## Facts

- French intelligence agents sabotaged Greenpeace’s vessel *Rainbow Warrior* in Auckland, New Zealand, killing a crew member.
- Two agents, Alain Mafart and Dominique Prieur, were convicted in New Zealand and sentenced to imprisonment.
- New Zealand and France concluded two agreements dated July 9, 1986 resolving the dispute, including terms that Mafart and Prieur would be transferred to Hao (French Polynesia) for at least three years and could not leave without mutual consent.
- The parties also agreed to arbitrate disputes concerning interpretation or application of the agreements.
- In December 1987, France removed Mafart from Hao to France for medical reasons without New Zealand’s consent and he did not return.
- In May 1988, France permitted Prieur to leave Hao for France on humanitarian grounds without New Zealand’s consent.
- New Zealand initiated arbitration, alleging France violated the agreements and seeking findings of breach and restoration of compliance; France denied breach or claimed circumstances precluding wrongfulness.

## Issues

1. Whether France breached the July 9, 1986 detention regime by removing Mafart and Prieur from Hao and failing to ensure their return absent mutual consent.
2. Whether France’s conduct was excused by circumstances precluding wrongfulness, including distress, force majeure, or fundamental change of circumstances.
3. What duties of good faith, cooperation, and information-sharing applied to any proposed modification of the detention regime.
4. What remedies were appropriate for any breach, including return to Hao, declarations, and satisfaction.

## Decision

- The tribunal found France breached the detention obligations by removing Mafart and Prieur from Hao and failing to secure their return without New Zealand’s consent.
- The tribunal held distress could justify Mafart’s initial emergency medical evacuation, but did not justify continued noncompliance thereafter.
- The tribunal rejected force majeure and change of circumstances as justifications for France’s nonperformance.
- The tribunal did not order the agents’ physical return to Hao; it granted declaratory relief and satisfaction-oriented remedies tailored to the circumstances and the time elapsed.

## Legal Principles

- Treaty obligations requiring mutual consent for departure from agreed terms must be performed in good faith, including timely disclosure, non-obstruction of verification, and a reasonable opportunity for the other party to decide.
- Distress may preclude wrongfulness only in extreme peril where the state organ has no other means at that moment to safeguard persons in its care; it is limited and conditional, including restoration of compliance as soon as possible and good-faith efforts to obtain consent.
- Force majeure requires an unforeseen external event making performance objectively impossible; intentional policy choices do not qualify.
- Internal law and political constraints do not excuse breach of international obligations.
- Reparation for inter-state wrongful acts may properly take non-pecuniary forms, including declarations of breach and satisfaction for legal and moral injury, where specific performance is impracticable or disproportionate.

## Conclusion

The tribunal held France internationally responsible for breaching a binding detention arrangement that required mutual consent for the agents’ departure, accepted distress only as a narrow justification for an initial medical evacuation, rejected other asserted excuses, and awarded primarily declaratory and satisfaction-based remedies rather than ordering return to Hao.


Rainbow Warrior (N.Z. v. Fr.), 20 R.I.A.A. 215 (Arb. Trib. 1990)