicated to the Prime Minister of NewZealand that France was ready to undertake reparations for the con-sequences of that action.1 1 . Bilateral efforts to resolve the differences that had arisensubsequently between New Zealand and France were undertaken over aperiod of several months. In June 1986, following an appeal by PrimeMinister Lubbers of the Netherlands, the two Governments formallyapproached the Secretary-General of the United Nations and referred tohim all the problems between them arising from the Rainbow Warrioraffair for a binding Ruling.


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224 NEW ZEALAND/FRANCE

12 . On 6 July 1986, the Secretary-General of the United Nationsissued the following:Ruling

The issues that I need to consider are limited in number. I set out below myruling on them, which takes account of all the information available to me. My rulingis as follows:1. Apology

New Zealand seeks an apology. France is prepared to give one. My ruling isthat the Prime Minister of France should convey to the Prime Minister of NewZealand a formal and unqualified apology for the attack, contrary to internationallaw, on the "Rainbow Warrior" by French service agents which took place on10 July 1985.2. Compensation

New Zealand seeks compensation for the wrong done to it, and France is readyto pay some compensation. The two sides, however, are some distance apart onquantum. New Zealand has said that the figure should not be less than US Dollars9 million, France that it should not be more than US Dollars 4 million. My ruling isthat the French Government should pay the sum of US Dollars 7 million to theGovernment of New Zealand as compensation for all the damage it has suffered.3. The two French service agents

It is on this issue that the two Governments plainly had the greatest difficulty intheir attempts to negotiate a solution to the whole issue on a bilateral basis beforethey took the decision to refer the matter to me.

The French Government seeks the immediate return of the two officers. Itunderlines that their imprisonment in New Zealand is not justified, taking intoaccount in particular the fact that they acted under military orders and that France isready to give an apology and to pay compensation to New Zealand for the damagesuffered.

The New Zealand position is that the sinking of the "Rainbow Warrior" in-volved not only a breach of international law, but also the commission of a seriouscrime in New Zealand for which the two officers received a lengthy sentence from aNew Zealand court. The New Zealand side states that their release to freedomwould undermine the integrity of the New Zealand judicial system. In the course ofbilateral negotiations with France, New Zealand was ready to explore possibilitiesfor the prisoners serving their sentences outside New Zealand.

But it has been, and remains, essential to the New Zealand position that thereshould be no release to freedom, that any transfer should be to custody, and thatthere should be a means of verifying that.

The French response to that is that there is no basis either in international lawor in French law on which the two could serve out any portion of their New Zealandsentence in France, and that they could not be subjected to new criminal pro-ceedings after a transfer into French hands.

On this point, if I am to fulfil my mandate adequately, I must find a solution inrespect of the two officers which both respects and reconciles these conflictingpositions.

My ruling is as follows:(a) The Government of New Zealand should transfer Major Alain Mafart and

Captain Dominique Prieur to the French military authorities. Immediately there-after, Major Mafart and Captain Prieur should be transferred to a French militaryfacility on an isolated island outside of Europe for a period of three years.

(b) They should be prohibited from leaving the island for any reason, exceptwith the mutual consent of the two Governments. They should be isolated during


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C A S E C O N C E R N IN G RAINBOW WARRIOR A F F A I R 2 2 5their assignment on the island from persons other than military or associated person-nel and immediate family and friends. They should be prohibited from any contactwith the press or other media whether in person or in writing or in any other manner.These conditions should be strictly complied with and appropriate action should betaken under the rules governing military discipline to enforce them.

(c) The F rench G overnment should every three months convey to the N ewZealand G overnment and to the S ecretary-G eneral of the U nited N ations, throughdiplomatic chann els, full rep orts on the situation of Major Mafart and C aptain Prieurin terms of the two preceding paragraphs in order to allow the N ew Zealand G overn-ment to be sure that they are being implemented.(d ) If the N ew Zealand G overnment so requests, a visit to the F rench militaryfacility in question may be mad e, by mutual agreement between the two G overn-ments, by an agreed third party.(e ) I have sought information on F rench military facilities outside E urope. O n

the basis of that information, I b elieve that the transfer of Major M afart and C aptainPrieur to the F rench military facility on the isolated island of H ao in F rench Poly-nesia would best facilitate the enforcement of the conditions which I have laid downin paragraphs (a ) to (d) above. My ruling is that this should be their destinationimmediately after their transfer.4. Trade issues

The N ew Zealand G overnment has taken the position that trade issues havebeen imported into the affair as a result of French action, either taken or in prospect.The F rench G overnm ent denies tha t, but it has indicated that it is willing to givesome undertakings relating to trade, as sought by the N ew Zealand G overnment.I therefore rule that France should:(a) N ot oppose continuing imports of N ew Zealand butter into the U nitedKingdom in 1987 and 1988 at levels proposed by the C ommission of the E urope anC ommunities insofar as these do not exceed those mentioned in document C O M (83)574 of 6 O ctober 1 983, that is to sa y, 77.000 tonnes in 1 987 and 75.000 tonnes in 1 988;and (b ) N ot take measures that might impair the implementation of the A greementbetween N ew Zealand and the E uropean E conomic C ommunity on Trade in Mut-ton, L amb and G oatmeat which entered into force on 2 0 O ctober 1 980 (as com-plemented by the E xchange of L etters of 12 July 1984).

5. ArbitrationThe N ew Zealand G overnment has argued that a mechanism should exist to

ensure that any differences that may arise about the implementation of the agree-ments concluded as a result of my ruling can be referred for binding decision to anarbitral tribunal. The G overnment of F rance is not averse to that. My ruling is thatan agreement to that effect should be concluded and provide that any dispute con-cerning the interpretation or application of the other agreements, which it has notbeen possible to resolve through the diplomatic channel, shall, at the request ofeither of the two G overnm ents, be submitted to an arbitral tribunal. (The ruling thenmade the specific proposals for arbitration which were later incorporated in theA greement set out in para. 1 of this A ward.)6. The two G overnments should conclude and bring into force as soon aspossible binding agreements incorporating all of the above rulings. These agree-ments should provide that the undertaking relating to an apology, the paymentof compensation and the transfer of Major Mafart and C aptain Prieur should beimplemented at the latest on 25 July 1986.7. O n one matter I find no need to make a ruling. N ew Zealand, in its w rittenstatement of position, has expressed concern regarding compensation for the familyof the individual whose life was lost in the incident and for G reenpea ce. T he F renchstatement of position contains an account of the compensation arrangements that


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2 2 6 N E W ZE A L A N D /F R A N C Ehave been made; I understand that those assurances constitute the response thatN ew Zealand was seeking".

1 3. In accord ance w ith paragraph 6 of the R uling, the F rench andN ew Zealand G overnm ents concluded in Paris, on 9 July 1 986, byE xchanges of L etters, three A greements which incorporated the provi-sions of the R uling. The first of these A greem ents, which relates to th esituation of the two F renc h officers, ru ns as follows:On 19 June 1986, wishing to maintain the close and friendly relations whichhave traditionally existed between N ew Zealand and F rance, our two G overnments

agreed to refer all of the problems betw een them arising from the R ainbow W arrioraffair to the S ecretary-G eneral of the U nited N ations for a binding R uling. In thelight of that R uling, made available on 7 July 1 986,1 have the honour to propose thefollowing:The Prime M inister of F rance will convey to the Prime Minister of N ew Z ealanda formal and unqualified apology for the attack, contrary to international law, on theR ainbow W arrior by F rench service agents which took place in A uckland on 10 July1985. F urtherm ore, the F rench G overnment will pay the sum of U S $ 7 million to theG overnment of N ew Zealand as compensation for all the damage which it hassuffered.The G overnment of N ew Zealand will transfer M ajor A lain Mafart and C aptainDominique Prieur to the French military authorities. Immediately thereafter, MajorMafart and C aptain Prieur will be transferred to a F rench m ilitary facility on theisland of H ao for a period of not less than three years.They will be prohibited from leaving the island for any reason, except with themutual consent of the two G overnments. They will be isolated, during their assign-ment in H ao, from persons other than military or associated personnel and im-mediate family and friends. They will be prohibited from any contact with the pressor other media, whether in person, in writing or in any other manner. These condi-tions will be strictly complied with and appropriate action will be taken under therules governing military discipline to enforce them.The F rench G overnment will every three months convey to the N ew ZealandG overnment and to the S ecretary-G eneral of the U nited N ations, through diplo-matic chann els, full repo rts on the situation of Major M afart and C aptain Prieur interms of the two preceding paragraphs in order to allow the N ew Zealand G overn-ment to be sure that these paragraphs are being implemented as agreed.If the N ew Zealand G overnment so reques ts, a visit to the facility on H ao maybe made, by mutual agreement between the two G overnments, by an agreed thirdparty.The undertakings relating to an apology, the payment of compensation and thetransfer of Major Mafart and C aptain Prieur will be implemented not later than25 July 1986.

1 4. In accord ance with the R uling and the F irst A greemen t, offi-cers Mafart and Prieur were transferred from N ew Zealand to a F renchmilitary facility on the island of H ao on 2 3 July 1 986, and the oth erobligations undertake n in para. 2 of the A greement were implem ented.The Case of M ajor Mafart

1 5. On 7 December 1987 the French Ministry of Defence wasadvised by the com mand er of the H ao military base that the condition


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CASE CONCERNING RAINBOW WARRIOR AFFAIR 227of Major Mafart's health required examinations and immediate care,which could not be carried out locally. The Minister of Defence thendecided to send a medical team to the site. This team was led by aprincipal A rmy doctor, D r. M aurel, from the V al-de-G race H ospital inParis.16. O n 10 Decem ber 1987 (H ao date), Dr. Maurel sent the Minis-try of Defence a message, received in Paris on Friday 11 December,stating that Major Mafart "poses the etiological and therapeutic prob-lem of stabbing abdom inal pains in a patient w ith a history of similar, andstill unlabeled, problems. The results of today's examination indicatethe need for explorations in a highly specialized environment. H iscondition justifies an emergency return to a hospital in mainland F ranc e.A bsent any formal notice from you to the contrary, I pro pose that thisevacuation take place by the S unday 13 Decem ber 1987 aircraft".1 7. On 11 December 1987, a Friday, the Minister of Defenceconveyed D r. M aurel's message to the Minister of F oreign A ffairs,adding that he planned to proceed with officer Mafart's health-relatedrepatriation. H e also asked the Minister of F oreign A ffairs to "co ntac tthe N ew Zealand G overnment through the proced ures stipulated in theagreement signed with that G overnm ent".1 8. O n 11 December 1987, at 6.59 p. m. (Paris time; it was6.59 a.m. on Saturday 12 December in Wellington) the Minister ofF oreign A ffairs sent the F rench A mbassador in Wellington a telegramasking him to im mediately give the N ew Zealand au thorities a verbalnote containing all the information that the F rench G overnment had justreceived (Dr. Maurel's medical opinion was attached to this note). TheF rench G overnment, referring to the 1986 A greement, asked "th e N ewZealand G overnm ent to consent to Major M afart's urgent health-relatedtransfer to a hospital in mainland F ra nc e" .The F rench A mbassador was instructed to stress the fact that theonly m eans of transport immediately available between H ao and Pariswas the military aircraft leaving H ao S unday morning. The A mb assadorwas asked to add that "the state of Major Mafart's health absolutelyrequired that he be examined without delay in a highly specializedmedical facility w hich exists neither in H ao nor in Pa pe ete ".19. O n 12 December 1987, between 10 a.m. and 11 a.m. (Welling-ton time) the F rench A mbassador con tacted a senior official of the N ewZealand Ministry of F oreign A ffairs, comm unicating the abov e mes-sage.2 0. A bout 4 hours later, between 2 .00 and 3.00 on the afternoon ofS aturday, 12 December 1987, the N ew Zealand G overnment answeredthe preceding communication by note verbale which stated that "inorder to enable the requ est to be examined with the care it deserv es, theN ew Zealand G overnment will require a N ew Zealand assessment tobe made of Major M afart's medical condition. A ccordingly, urgentarrange m ents are now being mad e for a suitably qualified N ew Zealandmilitary d octor to fly on a N ew Z ealand military aircraft to H ao for thispu rp os e" . The note added that "t he M inistry seeks urgent confirmationthat the F rench authorities will give the necessary clearance for a


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2 2 8 N E W ZE A L A N D /F R A N C Emilitary flight to H ao for this purp ose . D etails of the pro pose d flight willbe given to the Embassy as soon as possible".In transmitting the preceding note verbale to his G overnm ent theF rench A mbassador added that the N ew Zealand S enior official w hohanded him the note inquired whether the departure date scheduled forMajor M afart's evacuation , that is, 13 Decem ber at 4.00 a.m ., w as in factthe H ao date. If so, this would correspond to the N ew Zealand date ofMonday 14 December.2 1 . O n 12 December 1987 the F rench A mbassador in W ellingtonadvised the F rench Ministry of F oreign A ffairs that he was given thefollowing information relating to the projected visit to H ao of a N ewZealand m ilitary doctor arriving by A ir F orce plane:

Type of aircraft P3 O R IO NR egistration N ew Zealand 6204F light number N .P . 0999Pilot L ieutenant B. R . C larkC rew 12 membersPassengers 1 doctor and 1 interpreterDepart A uckland S unday 13 December 7.00 a.m.(N ew Zealand date and time)A rrive H ao S aturday 12 December 4.00 p.m .(French Polynesia date and time)C all sign Kiwi 999F acilities requested F uel 35,000 pounds A vtur.2 2 . On 12 December 1987 at 5.11 p.m. (Paris time), equivalent to5.11 a.m. on 13 December 1987 (Wellington time), the Ministry ofF oreign A ffairs sent by telegram to the F rench A mbassador in Welling-ton the response to be delivered to the N ew Zealand authorities. D ue tothe time shift, this response was received in Wellington early on Sundaymorning 13 Decem ber 1987, some sixteen hours after the N ew Zealandproposal in para. 20 above.The French authorities indicated that, to their great regret, they wereunable toauthorize a N ew Zealand aircraft to make a stop on the H ao military ba se. Ind eed,for imperative reasons of national security, access to this base is strictly regulatedand is prohibited to foreign aircraft. This is the reason why Major Mafart and MajorPrieur were transported to the H ao base in July 1986 by a F rench military aircraft,which had come to pick them up at the Wallis airport, to which they had beentransported from N ew Zealand by a N ew Zealand military plane.

The F rench authorities added that ' ' the F rench G overnment agreesto allow Major Mafart to be examined, as soon he arrives in mainlandF ranc e, by a physician designated by N ew Zealand. If applicable, itwould be willing to consider covering the cost of sending a N ew Zealandphysician to F ran ce, if this solution was preferred by the N ew ZealandG o v e rn m e n t" .2 3. O n 13 December, the F rench A mbassador advised that theN ew Zealand Prime M inister could not accept the F rench proposal


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CASE CONCERNING RAINBOW WARRIOR AFFAIR 229but advanced new proposals, taking into account the impossibility oflanding at H ao. A ccording to the N ew Zealand Mem orial, the N ewZealand G overnment put forward tw o alternatives: that a N ew Zealandmedical doctor be flown to Pap eete, Tahiti, by a N ew Z ealand m ilitaryaircraft, and then onw ard to H ao by F rench military aircraft; o r, ifF rance preferred, that the N ew Zealand medical doctor be flown toPapeete by a commercial flight and then onward to H ao by F renchmilitary aircraft.

The F rench A mbassador in Wellington advised his G overnmentsomewhat differently: "M r. L ange proposes the following: N ew Zea-land dispatches a military doctor to Papeete as soon as possible bycommercial airline. The French party undertakes to transport him toH ao so that he can perform his medical assignment there. A fter beingbrought back to Papee te, he returns to N ew Zealand to submit hisconclusions to the N ew Zealand a utho rities".

2 4. O n 14 December (Wellington time), the F rench A mbassadorsent the following no te to the N ew Zealand M inistry of F oreign A ffairs:AThe New Zealand request to have Major Mafart examined by a New Zea-land physician who would go to Hao, via Papeete, then return to Auckland to reportto his Government, who would then make their decision known, would delay theFrench officer's health-related transfer to mainland France by an excessive periodof time that could be as long as several days, given the available transport opportu-nities. The French authorities feel that this additional delay is abso lutely incompati-ble with the urgency, stressed by the doctor who examined Major Mafart, of trans-porting the Major to a highly specialized medical facility in mainland France.BIn carrying out their duty to protect the health of their agents, the Frenchauthorities, in this case of force majeure, are forced to proceed, without any furtherdelay, with the French officer's health-related repatriation. Major Mafart will leaveHa o on S unday 13 Decem ber at 2.00 (local time) on board a military plane that willarrive in Paris on M onday 14 Decem ber at about 10.00 (local time) after a technicalstop in Pointe--Pitre.CThe French authorities reiterate that they are willing to allow Major Mafartto be examined by a physician chosen by New Zealand, as soon as he arrives inParis, and that they are even willing to cover the cost of sending a physician fromNew Zealand for this purpose, if this solution is preferred by the New Zealand

Government.DAll measures have been taken to insure the confidentiality of the entireoperation and to see to it that it remains secret, in any event until Major Mafart canbe examined in mainland France by the physician designated by the New Zealandauthorities".2 5. O n 14 Dece mb er 1987 at 9.30 (Paris time), O fficer Mafartarrived in Paris. H e was taken to the V al-de-G race H ospital where hewas examined and treated by Professor D aly, head of the V al-de-G racemedical clinic, a professor of medicine and a specialist in gastroen-terology.2 6. A note delivered on 14 Decemb er 1987 from the N ew ZealandE mbassy to the F rench M inistry of F oreign A ffairs stated:

N ew Zealand views with considerable con cern, and w ishes to record its seriousobjection to the unilateral action tak en, in the absence of N ew Zealand con sent, totransfer Major A lain Mafart to F rance on S unday 13 December 1987.


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230 NEW ZEALAND/FRANCE

New Zealand regards this action as a serious breach of both the letter and thespirit of the obligations undertaken pursuant to the Ruling of 6 July 1986 by theSecretary-General of the United Nations.

The first approach to the New Zealand Government about a possible medicalevacuation of Mafart was made by the Ambassador of France in New Zealand atapproximately 10.00 a.m. New Zealand time on Saturday 12 December. From thatmoment the New Zealand side has acted with great sensitivity to the humanitarianconsiderations involved and has worked hard, in a sympathetic and pragmatic way,to ensure that both medical requirements and requirements of principle were left inbalance.

Within four hours of the receipt of the French request a proposal had beenapproved by the New Zealand Prime Minister and conveyed to the Ambassador ofFrance which would have enabled examination in Hao of Mafart by a New Zealanddoctor the following afternoon.

That proposal was rejected by the French side after 16 hours delay on the basisthat it was undesirable that a New Zealand aircraft should land at Hao. New Zealandthen immediately offered to transport its doctor to Tahiti, with France providingonward transportation to Hao. That proposal could also have been accomplished ina similar time frame had it not been for the delay on the part of the French author-ities.

New Zealand reserves its right to submit the question of Mafart's transfer fromHao to arbitration in accordance with the agreed procedures set out in the Exchangeof Letters of 9 July 1986. Nevertheless the New Zealand Government is willing towork constructively with the French Government to reach a resolution of the matterand, to this end, New Zealand awaits the French response to the proposals madetoday in a separate communication to the Prime Minister of France from the PrimeMinister of New Zealand.

2 7. The letter from the Prime Minister of New Zealand to thePrime Minister of France, dated 14 December 1987, read as follows:I have been advised that, without the consent of the New Zealand Government,

Major Mafart was taken some hours ago by French military aircraft from Hao formedical examination in metropolitan France.

My purpose in writing to you is not to deal with the legality of the action whichhas been takenthat is clear and will be the subject of a note from the New ZealandEmbassy to the Quai d'Orsaybut to explore with you the best means of dealingwith the situation which this unilateral action has created.

Your authorities have advised us that a New Zealand doctor may examineMafart on his arrival in Paris; and arrangements are now being made to enable this tobe done. I would of course expect that our doctor's examination of Major Mafartwill confirm a medical condition requiring urgent specialist examination. Should ourdoctor's examination of Major Mafart confirm the need for urgent specialist atten-tion then I suggest that we might proceed on the basis of an agreement as follows:

(a) compliance with the Exchange of Letters of 9 July 1986, by the return ofMajor Mafart to Hao, will be restored as soon as his medical condition permits andhe will be so returned even if further maintenance treatment is required which couldbe continued on Hao;

(b) the conditions contained in the Exchange of Letters of July 1986 relating toMajor Mafart's isolation, including the prohibition of any contact with the press orother media whether in person, in writing or in any other manner will continue toapply during such time as Major Mafart is in metropolitan France;

(c) the French authorities will transmit regularly to the New Zealand Govern-ment medical reports on Major Mafart's condition and, if requested, will undertakeconsultations with a designated New Zealand doctor and permit subsequent exam-inations;


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C A SE C O N C E R N IN G RAINBOW WARRIOR A F F A I R 2 3 1(d ) in the event of disagreement between our two G overnments that MajorM afart's m edical condition is such as to permit his return to H ao, the issue will be

referred to the S ecretary-G eneral of the U nited N ations for his decision;In the event that our doctor's examination does not confirm a medical conditionrequiring urgent specialist attention then he shall be returned forthwith to H ao and inthe event that there is disagreement as to that then the provisions of (d ) shall app ly.I should be grateful for your urgent confirmation that this proposal is acceptableto you.I think I should add that when Major Mafart is returned to H ao I intend,pursuant to the E xchange of L etters of 9 July 1 986, to request the agreement of yourG overnment to a visit to H ao by a representative of the S ecretary-G eneral of theU nited N ations. I should also note, in this regard, that in view of the essential roleplayed by the S ecretary-G eneral in this matter, I have thought it proper to advisehim of these developments.I hope that Major Mafart's health will improve.2 8. O n 14 Decem ber 1987 N ew Zealand sent a doctor to examineA lain Mafart. A t 4.00 p. m . (Paris time) officer Mafart was examinedby Dr. R . S . C roxson, a national of N ew Zealand, residing in L ondon.Dr. C roxson, with the cooperation of F rench authorities and medicaldoctors, was able to conduct a substantial physical examination ofofficer Mafart, becoming acquainted with all his health records, inconsultation with the French doctors.Dr. C roxso n's report to the N ew Zealand authorities of 14 Decem-ber 1987 concerning his examination of Major Mafart read as follows:

Questions Dr. Croxson was asked to address:(a ) whether Mafart has a condition which, in your opinion, required specialistinvestigation not likely to be available in the presumably limited military facilities onH a o ;(b ) whether in your opinion the symptoms and conditions were such as tojustify an emergency evacuation;(c) an account of the nature of the specialist investigations to be undertaken,including the likely length of time for the investigation;(d) your opinion, if any, on whether or when he would be fit to be returned toH a o ;(e) whether in your opinion the patient may be simply a malingerer.

Conclusions from Dr. C roxson's report on Major Mafart, 14 Decem ber 1987:(a ) I believe M afart needed detailed investigations which were no t available onH a o ;(b) A lthough D r. M aurel appeared impressed by the severity of his pain andsymptom s, when I asked if he thought Mafart m ight need an emergency operation hehesitated and I had the feeling he did not really feel at this stage that immediatesurgery was going to be required but was m ore impressed by the recurring n ature ofthe symptoms. I think it is therefore highly arguable whether an emergency evacua-tion as opposed to a planned urgent evacuation was necessary;(c) 2-3 weeks;(d) when investigations and observations are completed (possibly 3-4 weeks),as the doctors may wish to keep him under observation to witness a further attackshould their investigations not disclose any other significant abnormalities;{e ) all the medical facts are very consistent and I do not think he is a malin-gerer.


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2 3 2 N E W ZE A L A N D/F R A N C E29. O n 18 December 1987 Dr. C roxson submitted a second repo rt,which read as follows:

OpinionThe further sequencing and investigations would sound appropriate for some-body with such a longstanding story of recurrent abdominal pain and distension fromprobable adhesions. The investigations would normally take a further one to twoweeks. I do not think that they are being excessively slow on their investigations,but are pursuing them in a fairly logical manner. Perhaps the investigations could becompressed over five or six days rather than the planned two week s, although I didnot take this point up with Professor Daly. Professor Daly offered to discuss bytelephone with me the further results on Monday 4 January at the same time.I did not tape record my conversation with Professor Daly, and I think I was alittle limited in not having F rench interpretation. N onetheless the results of the

investigations and the planned sequencing really do sound quite app ropriate . G iventhe long history, I suspect most clinicians would like to witness an episode of severepain and abdominal distension. I did not raise the question again of exploratorysurgery, nor did Professor Daly indicate to me that there was any question of this atthe present time.Professor Daly indicated that he had read my full medical report and agreed thatit was a totally accurate picture of his (Professor Daly's) medical facts as outlined tome. We did not discuss the acute management of Mafart as it appeared to D r. Maurelwhen he arrived at H ao on 10 December.30. O n 19 Decem ber 1987 the Ministry of F oreign A ffairs of theF rench R epublic addressed a formal note to the N ew Zealand E mb assy,answering the 14 December formal note in the following terms:

The F rench G overnment thinks that Major M A FA R T 's transfer to Paris on De-cember 13 to undergo em ergency medical examinations and the care necessitated byhis condition cannot be analyzed as a failure to meet the obligations under theagreement resulting from the E xchanges of L etters on 9 July 1986 between F ranceand N ew Zealand, following the intervention of the S ecretary-G eneral of the U nitedN ations.On 11 December, when it appeared imperative to have Major M A F A R T undergomedical examinations as soon as possible in a highly specialized environment, theN ew Zealand M inistry of F oreign A ffairs w as contacted in order to secure the N ewZealand authorities' consent to the French officer's transfer to Paris by militaryflight departing H ao on 14 December. The N ew Zealand authorities then made theirconsent contingent upon a doctor's examination of Major M A F A R T on H ao and, forthis purpose, proposed that the required physician be transported to the Frenchmilitary base by a N ew Zealand military plane. But, as the N ew Zealand authoritieswere moreover aw are, given the nature of the H ao base, foreign aircraft wereexcluded from landing there. In this connection, the French Ministry of ForeignA ffairs recalls that, when Major M A F A R T and C aptain P R I E U R were transportedfrom N ew Zealand to H ao, this impossibility was m ade known and resulted in theirbeing forced to change planes at the Wallis airport.The solution of having a N ew Zealand physician come to the Papeete airportand be transferred from that city to H ao by a F rench plane was also examined. But itwas immediately ascertained that, given the technical possibilities and the fact thatthe doctor would have to return via the same arrangements, so that he could reportto his G overnment, the result of this procedure would have been that no decision

could be made for several days.U nder these con ditions, the only solution, in the spirit of the A greement of9 July 1986 and of the conversations that led up to it, was to evacuate Major M A F A R Tand permit the physician designated by N ew Zealand to ascertain his state of healthas soon as he arrived in Paris. The F rench G overnment is happy to point out, in this


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C A SE C O N C E R N I N G RAINBOW WARRIOR A F F A I R 2 3 3regard, that the N ew Zealand authorities accepted this solution and dispatchedDr. C R O X S O N to Paris for this purpose.

It noted with satisfaction the very positive appraisal that the N ew ZealandG overnment gave of the frankness, cando r and full cooperation th at Dr. C R O X S O Nenjoyed while carrying out his assignment.It o bserves tha t the conclusions of the report written by this doctor, which wereconveyed to it on 16 December by the N ew Zealand E mbassy in Paris, concur withthose of the French physicians and show that there were perfect grounds for thedecision to transport Major M A FA R T to a highly specialized facility existing only inmainland France.The F rench G overnment shares the desire expressed by the N ew ZealandG overnm ent, in its note , to participate constructively in the examination of thisma tter, about which the Prime M inister will send a message to the Prime M inister ofN ew Zealand under separate cover.31 . O n 23 Decem ber 1987 the Prime M inister of F rance addressedthe following letter to the Prime M inister of N ew Zealand:

The emergency conditions under which Major M A FA R T had to be returned toFrance to undergo medical examinations, which you asked about in your letter of14 December, must, as you yourself indicate, be examined between us in order toanalyze the main elements of the situation.It is certainly not necessary to recall the details of the circumstances of thistransfer, which, I am sure, you are perfectly familiar with. It was following thedispatch of a F rench military do ctor, alerted by the M inistry of Defence, that thenecessity became apparent on 11 December of having Major M A FA R T examined assoon as possible in a highly specialized environment, which could not be found onF rench territory ex cept in Paris. Through our Ministries of Foreign A ffairs, contactswere immediately made for the purpose of obtaining your country's consent, inaccordance with the A greement concluded on 9 July 1 986 by the E xchanges ofL etters following the intervention of the Secretary-G eneral of the U nited N ations,which them selves resulted from secret conversations between our two G overn-ments. Your representatives then indicated their desire to be permitted to haveMajor M A FA R T examined by a N ew Zealand physician. H oweve r, it was quicklyascertained th at this was not possible by direct landing of a N ew Z ealand airplane onthe island of H ao, w hich is a military base clo sed to foreign aircraft. You will alsorecall that the transfer of Major M A FA R T and C aptain PRIEUR from N ew Zealand toH ao had required a change of planes in Wallis, for the same reaso n.It also became clear that the solution that your representatives immediatelyproposed, which consisted of flying a docto r from N ew Zealand to Pape ete, thenfrom Papee te to H ao, by F rench military plane, and returning this doctor via thesame route so that he could report to his G overnment, would have required a delayof several days, which seemed contrary to the imperative interests of Major MA -F A R T ' S health.U nder these conditions, the only remaining solution w as to defer, until hisarrival in Paris, Major M A F A R T ' s examination by a doctor of your choosing, whichwas done. In this regard, I noted the very positive appraisal that you and your staffgave to the quality of the cooperation that Dr. C R O XSO N enjoyed from the F renchdoctors. The reception given to your compatriot, his access to all the necessarydocuments, and the in-depth examination of Major M A F A R T , which he was able todo, showed the spirit of openness that we bring to this matter.M oreover, as you undoubtedly recall, the eventuality of illness, and, in the caseof Captain P R I E U R , of pregnancy, were precisely the conditions that led to thestipulation, in the July 1986 A greement, of the possibility of leaving the island. Th isemerges from the secret negotiations of our two G overnm ents, conducted , on re-spective sides, by Mr. BEEBY and Mr. G U I L L A U M E , which prepared the way for theintervention of the U nited N ations S ecretary-G eneral, and of which we have kept avery accurate transcript. Dr. C R O X S O N , at your request, drew up a medical report,


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2 3 4 N E W ZE A L A N D /F R A N C Ethe conclusions of which, not being covered by medical confidentiality, were con-veyed to the Ministry of Foreign Affairs by your Embassy in Paris. This reportshows that Major M A F A R T was in need of substantial medical examinations whichcould not be done in H ao and which were to last several weeks. I n response to aquestion that you asked him, Dr. C R O X S O N added that Major M A F A R T was by nomeans a malingerer and that he was indeed ill.Thus, all the circumstances of this affair confirm my feeling that we have actedwith moderation and discretion and that we should now await the results of theexaminations underway in order to be able to appraise the state of Major M A FA R T 'Shealth with better knowledge of the facts.Such are the indisputable facts, verified by individuals that you designated. Youwill understand that, under these conditions, I was surprised by the public accusa-tions that you immediately m ade against this officer and against the F rench author-ities, whereas I had proposed that this operation be kept confidential and that thefact themselves showed the correctness of the decision that I made.H owever, I h ave just learned that you feel, after a new examination of all of theelements of this affair, that there was no longer any point to the intervention of theS ecretary-G eneral of the U nited N ations, to which you alluded to in your letter. Thisway of seeing things corresponds to the attitude that I personally adopted by re-fusing to engage in a polemic. Indeed, I am convinced that our two countries todayshould endeavor to turn the page and resume a constructive relationship, in keepingwith the long tradition of friendship between our two nations.32. O n 23 December 1987 the E mbassy of N ew Zealand answeredthe two com munications in paragraphs 30 and 31 abov e by the followingnote:

The N ew Zealand E mbassy presents its compliments to the Ministry of ForeignA ffairs and has the hon our to convey , on instruction , the following resp onse tocertain of the assertions contained in the Ministry's N ote of 19 December 1987 andthe letter to the Prime M inister of N ew Zealand from the Prime Minister of F rancedelivered in Wellington on 23 December.N ew Zealand rejects the view advanced by the F rench side that the transfer ofMajor M afart from H ao was in accordance with the ruling of the U nited N ationsS ecretary-G eneral and the Exchanges of L etters of 9 July 1986 between N ew Zea-land and France.O n a point of fact, the sequence of dates set out in the Ministry's N ote isinaccurate. N ew Z ealand w as advised of Mafart's condition late in the morning of12 December (N ew Zealand time). A bout midnight on 13 December (N ew Zealandtime)about 39 hours lateradvice w as given by the F rench A mbassador in Wel-lington (and also by the Quai d'O rsay to the N ew Zealand E mbassy) that he hadalready been removed from H ao.The request for consent w as presented as a humanitarian em ergency. N ewZealand respond ed prom ptly and sympathetically offering to send a N ew Zealanddoctor for an on the spot examination so that, if the medical condition of Mafartjustified it, consent could be given within the time frame requested by the Frenchauthorities. The quickest option involved a flight direct to H ao. It was a matter forthe F rench au thorities to judge w hether their position abou t clearances for foreignaircraft at H ao was of greater impo rtance to them than what was said to be a seriousmedical emergency. The long delay in responding and the terms of that responsecalled in question the veracity of the so-called emergency.It is manifestly incorrect to state that the N ew Zealand side, when confrontedwith this response from F rance, suggested an option that w ould have prevented adecision for several days. The F rench A mbassador in Wellington was told that thedoctor could be transpo rted imm ediately to Papeete by N ew Zealand military air-craft (or alternatively, if the F rench side preferred, civilian aircraft o ptions could beexplored) for onw ard transport to H ao by F rench m ilitary aircraft.


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C A S E C O N C E R N I N G RAINBOW WARRIOR A F F A I R 2 3 5There is no basis in fact for the extraordinary statement that the N ew Zealanddoctor would have had to return to N ew Zealand to make a report before a decision

could be made.N ew Zealand formally disputes the suggestion that the decision to evacuateMajor Mafart was in accord with the spirit of the A greement or the S ecretary-G en-eral's R uling or any preliminary discussions. I t w as, on its face, a clear breach ofboth the letter and the spirit of the Ruling and the Exchanges of Lettersa breachwhich called in question the credibility of F ran ce's commitment to honor und er-takings in this matter. There is not and was never at any stage of the discussionsbetween F rance and N ew Zealand, an agreement or understanding that N ew Zea-land would automatically agree to a request for medical evacuation. The relevantclause in the A greement means precisely what it says.N ew Zealand also rejects the suggestion that its decision to accept the offer tosend a N ew Zealand d octor to Paris to examine Major M afart can or could be

construed as acceptance by the N ew Zealand authorities of the evacuation of Mafartwithout N ew Zealand co nsent. That suggestion has no basis in fact and is wholly atvariance w ith the terms of the E mba ssy's N ote 1987/103 of 14 December 1987 whichrecorded N ew Z ealand's serious objection to the unilateral action taken by F rance.N ew Zealand reiterates that its proposals put forward on 12 and 13 Decemberwere m ade in good faith. N ew Zealand w as not refusing consent but seeking clarifi-cation. That could have been accommodated in a number of ways and very quickly.The objective evidence now available confirms that there was in fact no emergencyand no justification for the F rench authorities setting a deadline of the kind that theydid. F urthermore, N ew Zealand could have been advised of the situation consider-ably earlier. It is also clear beyond any doubt that had there in fact been a genuineemergen cy, N ew Zeala nd's req uests for clarification (which were entirely reason-able and appropriate) could have been met within the time frame proposed hadF rance been willing to work positively and constructively to that end. R esponsibilityfor the delay in obtaining N ew Zealand consent lies at F rance 's do or.

33. On the same day, 23 December 1987, the Prime Minister ofN ew Zealand answ ered the Prime M inister of F rance in the followingterms:Thank you for your letter which I have received today. I appreciate the sen-timents you have expressed about the need to restore and maintain the cordialrelations between N ew Zealand and F rance. I must say, however, that the fact thatyou have not in your response addressed the substantive issues that were containedin my letter of 14 December, is a matter of grave concern to me and my G overnment.If we are to turn a page as you suggest, then what we need is a satisfactory

assurance that as soon as the medical investigations of Major Mafart have beencompleted and he has undergone any treatment which can only be given in Paris, hewill be returned to H ao.O ur medical advice is that these investigations w ill be completed s hortly. I m ustsay to you that, in the absence of a satisfactory response by 30 December to theproposals set out in my earlier letter, we will have no choice but to conclude thatF rance is unwilling to comply w ith its legal obligations. In that event we will feelcompelled to invoke the arbitration provisions of the S ecretary-G eneral's R uling andthe A greement of 9 July 1986.L et me also say that at no stage have we indicated that there w as no role for theU nited N ations S ecretary-G eneral in seeking to resolve this matter. To the contrary,I specifically mentioned this role in my letter and in various public statements.

I have discussed the situation with him and we have kept him fully informed and willcontinue to do so. H e has also, as you know, taken various initiatives of his own.Finally, there are a number of points in your letter (which are also mentioned inrecent discussion between our officials) which I do not accept. I have asked the N ewZealand E mbassy in Paris to convey our views on these matters to the Quai d'O rsay.


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2 3 6 N E W ZE A L A N D /F R A N C EI have also asked our E mbassy to set in motion a request for a visit to H ao by a thirdparty in accordance w ith the R uling and the A greement of 9 July 1 986.34. O n 30 Decem ber 1987 the F rench M inistry of F oreign A ffairssent a note to the N ew Zealand E mbassy answering the N ew Zealandcommunications in paras. 32 and 33 above, in the following terms:

The Ministry of F oreign A ffairs was surprised by the sharp tone of the refer-enced documents and therefore feels it is a good idea to respond so as to enable abetter understanding of the F rench G overnm ent's point of view.The M inistry of F oreign A ffairs recalls that Major M afart is currently stillundergoing medical examinations, the necessity of which has been acknowledged byboth the F rench doctors and Dr. C roxson. T hese examinations will not be com-pleted until early January; Dr. C roxson has also indicated that he was on vacationuntil 4 January. So, today, no one can say what the doctors' conclusions will be.The Ministry of F oreign A ffairs is surprised tha t, under these conditions of fact,the N ew Zealand authorities could have doubted the F rench intentions in connec-tion with respecting the July 1986 A greemen t; it goes without saying that MajorMafart will return to H ao when the state of his health perm its.It emphasizes that, on the second and third points brought up in Mr. L ange 'sletter of 14 December (isolation of Major Mafart, specifically from the press and themedia, plus disclosure of m edical reports, as well as examinations by a N ew Zealanddoctor), N ew Zealand has received from the beginning, and will continue to rec eive,full satisfaction.A discussion of possible recourse to the S ecretary-G eneral of the U nited N a-tions in the event of a disagreement between the two G overnments over the pos-

sibility of returning Major M afart to H ao, given the state of his health, seem spointless, for the reasons indicated ab ove. H owever, if the question did arise, theF rench G overnment would have the greatest apprehensions about appealing to theS ecretary-G eneral of the U N to resolve any dispute over the evaluation of theofficer's health. F irstly, this is not the procedure stipulated in the A greement of9 July 1986, which in this case expressly provides for settlement by arbitration;secondly, just as the intervention of the high authority represented by the S ecretary-G eneral was necessary to solve all the problems born of the R ainbow W arriorincident, so it may seem out of proportion with the limited issue here involved,should it arise.A s for the conditions under w hich the decision to return Major M afart to F rancewas made becaus e of the state of his health, the M inistry of F oreign A ffairs rejectsthe N ew Z ealand assertion that the refusal to let a N ew Zealand airplane land onH ao in itself gives rise to doub t as to the emergency na ture of Major M afart'sevacua tion. A s it has already had occas ion to point out, the impo ssibility of allowinga foreign aircraft to land on H ao is absolute and was well known to N ew Zealand.The Ministry of F oreign A ffairs notes that N ew Zealand maintains that there isno factual basis for the statement that the N ew Zealand doctor who would have beentaken to H ao on a F rench m eans of transportation after a connection in Papeetewould have had to return by the same route to N ew Zealand in order to report to hisG overnment before a decision could be made. H owever, it points out that thisinformation was conveyed to it from Wellington by the F rench A mbassador imme-diately following the telephone conversation which took place on Sunday 13 Decem-ber at about 1 .00 p.m . between the A mbassador and Mr. Beeby.It d oes not share the opinion expressed in note N o. 1987/107 as to the spirit ofthe A greement resulting from the E xchange of L etters on 9 July 1 986. A lthoughleaving the island requires the consent of both G overnments, and although thisconsent should, insofar as circumstances permit, be prior, it remains that the provi-sion in question here was inserted with precisely the possibility of an illness in mindand that, in this cas e, approval could not be reasonably refused.


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CASE CONCERNING RAINBOW WARRIOR AFFAIR 237

The Ministry of Foreign Affairs does not see any need to quibble, at this stage,over the meaning of New Zealand's agreement to send a doctor to Paris and, on thispoint, refers purely and simply to this doctor's findings, which, in its eyes, cor-roborate the French doctors' appraisals of the nature of the ailments that MajorMafart is suffering from.

The New Zealand Government has requested the application of the provision ofthe Agreement of 9 July 1986 which stipulates that "If the New Zealand Governmentso requests, a visit to the Hao military installation may, by common agreementbetween the two Governments, be made by an approved third party." Referring tothe remarks made by the New Zealand Charge d'Affaires when the note of 24 De-cember was submitted, it is the understanding of the Ministry of Foreign Affairs thatthe purpose of the request would be to verify the presence of Captain Prieur on Hao.In this regard, it gives the Government of New Zealand the most formal assurance.However, if the New Zealand Government intends to persist in its request, theFrench Government will agree to it in principle in order to avoid any erroneousinterpretation. However, the Ministry of Foreign Affairs does feel that, in this case,there would be no grounds for asking the Secretary-General of the United Nations todesignate a representative to make this visit. Indeed, it points out that, as is con-firmed by the secret conversations that led up to it, the Exchange of Letters of 9 July1986 provides that the visit must be made by a third party approved by commonagreement between the two Governments. If a visit must take place, France pro-poses that it be entrusted to Dr. T. Maoate, Vice Prime Minister and Minister ofHealth of the Cook Islands, given the geographical proximity and the historical tiesbetween the Cook Islands and New Zealand. Dr. Maoate could be transported by aFrench military airplane either from Papeete or directly from the Cook Islands. Inthe absence of specific clauses in the Agreement of 9 July 1986, the cost of thismission should be paid by the requesting Government.

35. On 4 January 1988 a third report from Dr. Croxson transcribedwhat Professor Daly, the doctor in charge of Mafart, proposed to do asfollows:1. To supervise Major Mafart closely and in particular to witness if possible amajor crisis at which time he would have a surgical consultation available.2. To this end Major Mafart must remain close to his department near the

hospital. Professor Daly would wish to review him should any new crisis appear andwould be seeing him regularly at least once weekly for the next three to four weeks,and in his opinion Mafart should not return to Hao until the diagnosis and plan oftreatment is more certain.

3. He feels that Mafart is very tired after the many investigations and explora-tions and is anxious in view of the diagnosis still not being settled, and he feels thatsome degree of "convalescence" for about three to four weeks is necessary.

4. He feels that perhaps exploratory surgery might be necessary, but againemphasized that he is not keen on blind laparotomy in view of the danger of newadhesions. I understand that he is proposing to discharge Mafart later this week andto review him once weekly.

Professor Daly and I agreed that this was a difficult clinical problem. ProfessorDaly also indicated that he would contact me in the event of any major crisisappearing in the next few days, and unless something further developed I wouldcommunicate with him next Monday, 11 January.Professor Croxson concluded:

Professor Daly's point about observing him for a longer period, particularly totry and witness a major episode when one would have a surgical opinion, is a veryorthodox and appropriate clinical management.


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2 3 8 N E W ZE A L A N D /F R A N C E36. O n 5 January 1988 the E mbassy of N ew Zealand conveyed tothe F rench Ministry of F oreign A ffairs the following response to theMinistry's note of 30 December 1987:

Without addressing all of the points contained in the Ministry's note and whilereserving N ew Z ealand 's legal position and, in particular, its right to commencearbitration procee dings, the explicit assuran ce that Major Mafart will return to H aowhen his health permits is very welcome. Furthermore the assurance given withrespect to C aptain Prieur is also welcomed, and it is hoped that these two as suran-ces, together with the ongoing cooperation at the medical level, will provide a basisfor resolving the remaining issues between F rance and N ew Z ealand.37. O n 11 January 1988 a fourth report from Dr. C roxson wasproduced. In this report, Dr. C roxson advised that "n o clear abnor-mality has been demonstrated on the previous investigations", adding

that "the plan is to examine him again in one week's time or earliershould crisis develop".38. O n 18 January 1988 Dr. C roxson advised that in a telephoneconversation with Professor Daly the F rench Professor told him that"the situation had not altered clinically since last week", that "he hasno final firm diagn osis" and that the final report w ould be available on27 January 1988.39. O n 21 January 1988 the N ew Zealand E mbassy, being advisedthat Professor Daly would be preparing a final report on 27 January,expressed the wish to have Major Mafart re-examined by their medicaladvisor, Dr. C roxson, assisted by a specialist, Dr. C hristopher M allin-son, a gastroenterologist practicing in the U nited Kingdom. This requ estwas agreed to by the French authorities and their examination tookplace on 25 January 1988.40. On 28 January 1988 Professor Daly advised that:

Major A lain M A F A R T was hospitalized on 14 December 1987 at the VAL-de-G R A C E hospital where he underwent in-depth radiological, biological and clinicaltests. G iven the need for clo se, specialized medical observation and on the basis ofthe standards of fitness governing military personnel, he must be considered as unfitto serve overseas for an indefinite period.ProspectsMedical Decision:1. G iven the curren t uncertainties of the diagnosis, it does not seem w arrantedto propose an exploratory laparotomy right away for this abdominal ailment.2 . Depending on the subsequent clinical development, various additional testscan be considered:barium enemaWirsungography and pancreas functionMesenteric arteriographyThese points have been discussed with Professor M A L L I N S O N andD r . C R O X S O N .3. S o, close observation is called for in order to forestall a more acute crisis,which is liable to entail a surgical procedure, or to schedule the aforementionedexplorations.4. So, Major M A F A R T must be kept in mainland F rance insofar as this obser-vation can be done only in a modern, well-equipped hospital center.Because of these exigencies, and pursuant to the standards of fitness governingF rench military person nel, he is declared unfit to serve ov erseas for an indefiniteperiod.


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C A S E C O N C E R N I N G RAINBOW WARRIOR A F F A I R 2 3 941 . O n 5 F ebruary 1988 the Ministry of F oreign A ffairs conveyedProfessor D aly's report to the N ew Zealand E mb assy, adding that theMinistry "feels that, given the medical conclusions that it has beengiven, it is not po ssible at presen t for M ajor M afart to return to the islandof H ao. H ence , it is planned that M ajor Mafart will receive a m ilitaryassignment in mainland F ran ce in which he will continue to be subject tothe clauses resulting from the E xchange of L etters of 6 July 1 986,specifically as regards contact with the press and other communicationmedia".42 . O n 12 F ebruary 1988 Dr. C roxson submitted his fifth report,stating, inter alia, that:

D r . Ma ll in s on , con s u l ta n t ga s tr oe n te r ologis t , a n d mys e lf e xa min e d Ma j or Ma -f a rt in the V a l-d e -G r a ce hos pi ta l on Mo n d a y 2 5 J a n u a r y in the pr e s e n c e of a n d w iththe a s s is ta n ce of Pr of e s s or D a ly a n d D r . L a ve r d a n t . . . w e r e vie w e d a ll the in ve s -t iga t ion s , x-r a ys , la b or a tor y s tu d ie s w hich ha d b e e n ca r r ie d ou t . . .

Major M afart has remain ed well, s ince his last repo rt on 18 Jan uar y, with n oma j or e pis od e s of pa in or a b d omin a l d is te n s ion . H e ha s b e e n e a t in g a l ight a n dva r ie d d ie t a n d l ivin g in a hou s e w ithin the hos pi ta l con f in e s . . . H e d id n ot a pp e a rd e pr e s s e d ; his pu ls e , b lood pr e s s u r e a n d te mpe r a tu r e w e r e n or ma l . . .The report concluded as follows:I believe the investigations have proceeded at a very slow pace and could wellhave been compressed within one to two weeks. There was no evidence produced toshow that Major Mafart had an impending obstruction at the time he was evacuatedfrom H ao and certainly if he had, he should have been airlifted to the nearest general

surgical center, which we believe exists in Tahiti. It would have been dangerous tohave flown him to Paris.We do not believe that he needs to remain in the confines of a major hospitalcenter for the indefinite future but that he could be returned to H ao now , continuelife as normal, rest during minor attacks and obtain treatment from the militarymedical facilities in H ao if the attacks w ere of a more severe n ature com parable tothe satisfactory management of the two previous attacks in July and Decemberwhich were carried out at H ao.In the unlikely event that a major crisis with acute irreversible obstruction didoccur, and we emphasize that none have appeared in the last 22 years, surgicaltreatment in Tahiti would be the logical appropriate and safest management. We donot feel that mesen teric angiography nor an E R C P are essential investigations in hismanagement; if they were they could have been carried out by now.43. O n 18 F ebruary 1988, the N ew Zealand E mbassy addressed anote to the F renc h M inistry of F oreign A ffairs recalling the position ofthe N ew Zealand G overnment:the unilateral removal of Major M afart from H ao without the consen t of the N ewZealand G overnment constituted a violation of F rance's obligations to N ew Zealandunder the R uling of July 1986 by the U nited N ations S ecretary-G eneral and theA greement of 9 July 1 986 between N ew Zealand and F rance.The note added:

The medical reports available to both parties fully support the N ew Zealandposition, which is corroborated by other evidence. There was no medical situationrequiring emergency evacuation and the alternative proposals suggested by N ewZealand for medical examination prior to giving consent to his departure werereasonable.Despite the existence of this dispute regarding F ran ce's application of theR uling and the A greement, and while fully reserving its legal position at every


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2 4 0 N E W ZE A L A N D/F R A N C Estep, N ew Zealand h as, because of the humanitarian characteristics of the situa-tion, coo perated fully w ith the F rench programme of medical examination of Ma-jor Mafart.H owever, the extended n ature of these medical examinations has been a matterof concern to the N ew Zealand G overnment and, according to the medical reports,also to Major Mafart himself. Dr. C roxson 's reports indicate that they have beenunnecessarily extended . . . Dr. C roxson 's advice, supported by Dr. M allinson, isthat there is no medical reason for M ajor M afart's return to H ao to be any furtherdelayed. The position of the Ministry . . . that Major Mafart is unfit for militaryservice overseas is noted. But in N ew Zealand's view that is not relevant to thequestion of compliance with F ranc e's obligations to N ew Zealand under the A gree-ment. The issue is whether compliance should now be restored. Dr. C roxso n'sadvice is unequivocal. Major M afart is medically fit to return to H ao. The nature ofthe assignment, if any, given to him in that place is not an issue.

44. O n 21 July 1988 Dr. C roxson presented a final report on Ma-jor Mafart that states:N o change in Major M afart's condition since last examination, 25 January 1 988.N o major episodes of severe abdominal pain, abdominal distension and none re-quiring hospitalization or special investigation. My conclusions of my report of12 February 1988 remain and indeed are strengthened by this further period of fivemonths of observations.45 . A ccording to the F rench C ounter-Mem orial A lain M afart,who was evacuated in Decem ber 1987 for health reaso ns, was declared"repatriated for health re aso ns" on 11 March 1 988. A fter a temporaryassignment at the H ead O ffice of the N uclear E xperimentation C enter,

he was assigned on 1 S eptember 1988 to the War C ollege in Paris, afterpassing the entrance examination, for which he had taken the writtenpart in H ao and the oral part in Paris. O n 1 O ctober 1988, he waspromoted to the rank of L ieutenant C olonel.Mr. Bos' Visit to Hao

46 . O n 28 March 1988 an agreed third party, a N etherlands offi-cial, designated by the two G overnm ents for the purp ose, visited H ao .Mr. A driaan Bos subm itted on 5 A pril 1 988 a report indicating that hehad had an interview w ith C aptain Dom inique Prieur, and that hermilitary function on H ao is that of officier conseil and officier adjoint. Inthe former capacity she performs certain social functions, while in thelatter she deputizes for the C omm ander of the base in carrying outcertain du ties. A few mo nths after arrival on H ao, on 22 July 1986, shewas joined by her hu sband , w ho is also an officer.Mr. Bos advised that " the re are approximately 17 officers on H ao .Tours of duty on H ao are normally limited to one yea r" . Mr. Bos addedthat "Dominique Prieur and her husband have access to the normalrecreational facilities at the base . A s regards contact with her family,Dominique Prieur said that her mother had visited her twice and herparents-in-law once".

The Case of C aptain Prieur47 . The F rench C ounter-M emorial states that on 3 May 1 988, theF rench Ministry of F oreign A ffairs received a medical report indicating


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C A S E C O N C E R N I N G RAINBOW WARRIOR A F F A I R 2 4 1that Dominique Prieur was 6 weeks pregnant. The report stated thatthis pregnancy should be treated with special care for several reasons:Mrs. Prieur was almost 39 years old; her gynecological history; the factthat this would be her first child. It also indicated that the medicalfacilities existing on H ao were un able to provide the necessary medicalexaminations and the care required by Mrs. Prieur's condition.48. O n the same day, 3 May 1988, the N ew Zealand A mbassadorin Paris was advised of the above information and answered that shewould inform her G overnment. The N ew Zealand A mbassador notedthat she " ag ree s that the medical facilities existing on H ao are clearlyinappro priate, but it was her understanding that Papeete did have all therelevant necessary equipment".

49. The next day, 4 May 1988, the N ew Zealand G overnmentanswered the F rench M inistry of F oreign A ffairs, stating:While N ew Z ealand's consent is required in terms of the 1986 A greement, this isnot a case where, if the medical situation justifies it, consent would be unreasonablywithheld.The N ew Zealand G overnment would like, on the basis of medical consultation,to determine the na ture of any special treatmen t that C aptain Prieur might need andthe place where the necessary tests and on-going treatment could be carried out ifthe facilities at H ao are not adequa te.A s a first step to coming to an agreement on this basis, the N ew Zealandauthorities are making arrangements for a N ew Zealand military doctor with therequisite qualifications to fly on the first available flight to Papeete for onward flight

to H ao.The answer added that Dr. Brenner, a civilian consultant to theR oyal N ew Zealand N avy , qualified in obstetrics and gynecology, wasstanding by to travel to Papeete on that day, 4 May.50. The F rench M inistry of F oreign A ffairs, on the same day,4 May, "agre ed to the dispatching of Dr. B ernard Brenner to H ao assoon as po ssib le", adding that " this solution was suitable to us and thatall the arrangements would be made for the N ew Zealand doc tor's trip toPapeete and his transfer to H ao, definitely on the morning of 5 M ay ".51 . O n 5 May 1988, the N ew Zealand Ministry of F oreign A ffairsinformed the F rench A mbassador to N ew Zealand "th at, due to thecontinuing U TA strike, Dr. Brenner and his interpreter are forced todelay their arrival in Pap eete, which they will reach by A ir N ew Zea-land. L eaving A uckland on F riday, 6 May at 8.40 p. m ., they will arrivein Papeete the same day at 3.25 a. m. (Papeete time). If extreme urgencyso requires, a connection to Papeete by military plane could be envis-aged".52 . O n 5 May 1988 at 11 .00 a.m. (F rench time), the N ew ZealandA mbassador in Paris was told that the F rench G overnment had beeninformed of a "new development", namely, that Dominique Prieur'sfather, hospitalized for treatment of a cancer, was dying. The FrenchG overnment informed the A mbassador that "for obvious hum anitarianreasons" Dominique Prieur had to see her father before his death. Itwas proposed "bearing in mind the previous conversations regardingMrs. Prieur's pregna ncy" that either Dr. Brenner, the N ew Zealanddoc tor, leave A uckland w ithin three o r four hours on a special flight

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