Full text of ruling by Secretary-General

Press, 8 July 1986, Page 9

Full text of ruling by Secretary-General

PA Wellington The following is the text of the ruling by the Secre-tary-General of the United Nations, Mr Javier Perez De Cuellar, on the settlement of problems between New Zealand and France arising from the bombing of the Greenpeace flagship Rain‘bow Warrior in Auckland Harbour on July 10 last year, and the subsequent conviction and jailing of the agents, Major Alain Mafart and Captain Dominique Prieur: The issues that I need to consider are limited in number. I set out below my ruling on them which takes account of all the information available to me. My ruling is as follows:

1. APOLOGY New Zealand seeks an apology. France is prepared to give one. My ruling is that the Prime Minister of France should convey to the Prime Minister of New Zealand a formal and unqualified apology for the attack, contrary to international law, on the Rainbow Warrior by French service agents which took place on 10 July, 1985. 2. COMPENSATION New Zealand seeks compensation for the wrong done to it and France is ready „$P 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 SUS 9 million, France that it should not be more than SUS 4 million. My ruling is that the French Government should pay the sum of SUS 7 million to the Government 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 in their attempts to negotiate a solution to the whole issue on a bilateral basis before they took the decision to refer the matter to me. The French Government seeks the immediate return of the two officers. It underlines that their imprisonment in New Zealand is not justified, taking into account in particular the fact that they acted under military orders and that France is ready to give an apology and to pay compensation to New Zealand for the damage suffered.

The New Zealand position is that the sinking of the Rainbow Warrior involved not only a breach of international law, but

also the commission of a serious crime in New Zealand for which two officers received a lengthy sentence from a New Zealand court. The New Zealand side states that their release to freedom would undermine the integrity of the New Zealand judicial system. In the course of bilateral negotiations with France, New Zealand was ready to explore possibilities for the prisoners serving their sentences outside New Zealand.

But it has been, and remains, essential to the New Zealand position that there should be no release to freedom, that any transfer should be to custody, and that there should be a means of verifying that. The French response to that is that there is no basis either in international law or in French law on which the two could serve out any portion of their New Zealand sentence in France, and that they could not be subjected to new criminal proceedings after a transfer into French hands.

On this point, if I am to fulfil my mandate adequately, I must find a solution in respect of the officers which both respects and reconciles

these conflicting positions,

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 thereafter, Major Mafart and Captain Prieur should be transferred to a French military facility 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, 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. They should be prohibited from any contact with 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 be taken under the rules governing military discipline to enforce them.

(c) The French Government should every three months convey to the New Zealand Government and to the Secretary-jpeneral of the United Nations,

through diplomatic channels, full reports on the situation of Major Mafart and Captain Prieur in terms of the two preceding paragraphs in order to allow the New Zealand Government to be sure that they are being implemented.

(d) If the New Zealand Government so requests, a visit to the French military facility in question may be made, by mutual agreement by the two Governments, by an agreed third party. (e) I have sought information on French military facilities outside Europe. On the basis of 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 would best facilitate the enforcement of the conditions which I have laid down in paragraphs (a) and (d) above. My ruling is that that should be their destination immediately after their transfer. 1 4. TRADE ISSUES The New Zealand Government has taken the position that trade issues have been imported into the affair as a result of French action, either taken or in prospect. The French Government den-

ies that, but it has indicated that it is willing to give some undertakings relating to trade, as sought by the New Zealand Government. I therefore rule that France should:

(a) Not oppose continuing imports of New Zealand butter into the United Kingdom in 1987 and 1988 at levels proposed by the Commission of the European Communities in so far as these do not exceed those mentioned in document COM (83) 574 of October 6, 1983, that is to say, 77,000 tonnes in 1987 and 75,000 in 1988; and (b) Not take measures that might impair the implementation of the agreement between New Zealand and the European Economic Community on Trade in Mutton, Lamb and Goatmeat which entered into force on October 20, 1980 (as complemented by the exchange of letters of July 12, 1984).

5. ARBITRATION The New Zealand Government has argued that a mechanism should exist to ensure that any differences that may arise about the implementation of the agreements concluded as a result of my ruling can be referred for

binding decision to an arbitral tribunal. The Government of France is not averse to that. My ruling is that an agreement to that effect should be concluded and provide that any dispute concerning the interpretation or application of the other agreements, which it has not been possible to resolve through the diplomatic channel, shall, at the request of either of the two Governments, be submitted to an arbitral tribunal under the following conditions: (a) Each Government shall designate a member of the tribunal within 30 days of the date of the delivery by either Government to the other of a written request for arbitration of the dispute, and the two Governments shall, within 60 days of that date, appoint a third member of the tribunal who shall be its chairman; (b) If, within the times prescribed, either Government fails to designate a member of the tribunal or the third member is- not agreed, the SecretaryGeneral of the United Nations shall be requested to make the necessary appointment after consultations with the two Governments by choosing the member or members of the tribunal;

fe) A majority of the members of the tribunal shall constitute a quorum and all decisions shall be made by a majority vote; (d) the decisions of the tribunal, including all rulings concerning its constitution, procedure and jurisdiction, shall he binding on the two Governments.

6. The two Governments should conclude and bring into force as soon as possible binding agreements incorporating all of the above rulings. These agreements should provide that the undertaking relating to an apology, the payment of compensation and the transfer of Major Mafart and Captain Prieur should be implemented at the latest on July 25, 1986.

7. On one matter I find no need to make a ruling. New Zealand, in its written statement of position, has expressed concern regarding compensation for the family of the individual whose life was lost in the incident and for Greenpeace. The French statement of position contains an account of the compensation arrangements that have been made; I understand that those assurances constitute the response that! New Zealand was seeking.?