Commonwealth Law Bulletin 585
15 Pages Posted: 13 Dec 2012 Last revised: 23 Feb 2015
Date Written: 1989
This was originally an address by Geoffrey Palmer to the University of Virginia School of Law, Virginia, on 3 November 1988. In May 1973 the New Zealand Labour Government commenced a case before the International Court of Justice against the French Government, seeking the end of atmospheric testing by France of nuclear weapons. Australia and New Zealand argued that the French nuclear testing programme was contrary to international law. New Zealand said that French Government tests in the South Pacific region that give rise to radioactive fallout constituted a violation of New Zealand’s rights. The Court gave interim relief, indicating that pending further stays of the case France should cease testing. In December 1974 the Court held that since France had promised not to test nuclear weapons in the atmosphere and was bound by that promise, the proceedings no longer had any purpose and the Court did not need to decide them. France in 1974 moved to terminate its acceptance of the Court’s jurisdiction. And they resumed testing underground in the same location.
The address covers the South Pacific Nuclear Free Zone Treaty and the nuclear theme which permeates the international disputes dealt with under the topic. It discusses the two quiet extraordinary issues which confronted New Zealand in the international legal sphere in the 1980s. Both involved countries which were traditional friends. These were the disagreement between New Zealand and the United States about the admission of nuclear armed ships to New Zealand ports, and the dispute between New Zealand and France flowing from the ‘Rainbow Warrior’ affair. Both issues were accompanied by high level political atmospherics on all sides.
Both problems involved significant legal issues. The Nuclear Ships disagreement is discussed with reference to New Zealand’s deep abhorrence of nuclear weapons. The paper then turns to consider the second major international legal dispute – the Rainbow Warrior affair. This issue brought home to New Zealand in a very concrete way the painful truths which underlay analysis of the problems of small countries. On 10 July 1985 the civilian ship the Rainbow Warrior was covertly and illegally sunk at its moorings by French agents. Two days later, two agents of the French Directorate General of External Security were arrested and prosecuted for manslaughter and wilful damage. They were sentenced to ten years imprisonment each.
The address uses the Rainbow Warrior affair as one of several examples of the options open to smaller countries when confronted with the practical problem of how to settle an international legal dispute in a manner that is fair and equitable. Along with the Rainbow Warrior affair it mentions the Eichmann incident between Israel and Argentina when Israeli agents kidnapped a German war criminal from Argentina. It then considers the Israeli assassination of a Moroccan citizen believed to be a member of Black September in Oslo and the subsequent arrests of Israeli agents complicit in the assassination. What the three cases have in common is a serious violation of international law involving an act of force by military or para-military personnel by a friendly country. In terms of domestic law each case involved the commission of a serious crime. In two of the cases death was involved, and in the Rainbow Warrior affair, the victim was an entirely innocent civilian.
Keywords: international law, arbitration, international force, Rainbow Warrior, Mossad, international criminal law, nuclear testing
JEL Classification: K14, K33
Suggested Citation: Suggested Citation
Palmer QC, Sir Geoffrey, Settlement of International Disputes: The ‘Rainbow Warrior’ Affair (1989). Commonwealth Law Bulletin 585; Victoria University of Wellington Legal Research Paper Series Palmer Paper No. 33. Available at SSRN: https://ssrn.com/abstract=2188734