Abstract
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.
Highlights
Marine ecosystem management aims to maintain natural ecological structure and functioning while at the same time ensure the ecosystem services from which society gains benefits are maintained (Atkins et al, 2011; Elliott 2011)
Climate change can be regarded as an exogenic pressure on the biological, physical and chemical states of oceans and coastal zones (IPPC, 2014; Elliott et al 2015)
We previously suggested how the cascade effects of climate change may still be capable of constituting force majeure claims within Marine Strategy Framework Directive (MSFD) implementation (Elliott et al 2015)
Summary
Marine ecosystem management aims to maintain natural ecological structure and functioning while at the same time ensure the ecosystem services from which society gains benefits are maintained (Atkins et al, 2011; Elliott 2011). Activities and pressures within an area are what may be termed endogenic management pressures in which causes and consequences have to be addressed Superimposed on these are those from outside the management area (exogenic unmanaged pressures) for which their causes are not addressed at a local level but their consequences require to be addressed (Elliott 2011; Scharin et al, 2016). The physical impacts include relative sea level rise leading to ‘coastal squeeze’, coastal adjustments and increases in the intertidal area and incursion into estuaries resulting in effects on ecosystem services such as fisheries (Elliott et al, 2015 and references therein). Chemical changes to the marine environment include decreased pH levels (i.e. acidification) and increased CO2 leading to reduced growth of calcareous structures, macroalgae and macrofauna, changes to the water sediment and biogeochemistry impairing health of species and changes to overall ecosystem functioning. Biological changes emanate from physical and chemical changes reducing reproduction, community displacement and northward migration of species (Elliott et al, 2015)
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