On 28 March 2023, the International Olympic Committee (IOC) issued new recommendations for international sports federations (IFs) and worldwide sports activities occasion organisers and advocated for re-admitting athletes with a Russian or Belarusian passport to worldwide competitions. In addition to the situations already proposed by the IOC in January 2023 to confess Russian and Belarusian athletes who don’t actively assist the battle solely as “neutral athletes” (with out flags, anthem), the IOC now recommends to additionally exclude athletes who’re contracted to the Russian or Belarusian army or nationwide safety companies from worldwide competitions. Tightening the participation situations is a step in the proper path. Human rights concerns nonetheless argue for sustaining the exclusion. I’ve elaborated this intimately in a legal opinion (for an English abstract 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 evaluation of the IOC deviates from frequent human rights requirements on discrimination. Protecting the human rights of Ukrainian athletes in addition to stopping sporting occasions from being instrumentalised for Russian battle propaganda type official grounds for the unequal remedy primarily based on nationality. However, it’s not too late to recognise the significance of those targets. The IOC’s suggestions don’t anticipate its personal resolution on permitting Russian and Belarusian athletes to take part within the Olympic Games Paris 2024 or the Olympic Winter Games Milano Cortina 2026. Moreover, the totally different IFs are autonomously accountable to take a choice on the readmission of Russian and Belarussian athletes.  

From balancing to absolute prohibition

In direct response to the outbreak of Russia’s war of aggression towards Ukraine, the Executive Board (EB) of the IOC had issued a resolution recommending, inter alia, that IFs and sports activities occasion organisers shouldn’t invite or permit the participation of Russian and Belarusian athletes and officers in worldwide competitions. This was to guard the integrity of world sports activities competitions and for the security of all of the members. Numerous worldwide federations followed this advice. However, in January 2023 the IOC began deliberating pathways to a re-admission. A central cause was that in September 2022 the UN Special Rapporteur within the discipline 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” in regards to the ban of Russian and Belarusian athletes and officers from worldwide competitions, primarily based solely on their nationality and noticed “serious issues of non-discrimination”.

In an Annex of their letter, the Special Rapporteurs defined the usual of human rights overview relevant for discrimination points. 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 normal of overview corresponds to the frequent normal as established, for instance, by the UN Human Rights Committee in its General Comment 18. Since the unequal remedy is predicated on the nationality of the athletes, in keeping with the ECtHR within the case of Andrejeva v. Latvia, there should be “very weighty reasons” to be able to justify such a distinction of remedy.

In a nutshell, this normal of overview implies that IOC and IFs need to reveal robust official goals pursued by the exclusion, weigh these towards the conflicting pursuits of Russian and Belarusian athletes and discover a proportionate steadiness. The re-admission underneath situations constitutes much less restrictive means, which should nonetheless be equally effectively suited to pursue these goals. In choices on Article 14 ECHR, the ECtHR has recognised official functions that are significantly related for justifying the exclusion, such because the safety 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 normal of overview appeared to have modified utterly. In defining the human rights framework utilized, the IOC referred to a statement the UN Special Rapporteur within the discipline of cultural rights, Alexandra Xanthaki, had made in a session name with athletes held on Friday, 24 March 2023. Here, she stated 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 place implies that the proper to not be handled in a different way on grounds of nationality is an absolute proper. The IOC argues, consistent with Special Rapporteur Xanthaki, that the re-admission of Russian and Belarusian athletes is an crucial consequence that the IOC and IFs should draw to be able to uphold human rights.

Common normal of human rights overview for the exclusion challenge

From the frequent normal of human rights overview as summarized above and as initially outlined by the Special Rapporteurs, this isn’t right. Indeed, the prohibition of racial discrimination is a part of the physique of what may be referred to as the “higher rules of public international law”, because it was elaborated within the context of Apartheid within the Fourth report on peremptory norms of common worldwide regulation (jus cogens) by Special Rapporteur Dire Tladi. However, even this doesn’t change the truth that the proper to not be handled in a different way on the idea of nationality will not be absolute. The Committee on the Elimination of Racial Discrimination, which is the competent UN physique to determine on issues of racial discrimination, said in General recommendation XXX in addition to in General recommendation No. 32 that there may be an “objective and reasonable justification” for a differential remedy primarily based on nationality. This normal of overview was even invoked by Russia itself within the case of A.H. and Others v. Russia, determined by the ECtHR in 2017. Russia justified a nationwide regulation on adoption, which excluded US American residents as a result of their nationality, by referring to goal and cheap grounds of this unequal remedy. There are not any explanation why this frequent human rights normal ought to not be legitimate.

It follows that the IOC and IFs need to take severely the related official human rights goals, which justify the exclusion of Russian and Belarussian athletes and form the query of their re-admission. As I’ve elaborated elsewhere, throughout an ongoing battle of aggression, an necessary official goal is to guard the human rights of probably the most susceptible group of athletes, that’s, the human rights of Ukrainian athletes. This considerations their human proper to psychological well being, the safety of their dignity, in addition to their very own proper to undisturbed participation in sports activities as an expression of cultural life, and their proper to work in worldwide competitions with Russian and Belarussian participation. The president of the Russian National Olympic Committee, Stanislav Posdnyakov, was quoted saying that it might be an honour for each Russian athlete if she or he might contribute to the success of the battle. This exhibits a detailed connection between sports activities and battle propaganda. To uphold the Olympic postulate of peace that guides worldwide sports activities (Fundamental Principle 2 of Olympism), the second official goal is to stop worldwide sporting occasions from being (ab-)used for the aim of Russian battle propaganda.

These goals are the related yardstick to evaluate the proposed situations for a re-admission of Russian and Belarussian athletes. The IOC’s method doesn’t handle the problematic challenge of battle propaganda. How can the IOC and IFs forestall that the victories of impartial athletes of Russian nationality are abused for propaganda and contribute to the escalation of the battle? How do Ukrainian athletes really feel in regards to the proposed idea of neutrality? How did they feel in sports activities occasions through which Russian athletes have already participated? Does the confrontation with Russian athletes have a “chilling effect” on the train of their very own human rights? There are many extra open questions in regards to the practicability of the IOC’s idea of neutrality. As lengthy because the IOC and IFs can’t present passable solutions to those urgent questions, the whole lot argues for upholding the exclusion.