Force majeure and Kyoto Protocol

Legal assistance paper

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Date produced: 05/04/2011

1. Does the Kyoto Protocol allow for a suspension or termination of commitments on the grounds of force majeure, recognizing that withdrawal (no reason necessary) is always possible pursuant to Art. 27?

2. Have Arts. 61 (supervening impossibility of performance) or 62 (fundamental change of circumstances) of the Vienna Convention on the Law of treaties ever been invoked in a multilateral setting? (see Appendix 1 for Vienna Convention) (Please also include any relevant bilateral cases; Please also indicate whether a suspension or termination of obligations was sought)

3. If Arts 61 and 62 have ever been invoked, please explain how they were invoked (e.g. were they provided for by the multilateral agreement itself or did the Party concerned simply make a declaration invoking one of the Articles, etc).

4. How have other Parties responded to the invocation of Arts. 61 or 62? Ie, has Art. 65 of the Vienna Convention been used (Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty)?

5. Are there other legal methods by which Japan could seek an exemption to its commitments under Kyoto (i.e. beyond what is provided for in the Protocol itself or the Vienna Convention)?

Summary: There is no mechanism contained in the Kyoto Protocol for a suspension or termination of commitments on the grounds of force majeure. Force majeure is a recognized defence in international law which could be used by Japan to justify its failure to meet its international legal obligations under the Kyoto Protocol. However force majeure has rarely been successfully invoked as a State defence. We have not been able to find any instances of Article 61 being successfully invoked to justify a suspension or termination of obligations under a Treaty. Article 62, like A61, is drawn up in very restrictive terms to make it very hard for states to successfully invoke it. It is not limited to any particular type of treaty and can be applied to treaties, like the Kyoto Protocol, which have a termination clause. This doctrine has never been successfully invoked by a State in international jurisprudence. There have not been to date any cases where a party sought to invoke Articles 61 or 62 in a multilateral setting. In neither of the cases discussed where Arts 61 and 62 were invoked (Gabcikovo-Nagymaros and Iceland Fisheries Jurisdiction Case) did the objecting parties invoke Article 65. Instead, the objecting parties refuted the terminating party’s arguments for invoking Articles 61 and/or 62. It would require further research to propose alternative legal methods by which Japan could seek an exemption from its Kyoto Commitments. However, Japan could try and rely on force majeure as a defence to its failure to perform its obligations under the Protocol. This is only relevant however if Japan is held accountable for breach of the Protocol and is forced to defend itself. This defence has rarely been successfully invoked.

1. There is no mechanism contained in the Kyoto Protocol for a suspension or termination of commitments on the grounds of force majeure. Force majeure is a recognized defence in international law which could be used by Japan to justify its failure to meet its international legal obligations under the Kyoto Protocol. However force majeure has rarely been successfully invoked as a State defence.

Under A27(1) withdrawal takes place if a Party gives written notification to the Depositary (the UN Secretary-General). Withdrawal takes effect one year from the date of receipt of the Depositary of notification of withdrawal (A27(2)). There is no requirement to give reasons for withdrawal.

2. We have not been able to find any instances of A61 being successfully invoked to justify a suspension or termination of obligations under a Treaty. Hungary tried to invoke A61 in the Gabcikovo-Nagymaros case at the ICJ . This argument was rejected on the grounds that the relevant treaty provided for a consultation procedure to address concerns about ability to comply and Hungary’s refusal to comply with its obligations under the treaty meant that it was responsible for the event of impossibility and therefore could not invoke it as a ground for termination.

The International Law Commission’s Commentary on the draft articles, which eventually became the Vienna Convention, provides some examples of what would constitute impossibility under A61;

• The submergence of an island
• The drying-up of a river
• The destruction of a dam.

In the opinion of the International Law Commission, if any of these objects were indispensable for the execution of a treaty then their destruction or disappearance would be sufficient to justify termination of the treaty under A61.

The International Law Commission goes on to state that, if the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty. The Commission appreciated that such cases might be regarded simply as cases where force majeure could be pleaded as a defence exonerating a party from liability for non-performance of the treaty. But it considered that, when there is a continuing impossibility of performing recurring obligations of a treaty, it is desirable to recognize, as part of the law of treaties, that the operation of a treaty may be suspended temporarily.

From a very brief analysis it would appear that Japan would need to argue that the Fukushima nuclear facility was indispensable for the performance of its obligations under the Kyoto Protocol and that it had been permanently destroyed in order to invoke Article 61 to justify a termination of its obligations. We are aware that some reports state that the Fukushima nuclear facility is to be fully decommissioned following the disaster, which may enable them to argue it had been permanently destroyed.

Alternatively, Japan could argue that until it has reopened the Fukushima nuclear plant (if this does occur) then its obligations under the Kyoto Protocol are temporarily suspended.

However ICJ jurisprudence and International Law Commission commentary make it clear that A61 is a very hard standard to meet. The Gabcikovo case makes it very clear that serious financial difficulties are not enough to justify the use of A61. In order to succeed Japan would have to prove that the Fukushima nuclear plant was “indispensable” to its performance of the Kyoto Protocol.

Also A61 does not operate automatically. The International Law Commission was very clear that states must invoke it as an express ground for termination. The procedure under A65 of the Vienna Convention must be followed and other states will have an opportunity to object.

Article 62, like A61, is drawn up in very restrictive terms to make it very hard for states to successfully invoke it. It is not limited to any particular type of treaty and can be applied to treaties, like the Kyoto Protocol, which have a termination clause.

This doctrine has never been successfully invoked by a State in international jurisprudence (it was argued by Iceland in the Icelandic Fisheries Jursidiction case and by Hungary in Gabcikovo), although suspension of a Cooperation Agreement between the EC and Yugoslavia as a result of fundamental change of circumstances due to the outbreak of war, was upheld by the ECJ in Racke v Haupzollant Mainz .

A62 codifies a doctrine of customary international law which has been described as residual in character i.e. it may not be invoked where there are other grounds recognized by international law to suspend or terminate obligations. Arguable Article 27 of the Kyoto Protocol provides other grounds for Japan to terminate its obligations without having to invoke Article 62 of the Vienna Convention.

The following conditions, that need to be met to successfully invoke A62, are cumulative:

• There must have been a change of the circumstances existing at the time of the conclusion of the treaty; – This is a temporal issue i.e. the circumstances that led to the conclusion of the treaty no longer exist. This is not the case here as the circumstances (climate change) which led to the adopted of the Protocol still exist. This argument was used by the US to justify its withdrawal from the 1972 Anti-Ballistic Missile Treaty with Russia in 2001 after 9/11. In fact the US withdraw using the procedure for withdrawal contained in the treaty but justified its withdrawal by relying on arguments based on fundamental change in circumstances.
• The change must be fundamental; – not much guidance as to what constitutes fundamental in ILC Commentary or ICJ case law. Gabcikovo confirmed that change in political circumstances could be relevant (Japan could try and argue that the nuclear disaster has triggered a change in political circumstances which have led to a change of policy on nuclear power) but the stability of treaty relationships is the paramount consideration so it is unlikely that a change in government policy on nuclear power would be sufficiently fundamental. The International Law Commission in its draft articles confirmed that a subjective change in the attitude or policy of the Government could never be invoked as a ground for terminating, withdrawing or suspending the operation of the treaty.
• The change must not be foreseen by the parties (when they concluded the treaty); – could Japan have foreseen this event? The ICJ jurisprudence on this issue (Fisheries Case and Gabcikovo) focuses on whether or not changes in the law were foreseeable to the parties.
• The existence of circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; – the ICJ has considered this issue in the Fisheries Case (UK v Iceland) where it confirmed that if the “motives” that induced a party to enter into the agreement had become “less compelling” or had “disappeared altogether” then the principle of fundamental change of circumstances could operate. However in the current scenario the motives for entering into the Protocol are to combat climate change, this hasn’t changed as a result of the nuclear disaster in Japan.
• The effect of the change was “radically to transform the extent of the obligations still to be performed under the treaty” – has the extent of Japan’s obligations radically changed? Its commitments under the Protocol remain the same, it is just harder for Japan to meet them without reliance on nuclear power.

Article 62 does not operate automatically but like A61 it would have to be invoked by Japan and the procedure under Article of the Vienna Convention would need to be followed.

Case Law:
There have not been to date any cases where a party sought to invoke Articles 61 or 62 in a multilateral setting.
However, both Articles 61 and 62 were invoked by Hungary before the International Court of Justice (ICJ) in the Gabcikovo-Nagymaros Case. It did so in support of its decision to terminate a treaty between itself and Slovakia (previously Czechoslovakia) to engage in developing hydro-energy. Hungary argued that political changes diminishing economic viability of the project, and progress in environmental knowledge constituted a fundamental change of circumstances. In response, Slovakia argued that Article 61 contemplated only physical disappearance of the object in question, and that Hungary could not invoke Article 61 because it had contributed to impossibility by breaching its obligations. The court rejected Hungary’s argument. The ICJ also rejected Hungary’s argument that the disappearance of economic incentives consistent with environmental protection made the treaty impossible to perform. It emphasized that the object of the treaty had not definitively ceased to exist, there being means in the treaty by which the parties could negotiate necessary adjustments. In response to this argument, Slovakia had argued that the changes identified by Hungary had not actually altered the nature of its obligations.

Article 62 was also unilaterally invoked by Iceland in the Icelandic Fisheries Jurisdiction Case. There, Iceland had entered into an agreement with the UK through an Exchange of Notes that established its exclusive fisheries jurisdiction to 12 nautical miles, and included a compromise clause allowing disputes to be referred to the ICJ. There was no language concerning termination in the Exchange of Notes, although some provisions were of a limited duration. After a dispute arose under the Exchange of Notes, the UK took Iceland to the ICJ. Iceland disputed the court’s jurisdiction by invoking Article 62. Iceland asserted that alleged changes in fishing techniques making it more efficient was a “fundamental” change in circumstances. This “radical transformation”, according to Iceland, transformed its obligations. In response, the UK argued that the changes in fishing techniques were neither fundamental nor radical transformations in Iceland’s obligations. The ICJ held that such a change in circumstances was exactly what had been envisioned by the agreement, rejecting Iceland’s arguments.

3. In Gabcikovo-Nagymaros, Hungary made a unilateral declaration as to its termination of its obligations. When the ICJ dealt with the legal effects of Hungary’s termination, and whether its unilateral termination actually terminated the treaty, it Emphasised that the treaty did not contain any provisions on termination. The ICJ held that “the Treaty established a long-standing and durable regime” and that the Treaty could only be terminated on grounds enunciated in the Vienna Convention on the Law of Treaties.

In the Iceland Fisheries Jurisdiction Case, when Iceland objected to the ICJ exercising its jurisdiction over the case, it did so unilaterally.

4. We have not had time to research this in detail. Russia objected via political statements to US withdrawal from the 1972 ABM Treaty on the grounds of fundamental change of circumstances but US withdrawal was enacted through the withdrawal mechanism contained in the ABM treaty not by reliance on A62, therefore the procedure under A65 of the Vienna Convention was not used.

In neither of the cases mentioned above (Gabcikovo-Nagymaros and Iceland Fisheries Jurisdiction Case) did the objecting parties invoke Article 65. Instead, the objecting parties refuted the terminating party’s arguments for invoking Articles 61 and/or 62.

5. We would need more time to do research in this area to be able to respond fully. One idea is that Japan could always try and rely on force majeure as a defence to its failure to perform its obligations under the Protocol. This is only relevant however if Japan is held accountable for breach of the Protocol and is forced to defend itself. However this defence has rarely been successfully invoked.

If Japan withdraws from the Protocol under Article 27 it will be acting lawfully. If it breaches the Protocol by failure to meet its target this is a wrongful act under international law. Japan could then use force majeure to defend itself for breach of treaty.