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Is climate change an unforeseen, irresistible and external factor – A force majeure in marine environmental law?

Saul, Roxanne; Barnes, Richard; Elliott, Michael

Authors

Roxanne Saul

Professor Mike Elliott Mike.Elliott@hull.ac.uk
Professor of Estuarine and Coastal Sciences/ Research Professor, Institute of Estuarine and Coastal Studies

Abstract

© 2016 Elsevier Ltd Several environmental laws include provisions on natural causes or force majeure, which except States from their commitments if it can be proven that the failure to meet the commitment is due to factors outside their control. The European Union Marine Strategy Framework Directive (MSFD) has a pivotal role in managing EU marine waters. This paper analyses natural causes and force majeure provisions of the MFSD and other marine legislation, and addresses their interaction with climate change and its consequences, especially the effect on the obligation of ensuring seas are in Good Environmental Status. Climate change is an exogenic unmanaged pressure in that it emanates from outside the area being managed but in which the management authority has to respond to the consequences of climate change, such as sea level rise and temperature elevation, rather than its causes. It is suggested that a defence by a Member State of force majeure may be accepted if an event was proven to be due to an externality of control, irresistible and unforeseeable. The analysis contends that countering such a legal defence would centre on the fact that climate change is a well-accepted phenomenon, is foreseen with an accepted level of confidence and probability and is due to human actions. However, as yet, this has not been legally tested.

Journal Article Type Commentary
Publication Date Dec 15, 2016
Journal Marine pollution bulletin
Print ISSN 0025-326X
Electronic ISSN 1879-3363
Publisher Elsevier
Peer Reviewed Peer Reviewed
Volume 113
Issue 1-2
Pages 25-35
Institution Citation Saul, R., Barnes, R., & Elliott, M. (2016). Is climate change an unforeseen, irresistible and external factor – A force majeure in marine environmental law?. Marine pollution bulletin, 113(1-2), 25-35. https://doi.org/10.1016/j.marpolbul.2016.06.074
DOI https://doi.org/10.1016/j.marpolbul.2016.06.074
Keywords EU Marine Strategy Framework Directive, Good Environmental Status, Moving baselines, Acts of God
Publisher URL http://www.sciencedirect.com/science/article/pii/S0025326X16304787
Additional Information This article is maintained by: Elsevier; Article Title: Is climate change an unforeseen, irresistible and external factor – A force majeure in marine environmental law?; Journal Title: Marine Pollution Bulletin; CrossRef DOI link to publisher maintained version: http://dx.doi.org/10.1016/j.marpolbul.2016.06.074; Content Type: article; Copyright: © 2016 Elsevier Ltd. All rights reserved.

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