LULUCF and force majeure

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Date produced: 09/06/2010

1. Is there a general definition of “force majeure” in international law? If not, what would it normally cover (in the event it is not defined further)? 

2. Which drafting would limit, to a large degree, the instances in which “force majeure” could be applied under the Annex to the COP decision in both Option A and Option B of the current KP text on LULUCF (see Annex 1)?

Question 1

The term force majeure is not defined as a specific term of international law under any treaty.  For example, the 1966 Vienna Convention on the Law of Treaties, which regulates how treaties are interpreted, does not contain a definition of force majeure.

However, the term force majeure has been used and accepted by international tribunals on a regular basis and thus can be said to constitute a rule of customary international law. The definition of force majeure under customary international law is best illustrated by the work of the International Law Commission (ILC) which prepared and formally adopted (on 9 August 2001) a draft treaty entitled “Responsibility of States for Internationally Wrongful Acts” (“State Responsibility draft treaty”) which contains a definition of force majeure.

It should be noted that this is only a draft treaty and has not been adopted by the international community as a treaty.  However, due to the international standing of the ILC, its provisions should be regarded as highly persuasive and reflective of the definition of force majeure under customary international law.

The ILC has defined force majeure in Article 23 of the State Responsibility draft treaty as follows:

“Article 23 – Force majeure

1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.

2. Paragraph 1 does not apply if:

(a) The situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it; or

(b) The State has assumed the risk of that situation occurring.”

The noted international scholar, James Crawford, states the position as follows:

“A situation of force majeure precluding wrongfulness only arises where three elements are met: (a) the act in question must be brought about by an irresistible force or an unforeseen event, (b) which is beyond the control of the State concerned, and (c) which makes it materially impossible in the circumstances to perform the obligation.  The adjective ‘irresistible’ qualifying the word ‘force’ emphasizes that there must be a constraint which the State was unable to avoid or oppose by its own means.  To have been ‘unforeseen’ the event must have been neither foreseen nor of an easily foreseeable kind.”

The implication of a State invoking the principle of force majeure is that it justifies non-performance by a State of an obligation for so long as the circumstances exist, e.g. a State can rely on it to excuse its failure to comply with an international treaty obligation. (This can be contrasted to a defence of “supervening impossibility”, which is even harder to prove and can therefore justify the suspension or termination of a treaty).

A State cannot invoke force majeure if it has caused or produced the situation in question (e.g. if it has failed to introduce proper regulations, or to enforce its laws, thus allowing a breach of its internal laws to occur).

Once a State accepts responsibility for a particular risk, it cannot then claim force majeure to avoid responsibility to carry out its treaty obligations.

Observations on draft LULUCF text

In Option A of the draft LULUCF decision, the proposed definition of force majeure in para 1(l) is broader than the definition of force majeure under international law as defined in Article 23 of the State Responsibility draft treaty.

Option A is broader in the following respects:

  • Article 23 refers to “the occurrence of an irresistible force or of an unforeseen event”, whereas Option A refers to “extraordinary events or circumstances”.
  • Article 23 refers to an event “beyond the control of the State”, whereas Option A refers to “whose occurrence or severity was beyond the control of…a Party
  • Article 23 excludes situations which were due, either alone or in combination with other factors, to the conduct of the State, where Option A provides that they must not have been “materially influenced by a Party”.

Option B of the draft LULUCF decision is also broader than Article 23 of the State Responsibility draft treaty in the following respects:

  • Like Option A, it also refers to “an extraordinary event” rather than an irresistible force or unforeseen event, and
  • Option B simply states that the event must have been “beyond the control of Parties” – it does not qualify this by excluding situations which may have been caused in some respect by a Party (eg through a failure to regulate).

It is, of course, open to the Parties to the UNFCCC/Kyoto Protocol to negotiate a different definition of force majeure as part of their COP decision if they wish.  International law does not prevent them from doing this.

Examples of force majeure under international law

Force majeure may be due to a natural or physical event.  Examples of force majeure under international law include:

  • Stress of weather diverting one State’s aircraft into another’s airspace
  • Earthquakes, floods or droughts
  • Human intervention, such as loss of control over a part of a State’s territory because of insurrection (eg civil war) or military operations by a third State.

Importantly, Crawford notes that “force majeure does not include circumstances in which performance of an obligation has become more difficult, for example due to some political or economic crisis.  Nor does it cover situations brought about by the neglect or default of the State concerned, even if the resulting injury itself was accidental and unintended.” Thus, in cases where a State has relied on force majeure to justify avoiding a treaty obligation which did not involve an actual impossibility but only increased difficulty of performance, the claim has failed.

The case of the Rainbow Warrior illustrates this point.  In that case, France had removed two secret service agents from French Polynesia for medical reasons while they were serving custodial sentences for the bombing of the Greenpeace vessel Rainbow Warrior in New Zealand.  In a case subsequently brought by New Zealand, France sought to rely on the defence of force majeure to justify its removal of its officers from French Polynesia and its failure to return them.

The Tribunal hearing the case rejected this claim, stating:

New Zealand is right in asserting that the excuse of force majeure is not of relevance in this case because the test of its applicability is of absolute and material impossibility, and because a circumstance rendering performance more difficult or burdensome does not constitute a case of force majeure.”

In relation to LULUCF and forestry, it is conceivable that a case of force majeure might arise in the following circumstances:

  • where a State loses control of part of its territory due to civil unrest or war
  • a cross-border fire, eg where part of a forest is lost due to a forest fire which started in one State but which crossed over into another state
  • a cross-border insect infestation of forest.

Arguably, activities carried out by non-State actors, such as illegal logging, should not be covered by a force majeure clause, as the State should be able to demonstrate that it has proper forestry laws and enforcement mechanisms in place to regulate and penalise illegal logging.

Example of force majeure clause in a carbon contract

A draft Carbon Sequestration / Storage Agreement prepared jointly by CARE with funding from the Richard and Rhoda Goldman Foundation, ICRAF and the Katoomba Group contains the following force majeure clause:

9 – Force Majeure

9.1 Neither Buyer nor Seller Aggregator shall be liable for any failure to perform its obligations where such failure is as a result of acts of nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labour dispute, strike, lockout or interruption or failure of electricity.

9.2 Either Buyer or Seller Aggregator asserting force majeure as an excuse shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimise delay or damages caused by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other party was timely notified of the likelihood or actual occurrence which would justify such as assertion, so that other prudent precautions could be contemplated.]

In the context of forest management contracts, force majeure has been defined as:

(…) in relation to either party, any circumstances beyond the reasonable control of that party (including without limitation, any fire, explosion, flood, Act of God, strike, lock-out or other industrial action) other than fire or wind blow damage as provided in clause (…)”.

This definition is taken from the Standard contract for the sale of standing trees by weight between the Forestry Commission and Purchaser and Service Contract between Forestry Commission and Contractor.

Question 2:

Drafting suggestions:

Deletion of force majeure clause

The provision in the draft LULUCF decision referring to force majeure should be deleted altogether.  It is arguable that Annex 1 countries should have assumed the risk for non-permanence or reversals as part of their overall obligation under LULUCF to ensure permanence and non-reversal (through taking appropriate measures), and that therefore the excuse of force majeure should not be open to them at all (see State Responsibility draft treaty, Article 23(2)(b) (extract above) which says that force majeure does not apply if a State has assumed the risk of that situation occurring).

Should this option not be practicable, the author makes the following drafting suggestions:

Option A:

Suggested amendments as follows (with strikethrough for deletions, and bold/underline for insertions):

“(l) [‘Force majeure’ means, for the purpose of this decision, extraordinary events the occurrence of an irresistible force or of an unforseen event or circumstances, defined as those events or circumstances whose occurrence or severity was beyond the control of the Party, which made it materially impossible to limit the resulting greenhouse gas emissions, where the event was not due, either alone or in combination with other factors, to the conduct of that Party and not materially influenced by, a Party […..].”

The addition of the words “where the event was not due, either alone or in combination with other factors, to the conduct of that Party” would mean that a Party could not rely on its failure to enact and implement effective forestry laws to regulate and protect forests which guard against the risk of reversals.

Option B:

Drafting suggestion follows:

(h) Option 1: “Force majeure means, for the purposes of this decision, an extraordinary event the occurrence of an irresistible force or of an unforeseen event or circumstances beyond the control of Parties a Party, which made it materially impossible to limit the resulting greenhouse gas emissions, where the event was not due, either alone or in combination with other factors, to the conduct of that Party.