Editor's note: Faraz Shahlaei
is a JSD Candidate at Loyola Law School, Los Angeles. His research and
teaching interests are public international law, international sports
law, international human rights and dispute resolution.
The issue of international
human rights was a central contention in Caster Semenya case ever since the
start of her legal battle against the regulations of the IAAF. However, the
human rights arguments were poorly considered in the two proceedings related to
this case. To put it in perspective, it is like having a key player nailed to
the bench throughout the whole game; no coach ever tried to give it a chance
while it had the potential to be the game changer for all parties.
In 2019, the Human
Rights Council, the inter-governmental human rights body of the UN, expressed
concern over issues of discrimination in sports in particular regarding
IAAF female classification regulations. In June 2020, the United Nations High
Commissioner for Human Rights submitted a report to the United
Nations Human Rights Council on the “Intersection of
Race and Gender Discrimination in Sport”. The report draws a detailed
picture of how human rights in the Semenya case have been violated and also
elaborates on the inherent problem of addressing human rights issues in
alternative dispute resolution mechanisms favored by the sport governing
bodies. However, despite an in-depth discussion of Caster Semenya’s case at
both the CAS and then the SFT, the question of human rights, a key concern and
a fundamental pillar of the case, hasn’t been adequately answered yet!
The following
arguments are intended to discuss how international human rights law, has not been
properly examined in Caster Semenya’s case:
1.
CAS arbitral panels are not primarily concerned with the
application of international human rights law since sport arbitrations are
conducted based on regulations of sport governing bodies, predominantly in the
absence of a human rights clause within that framework (OHCHR, para 44). Even
if they were, a proper consideration of human rights aspects in any dispute,
including whether there is a necessary, proportional and legitimate exception
to the human rights rule or whether there are more important rights worthy of
protection, needs individuals that are knowledgeable about the international
human rights system to carefully scrutinize the issues based on human rights
norms. Even if the CAS includes human rights experts in its pool of
arbitrators, there are still questions regarding the dependability and the
weight of their interpretation of the human rights treaties considering their appointment
process by private actors in compare with for example judges in the ICJ, ECtHR
or members of the UN treaty bodies.
2.
The Semenya case is a suitable example of this gap. In fact, when
it comes to the issue of discrimination and international human rights law, the
panel finds the UN amicus curiae and other expert submissions useless
(CAS, para 554). The panel argues that the submissions failed to address the
three-prong spear of necessity, proportionality and legitimacy and therefore
are not helpful for the task in front of the panel. Despite acknowledging the relevancy
of some human rights arguments (CAS, para 554), the panel finds a more
important value to protect, namely: fairness in sports; and builds up its analysis
of necessity, proportionality and legitimacy based on this concept. Whether
this assessment is in line with international human rights, remains a question
since the issue has not been considered by a panel with adequate human rights
expertise. The player is on the bench!
3.
Furthermore, the issue of female athletes’ eligibility is not related
only to gender-based discrimination. As the report of the OHCHR makes clear it
is also about the right to work and just and favorable working conditions; the
right to highest attainable standards of physical and mental health; the right
to sexual and reproductive health; prohibition of arbitrary interference with
privacy; the right to bodily integrity and the right to human dignity (OHCHR,
para 34). None of these rights have been considered in the CAS award and
subsequently by the SFT within the international human rights law context.
4.
More importantly, the enforcement of DSD regulations raises
questions regarding the prohibition of torture, cruel, inhuman and degrading
treatment (OHCHR, para 34(a)). The OHCHR report explains that enforcement of
DSD regulations are “medically unnecessary, and potentially harmful” (para.
32), brings the targeted individuals with “shame and ridicule” (para. 33),
inflicts physical and psychological harm (para 34(c)) and is a form of forced medical
intervention (para 34 (c)) which triggers issues related to article 7 of the International
Covenant on Civil and Political Rights. This prohibition in most cases trumps
any exception or justification. Therefore, Article 7 of the ICCPR on
prohibition of torture, cruel, degrading and inhuman treatment, ratified by
Monaco in 1997, can be a potentially bigger threat to DSD regulations rather
than the issue of non-discrimination.
5.
Challenging an arbitral award in national jurisdictions, other than
the public policy grounds, is limited to issues pertinent to procedural matters.
Therefore, the scope of reviewing the issues at stake in the arbitral award is
very limited and if any of the above rights have not been already scrutinized during
the arbitration, they will fall outside the scope of the appeal. For example,
the SFT finds that the contradiction of taking oral contraceptives with
religious and moral values of the individual is an inadmissible claim since it hasn’t
been raised in front of the CAS at the first place (para 10.6).
6.
A fundamental discordance between the human rights framework and
the approach adopted by the SFT, emerges when the SFT argues that the
non-discrimination principle based on the Swiss Constitution is restricted to
the treatment of individuals by public entities not private bodies such as
sport organizations (para 9.4). Nevertheless, the SFT observes that sport
governing bodies possess a status similar to states (which is in itself an
interesting finding and I will touch upon this later in this note) and then
deals with public policy grounds. However, the legal protections in
international human rights law are of a different nature. Positive obligations
of the states in guaranteeing the enforcement of human rights norms within
their jurisdiction is an indispensable part of the legal regime created by international
human rights law. The UN Human Rights
Committee is clear when it states “the positive obligations on States Parties to
ensure Covenant rights will only be fully discharged if individuals are
protected by the State, not just against violations of Covenant rights by its
agents, but also against acts committed by private persons or entities that
would impair the enjoyment of Covenant rights in so far as they are amenable to
application between private persons or entities”. The practice of international
courts and tribunals corroborates this view where in many cases public
officials were held accountable for failing to do their due diligence in
preventing human rights violations within their jurisdictions (See e.g. Fadeyeva v.
Russia, paras 89-93; CCPR Concluding
Observations on Germany, para 16).
7.
The SFT delves into the public policy issues and by relying on the
findings of the CAS (para 9.8.2; 9.8.3.1) comes to the same conclusion as to
the priority and legitimacy of the principle of fairness in sports (para
9.8.3.3, 9.8.3.4) and ultimately finds no breach of public policy (para 10.7). Based
on paragraph 1 and 2 of this note, the analysis of the CAS, which the SFT
relies upon it, is disputable from the human rights perspective.
8.
The SFT refers to the decision of the ECtHR in FNASS and
others v. France and finds the analysis applicable to this case. This seems
reasonable as both cases are justifying certain restrictions to protect the
rights of third parties. However, the pivotal argument of the ECtHR in FNASS
not only mentions the protection of public health (para 165) but also the risks
of doping for physical and mental health of the doped athletes (paras 171-173);
the SFT’s stance on this topic is in conflict with serious concerns asserted by
the OHCHR on how DSD regulations pose a serious risk to the right to health of
the individuals requiring them to undergo unnecessary and potentially harmful
medical treatment (OHCHR para 32, 33, 34(a), 34(b), 34(c), 34(d)). Additionally,
in FNASS the right to privacy is examined in the face of whereabout regulations
plus being available for an hour each day for testing purposes; the ECtHR finds
that the protection of health, which is the aim of the doping control system,
is more important than revealing the whereabout information. However, in the
present case reasonable concerns are over endangering the health and safety of
individuals rather than disclosing the information about the place of residence.
Article 3 of the Additional Protocol to the Oviedo Convention concerning
biomedical research can be illuminating in this regard: “The interests and
welfare of the human being participating in research shall prevail over the
sole interest of society or science”.
9.
At times, the SFT finds itself relying on the notion of consent in relations
between athletes and sport governing bodies and employs it as a justifying factor
for example for the intrusive examination of athletes’ body that if they object,
such examinations would not take place (para 10.2, 11.2). The SFT further
points out that athletes’ defective consent to requirements set by the IAAF,
justifies taking oral contraceptives and it is not a treatment imposed on an
unwilling individual (para 10.2).
- First, the consent in this case is a flawed consent since it leaves
“no real choice to the athlete, who has to choose between undergoing these
intrusive medically unnecessary assessments and treatments with negative
impacts on their health and wellbeing” (See here, p 5). This
incomplete consent might survive when tested against imposing the arbitration
clause on an athlete (Mutu & Pechestein case) but might fail when tested
against more fundamental issues such as prohibition of cruel, inhuman and
degrading treatment, non-discrimination, the right to health, bodily integrity
and prohibition of medical intervention without free consent. Furthermore,
consent should be considered in the light of the decision of the ECtHR in Chitos v.
Greece in which a military staff resignation resulted in imposition of a financial
penalty. In Chitos a new law was adopted after the applicant was recruited
by the military, changing the conditions of the release of the personnel from
the military service. The Court finds that the law pursues a legitimate aim and
is proportionate, and it also takes account of the fact that “at the outset … the applicant cannot legitimately maintain
that he was unaware of the rationale and scope of the obligations he had
entered into” being aware of also the benefits that he would receive from
this relation. The question in front of the Court was whether the applicant
voluntarily offered himself since he had prior knowledge of rules and possible
consequences. The Court maintains that the issue of mental constraint should be
considered based on the situation at the time of the entry into force of the
new law not at the time when the applicant was first recruited (para 97).
Furthermore, in Van Der Mussele
v. Belgium regarding the issue of prior consent and the existence of a threat
the ECtHR maintains that: “This could be so in the case of a service required
in order to gain access to a given profession, if the service imposed a burden
which was so excessive or disproportionate to the advantages attached to the
future exercise of that profession, [then] … the service could not be treated
as having been voluntarily accepted beforehand” (para 37). As explained above
an assessment of necessity, proportionality and legitimacy based on
international human rights grounds can be different than the conclusions based
on the principle of fairness in sports.
- Second, the OHCHR report calls attention to power imbalances in
sports which hinges upon the notion of consent in relations between the
athletes and sport governing bodies (para 34 (c)). The Special Rapporteur on
the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health emphasizes the need for particular measures to protect
“vulnerability of certain individuals whose rights are compromised owing to
deeply rooted power imbalances and structural inequalities” in particular in
clinical practice and medical research. “In sport, such power imbalances are
compounded by athletes’ dependency on the sports federations requiring such
medical interventions and the frequent absence of adequate and holistic support
during the decision-making process” (OHCHR, para 34(c)).
- Third, the issue of consent becomes significantly important with
respect to medical intervention in human body. For any type of medical
intervention, free and informed consent of the individual is required. Article
5 of the Oviedo Convention on Human Rights and Biomedicine provides that any
intervention in the health of individual should be conducted with free and informed
consent including the consequences and risks involved. The OHCHR report calls
attention to the “risk of unethical medical practice, particularly when the
informed consent of the person concerned is not required” (OHCHR, para 34(c)).
It is uncontested that human dignity and its health has priority over any type
of scientific test or research even for the good of society. Article 3 of the
Additional Protocol to the Oviedo Convention applies to this argument as well
which provides: “The interests and welfare of the human being participating in
research shall prevail over the sole interest of society or science”.
- Fourth, individuals have the right to refuse or withdraw consent at
any time without being subject to any form of discrimination (Article 5, 16 of
Oviedo Convention; Additional Protocol, article 13(3)).
- Fifth, the argument that the CAS is open to future findings of the
adverse effects of such treatments which is supported by the SFT (para 9.8.3.5),
is in contrast with requirements of medical and biological interventions of
human body in international human rights law as it is encouraging unethical and
potentially harmful medical experimentation and at the same time overlooks the
notion of free and voluntary consent. Any type of medical intervention and
research should come with careful consideration of ethical acceptability of
such practices including protection of “dignity, rights, safety and well-being
of research participants” (Additional protocol to the Oviedo Convention,
article 9).
Notwithstanding
the above arguments, one of the findings of the SFT can be an interesting line
of thought for further research; that the vertical structure of sports and the
dominance of sport governing bodies in their realm, puts them in a similar
position as states (para 9.4). Traditionally only states and international governmental
organizations are direct subjects of public international law and therefore
bearers of responsibility under its rules and principles including the responsibility
to enforce the human rights standards. The finding of the SFT adds more weight
to the argument that sport governing bodies have replaced states in certain
functions in a way that states are no longer responsible for those operations.
This is one criterion recognized by public international law scholars for
recognition of international legal personality. Therefore, it will be
interesting to study whether sport governing bodies are in a position to be
recognized as de facto states although without a geographical territory.
Finally, what I
argued above does not mean that ultimately, once the award of the CAS in
Semenya case is scrutinized by a human rights body it will fail. It may or may
not; but as long as this evaluation has not been conducted by a competent human
rights court, there will always remain questions about the credibility of a CAS
award which disregarded most of the human rights concerns touched upon in this
blog.
Therefore, a
key player in this game is still on the bench!