Is Climate Change an Unforeseen, Irresistible and External Factor – A Force Majeure in Marine Environmental Law?

Abstract

The main aim of managing marine and coastal ecosystems is to ensure that they support natural ecological structure and functioning while at the same time maintain the ecosystem services from which society gains benefits. There are many activities and pressures which require management especially as these create hazards and risks to society. Superimposed on activities and pressures within an area, are what may be termed endogenic management pressures in which causes and consequences have to be addressed, are those from outside (exogenic unmanaged pressures) for which their causes are not addressed at a local level but their consequences require to be addressed. Climate change is regarded as such an exogenic pressure.

There is a plethora of marine environmental agreements and legislation aimed at controlling the adverse effects of human activities and allowing management. While there is increasing knowledge of how climate change will affect all aspects of the marine and coastal environment, little is known about how climate change will affect marine legislation and its application in marine management, protection and conservation. In order to deal with unforeseen events, some marine legislation provides for exceptions to legal commitments. The MSFD specifically accommodates such scenarios providing in Article 14 for exceptions on the basis of factors inter alia beyond its control, i.e. natural causes and force majeure (Box 1). Although such events may be a significant barrier to GEnS, they are not defined in the MFSD. This paper aims to consider the prevalence and importance of these concepts in marine environmental management although we contend that the lessons here are pertinent to other environments. In particular, we consider whether a Member State will, in coming decades, have a legally defendable case that climate change constitutes a force majeure claimer alia beyond its control (i.e. natural causes and force majeure and relevant terms).

Keywords: Climate Change, Force Majeure, Marine Regulation, Environmental Law