Editor's note: Michele Krech is a JSD Candidate and SSHRC Doctoral Fellow at NYU School of Law. She was retained as a consultant by counsel for Caster Semenya in the proceedings before the Court of Arbitration for Sport discussed above. She also contributed to two reports mentioned in this blog post: the Report of UN High Commissioner for Human Rights,  Intersection of race and gender discrimination in sport (June 2020); and the Human Rights Watch Report, “They’re Chasing Us Away from Sport”: Human Rights Violations in Sex Testing of Elite Women Athletes (December 2020).

This blog was first published by the Völkerrechtsblog and is republished here with authorization. Michele Krech will be joining our next Zoom In webinar on 31 March to discuss the next steps in the Caster Semenya case.

Sport is the field par excellence in which discrimination
against intersex people has been made most visible.

Commissioner for Human Rights, Council of Europe
Issue Paper: Human rights and intersex people (2015)

Olympic and world champion athlete Caster Semenya is asking the European Court of Human Rights (ECtHR) to make sure all women athletes are “allowed to run free, for once and for all”. Semenya brings her application against Switzerland, which has allowed a private sport association and a private sport court to decide – with only the most minimal appellate review by a national judicial authority – what it takes for women, legally and socially identified as such all their lives, to count as women in the context of athletics. I consider how Semenya’s application might bring human rights, sex, and sport into conversation in ways not yet seen in a judicial forum.

Background

Semenya, a South African national, competes in the sport of track and field, which is governed internationally by a private association, World Athletics, headquartered in Monaco. A few years ago, World Athletics introduced new Regulations barring women with innate variations of sex characteristics from competing in certain women’s events, unless they medically reduce their atypically high testosterone levels. Semenya first challenged the Regulations before the Court of Arbitration for Sport (CAS) – an international arbitral tribunal located in Switzerland and commonly known as the “supreme court of sport”. After the majority of the CAS panel upheld the Regulations, Semenya appealed to Switzerland’s highest judicial authority, the Swiss Federal Tribunal (SFT), which dismissed her claim, leaving the Regulations – and “sport sex” – in place.

All the while, the UN Human Rights Council‘s independent experts and the UN High Commissioner for Human Rights, along with Human Rights Watch, the World Medical Association, and various organizations focused on women’s and LGBTQI+ equality in sport, have expressed serious concern that the Regulations contravene international human rights norms and standards. However, no court has squarely decided this question. The CAS panel measured the Regulations against the non-discrimination provisions of the World Athletics Constitution and the Olympic Charter (para. 424), finding it unnecessary to delve into the “detailed principles” of “international human rights law including those that apply in Monaco … and the domestic laws of many countries in which [World Athletics] has members and holds international competitions” (para. 544). Whether the Regulations were contrary to such laws was deemed a matter for the courts of those jurisdictions to decide (para. 555). But because the CAS decision is an international arbitral award, the SFT was restricted, pursuant to the Federal Statute on Private International Law, to reviewing only one substantive ground of appeal: whether the CAS decision was compatible with Swiss public policy (i.e. the most fundamental values that, according to prevailing opinions in Switzerland, should form the basis of any legal order). As the SFT explained, while the principles underpinning the Swiss Constitution or the European Convention of Human Rights (ECHR) could be considered when defining public policy, the provisions of these instruments could not be directly invoked to challenge the CAS decision (paras. 9.1 to 9.2).

The ECtHR’s consideration of Semenya’s application will therefore mark the first time a court evaluates the private regulations of World Athletics (and, particularly, the role of Switzerland in upholding them) against international human rights law. It may also mark the first time the ECtHR decides a case of discrimination based on sex characteristics. Given such novelty, what else might be new and different before the ECtHR compared to the past (quasi)judicial processes? I consider this question in two (intricately connected) parts – the facts and the law – where the ECtHR could play a remedial role.

The Facts: Sex before the ECtHR

The CAS panel characterized the case as one of “significant scientific complexity” and remarked on both the lack of consensus among experts and the “paucity of evidence” regarding certain matters concerning the effect of testosterone on the athletic performance (para. 582). The majority of the panel found, however, that the totality of the evidence provided adequate support for World Athletics’ claim that the women targeted by the Regulations “enjoy a significant performance advantage over other female athletes, which is of such magnitude as to be capable of subverting fair competition within the female category” (para. 538). This finding was also central to decision of the SFT, which was bound to rule based on the facts found by the CAS. The SFT made clear that, pursuant to its own constitutive law, it could not correct or supplement the arbitrators’ findings, even if the facts had been established in a manifestly incorrect manner or in violation of the law (para. 5.2.2).

Meanwhile, abundant scholarly critiques have been registered against World Athletics’ evidence, ranging from the methodologies used to the conclusions drawn. Moreover, much of this evidence was produced “in-house” by World Athletics; the leaders of its own Health and Science Department conducted the main scientific study relied on to justify the Regulations. Without delving deeper into this apparent lack of independence, it is notable that the conflated “scientific” and “legislative” process here is a private one; no Swiss public authority sought evidence to inform or evaluate the regulatory decision at issue.

To what extent, then, might the ECtHR reassess the evidence? While the Court was not set up as a court of first or fourth instance – that is, to establish the basic facts of a case or to re-evaluate the facts established by a domestic court – it does require parties to substantiate their claims, and is free to assess the admissibility, relevance, and probative value of the evidence put forth. The Court may request additional evidence, draw inferences from the absence of evidence, and even engage in fact-finding if the evidence is contested or unclear. To resolve uncertainty, the Court may rely on evidence from external actors, including experts and academics, as well as a wide variety of third-party interveners.

Considering this range of evidence would reveal that understandings of sex in athletics cannot be detached from understandings of sex beyond the sports sphere. Indeed, sport has been shown to be especially effective at disguising and transmitting socio-scientific ideologies – including those related to testosterone – as self-evident truth. While there are limits to the ECtHR’s ability to decide complex socio-scientific questions, it need not accept factual findings made (tenuously) by the CAS and not by Switzerland. Moreover, it should become clear to the ECtHR that “science” cannot provide a definitive answer to the question before it; in fact, the (selective) way science has been deployed by World Athletics is at the very heart of the alleged human rights violations.

The Law: Sport before the ECtHR

A number of rights guaranteed by the ECHR are pertinent in Semenya’s case. Most obvious is Article 8, which encompasses the right to personal autonomy and identity, including physical, psychological, and moral integrity. The “impossible choices” and documented harms inherent in the Regulations clearly interfere with this right. In addition, Article 14 requires member States to secure to everyone within their jurisdiction all Convention rights “without discrimination on any ground”. The Regulations apply only to women with certain sex characteristics (which the Commissioner for Human Rights has said fall under sex as a prohibited ground of discrimination) and arguably exhibit racial and regional bias.

Whatever Convention rights are invoked, the ECtHR will have to decide whether any infringement is legally justifiable. To begin, any potential infringement of Article 8 must be “in accordance with the law” – that is, it must have some basis in domestic law. However, unlike antidoping rules enacted by public authorities – which the ECtHR has held meet this test – the Regulations at issue in Semenya’s case are not part of Swiss law or based on any international treaty. Switzerland will therefore be in the strange position of defending Regulations enacted by a private association located in Monaco.

In this regard, Switzerland will have to establish that the Regulations pursue one of the legitimate aims identified in the ECHR. The ECtHR has previously recognized “fair play and equality of opportunity” in sport as constituting such an aim. More critically, however, Switzerland will have to establish that the Regulations are “necessary in a democratic society” to achieve this aim. In addition to the evidentiary shortcomings discussed already, it is not clear that the Regulations serve a “pressing social need” like antidoping “whereabouts” rules do, according to the ECtHR. The need for the latter was based on abundant State-adduced evidence that doping harms the physical and mental health of athletes and sets a dangerous example for youth. The “danger” that Switzerland is seeking (or allowing World Athletics) to avoid in Semenya’s case is much less apparent. In fact, it is Semenya and other athletes targeted by the Regulations, as well as the youth that look up to them, that are put most at risk.

It therefore cannot be said that the ECtHR has established a blanket principle that the pursuit of fairness can justify serious infringements of athletes’ rights, as the SFT implied in its decision (para. 9.8.3.3). Surely mandating medically unnecessary drug use (or surgery) for certain athletes, as a condition of eligibility for the female category of competition, is not analogous to prohibiting it (with therapeutic use exemptions) for all athletes.

In any case, the ECtHR’s practice is to “balance” individual interests and the interests of the community as a whole. But who makes up the relevant community? The majority of the CAS panel found, for example, that because of “constraints on the [its] competence and role” it was neither necessary nor appropriate for it to consider “the possible wider impact” of the Regulations outside the “segment of society” governed by World Athletics (para. 589). However, it is not just Semenya’s athletic career, but her entire life, that is affected by the Regulations. Likewise, it is not just elite women athletes without intersex traits who comprise the community with interests at stake (and little evidence has been adduced to characterize these interests). A much broader community may have an interest in seeing the unhindered potential of every athlete on display, and the whole of the LGBTQI+ community may have an interest in avoiding the stigmatization that flows from mandatory “normalization” procedures in any sphere of life. The fact that sport is ��a massively visible social practice, extensively relayed worldwide” makes it all the more important which community or communities are counted and valued in the Court’s assessment.

Finally, the scope of the relevant community will also be important to the ECtHR’s consideration of whether there is a relevant European consensus, which in turn informs how great a “margin of appreciation” (i.e. degree of deference) is to be granted to Switzerland. There may be a common European approach reflected in the calls of the Commissioner for Human Rights and the Parliamentary Assembly to end medically unnecessary sex-“normalizing” interventions without free and fully informed consent. When it comes to sport eligibility rules, though, it could be said that the common approach is to defer to private international governing bodies like World Athletics. But any such “consensus by omission” only highlights the structural failure of States to uphold – proactively, where necessary – human rights in the context of sport. Indeed, World Athletics’ Regulations prevent any consensus (or lack thereof) from emerging among States by restricting athletes’ access to domestic courts. Therefore, Switzerland – as the home of the CAS – and the SFT – as the judicial authority with exclusive jurisdiction to review CAS awards – would seem to have a unique responsibility to secure the human rights of athletes. In other words, because Switzerland is effectively speaking for a worldwide community, its margin of appreciation should be very narrow.

When it comes time for the ECtHR to consider the merits of Semenya’s application, it will have to decide whether the paradoxical concept of “sport sex“, as upheld by the SFT, can be sustained in accordance with the ECHR. The limitations of the judicial processes to date point to the potential – if not the promise – of the ECtHR to (re)consider the full range of facts and to directly apply human rights law within athletics. Whatever the ECtHR decides, its decision will have significant implications far beyond both Switzerland and sport.

The author gratefully acknowledges Gráinne de Búrca, Antoine Duval, Katrina Karkazis, and Gabriele Wadlig for their input on this piece.

Editor’s note: Tomáš Grell is currently an LL.M. student in Public International Law at Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a part-time intern.

In its press release of 28 February 2017, the International Olympic Committee ('IOC') communicated that, as part of the implementation of Olympic Agenda 2020 ('Agenda 2020'), it is making specific changes to the 2024 Host City Contract with regard to human rights, anti-corruption and sustainable development. On this occasion, IOC President Thomas Bach stated that ''this latest step is another reflection of the IOC's commitment to embedding the fundamental values of Olympism in all aspects of the Olympic Games''. Although the Host City of the 2024 Summer Olympic Games is scheduled to be announced only in September this year, it is now clear that, be it either Los Angeles or Paris (as Budapest has recently withdrawn its bid), it will have to abide by an additional set of human rights obligations.

This two-part blog will take a closer look at the execution of the Olympic Games from a human rights perspective. The first part will address the most serious human rights abuses that reportedly took place in connection with some of the previous editions of the Olympic Games. It will also outline the key characteristics of the Host City Contract ('HCC') as one of the main legal instruments relating to the execution of the Olympic Games. The second part will shed light on the human rights provisions that have been recently added to the 2024 HCC and it will seek to examine how, if at all, these newly-added human rights obligations could be reflected in practice. For the sake of clarity, it should be noted that the present blog will not focus on the provisions concerning anti-corruption that have been introduced to the 2024 HCC together with the abovementioned human rights provisions.

Examples of Olympic Games-related human rights abuses 

The large majority of Olympic Games-related human rights abuses fall into one of the following categories: (i) violations of labour-related rights; (ii) forced evictions; and (iii) repressions of civil rights, in particular the right to freedom of expression and the right to peaceful assembly. In addition, the execution of the Olympic Games can entail negative environmental impacts.

Violations of labour-related rights 

International labour standards are primarily laid down in a number of conventions and other instruments adopted by the International Labour Organization ('ILO'). The ILO identifies four cornerstone principles, namely the right to freedom of association and collective bargaining, the elimination of all forms of forced labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation.[1] These principles are also reflected to a certain extent in the Universal Declaration of Human Rights ('UDHR'),[2] the International Covenant on Civil and Political Rights ('ICCPR'),[3] the International Covenant on Economic, Social and Cultural Rights ('ICESCR')[4] and regional human rights treaties, such as the European Convention on Human Rights ('ECHR').[5] Other fundamental labour-related rights include, for instance, the right to rest, leisure, fair wages or safe and healthy working conditions.[6]

Thousands of workers coming from both inside and outside of the Host Country are recruited in the run-up to the Olympic Games to ensure that Olympic venues are built on time. Regrettably, these workers are often subjected to multiple violations of their labour-related rights. A report published by Human Rights Watch ahead of the 2008 Summer Olympic Games in Beijing revealed, inter alia, that internal migrant workers frequently faced delayed payment of their wages and were denied basic services linked to China's household registration system, known as Hukou.[7] Furthermore, the freedom of association of these workers was restricted as they could not join China's only legal trade union body, the state-sponsored All-China Federation of Trade Unions.[8] The 2014 Winter Olympic Games in Sochi received a significant influx of migrant workers coming to Russia mostly from Central Asia. Several reports demonstrated that, in addition to unpaid wages or excessive working hours, migrant workers in Sochi were also prevented from moving to another employer as their work permits or personal identity documents were often withheld.

Forced evictions 

The United Nations Committee on Economic, Social and Cultural Rights ('CESCR') defines the term 'forced eviction' as ''the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection''.[9] The CESCR further specifies that forced evictions might be permissible if the individuals concerned are provided with an adequate compensation for any affected property or, in cases where forced evictions result in the individuals concerned being rendered homeless, an adequate alternative housing, resettlement or access to productive land.[10] Moreover, forced evictions should be carried out in conformity with general principles of reasonableness and proportionality.[11]

Some of the previous editions of the Olympic Games have seen whole communities being removed from their homes to make way for stadiums, accommodation facilities and infrastructure. According to research conducted by the Centre on Housing Rights and Evictions, at least 1.25 million people were displaced prior to the Beijing Games.[12] Thousands of families had been relocated from favelas in Rio de Janeiro before the 2016 Summer Olympic Games were opened. Doubts have been raised whether the affected individuals were provided with an adequate compensation and other guarantees as referred to above.[13]

Repressions of civil rights

Rule 50 (2) of the Olympic Charter stipulates that ''no kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas''. Based on this provision, the Host Country may adopt laws and take measures restricting the right to freedom of expression[14] and the right to peaceful assembly.[15] The Chinese government was accused of curtailing the right to freedom of expression of domestic and foreign journalists prior to the Beijing Games. In February 2014, four LGBT-advocates from Russia were detained when they were about to protest against discrimination at the Sochi Games.

Rule 50 (2) of the Olympic Charter also prevents athletes from making political statements in any Olympic sites or venues. At the 1968 Summer Olympic Games in Mexico City, the IOC showed no tolerance for the black power salute, a political demonstration conducted by Afro-American athletes Tommie Smith and John Carlos (gold and bronze medallists in the 200-meter sprint) with the view of supporting their compatriots in the struggle against racial segregation. At the Sochi Games, the IOC did not allow Ukrainian athletes to wear black armbands in commemoration of those who died during the conflict in the country. It is arguable that such examples constitute an unlawful interference with the freedom of expression of athletes competing in the Olympic Games.[16]

Negative environmental impacts

Despite not being generally accepted as a human right per se, the right to a safe and healthy environment might be inferred from other human rights, including, for instance, the right to life or the right to food and water.[17] It should also be noted that environmental concerns are closely intertwined with the concept of sustainable development, as exemplified in the Rio Declaration on Environment and Development which provides that ''environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it''.[18]

The first Olympic Games that were widely criticized for disregarding environmental considerations were the 1992 Winter Olympic Games in Albertville.[19] By contrast, it is widely recognized that the 1994 Winter Olympic Games in Lillehammer were executed in an environmentally-sustainable manner, arguably in response to the Rio Declaration on Environment and Development which was agreed upon only few months after the closing ceremony of the Albertville Games.[20] Insofar as the more recent editions of the Olympic Games are concerned, the Rio Games faced serious difficulties relating to the polluted waters of Guanabara Bay, an Olympic venue for sailing events. In a similar vein, preparations of the upcoming 2018 Winter Olympic Games in Pyeongchang have been marred by allegations of destroying 500-year-old virgin forest to make room for a ski slope.

Introduction to the HCC

The previous section has portrayed some of the most serious human rights abuses associated with the execution of the Olympic Games. These abuses call for an adequate response from the IOC. Before proceeding to analyse whether the human rights provisions recently introduced to the 2024 HCC may constitute an effective remedy, it is essential to take a cursory look at the HCC as one of the main legal instruments linked to the execution of the Olympic Games.

What should be known in the first place

Following the completion of the selection procedure, the HCC is entered into by the IOC on the one hand and the successful Candidate City ('Host City') and the National Olympic Committee of the Host Country ('Host NOC') on the other hand. Within five months after the execution of the HCC, the Host City and the Host NOC shall form the Organising Committee of the Olympic Games ('OCOG'), an entity endowed with legal personality under the laws of the Host Country.[21] The Host City and the Host NOC shall subsequently ensure that, within one month after the OCOG's formation, the OCOG becomes a party to the HCC and adheres to all its terms.[22] Even though the Host Country itself is not a party to the HCC, it plays an important role in fulfilling the obligations contained therein. For instance, the Host Country Authorities are required to take all necessary measures to guarantee the safe and peaceful celebration of the Olympic Games.[23]

As such, the HCC in its current form consists of four separate documents which apply in the following order of precedence: (i) The HCC – Principles; (ii) The HCC – Operational Requirements which provides a detailed description of the main deliverables and other obligations to be performed by the Host City, the Host NOC and the OCOG, including, inter alia, obligations relating to finances, media or the Olympic Torch Relay; (iii) The Games Delivery Plan which outlines the main planning framework, timelines and milestones to be respected by the Host City, the Host NOC and the OCOG; and (iv) The Candidature Commitments which concerns all guarantees and other commitments contained in the Host City's candidature documentation.[24] Since the present blog deals exclusively with the HCC – Principles, all references to the HCC throughout this post should be taken to include the HCC – Principles only.

The HCC is governed by the domestic laws of Switzerland.[25] The parties thereto undertake to submit all their disputes concerning the validity, interpretation or performance of the HCC to the Court of Arbitration for Sport ('CAS'). If, for any reason, the CAS refuses to exercise its jurisdiction in a particular case, the domestic courts in Lausanne shall be competent.[26]

The main purpose of the HCC is to delegate the execution of the Olympic Games from the IOC to other actors, namely the Host City, the Host NOC and the OCOG.[27] As a general rule, these actors shall be jointly and severally liable for all their obligations, guarantees and other commitments under the HCC, whether entered into individually or collectively.[28] The Host City is primarily tasked with delivering the public infrastructure. It may create and grant powers to an Olympic Delivery Authority[29], a public entity that ''combines the functions of a local council, planning authority, transport executive, trading standards office and police service''.[30] The Host NOC is concerned predominantly with sport-related matters, whilst the OCOG is responsible for hiring suppliers and contractors to build Olympic venues, lodging athletes and officials or elaborating reports on a regular basis.[31] This is not to say, however, that the IOC is not involved in the execution of the Olympic Games. Given that the Olympic Games are the exclusive property of the IOC,[32] the IOC provides significant financial and other benefits to its agents, determines the core requirements, exercises supervision and takes measures in case of non-compliance with the HCC.

Core requirements

First and foremost, the Host City, the Host NOC and the OCOG undertake to respect the Olympic Charter and the IOC Code of Ethics. By signing the HCC (or acceding thereto), they also agree to carry out their operations ''in a manner which promotes and enhances the fundamental principles and values of Olympism as well as the development of the Olympic Movement''.[33] Other core requirements laid down in the HCC relate mostly to human rights, anti-corruption, environmental protection and sustainability, security, betting and prevention of manipulation of competitions, intellectual property rights, entry and stay of athletes and Games-related personnel, taxes, media and marketing. The provisions concerning human rights, environmental protection and sustainability will be specifically examined at a later stage.

IOC's supervision of the execution of the Olympic Games

In order to monitor the progress of, and provide guidance to, the OCOG, with respect to the planning, organisation, staging and financing of the Olympic Games, the IOC creates a Coordination Commission with members representing the IOC, the International Federations, the National Olympic Committees, OCOGs from the past, the IOC Athletes' Commission and the International Paralympic Committee, as well as experts designated or approved by the IOC.[34] As part of their mandate, members of the Coordination Commission conduct site inspections and meet with representatives of the OCOG and the Host Country on a regular basis.[35]

Measures in case of non-compliance with the HCC

The most serious measure contemplated by the HCC in the event of non-compliance therewith is its termination by the IOC and subsequent withdrawal of the Olympic Games from the Host City, the Host NOC and the OCOG. Termination of the HCC might be prompted by a failure on the part of the Host City, the Host NOC and/or the OCOG to perform ''any material obligation pursuant to the HCC or under any applicable law''.[36] That being said, the HCC sets out a two-step procedure for its termination and subsequent withdrawal of the Olympic Games. First, the IOC notifies the Host City, the Host NOC and/or the OCOG and calls upon the relevant party to remedy its failure within 60 days of receiving the notification. This time limit is shortened to 30 days if the opening ceremony of the Olympic Games is less than 120 days away.[37] Second, if the relevant party does not respond to its failure in a timely and accurate manner, the HCC shall be terminated and the Olympic Games withdrawn with immediate effect.[38] Apart from termination of the HCC and subsequent withdrawal of the Olympic Games, the IOC may decide, for example, to withhold any grant to be made to the OCOG in accordance with the HCC.[39]

Conclusion

Against the background of the reform proposals embodied in Agenda 2020, the initial failure of the 2024 HCC to incorporate human rights obligations, other than those relating to non-discrimination, was presented as an astonishing omission. Although the IOC has recently surrendered to public pressure and it has finally added human rights obligations to the 2024 HCC, its role does not end here. The second part of this blog will examine whether the insertion of human rights obligations to the 2024 HCC is to be regarded as a turning point in history of the Olympic Games or risks being an empty promise.

[1]    ILO Declaration on Fundamental Principles and Rights at Work; Article 2.

[2]    UDHR; Article 23.

[3]    ICCPR; Articles 8, 22, 26.

[4]    ICESCR; Articles 2, 8.

[5]    ECHR; Articles 4, 11, 14.

[6]    ICESCR; Article 7.

[7]    Human Rights Watch, 'One Year of My Blood: Exploitation of Migrant Construction Workers in Beijing', March 2008, at 22, 39.

[8]    Ibid., at 42.

[9]    CESCR General Comment No. 7; para. 3.

[10]   Ibid., paras. 13, 16.

[11]   Ibid., para. 14.

[12]   Centre on Housing Rights and Evictions, 'Fair Play for Housing Rights: Mega-Events, Olympic Games and Housing Rights', June 2007, at 154.

[13]   R. Gauthier, The International Olympic Committee, Law and Accountability, Routledge, 2017, at 90.

[14]   ICCPR; Article 19 (2), (3).

[15]   Ibid., Article 21.

[16]   F. Faut, 'The Prohibition of Political Statements by Athletes and its Consistency with Article 10 of the European Convention on Human Rights: Speech is Silver, Silence is Gold?', (2014) 14 (3) ISLJ 253.

[17]   A. Boyle, 'Human Rights and Environment: Where Next?', (2012) 23 (3) EJIL 613, at 617.

[18]   Rio Declaration on Environment and Development; Principle 4.

[19]   S. Samuel, W. Stubbs, 'Green Olympics, Green Legacies? An Exploration of the Environmental Legacies of the Olympic Games', (2012) 48 (4) International Review for the Sociology of Sport 485, at 487.

[20]   Ibid.

[21]   2024 Host City Contract – Principles; Article 3.1.

[22]   Ibid., Article 3.3.

[23]   Ibid., Article 17.1.

[24]   Ibid., Article 1.1.

[25]   Ibid., Article 51.1.

[26]   Ibid., Article 51.2.

[27]   Ibid., Article 2.

[28]   Ibid., Article 4.1.

[29]   In practice, an Olympic Delivery Authority might operate under different names.

[30]   M. James, G. Osborn, 'London 2012 and the Impact of the UK's Olympic and Paralympic Legislation: Protecting Commerce or Preserving Culture', (2011) 74 (3) Modern Law Review 410, at 419-420.

[31]   Gauthier (supra note 13) at 65-66.

[32]   Olympic Charter; Rule 7.2.

[33]   2024 Host City Contract – Principles; Article 13.1.

[34]   Ibid., Article 27.1. See also Olympic Charter; Rule 37.

[35]   A. Geeraert, R. Gauthier, 'Out-of-control Olympics: Why the IOC is Unable to Ensure an Environmentally Sustainable Olympic Games', (2017) 19 Journal of Environmental Policy & Planning 10.

[36]   2024 Host City Contract – Principles; Article 38.2. (d).

[37]   Ibid., Article 38.3. (a).

[38]   Ibid., Article 38.3. (b).

[39]   Ibid., Article 36.2. (b).

Editor's note: Dr Rishi Gulati is Associate Professor in International Law at the University of East Anglia (UK) and Barrister in Law. He has a PhD from King’s College London, Advanced Masters in Public International Law from Leiden University, and a Bachelor of Laws from the Australian National University. Amongst other publications, he is the author of Access to Justice and International Organisations (Cambridge University Press, 2022). He has previously worked for the Australian Government, has consulted for various international organizations, and regularly appears as counsel in transnational cases.

On 1 December 2024, Jay Shah, the son of India’s powerful Home Minister and Modi confidante Amit Shah, will take over the role of the Independent Chair of the International Cricket Council (ICC). This appointment reflects the influence India now has on the governance of cricket globally. A key test Jay Shah will face is whether or not the ICC should suspend the Afghanistan Cricket Board (ACB) from its membership as Afghanistan no longer maintains a women’s cricket team contrary to the organization’s own rules, as well as its human rights responsibilities. 

The Post-Taliban Situation for Women’s Cricket in Afghanistan

As is well known, following the highly chaotic US withdrawal from Afghanistan in 2021, the Taliban returned to power in that country. Since its return, the Taliban has banned education for young women and teenage girls, severely restricted their right to work, outlawed women’s voices being raised in public, issuing at least 100 decrees and edicts institutionally and systematically violating Afghan women and girls’ basic freedoms recognised in international law. 

In June 2024, the UN Special Rapporteur on human rights in Afghanistan said that “[t]he system of discrimination, segregation, disrespect for human dignity and exclusion institutionalized by the Taliban is motivated by and results in a profound rejection of the full humanity of women and girls.” It should then come as no surprise that women in Afghanistan are not allowed to play domestic cricket in that country any more. Further, the Afghanistan women’s cricket team no longer plays international cricket for the Taliban does not allow it. All the gains made in the pre-Taliban period, where the sport in that country had made genuine advances, were lost in a moment.

The ICC’s obligations to Afghanistan Women’s Cricket

As a global body that regulates international cricket, the ICC rightly enjoys independence in its working. However, this independence does not mean that the ICC should be unaccountable and be able to evade or avoid its human rights responsibilities. In respect of its obligations to Afghanistan’s women cricket, it cannot be said that the ICC is living up to those responsibilities.

Indeed, global sporting bodies are powerful transnational institutions to whom the most basic human rights obligations ought to apply. Amongst other things, the UN Guiding Principles on Business and Human Rights (UNGPs) which some sports bodies have voluntarily adopted require them to ensure compliance with internationally recognised human rights standards, including on non-discrimination, and the need to provide an effective remedy to those adversely affected (see especially Principles 11-29 of the UNGPs).

Although the words “human rights” do not appear in its Articles of Association (the ICC is incorporated as a company limited by guarantee in the British Virgin Islands), the organization’s own rules do indeed facilitate non-discriminatory participation of women in the sport, albeit in a roundabout way. 

ICC members, which the ACB is, must be run independently, i.e., without government interference (para. 2.4, ICC Articles). If there is governmental interference, then the member cannot maintain its membership (para. 2.8, ICC Articles). Specifically on women’s participation in the sport, where pathways for women’s cricket are lacking, and a member does not maintain a women’s cricket team, its membership ought to be suspended for this would appear to constitute a serious breach of its obligations as a Member (para. 2.10, ICC Articles; also see the ICC membership criteria).

Due to the Taliban’s ban on women’s sport, interference in the ACB’s affairs is manifest. Crucially, there are no pathways for girls and women to play cricket in Afghanistan, with that country failing to maintain a women’s cricket team. There is a clear basis for suspending the Afghanistan Cricket Board (ACB) from its membership. As Goldschmidt has explained, “Afghanistan, on even the loosest assessment, is not meeting the requirements prescribed by the ICC’s governance arrangements. 

While it would be preferrable if the ICC were to expressly adopt human rights principles in its governance arrangements, in the case at hand, its current framework already allows it to live-up to the organization’s human rights responsibilities through a straightforward application of its rules. Afterall, South Africa was suspended from international cricket between 1970 and 1991 during the Apartheid regime in that country. But why is this double standard allowed to continue? 

How the ICC may respond to the conundrum?

It has been said, “the ICC has been keen to stress that it does not recognise the Taliban as the legitimate ruling authority, and hence will “not penalise the ACB, or its players, for abiding by the laws set by the government of their country.” It is perhaps understandable that the ICC wishes to ensure that Afghan men can continue to play international cricket, thus, expelling the ACB is a difficult proposition.

However, until women’s cricket is restored in Afghanistan, suspending the ACB from the ICC would be an apt action that is not only in line with its own rules, but entirely consistent with the organization’s human rights responsibilities. If taking a strong stance against what some call gender apartheid against girls and women in Afghanistan means that the men’s cricket team may not be able to participate in international cricket, then this is a price that must be paid. As unfortunate as this state of affairs may be, it does not constitute an exception to the ICC’s human rights responsibilities.

-This does not mean that Afghan men’s and women’s cricket teams cannot take part in cricket at all. Most women cricketers from that country fled to western states following the Taliban take-over. Representatives from the former Afghanistan women’s cricket team presently based in Australia requested the ICC for permission to play as an Afghan refugee team, stating: : “Creating a team of Afghan refugees can give us a chance to play, coach and administer a cricket team without borders…The creation of this team will allow all Afghan women who want to represent their country to come together under one banner.” 

An appropriate response would be to allow the establishment of a women’s refugee cricket team. There is nothing stopping the ICC to allow the men to do the same should the ACB be suspended. 

Doing so does not only help the ICC to abide by its human rights responsibilities, but also assists the organization to mitigate any potential issues arising with respect to cricket’s participation in the 2028 LA Olympics at which cricket will make a much awaited return. Indeed, the ICC is a member of the Olympic Movement, and given the International Olympic Committee’s increased emphasis on human rights considerations throughout its operations, the need for the ICC to live up to its human rights responsibilities is correspondingly pressing.