Jurisdiction- Arbitral Tribunal through ‘Supplemantary Agreement’ concluded on 14th February, 1989.
Facts –
A civilian vessel which was docked in New Zealand was destroyed by a team of French agents.
The agents, Mafart and Prieur, were extradited and New Zealand sought reparation from the incident.
The agents were transferred to a French military facility and subsequently transported to Paris on the basis that they needed medical attention.
This dispute was brought before an arbitral tribunal in which New Zealand demanded a declaration that France had breached its obligation and ordered that it return the agents to the facility for the remainder of their sentences.
Issues –
Is the wrongfulness of an act of a state not in consonance with an international obligation precluded by the “distress” of the author state if there exists a situation of extreme peril in which the organ of the state has, at that particular moment, no means of saving himself or persons entrusted to his care other than to act in a manner inconsistent with the requirements of the obligation at issue?
Judgement – (excerpts from the judgement)
The Government of New Zealand should transfer Major Alain Mafart and Captain Dominique Prieur to the French military authorities. Immediately thereafter, Major Mafart and Captain Prieur should be transferred to a French military facility on an isolated island outside of Europe for three years.
They should be prohibited from leaving the island for any reason, except with the mutual consent of the two Governments. They should be isolated during their assignment on the island from persons other than military or associated personnel and immediate family and friends. T
They should be prohibited from any contact with the press or other media whether in person or writing or any other manner. These conditions should be strictly complied with and appropriate action should be taken under the rules governing military to enforce them.
The French Government should every three months convey to the New Zealand Government and the Secretary-General of the United Nations, through diplomatic channels, full reports on the situation of Major Mafart and Captain Prieur.
If the New Zealand Government so requests, a visit to the French military facility in question may be made, by mutual agreement between the two Governments, by an agreed third party
I have sought information on French military facilities outside Europe. Based on that information, I believe that the transfer of Major Mafart and Captain Prieur to the French military facility on the isolated island of Hao in French Polynesia.
The French Republic maintains that the Law of Treaties does not govern the breach of treaty obligations and that the rules concerning the consequences of a “breach of the treaty” should be sought not in the Law of Treaties, but exclusively in the Law of Responsibility. France further states that within the Law of International Responsibility, “breach of a treaty” does not enjoy any special status and that the breach of a treaty obligation falls under the same legal regime as the violation of any other international obligation.
In this connection, France points out that the Vienna Convention on the Law of Treaties is constantly at pains to exclude or reserve questions of responsibility, and that the sole provision concerning the consequences of the breach of a treaty is that of Article 60, entitled “Termination of a treaty or suspension of its application as a result of the breach”, but the provisions of this Article are not applicable in this instance.
But even in this case, the French Republic adds, the State that is the victim of the breach is not deprived of its right to claim reparation under the general Law of Responsibility.
France points out, furthermore, that the origin of an obligation in breach has no impact either on the international wrongfulness of an act or on the regime of international responsibility applicable to such an act;
This approach is explained in Article 17 of the draft of the International Law Commission on State Responsibility.
According to the arbitrator, Max Huber, it is an indisputable principle that responsibility is the necessary corollary of rights. All international rights entail international responsibility.
There were indeed early differences of opinion over the definition of the legal relationships arising from an internationally wrongful act. One approach, associated with Anzilotti, described the legal consequences deriving from an internationally wrongful act exclusively in terms of a binding bilateral relationship thereby established between the wrongdoing State and the injured State, in which the obligation of the former State to make reparation is set against the .subjective. right of the latter State to require reparation.
Another view, associated with Kelsen, started from the idea that the legal order is coercive and saw the authorization accorded to the injured State to apply a coercive sanction against the responsible State as the primary legal consequence flowing directly from the wrongful act
According to this view, general international law empowered the injured State to react to a wrong; the obligation to make reparation was treated as a subsidiary, a way by which the responsible State could avoid the application of coercion.
A third view, which came to prevail, held that the consequences of an internationally wrongful act cannot be limited either to reparation or to a sanction.
New Zealand seeks compensation for the wrong done to it, and France is ready to pay some compensation. The two sides, however, are some distance apart on quantum. New Zealand has said that the figure should not be less than US Dollars 9 million, France that it should not be more than US Dollars 4 million. My ruling is that the French Government should pay the sum of US Dollars 7 million to the Government of New Zealand as compensation for all the damage it has suffered.
