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Lawyers and other representatives

Separate opinion of Sir Kenneth Keith

As appears from paras. 2 to 5 and 7 to 9 of the Decision of the Tribunal, I agree with major parts of the Award. In particular I agree

— 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.

To my regret and with great respect to my colleagues, I do however disagree with them on two matters—

— 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.

The removal of Major Mafart

The Tribunal holds that France did not act in breach of its obligations in removing Major Mafart from Hao on 14 December 1987. Its reason in essence is that a serious risk to life justified the removal of Major Mafart although New Zealand had not consented. The argument is not based on the obligations established by the agreement itself. New Zealand has not breached its obligations under the agreement to consider in good faith the French request for consent. Indeed in para. 80 the majority say that neither government is to blame for the failure in respect of the verification of Major Mafart’s health on Hao in the weekend in question. Rather the argument is founded on the law of state responsibility and in particular on distress as a reason precluding the apparent unlawfulness of the departure of Major Mafart without New Zealand’s consent.
In the words of the test stated by the International Law Commission, the question is whether the relevant French authorities "had no other means, in a situation of extreme distress, of saving [Major Mafart’s] life". The commentary to the draft article suggests that the test, while still very stringent, may be a more relaxed one: so it asks will those at risk "almost inevitably perish" unless the impugned action is taken? And it suggests the widening of the situation of distress beyond the protection of life to the protection of "the physical integrity of a person" (see para. 78 of the Award).
On my understanding, such an argument is available in law notwithstanding the apparently absolute language of the 1986 agreement on the basis that that agreement has not excluded the operation of the principle. So the apparently absolute rule found in treaty and customary international law affirming sovereignty over national airspace is not seen as being breached by the entry of foreign aircraft in distress. Similarly I would agree with counsel for France on the lawfulness of the urgent removal of an agent to Papeete for necessary life-saving surgery there following a shark attack at Hao and allowing no time to get New Zealand’s prior consent. All legal systems recognize such exceptions to the strict letter of the law.
The principle is established and broadly understood. How does it apply to the facts in this case? There are 2 elements—first the threat to the life or the physical integrity of Major Mafart, and second the action taken to deal with that threat. My disagreement with the majority relates to the second matter and specifically to the timing of that action. I agree that the state of Major Mafart’s health as known to the French authorities (including Dr. Maurel) on 14 December 1987 required detailed medical investigations not available on Hao. This was confirmed on the very day of Major Mafart’s return to Paris by Dr. Croxson, the physician nominated by the New Zealand Government. Indeed the indications are that had the relevant information been provided to the New Zealand authorities in a timely and adequate manner in advance of the departure they would very likely have consented to medical investigations outside Hao. Such consent would almost certainly have been accompanied by conditions, for instance about the course of the investigations and requiring return to Hao when the investigations were satisfactorily completed.
I need not however pursue those matters. As indicated, my particular concern is not with the medical situation and the need for medical tests, but with the timing of the French action taken in apparent breach of the 1986 agreement. The particular medical condition had its origins in surgery 22 years earlier. In July of 1987 Major Mafart was in hospital on Hao. On 7 December 1987 the commander of the base there advised the Minister of Defence in Paris that Major Mafart required tests and treatment which could not be provided there. On 9 December 1987 the Minister dispatched a medical team to Hao. The French authorities did not advise the New Zealand authorities of any of these events occurring in 1987—although each of course could have led in due time to a request for consent to Major Mafart’s departure. The three-monthly reports provided by France to New Zealand and the United Nations as required by the agreement also gave no hint of the July hospitalization. Those of 21 July and 21 October 1987 simply said that the earlier situation, involving among other things the officers being in their military positions, continued without change.
On Thursday 10 December 1987, Dr. Maurel, the senior Army doctor sent from Paris, reported to the Minister of Defence that his examination indicated the need to examine Major Mafart in a highly specialized environment; his state of health required urgent repatriation to a metropolitan hospital. In the absence of formal advice to the contrary from the Minister, he proposed that the evacuation should be made by the aircraft leaving on Sunday 13 December. On Friday 11 December the Minister of Defence advised his colleague the Minister of Foreign Affairs of these events and the planned removal and asked that the latter "prendre l’attache" of the New Zealand Government within the framework of the procedure included in the 1986 agreement. It was only at this very late stage, at about 7 p.m. on that Friday (Paris time), that steps were taken to seek New Zealand’s consent to the removal. By the time the request was presented to the New Zealand authorities in Wellington between 10 and 11 a.m. on the Saturday morning (Wellington time) a further 3 or 4 hours had passed and the aircraft was due to depart from Hao less than 2 days later.
Only 4 hours after receiving the French request, that is between 2 and 3 p.m. on the afternoon of Saturday 12 December, the New Zealand Government responded. It stated that a New Zealand medical assessment had to be made and it proposed that a New Zealand military doctor fly on a New Zealand military aircraft to Hao for that purpose. Later on the Saturday it sought clearances for that flight and it provided the relevant flight information. After the 8-hour flight from Auckland the plane would have been in Hao less than 30 hours after the initial request and fully 12 hours before the proposed departure of the flight from Hao.
It was about 16 hours later, on the Sunday morning (Wellington time), that France rejected New Zealand’s proposal—at about the time that the New Zealand aircraft would have left. New Zealand made further proposals in the course of that day, the exact content of which is disputed. Whatever their precise detail, the French authorities at no stage sought clarification (for instance of their surprising understanding of one proposal that the doctor would have to return to New Zealand to make his report). Nor did they make any counter-proposals to enable a timely medical assessment to be made by New Zealand as a basis for the decision whether to consent or not to the departure. Indeed, France’s first written communication since its request made on the Saturday morning was the note delivered in Wellington on the Monday announcing that "in this case of force majeure" the French authorities were forced to act without delay, and that Major Mafart "will leave Hao" on Sunday at 2 a.m. (Hao time). The aircraft had presumably already left when the note was delivered.
The long delay of about 7 days between the initial request from Hao and the arrival in Paris and the long arduous flight from Hao to Paris of about 20 hours both indicate that this was not a situation of extreme distress. France did not face an immediate medical emergency. It was not a case comparable to the hypothetical shark attack requiring urgent action and treatment (para. 5 above).
New Zealand was obliged to consider in good faith any request for consent made by France. It could not however perform that duty without adequate information and time. No one questions the propriety of its request to undertake a medical assessment—and indeed that was facilitated by the French authorities so far as an assessment in Paris was concerned. But the French authorities did not provide to New Zealand an appropriate opportunity to perform the duty and to make a decision before the proposed departure. So there is no indication in the record of

— 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.

France, in my view, has not established the need to act in apparent breach of its treaty obligations in the way and especially in the time that it allowed. There was no sufficient urgency. The case was not one of extreme distress threatening Major Mafart’s physical integrity. France was in a position to facilitate a proper medical assessment by New Zealand in the performance by New Zealand of its good faith obligations under the agreement. It did not meet its obligations in that respect.
In the result, this difference within the Tribunal is of limited consequence since we all agree that France was as from 12 February 1988 in breach of its obligation to order the return of Major Mafart to Hao. Moreover, as indicated, I think it highly likely that a properly supported and presented request for consent would have been acceded to—on terms, of course.

Duration of the obligations

As the Award says, the parties are in sharp disagreement about the duration of the obligations, undertaken by France, in respect of the stay by the two agents on the island of Hao. In France’s view, the obligations came to an end on 22 July 1989, the third anniversary of the transfer of the two agents to the island. That is so even if their removal from the island and their remaining in metropolitan France were unlawful. According to New Zealand, the agents were to spend a total period of 3 years (at least) on the island—whether the period was continuous or, exceptionally, aggregated from shorter, separate stays.
The majority of the Tribunal agrees with the French position. The consequence of the expiry of the obligations in July 1989 is that there can now be no order for the return of the agents to the island. I agree that that is the consequence of that date of expiry. As the Tribunal indicates in para. 114 of the Award, that is a sufficient and compelling reason for refusing to make the order for the return of the agents. Accordingly, I do not find it necessary to come to a conclusion on the issues discussed in para. 113—the characterization of the request either as restitutio or as cessation, and the differences between them. Could I simply say that I am not sure, for instance, about the validity of the distinction in theory or in practice. It is notable that the International Court in deciding that the respondent States must take positive steps or refrain from unlawful actions in the Teheran and Nicaraguan cases did not attach such labels (nor did the applicant states in their formal requests). I now turn to my disagreement with the majority’s interpretation of the duration of the obligations.
We must of course begin with the 1986 agreement. Under its terms the agents

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.

The Vienna Convention on the Law of Treaties, the parties agree, provides an authoritative statement of the principles of interpretation of treaties. Article 31(1) reads

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.

I begin with the terms of the agreement. The transfer to the island and the prohibition on departure involve of course an obligation to stay on the island. During that assignment on the island various additional obligations were imposed to ensure the agents’ isolation. To return to the critical phrase, these various obligations relating to the stay on the island were for, pour a period of not less than 3 years. The agreement does not say that the agents were to be on the island only during a 3-year period, and as a result for a shorter period in total than 3 years. Counsel for France put the matter very clearly: one of France’s obligations under paragraph 3 of the agreement was to transfer and to maintain the two officers on Hao for 3 years ("l’obligation de transferer et de maintenir pendant trois ans les deux officiers sur l’île de Hao").
While the words "at least" "minimale" may not make any difference to the ordinary meaning, they certainly give that meaning greater emphasis. That emphasis underlines the importance of this element of the ruling and of the settlement. Moreover, those words, included in the agreement, are an addition to the ruling of the SecretaryGeneral. They are indeed the only such change from the ruling. That one change must have at least that emphatic significance.
The immediate context provided by other parts of the agreement supports that ordinary meaning of its terms. The agreement places a specific terminal time limit on the obligations imposed on France of apology, and payment, and on the two Governments of transfer. But by contrast it gives no express date for the completion of the obligations relating to being on the island. It is, of course, a date which can be easily calculated since the relevant facts are readily known—either a continuous period of 3 years from the date of transfer, had the two stayed on Hao continuously, or an aggregated period of 3 years if, exceptionally, there was a break in the stay.
The wider context of the agreement includes, as well, the character of the regime imposed by it. That character is seen in part in its origins as found in the ruling of the Secretary-General. He was obliged to make a ruling which was equitable and principled (il sera équitable et conforme aux principes pertinents applicables). The parties made frequent references to that ruling in support of their understanding of the meaning of the agreement.
At the time of the ruling, agreement, and transfer, the two agents had served less than a year of a 10-year prison term imposed by the Chief Justice of New Zealand following due process of law and pleas of guilty to very serious crimes known to all legal systems. They did not appeal against the sentences, as they were entitled to. They were not eligible to be released on parole until they had served at least 5 years. The French position was that the agents should be immediately released (la liberation immédiate); that was, said France, implied by an equitable and principled approach; the agents had acted under orders; and France was willing to apologize and pay compensation to New Zealand (as well as to the private individuals who had suffered from the attack). It was 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. New Zealand could not countenance the release to freedom after a token sentence of persons convicted of serious crimes.
As the Governments agree, and the ruling and later agreement indicate, the Secretary-General could not and did not fully adopt the position of either of them—either in respect of the character or the period of the stay on the isolated island.
The character of the regime was special. It was neither the New Zealand penal system nor French military service. Rather it was an assignment to an isolated military installation, subject to significant limits on the freedom of the two agents, and especially on their freedom of movement from the island. It is indeed the substantial restrictions on movement which France invokes for its view that it would be impossible or excessively onerous for an order for return to be made, even if it was otherwise appropriate to make it. The weight of the restrictions is briefly reflected in the only comment made by either of the agents about the regime and available to the Tribunal. Captain Prieur told Mr. Adriaan Bos during his inspection visit to Hao on 28 March 1988 that she felt isolated (très isolée) on Hao and was not looking forward (elle appréhendait) to the remainder of her stay which was then due to continue until July 1989. This was so notwithstanding that her husband was living with her on the base and that, as she recalled, she had had visits from her mother and parents-in-law.
The period of that regime—the stay on the isolated island was to be lengthy, shorter than both the 10 years imposed by the High Court and the 5 year minimum parole period. The period of real constraint on freedom was still going to be significant—a 3-year period in addition to the year that had already been spent in custody in New Zealand before and after conviction. It was not going to be a release to freedom. And yet that is what in real terms the French interpretation of the period could involve since, following a short stay on Hao and an unlawful departure, the process of attempting with diligence to reach a settlement through diplomatic channels and then, if that attempt were to fail, the setting up and operating of the arbitral process could exhaust all or most of a period expiring in July 1989. That indeed is what has happened in the event. Such an interpretation is not consistent with the object of placing a substantial limit on the liberty of the two agents.
The terms of the agreement, its context and its object all lead me to the view that the agreement required the agents to be on the island for the full period, whether continuous or aggregated, of 3 years. (It is perhaps unnecessary to make the point that that conclusion is subject to limits which could lawfully and properly be placed on that obligation in accordance with the law of treaties or the law of state responsibility as discussed in paras. 72-79 of the Award.)
There are several arguments to the contrary which require consideration. The first is that the extension of obligations beyond the initial 3-year period would result in heavier obligations being placed on the agents. They would be subject not only to isolation on the island for 3 years but also to the obligations relating to limited personal contacts and media silence for the additional period they have been in France. Those obligations would thereby extend to 4 1/2 and 5 years for the two agents.
There are two effective answers (at least) to that argument. The first is that, by their terms, the obligations of limited contact and media silence relate only to the time on the island. If France has undertaken or the two parties have agreed that those conditions also applies off the island that would be a new obligation, separate from the agreement.
This is clear from the references to the island in the relevant paragraphs. The third paragraph requires transfer to the island for 3 years. The fourth paragraph

(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.

And the limit appears as well from the ruling of the United Nations Secretary-General. That ruling can be used to confirm the meaning gathered from the ordinary meaning of the agreement in context and in the light of its purpose. The Secretary-General set out conditions relating to the two agents in 4 paragraphs—those which appear in paras. 3-6 of the agreement. The second paragraph set out the prohibition on departure, and on personal and media contact, and the first made only a general reference to transfer "to a French military facility on an isolated island outside of Europe". The Secretary-General continued:

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.

It is true that France, in response to New Zealand’s proposal, undertook to apply the conditions relating to the isolation of Major Mafart when he was in Paris. But that undertaking was a special one to deal only with the period during which Major Mafart was in Paris —France in giving it stated that Major Mafart would return to Hao when his health allowed. And it included the conditions which expressly applied only on the island. That it was a special additional undertaking peculiar to the circumstances appears as well from the lack of any such arrangement between the two governments for Captain Prieur.
The second reason for rejecting the argument based on the "heaviness" of the obligations proceeds on the basis—which I reject— that the isolation obligations are capable of directly applying in metropolitan France. The reason for rejection is that those obligations of isolation which are additional to those arising from geography are in fact slight and are much lighter than the obligations of being on the island —obligations which at relevant times were being unlawfully evaded according to the ruling of the Tribunal. The slightness of the obligations, especially those concerning the press, is evidenced by a valuable note, Les règles de la discipline militaire, provided to the Tribunal by the Agent of France. The 1972 law on the statut général des militaires places restrictions on the members of the armed forces compared with other citizens. The exceptions concern

—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.

It was of course by reference to such law that the obligations under the 1986 agreement were to be enforced. In the light of those obligations and of the general position of senior military officers, the statement by the French Agent that Colonel Mafart since July 1989 ‟ still leads a life of total discretion" comes as no surprise at all. The French argument gives quite disproportionate weight to the obligations additional to those arising directly from being on Hao (assuming, that is, that the obligations were capable of direct application off the island) as well as from the officers’ military status.
France also argues that the New Zealand position produces a result which is "manifestly absurd or unreasonable" (using the words of article 32 of the Vienna Convention on the Law of Treaties—that provision of course not being directly applicable here since France does not use it to invoke supplementary interpretative material which assists its view). That absurdity or unreasonableness, for France, consists of the prolongation of the obligation of being on Hao beyond 3 years. But in the normal case the obligation would not so extend; if it did so extend, it would be for special reasons based on the consent of the two Governments or on force majeure or distress. It would be exceptional, and the prolongation would in any event accord with the ordinary meaning of the provisions in context and in the light of their purpose of imposing a real and not merely a token restraint on the liberty of the two officers.
France next argues that a tempus continuum is inherent in a contractual obligation of a given time period and that the same holds true for an international treaty obligation. The one case which it cites, Alsing Trading Company Ltd v. Greece (1954) 23 Int. L. Reps 633, it is true, involved a contract for a period of 28 years, but the contract expressly stated both its beginning and its expiry dates; accordingly it is of no general assistance in the present case. Moreover, general words have to be given meaning in their particular contexts and by reference to their purpose. And the law, including treaty practice, knows many periods of residence which can each be made up of shorter periods where appropriate to the context and purpose—consider treaties and legislation relating to taxation, benefits, citizenship, and electoral rights.
The Tribunal perhaps suggests a further argument for the view that the obligations ended in July 1989 in its statement that "the principles of treaty interpretation" are opposed to a more extensive construction of special undertakings (para. 104). I have of course invoked "the general rule of interpretation" stated in the Vienna Convention. The International Law Commission in elaborating that general rule did not incorporate any "principles". So it thought that it was not necessary to include in the general rule a separate statement of the principle of effective interpretation. It recalled that the International Court had insisted that there are definite limits to the use which may be made of that principle. Rather the Commission, like the Court, emphasized the ordinary meaning of the words in their context and in the light of the agreement’s purpose (para. 6 of the commentary to draft articles 27 and 28, ILC Yearbook 1966, Vol. II, p. 219).
I have already indicated that those matters lead me to the conclusion that the agreement placed on France an obligation to ensure that the two agents spend three years on Hao.
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