The responsibility for testing and results management

The Code contains provisions in various Articles concerning the allocation of responsibility for testing and investigations, the management of results by anti-doping organisations, and hearings. Again, the Code's provisions establish standards in this area which the Signatories must meet, but the Articles do not have to be adopted verbatim into anti-doping policies. It must also be borne in mind that the International Standards contain the detail of the process by which samples are taken and analysed, and that the application of the Standards is a mandatory part of the testing and investigation process for Signatories.

Various organisations may be responsible under the Code for the testing of an athlete in- or out-of-competition, or for the investigation of anti-doping violations. After testing or an investigation, the results obtained will be managed in order to conduct any further investigation required, and to bring any allegation arising from the investigation to a hearing. The hearing process must be conducted to the standards set out in Article 8 of the Code. Related matters such as confidentiality during the investigative and hearing process, and reporting after a hearing, are also the subject of Articles in the Code (primarily Article 14).

Article 15: clarification of doping control responsibilities

The Code proceeds on the basic principle that the anti-doping organisation which initiated and directed the collection of samples or discovered the violation in question will be responsible for the management of results and the conduct of hearings.

Introduction

The image of state law as an institutionally separate, ideologically neutral and normatively superior entity which orders our society is no longer tenable. Over the past few decades a large number of critiques have established that law is embedded in and indissociable from its cultural context, that far from being neutral it is ideologically grounded in politically weighted presuppositions, and that its once-absolute superiority is counteracted by the existence of plural normative environments within which contemporary subjects of law are situated.

In contemporary Western nations, religion is often regarded by law as a matter of private freedom, as though it occupies a space which is other to law, the state, and our public sphere. In this, the ‘West’ is not itself unified: within the Anglosphere, for instance, Britain has an established church, while varying doctrines of separation between church and state or freedom of religion operate in the United States, Canada, Australia and New Zealand. There are also differences in whether political discourse is inflected with, or avoids, explicitly religious considerations.

Recently, religion has encroached upon the ‘public’ consciousness in ways which two decades ago might have seemed implausible. The causes and manifestations of this encroachment are undoubtedly complicated. In Australian domestic politics, for instance, family-oriented politicians espousing conservative Christian ethics (though sometimes denying formal affiliation with Christian organisations) have been elected to state and federal parliaments.

Introduction

In our pursuit of an inclusive, egalitarian, individual-rights-respecting polity, we are often tempted to interpret freedom of religion as though it were designed to place religious belief on a par with other beliefs – as though it were designed to secure an absolute equality in religious matters (equality, that is, between religion and non-religion, as well as among different religious beliefs). This view is the centrepiece of an important new book by Christopher Eisgruber and Larry Sager, which Sager defends ably in his contribution to this volume. Indeed, Eisgruber and Sager do more than simply assume that religious and non-religious beliefs must be treated the same: they argue that a commitment to equality and liberty alone is sufficient to generate the entire content of freedom of religion, without attaching any value to the distinctive nature of religious belief.

This, I will argue, is a mistake. My essential claim is that one cannot make sense of freedom of religion – at least if it has something like the scope that the great majority of commentators, including Eisgruber and Sager, ascribe to it – unless one recognises that the freedom is founded upon the affirmative valuing of religion. Any coherent conception of the freedom depends upon the premise that religious belief has special value and deserves special protection.

Effect of global acceptance

The acceptance of the Code by Signatories creates agreements binding sporting organisations and their members which have the support of States through the Anti-Doping Convention. The Convention does not make the Code part of the law of signatory States but, rather, commits States to take steps in order to support the Code to reinforce the regime formed by the Code and International Standards. While the Code operates in an area of significant public interest and importance, it functions as a contractual arrangement by which sporting organisations and associations regulate themselves in the anti-doping area.

The widespread acceptance of the Code by Signatories (and other organisations) around the world has created an interlocking international network of agreements which regulates doping matters and establishes the necessary international disciplinary regime. It is important to bear in mind that, while there are a significant number of common features in anti-doping regimes which accept the Code (as the Code requires), there are also a number of areas where sporting organisations will continue to establish and maintain sport-specific policies by developing and adopting rules concerning such matters as, the investigation of anti-doping rule violations (not involving testing and analysis), provisional suspensions, sanctions for teams, the management of results, reporting and confidentiality. These rules may, like the provisions of the Code which are adopted verbatim, have to be interpreted by tribunals and CAS.

Introduction

This chapter seeks to address the difficulties inherent in attempts to balance the presence of an Established Church and the modern human rights framework within a single constitution. It will argue that Establishment, which demands a place for religion in the public sphere, pulls in an opposing direction to that of the human rights framework, the general tendency of which is to remove religion into the private sphere. It will be argued that there is too often little attempt to address the potential conflict between human rights and Establishment, and an attempt will be made to examine the consequences of this omission.

The focus of this chapter is upon the treatment of the Church of England within the human rights framework as implemented in the United Kingdom by the Human Rights Act 1998. In seeking to address this it will highlight the difficulties and complexities created, for those concerned with constitutional reform, by the non-documentary nature of the English constitution. It will illustrate that these difficulties and complexities are doubly present in respect of attempts to address the position of an Established Church which is itself a wide and varied body which has been subject to its own history of reform and its own internal forces.

Through an analysis of the decisions of the Court of Appeal and the House of Lords in the case of Aston Cantlow v. Wallbank this chapter will examine the consequences of the interaction of a constitutional unwillingness to address the potential conflict between the ideologies of Establishment and the human rights framework; the history and characteristics of the English constitution and the Church of England and its institutions; and the language and frameworks developed under the European Convention on Human Rights (European Convention) and implemented in domestic law by the Human Rights Act 1998.

Introduction

Article 3.1 of the Code provides for both the burden and the standard of proof in proceedings before tribunals or CAS under the Code. As has been outlined above, the proof of the violations contained in Articles 2.2 and 2.4–2.8 of the Code, will usually cover a wider range of factual circumstances and potentially probative evidential material, than will be the case with violations under Articles 2.1–2.3. In hearings involving a broader range of factual matters, national and international tribunals and CAS, whether at first instance or on appeal, are more likely to be required to weigh a range of factual issues, as opposed to limited issues such as whether a test result has been reached after following the proper process and is valid. In such hearings, there will inevitably be a greater focus on the application of the principles concerning the burden and standard of proof to the evidence presented to establish the alleged violations.

The general burden of proof

Burden on the anti-doping organisation

Article 3.1 provides that the burden of establishing that an anti-doping rule violation has occurred lies on the anti-doping organisation bringing the allegation. The organisation will have to establish the elements of the anti-doping rule violation alleged to have been committed.

The last two decades of the twentieth century saw many doping scandals concerning the major sporting events and leading athletes. Events such as the 1988 Olympic 100m final where a steroid-assisted Ben Johnson won the gold medal in startling fashion are etched in the sporting memories of many sports fans as tarnished magic moments. However, it was the doping affair conerning the Festina cycling team, which occurred during the 1998 Tour de France, which highlighted the need for more coordinated global action against doping. The foundation of the World Anti-Doping Authority (WADA), which was established as a private foundation under the laws of Switzerland on 10 November 1999 to promote, coordinate and monitor the fight against doping in sport in all its forms, was one important response to this need.

While doping scandals continue in the sporting world, WADA has been a highly visible player in efforts to combat doping in sport. The World Anti-Doping Program introduced by WADA, which has the World Anti-Doping Code (‘Code’) at its centre, has been at the heart of these efforts. This book seeks to provide a guide to the Code and the International Standards which operate together with the Code, for those who work with the Code whether as administrators, advisers or participants in sport.

Origins of WADA and the Code

The International Olympic Committee (IOC) convened the World Conference on Doping in Sport which took place in Lausanne in February 1999.

Introduction

The main argument of this paper is that conscientious exemptions, whether religious or non-religious ones, are better understood as the outcome of tolerance than as a way of applying the principle of equality.

This argument can be read in two different ways. Firstly, it is an analytical argument according to which almost all cases of conscientious exemptions, and surely all central and paradigmatic cases fall within the scope of the principle of tolerance, as I understand the concept. Secondly, not only is tolerance the best way to describe our attitude when we grant conscientious exemptions but in many cases tolerance is also the desirable moral basis for it. This is a normative argument that complements the analytical one. The following discussion will focus on the analytical argument but will also refer to the normative one although without putting forward a detailed reasoning for the latter.

This argument calls for three preliminary notes. The first is about the scope of the concept of ‘conscientious exemptions’. The second is needed for explaining how this paper's argument applies in similar strength both to religious and non-religious conscientious exemptions and the third explains why this argument matters.

The scope of the concept of ‘conscientious exemption’

Granting conscientious exemption is merely one of many ways of protecting freedom of conscience and religion. It is also merely one of many kinds of exemptions that can be granted from the demands of the law.

IN THIS CHAPTER WE EXPLORE THE FACTORS THAT SEEM TO increase the risk that a young democracy will be overthrown. The first section of the chapter opens by presenting descriptive statistics comparing failed democracies to those that have endured through 2004, the end of our sample period. Although more recent cases of democratic reversal, such as Thailand, Fiji, and Russia, are not included in our data set, we discuss them here and in other chapters. We then go on to make use of hazard model regressions to ascertain which of the many variables we highlight in this overview are most strongly associated with the reversal of democracy.

We note that although much of the earlier academic work that relates institutions, economic performance, and democratic survival (which we review later) has sought to discern causal connections between such broad variables as “democracy” on the one hand and “growth” on the other, our specific purpose here is to present a more nuanced account of the relationships between democratic institutions and a number of policy variables and outcomes. This is essential because some of the more aggregate-level work may lead us, like the fabled drunk, to search for the key to understanding democratic survival under the lamppost even if we need to look elsewhere.

FEW CHALLENGES ARE MORE CRUCIAL TO POLICY-MAKERS during this first part of the twenty-first century than ensuring the consolidation and survival of the world's youngest democratic states. The advance of liberal democracy to places yet untouched would mean increasing civil liberties and opportunities for literally millions of people, coupled with much brighter prospects for advancing global commerce and international peace. Conversely, the costs of democratic failure could prove difficult to contain, as authoritarian solutions to political and economic problems gather currency. It is because the stakes are so high that today's foreign assistance programs have made democratization a “core priority” (Carothers 1999), and in fact the public rhetoric in this case has been matched to some extent with increased funding – and even, for better or worse, military action.

To be sure, in only a very few places will foreign assistance and intervention make the decisive contribution that determines the fate of a young democracy (and we recall that many scholars consider foreign aid, as a general rule, to be detrimental to political and economic development). If a democracy is to establish and consolidate itself, it will mainly be due to local conditions on the ground coupled with good institutional arrangements and the policy choices made by elected leaders.

ONE OF THE MOST SIGNIFICANT FINDINGS TO EMERGE FROM our descriptive statistics concerns the considerable cross-country and cross-regional variation we observe with respect to the economic performance and political durability of young democracies. Thus, democracy in Eastern Europe and Latin America has generally moved (with some important exceptions we discuss later) toward consolidation, whereas in East Asia and Africa it has faced greater difficulty taking root. Why is that the case? What explains this diversity in the prospects for democratic survival?

In this chapter we explore these questions from a regional perspective. Naturally, we do not pretend to offer a detailed history of the political economy of each part of the developing world; instead, following a pioneering article by Krieckhaus (2006), we highlight the effects of the “initial conditions” commonly associated with particular places – for example, income and asset inequality in Latin America and ethnolinguistic fragmentation in Africa – on subsequent political and economic developments following the shift to a democratic polity. Although some of the variables we focus on in what follows do not necessarily loom large in our regression analysis, they do emerge as significant in the context of particular countries and this reminds us of the importance of conducting in-depth case study research alongside large-N data analysis.

WE BELIEVE THAT THE FINDINGS PRESENTED IN THIS book have potentially important consequences for industrial world's foreign assistance policies and programs that have democracy promotion as one of their key objectives. Specifically, we have argued that the leaders of young democracies may face great challenges in establishing their legitimacy and credibility, especially in divided societies where trust among social groups is lacking. In such cases, leaders may try to concentrate power by pursuing policies that enrich particular, targeted groups of “insiders” over the short run, but at the cost of undermining the broader public's faith in the value of democratic institutions. When weak political institutions combine with poor economic performance, democracy is unlikely to take root; in fact, when the institutions of newly democratic states are of poor quality, even relatively strong growth may not save them from backsliding or reversal, as so many recent cases (e.g., Thailand, Venezuela, and Russia) unfortunately illustrate.

Further, we have seen that the kind of economic performance may also matter to democratic consolidation. If countries enjoy growth but the wealth is not spread equitably, or in a way that promotes opportunities for socioeconomic mobility, consolidation may prove more difficult to achieve; as we have already seen in Chapter 2, highly unequal countries are less likely to remain democratic.