## Facts

- French intelligence agents sabotaged and sank the *Rainbow Warrior* in Auckland harbor in July 1985, killing a crew member.
- New Zealand arrested French agents Alain Mafart and Dominique Prieur; both pleaded guilty to manslaughter and criminal damage and received 10-year prison sentences.
- Following diplomatic negotiations and UN Secretary-General mediation, France and New Zealand concluded agreements on July 9, 1986 governing compensation and the agents’ detention.
- The agreements required Mafart and Prieur to be transferred to a French military facility on Hao for at least three years and prohibited them from leaving “for any reason” without the mutual consent of both governments.
- In December 1987, France sought to remove Mafart from Hao for medical treatment; New Zealand requested independent medical verification, but France prevented a New Zealand doctor from examining him on Hao.
- Mafart left Hao without New Zealand’s consent and, after treatment in France, did not return to Hao to complete the agreed term.
- Prieur was later permitted to leave Hao on humanitarian grounds without New Zealand’s prior consent and did not return to serve the remainder of the three-year period.
- New Zealand initiated arbitration under the parties’ arbitration agreement for disputes concerning the interpretation or application of the July 9, 1986 agreements; France relied on circumstances precluding wrongfulness, including distress, force majeure, and necessity.

## Issues

1. Whether France breached the July 9, 1986 agreements by removing Mafart and Prieur from Hao without New Zealand’s prior consent and by failing to ensure their return.
2. Whether distress, force majeure, or necessity precluded the wrongfulness of France’s nonperformance under the law of state responsibility.
3. What remedies were appropriate for any breach, including whether the agents’ return to Hao should be ordered and what forms of satisfaction or compensation were due.

## Decision

- The tribunal held France breached its obligations under the July 9, 1986 agreements by allowing Mafart and Prieur to leave Hao without mutual consent and by failing to reestablish compliance by ensuring their return.
- The tribunal accepted distress only in a limited sense for Mafart’s initial urgent medical evacuation, but not for his continued stay in France after the emergency passed.
- The tribunal rejected distress for Prieur’s removal and non-return, emphasizing the lack of prior notice and mutual consent and the absence of a comparable emergency.
- The tribunal rejected force majeure and necessity as justifications for France’s departures from the agreed detention regime.
- The tribunal granted relief primarily through declarations and satisfaction and did not order the agents’ physical return to Hao, instead providing alternative measures in light of the circumstances.

## Legal Principles

- Where an agreement conditions departure from a defined obligation on “mutual consent,” a party must seek that consent in good faith and may not substitute unilateral action for the agreed procedure.
- Good-faith performance in this context includes providing full and timely information, not obstructing the other party’s ability to verify key facts, and allowing a reasonable opportunity for an informed decision on consent.
- Distress may preclude wrongfulness only in exceptional situations of extreme peril where, at the relevant moment, there is no other means to protect the person(s) concerned; it is limited and does not justify continued noncompliance once the emergency ends.
- A plea of distress requires, among other elements, extreme urgency, reestablishment of compliance after the emergency, and a good-faith effort to obtain the other state’s consent where the obligation so requires.
- Force majeure requires unforeseen external events that make performance materially impossible; medical or humanitarian considerations that permit continued compliance after temporary measures do not meet that threshold.
- Necessity is narrowly available and was not established where the asserted interests did not justify overriding the counterparty’s treaty rights and compliance remained feasible.
- Remedies for breach may include satisfaction and other measures addressing legal and moral injury, and restoration may be denied where impracticable or inappropriate in the circumstances.

## Conclusion

The tribunal concluded that France violated binding mutual-consent detention obligations by removing the agents from Hao and failing to restore compliance; it treated distress as a narrow excuse only for Mafart’s immediate medical evacuation, rejected force majeure and necessity, and awarded declaratory relief and satisfaction rather than ordering the agents’ return.


Rainbow Warrior (N.Z. v. Fr.), 20 R.I.A.A. 217 (Fr.-N.Z. Arb. Trib. 1990)