Rethinking Force Majeure in Public International Law

Climate change is one of today’s most significant and complex problems. The number and level of severity of extreme weather events is increasing rapidly around the world. One year after the next, we learn that heat records have been broken once again. Climate change has been traced to a wide range of severe problems around the world, ranging from the obvious damage caused by hurricanes, floods, extreme rainfall, prolonged droughts, wildfires and a host of other weather-related issues to the perhaps less obvious such as physical and mental illnesses, “civil unrest, riots, mass migrations and perhaps wars caused by water and food shortages.” “It is no longer rationally debatable that climate change will take a huge toll on human health and prosperity as well as pose significant risks to national security if it is not curbed.”

Science has demonstrated that human activity is “extremely likely” to have contributed significantly to this increasingly volatile and problematic weather situation. At the same time, the developed nations that, to a very large extent, caused the climate change problem also clearly indicated in the negotiations leading up to the new Paris Agreement on climate change, as well as in the Agreement itself, that they are not willing to accept financial liability for any loss and damage caused by climate change. The matter is, at bottom, one of an alleged lack of sufficient resources and a similarly alleged inability to correctly apportion liability for the problem along with, of course, lack of political will to undertake legal responsibility for the financially severe consequences that are likely to arise because of climate change.

However, financial liability for loss and damage caused by severe weather events may arise not only under the United Nations Framework Convention on Climate Change (UNFCCC) regime, but also under established notions of customary international law such as the “no harm” rule, which creates a duty not to allow one’s territory to be used in ways that cause harm to other states. In this context, nation states may seek to avoid a finding of legal wrongfulness under the force majeure, necessity, or distress doctrines of law. This article analyzes whether nations will be able to do so and critiques the arguments that are likely to arise in invoking these defenses. Many of the arguments that have traditionally been viable and that made legal (as well as practical) sense no longer do so given modern knowledge about climate change and its causes and effects.

The article proceeds as follows: The history of the excuse doctrines that could and are applied in the context of “severe weather” will be briefly described to create a view of current law in the light of its development over time. Similarly, the traditional legal distinction between “man” and “nature” will be examined as this differentiation, at worst, no longer makes sense in relation to climate change and, at best, is one without significance. Because this article solely addresses the excuse doctrines that may apply to legal liability on nation states in the climate change context, the Paris Agreement on climate change (the “Agreement”) becomes relevant as it would have been fair and equitable to apportion loss and damage under this Agreement. However, as the Agreement explicitly states that developed nations will not be liable for loss and damage under the treaty provisions, the article will proceed to analyze alternative theories of nation state responsibility for internationally wrongful acts. Finally, the article critiques the modern potential applicability of these doctrines for reasons of law and public policy.

Published in Pace Law Review, Volume 37, Issue 2 (Spring 2017)

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