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Opinion of the ITU Legal Adviser on force majeure

The following is an opinion provided to the 60^th Meeting of the RRB (10-14 September 2012) by the ITU Legal Adviser on force majeure (see Revision 1 to Document RRB12-2/INFO/2)

Issue: Notion of Force Majeure

Two separate questions have been raised:

Is RRB authorized to proceed with the examination of requests by administrations seeking to extend, for reasons of force majeure, the regulatory time-limit for the bringing into use of frequency assignments (Document 554 of WRC-12)?

What is covered by the notion of force majeure (hereinafter FM)?

Insofar as the mandate of RRB is concerned, one has to analyse the decisions taken by WRC‑12 in this regard, and in particular § 3.20 of Document 554, where it will be seen that WRC's COM5 decided not to elaborate a draft resolution to allow limited and qualified extensions of the regulatory time-limit for the bringing into use of frequency assignments to a satellite in cases of co-passenger delays and to expand such (limited and qualified) extensions in the case of FM.

That decision by COM5 was based on two considerations, which were that: a) firstly, the elaboration of a resolution on that subject gave rise to a number of concerns, and that b) secondly (and more importantly in the cases with which we are concerned), because such cases could be brought to the Radio Regulations Board [or to future conferences] on a case-by-case basis.

This latter affirmation elicited no objection, and indeed no comment, from the Plenary, and was thus accepted by WRC.

The fact, moreover, that WRC-12 took an explicit decision concerning the specific case of the VINASAT-FSS-131E-III network does not call into question the principle referred to by WRC whereby specific cases can be brought before and examined by RRB on a case-by-case basis.

It may therefore be reasonably concluded from this absence of objection or comment that WRC‑12, in its capacity as legislative authority, delegated to RRB the authority to examine cases of requests for time-limit extensions, provided that the requesting party invokes, in support of its request, either a co-passenger issue or a case of force majeure.

In the light of these considerations, it may legitimately be concluded that RRB is duly authorized to handle such matters insofar as the requests submitted to it are founded either on a co-passenger issue or on an exception of force majeure.

It is, however, important to emphasize, without prejudging RRB's decision, that, should RRB see fit to respond favourably to a request, any extensions granted should, in accordance with the wording used by WRC-12, be “limited and qualified".

The notion of force majeure (FM)

The International Law Commission defines FM as “an irresistible force or an unforeseen external event [but, in both cases,] beyond the control of the State” (this reference to the State stems from the fact that the implementation of international treaties is incumbent on the State, taken as a whole, as a subject of international law).

From case law one can derive a definition of FM as being an unforeseen or foreseen but inevitable or irresistible event external to the obligor which makes it impossible for it to perform the obligation concerned.

FM may certainly be due to a natural disaster (earthquake, tsunami, flood, etc.), but does not stop there, it being recognized both in case law and by doctrine that this term can also apply to situations having their roots in human causes.

It is generally recognized that for an exception of FM to be deemed well-founded, the following (cumulative) requirements should be met.

Condition 1:	The event must be beyond the control of the obligor and not self-induced. The question, however, is not whether the acts or omissions involved are those of the obligor, but rather whether such acts or omissions can be attributed to it as a result of its own behaviour.
Condition 2:	The event constituting the FM must be unforeseen or, if it was foreseeable, must be inevitable or irresistible.
Condition 3:	The event must make it impossible for the obligor to perform its obligation. Consequently, mere difficulty in performing an obligation is not deemed to constitute FM.
Condition 4:	A causal effective connection must exist between the event constituting FM and the failure by the obligator to fulfil the obligation. It must of course be made clear in this regard that the causal connection should not be the result of behaviour wilfully adopted by the obligor.

Last but not least: FM cannot be presumed. It is therefore incumbent upon an obligator that invokes it to furnish tangible, formal proof of the existence of an event constituting FM.