13 Wake Forest L. Rev. Online 59

Clare Magee


Russia’s 2022 invasion of Ukraine catalyzed a waterfall of political and economic upheaval across a world already reeling from the continuing COVID-19 pandemic. According to the World Bank, global trade in oil and natural gas from Russia and agricultural products from Ukraine suffered immense setbacks.[1] The Russian invasion and subsequent response from Western nations, in particular, disrupted numerous commercial agreements, many of which were directly impacted by the imposition of economic sanctions by the United States government.[2] A 2022 congressional report suggests that these economic sanctions resulted in hundreds of billions of dollars lost for the Russian economy, as well as a mass exodus of foreign companies from the Russian market, resulting in political and economic instability.[3]

Russia’s military offensive will likely result in a host of contractual legal issues coming to the fore over the next several decades. Russia-Ukraine sanctions-related commercial litigation governed by United States law is already slowly trickling into United States courts.[4] However, given that many commercial contracts customarily include mandatory arbitration provisions, courts will not have occasion to fully evaluate these claims for several years.[5] Instead, arbitrators will be met with the foreseeability problem that accompanies invocation of force majeure clauses and other common law defenses to breach of contract.

Part I of this Comment briefly discusses the legal foundation for economic sanctions both under United States and international law. Next, Part II explains how force majeure clauses operate in the background of contract disputes. Part III introduces the “foreseeability problem” generally, and details different analyses courts employ to evaluate force majeure depending on whether the jurisdiction has adopted a requirement that the force majeure event be foreseeable. Then, Part IV explores common law defenses to nonperformance of a contract complicated by economic sanctions that could be workable altneratives to force majeure clauses. Finally, Part V analyzes the contours of the “foreseeability problem” in the specific context of cases involving economic sanctions.

Ultimately, this Comment argues that while courts tasked with evaluating breach of contract cases arising out of economic sanctions may choose to adopt a straightforward approach to force majeure interpretation, the complications of a foreseeability approach could have costly implications for global commercial contracts. This Comment thus argues that until courts have occasion to reach the issues discussed below, litigants should focus their breach of contract defenses on the common law defenses of illegality and public policy.

I. Overview of Economic Sanctions

At the outset, it is important to explore how international economic sanctions operate at both a domestic and international level. Sanctions in the international context are a proverbial stick used to penalize states, individuals, or other actors that “endanger [the issuing entity’s] interests or violate international norms of behavior.”[6] International sanctions most often take the form of economic sanctions, which “are defined as the withdrawal of customary trade and financial relations for foreign- and security-policy purposes.”[7] Economic sanctions vary in type and scope, but may include travel bans, asset freezes, arms embargoes, capital restraints, foreign aid reductions, and other restrictions on trade and economic activity.[8]

The scope of this Comment is limited to economic sanctions issued by the United States government. While a brief overview of the broad international and domestic legal authorities for economic sanctions follows, it should be noted that the legitimacy, enforceability, and mass use of economic sanctions are expansive topics of legal and political scholarship that are well beyond the scope of this Comment.

A. Sanctions Under International Law

To begin, there is no general prohibition against economic sanctions in international law.[9] In fact, examples of economic sanctions have existed in international relations since 432 B.C. “when Athens imposed a trade embargo on its neighbor Megara.”[10] The modern international legal order is often considered to have begun after World War I with the formation of the League of Nations, which continued to promulgate sanctions as a tool of international relations.[11] For example, the League imposed a sweeping economic sanctions package against Benito Mussolini’s Italy after his invasion of Ethiopia in 1935.[12] The sanctions included an arms embargo, freeze on financial transactions, and significant export and import restrictions.[13] Various sanctions regimes have continuously been promulgated since 1935, and the recent trend has been towards issuing sanctions known as “smart sanctions” designed to “minimize the suffering of innocent civilians.”[14]

Today, the international legal authority for sanctions is largely grounded in the United Nations Charter, which contemplates the imposition of sanctions as collective security mechanisms available both to member states and to the UN as an international body.[15] Article 2 of the Charter lays out the expectations and rights of UN member states.[16] A majority of scholars do not believe that economic coercion through sanctions fall under Article 2(4)’s prohibition against “the threat or use of force” that is “inconsistent with the purposes of the United Nations.”[17] This is a logical interpretation given that any other reading would render later articles of the Charter inconsistent.[18] Article 41 of the Charter explicitly illustrates permissible uses of unarmed force, including “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication.”[19]

However, the evolution of customary international law does impose some guardrails on sanctions. Generally, lawful sanctions imposed against an actor should include five components: (1) the actor must have violated or continues to violate a primary rule of international law, (2) good faith efforts have been attempted to deter or induce the actor to cease its violation, (3) the sanctions are proportional to the violation, (4) the sanctions are appropriately tailored or limited, and (5) the sanctions are terminable upon the actor’s cessation of its violation.[20]

The general acceptance of proportional and appropriately applied sanctions does not mean that actors view all sanctions as legal, however. For example, Iran–which has recently been the target of expansive economic sanctions regimes–has attempted to challenge the legality of sanctions under treaty law and other international legal principles.[21] Iran has a lawsuit before the International Court of Justice (“ICJ”) which suggests that in addition to the general customary rules of sanctions, there may also be treaties, UN General Assembly resolutions, and general principles of international law that inform the legality of sanctions.[22] For the purposes of this Comment, however, international economic sanctions as a general economic concept are assumed to be valid under international law and capable of interrupting contractual relationships.

B. Economic Sanctions Under United States Law

Within the United States, international economic sanctions are governed by a patchwork of legal authorities including acts of Congress, executive orders, decisions of agencies, and the Constitution itself. As a nation-state under international law, the United States’ jurisdiction to prescribe law includes “certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests.”[23] This constraint of international law on the United States, paired with the Constitution’s provisions on prescriptive jurisdiction, form the legal basis of the United States’ authority to promulgate economic sanctions.[24] Article 1 of the Constitution vests legislative powers in the Congress of the United States and authorizes Congress to make laws related to economic sanctions, while Article 2 outlines the authority of the Executive to do the same.[25]

One foundational authority governing sanctions promulgated by the United States is the International Emergency Economic Powers Act (“IEEPA”). IEEPA was enacted in 1977 “to govern the President’s authority to regulate international economic transactions during wars or national emergencies.”[26] IEEPA forms the basis of most–if not all–Executive action related to sanctions.[27] On average, 1.5 IEEPA emergencies are declared every year, which may result in sanctions targeting thousands of persons or entities.[28] IEEPA also includes the power to impose “secondary sanctions” on individuals and entities who are outside U.S. jurisdiction and cannot be legally required to adhere to sanctions.[29] These secondary sanctions are broadly applicable to those “suspected of transacting with sanctioned or sanctionable entities.”[30] Further, IEEPA sanctions often last for decades, which means that once sanctions regimes are imposed, they are not quickly undone.[31] Congress can also crystallize executive orders imposing sanctions by codifying them to ensure they are not revoked later on.[32]

In addition to legal authorities governing imposition of sanctions, there are also authorities governing execution and monitoring of sanctions. Once sanctions are imposed, the Office of Foreign Assets Control (“OFAC”) in the Department of the Treasury “administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals.”[33] OFAC maintains and publishes lists of “individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries,” as well as groups that are “designated under programs that are not country-specific.”[34] Sanctions that are country-based may be (1) comprehensive, which means they cover “all transactions with the country and its nationals,” or (2) limited, which means they prohibit “only certain types of transitions with the target country or with certain persons in the government of that country.”[35] Activity-based sanctions “address particular actions, and the targets can be anywhere in the world.”[36]

While United States companies and individuals are expected to immediately abide by sanctions, foreign entities may also be prohibited from engaging in transactions with sanctioned countries, individuals, or groups if they have sufficient “contacts” with the United States or “conduct their transactions in U.S. dollars.”[37] OFAC exercises its discretion to claim jurisdiction over foreign companies and individuals broadly, increasing the power of United States sanctions regimes.[38] Thus, the impact of economic sanctions is far-reaching and can create challenges in a number of legal relationships, including in contractual obligations.

II. Force Majeure in Operation

With the aforementioned principles of sanctions in place, the remainder of this Comment turns to the interplay between contracts and economic sanctions – specifically, the role of force majeure clauses. Force majeure clauses are standard provisions that can be found in almost any contractual agreement.[39] These clauses typically cover “an event or effect that can be neither anticipated nor controlled,” including “both acts of nature (e.g., floods and hurricanes) and acts of people (e.g., riots, strikes, and wars).”[40]

Typically, what constitutes a force majeure “event” is determined by the language in the clause itself, which will delineate events the parties have included or excluded.[41] Parties might choose to negotiate specific events for inclusion or exclusion in order to dictate the application, effect, and scope of the force majeure clause.[42] For example, in Sage Realty Corp. v. Jugobanka, D.D.,[43] which involved a contractual dispute arising from the imposition of United States sanctions on Yugoslavian entities after the end of the Bosnian War, the relevant agreement’s force majeure clause contained the following exclusion:

[t]he obligation of Tenant to pay rent hereunder…shall in no way be affected, impaired or excused because Landlord is unable to fulfill any of its obligations under this Lease…by reason of any rule, order or regulation of any department of subdivision thereof of any government agency.[44]

More commonly, parties may opt for boilerplate or “catch-all” language that typically consists of: “acts of God, war, government regulation, terrorism, disaster, strikes (except those involving [a party’s] employees or agents), civil disorder…,” etcetera.[45]

As creatures of common law, force majeure provisions are governed by state law in the United States.[46] A court’s analysis of a force majeure clause thus can vary significantly by jurisdiction. Still, there are some foundational principles that courts tend to follow. For example, in breach of contract cases, the party invoking force majeure as an affirmative defense bears the burden to prove that the event causing the breach: (1) qualifies as a force majeure event, and (2) was not caused by the party’s own fault or negligence.[47]

Courts typically construe force majeure clauses narrowly and will “only excuse a party’s nonperformance if the event that caused the party’s nonperformance is specifically identified.”[48] Importantly, force majeure clauses do not excuse a party’s nonperformance “dictated by economic hardship” or because of a “mere increase in expense.”[49] Rather, the party asserting the force majeure clause as a defense must prove that an event within the clause “was beyond its control and without its fault or negligence.”[50] However, one aspect of force majeure interpretation that remains unclear is whether and to what extent courts include a “foreseeability” component.

III. The Foreseeability Problem

Because force majeure interpretation has evolved through common law, courts’ analyses reveal different approaches to whether a force majeure event must have been foreseeable or unforeseeable for the clause to adhere.[51] For example, Alabama and Maine have limited case law on force majeure clauses, with the primary analysis in reported decisions centering on the definition of force majeure with no evaluation of foreseeability.[52]

Conversely, consider the variance in states that have directly addressed foreseeability. Alaskan courts tend to require unforeseeability for force majeure events in certain types of contracts like oil and gas leases.[53] California and Florida have robust force majeure case law reflecting the most common practice where foreseeability is typically only an issue for catch-all or boilerplate language, and the rule is that “unless a contract explicitly identifies an event as force majeure, the event must be unforeseeable at the time of contracting to excuse performance.”[54] In Idaho, even if a force majeure clause does not expressly use the word “foreseeability,” courts are expected to engage in a foreseeability analysis.[55] By contrast, in New York and Ohio, courts do not read foreseeability issues into contracts that are otherwise silent on foreseeability.[56]

As illustrated by case law, courts may not have robust or consistent jurisprudence on the issue of foreseeability if it has not been frequently litigated.[57] But as one author notes, “Courts who have addressed this question can be placed into two categories.”[58] On one side are courts who import a force majeure clause’s “common-law significance” and “tend to impose an unforeseeability requirement upon the force majeure event.”[59] This means that in order for the court to allow the force majeure clause to excuse a party’s nonperformance, the event contemplated by the clause must have been truly unforeseeable. On the other side are courts who “regard the words of a self-defined force majeure clause as controlling and permit common-law notions to fill in the gaps.”[60] These courts are more likely to “not impose an unforeseeability requirement on enumerated force majeure events.”[61]

This variance in approach is mirrored not only from state to state, but system to system. Federal courts “have expressly advocated for an interpretive presumption that parties intend common-law components of force majeure, such as unforeseeability, to be read into a contract.”[62] But various state courts “allow the terms of an enumerated force majeure clause to control the scope and application of a force majeure analysis.”[63]

Yet another differentiating factor dividing courts’ analyses is whether the force majeure event that a nonperforming party bases its defense upon is explicitly listed in the clause or not. Given the potential implications of this difference for litigation arising out of economic sanctions, and because there is an apparent circuit split on enumerated force majeure clauses, this Part focuses on different courts’ analyses on force majeure events depending on whether they are explicit or not explicitly identified.

A. When Force Majeure Event is Explicit

At least two circuits have come to different conclusions about whether, and under what circumstances, a force majeure event that is explicitly included in the clause must be unforeseeable for the clause to adhere.[64] The Third Circuit and the Fifth Circuit have each had occasion to address whether “specifically listed” events require a showing of unforeseeability, coming to opposite conclusions.[65]

In Eastern Air Lines v. McDonnell Douglas Corp.,[66] the Fifth Circuit addressed an appeal for damages for breach of contract in favor of an airline against a jet plane manufacturer.[67] The lower court was unconvinced by the manufacturer’s argument that the delays leading to its breach of contract were the result of “escalation of the war in Vietnam,” finding in part that “any excusing event must have been unforeseeable.”[68] The Fifth Circuit disagreed and explained that underlying general contract principles is an understanding that “a promisor can protect himself against foreseeable events by means of an express provision in the agreement.”[69] Thus, argued the court, “when the promisor has anticipated a particular event by specifically providing for it in a contract, he should be relieved of liability for the occurrence of such event regardless of whether it was foreseeable.”[70] The Fifth Circuit concluded that the lower court erred in finding that “specifically listed” events “must have been unforeseeable at the time the contracts were entered into.”[71] This holding set up a foreseeability clash with the Third Circuit several years later.

In Gulf Oil Corp. v. FERC,[72] the Third Circuit adopted a “showing of unforeseeability” requirement.[73] Gulf Oil breached its obligations to deliver daily oil supplies to a Texas gas corporation under a contract which included among its enumerated list of twenty-seven force majeure events mechanical breakdowns, equipment downtimes, and maintenance repairs.[74] The Third Circuit held that Gulf Oil could not invoke the use of force majeure absent a showing that “the events which delayed its performance were unforeseeable and infrequent.”[75] Explaining its reasoning, the Third Circuit noted that “it is possible to accurately describe an event at its initial occurrence as unforeseeable and later because of the regularity with which it occurs, to find that such a description is no longer applicable.”[76] The court determined that the mechanical repairs which interrupted Gulf Oil’s delivery of gas had become so frequent and predictable that they could no longer be considered an excuse to nonperformance, even if they were specifically enumerated within the force majeure clause.[77] Importantly, the court articulated the insufficiency of arguing that “because the mechanical repairs were listed in the contract, they were force majeure events.”[78]

B. When Force Majeure Event is Not Explicitly Identified

The majority of states appear to read a foreseeability requirement into force majeure clauses only when the force majeure event is not explicitly enumerated or a catch-all provision is used.[79] One recent appellate case from Texas provides an illustrative discussion.[80] TEC Olmos, LLC v. ConocoPhillips[81] involved breach of an oil and gas drilling contract as the result of changes in global supply and demand for oil.[82] The contract included a force majeure clause that explicitly listed several events as well as a “catch-all” provision.[83] Drawing on common law principles, the court imported an “unforeseeability” requirement to ‘fill the gaps’ in the [catch-all] force majeure clause.”[84] The court explained:

To dispense with the unforeseeability requirement in the context of a general “catch-all” provision would, in our opinion, render the clause meaningless because any event outside the control of the nonperforming party could excuse performance, even if it were an event that the parties were aware of and took into consideration in drafting the contract.[85]

Key to the court’s reasoning was its concern for avoiding an “overly broad definition of force majeure” in accordance with traditional common law principles.[86]

Courts in California follow the same rules of construction and also read a foreseeability requirement into boilerplate or catch-all force majeure clauses.[87] In granting a motion to dismiss a breach of contract claim based on a force majeure defense, a United States District Court applied California law and held that “unless a contract explicitly identifies an event as a force majeure, the event must be unforeseeable at the time of contracting to qualify as such.”[88]

However, there are some state courts who have reached different conclusions as to the relevance of foreseeability when force majeure events are not explicitly listed.[89] For example, in a case involving a breach of contract arising out of an alleged “trade war” between the United States and China, a Michigan appellate court suggested that the court could find no Michigan cases to “support a conclusion that the foreseeability of a force-majeure event is relevant to the interpretation of a force-majeure clause.”[90] There, the litigant invoking force majeure argued that the case should have been allowed to proceed to discovery so “the issue of the foreseeability of China’s alleged illegal actions in the solar market and the parties’ intent with regard to allocation of risk [could] be explored.”[91] The court disagreed and construed the force majeure clause narrowly, rejecting any foreseeability arguments where the force majeure event was not explicitly listed.[92]

These cases illustrate the uncertainty awaiting litigants who have already included or might consider including sanctions-related force majeure clauses in their contracts. Basic contract principles favor giving meaning to the parties’ intentions as explicitly expressed in their written agreement, so conventional wisdom suggests that litigants who fear their contracts may be disrupted by sanctions in the future should negotiate force majeure clauses with explicit coverage for sanctions. However, if litigants do so and are met with a breach of contract action in a court that shares the Third Circuit’s attitude towards foreseeability in explicit force majeure clauses, they may be subject to an unwelcome holding.

On the other hand, litigants may not contemplate the possibility of sanctions and thus may rely on catch-all force majeure language to defend against breach of contract arising out of sanctions. The trouble with this approach, however, is that courts are more likely to include a foreseeability requirement in their analyses.[93] This opens litigants up to judges acting as political and foreign policy analysts who opine as to whether the parties should have foreseen a deterioration in relations between states leading to the imposition of sanctions. And while Supreme Court Justices have historically been asked to wade into the depths of foreign policy as a consequence of their rulings on multi-dimensional economic and political questions, there should be a measure of wariness towards granting such consequential authority to district and state court judges who may lack the expertise and time to carefully engage in such an analysis.[94]

Faced with these options, or perhaps by sheer mistake, litigants may end up without a sanctions-related force majeure provision entirely. Without such a provision, there are still some common law defenses available to litigants, such as impracticability/impossibility, illegality, or public policy. However, these defenses do not entirely dispense with—and in some cases actually enhance—the problem of the foreseeability requirement.

IV. Other Defenses
A. Impracticability and Impossibility

The shared common law origins of force majeure and impracticability (sometimes called impossibility) plays a key role in understanding how foreseeability can complicate a court’s analysis of alternative common law defenses. Impracticability and force majeure are similar but separate defenses to nonperformance. Impracticability excuses either “contracting party from performance in the fact of an act of God” such as “natural planetary elements or unforeseen, dramatic events.”[95] Even though it often covers “acts of God,” a force majeure clause is intended to relieve liability where “nonperformance is due to causes beyond the control of a person who is performing under a contract.”[96]

The clearest distinction between the two defenses is most easily understood temporally—when and how they are raised. As a contractual provision, a force majeure clause can only be invoked if the contract actually includes the clause.[97] Conversely, impracticability is a common law defense available to litigants even when a contract contains no force majeure clause.[98]

Foreseeability is the key aspect of the impracticability defense to breach of contract, which has three general requirements:

(1) the occurrence, or nonoccurrence, of the event causing the impracticability was unexpected; (2) performance of the duty by the promisor would be extremely difficult and burdensome, if not impossible; and (3) the promisor did not assume the risk of the event’s occurrence or nonoccurrence.[99]

Thus, in cases where litigants raise an impracticability defense, the court will almost always investigate the foreseeability of the event alleged to have caused the breach. One interesting example comes from the Fifth Circuit opinion in National Iranian Oil Co. v. Ashland Oil.[100] While National Iranian Oil Co. occurred in the context of an arbitration dispute, it revealed the court’s foreseeability analysis when determining whether a party can assert impossibility or impracticability.[101]

Beginning in 1973, Ashland Oil contracted with the state-owned National Iranian Oil Company (“NIOC”) to supply Ashland with crude oil.[102] Following the takeover of the United States Embassy in Tehran in 1979, then-President Carter issued several executive orders imposing sanctions against Iran, including banning imports of Iranian crude oil.[103] When Ashland refused to pay NIOC under the agreement, NIOC attempted to compel arbitration proceedings, which resulted in the Fifth Circuit’s opinion quoted in part at the outset of this comment.[104] Among the court’s evaluation of the arbitration claims is a helpful discussion of foreseeability as it relates to the defense of impossibility or impracticability.

As to the first element of the defense as articulated at the time—that the asserting party must not have been able to foresee the event—the Fifth Circuit held that it was “unimaginable” that the “NIOC–an instrumentality of the Republic of Iran–could not reasonably have foreseen” at the time of renewing their contract with Ashland that the agreement might be made impracticable by the deterioration of relations between Iran and the United States.[105] On the second element of the defense—that the event cannot have been the fault of the party asserting impracticability—the Fifth Circuit held that “as part of the revolutionary Government, NIOC certainly bears responsibility for creating the chain of events” that led to Ashland’s breach.[106]

Ashland Oil offers two principles that litigants should be aware of in choosing to invoke the impracticability defense, and potentially force majeure in jurisdictions where foreseeability is imported. First, depending on the political history and recency of conflict-ridden relations between the United States and foreign nations, a court may be willing to find that the imposition of sanctions was foreseeable, even if the parties did not contemplate them at the time of contracting. Second, litigants should be on notice that contracts with state- or quasi-state-owned entities may receive higher scrutiny on the foreseeability component since sanctions typically first target governments and government-owned enterprises.

B. Illegality and Public Policy

Illegality and public policy, which do not typically implicate foreseeability, provide a meaningful defense for nonperformance of a contract complicated by economic sanctions. As a general rule, illegality may be available to litigants as a defense against a breach of contract claim “whenever the performance of an act would be either a crime or a tort.”[107] Because parties cannot preemptively contract for something that would be illegal, the defense of illegality is available if, at the time the parties entered into the contract, the promise or obligation was not illegal but later became illegal.[108]

Public policy is an inherently ambiguous term, but courts are routinely asked to articulate what constitutes “public policy.”[109] They may define public policy as “that rule of law which declares that no one can lawfully do that which tends to injure the public, or is detrimental to the public good,”[110] “laws enacted for the common good,”[111] or policy and statutes that are established in the interests of the public or society.”[112] The Restatement (Second) of Contracts explains why courts may determine that a contractual promise is void as against public policy:

First, a refusal to enforce the promise may be an appropriate sanction to discourage undesirable conduct, either by the parties themselves or by others. Second, enforcement of the promise may be an inappropriate use of the judicial process in carrying out an unsavory transaction.[113]

In evaluating both illegality and public policy defenses, courts must often rely on the facts before them and the common law evolution of a court’s specific notions of what constitutes public policy, fairness, and illegality, meaning the success of either of these defenses is not automatic.

Unlike the impracticability or impossibility defense, courts do not typically import a foreseeability requirement into the illegality or public policy defenses. For example, Kashani v. Tsann Kuen China Enter. Co.[114] involved an American computer manufacturer entering an agreement with a Taiwanese corporation to establish a parts manufacturing plant in Iran.[115] Soon after the manufacturer began arranging financing, the Taiwanese corporation withdrew from the computer industry and refused to proceed with the agreement, arguing it had become illegal and against public policy because it violated executive orders issued by then-President Clinton to sanction Iran by restricting various business and financial transactions.[116] The California Court of Appeals held that the agreement was plainly illegal and violated public policy because the content of the agreement expressly violated the executive orders and other regulations imposing sanctions on Iran, so the corporation’s “actual and anticipated performance under the agreement were…prohibited.”[117]

Interestingly, the court distinguished between contracts that would be violative of domestic public policy versus international public policy in situations involving arbitration enforcement, indicating that the public policy defense might be evaluated differently in arbitration proceedings as opposed to court proceedings.[118] Ultimately, while the Kashani court acknowledged the public policy arguments, its decision was predicated on the more straightforward recognition that the agreement at issue violated an executive order and thus was illegal.[119]

Another example is a case from the United States Court of Federal Claims involving a motion to dismiss a breach of a government contract between the United States Agency for International Development (“USAID”) and Transfair International, Inc. to deliver humanitarian relief supplies to Eritrea.[120] In fulfilling its obligations under the agreement, Transfair subcontracted with a British company which ultimately hired Iranian aircraft to deliver the supplies.[121] USAID refused to pay the contract amount based on a defense that Transfair was in violation of OFAC sanctions. In response, Transfair filed a claim with the contract officer who found that “public policy considerations counseled against payment, which would be the equivalent of a transfer of government funds directly to an Iranian organization.”[122] The Court of Federal Claims reversed this decision at the motion to dismiss stage for two primary reasons: first, the court held that it must be determined whether a primary subcontractor should be held responsible for the illegal conduct of its subcontractor, and second, the court held that the illegality defense was not absolute, but rather subject to a fact intensive balancing test.[123] The court suggested that such a balancing test might weigh: (1) the promisee’s culpability, including what it knew about the alleged illegality, (2) the promisor’s corresponding culpability and knowledge of the illegality, (3) whether forfeiture would serve the public purposes at issue or serve as a deterrent against future violations, and (4) whether forfeiture resulting from nonenforcement of the agreement would be proportional to the illegality.[124]

These cases teach that when choosing among the available common law defenses to breach of contract, litigants can avoid the foreseeability problem by relying on illegality or public policy defenses. Impossibility or impracticability almost always require a court to inquire into the foreseeability of the event giving rise to the defense. Thus, if litigants are concerned about whether a court will read foreseeability into their force majeure clause, they should not expect to find a safe haven in the impossibility or impracticability defense. Thus, litigants should carefully consider whether the balancing approaches to illegality and public policy discussed above may instead be more advantageous to their position. Still, because of the canons of construction for contracts, if the litigants do have a force majeure provision that includes either explicit sanctions-related events or more general catch-all language, courts may begin and end their analyses with the force majeure clause, bringing litigants back to the foreseeability problem.

V. The Foreseeability Problem Redux: Sanctions Cases

The remainder of this Comment turns to cases which directly implicate force majeure or common law defenses in breach of contract cases arising directly out of sanctions. These cases do not appear to be often litigated to their full extent because of contractual arbitration provisions and the numerous other grounds on which a case may be decided or dismissed. Still, the cases that have been reported, combined with the general principles discussed above, provide a framework by which pending sanctions-related cases may be understood. As qualified previously, the discussion in this Part does not address the causation or culpability requirements of force majeure, or other elements of common law defenses. Instead, the focus is on the most unclear hurdle of them all: foreseeability.

A. A Straightforward Approach

Most likely, courts will adopt a straightforward approach to foreseeability in adjudicating sanctions-related litigation. In 1985, the Eighth Circuit reviewed an appeal from Iran after it lost a summary judgment motion to McDonnell, an American aircraft parts manufacturer over a breach of contract dispute.[125] Ten years earlier, the parties had entered into an agreement which included a force majeure clause explicitly excusing the manufacturer from nonperformance caused by “acts of the United States Government and embargoes.”[126] After the Iranian Revolution in 1979, when the U.S. Treasury Department and State Department imposed limitations on commercial dealings with Iran, McDonnell stopped shipping parts to the Iranian government.[127] The Iranian government sued for breach of contract, and the Eighth Circuit held that the economic restrictions imposed by the United States fell within the force majeure clause and excused McDonnell’s nonperformance.[128] Similarly, the Southern District of New York concluded in a 1998 case that the language of a force majeure clause which said the parties’ obligations would not be excused by “any rule, order or regulation…of any government” included executive orders and OFAC sanctions imposed against Yugoslavian entities in the wake of armed conflict in the Baltics.[129]

The ease with which these courts came to a decision regarding force majeure clauses should not be lightly disregarded. These cases illustrate the straightforward approach available to courts evaluating contractual provisions under traditional canons of construction. If, as is the case when analyzing any disputed contractual provision, the court’s aim is to give meaning and effect to the parties’ intentions when interpreting a force majeure clause, the court can rely on the terms of the agreement and end its analysis.[130] This is just what the Eighth Circuit did in McDonnell and the Southern District of New York did in Sage Realty.

If courts uniformly adopted this approach, litigants who contract with states or entities that eventually become targets of economic sanctions could negotiate specific force majeure provisions with this in mind at the beginning of the contractual relationship.Litigants would then have at least some measure of confidence that if all other force majeure elements were proven, they would be successful in their affirmative defense. Yet, the foreseeability problem lurks as a still-unknown potential disruptor to this straightforward approach.

B. The Unknowns of a Foreseeability Approach

Alternatively, courts might import foreseeability into their analyses of sanctions-related litigation, resulting in unknown but potentially far-reaching ramifications. This author could not find a single reported case in the last three decades where a court had occasion to directly address whether they would read a foreseeability requirement into a force majeure clause related to breach of contract arising out of sanctions. However, recent COVID-19 litigation seemingly indicates that such a question on sanctions cases may be forthcoming.[131] Over the past two years, courts have become increasingly skeptical of parties attempting to invoke force majeure clauses to cover pandemic-related breach of contract, finding that the pandemic and its impact on contracts are now foreseeable.[132] Notably, this skepticism seems most common in cases involving catch-all provisions where litigants attempt to stretch the meaning of the force majeure clause to cover the non-explicitly listed pandemic event.[133]

Economic sanctions as a tool of international relations are becoming more prevalent and widespread, with the Russia-Ukraine sanctions among the latest to garner public attention.[134] If “what’s past is prologue,”[135] there is a sound argument to be made that, when faced with questions about force majeure applicability to breach of contract arising out of sanctions, courts will look to cases like McDonnell and Sage Realty to interpret how litigants’ force majeure clauses apply to their claims. But in a world where courts have imported foreseeability requirements into force majeure cases like TEC Olmos and Gulf Oil, and where the recent COVID-19 litigation indicates that courts may consider the relative foreseeability of the force majeure event giving rise to contractual breach, it is possible that courts will turn to state common law and the foreseeability requirements of other common law defenses to read a foreseeability requirement into future force majeure litigation.

This approach could have costly implications for a range of contracts in a variety of industries given the nature of fully globalized trade. Imagine, for example, what would happen if a party today entered into a contract with a Chinese-owned entity that later became the target of United States sanctions. Could a court rationalize its opinion in state common law importation of foreseeability requirements that a force majeure clause and the common law defense of impracticability were unavailable because the sanctions were foreseeable given the slow devolution of relations between the United States and China since the end of the Cold War? While such a hypothetical might seem far-fetched and does not consider the potential relevance of common law defenses, there is certainly case law discussed in previous Parts that could support this reasoning if the facts and arguments were analogous enough.


The question of whether and to what extent foreseeability will impact sanctions-related litigation involving breach of contract claims is uncertain. Though courts will most likely rely on traditional canons of interpretation in evaluating force majeure events that litigants invoke as a shield against sanctions-involved breaches, the divide across state common law over importing a foreseeability requirement into force majeure interpretations lurks as a threat that raises more questions than it answers. Until courts are given an opportunity to develop a coherent body of case law on this question, litigants in cases involving breach of contract arising out of sanctions may be best served by adopting one of the following approaches. First, litigants could deliberately include sanctions in the force majeure clause and negotiate a favorable choice of law provision to ensure the force majeure clause is interpreted under the straightfoward approach adopted by the Eighth Circuit and Southern District of New York. Second, if their dispute reached a court, litigants could emphasize their public policy and illegality common law defenses in an attempt to avoid the question of foreseeability altogether.

  1. . See Russian Invasion of Ukraine Impedes Post-Pandemic Economic Recovery in Emerging Europe and Central Asia, The World Bank (Oct. 4, 2022), https://www.worldbank.org/en/news/press-release/2022/10/04/russian-invasion-of-ukraine-impedes-post-pandemic-economic-recovery-in-emerging-europe-and-central-asia.

  2. . Peter Neger & Bryan Woll, Applying U.S. Contract Law Amid Ukraine-Related Sanctions, Law360 (Mar. 24, 2022, 5:44 PM), https://www.law360.com/articles/1476924/applying-us-contract-law-amid-ukraine-related-sanctions.

  3. . Cong. Rsch. Serv., IFI2092, The Economic Impact of Russian Sanctions, https://crsreports.congress.gov/product/pdf/IF/IF12092 (last updated Dec. 13, 2022).

  4. . See, e.g., Joe Schneider, Carlyle Aviation Sues Insurers Over Seized Planes Leased to Russian Airlines, Ins. J. (Nov. 1, 2022), https://www.insurancejournal.com/news/international/2022/11/01/692558.htm.

  5. . Marco P. Falco, Business Contract Arbitration Clauses: Why the Words Matter, Law360 Canada (May 18, 2023 2:07 PM), https://www.law360.ca/articles/46864/business-contract-arbitration-clauses-why-the-words-matter?category=analysis.

  6. . Jonathan Masters, What Are Economic Sanctions, Council on Foreign Rel., https://www.cfr.org/backgrounder/what-are-economic-sanctions (last updated Aug. 12, 2019, 8:00 AM).

  7. . Id.

  8. . Id.

  9. . Syed Ali Akhtar, Do Sanctions Violate International Law?, Econ. & Pol. Wkly. (Apr. 27, 2019), https://www.epw.in/engage/article/do-sanctions-violate-international-law.

  10. . Uri Friedman, Smart Sanctions: A Short History, Foreign Pol’y (Apr. 23, 2012, 2:33 AM), https://foreignpolicy.com/2012/04/23/smart-sanctions-a-short-history/.

  11. . IMF, The Sanctions Weapon, Finance & Development (June 2022), https://www.imf.org/en/Publications/fandd/issues/2022/06/the-sanctions-weapon-mulder.

  12. . Id.

  13. . Id.

  14. . Masters, supra note 6.

  15. . See U.N. Charter art. 2, ¶ 5–6; see also U.N. Charter arts. 39–51.

  16. . U.N. Charter, art. 2.

  17. . J. Curtis Henderson, Legality of Economic Sanctions Under International Law: The Case of Nicaragua, 43 Wash. & Lee L. Rev. 167, 180 (1986).

  18. . Id. at 181.

  19. . U.N. Charter, art. 41.

  20. . Anthony D’Amato, Groundwork for International Law, 108 Am. J. Int’l. L. 650, 670 (2014).

  21. . See Certain Iranian Assets (Iran v. U.S.), Application Instituting Proceedings, 2016 I.C.J. (June 14) (arguing that U.S. sanctions violate the Treaty of Amity and international law).

  22. . See id. See generally Henderson, supra note 17, at 187–93.

  23. . Restatement (Third) of Foreign Rel. L. of the U.S. § 402 (1987).

  24. . Id., cmt. j.

  25. . U.S. Const. art. I §§ 1, 8; id. art. II.

  26. . Barbara J. Van Arsdale, Annotation, Validity, Construction, and Operation of International Emergency Economic Powers Act, 50 U.S.C.A. §§ 1701 to 1707, 183 A.L.R. Fed. 57 (2003).

  27. . Andrew Boyle, Checking the President’s Sanctions Powers, Brennan Center for Justice 3 (June 10, 2021), https://www.brennancenter.org/sites/default/files/2021-06/BCJ-128%20IEEPA%20report.pdf.

  28. . Id.

  29. . Id. at 8.

  30. . Id.

  31. . Id. at 3.

  32. . Abigail A. Graber, Cong. Rsch. Serv., R46738, Executive Orders: An Introduction, at 19 (Mar. 29, 2021).

  33. . Office of Foreign Assets Control, U.S. Department of the Treasury, https://home.treasury.gov/policy-issues/office-of-foreign-assets-control-sanctions-programs-and-information (last visited Nov. 20, 2023).

  34. . Id.; Office of Foreign Assets Control, Specially Designated Nationals List – Data Formats & Data Schemas, U.S. Department of the Treasury, https://ofac.treasury.gov/specially-designated-nationals-list-data-formats-data-schemas (last updated Nov. 17, 2023).

  35. . Boyle, supra note 27, at 7.

  36. . Id.

  37. . Id. at 8.

  38. . Id. at 8 (discussing OFAC’s claim of jurisdiction “over a Taiwanese company that transferred oil to an Iranian company, simply because that Taiwanese company had previously filed for bankruptcy in U.S. court”).

  39. . See J. Hunter Robinson et. al., Use the Force? Understanding Force Majeure Clauses, 44 Am. J. Trial Advoc. 1, 8 (2020) (explaining that “[f]orce majeure clauses may be found in any contract,” particularly construction and real estate contracts.

  40. . Force Majeure, Black’s Law Dictionary (11th ed. 2019).

  41. . 30 Williston on Contracts § 77:31 (4th ed.).

  42. . Id.

  43. . No. 95 CIV. 0323, 1998 WL 702272 (S.D.N.Y. Oct. 8, 1998).

  44. . Id. at *4.

  45. . Williston, supra note 41.

  46. . Robinson et. al., supra note 39, at 4 (“the application of force majeure principles can vary from jurisdiction to jurisdiction and case to case.”).

  47. . Williston, supra note 41.

  48. . Id.

  49. . Id.

  50. . Id.

  51. . TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176, 181 (Tex. App. 2018) (explaining that “foreseeability of force majeure events is rooted in the common law of the force majeure doctrine”). See generally Robyn S. Lessans, Comment, Force Majeure and the Coronavirus: Exposing the “Foreseeable” Clash Between Force Majeure’s Common Law and Contractual Significance, 80 Md. L. Rev. 799, 809–10 (2021).

  52. . See Practical Law Commercial Transactions, Key Issues When Invoking a Force Majeure Clause: State Law Chart, https://1.next.westlaw.com/Document/I1e7ec4ae774e11ea80afece799150095/View/FullText.html?transitionType=SearchItem&contextData=(sc.Search) (last visited Nov. 20, 2023).

  53. . Alaskan Crude Corp. v. State Dep’t of Nat. Res., Div. of Oil & Gas, 261 P.3d 412, 420 (Alaska 2011) (stating the rule that “Force majeure clauses extend [mineral] leases only when the nonperformance is ‘caused by circumstances beyond the reasonable control of the lessee or by an event which is unforeseeable at the time the parties entered into the contract’”).

  54. . Free Range Content, Inc. v. Google Inc., No. 14-CV-02329, 2016 WL 2902332, at *6 (N.D. Cal. May 13, 2016); see also In re. Flying Cow Ranch HC, LLC, No. 18-12681, 2018 WL 7500475, at *3 (Bankr. S.D. Fla. June 22, 2018)(finding that a force majeure event that was not explicitly listed in the clause was subject to a foreseeability analysis).

  55. . Roost Project, LLC v. Andersen Constr. Co., 437 F. Supp. 3d 808, 821 (D. Idaho 2020).

  56. . See Drummond Coal Sales Inc. v. Kinder Morgan Operating LP “C”, 836 F. App’x 857, 867 (11th Cir. 2021) (applying New York law); see also Sabine Corp. v. ONG W., Inc., 725 F. Supp. 1157, 1170 (W.D. Okla. 1989).

  57. . See, e.g., Kyocera Corp. v. Hemlock Semiconductor, LLC, 886 N.W.2d 445, 451 (Mich. Ct. App. 2015) (explaining “[t]his Court has previously observed that there is a paucity of Michigan cases interpreting force-majeure clauses…and that remains the case today”).

  58. . Lessans, supra note 51, at 810.

  59. . Id.

  60. . Id.

  61. . Id.

  62. . Id.

  63. . Id. at 812.

  64. . TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176, 182 (Tex. Ct. App. 2018).

  65. . Id.

  66. . 532 F.2d 957 (5th Cir. 1976).

  67. . Id. at 961.

  68. . Id. at 980.

  69. . Id. at 992.

  70. . Id.

  71. . Id.

  72. . 706 F.2d 444 (3d Cir. 1983).

  73. . Id.

  74. . Id. at 448–49 n.8, 453.

  75. . Id. at 454.

  76. . Id. at 453.

  77. . Id. at 453–54 (explaining that “[t]he element of uncertainty that defines unforeseeability is negated by the regularity with which the events occurred.”).

  78. . Id. at 454.

  79. . Compare Roost Project, LLC v. Anderson Constr. Co., 437 F. Supp. 3d 808, 821 (D. Idaho 2020) (explaining that courts should engage in a foreseeability analysis for events that are not expressly listed in the force majeure provision), with Kyocera Corp. v. Hemlock Semiconductor, LLC, 886 N.W.2d 445 (Mich. App. 2015) (finding that courts need not engage in a foreseeablity analysis to interpret a force majeure provision).

  80. . See TEC Olmos, 555 S.W. 3d at 182–85.

  81. . Id.

  82. . Id. at 179–180.

  83. . Id. at 179.

  84. . Id. at 184 (quoting Sun Operating LTD. P’ship v. Holt, 984 S.W.2d 277, 283 (Tex. App. 1998)).

  85. . Id.

  86. . TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176, 185 (Tex. App. 2018).

  87. . Free Range Content, Inc. v. Google, Inc., No. 14-CV-02329, 2016 WL 2902332, at *6 (N.D. Cal. May 13, 2016).

  88. . Id.

  89. . See, e.g., Morgan St. Partners, LLC v. Chicago Climbing Gym Co., No. 20-CV-4468, 2022 WL 602893, at *5 (N.D. Ill. Mar. 1, 2022) (rejecting a plaintiff’s argument that “foreseeability is paramount” for evaluating a force majeure clause that did not explicitly mention the COVID-19 pandemic).

  90. . Kyocera Corp. v. Hemlock Semiconductor, LLC, 886 N.W.2d 445, 454–55 (Mich. App. 2015).

  91. . Id. at 455.

  92. . Id. at 456.

  93. . Lessans, supra note 51, at 810.

  94. . See Noah Feldman, When Judges Make Foreign Policy, The New York Times Magazine (Sept. 25, 2008), https://www.nytimes.com/2008/09/28/magazine/28law-t.html.

  95. . 30 Williston on Contracts § 77:31 (4th ed.), Westlaw (database updated May 2023).

  96. . Id.

  97. . Id.

  98. . See 30 Williston on Contracts § 77:1 (4th ed.), Westlaw (database updated May 2023).

  99. . Id.

  100. . 817 F.2d 326 (5th Cir. 1987).

  101. . Nat’l Iranian Oil Co., 817 F.2d 326.

  102. . Id. at 328.

  103. . Id.

  104. . Id.

  105. . Id. at 333.

  106. . Id.

  107. . 5 Williston on Contracts § 12:1 (4th ed.), Westlaw (database updated May 2023).

  108. . See id.

  109. . Id.

  110. . Calvert v. Mayberry, 440 P.3d 424, 430 (Colo. 2019).

  111. . In re Santiago G., 121 A.3d 708, 722 n.17 (Conn. 2015).

  112. . See In re Estate of Feinberg, 919 N.E.2d 888, 894 (Ill. 2009).

  113. . Restatement (Second) of Contracts ch. 8, intro. note (Am. L. Inst. 1981).

  114. . 118 Cal. App. 4th 531 (2004).

  115. . Id. at 536.

  116. . Id. at 536–37.

  117. . Id. at 548.

  118. . See id. at 555 (explaining that “[t]here is an ‘important distinction between domestic and international public policy…According to this distinction what is considered to pertain to public policy in domestic relations does not necessarily pertain to public policy in international relations…’”) (internal citations omitted).

  119. . Id. at 548.

  120. . Transfair Int’l, Inc. v. United States, 54 Fed. Cl. 78, 78 (2002).

  121. . Id.

  122. . Id. at 80.

  123. . Id. at 87.

  124. . Id. at 85.

  125. . McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 343 (8th Cir. 1985).

  126. . Id.

  127. . Id. at 344.

  128. . Id. at 347–48.

  129. . See Sage Realty Corp. v. Jugobanka, D.D., No. 95 CIV 0323, 1998 WL 702272, at*1, *4–*5 (S.D.N.Y. Oct. 8, 1998) (discussing the reasonable foreseeability of sanctions for a related frustration of purpose defense).

  130. . Rocky Mountain Helium, LLC v. United States, 145 Fed. Cl. 92, 97 (2019).

  131. . Erin Webb, Analysis: No Longer Unforeseeable? Force Majeure and COVID-19?, BL (Nov. 1, 2021, 3:03 AM), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-no-longer-unforeseeable-force-majeure-and-covid-19 (stating that “[s]ome courts have found that the parties’ ability to name a risk—like a pandemic or a government shutdown risk—in a force majeure clause means that the risk was not only foreseeable at the time of contracting, but actually foreseen, defeating other defenses to nonperformance, such as impossibility of performance or frustration of purpose.”).

  132. . Id.

  133. . Ryan Franklin & Nicholas Wind, Force Majeure Clauses in the Aftermath of the COVID-19 Pandemic and the Implications for Government Entities, A.B.A. Blog (March 14, 2022), https://www.americanbar.org/groups/government_public/publications/pass-it-on/spring-2022/spring22-franklin-wind-forcemajeure/.

  134. . Nicholas Mulder, The Sanctions Weapon, Fin. & Dev., June 2022, at 20, 20–21. Conflict between Israel and Hamas began in October 2023, just as this Comment was published. While OFAC’s sanctions carefully target Hamas affiliates in an effort to avoid direct state-to-state sanctions against Iran, sanctions penalizing money transfers between “Iran-aligned” entities and Gaza provide yet another contemporary example of the increasing prevalance of economic sanctions as an international stick that businesses should not ignore in contract drafting. See Press Release, U.S. Dept. of the Treasury, Following Terrorist Attack on Israel, Treasury Sanctions Hamas Operatives and Financial Facilitators (Oct. 18, 2023) https://home.treasury.gov/news/press-releases/jy1816.

  135. . William Shakespeare, The Tempest 131 (Barbara A. Mowat & Paul Werstine, eds., Simon & Schuster Paperbacks 2015) (1623).

By Luke Brzozowski

In 2015, the Chinese Communist Party (“CCP”) released a “state-led industrial policy that [sought] to make China dominant in global high-tech manufacturing.”[1]  The program, referred to as “Made in China 2025” (“MIC”), attempted to “mobilize state-owned enterprises and pursue intellectual property acquisition to catch up with—and surpass—Western technological prowess in advanced industries.”[2]  These “advanced industries” included technology, pharmaceuticals, and rare-earth minerals.[3] 

China’s focus on these industries generated global concern due to commercial technology, such as artificial intelligence and semiconductors, now having significant military value.[4]  In 2018, global apprehension eventually developed into reactions that included the U.S. imposing tariffs on billions of dollars of goods from China.[5]  Due to these consequences, China’s leaders publicly abandoned MIC.[6]  These events ultimately led to the 2020 trade deal between the U.S. and China that required China to commit to increased intellectual property protection for foreign companies, among other legal and economic changes.[7] 

Despite this agreement, the relationship between the two countries has continued to deteriorate.[8]  Since the deal, Chinese courts and technology companies have adopted new legal tactics to fight claims of intellectual property theft.[9]  These methods include forced-transfer agreements and anti-suit injunctions (“ASI”).[10]  Thus, because it is unlikely that Chinese courts “deviate from the central government’s policy,”[11] there is unanimity that “the principles behind MIC are alive and well,” meaning the only thing to change was the name of the CCP’s policy.[12]

Since the birth of the CCP in 1949, observers have accused the nation’s courts of hosting show trials[13] and favoring Chinese stakeholders when “strategic sectors or companies . . . are concerned.”[14]  Therefore, it is no surprise that recent holdings from Chinese courts appear to align with the government’s agenda of acquiring and controlling trade secrets and IP in these “strategic sectors.”[15]  The particular tactics these courts have adopted, however, have sparked widespread condemnation.[16]  Not only are these courts overturning patents,[17] but also, they are supporting forced-transfer agreements and using ASIs in an unprecedented manner.[18]

China’s unofficial joint venture policy requires many companies that want to do business in China to enter into agreements with Chinese firms under terms that mandate them to share valuable IP.[19]  Many companies comply in order to access “the world’s second-largest consumer market.”[20]  This tactic allows China to “leapfrog up global value chains relatively quickly— without the costs, both in terms of time and money.”[21]  These forced agreements have ultimately allowed China to  “acquire outside technologies ranging from high-speed rail to electric-vehicle batteries.”[22]  Therefore, due to the “structural flaws in China’s legal system” that will prevent any deviation from the CCP’s objectives, these barriers to entry are likely here to stay, and a “comprehensive U.S.-style IP protection system will forever remain a mirage in the eyes of foreign corporations.”[23]

In addition to implementing forced-transfer agreements, Chinese courts have begun using ASIs to control IP and licensing rates of important technology.[24]  Originating from fifteenth-century England,[25] ASIs are “a controversial instrument used to combat the conflict of jurisdiction and forum shopping . . . [and are] not issued frequently or lightly.”[26]  Unlike traditional patents that only extend throughout the jurisdiction of the country that issued the patent, ASIs are typically issued in cases involving standard-essential patents (“SEPs”), which are unique patents that must comply with global standards set by Standard Setting Organizations (“SSOs”).[27]  SSOs typically instruct their members to license their SEPs globally on a fair, reasonable, and non-discriminatory basis (“FRAND”), which can result in national courts determining the value of patents issued by other nations.[28]  A court that is hearing a SEP claim can issue an ASI to prevent a party from filing in another court and risk having “identical cases playing out in multiple legal venues simultaneously.”[29]

The Intellectual Property Court of the Supreme People’s Court of China issued its first ASI in 2021 in Huawei v. Conversant.”[30]  Although other countries have used ASIs in the past, this tactic caught many off guard as ASIs are not explicitly included in Chinese law, nor have the Chinese courts adopted a consistent test to apply it.[31]  Since Huawei, Chinese courts have granted ASIs in at least three other major cases[32] but have applied different tests from various common law countries.[33]  In addition to the erratic application of ASIs in Chinese courts, China’s rulings have also been “far broader.”[34]  China’s ASIs have not been limited to the countries in which the parties sought injunctive relief “but extend to all jurisdictions of the world” and have prohibited litigants from asking any other court to determine global FRAND rates for particular IP by threatening fines up to $1 million per week.[35]        

As a result of these ASIs, opposing governments and international organizations have voiced their displeasure and accused China of attempting to unilaterally determine how valuable intellectual property is.[36]  In December 2022, the European Union (“EU”) sued China in the World Trade Organization, “complaining that China has barred EU companies from suing to protect their patents in courts outside China.”[37]  Over the last two months, Canada, Japan, and the U.S. have all asked to join the complaint.[38]  In addition to joining the EU lawsuit, the U.S. has imposed additional restrictions on critical exports to China[39] and recently adopted a new multiagency task force that “aims to protect U.S. technologies” from being stolen by foreign governments.[40]

These countermeasures are intended to protect U.S. innovations, economic competitiveness, and national security.[41]  However, the successful implementation of these directives, along with trial proceedings, will take time and will most likely be met with a strong response from the CCP.  Thus, as technology rapidly advances and the fight to control this property grows, the strained relationship “between the world’s two biggest economies is only likely to intensify further.”[42]

[1] James McBride & Andrew Chatzky, Is ‘Made in China 2025’ a Threat to Global Trade?, Council on Foreign Rel., https://www.cfr.org/backgrounder/made-china-2025-threat-global-trade (last updated May 13, 2019).

[2] Id.

[3] Stu Woo & Daniel Michaels, China’s Newest Weapon to Nab Western Technology–Its Courts, Wall St. J. (Feb. 20, 2023), https://www.wsj.com/articles/u-s-china-technology-disputes-intellectual-property-europe-e749a72e?mod=hp_lead_pos5.

[4] See McBride & Chatzky, supra note 1.

[5] See Bobby Davis, U.S. to Apply Tariffs on Chinese Imports, Restrict Tech Deals, Wall St. J., https://www.wsj.com/articles/u-s-to-apply-tariffs-on-50-billion-of-chinese-imports-1521723078?mod=article_inline (lasted updated Mar. 22, 2018).

[6] See Emily Crawford, Made in China 2025: The Industrial Plan that China Doesn’t Want Anyone Talking About, PBS (May 7, 2019), https://www.pbs.org/wgbh/frontline/article/made-in-china-2025-the-industrial-plan-that-china-doesnt-want-anyone-talking-about/.

[7] See Josh Zumbrun, China Wields New Legal Weapon to Fight Claims of Intellectual Property Theft, Wall St. J. (Sept. 26, 2021), https://www.wsj.com/articles/china-wields-new-legal-weapon-to-fight-claims-of-intellectual-property-theft-11632654001?mod=article_inline.

[8] See Ana Swanson & Lauren Hirsch, U.S. Aims to Curtail Technology Investment in China, N.Y. Times (Feb. 9, 2023), https://www.nytimes.com/2023/02/09/business/us-china-investing-tech-biden.html?searchResultPosition=22.

[9] See Zumbrun, supra note 7.

[10] See McBride & Chatzky, supra note 1; Andrei Iancu & Paul R. Michel, The Solution to Chinese Courts’ Increasingly Aggressive Overreach, Ctr. for Strategic & Int’l Stud. (Apr. 6, 2022), https://www.csis.org/analysis/solution-chinese-courts-increasingly-aggressive-overreach.

[11] Sophie Tang, Anti-Suit Injunction Issued in China: Comity, Pragmatism and Rule of Law, Conflict of L. (Sept. 27, 2020), https://conflictoflaws.net/2020/anti-suit-injunction-issued-in-china-comity-pragmatism-and-rule-of-law/.

[12] Crawford, supra note 6.

[13] See Edward White, Chinese Courts Flex Intellectual Property Muscle Across Borders, Fin. Times (June 15, 2022), https://www.ft.com/content/d4b4e41b-d303-474e-a084-717b948cf2f8.

[14] Woo & Michaels, supra note 3.

[15] Id.

[16] See id.

[17] See id.

[18] See Yang Yu & Jorge L. Contreras, Will China’s New Anti-Suit Injunctions Shift the Balance of Global FRAND Litigation?, Patently-O, 2020, at 4.

[19] See McBride & Chatzky, supra note 1.

[20] Daniel Rechtschaffen, How China’s Legal System Enables Intellectual Property Theft, The Diplomat (Nov. 11, 2020), https://thediplomat.com/2020/11/how-chinas-legal-system-enables-intellectual-property-theft/.

[21] Nicholas Yong, Industrial espionage: How China sneaks out American’s technology secrets, BBC (Jan. 19, 2023), https://www.bbc.com/news/world-asia-china-64206950.

[22] McBride & Chatzky, supra note 1.

[23] Yong, supra note 21.

[24] See Andrei Iancu & Paul R. Michel, The Solution to Chinese Courts’ Increasingly Aggressive Overreach, Ctr. for Strategic & Int’l Stud. (Apr. 6, 2022), https://www.csis.org/analysis/solution-chinese-courts-increasingly-aggressive-overreach.

[25] Yu & Contreras, supra note 18, at 2.

[26] Tang, supra note 11.

[27] Ken Korea, Anti-suit injunctions–a new global trade war with China?, ManagingIP (Aug. 3, 2022), https://www.managingip.com/article/2afz8grsj5i3uyxp19ji8/anti-suit-injunctions-a-new-global-trade-war-with-china.

[28] Id.

[29] Zumbrun, supra note 7.

[30] Tang, supra note 11.

[31] Id.

[32] Zumbrun, supra note 7.

[33] Tang, supra note 11.

[34] Yu & Contreras, supra note 18, at 4.

[35] Id. at 5; see also Zumbrun, supra note 7.

[36] See Zumbrun, supra note 7.

[37] Woo & Michaels, supra note 3.

[38] Id.

[39] See id.

[40] Ben Kochman, Feds Form ‘Strike Force’ To Protect Tech From Foreign Theft, Lexis (Feb. 16, 2023), https://plus.lexis.com/newsstand#/law360/article/1577284?crid=a03fb10d-e0c9-4709-94b1-19c1bc9abff4.

[41] See Walter G. Copan, China’s Ally in Stealing Western IP: The United States, Ctr. for Strategic & Int’l Stud. (Oct. 26, 2022), https://www.csis.org/analysis/chinas-ally-stealing-western-ip-united-states.  

[42] Yong, supra note 21.

By Kristen Tieman

On Saturday, January 28, 2023, a two-hundred-foot-tall balloon[1] covertly entered US airspace over Alaska.[2]  Five days later, on February 2, news of the balloon made national headlines as it was spotted over the continental United States.[3]  Immediately, questions began to arise: What were China’s intentions with the balloon?  Why would China use a balloon as a surveillance device, rather than a satellite?  Should the US military shoot the balloon out of the sky?  Although many questions remain unanswered, one thing is clear: China violated international law by sending the unauthorized spy balloon into US airspace.

During the media frenzy covering the movement of the balloon across the continental United States, a Pentagon spokesperson noted that “the balloon has violated US airspace and international law.”[4]  But what laws did it break?

Near the end of the Second World War, fifty-four nations signed the Convention on International Civil Aviation, more commonly known as the Chicago Convention.[5]  The Chicago Convention “established the core principles permitting international transport by air, and led to the creation of the . . .  International Civil Aviation Organization (ICAO).”[6]  The goal of the ICAO is to “organize and support the intensive international cooperation which the fledging global air transport network would require.”[7]

Since its inception nearly eighty years ago, the ICAO has grown to encompass 193 countries.[8]  The ICAO adopts aviation standards and relies on the cooperation of its Member States to ensure uniformity.[9]  The United States and China are among the Member States, and as such, both are expected to follow the guidelines established by the ICAO.[10]

The Chicago Convention instructs that “every State has complete and exclusive sovereignty over the airspace above its territory.”[11]  Further, “no state aircraft . . .  shall fly over the territory of another State . . . without authorization by special agreement or otherwise.”[12]  State aircraft is considered “aircraft used in military, customs, and police services.”[13]  The ICAO also sets out guidelines for “unmanned free balloons.”[14]  Such balloons, other than those “used exclusively for meteorological purposes” are prohibited from entering foreign airspace unless directly authorized by the foreign state.[15]  Each country is free to set its own policies for authorization of foreign aircraft, including balloons.

Under US law, “aircraft of the armed forces of a foreign country” may only enter US airspace if authorized by the Secretary of State.[16]  Foreign governments must comply with a number of procedures to receive such authorization.[17]  At least three days before the foreign aircraft enters US airspace, the foreign government must receive a Diplomatic Clearance Number (DCN) by the Department of State.[18]  The procedure for receiving a DCN includes filing an online application, which must be approved by Diplomatic Clearance Officer.[19]  The Chinese balloon did not have the clearance necessary to fly in US airspace.[20]

Approximately one week after the balloon was first spotted over US territory, it was shot down by the US military off the coast of South Carolina.[21]  Although some lawmakers called on President Biden to shoot down the balloon earlier in its path, the President ultimately decided to wait until the balloon was off the cost of the United States in an attempt to prevent danger to humans and property.[22]  For China, who has maintained that the balloon was merely a civil aircraft used for meteorological purposes, the US military’s show of force in striking down the balloon was a serious “overreaction.”[23]  China sees the move as an escalation in the growing tensions between the two countries.[24]  In contrast, the US has declared that the balloon was a state-sponsored aircraft with surveillance capabilities, thus justifying a strong use of force to eliminate the threat to US sovereignty.[25]

If the balloon were truly of a civil nature and acting lawfully, as China claims, then the US may have been unjustified in its actions.  For civil aircraft violating a foreign nation’s sovereignty, the ICAO instructs that the foreign nation may “require the landing at some designated airport . . .  [or] may also give such an aircraft any other instructions to put an end to such violations.”[26]  This section means that “a state may still use force against a civil aircraft acting illegally, provided that such action does not endanger the latter’s integrity.”[27]  Thus, if the Chinese balloon were civil in nature and acting legally, the US was likely not justified in shooting down and destroying the balloon.

However, the US stands by its position that the balloon was a state-sponsored surveillance device.[28]  State-sponsored aircraft are subject to stricter guidelines than civil aircraft.[29]  If the US is correct in its classification of the balloon, then it was justified in using military force to shoot down the balloon.[30]

Clearly, many questions still remain regarding the balloon’s purpose, surveillance capacity, and implications on US-China relations. Hopefully, over the coming weeks, more information will be brought to light to clarify the mysterious circumstances surrounding the balloon.

[1] Dan De Luce & Dareh Gregorian, Downed Chinese balloon was 200 feet tall, U.S. military says, NBC News (Feb. 6, 2023, 4:48 PM), https://www.nbcnews.com/politics/national-security/downed-chinese-balloon-was-200-feet-tall-us-military-says-rcna69371.

[2] Lara Seligman & Sam Stein, Timeline: A Chinese spy balloon’s trip across the United States, Politico (Feb. 5, 2023, 10:02 AM), https://www.politico.com/news/2023/02/05/timeline-a-chinese-spy-balloons-7-day-trip-across-the-united-states-00081222.

[3] Helene Cooper & Edward Wong, China’s spy balloon drifted for 7 days across the U.S.: A Timeline, N.Y. Times (Feb. 4, 2023), https://www.nytimes.com/2023/02/04/us/china-spy-balloon-time.html.

[4] David Vergun, General Says Chinese Surveillance Balloon Now Over Center of U.S., U.S. Dep’t of Def. (Feb. 3, 2023), https://www.defense.gov/News/News-Stories/Article/Article/3288103/general-says-chinese-surveillance-balloon-now-over-center-of-us/.

[5] The History of ICAO and the Chicago Convention, ICAO, https://www.icao.int/about-icao/History/Pages/default.aspx.

[6] Id.

[7] Id.

[8] About ICAO, ICAO, https://www.icao.int/about-icao/Pages/default.aspx.

[9] Id.

[10] Member States, ICAO, https://www.icao.int/about-icao/Pages/member-states.aspx.

[11] Convention on International Civil Aviation part I, ch. I, art. 1, 2006.

[12] Id. at art. 3(c).

[13] Id. at art. 3(b).

[14] International Standards: Rules of the Air app. 4-1, July 2005.

[15] Id. at 2.2.

[16] 49 U.S.C. § 40103(d).

[17] Bureau of Political-Military Affairs, Diplomatic Aircraft Clearance Procedure for Foreign State Aircraft to Operate in United States National Airspace, U.S. Dep’t of State (Dec. 14, 2022), https://www.state.gov/diplomatic-aircraft-clearance-procedures-for-foreign-state-aircraft-to-operate-in-united-states-national-airspace/.

[18] Id.

[19] Id.

[20] Charlie Dunlap, Guest Post: “The Chinese balloon shoot-down incident and the law: some observations”, Duke Lawfire (Feb. 5, 2023), https://sites.duke.edu/lawfire/2023/02/05/guest-post-the-chinese-balloon-shoot-down-incident-and-the-law-some-observations/.

[21] Seligman & Stein, supra note 2.

[22] Id.

[23] Verna Yu & Julian Borger, War of words over downed Chinese spy balloon continues as US recovers debris, The Guardian (Feb. 6, 2023, 6:44 PM), https://www.theguardian.com/world/2023/feb/06/china-accuses-us-of-overreaction-after-it-shot-down-high-altitude-balloon

[24] Id.

[25] Seligman & Stein, supra note 2.

[26] Maj Anne de Luca, Using the Air Force against Civil Aircraft: From Air Terrorism to Self-Defense, ASPJ Africa & Francophonie 3d. Q. (2012), at 49.

[27] Id.

[28] Seligman & Stein, supra note 2.

[29] Kuan-Wei Chen, China violated international laws and standards with its surveillance balloon, The Conversation (Feb. 9, 2023, 1:30 PM), https://theconversation.com/china-violated-international-laws-and-standards-with-its-surveillance-balloon-199563.

[30] Id.

Diplomatic Immunity over Globe

Diplomatic Immunity: A Carte Blanche for Misconduct?

By William McEwan

Do “Get Out of Jail Free Cards” exist outside the realm of Monopoly? For Anne Sacoolas—the wife of U.S government employee, Jonathan Sacoolas—one might argue they do.[1] In August of 2019, Mrs. Sacoolas struck and killed Harry Dunn, a nineteen-year-old British citizen, when she was driving on the wrong side of the road outside of an R.A.F army base in Croughton, U.K.[2] Prior to the incident, Mrs. Sacoolas had been living in the U.K for several weeks with her husband while he worked for the U.S government at a British air force base.[3]

In the wake of Harry’s death, the U.S. government invoked diplomatic immunity on Mrs. Sacoolas’ behalf and she fled the U.K.—initiating a three year civil and criminal battle in both the U.S and U.K court system.[4] Over three years later these proceedings are beginning to close; however, questions still remain. Specifically, how did this happen, how can this be prevented in the future, and has diplomatic immunity become more akin to diplomatic impunity?

The Story in the Courts

In 2019, the British Crown Prosecution Service (“BCPS”) charged Mrs. Sacoolas with causing the death of Harry Dunn.[5] However, because of the immunity invoked on her behalf, there was one major problem: Mrs. Sacoolas was not in the U.K. and was under no obligation to return.[6] The BCPS made an extradition request to the U.S. which was summarily denied by the State Department—a decision described as final.[7] The Trump administration supplemented this decision by stating that “granting the request would render the invocation of diplomatic immunity a practical nullity.”[8] This unsatisfactory result left the family of Harry Dunn with little recourse for the death of their son—so they tried their luck on U.S. soil.

On the 9th of September, 2020, the Dunn’s filed a civil wrongful death suit against Mrs. Sacoolas in the United States District Court Eastern District of Virginia. [9] In September 2021, the parties reached an undisclosed settlement and the door closed on the civil chapter in the proceedings.[10] Nevertheless, the Dunn’s, the British Public, and Parliament still felt an overwhelming sense of injustice that Mrs. Sacoolas had yet to face criminal charges in the U.K.[11] This sense of injustice lingered for two years, until a particularly savvy change to the U.K.’s Justice Act of 2003 (the “Justice Act”) opened the door to a potential prosecution in England.[12]

On the 28th June, 2022, the Justice Act was amended to give courts the power to “require or permit a person who is outside England and Wales (whether in the United Kingdom or elsewhere) to take part in eligible criminal proceedings through a live audio link or a live video link.”[13] This change in the law enabled Mrs. Sacoolas to appear before a criminal court in the U.K. via video link, circumnavigating the previous requirement of in-person appearances.[14] On the 20th October, 2022, Mrs. Sacoolas appeared before the Old Bailey Magistrate court via video link and pleaded guilty to the charge of causing death by careless driving.[15] She is due to be sentenced in November.[16] After nearly four years, it appears justice may be close for the Dunn family. Or is it in fact, just smoke and mirrors?

The reality remains that in the absence of extradition, there is nothing compelling Mrs. Sacoolas to travel to the U.K to receive punishment. A fact presiding Judge Cheema Grubb is well aware of, explaining at the hearing “[i]t is agreed that any sentence I pass is unlikely to be enforceable while the defendant remains outside of the United Kingdom. There is no order I can make to compel her appearance at the central criminal court for sentence.”[17] Thus, while the Dunn’s may feel some reprieve to have an official record of their son’s killer’s guilt, they must continue to wait to find out if Mrs. Sacoolas will receive an enforceable punishment. A fate that is entirely in her hands.

Loophole in the Law

The framework of diplomatic immunity rests upon the Vienna Convention of 1961.[18] The agreement between 190 states outlines the protections that family members of state officials enjoy. Specifically, Article 37(2) of the Vienna Convention, 1961 states:

Members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households, shall, if they are not nationals of or 12 permanently resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their duties.[19]

This article provided the driving force for Mrs. Sacoolas’ enjoyment of diplomatic immunity.[20] However, states can supplement the Convention agreement with their own agreements. When the United States invoked diplomatic immunity on behalf of Mrs. Sacoolas, they utilized what has since been referred to as a “legal loophole” in the agreements between the two states.[21] The U.S. and U.K. agreed to allow the potential prosecution of U.S. staff for crimes committed beyond their duties—but their families had greater protections.[22] This meant that while Mr. Sacoolas may not have enjoyed immunity if he had committed the same crime as his wife, she enjoyed protection under this anomaly in the agreement.

In light of the serious diplomatic tensions between the U.K. and U.S. in the years after Harry’s death, and persistent lobbying from the Dunn family, the agreement was amended to strip family members of their diplomatic protections in future cases similar to Mrs. Sacoolas’.[23] Foreign Secretary Dominic Raab claimed the development had “closed the anomaly that led to the denial of justice in the heartbreaking case of Harry Dunn.”[24] While this is progress for future incidents, the amendment does not work retroactively.[25] Nothing changes in the case of Mrs. Sacoolas. The Dunn’s must still wait in anticipation to see if Mrs. Sacoolas makes the trip across the Atlantic to be sentenced next month.

Is Diplomatic Immunity Really a Carte Blanche for Misconduct?

The Government of the Netherlands says no.[26] In part, stating “The Vienna Convention does not give diplomats carte blanche for misconduct. Diplomatic immunity does not place diplomats above the law and diplomats are obliged to conduct themselves in accordance with the laws of the receiving state.”[27] Yet, in cases like this, that hardly seems to be true. Mrs. Sacoolas did not conduct herself within accordance with the laws of the state, and for over three years she has faced no consequences. She has effectively enjoyed impunity, not immunity.

By no way is this article arguing that diplomatic immunity is frivolous or unnecessary. The Vienna Convention is vital to maintaining successful international relations and its importance cannot be underestimated.[28] However—as applied—there are unquestionable flaws. The unpardonable vice of diplomatic immunity, is not that it exists, but that its existence can lead to cases of immense injustice, like the case of Harry Dunn. As such, states must take it upon themselves to rectify loopholes and anomalies in their immunity agreements before tragedy strikes again. Additionally, no harm could occur in reminding state officials and their family members to drive on the correct side of the road.

  1. Complaint at 3, Charles v. Sacoolas, No. 1:20-cv-01052 (E.D. Va. 2020).

  2. Id. at 1.

  3. Id. at 3.

  4. Pete Cooper, Harry Dunn: Justice for family three years after crash death, BBC News (Oct. 20, 2022), https://www.bbc.com/news/uk-england-northamptonshire-63328171.

  5. Complaint at 6, Charles v. Sacoolas, No. 1:20-cv-01052 (E.D. Va. 2020).

  6. Harry Dun crash: Anne Sacoolas extradition refusal ‘final’, BBC News (May 12, 2020), https://www.bbc.com/news/uk-england-northamptonshire-52630089.

  7. Id.

  8. Id.

  9. Complaint at 1, Charles v. Sacoolas No. 1:20-cv-01052 (E.D. Va. 2020)

  10. Jenny Gross, Family of U.K. Teen Reaches Deal With U.S. State Department Employee After Car Accident, N.Y. Times (Sept. 21, 2021), https://www.nytimes.com/2021/09/21/world/europe/anne-sacoolas-harry-dunn.html.

  11. Jack Duggan, Harry Dunn injustice ‘only just’ raised with US government by foreign secretary, says prime minister, Northampton Chronicle & Echo (Mar. 3, 2021), https://www.northamptonchron.co.uk/news/crime/harry-dunn-injustice-only-just-raised-with-us-government-by-foreign-secretary-says-prime-minister-3153640.

  12. Criminal Justice Act 2003, c. 44, part 8, § 52 (UK), https://www.legislation.gov.uk/ukpga/2003/44/section/52/2022-06-28.

  13. Id.

  14. Harry Dunn crash: Anne Sacoolas appears in court, BBC News (Sept. 29 2022), https://www.bbc.com/news/uk-england-northamptonshire-63076171.

  15. Amanda Holpuch, American Woman Pleads Guilty in Death of British Teenager, N.Y. Times (Oct. 20, 2022), https://www.nytimes.com/2022/10/20/world/europe/anne-sacoolas-guilty-harry-dunn.html.

  16. Id.

  17. Benn Quinn, Anne Sacoolas pleads guilty to causing death of Harry Dunn, Guardian (Oct. 20 2022), https://www.theguardian.com/uk-news/2022/oct/20/anne-sacoolas-admits-causing-death-of-harry-dunn.

  18. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95.

  19. Id. at art. 37(2).

  20. Dunn v. Secretary of State for Foreign and Commonwealth Affairs [2020] EWHC (QB) 3185 (appeal taken from England).

  21. Matthew Weaver, Harry Dunn death: UK closes loophole that let accused claim immunity, Guardian (Wed 22 Jul 2020 09.02 EDT), https://www.theguardian.com/uk-news/2020/jul/22/uk-closes-loophole-that-allowed-harry-dunns-alleged-killer-to-claim-diplomatic-immunity.

  22. Weaver, supra note 18.

  23. Id.

  24. Harry Dunn Death: US immunity rule used by Anne Sacoolas closed, BBC News (Jul. 22 2020), https://www.bbc.com/news/uk-england-53500449.

  25. Id.

  26. Diplomatic immunity, Government of Netherlands, https://www.government.nl/topics/embassies-consulates-and-other-representations/diplomatic-immunity#:~:text=Diplomatic%20immunity%3A%20not%20carte%20blanche,laws%20of%20the%20receiving%20state.

  27. Id.

  28. Id.

11 Wake Forest L. Rev. Online 147

Imad Antoine Ibrahim,* Sandrine Maljean-Dubois,**
& Jessica Owley***

Without an international tribunal or tools like trade sanctions, there is little to coerce or encourage adherence with environmental treaties.  The Paris Agreement, the governing global agreement to address climate change, relies on voluntary global cooperation.  Countries determine their own commitments by setting nationally determined contributions of greenhouse gases emissions.  The main mandatory elements of the agreement are reporting requirements.  The success of the agreement turns on whether countries comply with these requirements.  Article 15 of the Paris Agreement establishes a Compliance Committee and sets forth the mechanisms to ensure and facilitate compliance with the agreement.  Yet, as with the rest of the Paris Agreement, Article 15 does not have teeth and relies on the good behavior of the countries of the world.  This brief contribution describes the mechanics of Article 15 while also highlighting concerns and issues at stake.  This background should be helpful in responding to COP 26 in Glasgow and beyond.


The implementation of international law suffers from longstanding difficulties.  A treaty’s terms could be eloquent or powerful, but without mechanisms to carry out or implement the treaty, it remains symbolic.[1]  Implementation consists of measures—legislative, administrative, or judicial—that signatories take to make international agreements operative under international and domestic law.[2]  Traditional means of response to violations of international obligations (like trade sanctions or international tribunals) do not fit the needs of the environmental field.[3]  Even though international dispute settlement mechanisms are developing, they are still uncommon and lack an established pattern.[4]  Overall, they are poorly tailored mechanisms for enforcing compliance with multilateral environmental treaties.[5]  Countermeasures are not particularly suited for environmental protection because states’ obligations are nonreciprocal and are based on a common interest.[6]

One way to address these implementation challenges and enhance environmental protection is to improve the monitoring and response mechanisms for noncompliance.[7]  Such monitoring must be tailored to the peculiarities of this specific field of international cooperation.[8]  In implementing the Paris Agreement (“the Agreement”),[9] the parties to the Agreement (“the Parties”) have chosen not to pursue traditional treaty compliance mechanisms.[10]  Considering the common interest pursued, Parties viewed financial and technical assistance to those struggling with compliance as preferable to imposing liability on those not in compliance with their climate change obligations.[11]  That is, the majority of Parties believed it is more important to promote compliance than to punish noncompliance, especially as the use of sanctions would discourage countries’ participation in the treaty and thus encourage free riding.[12]

All these factors prompted efforts to prevent disputes and introduce innovative international monitoring procedures—inspired in part by tried and tested methods in other legal fields (such as human rights).[13]  Since the 1990s, several environmental agreements have succeeded in reinventing themselves and established reporting and other monitoring methods (monitoring networks, inquiries, etc.) with more specific, ambitious, global, and coherent mechanisms to institutionalize monitoring and response to noncompliance.[14]  The first noncompliance procedure for environmental agreements—drawn up in 1990 in the framework of the Montreal Protocol of the ozone regime[15]—has been taken up and adapted by other environmental conventions, slowly becoming a standard practice.[16]  Although inspired by the Montreal Protocol model, all these procedures have peculiarities of their own.

The Kyoto Protocol of the climate change regime gave rise to the most comprehensive and intrusive noncompliance procedure to date.[17]  Divided into two branches—a facilitative branch and an enforcement branch—the Kyoto Protocol’s compliance committee was quasi-judicial.[18]  Potential sanctions were essentially intended to be dissuasive.

To convince (almost) all countries to become signatories, the form and substance of the Agreement differs from that of its predecessor, the Kyoto Protocol.[19]  The Agreement is more flexible.  It is based on contributions nationally determined by Parties,[20] making the provisions ensuring transparency and control all the more important.  These provisions introduce “top-down” enforcement mechanisms into an enforcement scheme that is mostly “bottom-up,” the Parties determining the content of their contributions for themselves.[21]  The compliance provisions play a major role: the provisions foster confidence among Parties (thereby hopefully leading them to increase their commitment), and enable the monitoring of the Parties’ efforts to ensure conformance with the global target emissions trajectory.[22]  Negotiators were well aware of the importance of these provisions and special care was dedicated to this matter on which a great part of the robustness of the Agreement depended.[23]  The control and implementation procedure takes the form of a triptych composed of three articulated parts: (1) the transparency framework (Article 13),[24] (2) the global stocktake (Article 14),[25] and (3) the compliance mechanism (Article 15).[26]  This Article examines the compliance mechanism of Article 15 and explains how it works, its remaining controversies, and ideas for how to move beyond the twenty-sixth annual Conference of the Parties (“COP”) in Glasgow.[27]

I. Key Features

A. History

The negotiators of the Agreement dedicated special care to the procedure to facilitate implementation and promote compliance on which a great part of the robustness of the Agreement depends.[28]  The structure of the adopted provisions comes from the efforts of an informal group of key negotiators—a coalition of developing and developed countries—including in particular South Africa, the European Union, the United States, Switzerland, New Zealand, Australia, and Singapore.[29] This informal group of countries, referred to as “friends of rules,” was formed after the Lima Climate Change Conference (“Lima Conference”) in 2014.  Members of the friends of rules realized during the Lima Conference that the rules of the game—which are of great significance for the integrity and effectiveness of the Agreement—were being rushed through by a process focused mostly on political questions.[30]  The Agreement gives a glimpse of a procedure that respects sovereignties but can ensure the accountability of the States, in the sense of being “in a position to be held responsible in the broad sense of the term.”[31]

The Agreement lays down fundamental principles in Articles 13 to 15.[32]  It was up to the subsequent meetings of the Parties to operationalize these principles.[33]  Given that in these matters the devil is in the details, the effectiveness of the mechanism thus depended on the operationalization decisions.[34]  Negotiations, which were difficult, concluded in 2018 during COP 24 in Katowice, Poland.[35]  During a “Conference of the Parties serving as the meeting of the Parties to the Paris Agreement,” also called “CMA,” the Parties adopted a series of decisions that gave the details for how the Agreement would function.[36]  These decisions are sometimes referred to as the “Paris Rulebook” or the “Katowice Workplan.”[37]  The key rules that guide compliance with the Agreement are 18/CMA.1 (“Modalities, procedures and guidelines for the transparency framework for action and support referred to in Article 13 of the Paris Agreement”),[38] 19/CMA.1 (“Matters relating to Article 14 of the Paris Agreement and paragraphs 99–101 of decision 1/CP.21”),[39] and 20/CMA.1 (“Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement”).[40]

While this Article focuses on the compliance mechanism (that is, Article 15 and associated rule 20/CMA.1), the compliance mechanism is best understood as part of a trio that includes transparency and the global stocktake.  Transparency rules help the Parties understand and access the Agreement’s processes and reporting requirements.[41]  The global stocktake is a mechanism to assess the progress (or lack thereof) made globally and by individual Parties in attaining the nationally determined contributions (“NDCs”) and other broad goals of the Agreement.[42]

B. Purpose and Nature of the Compliance Mechanism

Article 15 establishes a committee “to facilitate implementation” and “promote compliance” with the “provisions of this Agreement.”[43]  This language is the result of a compromise among the Parties.  Initial discussions centered on determining the two different (or perhaps not so different) roles for the Compliance Committee (commonly referred to as “the Committee” or “Article 15 Committee” and sometimes as the “Paris Implementation and Compliance Committee” or “PAICC”).[44]  Some Parties lobbied for strong compliance rules with sanctions while others wanted a purely voluntary agreement without a compliance mechanism.[45]  The compromise created a Committee without teeth, one that promotes instead of enforces.

There was also debate surrounding the “provisions of this Agreement” phrase regarding whether the Committee would review only mandatory obligations or also nonmandatory obligations.[46]  The Parties now seem to agree that “facilitating implementation” applies to all parts of the Agreement, while “promoting compliance” only refers to the mandatory elements and is therefore mandatory, largely centered on reporting requirements.[47]  The modalities (discussed below) detail how the facilitation will occur.[48]

Use of the terms “facilitate” and “promote” in Article 15.1[49] indicates that the Committee is to play an assisting role, helping Parties figure out how to comply with the Agreement and not judging whether they have (and importantly not sanctioning them when they do not).[50]  Article 15.2 requires that the Committee be “expert-based and facilitative” while functioning in a “transparent, non-adversarial and non-punitive” manner.[51]  The language of Article 15.2 deepens the view of the Committee as a “help desk,” as some commenters have labeled it.[52]  Such a role could include helping to coordinate technical assistance or assisting parties to understand funding opportunities.[53]

Importantly, the Parties decided that the compliance mechanism would not be adjudicative or punitive.[54]  The Committee is not a tribunal.[55]  It cannot penalize Parties for failure to submit NDCs or for failure to meet NDCs.[56]  Despite an apparent lack of teeth, Parties seem to view this soft compliance provision as having substantive implications.[57]  Parties hope that together with the transparency framework, the Article 15 Committee’s identification of noncompliance will spur action, but the Committee has no ability to ensure compliance.[58]

The Paris Rulebook protects the facilitative nature of the Committee by emphasizing it will not “function as an enforcement or dispute settlement mechanism.”[59]  While all the Parties are subject to the same compliance mechanisms,[60] the Paris Rulebook addresses differences in national capacities and capabilities by emphasizing the need for flexibility and understanding of the situations in different countries.

C. Composition and Functioning of the Committee

The decision document adopting the Agreement provided further details on the Committee.[61]  It is COP decision 1/CP.21 section 102 that explains the Committee will be composed of twelve members with recognized expertise in “relevant scientific, technical, socioeconomic or legal fields.”[62]  The CMA elects the members, and it must consider gender balance and geographical representation when it does so.[63]

The Paris Rulebook provides the details for the Committee’s operation, explaining that the members shall be elected by the Parties and serve for three years with a maximum of two consecutive terms.[64]  The first twelve-person committee was elected following COP 25 in Madrid.[65]  Once formed, the Committee elected two co-chairs.[66]  The Committee is to meet at least twice a year and is encouraged to hold meetings “in conjunction with the sessions of the subsidiary bodies” serving the Agreement.[67] 

While the Committee is to operate in a “manner that is transparent,”[68] its proceedings are confidential.[69]  Committee member meetings are closed with only members, alternates, and secretariat officials allowed to be present.[70]  The Committee is to “make every effort to reach agreement on any decision by consensus” but can resort to voting with three-quarters majority of those present and participating.[71]  The Committee annually reports to the CMA but the nature of the reports is not yet clear.[72]  The first report was a proposal for the rules of procedure.[73]  These rules detail the roles of the members, co-chairs, timelines, and the reasoning and deliberation processes for the Committee.[74] They were adopted at CMA 3 in Glasgow, which then encouraged the Committee to move to substantive matters.[75]

D. Process

Article 15.1 states that the Committee’s competencies are related to all the provisions of the Agreement,[76] which leaves room for interpretation.  Calls were made to limit the scope of the Committee’s operations by explicitly specifying and limiting the provisions within the scope of the Committee’s work.[77]  The sources of information on the basis of which the Committee shall evaluate compliance with the agreement are mentioned in Articles 4 and 13.[78]

Under Article 4, Parties shall “prepare, communicate and maintain successive nationally determined contributions that [they] intend[] to achieve.”[79]  Article 4 then goes on to precisely outline other details relevant to the submission of the NDCs.  For example, Article 4 differentiates responsibilities between developed countries on the one hand and developing, least developed, and small-island developing countries on the other hand.[80]  Article 4.4 encourages developing countries to reach their emission reduction targets in accordance with different national circumstances.[81]  Moreover, a party can adjust its NDCs at any time “with a view to enhancing its level of ambition.”[82]  A special acknowledgement of the “Parties with economies most affected by the impacts of response measures, particularly developing country Parties” was made, requiring consideration of their concerns in the implementation of the Agreement.[83]

Article 4 outlines obligations related to NDCs, while Article 13 requires Parties to report other types of information.[84]  For example, Article 13.7 requires Parties to provide “[a] national inventory report of anthropogenic emissions by sources and removals by sinks of greenhouse gases” and “[i]nformation necessary to track progress made in implementing and achieving its nationally determined contribution.”[85]  Some reporting requirements are correlated to the status of the country involved.  For example, developed countries provide “information on financial, technology transfer and capacity-building support” while developing countries provide information on the support needed.[86]  There are even mechanisms to help some countries comply with their reporting requirements; developing countries can get assistance in identifying capacity-building needs after technical expert review.[87]

It is important to understand the reporting requirements of Articles 4 and 13 because compliance with these requirements will likely be a central task for the Committee.  Reporting on NDCs and the compliance process occurs in the context of a “transparency framework for action and support, with built-in flexibility, which takes into account Parties’ different capacities and builds upon collective experience.”[88]  The framework acknowledges special circumstances of the least-developed countries and small-island developing states.[89]  Transparency arrangements include “national communications, biennial reports and biennial update reports, international assessment and review and international consultation and analysis.”[90]  The framework for transparency of action requires clarity of the progress made by the Parties to reach the objectives of the Agreement, while the framework for transparency of support tracks the support provided and received by the countries.[91]  Matters related to compliance can be raised by self-referral[92] or by the Committee.[93]  When a compliance matter originates with the Committee, it is either automatically or discretionarily initiated.[94] If a violation is automatically initiated, it is initiated by a violation of specified legally binding provisions of the Agreement in accordance with paragraph 22(a).[95] If a violation is discretionarily initiated, it is initiated with the consent of the concerned Party and involves cases of significant and persistent inconsistencies of the information submitted under Articles 13.7 and 13.9.[96]

The role of the Committee is a facilitative one, and it must adopt a nonadversarial and nonpunitive approach.  Still, the Committee has several options aimed at either facilitating implementation or promoting compliance:

(a) Engage in a dialogue with the Party concerned with the purpose of identifying challenges, making recommendations and sharing information, including in relation to accessing finance, technology and capacity-building support, as appropriate;

(b) Assist the Party concerned in the engagement with the appropriate finance, technology and capacity-building bodies or arrangements under or serving the Paris Agreement in order to identify possible challenges and solutions;

(c) Make recommendations to the Party concerned with regard to challenges and solutions referred to in paragraph 30(b) above and communicate such recommendations, with the consent of the Party concerned, to the relevant bodies or arrangements, as appropriate;

(d) Recommend the development of an action plan and, if so requested, assist the Party concerned in developing the plan;

(e) Issue findings of fact in relation to matters of implementation and compliance referred to in paragraph 22(a) above.[97]

Finally, recurrent issues, including barriers to implementation and compliance, “could hinder implementation of the agreement as a whole.”[98]  Unlike issues of individual Parties, systemic issues apply to the process and include things like due process rights.[99]  These cross-cutting issues can be tackled with collective recommendations and not just individual ones.[100]  Examples of systemic issues include:

the implementation of Parties’ reporting obligations under Articles 9 (on past and projected future provision and mobilization of financial resources) and 13 (on emissions and the implementation of NDCs as well as on support provided by developed countries), the actual enhancement of financial, technology transfer, and capacity-building support under Articles 9, 10, and 11; the submission of adaptation communications under Article 7; or action taken to conserve and enhance sinks and reservoirs of greenhouse gases under Article 5.1, among other things.[101]

Nothing in Article 15 prevents the Committee from addressing systemic issues.[102]  In fact, the “Committee may identify issues of a systemic nature with respect to the implementation of and compliance with the provisions of the Paris Agreement faced by a number of Parties”[103] but “shall not address matters that relate to the implementation of and compliance with the provisions of the Paris Agreement by an individual Party.”[104]

II. Overall Assessment and Future Prospects

From the analysis above, it seems that the compliance mechanism of the Agreement should provide the Committee with the power to make recommendations to the CMA, which would make the final decision.  If so, then the effectiveness of the compliance mechanism will depend on the willingness of a noncompliant Party to honor its commitments and apply the recommendations.[105]  Hence, the compliance mechanism should have a technical/political approach to be successful. Such an approach is crucial as the introduction of enforcement tools may push Parties to withdraw from the Agreement instead of confronting the negative consequences of noncompliance.[106]  The coming few years will tell whether the mechanism has been effective and the potential role that this mechanism can play as the Parties work to comply with the transparency framework of Article 13.


The review of compliance will occur by 2024.[107]  Until then, the Parties must fulfill the annual reporting requirements, which will then go through two review mechanisms: a Technical Expert Review (“TER”) and another form of peer review called Facilitative Multilateral Consideration of Progress (“FMCP”).[108]

Parties might leave the Agreement if the compliance mechanism does not account for their differing capacities and interests while ensuring its technical implementation.  Ensuring compliance will be the mark of success of the Agreement.[109]  The Agreement offered a pragmatic approach to ensure compliance by accepting that “most major emitters are reluctant to tie themselves into a rigid set of predetermined emissions reductions that are legally binding” and sidestepping the distributional conflict inherent in negotiating mitigation targets.[110]  Embracing this approach offered more chances for Parties to implement their NDCs and all the technical elements stipulated within the Agreement.[111]  But to reach this objective, there is a need to consider the suggestions made by different legal scholars to enhance the compliance mechanism and the Agreement in general.[112]

If the compliance mechanism succeeds in its mission, the mechanism would become a role model for other environmental treaties.  Success, however, will only occur by adopting a hybrid technical/political approach that balances the need to comply with the Agreement with Parties’ interests and capacities.  The alternative is a compliance mechanism no one complies with.

*.   Center for Law & Development, College of Law, Qatar University, Qatar.

**.    CERIC, CNRS & Aiz-Marseille University, France.

***.    University of Miami School of Law, United States.  The authors are members of the IUCN’s World Commission on Environmental Law.  This policy brief was prepared in conjunction with the Climate Change Specialist group as part of a larger effort to help people understand and respond to COP 26.  We thank Christina Voigt for spearheading the project and Lisa Benjamin for her comments on earlier drafts.

      [1].   See Sander Happaerts, Sustainable Development and Subnational Governments: Going Beyond Symbolic Politics?, 4 Env’t Dev. 2, 10 (2012); see also Dirk Matten, Symbolic Politics in Environmental Regulation: Corporate Strategic Responses, 12 Bus. Strategy & Env’t 215, 216 (2003) (discussing these issues in a domestic context and specifically related to environmental regulations).  That is not to say that symbols cannot advance environmental or social goals, but we must then acknowledge the role the international agreement is playing.

      [2].   See generally Ulrich Beyerlin & Thilo Marauhn, International Environmental Law (2011) (describing the important elements of national implementation of international environmental law and the requirements imposed by international environmental law with respect to national implementation).

      [3].   See generally The Effectiveness of International Environmental Regimes: Causal Connections and Behavioral Mechanisms (Oran R. Young ed., 1999) (examining how international regimes influence the behavior of their members and actors operating under their members’ jurisdiction).

      [4].   See Rüdiger Wolfrum, Means of Ensuring Compliance with and Enforcement of International Environmental Law, 272 Collected Courses Hague Acad. Int’l L. 9, 96–99 (1998).

      [5].   See id.

      [6].   See id. at 98–100.

      [7].   See Peter H. Sand, The Effectiveness of International Environmental Law: A Survey of Existing Legal Instruments 30, 40, 47 (1992).

      [8].   See generally Implementation of International Environmental Law (Sandrine Maljean-Dubois & Lavanya Rajamani eds., 2011) (detailing concerns related to soft law instruments, treaties with imprecise contextual and discretion-laden obligations, institutions with weak and overlapping mandates, poor or even perverse incentives for compliance, sanctions without teeth, and resource and capacity constraints at the domestic level).

      [9].   Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.

     [10].   See generally Michaela Danneman, The Paris Agreement’s Compliance Mechanism (2016) (International Environmental Law thesis, Stockholm University), https://www.diva-portal.org/smash/get/diva2:1049560/FULLTEXT01.pdf (explaining and analyzing the intricacies of the Agreement’s compliance mechanisms).

     [11].   See id. (describing how “focus when addressing non-compliance with environmental obligations have [sic] moved away from . . . trying to determine liability and remedies for damages caused, to preventing them occurring and if they do occur, resolving them peacefully in a non-contentious and non-adversarial manner”).

     [12].   See Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with Treaties in International Regulatory Regimes 2–4 (1995).

     [13].   See Office of the High Commissioner for Human Rights, Response to the Request of Ad Hoc Working Group on the Paris Agreement 2–4 (2017), https://www.ohchr.org/Documents/Issues/ClimateChange/OHCHR_APA%20submission_May2017.pdf.

     [14].   See Lindsay Maizland, Global Climate Agreements: Successes and Failures, Council on Foreign Rels. (Oct. 29, 2021, 9:00 AM), https://www.cfr.org/backgrounder/paris-global-climate-change-agreements.

      [15].   The Montreal Protocol on Substances that Deplete the Ozone Layer art. 10, June 29, 1990, 30 I.L.M. 537 (establishing the financial mechanism for developed countries to provide financial and technical assistance to developing countries).

     [16].   See, e.g., Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, 39 I.L.M. 1027; Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447; Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 18 I.L.M. 1442.

     [17].   See Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 2303 U.N.T.S. 162; see also Malgosia Fitzmaurice, The Kyoto Protocol Compliance Regime and Treaty Law, 8 Sing. Year Book Int’l L. 23, 24, 26–27, 40 (2004).

     [18].   See Andries Nentjes & Ger Klaassen, On the Quality of Compliance Mechanisms in the Kyoto Protocol, 32 Energy Pol’y 531, 531, 542 (2004) (describing the compliance mechanisms and the two branches).

     [19].   See Brad Plumer, Past Climate Treaties Failed. So the Paris Deal Will Try Something Radically Different., Vox (Dec. 14, 2015, 10:50 AM), https://www.vox.com/2015/12/14/10105422/paris-climate-deal-history.

     [20].   See id.

     [21].   See Christina Voigt, The Compliance and Implementation Mechanism of the Paris Agreement, 25 Rev. Eur. Cmty. & Int’l Env’t L. 161, 161 (2016) (discussing “the bottom-up approach” of the Agreement).  See also Paris Agreement, supra note 9, at arts. 6.4, 15.1., 15.2 (establishing “[a] mechanism to facilitate implementation of and promote compliance with” the Agreement, which is “facilitative in nature . . . and non-punitive” and therefore used “on a voluntary basis”).

      [22].   See Paris Agreement, supra note 9, at art. 13.1 (creating “an enhanced transparency framework” so that Parties can “build mutual trust and confidence . . . to promote effective implementation”).

     [23].   See Voigt, supra note 21, at 164 (discussing the “week-long facilitated negotiations” that resulted in compliance provisions and marked “a significant achievement” in light of “long-standing opposition to any compliance arrangement”).

     [24].   Paris Agreement, supra note 9, at art. 13.

     [25].   Id. at art. 14.

     [26].   Id. at art. 15.

     [27].   Although the Parties are supposed to meet annually, no meeting (or COP as they are called) was held in 2020.  Press Release, COP Bureau of the United Nations Framework Convention on Climate Change, COP26 Postponed (Apr. 1, 2020), https://unfccc.int/news/cop26-postponed.  COP 26 began on October 31, 2021.  Lisa Friedman, What Is COP26? And Other Questions About the Big U.N. Climate Summit, N.Y. Times (Oct. 27, 2021, 3:18 PM), https://www.nytimes.com/article/what-is-cop26-climate-change-summit.html.

     [28].   See Voigt, supra note 21, at 164.

     [29].   Lavanya Rajamani, Ambition and Differentiation in the 2015 Paris Agreement: Interpretive Possibilities and Underlying Politics, 65 Int’l & Compar. L. Q. 493, 500 (2016).

     [30].   Daniel Bodansky, The Paris Climate Change Agreement: A New Hope?, 110 Am. J. Int’l L. 288, 301 (2016) (describing the “friends of rules” group and its efforts).

     [31].   Vanessa Richard, L’accountability Comme Alternative à la Responsabilité? Réflexions en Droit International de l’Environnement, in Droit, Sciences Et Techniques, Quelles Responsabilités? 523, 523 (Sandrine Maljean-Dubois trans., Etienne Vergès ed., 2011), https://halshs.archives-ouvertes.fr/halshs-00799686/document.

     [32].   See Paris Agreement, supra note 9, at art. 13–15.

     [33].   See, e.g., Brad Plumer, Climate Negotiators Reach an Overtime Deal to Keep Paris Pact Alive, N.Y. Times (Dec. 15, 2018), https://www.nytimes.com/2018/12/15/climate/cop24-katowice-climate-summit.html.

     [34].   See id. (describing “a detailed set of rules to implement the pact” as “what we need to get the Paris Agreement off the ground” and thus “build a virtuous cycle of trust and cooperation among countries”).

     [35].   See id. (reporting that “[d]iplomats from nearly 200 countries reached a deal . . . after an all-night bargaining session” in Katowice, Poland).

     [36].   See id. (discussing “a uniform set of standards for measuring [signatories’] planet-warming emissions and tracking their climate policies” for purposes of the Agreement’s implementation).

     [37].   See id. (referring to the deal as “the Paris rule book”); COP 24, UN Women, https://www.unwomen.org/en/how-we-work/intergovernmental-support/climate-change-and-the-environment/united-nations-framework-convention-on-climate-change/cop-24 (last visited Nov. 10, 2021) (referring to the deal as the “Katowice Workplan”).

     [38].   Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement on the Third Part of its First Session, Held in Katowice from 2 to 15 December 2018, U.N. Doc. FCCC/PA/CMA/2018/3/Add.2, at 61 (Mar. 19, 2019) [hereinafter, Report of the Conference Held in Katowice from 2 to 15 December 2018].

     [39].   See id. at 53–58.

     [40].   See id. at 59–65.

     [41].   See Catherine Martini, Transparency: The Backbone of the Paris Agreement, Yale Ctr. for Env’t. L. & Pol’y. (May 29, 2016), https://envirocenter.yale.edu/transparency-the-backbone-of-the-Paris-Agreement.

     [42].   Global Stocktake, United Nations Framework Convention on Climate Change, https://unfccc.int/topics/global-stocktake (last visited Nov. 10, 2021).

     [43].   Paris Agreement, supra note 9, at art. 15.1.

     [44].   Gu Zihua et al., Facilitating Implementation and Promoting Compliance with the Paris Agreement Under Article 15: Conceptual Challenges and Pragmatic Choices, 9 Climate L. 65, 67 (2019); Paris Agreement Implementation and Compliance Committee (“PAICC” Adopts Work Plan for 2020-21, United Nations Climate Change (Nov. 6, 2020), https://unfccc.int/news/paris-agreement-implementation-and-compliance-committee-paicc-adopts-work-plan-for-2020-21.

     [45].   Id. at 69–70, 82.

     [46].   See, e.g., Lisa Benjamin, R. Hayes & B. Rudyk. Article 15 Compliance Mechanism, in A Commentary on the Paris Agreement on Climate Change (Geert Van Calster & Leonie Reins eds., 2021) (forthcoming 2021).

     [47].   Lavanya Rajamani, Elaborating the Paris Agreement: Implementation and Compliance 3 (2017), https://www.c2es.org/wp-content/uploads/2017/11/elaborating-the-paris-agreement-implementation-and-compliance-11-17.pdf.

     [48].   See infra text accompanying notes 64–75.

     [49].   Paris Agreement, supra note 9, at art. 15.1.

      [50].   Rajamani, supra note 47, at 4.

     [51].   Paris Agreement, supra note 9, at art. 15.2.

     [52].   Susan Biniaz, Institut du Développement Durable et des Relations Internationales, Elaborating Article 15 of the Paris Agreement: Facilitating Implementation and Promoting Compliance 2 (2017).

      [53].   See id.

     [54].   Rajamani, supra note 47, at 1.

     [55].   Id.

     [56].   See Biniaz, supra note 52, at 1–2.

     [57].   Rajamani, supra note 47, at 1–2.

     [58].   Id. at 1–4.

     [59].   Alicia Nicholls, COP 24: Paris Agreement Rule Book Agreed but Is It Enough?, Caribbean Trade L. & Dev. (Dec. 18, 2018), https://caribbeantradelaw.com/2018/12/18/cop-24-paris-agreement-rule-book-agreed-but-is-it-enough/.

     [60].   See Paris Agreement, supra note 9, at art. 15.

     [61].   Conference of the Parties, Report of the Conference of the Parties on its Twenty-First Session, Held in Paris from 30 November to 13 December 2015, U.N. Doc. FCCC/CP/2015/10/Add.2, at 1 (2016), https://unfccc.int/resource/docs/2015/cop21/eng/10.pdf.

     [62].   Id. at 2, 15.

     [63].   Id.

     [64].   Navigating The Paris Agreement Rulebook: Compliance Deeper Dive, World Res. Inst., https://www.wri.org/paris-rulebook (last visited Nov. 10, 2021).  In the first year, six members were elected to two-year terms and six were elected to three-year terms.  Id.

     [65].   Key Paris Agreement Implementation and Compliance Work Initiated, United Nations Framework Convention on Climate Change (June 26, 2020), https://unfccc.int/news/key-paris-agreement-implementation-and-compliance-work-initiated.

     [66].   Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement on its Second Session, Held in Madrid from 2 to 15 December 2019, U.N. Doc. FCCC/PA/CMA/2019/6/Add.1, at 13 (Mar. 16, 2020), https://unfccc.int/sites/default/files/resource/cma2019_06E.pdf.

     [67].   Id. at 14.

      [68].   Paris Agreement, supra note 9, at art. 15.2.

     [69].   Comm. to Facilitate Implementation & Promote Compliance Referred to in Article 15, Paragraph 2, of the Paris Agreement, Rep. of the Second Meeting of the Comm. Referred to in Article 15, Paragraph 2, of the Paris Agreement, U.N. Doc. PAICC/2020/M2/7, at 2.1.6 (2020), https://unfccc.int/sites/default/files/resource/PAICC_2020M_2_7_Meeting%20report%20with%20annexes_final.pdf.

     [70].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 61.

     [71].   Id.; see also Anju Sharma et al., Eur. Capacity Building Initiative, COP24 Key Outcomes 15 (2019), https://ecbi.org/sites/default/files/COP24Outcomes%20Final_0.pdf

     [72].   Paris Agreement, supra note 9, at art. 15.3.

     [73].   See Jennifer Huang, Ctr. for Climate & Energy Solutions, A Brief Guide to the Paris Agreement and ‘Rulebook’ 5 (2019), https://www.c2es.org/wp-content/uploads/2019/06/paris-agreement-and-rulebook-guide.pdf; id. at art. 15.3 (mandating that the Committee adopt rules of procedures during its first session).

     [74].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 61.

      [75].   See generally Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement, Report of the Conference of the Parties Serving as the Meeting of the Parties to the Paris Agreement Third Session, Held in Glasgow from 31 October to 12 November 2021, U.N. Doc. FCCC/PA/CMA/2021/L.1, at 61 (Mar. 19, 2019) (explaining these adopted provisions).

     [76].   Paris Agreement, supra note 9, at art. 15.1 (establishing the Committee as “[a] mechanism to facilitate implementation of and promote compliance with the provisions of” the Paris Agreement).

     [77].   Sebastian Oberthür & Eliza Northrop, The Mechanism to Facilitate Implementation and Promote Compliance with the Paris Agreement: Design Options 9 (World Res. Inst., Project for Advancing Climate Transparency, Working Paper, 2018), https://files.wri.org/d8/s3fs-public/mechanism-facilitate-implementation-promote-compliance-paris-agreement-design-options.pdf.

     [78].   Paris Agreement, supra note 9, at arts. 4.2, 4.4, 4.8, 4.13, 13.7–13.10.

     [79].   Id. at art. 4.2.

     [80].   Id. at arts. 4.2–4.6.

     [81].   Id. at art. 4.4.

     [82].   Id. at art. 4.11.

     [83].   Id. at art. 4.15.

     [84].   Id. at arts. 4, 13.7–13.10.

     [85].   Id. at arts. 13.7(a)–(b).

     [86].   Id. at arts. 13.9–13.10.

     [87].   Id. at art. 13.11.

     [88].   Id. at art. 13.1.

     [89].   Id. at art. 13.3.

     [90].   Id. at art. 13.4.

     [91].   Id. at arts. 13.5–13.6.

     [92].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 61.

     [93].   Id. at 61–62.

     [94].   Id. at 62 (discussing automatic initiations); Christina Voigt, The ‘Article 15 Committee’ to Facilitate Implementation and Promote Compliance, Eur. Roundtable on Climate Change & Sustainable Transition 3 (Apr. 15, 2019), https://ercst.org/the-article-15-committee-to-facilitate-implementation-and-promote-compliance (discussing discretionary initiations).

     [95].   Id. at 62.

     [96].   Voigt, supra note 94, at 3.

     [97].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 63.

     [98].   Addressing Systemic Issues of Compliance and Implementation Under Article 15 of the Paris Agreement: Models from MEAs. Legal Response Int’l 2 (Aug. 11, 2017), https://legalresponse.org/legaladvice/addressing-systemic-issues-of-compliance-and-implementation-under-article-15-of-the-paris-agreement-models-from-meas/.

     [99].   Oberthür & Northrop, supra note 77, at 10–11.

   [100].   Id.

   [101].   Id. at 11.

   [102].   Id.

   [103].   Report of the Conference Held in Katowice from 2 to 15 December 2018, supra note 38, at 63.

   [104].   Id.

   [105].   Legal and Procedural Remedies in Cases of Non-Compliance with Paris Agreement, Legal Response Int’l (Aug. 1, 2017), https://legalresponse.org/legaladvice/legal-and-procedural-remedies-in-cases-of-non-compliance-with-paris-agreement/.

   [106].   See Robert Falkner, The Paris Agreement and the New Logic of International Climate Politics, 92 Int’l Affairs 1107, 1119 (2016).

   [107].   Huang, supra note 73, at 2.

   [108].   Id. at 3.

   [109].   K. Madhava Sarma, Compliance with the Multilateral Environmental Agreements to Protect the Ozone Layer, in Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue Between Practitioners and Academia 25, 36–37 (Ulrich Beyerlin et al. eds., 2006).

   [110].   Falkner, supra note 106, at 1119.

   [111].   Id. at 1120.

   [112].   See S.I. Karlsson-Vinkhuyzen et al., Entry into Force and Then? The Paris Agreement and State Accountability, 18 Climate Pol’y 593, 597–98 (2018); Alexander Zahar, A Bottom-Up Compliance Mechanism for the Paris Agreement, 1 Chinese J. Env’t L. 69, 98 (2017).

By Sarah E. Page

Pop culture is filled with references to hidden Nazi treasure. Monuments Men tells the story of the real hunt for stolen Nazi art[1] Television channels are rife with shows focusing on the search for hidden Nazi gold around the world.[2] However, one hoard is hidden in plain sight, and is now the subject of a dispute that made it all the way to the Supreme Court of the United States, which, in a decision released Feb. 3, sided with the treasure’s current owners regarding whether the dispute should be decided by U.S. courts.[3]

The collection, currently housed in Berlin’s Kunstgewerbemuseum,[4] is filled with artifacts of immense cultural and monetary value, and includes beautiful, gilded ecclesiastical artifacts such as the Cupola Reliquary, the Guelph Cross, and the Portable Altar of Eilbertus.[5] The beauty of the artifacts hides a long and rich history. Although that history originates in the beginnings of the German church, the conflict that brought the treasure before the Supreme Court is rooted in the beginnings of the Nazi Party’s control over Europe. In 1929, a consortium of Jewish art dealers based in Germany purchased the Guelph Treasure and displayed it around the world.[6] After their rise to power in 1933, the Nazi government began pressuring the group to sell their collection to Prussia, which promptly gifted the treasure to Hitler.[7] However, this transaction was for only a third of the collection’s appraised market value.[8]

The unjustly low price paid over 80 years ago is the cause of the current legal battle. A group of the original Jewish art dealers’ descendants composed of Alan Philipp, a resident of the United Kingdom, and United States residents Gerald Stiebel and Jed Leiber, [9] seek legal recourse for what they allege was an unjust transaction. Before availing themselves of the United States court system, the group first tried to use the Limbach Commission in Germany, which was established in 2003 to consider the fate of Nazi-acquired artifacts with questionable provenance that are currently in government possession.[10]

In that commission hearing, the museum foundation currently holding the collection argued that because the collection was in Amsterdam, and not under German control at the time of the sale, it cannot automatically be presumed that the Jewish art dealers faced pressure and threats from the Nazi Party to sell.[11] Arguably, this assertion failed to consider that one member of the group lived in Germany at the time of the deal, and while the treasure might not have been subject to Nazi control, the man may have felt that his life was in danger.[12] Furthermore, the museum claimed that because the market declined due to the Great Depression, the collection was worth much less at the time it was sold, and therefore the sale price was fair,[13] despite evidence of a letter from a Nazi official to Hitler outlining his intent to purchase the collection for a mere third of its value.[14]

The commission agreed with the museum, and determined that the Guelph Treasure was sold for a reasonable price that was not a result of duress.[15] Thus, the museum, whose deputy director has described the Guelph Treasure as “the highlight, the center, the heart of [their] medieval collection,” was not required to return the artifacts to the descendants of the original dealers.[16]

Understandably displeased, the heirs decided to bring their fight to the United States.[17] Most of their causes of action are straightforward, like replevin, conversion, and unjust enrichment;[18] but the question of whether an American court could actually decide these issues is a jurisdictional quagmire that halted the case’s progress in the U.S.

Both the district court[19] and the D.C. Circuit Court of Appeals[20] determined that the claims surrounding the sale of the Guelph Treasure were connected to the genocide of German Jews during the Holocaust, and therefore the Foreign Sovereign Immunities Act (“FSIA”) would not prevent the United States courts from gaining jurisdiction. But the museum appealed this decision to the Supreme Court, arguing that the FSIA’s expropriation exception should not apply, both because the claims are of a domestic taking, from a German citizen to the German government, and because the principle of international comity would require that American courts refrain from making a decision on a matter with only a tenuous connection to the United States.

Normally, foreign governments are granted sovereign immunity from suits in the United States under the FSIA, but there are a few exceptions.[21] Under the FSIA’s expropriation exception, when a foreign state takes property “in violation of international law,” and “that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States,” then the foreign government is susceptible to suits in the United States regarding the taken property.[22] The museum, of course, does not believe this exception applies.

The museum’s first contention seems to rest on the fact that the actual transaction only involved German parties, that the sale itself did not violate international law, and that the transaction’s connection with the horrors of the Holocaust cannot bring claims surrounding the transaction under the purview of the expropriation exception.[23] The taking itself must violate international law, and historically, that can only happen when the government takes from a foreign national.[24] The heirs of the art dealers argue that the court should consider only the plain text of the law, and as “taken in violation of international law” is not defined within the FSIA statute and not an obvious term of art, it should be interpreted according to its plain meaning.[25] Because genocide is an obvious violation of international law, and the potentially unjust sale of the Guelph Treasure was directly related to the Holocaust genocide, then the sale should render the treasure “taken in violation of international law.”[26]

Although the museum is correct and the sale of the Guelph collection was not genocide, Justice Thomas suggested in oral argument that it is impossible to separate actions taken by the Nazi party against the German Jewish population from the Holocaust.[27] However, despite this incisive comment during argument, Justice Thomas joined in a unanimous decision to vacate the lower courts’ interpretation of the expropriation exception.[28] Writing for the court, Chief Justice Roberts adopted the German museum’s perspective on the FSIA.[29]

Because the rest of the FSIA mentions only property related offenses, the Supreme Court stated that the expropriation exception should not be extrapolated to apply to events surrounding human rights violations.[30] This is because international law governing property tends to abide by the “domestic takings rule,” which holds that a government’s seizure of the property of its own citizen is not a matter governed by international law.[31] The Court articulated that Congress’s intention to allow American courts to intervene only when there is state action against property held by a citizen of another state is obvious because the verbiage used in the FSIA expropriation exception is identical to that of the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964.[32] This amendment dictated that federal courts could intervene in situations in which foreign nations had taken adverse action against the property of a non-citizen, and was passed as a reaction to the former Supreme Court’s reluctance to exercise jurisdiction over the actions of a foreign nation on foreign soil involving an American company’s property.[33] However, Congress did not alter the traditional “domestic takings rule” when it passed the Second Hickenlooper Amendment, and instead left state actions against the property of their own citizens out of the purview of international law.[34] Because the sale of the Guelph Treasure was a transaction between German citizens, there is no invocation of international law, and therefore, there is no possibility that the transactions could have violated international law for the purposes of jurisdiction under the FSIA exception.[35]

However, the Supreme Court did leave one small door open to allow the dealers’ descendants another chance at U.S. jurisdiction. If the dealers were no longer considered German citizens at the time of the transaction due to Germany stripping Jewish Germans of citizenship status, the “domestic takings rule” may not apply.[36] However, the Court declined to address this important factor and sent the issue back to the district court to ascertain whether that issue was properly preserved for appeal.[37]

The museum’s next argument is that the principle of comity should prevent American courts from presiding over these claims because Germany has a system that would adjudicate the claims and because the claims hold significant historical and political implications for Germany.[38] At a basic level, comity is the principle that governments should respect the governmental decisions of foreign states.[39] After asserting comity, the nation of Germany was dismissed as a party to the case, but the museum foundation asserts that this principle should cover them as well.[40] The descendants contend that not only is the museum’s comity argument just a restatement of the forum non conveniens argument that was dismissed earlier and not appealed,[41] but also that discretionary comity would be inappropriate here because the descendants would not be able to recover for their claims in Germany.[42] The Supreme Court artfully avoided stepping on international toes by declining to address this issue and basing the outcome of the case solely on the dispute under the FSIA.[43] Therefore, the issue of comity in similar cases is left for another day.

On one hand, the Supreme Court had a sympathetic set of plaintiffs and extreme, visceral disgust for the atrocities committed by the Nazis during the Holocaust. On the other hand, the Court faced the possibility of overly encroaching on international affairs.[44] Although faced with two very compelling arguments and the competing goals of both preserving international relations and recognizing the injustices inflicted on the German Jews by the Nazis, the Court effectively struck a balance between preserving traditional tenants of international law and recognizing the injustices that faced the art dealers at the time of the sale.[45]

[1] See Monuments Men Found., https://www.monumentsmenfoundation.org (last visited Feb. 4, 2021).

[2] See Hunting Nazi Treasure, Nat’l Geographic Channel, https://www.natgeotv.com/ca/hunting-nazi-treasure/about (last visited Feb. 4, 2021); Lost Gold of World War II, History, https://www.history.com/shows/lost-gold-of-world-war-ii (last visited Feb. 4, 2021); Nazi Gold Train, Travel Channel, https://www.travelchannel.com/shows/expedition-unknown/episodes/nazi-gold-part-1 (last visited Feb. 4, 2021).

[3] Federal Republic of Germany v. Philipp, No. 19-351, slip op. at 1, 16 (U.S. Feb. 3, 2021), https://www.supremecourt.gov/opinions/20pdf/19-351_o7jp.pdf.

[4] Hilary McDonnell, An Uncertain Fate for the Guelph Treasure, Hughes Hubbard & Reed (Nov. 11, 2020), https://www.hhrartlaw.com/2020/11/an-uncertain-fate-for-the-guelph-treasure/.

[5] What is the Guelph Treasure?, Stiftung Preußischer Kulturbesitz,

http://www.preussischer-kulturbesitz.de/newsroom/dossiers-and-news/all-dossiers/dossier-the-guelph-treasure/what-is-the-guelph-treasure.html?no_cache=1&L=1 (last visited Feb. 4, 2021).

[6] McDonnell, supra note 4.

[7] Id.

[8] Brief for Respondents at 5, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Oct. 22, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/158522/20201022151404770_Respondents%20Brief.pdf.

[9] Brief for Petitioners at ii, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/153210/20200904172357322_2020-09-04%20Brief%20of%20Petitioners.pdf.

[10] Nicholas O’Donnell, Limbach Advisory Commission Recommends Against German Restitution of “Guelph Treasure,” Focuses on Terms of 1929 Agreement for Intended Sale, Sullivan &Worcester: Art L. Rep. (Mar. 26, 2014, 11:54 AM), https://blog.sullivanlaw.com/artlawreport/2014/03/26/limbach-advisory-commission-recommends-against-german-restitution-of-guelph-treasure-focuses-on-terms-of-1929-agreement-for-intended-sale/.

[11] Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, N.Y. Times (July 10, 2020), https://www.nytimes.com/2020/07/10/world/europe/guelph-treasure-germany-us.html.

[12] Schuetze, supra note 11.

[13] O’Donnell, supra note 10.

[14] Brief for Respondents, supra note 8, at 4.

[15] Brief for Petitioners, supra note 9, at 6.

[16] Schuetze, supra note 11 (quoting Lothar Lambacher).

[17] Nicholas O’Donnell, Civil Action Filed Against Germany for Restitution of Guelph Treasure, Sullivan &Worcester: Art L. Rep. (Feb. 24, 2015, 12:27 AM), https://blog.sullivanlaw.com/artlawreport/topic/philipp-v-federal-republic-of-germany-et-al-15-cv-.

[18] Joint Appendix at 125–26, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/153235/20200904173042682_2020-09-04%20Joint%20Appendix.pdf.

[19] Philipp v. Federal Republic of Germany, 248 F. Supp. 3d 59, 70–72 (D.D.C. 2017), aff’d, 894 F.3d 406 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021), https://casetext.com/case/philipp-v-fed-republic-of-ger.

[20] Philipp v. Federal Republic of Germany, 894 F.3d 406, 410–413 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021), https://casetext.com/case/philipp-v-fed-republic-of-germany-2.  

[21] Amy Howe, Argument Preview: Pleading Standards and the “Expropriation” Exception to the FSIA, SCOTUSblog (Oct. 27, 2016, 2:10 PM), https://www.scotusblog.com/2016/10/argument-preview-pleading-standards-and-the-expropriation-exception-to-the-fsia/.

[22] 28 U.S.C. §1605(a)(3), https://www.govinfo.gov/content/pkg/USCODE-2011-title28/html/USCODE-2011-title28-partIV-chap97.htm.

[23] Brief for Petitioners, supra note 9, at 16–18.

[24] Id. at 22–26.

[25] Brief for Respondents, supra note 8, at 11–12.

[26] Id. at 12–13.

[27] Coleman Sanders, Summary: Supreme Court Oral Argument in Federal Republic of Germany v. Philipp, Lawfare (Jan. 12, 2021, 1:19 PM), https://www.lawfareblog.com/summary-supreme-court-oral-argument-federal-republic-germany-v-philipp.

[28] Philipp, slip op. at 15–16.

[29] Id. at 1, 7.

[30] Id. at 4–5.

[31] Id. at 4–6.

[32] Id. at 7–8; see also 22 U.S.C. § 2370(e)(2).

[33] Philipp, slip op. at 7–8; § 2370(e)(2).

[34] Philipp, slip op. at 7.

[35] Id. at 8.

[36] Brief for Respondents, supra note 8, at 27.

[37] Philipp, slip op. at 16.

[38] McDonnell, supra note 4.

[39] Brief for Respondents, supra note 8, at 9–10.

[40] Id. at 10.

[41] Id. at 43.

[42] Id. at 54–55.

[43] Philipp, slip op. at 15–16.

[44] Brief for Petitioners, supra note 9, at 49–50.

[45] Philipp, slip op. at 13 (hinting at potential retaliation if an American court claimed jurisdiction over these claims).

Post image of the Cupola Reliquary, courtesy Kunstgewerbemuseum. Photo by Fabian Frohlich.

By Adrian E. Simioni

The continued closure of international borders in response to the COVID-19 pandemic has had devasting economic effects on trade, tourism, and service industries across the globe.[1] However, one overlooked, entirely human effect has been the profound impact of border closures on unmarried couples and families residing in different countries. Their designation as “non-essential” tourists, blanket entry bans, and inconsistent and rapidly changing travel restrictions have left numerous couples and families separated from the very beginning of the COVID-19 outbreak, and current infection trends do not bode well for timely reunions.[2]

This is an issue near and dear to me.  I have been in a long-distance relationship with a French national and permanent resident of the Czech Republic since the beginning of 2019. We met when I was teaching English in Prague, while she worked at a hotel in the city.  She has been seeking a visa to live in the United States (“U.S.”) since I left the Czech Republic to attend the Wake Forest University School of Law. Long-distance relationships are difficult to manage and maintain at the best of times, but the pandemic has shattered any certainty we had. We were on a trip to Canada in March when the European Union (“E.U.”)-U.S. border abruptly shut due to the onset of the COVID-19 pandemic; she was forced to return to the E.U. while I had to fly back to the U.S.  We were suddenly confronted with the prospect of being unable to reunite for an indeterminate amount of time. As the months rolled by, our hope waned. A reunion in May was cancelled, ideas for August were scrapped, and the U.S.’s announcement that it was suspending the consideration of routine visas for most applicants destroyed our plans for a permanent reunion.[3] We were left clinging onto any hope we could find.  Similar problems persist for other couples and families around the world.[4]

In response to these grim circumstances, an internet movement has been gathering steam. Love is Not Tourism is an organization formed for the express purpose of reuniting these separated couples and families while still acknowledging that general restrictions on tourism are necessary.[5] Love is Not Tourism’s argument is simple. “The closure of international borders in the wake of the COVID-19 pandemic was – and still is – sensible and even necessary. . . . [b]ut love is not tourism. This is not just about a summer holiday, it is about mental health and the future of people all around the world.”[6] Through their work, and the efforts of thousands of supporters filing petitions and contacting government officials around the world, as of October 27, 2020, twelve European countries and Canada have relaxed their entry restrictions on unmarried people and family members traveling to reunite with their loved ones,[7] with intergovernmental bodies like the European Commission explicitly encouraging other states to follow suit.[8]

My partner and I caught a very lucky break at the end of September when, through petitions supported by Love is not Tourism, the Czech Republic became one of the few countries that permit entry for unmarried partners of E.U. citizens residing in-country.[9] My application was approved within a week, and on October4, I arrived in Prague, where I am blogging from now. While we have been fortunate, when I am inevitably forced to return to the U.S., my French companion will be barred from visiting me.  The U.S. maintains strict travel restrictions and entry bans,[10] and the government has shown little interest in reunions.[11]

But how can countries facilitate the reunion of couples and families without jeopardizing the health of their citizens? The vast majority of countries continue to deal with the COVID-19 outbreak with total or partial border closures, though the trend has been shifting as countries slowly ease travel restrictions.[12] As case totals rise rapidly across the globe, however, governments have indicated that harsh travel restrictions can be reintroduced at any time, making reunions subject to both rapidly changing circumstances and differing immigration procedures.[13] Beyond measures imposed on foreign nationals, couples and families are becoming increasingly affected by measures imposed by their own country, such as two-week mandatory quarantines upon return, which makes travel to countries that also have mandatory quarantines unfeasible except for those in exceptional circumstances, like myself.[14] Some countries have even imposed strict exit bans, effectively stranding their own citizens within their country and preventing eligible couples and families from taking advantage of travel to countries which have allowed reunion.[15]

To facilitate the reunion of couples and families, Love is Not Tourism advocates for countries to implement a “self-paid test upon arrival and quarantine until a negative result is received or a 14 day strict quarantine” instead of arbitrary entry bans, and the inclusion of unmarried couples and family members as a part of countries’ “essential travelers” lists.[16] Studies indicate that total and partial travel bans are most effective at the very start of an outbreak, but are unsustainable in the long term as the outbreak spreads globally, making travel bans a delay strategy and not preventative.[17] On the other hand, testing travelers upon arrival and isolating for fourteen days reduces case importation numbers by an average of 91.7 percent, relative to allowing all travelers in unchecked, which would reduce infection risks from imported cases to a level that would permit necessary business and leisure travel.[18] This is similar to the procedure adopted by the Czech Republic prior to my arrival.[19] Even if countries refuse to remove hard entry barriers, the tiny number of people affected by unmarried couple and family travel ban exemptions would pose negligible risks, especially when compared to the risks ignored by entry policies that arbitrarily discriminate between places of origin.[20] Finally, the risk of abuse by those masquerading as a couple or family member is also low; countries which have implemented Love is not Tourism exemptions require strictly vetted applications with clear document requirements.[21] The risks of implementing these policies are low, while the benefits for families and couples are quite high.

Europe is in the grip of a second wave of outbreaks, and the U.S. has recently broken case count records last set in July.[22] The hope that countries will relax their hard entry bans is fading. The mental health and well-being of couples and families around the world is at risk. As put by one affected person, “I wish authorities understood that these travel bans are having immense mental health consequences for those of us who can’t be with our loved ones during these troubling times. I want them to know that we exist.”[23] Petitions targeting governments around the world and situation updates can be found on Love is Not Tourism’s website.[24] Every signature helps, and brings families and couples one step closer to a temporary reunion and an end to the months of isolation from their loved ones.

[1] See Nicolas Guzman et al., Coronavirus’ Impact on Service Organizations: Weathering the Storm, McKinsey & Co. (Apr. 29, 2020), https://www.mckinsey.com/business-functions/operations/our-insights/coronavirus-impact-on-service-organizations-weathering-the-storm#; U.N. World Tourism Org., International Tourism and COVID-19 (Sept. 15, 2020), https://www.unwto.org/international-tourism-and-covid-19; Press Release, World Trade Org., Trade Shows Signs of Rebound from COVID-19, Recovery Still Uncertain, Press/862 Press Release (Oct. 6, 2020), https://www.wto.org/english/news_e/pres20_e/pr862_e.htm.

[2] See Natalie B. Compton, Coronavirus Cases Set Records in Europe This Week.  What Does That Mean for the Return of U.S. Travelers?, Wash. Post (Oct. 15, 2020), https://www.washingtonpost.com/travel/2020/10/15/american-travel-europe-border/; see also ‘It is terrifying’: Europe Braces for Lengthy Battle with COVID, Reuters (Oct 26, 2020), https://www.eureporter.co/frontpage/2020/10/26/it-is-terrifying-europe-braces-for-lengthy-battle-with-covid/ (“Europe’s daily infections have more than doubled in the past 10 days, reaching a total of 7.8 million cases and about 247,000 deaths, as a second wave right before winter has crushed economic revival hopes.”); Holly Yan & Madeline Holcombe, The US had More Daily Covid-19 Cases in the Past Week than Ever Before. And No, it’s Not Just Due to More Testing, CNN (Oct. 26, 2020), https://edition.cnn.com/2020/10/26/health/us-coronavirus-monday/index.html (reporting that the seven-day average of daily new cases reached an all-time high of 68,767 on Sunday, October 25, with the previous record of 67,293 being set on July 22).

[3] See Proclamation Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak, U.S. Dep’t of State (June 17, 2020), https://travel.state.gov/content/travel/en/News/visas-news/Proclamation-Suspending-Entry-of-Immigrants-Who-Present-Risk-to-the-US-labor-market.html.

[4] See Natacha Larnaud, “A Part of Me Is Missing”: COVID-19 Travel Bans Continue to Separate Families and Couples, CBS News (Oct. 8, 2020, 6:42 PM), https://www.cbsnews.com/news/covid-19-travel-bans-families-couples/.

[5] See Love is Not Tourism, https://www.loveisnottourism.org/ (last visited Oct. 27, 2020); see also Love is Essential, https://loveisessential.info/ (last visited Oct. 27, 2020) (advocating for the reunion of non-E.U.-citizens in an “international” partnership).

[6] Love is Not Tourism, supra note 5.

[7] Id.

[8] See Alice Tidey, ‘Love Is Not Tourism’: EU Bids to Reunite Couples Split by Coronavirus Restrictions, Euronews (Aug. 7, 2020), https://www.euronews.com/2020/08/07/love-is-not-tourism-eu-bids-to-reunite-couples-split-by-coronavirus-restrictions.

[9] Czech Republic Rearranges Entry Procedures for Unmarried Partners of Czech & EU Citizens, SchengenVisaInfo (Sept. 21, 2020), https://www.schengenvisainfo.com/news/czech-republic-rearranges-entry-procedures-for-unmarried-partners-of-czech-eu-citizens/.

[10] Travelers Prohibited from Entry to the United States, CDC (Sept. 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/travelers/from-other-countries.html.

[11] See Larnaud, supra note 4.

[12] U.N. World Tourism Org., COVID-19 Related Travel Restrictions: A Global Review for Tourism 12 (2020), https://webunwto.s3.eu-west-1.amazonaws.com/s3fs-public/2020-09/200909-travel-restrictions.pdf.

[13] Id. at 24; see also Sophia Harris, Canada-U.S. Border Closure Extended but Trump, Trudeau Far Apart on Next Steps, CBC (Oct. 18, 2020, 4:00 AM), https://www.cbc.ca/news/business/trudeau-trump-canada-u-s-border-closure-1.5765323 (due to persistently high infection rates, the border between Canada and the U.S. will remain closed for an indeterminate amount of time); Hungary Amends Travel Restrictions for V4 Countries, SchengenVisaInfo (Oct. 7, 2020), https://www.schengenvisainfo.com/news/hungary-amends-travel-restrictions-for-v4-countries/ (“On September 1, authorities in Hungary decided to reclose their borders for all international arrivals, becoming the first Schengen country to take such a decision, as part of efforts to stop the further spread of the deadly virus.”); Kat Lonsdorf, Europe Imposes New Restrictions as COVID-19 Cases Soar, NPR (Oct. 25, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/10/25/927637746/europe-imposes-new-restrictions-as-covid-19-cases-soar (surging COVID-19 cases across the E.U. has led to the reintroduction of significant domestic restrictions).

[14] See U.N. World Tourism Org., supra note 12, at 12.

[15] See Josh Dye, Is Australia’s Ban on International Travel Legal? Experts Weigh In, Traveler (Oct. 17, 2020), https://www.traveller.com.au/is-australias-ban-on-international-travel-legal-experts-weigh-in-h1rgqu.

[16] Love is Not Tourism, supra note 5.

[17] Borame L. Dickens et al., Strategies at Points of Entry to Reduce Importation Risk of COVID-19 Cases and Reopen Travel, J. Travel Med., Aug. 25, 2020, at 1–2, https://academic.oup.com/jtm/advance-article/doi/10.1093/jtm/taaa141/5897021; see also Matteo Chinazzi et al., The Effect of Travel Restrictions on the Spread of the 2019 Novel Coronavirus (COVID-19) Outbreak, 368 Sci. Mag. 395, 400 (2020), https://science.sciencemag.org/content/sci/368/6489/395.full.pdf (“. . . although the Wuhan travel ban was initially effective at reducing international case importations, the number of imported cases outside mainland China will continue to grow after 2 to 3 weeks. . . . additional travel limitations (up to 90% of traffic) have only a modest effect unless paired with public health interventions and behavioral changes.”); Ana L.P. Mateus et al., Effectiveness of Travel Restrictions in the Rapid Containment of Human Influenza: A Systematic Review, 92 Bulletin World Health Org. 868, 873 (2014), https://www.who.int/bulletin/volumes/92/12/14-135590.pdf (“Only extensive travel restrictions – i.e. over 90% – had any meaningful effect on reducing the magnitude of epidemics.  In isolation, travel restrictions might delay the spread and peak of pandemics by a few weeks or months but we found no evidence that they would contain influenza within a defined geographical area.”).

[18] Dickens et al., supra note 17, at 5.

[19] See Coronavirus – Information of MoI, Ministry of the Interior of the Czech Republic, https://www.mvcr.cz/mvcren/article/coronavirus-information-of-moi.aspx (last visited Oct. 27, 2020).

[20] See Tidey, supra note 8 (as of July 2020, there was an estimated 398,286 European flights for tourism with no quarantine or negative test requirement, compared to 9,000 E.U. citizens waiting to be reunited with partners, family, and children that are not exempt from E.U. travel ban).  See generally COVID-19 Impact on the European Air Traffic Network, EUROCONTROL (2020), https://www.eurocontrol.int/covid19#assessment (publishing regular air traffic scenarios and comprehensive assessments of latest air traffic situations in Europe).

[21] See, e.g., Sebastian Powell, Immigration Canada has Updated their Entry Requirements, Allowing More Foreigners to Enter and Reunite with Family Members, LoyaltyLobby (Oct. 9, 2020), https://loyaltylobby.com/2020/10/09/canada-has-updated-their-entry-requirements-allowing-more-foreigners-to-enter-and-reconcile-with-family-members/ (requirements for entry involve a notarized affidavit describing at least a one year relationship with a Canadian permanent resident or citizen with whom you have spent physical time together, a declaration signed by said citizen or permanent resident, a demonstration of an intent to enter for a period of at least fifteen days, and an assessment of the relationship by Canada’s immigration service); About the Corona Situation: Citizens of Countries Outside the EU/EEA: Residing in Countries Outside the EU/EEA, The Norwegian Directorate of Immigr., https://www.udi.no/en/about-the-corona-situation/currently-not-in-norway-questions-and-answers-for-nationals-outside-eueea/#link-18798 (last visited Oct. 27, 2020) (restricting entry to a girlfriend or boyfriend that you have been with at least nine months and whom you have met physically at least once with a relationship you can document and a place to live to carry out the quarantine).

[22] See Lonsdorf, supra note 13;Yan & Holcombe, supra note 2.  See generally Covid in the U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html?name=styln-coronavirus&region=TOP_BANNER&label=undefined&module=undefined&block=storyline_menu_recirc&action=click&pgtype=LegacyCollection&impression_id=a73db151-137d-11eb-a050-490062a63512&variant=1_Show (last visited Oct. 27, 2020) (tracking COVID-19 cases in the U.S.); COVID-19 Situation Update for the EU/EEA and the UK, Eur. Ctr. for Disease Prevention & Control, https://www.ecdc.europa.eu/en/cases-2019-ncov-eueea (last visited Oct. 27, 2020) (tracking COVID-19 cases in the E.U., European Economic Area, and the United Kingdom).

[23] Larnaud, supra note 4 (internal quotation marks omitted). In response to suspended routine visa service in the U.S.: “I look at my engagement ring every day and I don’t know when I’ll hold my fiancé again. . . . [n]ot being able to see the finish line is the hardest, most painful part.  We’re feeling hopeless.  Our whole lives have been put on hold.”  Id.  In response to Peru’s border closure: “It’s been seven months since I’ve been able to hug my daughter.  I never dreamed of one day having to be without her for so long.”  Id.  In response to U.S. restrictions targeting non-Green Card visa holders: “Foreign nationals work, pay taxes, contribute to the economy.  We’re not citizens, but we’re not tourists either, and yet, we suffer the same restrictions as tourists.  Our whole life is here, so we should have a right to come back home.  It’s like we’re being taken hostage.”  Id.

[24] Love is Not Tourism, supra note 5; see also Love is Essential, supra note 5.

Caster Semenya celebrates her silver medal at the London 2012 Olympic games. Original photo by Jon Connell, via flickr.

By Kelsey E. Rector

South African runner Caster Semenya is a two-time Olympic gold medalist and has dominated track events like the 800 meter and other mid-distance races over the last decade.[1] All her life, Semenya has been questioned about her sex, especially with respect to competing as an elite female track athlete.[2] Her performance came under fire because Semenya, who was raised as a woman, presents as a woman, and identifies as a woman, has differences in sex development (“DSD”) which cause her body to naturally produce more testosterone than the average female.[3] DSD has many potential causes,[4] but in the most general terms, means that a person has an “atypical development of their chromosomal, gonadal, and/or anatomic sex.”[5]

In competitive sports which rely on gender binaries to group athletes for fair competition, one of the major issues has been to determine how to handle challenges that DSD women are not “female” for the sake of competition.[6] As a result, the recent solution by World Athletics (formerly the International Association of Athletics Federations, or “IAAF”) has been to adopt new rules to protect fair competition which would require DSD women, who are considered “relevant athletes,” to regulate their elevated testosterone levels or bar them from competing in certain women’s track events.[7]

Last month, Semenya lost her appeal challenging the World Athletics regulation which prohibits certain athletes with elevated testosterone levels from competing as females in specified track events.[8]

The regulations set forth by World Athletics state that “relevant athletes,” like Semenya, are barred from competing in restricted events, such as the women’s 800 meter, unless they reduce their blood testosterone to a level of less than five nmol/L for at least six months and sustain it thereafter to maintain eligibility.[9] Similar regulations were proposed by the IAAF in 2014, but when challenged the IAAF failed to produce enough scientific evidence to justify the necessity of the regulation.[10] Despite conflicting studies regarding whether increased testosterone even provides a significant competitive advantage for DSD athletes, the IAAF proposed the current regulations and claimed that they were essential to preserving fair competition for women.[11]

Semenya filed a claim against IAAF in the Court of Arbitration for Sports (“CAS”), claiming that the DSD regulations were “unfairly discriminatory, arbitrary and disproportionate and therefore violate the IAAF Constitution . . . .”[12]

There are several issues with regulations such as these. First, the regulation explicitly targets those individuals who do not fit within a convenient, traditionally defined, binary division of sex. The regulation applies to DSD individuals, but not non-DSD women who may also naturally produce testosterone at high levels.[13] Second, the regulation only applies to certain track events and not to other sports or events.[14] It is interesting to note that the events in the restricted category are restricted to those events in which identified DSD athletes compete in the most significant numbers, but not to those where the performance gap between DSD women and non-DSD women was the widest.[15] Third, and perhaps most troubling, the regulation requires artificial lowering of natural testosterone levels—which can have side effects—in order for an athlete to compete as a woman.[16] We do not ask Michael Phelps to shorten his ridiculously long arms for fair competition, nor do we question Usain Bolt’s long legs in men’s racing—so is it even appropriate to regulate naturally produced hormones which may only give athletes a slight advantage?[17]

Following arbitration, CAS found that the DSD regulations were discriminatory, but upheld them because the regulations were “a necessary, reasonable and proportionate means of achieving the aim of what is described as the integrity of female athletics and upholding of the ‘protected class’ of female athletes in certain events.”[18] The court noted several concerns with the regulations, such the potential for compromising athletes’ confidentiality, the ability of the IAAF to practically apply the regulations, risks to athletes’ health from hormonal treatment, and the inclusion of certain events (the 1,500 meter and 1 mile) as restricted events.[19] The court implied that it was not its place to determine whether a different regulation could be implemented that was more fair and less discriminatory.[20] Instead the court stated that its role was limited to evaluating the regulation as presented in order to determine if it was necessary, reasonable, and proportionate.[21]

Following the CAS decision, the World Medical Association (“WMA”) released a statement encouraging doctors not to take part in implementing the regulations.[22] Specifically, the WMA president stated, “We have strong reservations about the ethical validity of these regulations. They are based on weak evidence from a single study, which is currently being widely debated by the scientific community.”[23] Nevertheless, the regulation was upheld on appeal by the Swiss Federal Supreme Court.[24]

The Swiss Court stated that it could only evaluate “whether the CAS decision violates fundamental and widely recognized principles of public order.”[25] The court determined that fairness in sport was a legitimate concern and that DSD athletes were not being forced to undergo examinations or treatment.[26] While technically the court is correct that athletes aren’t being forced into evaluation or treatment, if an athlete withholds her consent, she will be barred from competing.[27] That doesn’t exactly seem like a fair choice.[28]

So what comes next? First, given the concerns expressed in the CAS opinion, there may be challenges to the application of the DSD regulation once it starts to be enforced.[29] For example, an athlete who agrees to adjust her testosterone levels through hormone treatment may not be able to consistently keep them at the required level throughout her eligibility period.[30] If World Athletics chooses to enforce the policy anyway, that athlete would have a strong argument that she attempted to follow the regulation and that it would be unfair to bar her from competition for fluctuating testosterone levels.[31] In the meantime, Semenya will likely take her case to the European Court of Human Rights to determine “whether demanding women with intersex variations to change their natural bodies as eligibility condition for a certain sport events conforms to the European Convention on Human Rights.”[32]

[1] Athlete Profile: Caster Semenya, World Athletics, https://worldathletics.org/athletes/south-africa/caster-semenya-14330057 (last visited Oct. 20, 2020) (showing races won, current season times, world ranking, and other statistics).

[2] Robyn Dixon, Gender Issue Has Always Chased Her, L.A. Times (Aug. 21, 2009), https://www.latimes.com/archives/la-xpm-2009-aug-21-fg-south-africa-runner21-story.html. See also Erin Buzuvis, Caster Semenya and the Myth of a Level Playing Field, 6 Modern Am. 36 (2010) (discussing how Semenya’s voice, musculature, and speed provoked questions about her gender after she won the 800m at the World Championships in 2009).

[3] See Sofia Christensen, Semenya Lawyer Prepares Testosterone Rule Challenge in European Court, Yahoo News (October 1, 2020), https://sports.yahoo.com/semenya-lawyer-prepares-testosterone-rule-142841526.html.

[4] DSD is a term encompassing a variety of conditions including but not limited to: 46 XX congenital adrenal hyperplasia, 5-alpha reductase deficiency, Klinefelter syndrome (47 XXY), Swyer syndrome (46 XY gonadal dysgenesis), and Androgen insensitivity syndrome. Kyla Boyse, Disorders of Sex Development (DSD) Resources, Mich. Med. (updated Nov. 2012),  https://www.med.umich.edu/yourchild/topics/dsd.htm.

[5] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 110–11 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[6] See generally Maayan Sudai, The Testosterone Rule—Constructing Fairness in Professional Sport, 4 J. L. & Biosciences 181, 182 (2017) (stating that the issue of sex classification has plagued professional sport authorities since at least 1968).

[7] See World Athletics, Eligibility Regulations for the Female Classification, 2 (effective Nov. 2019) https://www.worldathletics.org/download/download?filename=656101dc-7716-488a-ab96-59d37941e9ac.pdf&urlslug=C3.6%20-%20Eligibility%20Regulations%20for%20the%20Female%20Classification; Testosterone Rules for Female Athletes ‘Unscientific’, BBC (Mar. 21, 2019), https://www.bbc.com/news/health-47640359.

[8] George Ramsay & Jill Martin, Caster Semenya Loses Appeal in Swiss Court over Restriction of Testosterone Levels, CNN (Sept. 9, 2020), https://www.cnn.com/2020/09/09/sport/caster-semenya-ruling-athletics-spt-intl/index.html; Lena Holzer, The Decision of the Swiss Federal Supreme Court in the Caster Semenya Case: A Human Rights and Gender Analysis, Opinio Juris (Sept. 30, 2020), http://opiniojuris.org/2020/09/30/the-decision-of-the-swiss-federal-supreme-court-in-the-caster-semenya-case-a-human-rights-and-gender-analysis/; Sean Ingle, Caster Semenya’s Olympic Hopes Fade as Runner Loses Testosterone Rules Appeal, The Guardian (Sept. 8, 2020), https://www.theguardian.com/sport/2020/sep/08/caster-semenya-loses-appeal-against-world-athletics-testosterone-rules.  

[9] World Athletics, supra note 7, at 4–5. The regulations define relevant athletes as those with listed DSDs, testosterone levels higher than five nmol/L, and who have androgen sensitivity allowing the testosterone to have an androgenizing effect. Id. at 4. Restricted events currently include the women’s 400 m, 400 m hurdles, 800 m, 1,500 m, and 1 mile. Id.

[10] See Alexandria Adkins, Comment, Trapped in the Binary Divide: How Forced Contraceptives Violate the World Anti-Doping Code, 35 Am. U. Int’l L. Rev. 531, 542–43 (2020). These regulations required hyperandrogenic females to reduce natural testosterone levels through the use of oral contraceptives. Id. at 542.Dutee Chand, a hyperandrogenic sprinter from India successfully challenged the necessity, reasonableness, and proportionality of the regulations. Id. at 543.

[11] Sudai, supra note 6, at 186–89.

[12] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/O/5794, at 2 (Ct. Arb. Sport Apr. 30, 2019), https://www.tas-cas.org/fileadmin/user_upload/CAS_Award_-_redacted_-_Semenya_ASA_IAAF.pdf.

[13] Adkins, supra note 10, at 561.

[14] Id. at 562.

[15] Semenya, CAS Case No. 2018/0/5794, at 156.

[16] Adkins, supra note 10, at 556.

[17] Matt Butler, Nobody Asked Bolt to Shorten His Legs or Phelps to Shrink His Feet, so Why is Caster Semenya Being Told to Reduce Her Testosterone?, i News (Sept. 16, 2020), https://inews.co.uk/sport/athletics/caster-semenya-iaaf-testosterone-cas-sebastian-coe-260629. But see Malcom Gladwell & Nicholas Thompson, Caster Semenya and the Logic of Olympic Competition, New Yorker (Aug. 12, 2016), https://www.newyorker.com/sports/sporting-scene/caster-semenya-and-the-logic-of-olympic-competition (rationalizing the regulations by stating that these are different types of advantages, and that testosterone places Semenya outside the protected class of women).

[18] Semenya, CAS Case No. 2018/0/5794, at 160.

[19] Id. at 152–160.

[20] Id. at 160.

[21] Id.

[22] WMA Reiterates Advice to Physicians not to Implement IAAF Rules on Classifying Women Athletes, World Med. Ass’n (May 2, 2019), https://www.wma.net/news-post/wma-urges-physicians-not-to-implement-iaaf-rules-on-classifying-women-athletes/.

[23] Id.

[24] Press Release, Swiss Fed. Sup. Ct., DSD Regul.: Caster Semenya’s Appeal against the Decision of the Ct. of Arb. for Sport Dismissed (Sept. 8, 2020). The court opinion is in French (which I do not speak), as such I cite to the Press Release which was released in English. The case citation is: Tribunal Fédéral [TF] [Federal Supreme Court] Aug. 25, 2020, 4A_248/2019 (Switz.).

[25] Press Release, Swiss Fed. Sup. Ct., supra note 24.

[26] Id.

[27] World Athletics, supra note 7, at 5.

[28] Holzer, supra note 8.

[29] Semenya v. Int’l Ass’n of Athletics Fed’n, CAS Case No. 2018/0/5794, 158–59 (Ct. Arb. Sport 2019).

[30] Id.

[31] Id.

[32] Holzer, supra note 8.

By David Darr

Today, in the criminal case of United States v. Beyle, a published opinion, the Fourth Circuit affirmed the convictions of two Somali pirates for various charges relating to piracy, including the murder of four Americans off the coast of Somalia.

Defendants Contended the Court Lacked Jurisdiction and Violated Constitutional Rights

On appeal, Abukar Osman Beyle, defendant, contended that the court lacked jurisdiction over the charges related to murder and firearm use because the murder occurred in Somalia’s territorial waters, not on the high seas. Shani Nurani Shiekh Abrar, the other defendant, claimed that his Fifth Amendment right to due process and his Sixth Amendment right to present witnesses material to his defense were violated because he was unable to access certain witnesses important to his duress defense.

The Hostage Situation Resulting in the Deaths of Four Americans and Subsequent Proceedings

In February of 2011, a group of Somali pirates, which defendants were a part of, armed with automatic weapons and a rocket-propelled grenade launcher captured a Yemeni fishing boat. Both Beyle and Abrar were listed on the ledger for dividing the spoils among the pirates. The pirates attacked a ship with four Americans aboard that was part of an international yacht rally. Abrar was the first to board the American ship, and once on board he subdued the Americans and cut the communication lines. When the pirates gained control of the ship, it was approximately 950 miles off of the Somali coast. The pirates let four Yemeni fishermen they had captured with the Yemeni boat leave on the Yemeni boat, while the pirates stayed on the American boat. The pirates took the Americans hostage and tried to secure a ransom using their connections on land in Somalia. The U.S. Navy was alerted to this and moved to intercept the vessel before it could reach Somali waters. The Navy engaged with the pirates for several days in an attempt to get them to surrender, but the pirates refused, threatening to kill the hostages. The pirates started to fire guns and rockets at a Navy vessel that was attempting to block the boat from reaching Somali waters. The Navy did not return fire. A group of pirates, including Beyle and Abrar, opened fire on the four Americans, killing them all. At this time, the vessel was between thirty and forty nautical miles off the coast of Somalia. Navy SEALs then boarded the vessel, and the pirates surrendered after four pirates were killed. The FBI questioned the pirates and Abrar claimed that he was kidnapped and forced to be the pirates’ mechanic, with his role later changing to guard. Abrar claimed that the only reason he did not leave with the Yemeni fishermen was because he was afraid of being arrested in Yemen. Abrar admitted to pointing a gun at the hostages, but denied taking part in the shooting.

All of the pirates were taken to the United States and charged with a variety of crimes related to the piracy and hostage taking, including murder. All but three of the pirates, pled guilty and were sentenced to life in prison. Beyle, Abrar, and another pirate decided to take the case to trial. Beyle filed a motion to dismiss any counts relating to the murders because he claimed the murders took place in Somali territorial waters, outside of U.S. jurisdiction. Abrar filed a motion to dismiss the case against him because he could not reach witnesses, including the Yemeni fishermen, that would provide evidence that he acted under duress, which could act as a defense to all the charges except murder. The district court denied both motions. The U.S. sought the death penalty for all three defendants at trial. The trial lasted over a month, and ultimately the jury voted to convict all three defendants to life in prison. The jury heard instructions on Abrar’s duress defense, but decided that duress was not applicable. Beyle and Abrar appealed.

Definition of “High Seas”

The Constitution gives the federal government the power to punish piracy and felonies committed on the high seas. In statute, Congress had defined the high seas as including any waters outside the jurisdiction of any nation. The United Nations Convention on the Law of the Sea (UNCLOS), which the United States has recognized but not ratified and Somalia has ratified, recognizes that a nation’s sovereignty covers only territorial sea, which is twelve nautical miles off the coast. However, UNCLOS also recognizes exclusive economic zones (EEZ), which UNCLOS treats as quasi-territorial for economic rights. These EEZs extend to 200 miles off the coast of a nation. UNCLOS does not define waters as high seas until outside of these EEZs.

High Seas Include EEZs

Beyle argued that because UNCLOS does not consider the high seas to start until 200 miles of the coast of nation, the court below did not have jurisdiction because the murders occurred within forty miles of the Somali coast. The Fourth Circuit disagreed because EEZs allocated economic rights, not other rights. The actual authority to punish criminal violations only extended to twelve nautical miles off the coast of Somalia according to UNCLOS. Therefore, EEZs were outside of a nation’s sovereignty, making them “high seas” according to U.S. law, regardless of what UNCLOS defines as high seas. In the alternative, Beyle argued that Somalia had passed a resolution in 1972 extending its jurisdiction to 200 miles from the coast. The Fourth Circuit was unsure of the validity of this resolution, and found that Somalia’s subsequent adoption of UNCLOS superseded any such resolution. Because the murder occurred outside of twelve nautical miles off of the Somali coast, the Fourth Circuit found that the murders occurred on the high seas and were thus subject to U.S. jurisdiction.

Fifth and Sixth Amendment Protections

The Fifth Amendment provides due process protections when the government seeks to deprive someone of life, liberty, or property. The Sixth Amendment grants the right to a process to obtain witnesses for criminal defendants. The Sixth Amendment is violated if a defendant is arbitrarily deprived of relevant and material testimony that is vital to his defense. The Fifth and Sixth Amendments are closely related and the right to call witnesses to defend oneself is essential to due process.

The Fifth and Sixth Amendments Were Not Violated for Abrar

Abrar claimed that his Fifth and Sixth Amendment rights were violated because he did not have access to overseas witnesses that would have testified to his character and would have aided in his duress defense. The Fourth Circuit disagreed because the Sixth Amendment did not grant a defendant the right to any and all witnesses, only a compulsory process to obtain witnesses. This process was still limited by practicality, and the court did not have jurisdiction over the witnesses Abrar wanted to call. Additionally, outside concerns such as the security of Somalia made it very impracticable to locate and subpoena these witnesses. The Fourth Circuit also expressed concerns that some of Abrar’s witnesses might be fictional based on investigations into those witnesses that were made. The Fourth Circuit also did not think that the evidence that those witnesses would have put on would have been material because none of them actually witnessed Abrar’s abduction by pirates. Additionally, there were better witnesses such as the pirates Abrar claimed abducted him that the U.S. already had in custody that could testify to Abrar’s abduction. However, Abrar refused to call these witnesses because they would have contradicted his story. The district court even offered Abrar the opportunity to give testimony limited to his abduction but he refused. The Fourth Circuit also saw ample evidence on the record that Abrar was a willing participant. Therefore, the Fourth Circuit ruled that Abrar’s Fifth and Sixth Amendment rights were not violated.

Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that the court had jurisdiction over the actions of the defendants and that Abrar’s Fifth and Sixth Amendment rights were not violated.


By Andrew Kilpinen

On February 24, 2015, the 4th Circuit affirmed the Western District of Virginia’s judgment denying Almaz Nezirovic’s (“Nezirovic”) petition for a writ of habeas corpus in the published opinion of Almaz Nezirovic v. Gerald Holt. The 4th Circuit held that Nezirovic’s extradition was neither time-barred nor precluded by the political offense exception under the Treaty Between the United States and Serbia for the Mutual Extradition of Fugitives from Justice (“Treaty”).

Nezirovic Tortured Civilians As Internment Camp Guard in Former Yugoslavia

Nezirovic served as a prison guard at the Rabic internment camp in Bosnia and Herzegovina in 1992 shortly after the former Socialist Federal Republic of Yugoslavia collapsed. In 1993, the Doboj Police Department of Bosnia issued a criminal report against Nezirovic alleging that as a prison guard he subjected civilians to torture and inhuman treatment. Nezirovic entered the United States in 1997 as a war refugee. Pursuant to a 2003 order filed by a judge in Bosnia and Herzegovina, Bosnian authorities requested in 2012 that Nezirovic be extradited pursuant to the Treaty.

Nezirovic Appealed District Court’s Writ of Habeas Corpus Denial

A magistrate judge conducted an extradition proceeding and found that there was sufficient evidence that a crime was committed in Bosnia, that if committed in the United States the actions would have been criminal, and Nezirovic is the fugitive sought. Nevirovic’s petition for a writ of habeas corpus with the Western District of Virginia was denied. This appeal followed.

Extradition Not Time-Barred Under Indefinite Limitations of Torture Act

Nezirovic argued that the Treaty prohibits extradition for offenses that would be time-barred in the United States. The Court found war crimes against civilians under the Torture Act, with indefinite limitation, to be the most analogous substantive offense under United States law as the charged offense in Bosnia. Nezirovic argued that the alleged crimes were committed two years before the Torture Act was enacted, and so the Court should apply the five-year statute of limitations related to assault. The Court rejected Nezirovic’s argument under the pretense that the law to be applied is that which is in place at the time the extradition request is made, not the law in effect when Nezirovic allegedly committed the acts. The Court dismissed any ex post facto concerns because the Supreme Court has made clear that U.S. Constitutional protections do not extend to foreign prosecutions.

Nezirovic’s Actions Were Not Political Offenses Exempt From Extradition

Next, Nezirovic argued that his acts were “political offenses” and, as such, exempt from extradition under the Treaty. The Court considered whether Nezirovic’s actions were objectively political in nature to determine if such actions were “relative” political offenses incidental to or in furtherance of a violent political uprising. The Court found, after considering the totality of the circumstances, that Nezirovic’s actions were not political because his victims were citizens.

The 4th Circuit affirmed the district court’s decision to deny Nezirovic’s extradition certification challenge.

By Joshua P. Bussen

Today, in Smedley v. Smedley, the Fourth Circuit affirmed a decision by the Eastern District of North Carolina to accord comity to a German appellate court decision. In doing so it allowed a mother to return back to Germany with her children.

 Defendant Claims German Court Was Incorrect

The defendant raised two issues on appeal. First, that the German court clearly misinterpreted the Hague Convention because it failed to make a habitual-residence determination before addressing the defense of consent. Second, that the German court’s decision did not meet a minimum standard of reasonableness because the court unreasonably relied on contradictory evidence in making its credibility determination.

To Germany and Back

In 2000, Mark and Daniela Smedley married in Germany. Mark was stationed there as a member of the United States Army. Over the next five years the Smedleys had two children—A.H.S. and G.A.S. The family continued to live primarily in Bamberg, Germany until August 2010 when Mark was transferred to North Carolina. The family relocated from Germany to Swansboro, North Carolina. Mark and Daniela’s relationship began to deteriorate over the months following the move and in May 2011 Daniela returned to Germany with the children—allegedly with the consent of Mark. Daniela and Mark’s story differ as to the details, but it was clear that in late July 2011 Daniela informed Mark that she would be remaining in Germany with the children.

On September 2, 2011, Mark obtained a temporary custody order from the District Court of Onslow County in Swansboro. He then filed a Hague petition in Germany seeking the children’s return. The German court denied his petition due to findings of that Mark had physically abused A.H.S. and that Mark had consented to Daniela and the children moving back to Germany.

In 2013, Daniela agreed to let the children visit Mark in America. Mark was under express orders from Daniela to return the children within roughly twenty days. On August 27, 2013, Mark informed Daniela that he would not be returning the children. Daniela filed a Hague petition in the E.D.N.C. and that court accorded comity to the German court’s decision; holding that the children should remain in Germany with their mother. This appeal followed.

 The Hague Convention & Comity

Hague Convention: Under the International Child Abduction Remedies Act, the goals of the Hague Convention are “to secure the prompt return of children wrongfully removed to or retained in any [State under the Convention]” and ensure rights of custody are respected by different States. Under Article 3 of the Hague Convention, the removal of a child is wrongful if it breaches a person’s rights of custody “under the law of the State in which the child was habitually resident.” However, if a child will be placed in danger, or if the party consented to the removal, the return of the child is not required. Courts in State’s that adhere to the Hague Convention should not overturn another foreign court’s decision unless the court: (1) clearly misinterprets the Hague Convention, (2) contravenes the Convention’s fundamental objectives, or (3) fails to meet a minimum standard of reasonableness.

Comity: The Fourth Circuit defined comity as: “A practice among political entities involving . . . mutual recognition of legislative, executive, and judicial acts.”

 The Fourth Circuit’s Rationale

On the defendant’s first issue, the Fourth Circuit held that the Hague Convention does not set out a roadmap, only principles. Therefore, “[e]ven if the German court had assumed that the children were habitual resident of North Carolina when Daniela took them to Germany, the finding that Mark consented to that move would have still provided her with an affirmative defense to wrongful removal.” The court cited the similarity between this situation and the common American process of granting summary judgment based on an affirmative defense after assuming that the plaintiff made out a prima facie case.

On the defendant’s second issue, the Fourth Circuit found that the German court’s decision was “at least minimally reasonable.” According to this court, the German court had sufficient facts that tended to show that Daniela’s story was more credible than Mark’s. Because a showing of “minimal reasonableness” is sufficient to accord comity to a foreign court, the Fourth Circuit refused to overturn the credibility determinations made by the German Court.


The Fourth Circuit found that the German court had sufficient evidence to grant Daniela custody of the children. Therefore the “minimally reasonable” burden was satisfied and the grant of comity by the lower court was affirmed.



By Marcus Fields

          Last Wednesday in Chevron Corp. v. Page, the Fourth Circuit ruled, in a matter of first impression, that decisions on applications for discovery filed pursuant to 28 U.S.C. § 1782 were immediately appealable and affirmed the United States District Court for the District of Maryland’s ruling in favor of Chevron. The Fourth Circuit also determined that it could not hear an appeal from a discovery order on a subpoena filed under Federal Rule of Civil Procedure 45 because it lacked subject matter jurisdiction.

The two discovery decisions at issue on appeal were sought by Chevron as part of a complex history of litigation spanning three decades and taking place in three different countries. The Fourth Circuit notes, and provides an excellent summary of, the extensive history of the conflict between Chevron and certain citizens of Ecuador over alleged pollution by one of Chevron’s acquired subsidiaries.

This history culminated in 2011 when an Ecuadorian court awarded 47 plaintiffs an $18.2 billion judgment against Chevron. Steven Donziger was the lead attorney for the plaintiffs and was assisted by Aaron and Daria Page, the appellants in the present case along with two of the Ecuadorian plaintiffs. Chevron alleges that Donziger, with the help of the Pages, fraudulently obtained the judgment in Ecuador and has pursued efforts to prevent the execution of that judgment. These efforts include appellate proceedings in Ecuador, arbitration against Ecuador at The Hague, and an action against Donziger and others in the United States District Court for the Southern District of New York. In support of these efforts Chevron has filed multiple discovery requests in the United States, including the two at issue here.

In 2011, Chevron issued subpoenas in the District of Maryland to both of the Pages pursuant to Rule 45 requesting various documents for use in Chevron’s lawsuit in the Southern District of New York. After the Pages failed to adequately respond, the District Court of Maryland granted a motion to compel the Pages to turn over certain documents but stayed that motion while the proceedings in New York were stayed for unrelated reasons. In 2013, the district court re-ordered the Pages to produce these documents.

While discovery under Rule 45 was stayed in Maryland, Chevron filed an application in the District Court of Maryland pursuant to 28 U.S.C. 1782 (empowering district courts to order discovery “for use in a proceeding in a foreign or international tribunal.”) Chevron was seeking discovery of the exact same documents from the Pages for use in Chevron’s proceedings in Ecuador and at The Hague. The District Court again ordered the Pages to turn over the documents in question. The Pages timely appealed both decisions which were consolidated into the present case.

After an extensive explanation of background material, the Fourth Circuit conducted an analysis of whether jurisdiction was appropriate for each appeal. In analyzing the appeal of the discovery decision arising out of the Rule 45 subpoena, the court noted the general rule against hearing immediate appeals of discovery decisions. The court determined that this rule applies just as readily to ancillary discovery proceedings, especially when, as in the current case, “the party from whom discovery is sought is not a party to the primary underlying action.” The Fourth Circuit typically requires those wishing to appeal a discovery order to fail to comply with that order, be held in contempt, and then challenge the validity of the order on appeal of the contempt ruling.

The appellants urged the court to find jurisdiction under the so-called Perlman exception which sometimes allows an immediate appeal to prevent the risk of a disinterested third party disclosing potentially privileged information rather than risk contempt. Those holding the alleged privilege may appeal a discovery order in this limited situation on the disinterested third party’s behalf. The Fourth Circuit held that even if it were to adopt the Perlman exception, none of the appellants would meet its requirements as the Pages are  not disinterested parties.   As a result the court dismissed the appeal for lack of jurisdiction.

The issue of “whether a decision on an application for discovery under 28 U.S.C. § 1782 is immediately appealable” is a matter of first impression for the Fourth Circuit. In deciding that such decisions were immediately appealable, the court relied on three main arguments. First, the Fourth Circuit had previously reviewed such a decision in a case in which their power to act was passed sub silentio. While not dispositive, this previous assumption of jurisdiction carries some weight with the circuit court. Second, all other circuit courts that have considered the issue have found subject matter jurisdiction, including two circuit courts dealing with decisions related to the Chevron dispute. Third, the reasons for prohibiting immediate appeals on discovery decisions disappear when there is no underlying action on the merits in the United States.

After determining that it could properly hear the appeal, the Fourth Circuit affirmed the decision below, determining that the district court did not abuse it’s discretion in applying a Second Circuit ruling stating that any privilege pertaining to the documents in question had been waived (referred to as the Donziger Waiver). The Fourth Circuit, held that deciding otherwise would violate the principle of comity and undermine the decisions of United States District Court for the Southern District of New York.