Three weeks ago, I gave a talk for a group of visiting researchers
at Harvard Law School on the accountability of the IOC for human rights abuses
caused by hosting Olympic Games. On the day of that talk, Human Rights Watch announced
that the International Olympic Committee (“IOC”) would insert new language into
the Host City Contract presumably for the 2022 Olympic Games onwards. The new
language apparently requires the parties to the contract to:
“take all necessary measures to ensure that
development projects necessary for the organization of the Games comply with
local, regional, and national legislation, and international agreements and
protocols, applicable in the host country with regard to planning,
construction, protection of the environment, health, safety, and labour laws.”
This language would apply to the National Olympic Committee, the
Organizing Committee for the Olympic Games, and the host city.
This language has been hailed by Human
Rights Watch as a strong first step, and for good reason. It seems that the
IOC is listening to complaints about the construction of the Olympic Games. The
IOC has said before that it would address the violations of labour rights
associated with the Olympic Games, in the XIII Olympic Congress, and its
Recommendations, made in 2009:
The IOC will
intervene at the OCOG level in the event of serious abuse, such as:
· Mistreatment of people displaced due to
Olympic venue construction sites;
· Abuse of migrant workers at Olympic venue
construction sites;
· Child labour;
·
Improper
restrictions on the media’s freedom to cover the Games, including cultural
aspects.
The IOC will
establish a system for correctly identifying and dealing with “legitimate
complaints” from official sources.
The IOC will not
intervene in non-sport human rights issues.
The leverage that
the IOC has towards the Organising Commitres for the Olympic Games (OCOGs)
should be determined. This might lead to amendments to the Host City Contract
and Documentation for Bid Cities.
However, the experience of Sochi with its displacement of persons,
and abuse of migrant workers at Olympic venue construction sites appears to
have put lie to that promise. Therefore, it would seem that the prospective
contractual language would be a strong first step. But, looking closer at the
language, there are some causes for concern.
Old Wine in New Bottles?
First, it should be noted that this language is not novel. The IOC
has similar language in its Candidature Procedure, under “Environment”:
Provide (a)
guarantee(s) from the competent authorities stating that all construction work
necessary for the organisation of the Olympic Games will comply with:
· Local, regional and national environmental
regulations and acts
·
International
agreements and protocols regarding planning, construction and protection of the
environment (2020 Candidature Procedure, Q 5.4)
That the new language in the host city contract is under the heading
of “Sustainable Human and Environmental Development” should therefore not be
surprising. However, the environmental requirements presented above were in the
host selection process. This new language is contractual language, and should
be evaluated as such (one could make the same argument re the host selection
process documents – but, just like the IOC…small steps).
A “Toothless” Paper Tiger
Overall, however, the clause in the Host City Contract appears to
fall short in four key ways:
1) Weak standard: The standard used in the contract is compliance with national laws
and international agreements/protocols. This standard has been problematic, as
it can be a moving target. National laws can be changed. Consider the next two
states hosting the FIFA World Cup. Russia has passed Law
108-FZ in advance of the 2018 FIFA World Cup. The law affects the rights of
migrant workers brought in to work on the World Cup facilities. Migrant workers no
longer need to be registered with local authorities. Restrictions on the length
of the working day are removed, and overtime pay is replaced with time off in
lieu. Law 108-FZ is a national law, and presumably the parties would comply
with it. Although a question arises if the national law conflicts with
international agreements…which prevails? The same can be said for another FIFA
World Cup host – Qatar – that has also bid to host the 2016 and 2020 Summer
Olympic Games. Qatar’s kafala system
is certainly national legislation. But compliance with said legislation would
not improve human rights.
2)
Vagueness: Vagueness in a contract
will lead to conflict. In this case, what is “compliance”, or more to the
point, what is “non-compliance”? Who determines non-compliance? Is
non-compliance simply a complaint? Or an adverse court ruling? Who makes the
determination of non-compliance? Is it in the IOC’s sole discretion? Or an
agreement of the parties? Presuming this is meant to be an enforceable
contract, a lack of precise terminology is problematic. Also, given the
language of “take all necessary measures”, does this require a host to take all
measures, regardless of the cost? Or to the point of undue hardship? This seems
to be a rather high bar, but is it a reasonable one?
3) Remedies/Enforcement: While in an ideal world, everyone will adhere to an agreement,
breaches do occur. In the 2014 Host City Contract, the one particular remedy for
breach is that the IOC can withdraw the right to host the Games. However, given
the complexity of removing the Games to another city (which to my knowledge was
only done in 1976 – with a move from Denver to Innsbruck), this is likely to
remain a “nuclear option”. What other remedies might there be to make a
sanction a reasonable deterrent? In addition, if there are disputes over
whether or not there is a breach of this clause, the Court of Arbitration for
Sport has jurisdiction. It may deny jurisdiction, and if it does so, then the
proceedings move to the Swiss courts. Would CAS or the Swiss courts be
interested in adjudicating what is essentially human rights litigation in
another state? Would a Swiss court truly say, for instance, “Russia has not
complied with international human rights standards”? It does not seem likely.
4)
Absence of Dialogue: The problem
with inserting such language into a contract is that it creates a
“take-it-or-leave-it” environment, without specifying what the
“take-it-or-leave-it” is. Using the host selection process to tease out human
rights concerns enables the IOC to ask questions of the potential hosts about
best practices, concerns, or processes that could be put into place to address
future problems. The answers in the host selection process would then create a
more robust standard to hold a host to, giving the language in the contract more
weight. Absent this, the language becomes window-dressing. Also, in the event
of a host breaching this provision, will there be dialogue? Will that dialogue
be public?
Given the above, the contractual language falls far short, if it is
to be taken as an actual contract. However, it is a strong signal that the IOC
seems willing to address human rights issues caused by the Olympic Games. If
this is so, then the language is a meaningful first step. Other steps, however,
are required. For instance (and here is the shameless plug), my PhD research
examines the use of the host selection process to tackle human rights issues in
the host countries, amongst other proposals. For now, those expecting to use
the contract as a legal mechanism to ensure that future hosts respect human
rights, it might be best not to hold your breath.