I. Introduction
As the Financial Times states, athletes are currently ‘alone’ in a state of ‘chaos’ due to ‘the sharp divide over Russia and the Olympics’.Footnote 1 The reason for this is the autonomy of international sports federations to ‘regulate their sports in the global arena’Footnote 2 and to decide on the participation of Russian and Belarusian athletes in qualifying competitions. This autonomy leads to very different approaches. Some federations (e.g., United World Wrestling, International Table Tennis Federation, Union Internationale de Pentathlon Moderne) follow the recommendation of the International Olympic Committee (IOC) of March 2023Footnote 3 to lift the ban of Russian and Belarusian athletes and to allow individual athletes to compete as neutral athletes (without flag, anthem, etc.). In direct response to the outbreak of the Russian war of aggression, the IOC had originally recommended unconditional exclusion of Russian and Belarusian athletes.Footnote 4 In January 2023, the IOC proposed to readmit only ‘neutral’ athletes, i.e., those who do not actively support the war.Footnote 5 In March 2023, the IOC added the important condition to also exclude athletes who are contracted to the Russian or Belarusian military or national security agencies.Footnote 6 Other federations (e.g., World Athletics, Fédération Equestre Internationale or FEI) do not follow the IOC’s approach and maintain the total exclusion of Russian and Belarusian athletes. A third group (e.g., International Boxing Association, International Tennis Federation) continued to allow Russian and Belarusian athletes to compete after the war began. The IOC is leaving its own decision on whether Russian and Belarusian athletes will be allowed to participate in the Olympic Games in Paris open.Footnote 7 Athletes who are ‘left alone’ are in particular Ukrainian athletes. Competing against Russians is a serious problem for Ukrainian athletes, who experience this sporting ‘fight’ as an extreme form of psychological stress.Footnote 8
At the level of sporting principles, the chaos concerns the political neutrality and autonomy of sport in the situation of an ongoing war of aggression. From the perspective of international law, it reflects uncertainty about how human rights obligations affect and limit these sporting principles. It is argued here that the autonomy and political neutrality of sport must be interpreted in light of international law and human rights obligations. Only if sports federations take these obligations seriously, can they maintain their autonomy in decision-making on human rights-related issues without fearing interference by the states to whose jurisdiction they are subject.
II. The Exclusion of Russian and Belarusian Athletes in Light of the Prohibition of Discrimination
It is widely accepted that sports federations have human rights responsibilities.Footnote 9 Sports federations have ‘state-like’Footnote 10 regulatory power and organizational structures. Their human rights responsibility entails integrating and reflecting international human rights standards in the norms they impart, in how they implement and adjudicate on them, and in their corporate governance. In addition, the IOC (similar to FIFAFootnote 11) has made an explicit commitment to measure its actions against human rights standards.Footnote 12
Applicable Human Rights Framework
In September 2022, while the IOC had in place its recommendation to ban Russian and Belarusian athletes, two UN Special Rapporteurs called on the IOC to take a position on the question of possible discrimination.Footnote 13 The common human rights standard in this regard determines that unequal treatment on the grounds of nationality can be justified under certain strict conditions.Footnote 14 According to the settled case-law of the European Court of Human Rights (ECtHR),Footnote 15 there must be a reasonable relationship of proportionality between the legitimate aim pursued by the measure and the means employed. Sports federations that decide on the exclusion must also be able to put forward ‘very weighty reasons’Footnote 16 in order to justify a differential treatment based exclusively on the ground of nationality. Allowing Russian and Belarusian athletes to participate in competitions on an individual, case-by-case-basis, as now proposed by the IOC, would undoubtedly constitute ‘less restrictive means’ in the sense of human rights law.Footnote 17 Excluding Russian and Belarusian athletes – as a collective – is the strictest of the possible measures. However, if there are legitimate aims that can only be pursued by collective exclusion, this can be a proportionate measure that does not constitute prohibited discrimination.Footnote 18
The IOC’s Deficient Reference to Human Rights Obligations
Adopting this common human rights standard would have given the IOC the opportunity to clarify the objectives pursued by the original recommendation to exclude Russian and Belarusian athletes, and to assess which measures are appropriate and necessary to achieve these objectives. However, this did not happen. Instead, the IOC contributed to the current chaos by proclaiming an incorrect human rights standard to the sports federations in order to justify its recent recommendation for readmission.Footnote 19 The IOC referred to a statement made earlier by one of the UN Special Rapporteurs, Alexandra Xanthaki,Footnote 20 and implied that the right not to be treated differently on grounds of nationality was an absolute right, on the level of ius cogens. On this basis, the re-admission of Russian and Belarusian athletes was imperative in order to uphold human rights and the United Nations Guiding Principles on Business and Human Rights. This line of argument reveals a fundamental uncertainty on the part of the IOC in dealing with the applicable human rights standard, as an absolute right not to be discriminated against based on nationality would not admit excluding athletes that do not meet the conditions for participation that the IOC was now proposing. In the meantime, Special Rapporteur Xanthaki readjusted her assessment to the common human rights standard, and carried out a detailed proportionality assessment of the exclusion matter.Footnote 21 As far as can be seen, the IOC has not yet followed this correction. The IOC’s invocation of incorrect human rights imperatives distracts from the real question that the IOC and sports federations currently have to address: are the readmission conditions, recommended by the IOC in January and March 2023, appropriate to pursue legitimate exclusion aims?
Assessment of Aims and Less Restrictive Means
An aim of utmost importance that can justify unequal treatmentFootnote 22 is to protect the human rights of the most vulnerable group of athletes in this context, that is, of Ukrainian athletes. These include their human right to mental health,Footnote 23 the protection of their dignity,Footnote 24 their own right to undisturbed participation in sports as an expression of cultural life, and their right to workFootnote 25 in international competitions. An interference with these rights exists if Ukrainian athletes are not prevented from witnessing the display of war-glorifying symbols at sporting events or if they have to compete directly with athletes who support the aggressor state Russia. A second legitimate aim is to contribute to the ‘restoration of peace’Footnote 26 by preventing that international sporting events and athletes are instrumentalized for the aggressor state’s war propaganda. Sport forms an integral and important part of the state propaganda system in Russia.Footnote 27 The president of the Russian Olympic Committee (ROC), Stanislav Posdnyakov, established a strong connection between sport and war propaganda when saying, after the partial mobilization of the Russian population in September 2022, that it should be an honour for every Russian athlete if he or she could contribute to the success of the war.Footnote 28 This statement implies a war-supporting attitude on the part of all athletes. The ROC and Russia’s war-related activities are closely intertwined. Recently, a German newspaper reported that the ROC actively supported ‘the usurpation of land under murder and torture’Footnote 29 by affiliating sports federations in the occupied Ukrainian territories to Russia.
Controlling the strict neutrality conditions for readmission on a case-by-case-basis, as now proposed by the IOC, undoubtedly constitutes ‘less restrictive means’ compared with the collective exclusion. This would, however, only be equally effective in order to protect Ukrainians if strict observance of the IOC’s neutrality conditions could be controlled. If federations are, on a practical level, incapable of verifying an athlete’s neutrality towards Russia’s war, then readmission under this condition is, in terms of human rights doctrine, not an appropriate measure. When the IOC made its renewed recommendations in January and March 2023, athletic stakeholders had reasonable doubts that the neutrality control would be feasible.Footnote 30 In this vein, the FEI Board justified upholding the exclusion by stating ‘that at this stage neutrality cannot be defined and evaluated in a sufficiently satisfactory way’.Footnote 31 However, other sports federations are attempting to practise neutrality control. In order to have clarity on whether individual, case-by-case assessments of the war-related attitude of athletes are practicable, and in order to develop ‘best practice’ for the ongoing war and future war situations, monitoring this practice will be of paramount importance.
Concerning the second aim, ensuring ‘restoration of peace’ by preventing that sporting events are abused for war propaganda, the effectiveness of the conditions proposed by the IOC is even more questionable. As long as the Russian state instrumentalizes sports as a war propaganda tool (which is a matter of fact, not a legal question), a case-by-case review of the neutral attitude and behaviour of athletes cannot prevent this. If the collective of Russian athletes, regardless of their individual attitudes, is abused for war propaganda, the collective exclusion is the only appropriate means for federations to counteract and to contribute to de-escalation. Even if Russians compete as ‘neutrals’ without external symbols like flags or anthems, they remain ‘symbolic soldiers of their state, designed to glorify the greatness of the Russian world’.Footnote 32 Recent media reporting points to a two-sided picture on the propaganda issue. On the one hand, the reported statement of State Duma Committee on Physical Culture and Sports, Dmitry Svishchev, that ‘athletes should not be involved in politics’, suggests a separation of sport and state affairs. On the other hand, reports that the ROC’s Executive Committee ‘expressed a unified position on the inadmissibility of signing by Russian athletes of any declarations or other statements of a political nature that contradict the legislation of the Russian Federation’,Footnote 33 suggest a different stance, i.e., that Russia openly rejects the IOC’s concept of neutrality.
III. Political Neutrality of International Sports Federations in Light of International Law and Human Rights Obligations
The autonomy of the sports movement and the principle of ‘political neutrality’Footnote 34 are interconnected. Political neutrality supports the autonomy of the sports movement on the premise that the universal acceptance of sport is a result of sport not making judgements.Footnote 35 In this vein, the International Table Tennis Federation justifies its decision to readmit Russian and Belarusian athletes as proposed by the IOC by referring to ‘the potential dialogues sport can create […] in ways that exclusion and division cannot’.Footnote 36 This understanding of neutrality may be honourable when it comes to overcoming political hurdles or breaking down religious, racial or cultural resentments in the relationship between individual athletes connected through sport. However, the current situation is fundamentally different. We are facing the international crime of Russia’s war of aggression. Russian athletes cannot serve as bridges to end the conflict because Russia instrumentalizes them as vehicles of this conflict. When it comes to annexing foreign territory (which must be distinguished from internal conflicts, such as civil wars), there is no meaningful dialogue or political neutrality of sport. ‘To claim a neutral position is also political’.Footnote 37 The neutrality of the IOC and of sports federations must be interpreted in light of the Olympic postulate of peace that guides international sport (Fundamental Principle 2 of Olympism), and in light of the clear international law judgement of the situation. As early as 2 March 2022, the United Nations General Assembly strongly disapproved of the Russian Federation’s aggression against Ukraine, calling it a violation of the prohibition of the use of force under Article 2(4) of the United Nations Charter.Footnote 38 Embracing consensual legal assessments, such as the one made by the General Assembly, does not infringe on the neutrality principle. On the contrary, it points to a way out of chaos for sports federations.
IV. Conclusion
Adjusting the principles of neutrality and autonomy to international law and human rights standards is an imperative for sports federations to maintain autonomy and avoid state interferences. If sports federations disregard their human rights responsibilities, this can activate the state’s duty to protect human rights. In this regard, Nancy Faeser, the German Minister of the Interior responsible for sports affairs, warned that German authorities have the power to make sure that Russian athletes do not compete on German territory by not issuing visas. For Faeser, this would help avoid ‘a slap in the face to Ukrainians athletes’.Footnote 39 The Conference of German Sports Ministers supports this position by stating that ‘the warmonger Russia must not use international sporting events as a stage for its propaganda’.Footnote 40
If the sports federations organizing qualification competitions in Germany in 2023 decide to admit Russian and Belarusian athletes, this will likely be seen as disregarding the federations’ human rights responsibilities. This could lead to an activation of Germany’s duty to protect the rights of Ukrainian athletes and to prevent Russian war propaganda. If the conditions proposed to readmit athletes were considered inadequate to pursue the legitimate aims of exclusion, as explained above, and thus the home state of sports federation were to take action, this would not constitute unfair political interference. Autonomy and neutrality cannot be maintained in defiance of human rights and international law standards, but must be embedded in this normative framework.
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