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Guia de Estudos / Study Guide / Guia de Estudios
AS TO THE 1986 AGREEMENT
France did not breach the 1986 agreement due to the
fact that these two agents were brought back to France
only due to their health. Mr. Mafart returned to Paris on
December 14, 1987 for medical treatment, and was apparently
freed after treatment and Mrs. Prieur returned
to France on May 6, 1988 because she was pregnant.
AS TO THE RAINBOW WARRIOR CASE
The issue of the sinking of the vessel Rainbow Warrior
raises a question in international law over State responsibility.
In such cases where a State sends its agents
abroad to commit acts which are illegal under national
law of the target country, it is customary for the State to
take responsibility for the act and issue compensation. 26
Because of this fact France argues that the Rainbow
Warrior case bolsters the principle of non-intervention
in international law and the punishment of States for
contravening it. 27
In terms of reparations, France initially paid to New
Zealand 7 million USD, and paid a large compensation
to the family of the only victim of the mission and to
Greenpeace which was settled privately. 28
APPLICABLE LAW
The Court has the duty to decide, according to international
law, problems and disputes between States
and also, to give advisory opinions, based on the international
law. When deliberating, the ICJ will make that
international law is used to reach a decision. It is very
important to state that the ICJ will not make its decisions
based on internal laws, meaning that the Court
will not decide a matter based on the national law of a
specific country.
According to article 38 of the Statute of the International
Court of Justice, 29 The Court, whose function is
to decide in accordance with international law such disputes
as are submitted to it, shall apply:
a. international conventions, whether general or particular,
establishing rules expressly recognized by the
contesting states;
b. international custom, as evidence of a general practice
accepted as law;
c. the general principles of law recognized by civilized
nations;
d. subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means
for the determination of rules of law.
This article is an exemplificative list of sources of law
that may be used by the Court, when deliberating on
an issue. There are a few enumerated in the article, but
there are other sources to international law that can
be also used to decide a case. The ones that the article
listed are the most common ones used, though.
The first source that the Statute brings is international
conventions, which are agreements made between
States on a specific theme. Conventions are also
known as treaties, which are elaborated by the signatory
States that want to create such treaty. Treaties may
be used by the Court as a source of law because they
symbolize a State’s position on that specific matter.
International custom, the second source listed by the
Statute, is a “general practice accepted as law”, 30 meaning
that to be considered a custom, there has to be an
act that is practiced generally by the population of a
specific State, and the people who practice it, have to
understand its importance and see it as being a law. A
type of law, however, that if not observed will not have
any legal consequences or sanctions.
General principles of law may be also applied by the
ICJ in the cases presented to it. The principles are aspects
of law that are not written in any text of law; they
are used as law but are not formally written anywhere.
The last examples given by the Statute are the more
general ones. The Statute says “subject to the provisions
of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.” 31
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