— that France committed several serious breaches of the agreement it had entered into in 1986 in accordance with the binding ruling of the United Nations Secretary-General,
— that the Tribunal should declare its condemnation of those breaches in its Award which it also decides to make public, and
— that the parties should be recommended to establish a Fund, France making the first contribution equivalent to $US 2 million, to promote close and friendly relations between the citizens of the 2 countries.
— the lawfulness of the removal of Major Mafart from the island of Hao (paras. 80-88 of the Award), and
— the duration of the period the two agents were to stay on the island (paras. 102-106).
I have accordingly prepared this separate opinion giving my reasons for that disagreement.
— why France failed to propose alternative arrangements for a New Zealand medical assessment in Hao or Papeete
— why France could not have delayed the flight from Hao for a short time to facilitate the visit
— why France could not have provided fuller medical information earlier—on a basis of confidence, of course.
will be transferred to a French military facility on the island of Hao for a period of not less than three years.
seront transférés sur une installation militaire française de l’île de Hao, pour une période minimale de 3 ans. (emphasis added)
The agents were prohibited from leaving the island for any reason, except with the mutual consent of the two Governments.
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
What is the ordinary meaning of the relevant terms? What does the context indicate? And the object and purpose of the agreement? Those questions involve, in the words of Max Huber, a process of encerclement progressif.
(1) prohibits departure from the island without consent;
(2) requires isolation during their assignment in Hao from persons other than military or associated personnel and immediate family and friends; and
(3) prohibits contact with the press or other media.
It is true that the last prohibition is not expressly limited in a geographic way. But that limit clearly arises from the context.
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 [the four] paragraphs... (emphasis added).
In the Secretary-General’s mind, the obligations were integrally tied to the isolated island. The conditions were to be met there. That also appears from the provision for a visit by an agreed third party to the island —to determine of course whether the agreement is being complied with there.
—the expression of philosophical, religious and political beliefs in the context of the service;
—the obligation of discretion (réserve) in all circumstances; —the requirements of military secrets.