On war, international sports and human rights standards

On 28 March 2023, the International Olympic Committee (IOC) issued new recommendations for international sports federations (IFs) and international sports event organisers and advocated for re-admitting athletes with a Russian or Belarusian passport to international competitions. In addition to the conditions already proposed by the IOC in January 2023 to admit Russian and Belarusian athletes who do not actively support the war only as “neutral athletes” (without flags, anthem), the IOC now recommends to also exclude athletes who are contracted to the Russian or Belarusian military or national security agencies from international competitions. Tightening the participation conditions is a step in the right direction. Human rights considerations nevertheless argue for maintaining the exclusion. I have elaborated this in detail in a legal opinion (for an English summary see here) for the German Olympic Sports Confederation, which continues to oppose the participation of Russian and Belarussian athletes. What is decisive is that the human rights assessment of the IOC deviates from common human rights standards on discrimination. Protecting the human rights of Ukrainian athletes as well as preventing sporting events from being instrumentalised for Russian war propaganda form legitimate grounds for the unequal treatment based on nationality. However, it is not too late to recognise the importance of these goals. The IOC’s recommendations do not anticipate its own decision on allowing Russian and Belarusian athletes to participate in the Olympic Games Paris 2024 or the Olympic Winter Games Milano Cortina 2026. Moreover, the different IFs are autonomously responsible to take a decision on the readmission of Russian and Belarussian athletes.  

From balancing to absolute prohibition

In direct reaction to the outbreak of Russia’s war of aggression against Ukraine, the Executive Board (EB) of the IOC had issued a resolution recommending, inter alia, that IFs and sports event organisers should not invite or allow the participation of Russian and Belarusian athletes and officials in international competitions. This was to protect the integrity of global sports competitions and for the safety of all the participants. A large number of international federations followed this recommendation. However, in January 2023 the IOC started deliberating pathways to a re-admission. A central reason was that in September 2022 the UN Special Rapporteur in the field of Cultural Rights, Alexandra Xanthaki, and the then UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, E. Tendayi Achiume, had addressed a letter to IOC President Thomas Bach. The Special Rapporteurs expressed their “serious concern” about the ban of Russian and Belarusian athletes and officials from international competitions, based solely on their nationality and saw “serious issues of non-discrimination”.

In an Annex of their letter, the Special Rapporteurs explained the standard of human rights review applicable for discrimination issues. They wrote that:

“(d)ifferential treatment based on prohibited grounds will be considered as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with human rights standards and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects.”

This standard of review corresponds to the common standard as established, for example, by the UN Human Rights Committee in its General Comment 18. Since the unequal treatment is based on the nationality of the athletes, according to the ECtHR in the case of Andrejeva v. Latvia, there must be “very weighty reasons” in order to justify such a difference of treatment.

In a nutshell, this standard of review means that IOC and IFs have to demonstrate strong legitimate aims pursued by the exclusion, weigh these against the conflicting interests of Russian and Belarusian athletes and find a proportionate balance. The re-admission under conditions constitutes less restrictive means, which must however be equally well suited to pursue these aims. In decisions on Article 14 ECHR, the ECtHR has recognised legitimate purposes which are particularly relevant for justifying the exclusion, such as the protection of the human rights of others (Khamtokhu and Aksenchik v. Russia [GC]) or the restoration of peace (Sejdić and Finci v. Bosnia and Herzegovina [GC]).

When the IOC communicated its new recommendations on 28 March 2023, this standard of review seemed to have changed completely. In defining the human rights framework applied, the IOC referred to a statement the UN Special Rapporteur in the field of cultural rights, Alexandra Xanthaki, had made in a consultation call with athletes held on Friday, 24 March 2023. Here, she said that:

“(d)irect discrimination is not a grey area of international law. It’s a very clear area of international law – it should not exist. It is something that binds all states and all individuals. It is actually so important that prohibition from direct racial discrimination is ‘[a] peremptory norm of international law’. We put it up there together with prohibition of genocide, with prohibition of slavery, prohibition of torture, etc. For this reason, what I have said to the IOC, and what I’m very open to say to states, is that the blanket prohibition of Russian and Belarusian athletes and artists cannot continue. It is a flagrant violation of human rights.”

This position implies that the right not to be treated differently on grounds of nationality is an absolute right. The IOC argues, in line with Special Rapporteur Xanthaki, that the re-admission of Russian and Belarusian athletes is an imperative consequence that the IOC and IFs must draw in order to uphold human rights.

Common standard of human rights review for the exclusion issue

From the common standard of human rights review as summarized above and as initially defined by the Special Rapporteurs, this is not correct. Indeed, the prohibition of racial discrimination is part of the body of what can be called the “higher rules of public international law”, as it was elaborated in the context of Apartheid in the Fourth report on peremptory norms of general international law (jus cogens) by Special Rapporteur Dire Tladi. However, even this does not change the fact that the right not to be treated differently on the basis of nationality is not absolute. The Committee on the Elimination of Racial Discrimination, which is the competent UN body to decide on matters of racial discrimination, stated in General recommendation XXX as well as in General recommendation No. 32 that there can be an “objective and reasonable justification” for a differential treatment based on nationality. This standard of review was even invoked by Russia itself in the case of A.H. and Others v. Russia, decided by the ECtHR in 2017. Russia justified a national law on adoption, which excluded US American citizens due to their nationality, by referring to objective and reasonable grounds of this unequal treatment. There are no reasons why this common human rights standard should no longer be valid.

It follows that the IOC and IFs have to take seriously the relevant legitimate human rights aims, which justify the exclusion of Russian and Belarussian athletes and shape the question of their re-admission. As I have elaborated elsewhere, during an ongoing war of aggression, an important legitimate aim is to protect the human rights of the most vulnerable group of athletes, that is, the human rights of Ukrainian athletes. This concerns their human right to mental health, the protection of their dignity, as well as their own right to undisturbed participation in sports as an expression of cultural life, and their right to work in international competitions with Russian and Belarussian participation. The president of the Russian National Olympic Committee, Stanislav Posdnyakov, was quoted saying that it would be an honour for every Russian athlete if he or she could contribute to the success of the war. This shows a close connection between sports and war propaganda. To uphold the Olympic postulate of peace that guides international sports (Fundamental Principle 2 of Olympism), the second legitimate aim is to prevent international sporting events from being (ab-)used for the purpose of Russian war propaganda.

These aims are the relevant yardstick to assess the proposed conditions for a re-admission of Russian and Belarussian athletes. The IOC’s approach does not address the problematic issue of war propaganda. How can the IOC and IFs prevent that the victories of neutral athletes of Russian nationality are abused for propaganda and contribute to the escalation of the war? How do Ukrainian athletes feel about the proposed concept of neutrality? How did they feel in sports events in which Russian athletes have already participated? Does the confrontation with Russian athletes have a “chilling effect” on the exercise of their own human rights? There are many more open questions about the practicability of the IOC’s concept of neutrality. As long as the IOC and IFs cannot provide satisfactory answers to these pressing questions, everything argues for upholding the exclusion.