Force Majeure (State Responsibility)

In the law of state responsibility, force majeure is one of six "circumstances precluding wrongfulness" recognized in the International Law Commission's Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA, 2001). It is set out in Article 23, which provides that the wrongfulness of an act not in conformity with an international obligation is precluded if the act is due to force majeure, defined as "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."

Three cumulative elements must be met:

• Irresistible force or unforeseen event — a natural disaster, armed insurrection, or other external constraint.
• Beyond the control of the state — the situation was not caused, alone or in combination with other factors, by the conduct of the state invoking it.
• Material impossibility of performance — not mere difficulty, increased cost, or political inconvenience.

Article 23(2) bars invocation where the state has assumed the risk of the situation occurring, or where the state itself contributed to the situation. The ILC Commentaries distinguish force majeure from distress (Article 24, threat to life of individuals) and necessity (Article 25, safeguarding an essential interest).

Force majeure is narrower than its private-law cousin in contract: in Rainbow Warrior (New Zealand v. France, arbitral award, 1990), the tribunal rejected France's force majeure plea regarding the removal of agents from Hao atoll, holding the test requires absolute and material impossibility, not merely greater difficulty. The Serbian Loans and Brazilian Loans cases (PCIJ, 1929) similarly applied a strict standard.

Even where successfully invoked, force majeure does not terminate the underlying obligation; performance resumes once the impediment ends, and Article 27 preserves the question of compensation for any material loss caused.