The implications of climate change upon the concept of force majeure and its use in marine environmental policies

Seventeen environmental laws include provisions on force majeure or natural causes, the clause acts to except States from their commitments if failure to meet the commitment is due to factors outside their control and adequate proof can be provided. The European Union Marine Strategy Framework Directive (MSFD) has a pivotal role in managing EU marine waters and contains such a clause. This research analyses the role of force majeure provisions within marine environmental law. Climate change is an exogenic pressure emanating from outside the area being managed, yet management must respond to its affects and consequences instead of the source of pressure, for example sea level rise. It has been previously suggested that Member States may plea force majeure in circumstances where climate change prevents them from achieving legislative targets or obligations (Elliott et al., 2015).An interdisciplinary analysis suggests that any Member State plea would have to meet certain criteria in order to constitute a claim: unforseeability, irresistibility, externality or control and the burden of proof, there is limited consensus through the literature as to what extent these criteria are applied by a court due to lacking clarity in many key issues; climate change litigation, state responsibility, GES Descriptors and managing climate change as a pressure in the marine environment. Courts may centre a defence on the knowledge that climate change is an anthropogenic pressure with typically foreseen consequences and therefore could not constitute a force majeure event as an entire pressure, this has not yet been legally tested and requires precedent.[Thesis includes research article available at https://hydra.hull.ac.uk/resources/hull:13931 or at http://dx.doi.org/10.1016/j.marpolbul.2016.06.074