Larisa I. Zakharova

International sports law

Textbook for Bachelor Students

Edited by
Doctor of Science (Law), Professor,
Honoured Scholar of the Russian Federation
Kamil A. Bekyashev

ebooks@prospekt.org

Информация о книге

UDC 796:34

BBC 75.4

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Author:

Larisa I. Zakharova, PhD (Law), Associate Professor of the International Law Department of the Kutafin Moscow State Law University, member of the FIFA Appeal Committee.

Reviewer:

Victor N. Sidorov, PhD (Law), Associate Professor of the International Law Department of the Kutafin Moscow State Law University.

Editor:

Kamil A. Bekyashev, Doctor of Science (Law), Professor of the International Law Department of the Kutafin Moscow State Law University, Honoured Scholar of the Russian Federation.

The Textbook was prepared in accordance with the Federal State Educational Standard for Higher Education as applied to specialisation 40.03.01 “Jurisprudence” (Bachelor (degree) qualification) and the syllabus of the academic discipline “International Sports Law”, approved by the International Law Department of the Kutafin Moscow State Law University in January 2017.

The Textbook consists of 17 chapters. They correspond to the themes of the syllabus of the academic discipline. In its General part, the history, object, subjects, sources, special principles of international sports law, the process of regulation of international sports relations at the universal level within the framework of the United Nations, its specialised agencies and programs, at the regional level within the Council of Europe and the European Union, at the bilateral level are considered. The Author makes a corresponding distinction with the object, subjects, sources, special principles of lex sportiva, a set of corporate norms elaborated by the International Olympic Committee, the International Paralympic Committee, international and national sports federations. Special attention is paid to the study of ways of resolving sports disputes through arbitration and appeal proceedings in the Court of Arbitration for Sport (CAS), by means of judicial proceedings in the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

The Special Part of the Textbook identifies problem areas that require additional efforts to implement international legal and corporate regulations: the use of doping in sport, violence and hooligan behaviour of spectators and fans, environmental protection when organising international sports competitions, economic crimes and discrimination in international sports, protection of property rights with regard to television and radio broadcasts of international sports competitions, the use of Olympic symbols, countering threats to a healthy lifestyle.

International instruments and acts of the Russian legislation are as of May 2018.

The Textbook will be of interest for Bachelor students of law, lecturers of higher education institutions, practicing lawyers, staff members of organizations of the Olympic and Paralympic movements, as well as for all those whose academic interests and practical activities are connected with international law, sports law and lex sportivа.

UDC 796:34

BBC 75.4

© Захарова Л. И., 2018

© ООО «Проспект», 2018

Introduction

The Textbook was prepared in accordance with the Federal State Educational Standard for Higher Education as applied to specialisation 40.03.01 “Jurisprudence” (Bachelor (degree) qualification) and the syllabus of the academic discipline “International Sports Law”. The materials of the Textbook together with the developed syllabus of the academic discipline form a complex designed for students who have chosen “Lawyer in the field of sports, advertising and show business” as their specialisation profile.

The Chapters of the Textbook correspond to the themes of the syllabus of the academic discipline. In its General part, the object, history, sources, subjects, special principles of international sports law, the process of regulation of international sports relations at the universal level within the framework of the United Nations, its specialized agencies (by the example of UNESCO, WIPO, WHO) and programs (with regard to UNEP), at the regional level within the Council of Europe and the European Union, at the bilateral level are considered. The Author of the Textbook makes a corresponding distinction with the object, sources, subjects, special principles of lex sportiva that forms a set of corporate norms worked out by the International Olympic Committee, the International Paralympic Committee, International Sports Federations and enshrined in their Charters, Statutes, Regulations, Programmes. Much attention is paid to the structure and main activities of the Olympic and Paralympic movement, to the study of ways of resolving sports disputes through arbitration and appeal proceedings in the Court of Arbitration for Sport (CAS), by means of judicial proceedings in the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU).

The Special Part of the Textbook identifies problem areas that require additional efforts to implement international legal and corporate regulations: the use of doping in sport, violence and hooligan behaviour of spectators and fans, environmental protection when organising international sports competitions, economic crimes and discrimination in international sports, protection of property rights with regard to television and radio broadcasts of international sports competitions, the use of Olympic symbols, countering threats to a healthy lifestyle. At the same time, the Author characterizes the standing of the Russian Federation concerning the relevant problems and indicates some possible ways to resolve them.

In areas where public interests (ensuring international peace and security, protecting public health and morals) prevail, States and international governmental organizations that coordinate interstate cooperation in developing unified approaches to regulating physical culture and sports and their promotion in the public are actively involved in regulating processes at the international and national levels, countering doping, corruption, discrimination, misuse of the Olympic symbol, as well as tobacco smoking and unhealthy eating habits. The emerging rules can be called rules of law. Their totality at the national level forms sports law. International legal norms regulating sports activities at the universal, regional, bilateral level enshrined mainly in international treaties and decisions of international intergovernmental organizations form international sports law. It is not yet possible to regard it as an independent branch of international law.

The sport of high achievements is the sphere in which the role of the main regulator belongs to the International Olympic Committee and the International Sports Federations for the Olympic sports. In “the sport of the highest achievements” the aspirations of athletes and national teams are closely intertwined with the commercial concerns of the IOC, the National Olympic Committees, the cities hosting the Olympic Games and transnational corporations acting as sponsors or rights holders for the television broadcast or radio broadcast of the Olympic Games. In the world of higher sporting achievements, the main normative documents are not international treaties and resolutions of international governmental organizations, but the Olympic Charter, Statutes and Regulations of the organizations of the Olympic movement. They contain not legal, but corporate norms, to which the Olympic community is committed.

The study of international sports law is impossible without resort to lex sportiva – they complement and enrich each other. When carrying out practical activities related to the legal regulation of sports activities, a lawyer must have knowledge necessary both in the field of international sports law and lex sportiva.

The Author of this Edition wants to thank Kamil A.Bekyashev, Honoured Scholar of the Russian Federation, Professor of the International Law Department of the Kutafin Moscow State Law University, for his comments and proposals as an editor and her colleague Natalia M. Golovina for her kind cooperation in the process of translating the Textbook into English.

Furthermore, the Author thanks the staff of the Prospekt Publishing House for the opportunity to present this Textbook to the attention of Bachelor students – the students of the first stage of higher education, as well as undergraduates, postgraduates, professors of law schools, practitioners whose work is related to international law and lex sportiva.

Abbreviations

CAS – Court of Arbitration for Sport in Lausanne (Switzerland)

CJEU – Court of Justice of the European Union (Luxembourg)

ICRC – International Committee of the Red Cross

ECHR – Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (European Convention on Human Rights)

ECtHR – European Court of Human Rights in Strasbourg (France)

ECOSOC – Economic and Social Council of the United Nations ЕU – European Union

FAO – Food and Agriculture Organization

FIDEPS – UNESCO International Fund for the Development of Physical Education and Sport

FIFA – Fédération Internationale de Football Association

FUR – Football Union of Russia

ICSD – International Committee of Sports for the Deaf

IF – international sports federation

IGO – international governmental organizations

ILO – International Labour Organization

IMO – International Maritime Organization

IOC – International Olympic Committee

IPC – International Paralympic Committee

ITU – International Telecommunication Union

NGO – nongovernmental organizations

NOC – national Olympic committee

ОCOG – organizing committee for the Olympic Games

RCDS – Russian Committee of Deaf Sports

ROC – Russian Olympic Committee

RPC – Russian Paralympic Committee

RUSADA – Russian Anti-Doping Agency

UEFA – Union of European Football Associations

UN – United Nations

UNAIDS – Joint United Nations Programme on HIV/AIDS

UNCITRAL – United Nations Commission on International Trade Law

UNDP – United Nations Development Programme

UNEP – United Nations Environment Programme

UNESCO – United Nations Education, Science and Culture Organization

UNHCR – United Nations Commissioner for Refugees

UNICEF – United Nations International Children’s Emergency Fund

UNIDROIT – in French, Institut international pour l'unification du droit privé

UNODC – United Nations Office on Drugs and Crime

UPU – Universal Postal Union

WADA – World Anti-Doping Agency

WHO –World Health Organization

WIPO – World Intellectual Property Organization

WMO – World Meteorological Organization

WTO – World Tourism Organization

General part

Chapter 1. Object of regulation in international sports law and lex sportivа. formation of the olympic and paralympic movement

In this Chapter the following issues are considered:

1.1. Notion and the object of the legal regulation in international sports law.

1.2. Place of the norms regulating international sports relations in the legal system. The notion of lex sportivа.

1.3. Formation of the modern Olympic and Paralympic movement. Lex olympica.

1.1. Notion and the Object of the Legal Regulation in International Sports Law

Two major directions can be seen in the international cooperation in the sphere of sports. First, it is the public subjects of law that enter into cooperation: with states in a bilateral format and states within the framework of international governmental organizations that touch upon certain aspects of sports activities in their work (for instance, fighting doping in sports became one of the activities of the United Nations on Education, Science and Culture (UNESCO)). The international cooperation in sports is carried out at the universal and regional levels. These activities result in international treaties and resolutions of international governmental organizations that are “soft law” acts.

Second, international sports are regulated at the non-governmental level within the framework of the Olympic movement thanks to the efforts of the International Olympic Committee and international sports federations. Rules that they produce (for example, rules of the Olympic Charter in force as from 15 September 2017, regulations of sports federations, etc.) are observed by all participants of the Olympic movement, however, scholars differ in their opinions on the nature of these rules.

The assortment of opinions is quite vast: they differ from the proposal to view them as corporate norms (self-regulation norms),¹ or lex sportiva,² to regarding rules elaborated by the IOC as international customs.³

Academics and practitioners have recently started using the term international sports law and they mean a complex entity that comprises various norms regulating public relations in the sphere of sports that go beyond the boundaries of a state. More widely, international sports law connotes a system of interconnected norms and rules regulating public relations that arise in international sports activities.⁴ It is assumed that it comprises norms of public international law as well as corporate norms of international organizations of the Olympic movement.

However, one cannot but notice that the latter category of norms–corporate normsrepresents an example of normative regulators different from legal regulators (along with moral, political, technical norms as well as customs, traditions, business usages).⁵This is the reason why it seems more correct to use such a term as international sports quasi-law in respect of corporate norms regulating the sphere of sports. However, S.V.Alekseev, who suggested this term, points put to the expertise of foreign countries in the field of regulating legal problems of international sports activities and teaching sports law,⁶ where the terms “sports law” and “international sports law” are widely used.⁷

The specificity of legal relations in sports is that they lack homogeneity. First, they arise both in the public and private spheres. Private, or horizontal relations arise when sports and health goods and services are purchased, and these sale and purchase can take place either within one and the same state or have a transboundary character. Public, or vertical relations are formed between public subjects of sports activities, for instance, at the national level this relationship takes place between a national body with certification powers and an enterprise that produces sports products and equipment.

Second, legal relationships in the sphere of sports can be limited by the state boundaries or, vice versa, have a transboundary or interstate character. At the national level national legislation regulates a vast variety of labour relations in sports (regulating the labour and legal status of athletes, coaches, judges and other experts in the field of physical training and sports, protection of health and social protection of participants of the sports movement, activities of sports trade unions, resolving labour disputes in the sphere of sports) as well as public relations that arise in the field of physical training of schoolchildren, students and the military, mass sports, professional sports, sports recreation and rehabilitation.⁸ The normative regulation of transfers when athletes leave a sports club in their country for a foreign sports club represents a vivid example of transboundary corporate regulation. One cannot view these relations as international (interstate) since “there exists no specific legal regulation of athletes’ transfers from one professional club to another – these relations are governed by corporate norms».⁹ In some cases the states regulates the transfer relations by means of labour or more rarely civil law, however, “in most countries just lex sportivа has a priority over the norms established by the state” – these cases are not numerous and deal primarily with the transfer of football players.¹⁰ International rules of fighting the use of doping addressed to the states-parties to the UNESCO Convention against Doping in Sport of 19 October 2005 are the result of the regulation carried out at the interstate level.

What constitutes the object of the international legal regulation in the sphere of sports? As the general theory of law stipulates, in any branch of law it is homogeneous public relations that arise in a specific field of public life that form the object of the legal regulation. Numerous international relations in the field of sports and other related fields represent the object of the legal regulation in the sports sphere. S.V. Alekseev singles out more than a dozen of such spheres:

1) the participation of international governmental and non-governmental organization in the international sports movement;

2) the participation of states, national sports associations, athletes and other subjects of the national law in international sports relations;

4) organising and holding international sports competitions including the Olympic Games (at the national level this can be seen in preparing athletes for the participation in such competitions, organizing mass sports, providing the sports centers with the equipment, supporting the national sports industry;

5) transboundary labour relations and other relations in the sphere of sports business including professional sports (international movement of labour resources – international transfers, leasing, international activities of sports agents);

6) international financial support and foreign investments in the sphere of sports;

8) international commercial activities in the sphere of sports (establishing joint ventures that produce goods for sports, physical training and tourism,

international sales);

9) international protection of the intellectual property rights in the sphere of sports– rights to trade marks, sports and Olympic symbols, rights to TV and radio broadcasting sports events;

10) international tax relations in the sphere of sports;

11) traumatism, sports medicine and insurance in international sports;

12) international anti-doping policy and fight against doping in international sports;

13) international cooperation in the fight against crime in the sphere of sports;

14) the resolution of international sports disputes,¹¹ including resolving certain moral and ethical issues of the international cooperation in the sphere of sports (prohibition of any discrimination on the grounds of gender, nationality, race, introduction of the Fair Play principles – holding sports competitions in accordance with the principles of dignity and equity).

Our primary interest lies with the international relations of a public character. First, these are relations between the subjects of public law such as states (state bodies) and international governmental organizations. Second, in the context of studying international sports law, it is not the legal regulation of sports and physical training at the national level, but the international aspect of regulating sports activities that seems most interesting. It includes the cooperation between states and international governmental organizations and bilateral cooperation of states in the sphere of sports.

NB! It is the international public relations in the sphere of sports that form the object of the international legal regulation here. These relations arise between the subjects of public law and are regulated by means of harmonizing the parties’ wills.

1.2. Place of the Norms Regulating International Sports Relations in the Legal System. The Notion of Lex Sportivа

Some researchers believe that the normative complex regulating of international relations in the sphere of sports can be singled out as a separate entity. Thus, S.V. Alekseev calls international sports law «one of the most important structures of contemporary international law» and points to its complex character, which presupposes, in his opinion, the need to combine norms of public international law, international private law as well as domestic law. «The very object of legal regulation – international sports activities – serves as an integrating basis».¹² Elaborating on the thesis of how international sports law can include norms of domestic law, S.V. Alekseev says it is aimed at regulating sports relations of international character, and they can be public or private in their nature. The relations between private persons can be indeed regulated by means of international treaties and national legislation.¹³

In our opinion, the term ”international sports law” can legitimately be used, but it is not correct to utilize this term in respect of all the complex of various norms regulating sports relations that go beyond the boundaries of a state. One can accept the idea of incorporating neither the norms of domestic law into it, since they belong to a legal order that differs in principle from public international law, nor the norms of international private law since “contrary to its name, it makes part of domestic law” even though it is closely connected with foreign law and public international law.¹⁴ “International sports law” should be understood as a set of international legal norms that regulate the cooperation of states in the field of sports. However, it has not turned into a branch of public international law like such traditional branches as, for instance, law of international treaties, law of external relations or international maritime law, etc.

In the Soviet, and later on, in the Russian academic literature scholars pointed to a number of system-forming criteria that predetermine the existence of a branch in the system of international law or the lack thereof.¹⁵

Traditionally, the simultaneous existence of the following conditions make it possible to single out a new branch of law: first, the existence of a separate group of homogeneous public relations – the object of the legal regulation; second, the realisation of a particular public need and significance of these public relations; third, normative material of a proper quality and quantity; forth, a specific method of the legal regulation.¹⁶

As far as international sports law is concerned, one should take into account the undisputable existence of the object of the legal regulation – these are international (primarily interstate) relations in the sphere of sports and in related spheres. The public need for their regulation does not produce any doubts, either. However, it is not possible to claim that the process of international legal regulation in this field can be characterized as complete and systematic. Those aspects of sports life are subject to regulating at the interstate level where public interests prevail (providing peace and cooperation, protection of public health and morals, etc.). Quite often post factum states accept as international legal norms the rules of conduct that have been formed and already apply within the framework of the Olympic movement headed by the International Olympic Committee. Since the moment of its formation in 1894 the IOC and the system of the Olympic movement organisations have aspired to become autonomous and self-sustained. Establishing in 1983 the international Court of Arbitration for Sport in Lausanne strengthened this state of affairs: the subjects of the Olympic movement can resolve their disputes without recourse to general jurisdiction courts of national states.

Analyzing such a criterion of a branch of law as the existence of normative material of a proper quality and quantity, some international legal scholars voice an opinion according to which a branch of international law is established only when “states reach an agreement to elaborate a vast universal international legal act that contains basic principles in this field”.¹⁷ Thus, in the law of international treaties there are such codifying acts as the Vienna Convention on the Law of Treaties of 23 May 1969 and the Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations of 21 May 1986, in the law of external relations – the Vienna Convention on Diplomatic Relations of 18 April 1961 and the Vienna Convention on Consular Relations of 24 April 1963, in international maritime law – the United Nations Convention on the Law of the Sea of 10 December 1982. The codification process is undoubtedly important, but one should not overestimate the role of a single act in forming new branches of international law. Nowadays there exist a number of branches of international law for which there are no codifying acts yet. Nonetheless, they are already regarded as quite established branches of public international law. These are international labour law, international agricultural law, international energy law, international transportation law, international law of intellectual property, international atomic law.¹⁸ One cannot but notice the absence of a single universal international legal act in the sphere of sports that would contain basic principles of regulating international sports activities. Simultaneously there is a number of international legal acts that regulate some of their aspects, for example, the UN International Convention against Apartheid in Sports of 10 December 1985, the UNESCO Convention against Doping in Sport of 19 October 2005, Nairobi Treaty on the Protection of the Olympic Symbol of 26 September 1981, some provisions of the Convention on the Rights of the Child of 20 November 1989, Convention on the Rights of Persons with Disabilities of 13 December 2006, Declaration on the Rights of Indigenous Peoples of 13 September 2007. Besides, one should also mention regional documents adopted within the framework of the Council of Europe such as Anti-Doping Convention of 16 November 1989. and its Additional Protocol of 12 September 2002, European Convention on Spectator Violence and Misbehaviour at Sports Events and in particular at Football Matches of 19 August 1985, Convention on the Manipulation of Sports Competition of 19 September 2014. The Olympic Charter contains a set of fundamental principles and rules guiding the Olympic movement, but this document is not a source of international law.

There is no international governmental organization whose competence would include coordinating interstate cooperation in the sports sphere – there is no need for it, to put it simply. The United Nations Office for Sport for Development and Peace headed by the UN Secretary General carries out representative functions and provides for a necessary forum for joint discussions of the United Nations and the Olympic movement representatives. Some aspects of cooperation in the sports sphere are regulated by the UN specialised agencies such as UNESCO, WHO, WIPO and others. It is the International Olympic Committee who leads the Olympic movement quite successfully.

The complementarity is a distinctive feature of the method of the legal regulation in the sports sphere. The international non-governmental organizations of the Olympic movement take the lead in elaborating proper rules of conduct in sports. They become generally recognized at least among those who demonstrate the intention to participate in them. Those who do not take part in them cannot and usually do not act in contravention of these rules. With a certain delay states recognize the legal force of these rules.¹⁹

NB! Norms established by the international legal acts mentioned above do not constitute a separate branch of public international law. Collectively, they can be designated as a set of norms regulating international cooperation in the sports sphere.²⁰ Corporate norms elaborated by the international non-governmental organizations of the Olympic movement play a considerable role in its regulation. However, they represent normative regulators different from legal ones. In respect of corporate norms of the Olympic movement such terms as international sports quasi-law or lex sportiva seem to be acceptable.

1.3. The Formation of the Modern Olympic and the Paralympic Movement. The Formation of Lex Olympica

One of the main causes of sports games in the ancient times was the need for trained warriors, the demonstration of superiority by the military and aristocratic nobility in the field of physical training. In ancient Greek society the intertribal struggle for the conquest of the best lands and receipt of the spoils of war was conducted, thus, good physical training was highly appreciated. Since ancient times Greeks held agones, sports games to celebrate religious or political festivities. Almost every significant Greek polis had its periodic games, closely related to the national mythology. With the development of slavery relations the interaction between tribes, and later between the poleis became more intense. Tribal names eventually gave way to a common name of Hellenes. By this time (by the end of the VII century BC-beginning of the VI century BC) common beliefs in the immortal Olympian gods had been formed.²¹ According to the famous Spanish philosopher and sociologist J. Ortega y Gasset who put forward the sports theory on the origin of the state, and a number of Russian scholars who agree with his conclusions, these factors – nationwide physical games and common religious beliefs, contributed to the emergence of a unified Greek state: The Olympic games united the Greek poleis, reduced the animosity between them; their regular celebration led to the creation of larger and more durable structures than was required for the initiations (empowerments) of a primitive society during which physical exercises and games were also used; later, these structures evolved into state bodies.²²

In the VIII century BC four agones in ancient Greece turned into true national festivals: the Olympic games, or Olympics (since 776 BC), the Pythian games (since 586 BC), the Isthmian games (since 582 BC), and the Nemean games (since 573 BC). The Olympic and Pythian games were celebrated every four years, the Isthmian and Nemean games – every two years. Participation in them was strictly forbidden to slaves and barbarians (non-Hellenes). At the Olympic Games the presence of women was also forbidden.

At the Olympics athletes competed only in sports; during the Pythian, Isthmian and Nemean games the competitions patronized by Muses, companions of Apollo, were also held, for instance, in music (e.g. playing the cithara or flute), recitation (e.g., in reading dithyrambs), drama. In honour of the winners (hieronimi) hymns were composed, their names were engraved on stone stelae in their hometowns; they enjoyed honours and privileges throughout their life. Agones were celebrated in accordance with the programme the implementation of which was monitored by Agonothetes (Hellanodikai in Olympia): they supervised the training of athletes and their compliance with sporting rules, resolved disputes, awarded prizes – a wreath of olive leaves at the Olympic games called Kotin, a laurel wreath at the Pythian games, a pine wreath at the Isthmian games, a celery wreath at the Nemean games, and various valuable items and cash.²³

Xenophanes (570–480 BC) in his elegy describes the honours to the winners of the Olympic games in the following way:

The one who in the quick run

Or in the pentathlon battle

Was able to achieve a victory –

In the grove of Zeus,

On the plain of Olympus,

In a duel of wrestlers,

Or in fist fights,

or in the terrible battle

Called the pankration,

He will appear

All the more glorious

In front of the city:

He will get a place of honour

Among the opponents,

Whatever he eats

Will be paid by the Treasury,

He will receive

A priceless prize from the state,

If his horse wins,

He will get all this to the full.²⁴

The Games became a bright part of the ancient Greek culture. The conquests of Alexander the Great contributed to their dissemination in the countries of Minor Asia, Syria and Egypt. Gymnastics and other exercises performed to the music were most popular, they included running, jumping, ball games, and military exercises such as chariot racing, boxing and other types of fighting, discus throwing and javelin throwing, swimming, horse riding, rowing, archery, fencing. Starting from the IV century BC, agonistic contests in physical strength and agility became prevalent during sports games, and they forced out gymnastics. These competitions were widespread and were timed to celebrate pagan feasts or accessions of kings and emperors to the throne. Over time the greatest popularity was gained by the Olympic pentathlon, which comprised running one or more stadia (one stadium was equal to 192 m), long jumps with dumbbells in hands, javelin throwing, discus throwing, and wrestling. The venue was associated with the rites of Zeus – the chief god of the Greek Pantheon and his wife Hera – the goddess of fertility. The temple of Zeus and the sanctuary of Hera were located in Olympia. The Olympic games were actually a part of pagan cult rites in their honour.²⁵ On the first day of the games a sacrifice to the gods was made, and the athletes delivered an oath, and sporting events took place in the next four days.²⁶

In ancient times, the Olympics had a huge political significance. In the year of the Olympic games thousands of heralds spread throughout the cities of ancient Greece the joyful news, “Come to Olympia! Sacred peace is declared, the roads are safe! Let the strongest win!”. During the games all hostilities ceased, and the sacred peace was established. In this period, Olympia was declared a neutralized territory: At the venue of the competition, the warriors laid down their arms, the freedom of movement and personal integrity were guaranteed to athletes and spectators in Olympia and on the way to it, even if they crossed the territory of poleis that were in a state of war with their home city.²⁷ Major statesmen sought to take part in the Olympics. Pythagoras and Plato in their youth were fond of wrestling and repeatedly defeated their rivals.

In ancient Rome, public contests in physical strength, especially particularly brutal gladiator fights and chariot races, retained their popularity till the final triumph of Christianity. Polytheism in the form it existed among the ancient Greeks, gave way to monotheism. The main value in Christianity was a quest for the spiritual, asceticism, confession, rather than the physical, carnal, exciting passions, as in the ancient culture. In 394, Emperor Theodosius the Great forbade the Olympic games as pagan by the edict of Milan. In 405, Emperor Honorius banned gladiatorial fights. It should be noted, however, that Christianity after it had become the state religion, did not forbid all kinds of physical exercises, only those which clearly bore the imprint of pagan cults and could lead to murder or serious injury, exerted a corrupting influence on morals and ethics – first of all, gladiator fights, chariot races, fist fighting, and pankration (wrestling).²⁸ In all, from 776 BC to 395 AD, when the city of Olympia was destroyed by two strong earthquakes, 293 Olympic games were held.

In the physical culture of medieval Europe an important factor along with religious prohibitions and restrictions was the stratification structure of society – the division into elite and common people, which was not typical of the democratic poleis of ancient Greece.²⁹ Thus, the Olympic competitions, as they were known to the ancient world, were not held over the next fifteen centuries, although the development of physical culture and sports continued in other forms in knight tournaments of the Middle Ages, in the period of the European Renaissance, the French revolution of 1789, events of the XVIII–XIX centuries in Europe.³⁰

The XIX century was a period of a renewed interest in the mass sports movement. It could be explained by the desire of urban dwellers to satisfy their natural need for movement, to compensate the physical deformation caused by monotonous labour operations and sedentary lifestyle. Starting from 1870 (the Paris commune), efforts were made to organize the development of physical culture within the European labour movement. In Russia among the associations officially permitted by the authorities the “Ekateringofsky circle of sports fans” existed long enough at the Putilov plant. The reason for the elimination of the circle was the participation of its leaders in organizing strikes. In the years after the defeat of the revolution of 1905 the liberal – bourgeois societies and factories directorates in the Western fashion tried to create associations free from politics at their enterprises to divert the workers from the political organization of their ranks. The first such an association was the Orekhovo-Zuyevo “Workers’ Sports Club of the Morozov manufacturers” that was founded in 1908. Thus, in the conditions of capitalist urbanization processes of the development of physical education and recreation were completely different from similar phenomena in the period preceding the epoch of machine industry.³¹

At the same time, in the late XIX-early XX century the first international sports associations began to emerge. Some of them were established much earlier than the International Olympic Committee (IOC), on the basis of individual national sports unions and associations for specific sports (e.g., for gymnastics – in 1881, for rowing and skating in 1892). This could be explained by the awakening of a mass interest for sport and holding competitions in specific sports between athletes from various European states. The idea of reviving the Olympic games was implemented in the modern times by Pierre de Coubertin, a French statesman, educator and enlightener. On his initiative in the summer of 1894 in Paris the International Athletic Congress was convened to define amateur sports and to start preparations for conducting the International Olympic Games. At the Paris Congress the revival of the Olympic Games was officially proclaimed and the IOC was established to guide the preparatory work, representatives of 14 States took part in its work. From the very beginning of the International Olympic movement, efforts were made to preserve the sport free from politics. In 1882 the Triple Alliance was formed between Germany, Austria-Hungary, and Italy; in 1891, the Franco-Russian agreement was signed and the UK joined it, thus the Entente was established. The first World War was approaching. The international campaign to revive the Olympic games under the patronage of France caused understandable aversion on the part of Germany. However, German delegates participated in the Paris Congress of 1894 and subsequently in the activities of the IOC that was established there.

On 6–14 April 1896 the first revived Olympic games were held in Athens. The games of the first Olympic games of modern times were opened by the king of Greece George I on the Marble stadium in Athens in the presence of 80 thousand people. Only men participated in them: 241 athletes from 14 countries represented at the Paris Congress in 1894. The first Games included nine sports: classical Greco-Roman wrestling, cycling, gymnastics, athletics, tennis, swimming, shooting, fencing, marathon. The second Olympic games were organized in 1900 in Paris. The Christian Church supported conducting the Games.³²

Numerous rules developed from the late nineteenth century to the present by the international non-governmental organizations of the Olympic movement under the leadership of the IOC, can be called collectively lex olympica – they form the core of lex sportivа. Activities of Pierre de Coubertin for his tenure as the IOC President continued until 1925, when he was succeeded by Henri de Baillet-Latour (1926–1941). This period was characterized by a complete failure of the principle of “sport above politics”. The line on the anti-Soviet blockade was taken. By the time an independent sports movement alternative to the bourgeois Olympic movement had taken shape – the International Association of Red Sports and Gymnastics Associations, or the Red Sport International (Sportintern). This movement was under the leadership of the Communists. In parallel with this there was the Socialist Workers’ Sport International. In accordance with the decision of the III Congress of the Comintern on physical culture adopted 12 July 12, 1921 the Red Sports International undertook efforts to restore the unity of the workers’ sports movement. Both Internationals sought to conduct international Olympic games for workers. The first international Olympics for workers, including winter and summer games, took place in 1925 in Germany, the second international Olympics for workers – in 1931 in Vienna (Soviet Russia did not participate in any of them). Between the two Internationals there existed ideological differences that made it difficult to hold the Olympics for workers jointly. In the next decade there was a split between them. Reconciliation became possible only in the face of the Nazi danger, when two Internationals reached an agreement to end the fragmented organizational activities under the sign of anti-fascist unity. As a result of their joint efforts, the III International Olympics for workers were organized in 1937 in Antwerp.³³

The Soviet Union joined the international Olympic movement under the leadership of the IOC only in the 1950s. In 1951 The USSR raised the question of its membership in the IOC, thus setting the legal basis for participation in the Olympic movement. Soviet athletes first participated in the Olympic Games in 1952. All the period from that moment until the end of the cold war was understandably characterized by intense ideological opposition.³⁴

Paralympic sport originated in the late XIX century. In 1888, in Berlin there were the first sport clubs for the deaf.³⁵ However, it turned into a well – organized movement that gained an international dimension over time only in the second half of the XX century thanks to the work of Ludwig Guttmann, a German doctor who fled from Nazism to Great Britain in 1936. There he continued his medical practice at the hospital in Stoke Mandeville. To improve physical, psychological and social rehabilitation of people with spinal cord injuries L. Guttmann proposed to use sports. This approach was popular in the treatment of veterans of the Second world war. Later in Stoke Mandeville the Centre of rehabilitation of patients with spinal injuries was set up and it was headed by sir L. Guttmann. Sports became an integral part of the complex treatment.

On 29 July 1948, the opening day of the Olympic games in London L. Guttman organized the Stoke Mandeville games in archery for ex-servicemen, 16 paralysed men and women. In 1952, they were joined by war veterans from the Netherlands and Stoke-Mandeville games became international. Later games were held annually and the number of participants increased steadily. In 1959, L. Guttman prepared and published in the “Book of the Stoke-Mandeville games for the paralyzed” the first regulations of the sports competitions for persons with disabilities.

In 1960, more than 400 athletes from 23 countries took part in the Ninth annual international Stoke-Mandeville games that were held in a few weeks after the Olympic games in Rome. In fact, they became the first Paralympic summer games. In 1976 Örnsköldvik (Sweden) hosted the first Paralympic winter games. Such a high interest in the Paralympic games and their obvious connection with the Olympic movement led to the decision that they should be held every fourth year in the countries hosting the Olympics. Since the Paralympic summer games in Seoul (South Korea) in 1988 and the Paralympic winter games in Tignes-Albertville (France) in 1992 they have been arranged in the same places as the Olympic games.

International sports organizations began to be established to coordinate the sports movement for people with various disabilities: in 1960 in Rome the Committee of the International Stoke – Mandeville games was established, later renamed the International Federation of the Stoke-Mandeville games (IFSMG) and then the International Federation of Sport in Wheelchairs in Stoke- Mandeville (IFSWSM); in 1964 the International Sports Federation for the Disabled (ISOD) was created including athletes with amputations, in 2004, these federations united to form the International Wheelchairs and Amputee Sport Federation (IWAS). In the period from the late 1970s to the mid-1980s three more specialized sports organizations were established: in 1978, the International Association of Physical Education and Sport for Individuals with Cerebral Palsy (CPISRA), in 1981, the International Blind Sports Federation (IBSA), in 1986, the International Sports Federation for Persons with Intellectual Disabilities (INAS-FID).

Since 1982 the international organizations of sport for the disabled started to cooperate more actively and coordinate their actions, they formed the International Coordinating Committee for the Disabled in the World (ICC). In 1986 they were joined by the International Committee of Sports for the Deaf (ISCD) that had functioned successfully since 1924.³⁶ The ICC led the Paralympic movement until 1992. In order to increase national representation and to create a sport movement, largely focused on sports and not on disability, the international Paralympic Committee (IPC) was founded on 22 September 1989 in Düsseldorf (Germany). The six federations mentioned above acted as its founders – the IFSMG, CPISRA, IBSA, ISOD, ISCD, INAS-FID (later the games for the deaf and for people with intellectual disabilities began to be held separately, outside the framework of the Paralympic movement³⁷). In addition, 42 national Paralympic committees and national organisations of sport for the disabled were represented. The first Constitution of the IPC was adopted and the first President, Robert Steadward (Canada), was elected.³⁸ From 1989 to 1997, the headquarters of the organization were situated in Bruges (Belgium), after which it moved to Bonn (Germany).

Control Questions and Tasks

1. What are the distinctive features of international sports law? Describe the object, method and the subjects.

2. What is the place of international sports law in the system of international law?

3. What is the theory of lex sportiva? Make a survey of the views of the representatives of Western and Russian doctrine on this subject.

References Bibliography

1. Alekseev S. V. International Sports Law/ed. by P.V. Krasheninnikov. Moscow: Zakon i pravo Pbl., 2008.

2. State Management in the Field of Sports: a textbook for Master students / Ponkin I. V., Redkina A. I., Soloviev A. A., Shevchenko O. A.; ed. by I. V. Ponkin, D. I. Rogachev. Moscow: Buki Vedi Pbl., 2017.

3. Zakharova L. I. “O Sport, You are Peace!”. The Role of International Law, Lex Sportiva and Lex Olympica in the Regulation of International Sports Relations. Moscow, 2013; 2nd ed, revised and updated, Saarbrücken: LAP Lambert Academic Publishing, 2015.

4. Ponkina A.I. Public Administration and Autonomous Institutionalization in Sports / Commission on Sports Law of the Association of Lawyers of Russia; National Association of Sports Lawyers of the Russian Federation. Moscow, 2012.

5. Solovyov A. A. Russian and Foreign Experience of Systematization of Legislation on Sport / Commission on Sports Law of the Association of Lawyers of Russia. Moscow, 2011.

6. Nafziger J. International Sports Law. 2nd ed. Ardsley, New York: Transnational Publishers, Inc., 2004.

7. Panagiotopoulos D. Sports Law. Lex Sportiva and Lex Olympica. Theory and Praxis. Athens-Komotini, 2011.

Chapter 2. Subjects of International Sports Law

In this Сhapter the following questions are considered:

2.1. Subjects of international sports law: concept, types.

2.2. The international personality of states.

2.3. The international personality of international governmental organizations.

2.1. Subjects of International Sports Law: Concept, Types

At the present stage regulation of various aspects of sports activities requires the involvement of different actors: states, international governmental organizations (IGOs) and international non-governmental organisations (NGOs) of the Olympic movement.

The subjects of international relations in the field of sports-relations regulated by the norms of international law, are states and international governmental organizations. International treaties and non-binding acts of international governmental organizations (“soft” law) regulate the relations between them. The International Olympic Committee possesses certain elements of the international legal personality. The IOC is the supreme authority of the Olympic movement acting on the global non-governmental level (Rule 1 of the Olympic Charter). Its special status is recognized by the Swiss Federal Council and the United Nations, with many specialized agencies and programmes of which it cooperates quite actively. This allows to include the IOC in the number of the subjects of international relations in the field of sports and to determine the existence of some features of the emerging international legal personality sui generis (for more information on the activities of the IOC and international non-governmental organizations of the Olympic movement, see Chapter 6).

In most cases the IOC and the International Paralympic Committee (IPC), national Olympic and Paralympic committees, national and international sports federations for Olympic and Paralympic sports, the organising committees of the cities hosting the Olympic and Paralympic games and athletes enter into corporate relations governed by the regulations of the international non-governmental organizations in the sports field rather than into international legal relations. These are the subjects of lex sportiva. They live and operate within a normative order that is autonomous and independent from the states. In case of disputes between them, they are motivated not to have recourse to state courts, but to resolve sports disputes autonomously through a flexible and expedite procedure in a specialized arbitration court within the Olympic system (CAS). In the world of higher sports achievements the main regulatory documents are not international treaties and resolutions of international governmental organizations, but the Olympic Charter adopted by the IOC, IPC Rules, statutes and regulations of the international sports federations. They contain corporate, not legal standards, and the Olympic and Paralympic communities are committed to comply with them.

There is no separate intergovernmental organization, fully engaged in the coordination of international cooperation in the field of sports. However, there is a number of international governmental organizations involved in the coordination of specific areas of international cooperation in the field of physical culture and amateur sports at the universal and regional level (for more details on the activities of the governmental organizations in the field of sports, see chapters 5 and 8).

A significant part of sports relations is regulated within the framework of the Olympic movement at the global non-governmental level. They should be distinguished as a separate group of corporate relations in sport. General theory of international law specifies the main difference between international governmental and non-governmental organizations such as the IOC, the International Committee of the Red Cross, Greenpeace, Amnesty International, etc. It is the way they are created. Intergovernmental organizations are established as a result of treaties between states that define and limit their mandates. International non-governmental organizations are established not by the delegation of authority from the States, but as a consequence of the interaction between individuals who share the ideas and values that NGOs promote. They are registered as legal entities according to the legislation of the state in whose territory they function.

In other words, an international intergovernmental organization is a voluntary association of states, while international non-governmental organization is an association of individuals. They join the NGO and support it in its activities to achieve the goals it proclaims. It is these goals together with the organizational structure of the non-governmental organization that provide the power that it has, and it is of a moral rather than of a legal nature.

S. Charnovitz, a renowned American international lawyer, gives the following definition of international nongovernmental organizations. These are groups of individuals or social organizations, freely created by private initiative, who are involved in cross-border relations and do not aim at gaining profit.³⁹ S. Charnovitz points to the fact that the use of the term “non-governmental organizations” is due to the norm of Art. 71 of the UN Charter, which states that the Economic and Social Council (ECOSOC) may make suitable arrangements for consultations with non-governmental organizations interested in matters within its competence, however, the Charter does not reveal the contents of the term “non-governmental organizations”.⁴⁰

The legal status of the World Anti-Doping Agency (WADA), an organization that currently leads the international fight against doping in sport, is of particular interest. WADA occupies an intermediate position between international governmental and non-governmental organizations. Both representatives of the Olympic movement⁴¹ and state governments take part in its activities, and among the 38 members of the WADA Executive Board Europe is represented, inter alia, by such intergovernmental European organizations as the Council of Europe and the European Union.⁴² WADA should be considered as a unique hybrid organization, whose management and financing are carried out jointly by the Olympic movement and governments.

2.2. The International Personality of States

States are the principal subjects of international law. It is presumed in international law that states have general legal personality. They are able to participate in all international relations.

International legal features of the state are formulated in the Montevideo Convention on Rights and Duties of States of 1933:

a permanent population,

a defined territory,

government,

capacity to enter into relations with the other States.

The Russian theory of State and law of the interprets the fourth characteristic more broadly as the possession of state sovereignty, i.e. the supreme rule on its territory and independence in the international arena. States, acting as subjects of international legal relations arising in the field of sports, enter into treaties governing various aspects of sporting life. Treaties may be multilateral (at the universal level under the UN or its specialized agencies, e.g. the international Convention against apartheid in sports of 10 December 1985, the UNESCO Convention against doping in sport of 19 October 2005; at the regional level, for example, the Council of Europe Convention against doping of 16 November 1989) or bilateral (between the states concerned, for example, the Treaty on Friendship and Cooperation between the Russian Federation and the Republic of South Africa of 5 September 2006,⁴³ which have some provisions on cooperation in sports; Agreement between the Government of the Russian Federation and the Government of the Argentine Republic on Cultural Cooperation of 25 November 1997,⁴⁴ the Agreement between the Government of the Russian Federation and the Government of the United Kingdom of Great Britain and Northern Ireland on Cooperation in the Fields of Education, Science and Culture of 15 February 1994).⁴⁵

States participate in the work of international governmental organizations that coordinate interstate cooperation at the universal or regional level in the development of common approaches in the regulation of physical culture and sports, promote them at the national level, combating doping, smoking, unhealthy eating habits.

In those areas where public interests such as peace and cooperation, public health and morality prevail, States and IGOs are actively involved in the regulation of the processes: The UN and many of its specialised agencies, programmes, funds, regional organizations – the European Union, the Council of Europe, the African Union, the Commonwealth of Independent States, etc. IGOs coordinate the cooperation of States in developing common approaches for the regulation of physical culture and sports. The resulting norms can legitimately be called legal. Their combination at the national level forms sports law, the term that has become accepted by science and practice. International legal norms on the regulation of sports activities at the universal and regional level form a set of rules for international cooperation in the field of sports. It is not yet possible to consider it as a separate branch of international law.

2.3. The International Personality of International Governmental Organizations

A notable contribution in the field of the international regulation of cooperation in sports is made by international governmental organizations. They play a significant role in the regulation of various aspects of sports activities at the universal and regional levels. The doctrine of international law views intergovernmental organizations as “associations of States established under international law and on the basis of an international treaty for the cooperation in political, economic, cultural, scientific, technical, legal and other areas, with the organizational structure including necessary bodies, the rights and obligations derived from the rights and duties of States, and an autonomous will, the volume of which is determined by the will of the member States”.⁴⁶

IGO meets the following criteria:

it is established in accordance with international law,

it is established on the basis of an international treaty,

it coordinates the cooperation of states in a particular area of activity,

it has an organizational structure in the form of principal and subsidiary organs,

the organization has a set of rights and duties,

the organization has an autonomous will, other than the will of the member States.⁴⁷

There is no separate intergovernmental organization, fully engaged in the coordination of international cooperation in the field of sports. Since its revival on the initiative of the Baron Pierre de Coubertin in 1894 the Olympic movement has been striving for autonomy and independence from States and the depoliticization of sports cooperation: “The project of Coubertin was directly aimed at building a parallel society in free space, not affected by State influence, and companies, which obeyed its own rules and mobilized forces to protect itself by its own means”.⁴⁸ The creation of the International Olympic Committee at the Paris Congress in 1894 and the establishment of the Court of Arbitration for Sport (CAS) in Lausanne in 1983 contributed to achieving these goals. The subjects of the Olympic movement do not recourse to State courts, they resolve sports disputes on their own.⁴⁹

However, a number of international governmental organizations are involved in the coordination of specific areas of the international cooperation in the field of physical culture and amateur sports at the universal and regional level. The interstate cooperation in the field of sports at the universal level is carried out within the framework of the United Nations, its specialised agencies and organs. For example, the Office of Sport for Development and Peace acts under the leadership of the UN Deputy Secretary General; in the framework of the UNESCO, a specialised agency of the UN, the intergovernmental Committee for Physical Education and Sport is established. There can be interaction between international governmental and non-governmental structures, for instance, the process of cooperation between the United Nations Environment Programme (UNEP) and the IOC, which resulted in adopting the Agenda 21 of the Olympic movement, dedicated to environmental aspects of sporting activities. At the regional level, a significant contribution to the international legal regulation of relations in the field of sports is made by the Council of Europe and the European Union.

Control Questions and Tasks

1. Who are the subjects of international sports law? Enumerate and give examples.

2. Who are the participants of corporate relations in the field of sport (lex sportiva)?

3. What are the differences between international governmental and non-governmental organizations? Give examples of successful interaction between the IGOs and NGOs in the field of sports.

References Bibliography

1. Alekseev S. V. International Sports Law. Ed. by P.V. Krasheninnikov. Moscow: Zakon i pravo Pbl., 2008.

2. Alekseev S. V. Legal Bases of Professional Activities in Sports: a textbook. Moscow: Sovetskiy sport Pbl., 2013.

3. Zakharova L. I. “O Sport, You are Peace!”. The Role of International Law, Lex Sportiva and Lex Olympica in the Regulation of International Sports Relations. Moscow: GI “Tsentralnaya tipografiya”, 2013; 2nd ed., revised and updated. Saarbrücken: LAP Lambert Academic Publishing, 2015.

4. Public International Law: a textbook / Anufrieva L. P., Bekyashev K. A., Moiseev E. G., UstinovV. V. and others. Ed. by K.A. Bekyashev. 5th ed., revised and updated. Moscow: Prospekt, 2011.

5. Charnovitz S. Nongovernmental Organizations and International Law. American Journal of International Law. 2006, Vol. 100. No. 2. P. 348–372.

Normative Acts

1. The Montevideo Convention on the Rights and Duties of States of 26 December 1933.

2. The Charter of the United Nations of 26 June 1945.

3. The Olympic Charter (in force as from 15 September 2017).

4. Constitution of the International Paralympic Committee, 2011 (as amended in March 2015).

Chapter 3. Sources of International Sports Law

In this Сhapter the following questions are considered:

3.1. Sources of international sports law: concept and types.

3.2. International Treaties as a Source of International Sports Law.

3.3. International Legal Customs as a Source of International Sports Law.

3.4. Resolutions of International Governmental Organizations as a Source of International Sports Law.

3.5. Unilateral Acts of States as a Source of International Sports Law.

3.6. Decisions of International Non-Governmental Organizations of the Olympic Movement as a Source of lex sportiva.

3.7. Jurisprudence of International Courts and Arbitral Tribunals as a Subsidiary Means for the Determination of Rules of Law and lex sportivа.

3.1. Sources of International Sports Law: Concept and Types

In accordance with the general theory of law a source of law is a way of establishing legal commands. Art. 38 of the Statute of the International Court of Justice enumerates the sources of international law by which the Court is guided in resolving disputes referred to it. In a broader sense, this is a list of sources of international law. Art. 38 enumerates international conventions, whether general or particular; international custom; general principles of law; judicial decisions and the teachings of the most qualified publicists in public law of the various nations.

The international treaty, international custom and general principles of law are traditionally considered to be the main sources of international law. Resolutions of international governmental organizations that have proliferated in the 20th century in connection with the active growth of the number of IGOs and intensity of their activities, are considered secondary (derivative) ) sources of international law.⁵⁰ Judicial decisions and the teachings of the most qualified specialists are named in the Statute of the International Court of Justice as subsidiary means for the determination of legal norms.

Among the sources of the international legal regulation in the field of sports the most significant role belongs to international treaties concluded by States and intergovernmental organizations, international legal customs, resolutions of IGOs regulating international sport activities.

International treaties can be concluded between States or between States and IGOs, or between the IGOs. Art. 2 of the Vienna Convention on the Law of Treaties of 23 May 1969 provides the following legal definition of an international treaty: it is an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Art. 2 of the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 21 March 1986, extends the same requirements for agreements between one or more States and one or more international organizations as well as for agreements between international organizations.

In accordance with Art. 38–1(b) of the Statute of the International Court of Justice of 26 June 1945 international legal custom is evidence of a general practice accepted as law. I.Brownlie, a renowned British international lawyer, identifies four characteristics of international legal custom: the continuation of the practice; uniformity and consistency of the practice; universality of the practice; belief in the legitimacy and necessity of the action (in Latin, opinio juris).⁵¹

Contemporary international law regards resolutions of international governmental organizations as its derivative sources. The decisions taken by international governmental organizations may contain normative elements.⁵² For this type of sources international law established the term “soft law”.

Unilateral acts of States are not named as a source of international law in Art. 38 of the Statute of the International Court of Justice. These are unilateral acts of States that gave rise to legal consequences: a protest, a statement of recognition of States or governments, a waiver notification (for example, in the case of the naval blockade during a war)⁵³. It is difficult to argue that they are common in international sports law, but some examples still exist.

Decisions of international non-governmental organizations of the Olympic movement, their statutes, regulations, manuals, etc. are sources of lex sportivа.

Decisions of international judicial institutions and arbitral tribunals help to clarify the content of both legal and corporate norms in the field of sports and can be considered as a subsidiary means for identifying them.

3.2. International Treaties as a Source of International Sports Law

In regulating international sport activities there are a number of treaties – universal, regional and bilateral.

One can point to the following examples of universal treaties in the field of sports: the Nairobi Treaty on the Protection of the Olympic Symbol of 26 September 1981, the UN Convention against Apartheid in Sports of 10 December 1985, the UNESCO Convention against Doping in Sport of 19 October 2005, the UN Convention against Corruption of 31 October 2003, providing a framework for the international cooperation between States to prevent bribery of national and foreign public officials, officials of public international organizations, including acts of bribery that may take place in the preparation and holding of international sports events.

The trend to regard the right to practice sport as a human right goes back to such a treaty adopted at the universal level as the International Covenant on Economic, Social and Cultural Rights of 16 December 1966. It can be interpreted either as an integral part of the right of everyone to enjoy the highest attainable standard of physical and mental health (Art. 12 of the Covenant) or as an important component of the right to participate actively in the cultural life of the community (Art. 15 of the Covenant).

There is a close relationship between the right to sport and the right to health.⁵⁴ At the global level the ECOSOC Human Rights Commission established the post of the UN Special Rapporteur on the right of everyone to the highest attainable standard of physical and mental health back in 2002, since then this mandate has repeatedly been extended. Since 2007 the Special Rapporteur on the right to the highest attainable standard of physical and mental health has been appointed by the Human Rights Council, the successor to the Human Rights Commission that is now abolished.⁵⁵ In the annual Report for the year 2016 the Special Rapporteur on the right to health pays special attention to the interplay between sport, healthy lifestyles and the right to health (Part II). “In order to combat the growing threat of non-communicable diseases equitably and to realize the highest attainable standard of mental and physical health across populations, all people must be enabled to adopt healthy lifestyles” (para. 4 of the 2016 Report). The Special Rapporteur recognizes participation in sport as a healthy lifestyle factor and shares the point of view popular in many UN institutions, according to which participation in sport and physical activity is a stand-alone right (para. 5–7 of the 2016 Report)⁵⁶.

The approach, indicating a close relationship between the right to sport and the right to health, is reflected in a number of non-binding instruments adopted by the Council of Europe (for more detail, see para. 8.2 of Chapter 8).⁵⁷, ⁵⁸

The second approach that emphasizes the close connection between the right to sport and the right to participate actively in the cultural life of the community, was demonstrated in 2009 by the Committee on Economic, Social and Cultural Rights, the international controlling body set up by the International Covenant on Economic, Social and Cultural Rights; in para. 13 of its General comment No. 21 it referred to sports and games as an integral part of the culture.⁵⁹

A number of treaties of a universal character contains a prohibition of discrimination in international sport on various grounds. For example, Art. 10(g) of the Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979 obliges States parties to take all necessary measures to provide women with equal opportunities to participate actively in sports and physical education, Art. 13(C) of the Convention guarantees the equal right of men and women to participate in events related to recreation, sports and cultural life. In accordance with Art. 5 of the Convention on the Rights of Persons with Disabilities of 13 December 2006, States are obliged to create conditions for the disabled to better participate in general sporting activities at all levels, as well as for the organization of sports and leisure facilities specifically for persons with disabilities; the same article stipulates the obligation of States to ensure equal opportunities for the most vulnerable – children with disabilities, for their participation in games and sports events.

Conventions of the Council of Europe can serve as examples of regional treaties in the field of sport. The Council of Europe Convention against Doping of 16 November 1989 and its Additional Protocol of 12 September 2002 became the first attempt to establish international legal prohibition of doping in sport. The purpose of the European Convention for the Prevention of Violence and Misbehaviour at Sports Events and in Particular at Football Matches of 19 August 1985, was to prevent acts of violence of sports fans and to establish the obligation of States parties to prosecute the owners of sports clubs and the instigators of the riots. Three conventions of the Council of Europe are aimed at coordinating the efforts of States to combat corruption. The rules of the following instruments can be applicable to corrupt practices in sports: the Criminal Law Convention on Corruption of 27 January 1999 and the Civil Law Convention on Corruption of 4 November 1999. On 18 September 2014 a new Convention was signed, the Council of Europe Convention on the Manipulation of Sports Competitions, and it is aimed entirely at fighting corruption in the field of sport.

The Russian Federation has many bilateral agreements in the field of sports. The development of cooperation in the field of sports, the promotion of ties between athletes, coaches, sports organizations and teams of States parties to the treaty can be addressed in one or more articles in bilateral treaties of friendship and cooperation, as, for example, in the Treaty on Friendship and Cooperation between the Russian Federation and the Republic of Moldova of 19 November 2001,⁶⁰ the Treaty on Friendship and Cooperation between the Russian Federation and the Republic of South Africa of 5 September 2006.⁶¹

Most often provisions for the development of sports cooperation between the two contracting States get enshrined in intergovernmental agreements on cultural and scientific cooperation. For example, one can point to the Agreement between the Government of the Russian Federation and the Government of the French Republic of 6 February 1992,⁶² the Agreement between the Government of the Russian Federation and the Government of the United Kingdom of Great Britain and Northern Ireland on Cooperation in the Fields of Education, Science and Culture of February 15, 1994.⁶³ Such agreements are concluded by the Russian Federation with the countries located in different regions of the globe, including football powers of the Latin American continent, for example, the Agreement between the Government of the Russian Federation and the Government of the Argentine Republic on Cultural Cooperation of 25 November 1997,⁶⁴ the Agreement between the Government of the Russian Federation and the Government of the Federative Republic of Brazil on Cooperation in the Field of Culture and Education of 21 November 1997.⁶⁵

3.3. International Legal Customs as a Source of International Sports Law

In ancient Greece the tradition to cease hostilities during the Olympic games was born.⁶⁶ “Sacred truce” (in Greek, ekecheiria, literally “removing weapons”) was established for two months, and although it did not lead automatically to the establishment of peace between the warring parties, it provided security for tens of thousands of athletes and spectators who came to Olympia for the Games. The official “sacred missions” were accredited at the venue of the competitions. The rule was observed by all Greek city-states and represented an “international legal norm of a great power”.⁶⁷

This noble tradition is revived now. In Resolution 48/11 of 25 October 1993 the UN General Assembly urged member States “to observe the Olympic truce during the period beginning seven days prior to the opening and ending seven days after the closing of each Olympic games, in accordance with the call of the International Olympic Committee” (para. 2).⁶⁸

One of the recent examples was represented by the Resolution of the UN General Assembly 68/9 “Peaceful and Better World through Sport and the Olympic ideal” of 6 November 2013, in which the UN General Assembly urged member States to observe, individually and collectively, the “Olympic truce” during the period beginning seven days prior to the beginning of the XXII Olympic winter games in Sochi (7–23 February 2014) and ending seven days after the closing of the XI Paralympic winter games in Sochi (7–16 March 2014).⁶⁹

Some highly respected authors, for example, J. Nafziger, consider the rules produced by the International Olympic Committee, primarily the rules laid down in the Olympic Charter, as an example of customary international law codified in the sports field.⁷⁰ In this case, one can see all four traditional criteria that let a rule of conduct be qualified as international custom: uniformity of practice, its universality, duration of use and a belief in its necessity and legitimacy (opinio juris).⁷¹ However, the point of view, according to which, within the meaning of Art. 38 of the Statute of the International Court of Justice, international legal custom is defined as “proof of the universal practice accepted by States» seems more compelling. In our view, the existence of a customary rule should be recognized by States.

However, a number of Western scholars question the exclusive right of States to form customary law. In 1958, the British international lawyer W. Jenks wrote that, although traditionally “international custom is to be deduced from the practice of States”, due to the increased role of international institutions “the practice of international organizations has become an important element in the development of international law, including customary law”.⁷² The American scientist J. Post quite categorically states, “Contrary to false myth perpetrated in the early twentieth century, the subjective element of customary international law (i.e., opinio juris or the expectations that something is legally appropriate or required) is to be gathered from patterns of generally shared legal expectation among humankind, not merely among official State elites”.⁷³ This opinion is shared by his compatriot I. Gunning. She believes that international non-governmental organizations can participate in the creation of such components of customary law as a uniform practice and opinio juris.⁷⁴ Non-governmental organizations can actually facilitate the evolution of opinio juris through research on the state practice in a particular issue and also through the reactions of states caused by the undertaken research and rules promoted by them. In some cases, NGOs can even contribute to the development of new treaty provisions; it is one of the trends that are transforming international law (a general term for the overall process was proposed by R. Higgins who calls it “the Reformation in international law”).⁷⁵

3.4. Resolutions of International Governmental Organizations as a Source of International Sports Law

The question of the nature of “soft law” has attracted the attention of Soviet international lawyers since the 1960,⁷⁶ but the doctrine has not developed a simple answer to it yet, in modern scientific literature there are differing views on this issue.⁷⁷ I.I. Lukashuk argued in his works that “soft” norms are an organic part of the international regulatory system. He pointed out that the formulation of “soft law” included two different phenomena: first, legal norms that do not create specific rights and duties (“soft” international law, in his own words),⁷⁸ second, non-legal international norms (international “soft law”),⁷⁹ “the totality of various recommendations, appeals, the obligations contained in international documents that are not legally binding, in resolutions of international organizations, in concluding acts of international conferences, joint declarations of states and governments, etc”.⁸⁰ However, in his later works I. I. Lukashuk specified that under the “soft law” of the second type he meant the documents elaborated by subjects of public law, for example, decisions of the conferences of the anti-Hitler coalition countries, documents of the Organization for Security and Cooperation in Europe. Both of them contain moral and political norms rather than legal norms.⁸¹

The International Charter of Physical Education and Sport, adopted at the 20th session of the UNESCO General Conference on 21 November 1978 can serve as an example of “soft” international law (“soft law” of the first type). In Art. 1 of the Charter access to physical education and sport is a fundamental right of every human being. In the period from 1993 till present time the UN General Assembly has adopted more than two dozen resolutions in which the sport is seen as a means to promote education, health, development and peace, stressed the indissoluble link between sport and cultural education, the positive effects of sports on the formation of personality.⁸² One of the recent examples of such documents is the Resolution of the UN General Assembly 70/4 “Building a Peaceful and Better World through Sport and the Olympic Ideal” adopted on 26 October 2015.⁸³

The Copenhagen Declaration on Anti-Doping in Sport, which was adopted at the World Conference on Doping in Sport on March 3, 2003, is an example of the second type of “soft law”. It is not legally binding, rather it contains a political commitment of States to implement the World Anti-Doping Code adopted by WADA at the same conference in Copenhagen.

Lately there has been a tendency, according to which Western scholars began to interpret the content of international “soft law” more broadly than I.I. Lukashuk in respect of “soft law” of the second type, in his terminology. For instance, A. di Robilant says that soft law is increasingly based on highly organised hybrid private-public decision-making processes. For example, “the ‘new lex mercatoria’ blurs the distinction between private and public as well as between spontaneous and organized processes, developing in the interstices of the relations between intergovernmental agencies and organizations (UNCITRAL, UNIDROIT, IMO) and private, highly organized, bodies. Soft governance mechanisms entail the interpenetration of various levels of management and include highly structured interaction between a multitude of actors from member States to representatives of the public and civil society.”⁸⁴ D.Shelton shares this opinion, “Moving furthest away from traditional international law, some soft law is negotiated and adopted exclusively by non-state actors, establishing a type of private governance. Private soft law has same advantages as State-generated norms of cost reduction and speed in reaching agreement, reduced sovereignty costs, opportunities for compromise, but also adds possibility of muting or delaying States’ opposition.”⁸⁵ Rules of lex sportivа fall under the category of “soft law”. At the same time, however, it should be recognized that law can be created not only by States, which is a highly debateable statement in the Russian legal doctrine.

The specificity of soft law norms is that, on the one hand, they do not contain legally binding rules of behaviour, on the other hand, they can become a guide for action for two or more States that agree to act in accordance with a specific recommendation (e.g., by concluding a local agreement with the respective rights and obligations of the parties) or for member States of an international organization that developed them. “Soft law” norms are designed to perform a regulatory function, and there are a number of ways by which they regulate, gradually turning into “hard law”.

T. N. Neshataeva pointed to the following functions of “soft law” norms in the international norm-setting process.⁸⁶ First, they can indicate the State’s intention to enter into a subsequent international agreement in a certain area, and recommendation rules turn into conventional rules over time. Thus, the adoption by States of the Copenhagen Declaration against Doping in Sport in 2003 led to the development of the UNESCO Convention against Doping in Sport in 2005 and obliged States to fight doping in sport systematically.

Second, recommendations contained in the decisions of international organizations may reflect established international law rule of a customary nature or promote its formation. For example, in 1993, the UN General Assembly revived an international custom on the observance of the Olympic truce (ekecheiria) known in antiquity, now such a decision is made by the General Assembly resolution, which is usually adopted a few months before the Olympic games.

Third, regulations and recommendation contained in the resolutions of international organizations can contribute to interpreting international legal norms, specifying their application in a particular sphere of international legal regulation. For example, the European Parliament resolution “Women and Sport” of 5 June 2003, aimed at ensuring equal opportunities of men and women in amateur and professional sports, in health, in representation in senior positions in the sports field, has a binding force for member States of the European Union. It arises from the compulsory principle of respect for human rights and fundamental freedoms and the prohibition of gender discrimination enshrined in the Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979, reference to which is present in the preamble of this resolution.⁸⁷

Among other things, “soft law” norms can be of a model character and subsequently gain a foothold in local treaties and in domestic legislation.⁸⁸

3.5. Unilateral Acts of States as a Source of International Sports Law

Unilateral acts of States can also be a source of international law in sports. A.Cassese viewed as a unilateral act of the State an act, entailing legal consequences, such as a protest, a statement on the recognition of States or governments, a waiver notification. Perhaps the situation of the unilateral acceptance of the legality of a certain situation or behaviour is most commonly encountered in inter-state relations. This makes it impossible for a State to review its position in the specified subject, i.e. creates an estoppel.⁸⁹

A good example of this kind is the decision of the Swiss Federal Council adopted in 1981, to grant an official status of an international non-governmental organization to the International Olympic Committee. In February 1983, an agreement that defined their relationship was signed. This agreement was revised in 2000, and Switzerland recognized in it elements of the international legal personality in the actual legal status of the IOC.

The situation of a promise stands out from all other unilateral acts of States. It is the only act, which gives rise to international legal obligations in respect of one or a few States. The promise is a unilateral declaration in which a State undertakes to behave in a certain way. The occurrence of a counter obligation on the part of other States is not expected. As an example A. Cassese points to the obligation of cessation of atmospheric nuclear tests, which was undertaken by France in 1974.⁹⁰ After the International Court of Justice had issued provisional measures in the resolution of two disputes in the two cases concerning nuclear tests (Australia v. France and New Zealand v. France), France announced the termination of nuclear testing in the atmosphere. When rendering a decision on 20 December 1974 the International Court of Justice ruled that France had assumed an international obligation, as it expressed its intention to consider this statement legally binding: it was stated publicly by the French President in July 1974, and reiterated by the French Defence Minister in October 1974.⁹¹

Providing guarantees by governments of States hosting international sporting events can also be considered as a unilateral act of a state. During the meeting that took place in August 2010, the Prime Minister Vladimir Putin assured the head of the Inspection Commission of Fédération Internationale de Football Association (FIFA) H. Mayne-Nicholls that in the case of electing Russia the venue of the World Football Championship to be held in 2018 the Russian government would be willing to grant a number of guarantees. It is known that another ten countries along with Russia claimed the right to host the World Cup. Currently, the Russian Government guarantees include visa-free travel for the participants and guests of the World Football Championship and their unimpeded movement between the cities where matches will take place.

3.6. Decisions of International Non-Governmental Organizations of the Olympic Movement as a Source of Lex Sportiva

A most significant contribution to the formulation of lex sportivа rules governing international sports movement, belongs to the International Olympic Committee that has been functioning as an international non-governmental organization since 1981, and numerous international federations of Olympic sports. However, the IOC and the IFs being international non-governmental organizations, are not subjects of international law and cannot implement the international legal regulation of sport processes in the traditional sense of the term. The rules generated by them should be qualified as corporate norms, i.e. rules of conduct stated in statutes, regulations, decisions, programs, other documents of corporations that are compulsory only for the members of the corporations. Such rules constitute a specific kind of social norms, they regulate typical situations, or a certain type of public relations in corporations (for example, registering athletes for their participation in the competition). These are rules of a general nature designed for a multiple use and for a wide range of individuals, not mentioned by name.⁹²

M. A. Margulis notes that lex sportivа rules do not get consolidated in international treaties, but in transnational agreements between organizations that are independent from their national governments. As an example he points to the Olympic Charter and to the statutes and regulations of various international sports organizations (federations, unions, associations) sports and concludes that “a system of rules in sports, is not only transnational but also non-state by nature, it is substantially different from the rules in other legal fields”.⁹³

Another example of an act belonging to lex sportiva is the constituent instrument of an international sports federation, the Statutes of the International Federation of Football, or in French Fédération internationale de football association (FIFA) of 19 November 2003, as amended on 26 February 2016.⁹⁴

FIFA Regulations on the Status and Transfers of Players of 18 December 2004 and the Regulations of the Football Union of Russia on the Status and Transfer of Players of 5 March 2011 (as amended on 22 November 2016) are two more examples of acts belonging to lex sportiva. They provide the regulatory framework for the transfer system that permits athletes or coaches to move from one sport organization to another, which has proved its effectiveness in many sports, including football.⁹⁵

3.7. Jurisprudence of International Courts and Arbitral Tribunals as a Subsidiary Means for Determining Rules of International Sports Law and Lex Sportivа

As a subsidiary means for the determination of the international legal and corporate norms in the field of sports, one should consider the decisions of international courts and arbitral tribunals. These decisions are binding for the parties to the case. For example, the rights of athletes that were breached by the actions or inaction of member States of the Council of Europe or member States of the European Union and its institutions, can be reinstated by the judicial decisions of the European Court of Human Rights (ECtHR) in Strasbourg or the Court of Justice of the the European Union (CJEU) in Luxembourg, respectively.

Violations of the rights of athletes committed at the national level, can be recognized by the ECtHR that functions in the framework of the Council of Europe on the basis of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950. In the course of resolving sport disputes State authorities make sure the right of an athlete to a fair public hearing within a reasonable time by an independent and impartial tribunal established by law should not be violated (Art. 6 of the ECHR). In addition, provisions of Art. 7 of the ECHR can be applicable; according to it sanctions may not be imposed if they are not required by law (in Latin, nullum crimen, nulla poena sine lege), which can be especially important when considering disciplinary disputes (e.g., concerning the use of doping).⁹⁶

In addition, in the implementation of international protection of their rights athletes can indicate a possible violation of conventional provisions establishing the right to respect for private and family life (Art. 8 of the ECHR) and the prohibition of discrimination on grounds of gender, national or social origin, association with a national minority, property, birth or other grounds (Art. 14 of the ECHR) (for more details, see para. 8.4 in Chapter 8).

A prominent role in resolving sports disputes is played by the Court of Justice of the European Union. One of the most resonant decisions was its ruling of 15 December 1995 in the cases of the Belgian Football Association v. Jean-Marc Bosman, Royal Сlub Liege v. Jean-Marc Bosman, UEFA v. Jean-Marc Bosman. The resolution of this dispute led to establishing a precedent that approved the principle of freedom of movement of workers in respect of professional players and entailed changes in the rules of the implementation of athletes’ transfers from a club to a club, in particular, it abolished the quotas on foreign players from the EU member States.⁹⁷

The decision in the case of Igor Simutenkov v. the Ministry of Education and Culture, the Royal Football Federation of Spain abolished the discriminatory provisions in respect of the Russian athletes as regards working conditions, remuneration or dismissal, compared to the EU nationals, and served to advance the principle of equality of the Russian and European private persons in the realization of their right to working conditions.⁹⁸ Judgments of the Court of Justice of the European Union are extremely important in European law, because due to their precedent-setting nature they are binding on national courts of the EU member States and on the Court itself subsequently.

The Court of Arbitration for Sport is the best-known example of a specialised international arbitration for the resolution of sport disputes in Lausanne. CAS applies successfully corporate rules, created by the IOC and other international non-governmental organizations of the Olympic movement. CAS has repeatedly dealt with cases involving Russian athletes. Most of them have been unsuccessful for the Russian applicants so far.

Control Questions and Tasks

1. What are the sources of international sports law? Enumerate and provide examples of sources of various types.

2. What is the role of decisions of international non-governmental organizations of the Olympic movement (corporate norms) in shaping the norms of international sports law? Give examples of acts of corporate regulation in the field of sports.

References Bibliography

1. Alekseev S. V. Olympic Law. The Legal Foundations of the Olympic Movement. Ed. By P.V. Krasheninnikov Moscow: Zakon i pravo Pbl., 2010.

2. Public International Law: a textbook / L. P. Anufrieva, K. A. Bekyashev, E. G. Moiseev, E. G. Ustinov et al. Ed. by K.A. Bekyashev. 5th ed., revised and updated. Moscow: Prospekt Pbl., 2011.

3. Lukashuk I. I. International “Soft Law”. State and Law. 1994. No. 8–9.

5. Nafziger J. International Sports Law. 2nd ed. Ardsley, New York: Transnational Publishers, Inc., 2004.

6. Panagiotopoulos D. Sports Law. Lex Sportiva and Lex Olympica. Theory and Praxis. Athens-Komotini, 2011.

Normative Acts

1. Statute of the International Court of Justice of 26 June 1945.

2. International Convention against Apartheid in Sports of 10 December 1985.

3. International Covenant on Economic, Social and Cultural Rights of 16 December 1966.

4. General comment of the Committee on Economic, Social and Cultural Rights of 21 December 2009. No. 21.

5. Council of Europe Convention against Doping of 16 November 1989 and its Additional Protocol of 12 September 2002.

6. Agreement between the Government of the Russian Federation and the Government of the Argentine Republic on Cultural Cooperation of November 25, 1997.

7. International Charter of Physical Education and Sport, adopted at the 20th session of the UNESCO General Conference on 21 November 1978.

8. Resolution of the UN General Assembly 68/9 “Peaceful and Better World through Sport and the Olympic ideal” of 6 November 2013.

Chapter 4. Special principles of international sports law

In this Chapter the following questions are considered:

4.1. The concept and classification of special principles of international sports law.

4.2. The content and normative consolidation of special principles of international sports law:

– the principle of the spirit of Fair Play;

– the principle of preservation of the environment during training and sports competitions;

– the principle of prohibition of all forms of discrimination in international sports.

4.3. The concept, scope and normative consolidation of special principles of corporate regulation of sports activities (lex sportiva):

– the principle of the spirit of Fair Play;

–the principle of prohibition of all forms of discrimination in international sports.

– the principle of preservation of the environment during training and sports competitions;

– the principle of universality of the Olympic Games;

– the principle of the fight against political and commercial abuses in sport;

– the principle of Olympic solidarity and internationalism.

4.1. The Concept and Classification of Special Principles of International Sports Law

When the sports sphere is regulated in compliance with international law, universally recognized principles of international law, collectively known as jus cogens, retain their significance. Universally recognized principles of international law include principles enshrined in the UN Charter of 26 June 1945: the principle of the sovereign equality of all States (para. 1, Art. 2), the principle of good faith fulfilment of international obligations (para. 2, Art. 2), the principle of settlement of international disputes by peaceful means (para. 3, Art. 2), the principle of the non-use of force or threat of force (para. 4, Art. 2), the principle of cooperation (para. 5, Art. 2), the principle of non-interference in internal affairs (para. 7, Art. 2), the principles of equality and self-determination of peoples (para. 2, Art. 1).

The core principle of general international law is the principle of respect for the State sovereignty.

All other principles expand the content of the principle in question and can be classified according to legal relations they regulate (the object of legal regulation) as follows:

– principles relating to the obligation to maintain international peace and security (the principles of the non-use of force or threat of force, of peaceful settlement of international disputes);

– principles relating to respect for the sovereign rights of peoples and States (the principles of sovereign equality of States, the principle of non-interference in the internal affairs of the state);

– the principle of cooperation of States;

– principles relating to the protection of human rights – individual and collective (the principles of respect for human rights and fundamental freedoms, equality and self-determination of peoples);

– the principle of fulfilment of international obligations in good faith.⁹⁹

4.2. The Content and Normative Consolidation of Special Principles of International Sports Law

With regard to the special principles of international sports law, the following formulations seem to be the most successful:

The principle of the spirit of Fair Play (Fair Play) is the principle of honour and dignity in sport and in life. The principle implies respect for the competitor, for the established rules and decisions of referees, as well as the athlete’s self-control, i.e., the ability to restrain emotions and stoically accept any outcome of the sporting competition. In a narrow sense, the principle is aimed at fighting against doping in sport and violence in sports arenas. This principle was consolidated in a number of international legal instruments – the UNESCO International Convention against Doping in Sport of 19 October 2005, the Council of Europe Anti-Doping Convention of 16 November 1989 and its Additional Protocol of 12 September 2002, the European Convention on Spectator Violence and Misbehaviour at Sport Events and in particular at Football Matches of 19 August 1985, other UN and UNESCO documents, instruments of the Council of Europe and the European Union, documents of other international organisations.

In addition, the principle of Fair Play is enshrined in the charters and statutes of all National Olympic Committees and the IOC Olympic Charter (the fourth and sixth fundamental principles of Olympism, Rules 22, 40, 43) that are sources of lex sportiva. In a broad sense, the essence of the principle is that all participants of the Olympic Games are obliged to propagate the ideals and principles of honour and magnanimity in relation to each other. This principle was consolidated in many documents of the Olympic movement – the Anti-Doping Code of 4 February 1999, the WADA World Anti-Doping Code of 5 March 2003 (as amended on 1 January 2015), the IOC Medical Code of 12 December 2005, etc.

The principle of preservation of the environment during training and sports competitions means that compliance with environmental requirements must be an important criterion in choosing cities for the Olympic Games. In 1994 the IOC Sport and Environment Commission was established and it has been actively operating within the IOC framework. In response to the call of the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro in 1992, the experts of the United Nations Environment Program (UNEP) and the IOC Sport and Environment Commission undertook joint efforts and elaborated and adopted the Olympic Movement’s Agenda 21 of 23 October 1999. This instrument is an example of “soft law” in the field of international sports regulation, but some researchers appreciate the significance of the Olympic Movement’s Agenda 21 so highly that call it the Ecological Charter of Olympic Sport.¹⁰⁰

The principle of fighting against all forms of discrimination implies the prohibition of any discrimination in sport on political, religious, racial grounds. The principle is enshrined in a number of international legal instruments: the Universal Declaration of Human Rights of 10 December 1948, the UNESCO Declaration on Race and Racial Prejudice of 27 November 1978, the Declaration on the Elimination of All Forms of Intolerance or Discrimination Based on Religion or Belief of 25 November 1981, the Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, the International Covenant on Civil and Political Rights of 16 December 1966, the International Covenant on Economic, Social and Cultural Rights of 16 December 1966, the International Convention on the Rights of Persons with Disabilities 13 December 2006.

In Art. 1 of the Convention on the Suppression and Punishment of the Crime of Apartheid of 30 November 1973, apartheid is declared a crime against humanity, and Art. 2 of the Convention contains a list of actions to which the term “the crime of apartheid” must apply. With the adoption of the UN International Convention against Apartheid in Sports of 10 December 1985, the list of such actions was supplemented. The 1985 Convention has established, with respect to States Parties, the requirement of imposing sanctions on any State implementing the policy of apartheid. In particular, the Parties to the Convention committed themselves not to maintain relations with the State sports bodies, teams and athletes, as well as to prohibit the entry into its territory for athletes or teams participating in sports competitions in South Africa where at the time of adoption of the 1985 Convention the apartheid regime retained. On 15 May 1981 the UN Special Committee against Apartheid published the first United Nations Register of Sports Contacts with South Africa.¹⁰¹ Such a blacklist that contained the names of athletes who had taken part in sports competitions in South Africa was published annually until 1994 when the apartheid regime was formally abolished.

4.3. The Concept, Scope and Normative Consolidation of Special Principles of Corporate Regulation of Sports Activities (lex sportiva)

In addition, by now, a number of special principles of corporate regulation of sports activities have been elaborated, and on the basis of the principles of corporate regulation the regulation of the international sports movement is exercised. S.A. Ishchenko identifies a number of principles of this kind.¹⁰²

Some special principles are common to both lex sportiva (and to lex olympica as its core) and international public law.

The principle of the spirit of Fair Play is the principle of honour and dignity in sport and in life enshrined in the charters and statutes of all National Olympic Committees and in the IOC Olympic Charter (the fourth and sixth fundamental principles of Olympism, rules 22, 40, 43). In a broad sense, the essence of the principle is that all participants of the Olympic Games are obliged to propagate the ideals and principles of honour and magnanimity in relation to each other. This principle was consolidated in many documents of the Olympic Movement: the Anti-Doping Code of 4 February 1999, the WADA World Anti-Doping Code of 5 March 2003 (as amended on 1 January 2015), the IOC Medical Code of 12 December 2005, etc., and in a number of international instruments adopted within the framework of the UN, UNESCO, the European Union, the Council of Europe and other international organisations.

On the world-wide scale the Fair Play Movement is led by the International Council for Sport Science and Physical Education (ICSSPE).¹⁰³ Since 1964 the International Fair Play Committee has been functioning under the auspices of the ICSSPE.¹⁰⁴ The Russian Fair Play Committee (RFPC) as a division of the Russian Olympic Committee has been in operation since 1992. The International Fair Play Committee regularly makes awards in such categories as “Pierre de Coubertin World Fair Play Trophy for an Act of Fair Play”, “Jean Borotra World Fair Play Trophy for a General Attitude of Sportsmanship Throughout a Sports Career”, etc.

The principle of combating all forms of discrimination in the international sports movement has been consolidated in the documents of the Olympic Movement (for example, in the fourth and sixth fundamental principles of Olympism listed in the Olympic Charter) and in international legal instruments. Persistent fight of the International Olympic Committee against discrimination on racial and gender grounds in sports has secured a greater response to many global campaigns against discrimination. Thus, in May 1970 the International Olympic Committee expelled the National Olympic Committee of South Africa for the implementation of racial discrimination in sports.¹⁰⁵ The expulsion occurred before the UN Special Committee against Apartheid known for the annual publication of the black lists of sports contacts with South Africa (United Nations Register of Sports Contacts with South Africa) started its work, and before the UN Convention Against Apartheid in Sport was adopted in 1985. The pressure made on the NOC of South Africa retained: during the entire period from 1970 to 1994 the South Africa NOC was deprived of the right to participate in the Olympic Games because of the policy of apartheid exercised with regard to the indigenous African population, which the IOC treated as a gross violation of the Olympic Charter.

According to the authoritative American researcher J. Nafziger, the need to conduct a major international sports event can encourage the State to adhere more closely to the observance of international human rights standards with respect to its citizens in order to avoid criticism from foreign States. The outcome of the Olympic Games held in 1964 in Tokyo makes it possible to explain the improvements in the legal status of trade unions undertaken by Japan. Concerns that emerged immediately before to the Olympic Games in Seoul in 1988 initiated a political reform that also made an impact on the presidential elections in 1987. Expectations to host the 2000 Olympic Games (and subsequently the 2008 Olympic Games) encouraged China to adopt a comprehensive law on sports activities and weaken some of then existing economic and political restrictions with regard to citizens of China. The use of sports competitions to improve bilateral relations (ping-pong diplomacy) can have far-reaching consequences. Examples of this kind are the relations between the US and China in the early 1970s or between two Koreas in the 1990s or in the Winter Olympic Games of 2018. Thus, sports events can be a key component of the world order.¹⁰⁶

Under the principle of preservation of the environment during training and sports competitions, the compliance with environmental requirements should be an important criterion in choosing cities for the Olympic Games. Joint efforts of the United Nations Environment Program and the IOC Sport and Environment Commission, which has been in operation since 1994, resulted in elaboration and adoption of the Olympic Movement’s Agenda 21 of 23 October 1999.

A number of additional principles by virtue of their specificity are significant only for the regulation carried out within the framework of lex olympica.

The principle of universality of the Olympic Games shows that competitions are held at the highest level. At the same time, restrictions specified in the Olympic Charter must be observed. The International Olympic Committee is the body that is more representative than even the UN General Assembly: 206 National Olympic Committees co-operate in the IOC, while only 193 States are represented in the UN after the Southern Sudan accession to the UN membership in July 2011.

The principle of fight against political and commercial abuses in sport is enshrined in Rule 50 of the Olympic Charter that prohibits any form of advertising, publicity or propaganda of political, religious, racial nature at Olympic venues and other sports grounds.

The principle of Olympic solidarity and internationalism implies the development of multilateral cooperation and active involvement of developing countries in this process. The principle of Olympic solidarity is envisaged in the Olympic Charter. In accordance with Rule 5 of the Olympic Charter, the aim of Olympic solidarity is to organise assistance to the National Olympic Committees (NOCs) of the world’s poorest countries. This assistance takes the form of programmes elaborated jointly by the IOC and the NOC, with the technical assistance of International Federations, if necessary. More details concerning the objectives of the programmes adopted by Olympic Solidarity are set forth in the Bye-law to Rule 5. Implementation of programmes is administered and controlled by the Olympic Solidarity Commission.

The principle of Olympic solidarity is closely associated with such basic principles of international public law as the principle of cooperation and the principle of equality and self-determination of peoples enshrined in the UN Charter of 26 June 1945, the International Covenant on Civil and Political Rights of 16 December 1966, the International Covenant on Economic, Social and Cultural Rights of 16 December 1966.¹⁰⁷ Its purpose is to ensure complete abandonment of the policy of colonialism and racial discrimination in sport.

Control Questions and Tasks

1. What are the special principles of international sports law? Comment on the normative content of each of them, name international legal instruments where they were enshrined.

2. What are the special principles of corporate regulation of sports activities (special principles of lex sportiva)? Comment on the normative content of each principle, name of the Olympic movement where they were enshrined.

References Bibliography

1. Alekseev S.V. International Sports Law. Krasheninnikov P.V. (ed.) Moscow: Zakon i pravo Pbl., 2008.

2. Alekseev S.V. Olympic law. Legal Foundations of the Olympic Movement. Krasheninnikov P.V. (ed.) Moscow: Zakon i pravo Pbl., 2008.

3. Ishchenko S.A. Organizational and Legal Problems of Management of Public Associations in the Russian and International Sports Movement: Doctoral Dissertation. Moscow, 2001.

Normative Acts

1. The Universal Declaration of Human Rights of 10 December 1948.

2. The International Covenant on Civil and Political Rights of 16 December 1966.

3. The International Covenant on Economic, Social and Cultural Rights of 16 December 1966.

4. The UN International Convention Against Apartheid in Sport of 10 December 1985.

5. The UNESCO International Convention against Doping in Sport of 19 October 2005.

6. The Council of Europe Anti-Doping Convention of 16 November 1989 and Additional Protocol of 12 September 2002.

7. The European Convention on Spectacular Violence and Misbehaviour at Sports Events and in Particular at Football Matches of 19 August 1985.

8. The WADA World Anti-Doping Code of 5 March 2003 (as amended on 1 January 2015).

9. The IOC Olympic Charter (in force as of 15 September 2017).

10. The Olympic Movement’s Agenda 21 of 23 October 1999.

Chapter 5. Regulation of international sports relations at the universal level in the framework of the united nations specialized agencies and programmes

In this chapter the following questions are considered:

5.1. The role of the UN bodies in regulating the organization of international sports activities.

5.2. The activities of UNESCO in the field of physical education and sport and its cooperation with the IOC.

5.3. The interaction between UNEP and the IOC. Agenda 21 of the Olympic movement of 1999.

5.4. The cooperation of WIPO and the IOC on the protection of the Olympic symbol.

5.5. Cooperation of WHO and the IOC in promoting a healthy lifestyle.

5.1. The Role of the UN Bodies in Regulating the Organization of International Sports Activities

The largest and most authoritative international intergovernmental organization is currently the United Nations (UN), the objectives of which are stated in the Charter, in particular, developing friendly relations among nations, achieving international cooperation in solving international problems of an economic, social, cultural or humanitarian character, promoting and developing respect for human rights and fundamental freedoms for all without distinction as to race, sex, language and religion (para. 2, 3 of Art. 1 of the UN Charter).¹⁰⁸ Since July 2011, after acceptance of Southern Sudan into the ranks of the members States, the UN has brought together 193 countries of the world. According to Art. 7 of the Charter the United Nations has the following the principal organs: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice and a Secretariat headed by the Secretary-General.

Starting from its resolution 48/11 of 25 October 1993 before each Olympic games the UN General Assembly adopts a resolution urging member States to observe the ancient Greek tradition of the Olympic truce (ekecheiria) at the Games. For example, on 17 October 2011 at the 66th session the UN General Assembly unanimously adopted resolution 66/5 “A Peaceful and Better World through Sport and the Olympic Ideal”.¹⁰⁹ It was proposed by Britain and supported by all the 193 UN member States. It called for compliance with the cessation of hostilities during the 45-day period starting from 27 July, 2012 (the opening day of the XXX Summer Olympic Games in London) until 9 September 2012 (the end of the 2012 Paralympic Games in London). Another decision on the Olympic truce was taken by the UN on the initiative of the Russian Federation, it was the General Assembly resolution 68/9 “A Peaceful and Better World through Sport and the Olympic Ideal”, adopted on 6 November 2013.¹¹⁰

Resolution 67/296 of 23 August 2013 the UN General Assembly proclaimed April, 6 the International Day of Sport for Development and Peace.¹¹¹ New holiday complemented successfully the International Olympic Day, proposed by the IOC in 1948 and celebrated annually on June, 23 to commemorate the revival of the modern Olympic movement at the International Congress on physical education in June, 1894 in Paris. Now a variety of educational and mass sporting events such as marathons, racing games, bike races are held on the International Day of Sport.

NB! On 25 September 2015 The UN General Assembly adopted an important resolution 70/1 “Transforming Our World: The Agenda for Sustainable Development for the Period until 2030”, in which sport is viewed as an important factor of sustainable development: “We recognize the growing contribution of sport to the realization of development and peace in its promotion of tolerance and respect and the contributions it makes to the empowerment of women and of young people, individuals and communities as well as to health, education and social inclusion objectives” (para. 37).¹¹² This resolution is a global action programme for implementing new 17 goals in sustainable development for the period from 2015 to 2030.

The United Nations Office on Sport for Development and Peace is a leading UN body that promotes activities and programmes of action in sports. It is headed by the Special Adviser to the UN Secretary-General on Sport for Development and Peace.

The main office of the UN Office on Sport for Development and Peace is situated in Geneva (Switzerland) and the secondary in New York (United States). The post of the Special Adviser on Sport for Development and Peace was established in 2001. In 2004, when the XXVIII summer Olympic games were held in Athens, the “Sport for Development and Peace” International Working Group was established for the period until 2008 in order to elaborate recommendations for the development of sports and their inclusion in national and international development strategies. Such recommendations were first formulated in the report “Harnessing the Power of Sport for Development and Peace: Recommendations for the Government”, presented in 2008 before the XXIX summer Olympic Games in Beijing.

The UN General Assembly in its resolution A/RES/63/135 of 11 December 2008 “Sport as a Means to Promote Education, Health, Development and Peace” took the decision to extend the mandate of the Sport for Development and Peace International Working Group under the leadership of the Special Adviser on Sport for Development and Peace up to 2015 to promote the implementation of the UN programme “Millennium Development Goals”. In 2009 the UN Office on Sport for Development and Peace on a voluntary basis began to perform the functions of the Secretariat of the Sport for Development and Peace International Working Group. Currently, the activities of the UN Office on Sport for Development and Peace are conducted in five directions: sports and youth development, sport and gender, sport and peace, sport and persons with disabilities and sport and health.¹¹³

The UN Office on Sport for Development and Peace is designed, first, to lead and coordinate the efforts of the UN system in the use sports of for humanitarian purposes, for the benefit of development and peace-building. Special attention is paid to the role of sport in the fight against poverty, prevention of HIV, AIDS and other diseases, sustainable development, accessibility, universal education, gender equality, involvement of persons with disabilities in sports. Second, the activities of the UN Office on Sport for Development and Peace aim to promote dialogue, cooperation and partnership between the UN and member States, international and national sports organizations, civil society, private sector, academic institutions and the media. Third, the Special Adviser on Sport for Development and Peace represents the UN Secretary General and the UN system as a whole at major sporting events.

On 18 October 2010 the UN General Assembly adopted resolution 65/4 “Sport as a Means to Promote Education, Health, Development and Peace”,¹¹⁴ which invited the international community to provide voluntary contributions to the UN Office on Sport for Development and Peace International Working Group to enable it to continue its work on all the envisaged themes (para. 10). Since then, the UN General Assembly in its resolutions had repeatedly recommended that member States, particularly the countries committed to the promotion of sport as a tool for development and peace, and other interested parties such as international sports federation, organizers of mass sporting events, sports clubs and leagues, foundations and the private sector, especially business companies involved in sport, to make voluntary contributions to the Trust Fund for Sport for Development and Peace, and enter into innovative partnerships with the UN Office on Sport for Development and Peace and the Sport for Development and Peace International Working Group.

The Russian Federation makes voluntary contributions to the Trust Fund for Sport for Development and Peace, along with the International Olympic Committee and States committed to the development of sports. For example, in accordance with the Government decision of 29 July 2015 No. 772 the annual contribution of Russia to the Trust Fund for Sport for Development and Peace amounted to 50 thousand euros.¹¹⁵

Priorities in the activities of the UN Office on Sport for Development and Peace at the present stage are to promote development in Africa, especially in sub-Saharan Africa, dialogue and understanding in conflict areas, gender equality, integration of persons with disabilities and development of young people.¹¹⁶

UN Office on Sport for Development and Peace collaborates with many bodies and specialized agencies of the UN system in order to ensure durable peace and sustainable development. These include the UN Human Rights Council, UN specialized agencies (United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Labour Organization (ILO), World Health Organization (WHO)), regional offices of the principal organs of the United Nations (in particular, ECOSOC, UN Economic Commission for Europe (UNECE)), foundations (United Nations Population Fund (UNFPA), the UN Children’s Fund (UNICEF)) and programmes (United Nations Development Programme (UNDP), UN Environment Programme (UNEP), World Food Programme (WFP), Joint United Nations programme on HIV/AIDS (UNAIDS)), United Nations International Drug Control Programme (UNDCP), etc.

The UN Office on Sport for Development and Peace seeks to strengthen ties between the “UN family” and the Olympic and Paralympic movement. Since 2009, thanks to the joint efforts of the UN Office on Sport for Development and Peace the IOC the International Forum on Sport, Peace and Development has been convened in the European headquarters of the United Nations in Geneva. The Forum brings together representatives of governments, sports organizations and civil society.

Partnership agreements are concluded between the UN Office on Sport for Development and Peace and international sports federations for Olympic sports. For example, in 2011, a partnership agreement was signed with the International Volleyball Federation; in 2012, with the International Federation of Judo; in 2013, with the International Federation of Bobsleigh and Tobogganing and with the International Federation of Taekwondo.

The trend of strengthening cooperation between the UN and the Olympic movement became particularly noticeable in 2014. 28 April 2014 The UN Secretary-General Ban Ki-Moon and International Olympic Committee President Thomas Bach signed an historic cooperation agreement. On the same day, the former IOC President Jacques Rogge was appointed the Special Representative of the UN Secretary General for refugee youth and sport, to promote the use of sport as a means of ensuring peace, security, health, education, gender equality and a more inclusive society.¹¹⁷

Thanks to the joint efforts by the UN Office for Sport and the IOC in July 2014 the “Sport of Hope” centre was built in July 2014 in Port-au-Prince (Haiti). After the devastating earthquake of 2010 The IOC set a goal to help Haiti to regain the necessary sports infrastructure so that the inhabitants of the island would have access to sports, cultural, educational programmes and social development programmes.¹¹⁸ Starting from 2015, a number of projects for the development of sports for persons with disabilities has been implemented in Haiti.¹¹⁹

In the autumn of 2014 FIFA quickly responded to the UN appeal to help in the fight against Ebola: by the decision of its Finance Committee, it allocated funds to fight the epidemic in the amount of 300,000 dollars, provided additional financial assistance in the amount of 50,000 dollars to each of the national football federations of Guinea, Liberia, Sierra Leone – the three most affected West African States, entered into close cooperation with the World Health Organization for implementing its programme of action in the fight against the spread of Ebola.

At the UN Office on Sport there exists a New York Group of Friends of Sport for Development and Peace. This group, chaired by the permanent representatives of the Principality of Monaco and Tunisia to the United Nations, has been functioning since 2005. Representatives of 47 UN member States meet periodically to exchange information, national experience, research results in the field of sport. Since 2012 meetings of a Geneva Group of Friends of Sport for Development and Peace have been organized regularly; within this group representatives of 30 UN member States and experts from non-governmental organizations experts discuss topical issues of sporting life in an informal setting. Meetings of this group are coordinated by the permanent representatives of Costa Rica and Qatar to the United Nations. Russian representatives participate in the work of both groups.

5.2. The Activities of UNESCO in the Field of Physical Education and Sport and Its Cooperation with the IOC

A significant contribution to the coordination of intergovernmental cooperation in the sphere of physical culture and sports is made by the United Nations Educational, Scientific and Cultural Organization (UNESCO), a UN specialised agency established on 16 November 1945. According to the UNESCO Constitution the purpose of the Organization is “to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations”.¹²⁰

Since the mid-1970s UNESCO has been concerned about the lack of standards and institutes of physical education and sports at the international level. In the framework of UNESCO such international documents in the field of sports were developed as the International Charter of Physical Education and Sport, adopted by the UNESCO General Conference on 21 November 1978, the Convention against doping in sport of 19 October 2005.

The first direction of the UNESCO activities in the field of sport is connected with the deployment and activation of sports education of children and youth. Many international official documents in recent years referred to the important value of these pedagogical activities. In the 1978 International Charter of Physical Education and Sport, UNESCO called to include the education of youth in the spirit of Olympism in the state programmes of social and cultural development. Currently, UNESCO is implementing a number of educational projects in the field of sports, for example, “Quality physical education and sport”, “Women and sport”, “Traditional sports and games”, etc.

The systematic fight against doping in sport is the second direction of the UNESCO activities in the field of sports. The necessary legal framework was formed by the adoption of the International Convention against Doping in Sport of 19 October 2005. In accordance with Art. 17 of the 2005 Convention UNESCO established the Fund for the Elimination of Doping in Sport, which has accumulated by now over 3 million dollars. UNESCO uses these resources to assist the governments of the States Parties to the 2005 Convention to facilitate the development and implementation of effective anti-doping programs. They can apply for grants for projects at the national (20 thousand dollars) or regional level (50 thousand dollars). The Fund has already rendered assistance in the implementation of the 218 projects around the world¹²¹. Since April 2012 The Fund for the Elimination of Doping in Sport is headed by the representative of Russia Gennady Aleshin,¹²² previously the President of the Russian Swimming Federation, first Vice-President of the Russian Olympic Committee, Deputy Minister of sport, tourism and youth policy of the Russian Federation.

Two more organs in the framework of UNESCO are related to sports: these are the Intergovernmental Committee for Physical Education and Sport (CIGEPS) and the International Fund for the Development of Physical Culture and Sports (FIDEPS). The CIGEPS was created in 1978 for developing effective policies and implementing programmes in all participating States.¹²³ Simultaneously with the CIGEPS at the XX session of the UNESCO General Conference the International Fund for the Development of Physical Culture and Sports was established.¹²⁴

Russian Federation has participated in the CIGEPS activities since 2007. Many issues discussed by the CIGEPS are of direct concern for Russia. In particular, Russia is interested in the exchange of experience regarding the organization of physical education at schools, the development of a system of legal and ethical standards that protect athletes in conditions of the commercialization of big-time sports, and the deployment of a broad international campaign against doping.

UNESCO holds regular Conferences of Ministers and Senior Officials Responsible for Physical Education and Sport (MINEPS). Since 1976, these conferences have been convened six times. The sixth MINEPS Conference was held 13–15 July 2017 in Kazan (Russia). MINEPS views its goal in elaborating a strategy for the implementation of the provisions of the 1978 International Charter of Physical Education and Sport and the UN General Assembly resolution 70/1 “Transforming our world: The Agenda for sustainable development for the period till 2030” of 25 September 2015.¹²⁵

5.3. The Interaction between UNEP and the IOC. Agenda 21 of the Olympic Movement of 1999

The IOC cooperates successfully with the UN Environment Programme (UNEP) that in the Nairobi Declaration of March 4, 1997 was named “the leading global environmental authority that determines the global environmental agenda” (para. 2).

In 1992 at the UN Conference on Environment and Development in Rio de Janeiro the Agenda 21¹²⁶ was adopted, and the UNEP called upon all international, regional and subregional intergovernmental and non-governmental organizations to develop the documents similar to the Agenda in their field of activities.

In response to the call made in Rio, thanks to the efforts of the IOC Commission on Sport and Environment established in 1994, the Agenda 21 of the Olympic movement was developed. It was adopted by the IOC session held in June 1999 in Seoul and entered into force on 23 October 1999. Later, this document was approved by the Olympic movement as a whole at the Third world conference on Sport and the Environment held in Rio de Janeiro in October 1999.¹²⁷

Agenda 21 of the Olympic movement received broad support and endorsement from the UN Environment Programme as the basis for a policy of close cooperation between members of the Olympic movement and the UNEP. It identified three objectives of the Olympic movement in the area of sustainable development: improving socio-economic conditions; conservation and management of resources for sustainable development; strengthening the role of major groups in society (women, youth and indigenous people). It also contains a programme of action to be taken to implement each of the goals.

In 1994, after making recommendations by the Olympic Congress, convened in Paris in honour of the 100-year anniversary of the revival of the Olympic Games, changes were made to the Olympic Charter. Since then, para. 13 of Rule 2 of the Olympic Charter has contained a direct reference to the fact that the activities of the Olympic movement, among other things, are built on the idea of sustainable development; it points out that the role of the IOC is “to encourage and support a responsible concern for environmental issues, to promote sustainable development in sport and to require that the Olympic Games are held accordingly”.

Starting with the 2000 Olympics in Sydney environmental criteria in assessing the success of the Olympic Games have been applied universally. These criteria continue to evolve. In February 2003 the UNEP Governing Council approved the programme “Sport and the Environment”, which aims at further strengthening the relationship between sport and the environment protection in the public consciousness, in particular among young people, as well as at raising environmental awareness through sporting events.¹²⁸ Shortly thereafter, the UNEP adopted a long-term Strategy on Sport and the Environment (“Michezo,” which in Swahili means “sport”, “games”; the UNEP headquarters are located in Nairobi (Kenya), where Swahili is widely used as a subregional language). The three main objectives of the “Michezo” strategy are to promote integration of environmental considerations in sports activities; use the popularity of sports in order to raise awareness of environmental issues and educate the public, especially young people, in a spirit of respect for the environment; promote the development of sports facilities and environmentally sound production of sporting goods.¹²⁹

The question arises as to how successfully the preparatory process of the Winter Olympic Games 2014 in Sochi met the international environmental standards. In 2007, the Russian environmentalists demanded that the decree of the Russian Government of 8 June 2006, No. 357 “About the federal target program “Development of Sochi as a mountain climatic resort (2006–2014)” should be recognized invalid. In their complaints, the representatives of the Russian branch of “Greenpeace” pointed to the fact that in taking organizational decisions in any project it was necessary to collect full information on the environmental aspects, make the information known to the public, involve experts and organizations in the field of environmental protection in the organization of sporting events, conduct regular consultations with social groups and have a clear procedure for the settlement of the disputes; those complaints were set aside.¹³⁰

In 2009, the Memorandum of Understanding between the “Organizing Committee of XXII Olympic Winter Games and XI Paralympic Winter Games of 2014 in Sochi” and the UNEP established active cooperation between the UNEP experts and their Russian counterparts in order to ensure proper environmental support of the Olympic winter games in 2014 (for more detail, see para. 12.4 of Chapter 12.

5.4. The Cooperation of WIPO and the IOC in the Protection of the Olympic Symbol

In the public consciousness the famous five interlaced rings of equal dimensions in blue, yellow, black, green and red are the visual symbol of the Olympic movement. As stated in Rule 8 of the Olympic Charter, the Olympic rings symbolize “the activity of the Olympic Movement” and represent “the union of the five continents and the meeting of athletes from throughout the world at the Olympic Games”.

According to the results of marketing research, the Olympic rings are the most recognizable logo in the world. They are known by more people than the “cockleshell” of Shell, “golden arches” of MacDonald’s, the “Star” of Mercedes, as well as the emblems of the International Committee of the Red Cross and the United Nations.¹³¹

Prior to 1981 the Olympic symbol could be registered at the national level as a trademark. However, the situation changed with the adoption on 26 September 1981 of the Treaty on the Protection of the Olympic symbol in Nairobi, Kenya (hereinafter referred to as the “Nairobi Treaty) under the auspices of the World Intellectual Property Organization (WIPO), a UN specialised agency of the UN that was created in 1970 and currently unites 191 countries of the world¹³². In accordance with Art. 5 of the Nairobi Treaty any State member of WIPO, the Paris Union for the Protection of Industrial Property, the United Nations or any of its specialised agencies can join the Treaty. Currently, it involves 52 countries.¹³³

According to Art. 1 of the Nairobi Treaty, the States parties accept the obligation “to refuse registration or to invalidate the registration as a mark and to prohibit by appropriate measures the use as a mark or other symbols for commercial purposes of any designation consisting of the Olympic symbol” if only the international Olympic Committee has not given permission for the use of the Olympic symbol.

The Nairobi Treaty in para. 1, Art. 2 formulates two exceptions to the obligations enshrined in Art. 1 of the Treaty. It does not apply to the State party with regard to:

1. any sign consisting of the Olympic symbol if it was registered in the State prior to the date of entry into force of the Treaty in respect of that State or during any period when in that State compliance with the obligation referred to in Art. 1, shall be deemed suspended in accordance with Art. 3;

2. continued use for commercial purposes of any mark or other symbol consisting of the Olympic symbol, in this State by any person or company that began such use legitimately before the date of entry into force of the Treaty in respect of that State or during any period when in that State compliance with the obligation is deemed to be suspended in accordance with Art. 3.

Art. 3 deals with the concept of suspension of the obligation stipulated in Art. 1. It can take place for the entire period during which there will be no existing agreement between the IOC and the national Olympic Committee of a particular State regarding the conditions under which IOC will give permission to use the Olympic symbol in that State and on the share of the NOC in any revenues that the IOC will receive for the issuance of these permits.

In para. 4 of Art. 2 the reservation is made that no State party to the Nairobi Treaty i is not under an obligation to prohibit the use of the Olympic symbol, if it is used by the media to spread information on the Olympic movement or activities carried out in the framework of this movement. This means that the prohibition contained in art. 1 of the Treaty does not apply, in particular, to television and radio broadcasts of international sporting events.

WIPO administers the implementation of the Nairobi Treaty by the States participating in it. In accordance with Art. 5, 7, 9–10 of the Nairobi Treaty the WIPO Director General is the Depositary of the Treaty. He registered the Treaty in the UN Secretariat. He has kept the authentic texts of the Treaty. He shall deposit instruments of ratification, instruments of acceptance, approval and accession to the Treaty and notices shall be sent to him in the event of the denunciation.

The Soviet Union signed the Nairobi Treaty on 24 October 1981 and ratified it on 17 March 1986. In accordance with Art. 8 of the Nairobi Treaty, Russian text is authentic along with the texts in English, Spanish, French.The Russian Federation has participated in the Nairobi Treaty in succession from 25 December 1991.¹³⁴

The scientific literature suggests that the Nairobi Treaty is “only useful to those States who, for one reason or another, are unable to get more deductions for directly issued permissions to use the Olympic symbol than they can get from the International Olympic Committee for the permissions issued by the Committee”.¹³⁵

In the Russian Federation the registration of the Olympic symbol as a trademark is not allowed in accordance with para. 2 of Art. 1483 of the Civil Code of the Russian Federation “The grounds for refusal in state registration of a trademark.” In the case of illegal use of the Olympic symbol measures of administrative liability are applied, most often an administrative fine in the amount from 1 to 15% of the offender’s total revenue from sale of goods (works, services), but not less than one hundred thousand rubles under Art. 14.33 of the Code of Administrative Offences. This article establishes liability for unfair competition, more precisely, for the introduction into circulation of goods with illegal use of means of individualization of products, works, services.¹³⁶

Despite international legal efforts to protect the Olympic symbol from commercialization, it should be noted that the assertion that it is not currently used for commercial purposes, does not correspond to reality.

In accordance with Rule 7 of the Olympic Charter the Olympic games are the exclusive property of the International Olympic Committee. It owns all rights and data relating thereto. For example, the IOC owns the rights to the Games related to the organization, use, broadcasting, recording, representation, reproduction, access and dissemination in any form and by any means and methods that presently exist or may arise in the future.

As specified in Rules 8–14 of the Charter, the Olympic symbol, the famous five interlocking rings, is a part of the Olympic property along with the Olympic flag, motto, symbols (such as “Olympic games” and “games of the Olympiad”), signs, emblems, flame and torch. All rights for each and all elements of the Olympic property belong exclusively to the IOC, including but not limited to, use for commercial purposes, for income and for promotional purposes. The IOC may license all or part of its rights on terms established by the IOC Executive Board.

As established by official explanations 2.2.1 to Rules 7–14 of the Olympic Charter, the Olympic symbol can be used in contracts for sponsorship and supplies. The decision is taken by the IOC in coordination with the national Olympic Committee in the country that is preparing to host the winter or summer Games. In 1985 the IOC started implementing the TOP programme, which at different periods included from nine to twelve major international corporations. Such companies as “Coca-Cola”, “Kodak”, “Panasonic”, “Visa” are permanent sponsors of the Olympics. The participants of the TOP programme receive the right to use the Olympic rings and other Olympic logo in their advertising campaigns in the preparatory process and during the Games. As the programme evolved, TOP revenues increased from 96 million dollars in 1985–1988 (TOR I) to 866 million dollars in 2005–2008 (TOP-VI). The revenues collected in 2009–2012 from advertising and sponsorship programme TOP VII, exceeded the proceeds from the programme TOP-VI by more than 10% and amounted to 950 million dollars.¹³⁷

As can be seen from the official explanation 2.2.2 to Rules 7–14, the Olympic property can be used by third parties in a country of any national Olympic Committee after concluding a license contract with the IOC and informing the national Olympic Committee. The national Olympic Committee should receive half of all net income from the use of the Olympic property after the deduction of related taxes and expenses.

In accordance with the official explanation 2.3 to Rules 7–14 the IOC on the basis of its own discretion can authorize the broadcasting companies that cover the Olympic games and organizing committees of the cities that host the Olympic games to use the Olympic symbol or other Olympic property to expand the scope of broadcasting during the Olympic games. The collaboration of the IOC with major broadcasting companies (such as NBC and its affiliated companies in the United States, European Broadcasting Union) became particularly intense after 1995, when they began to sign contracts for a few Olympic cycles of 4 years each. The amounts that broadcasters pay for the right to broadcast are comparable to the revenues generated by the TOP programme.¹³⁸

In addition, in accordance with the official explanation 3.2 to Rules 7–14, the IOC Executive Board can give permission to use the Olympic symbol to the Olympic national committees in the framework of their non-profit activities provided that it will contribute to the development of the Olympic movement and will not damage its dignity.

The income derived from the use of the Olympic symbol and other elements of the Olympic property, leave no doubt in the financial well-being of the IOC at the present stage, and even force some researchers to raise the question of whether the Olympic games should remain the exclusive property of the IOC: “Don’t they belong to all mankind, as Samaranch said at the beginning of his presidency? Is it not wise to make them public domain, the world cultural heritage that the IOC only keeps for future generations?”.¹³⁹ The question remains open.

5.5. Cooperation of WHO and the IOC in Promoting a Healthy Lifestyle

The World Health Organization (WHO) is a specialised UN Agency established in 1948 in order to resolve international problems in the field of health. In the WHO Charter (Constitution) of 22 July 1946, the purpose of the organization is formulated as “the attainment by all peoples of the highest possible level of health” (Art. 1)¹⁴⁰, including by means of physical culture and sports. Thus, WHO regulates certain aspects of international sports activities.

On 22 May 2004 at its 57th session the WHO adopted the Global Strategy on Diet, Physical Activity and Health. Its four main objectives were formulated in para. 18: reducing two major risk factors for noncommunicable diseases, such as unhealthy diet and lack of physical activity; increasing overall awareness and understanding of the role of nutrition and physical activity as determinants of health and the positive potential of preventive measures; promoting the development, strengthening and implementation of global, regional, national and community policies and action plans; collecting scientific data and monitoring key impacts on nutrition and physical activity, supporting research and development of human resources for successful health care activities in this field.

In para. 23 of the Global Strategy, the definition of physical activity is given; it is understood as “a key determinant of energy expenditure, essential to energy balance and maintaining optimal weight”. It does not only contributes to combating overweight, but also improves many other States, in particular, reduces the risk of cardiovascular diseases and diabetes. In para. 24 the Global strategy recommends for every person to ensure an adequate level of physical activity throughout life: “at least 30 minutes of regular physical activity of moderate intensity on most days of the week reduces the risk of cardiovascular disease, diabetes, colon cancer and breast cancer”. Along with the recommendations mentioned above para. 25 of the Strategy stresses the need for effective measures to prevent and control tobacco use in order to ensure successful prevention of noncommunicable diseases.

Para. 35–48 of the Global Strategy contain recommendations for States on developing national strategies in this area; in para. 49, 52–53, 56–57 the main directions of cooperation between WHO and other UN agencies and bodies are listed; among the number of international partners with whom it is important to cooperate in achieving the goals and objectives para. 55 enumerates not only UN agencies and other intergovernmental organizations, but also nongovernmental organizations, professional associations, research institutions and the private sector. Para. 60 specifies the tasks to civil society and non-governmental organizations that arise in this sphere: leading grass-roots mobilization and advocating for the inclusion of healthy diet and physical activity issues on the public agenda, providing information to support these initiatives, forming networks and action groups, organizing campaigns and events that will stimulate action, monitoring and and working with other stakeholders such as private sector entities, etc.¹⁴¹

The Memorandum of Understanding signed on 21 July 2010 in Lausanne by the World Health Organization and the International Olympic Committee, represents a convincing example of effective cooperation between the WHO and non-governmental organizations. It was noted in the agreement that physical activity can reduce the risk of many noncommunicable diseases that kill 35 million people each year, including 9 million under the age of 60 years of age. Physical inactivity is ranked as the fourth risk factor for all deaths globally, contributing to 1.9 million deaths annually. This trend is becoming increasingly visible. The WHO and the IOC will unite efforts with the aim of promoting healthy lifestyle choices that involve physical activity, sports for all, Tobacco Free Olympic Games, abandoning unhealthy eating habits and adopting measures to prevent childhood obesity. As stated in the Memorandum, the WHO and IOC will work together at the international and national levels to assist in reducing noncommunicable diseases such as cardiovascular disease, cancer, diabetes. The victory over these diseases is one of the main objective of sustainable development in the 21st century. The IOC and the WHO took the decision to establish a working group that meets annually to further define, develop and support programmes of international cooperation and implementation of joint activities.¹⁴²

Control Questions and Tasks

1. What UN bodies play a prominent role in regulating the organization of international sports activities?

2. Which of the UN specialized agencies interact with the IOC most actively? Indicate their areas of cooperation.

References Bibliography

1. Alekseev S. V. International Sports Law / ed. by P.V. Krasheninnikov. Moscow: Zakon i pravo Pbl., 2008.

2. Alekseev S.V. Legal Foundations of Professional Activities in Sports: a textbook. Moscow: Sovetskiy sport Pbl., 2013.

3. Zakharova L. I. “O Sport, You are Peace!”. The Role of International Law, Lex Sportiva and Lex Olympica in the Regulation of International Sports Relations. Moscow: GI “Tsentralnaya tipografiya”, 2013; 2nd ed., revised and updated. Saarbrücken: LAP Lambert Academic Publishing, 2015.

Normative Acts

1. The Charter of the United Nations of 26 June 1945.

2. The UNESCO Constitution of 16 November 1945.

3. The WHO Constitution of 22 July 1946.

4. The Nairobi Treaty on the Protection of the Olympic Symbol of 26 September 1981.

5. The Nairobi Declaration on the Role and Mandate of the United Nations of 4 March 1997.

6. Resolution of the UN General Assembly 68/9 “Peaceful and Better World through Sport and the Olympic ideal” of 6 November 2013.

7. Resolution of the UN General Assembly 67/296 “International Day of Sport for Development and Peace” of 23 August 2013.

8. Resolution of the UN General Assembly 70/1 “Transforming our world: The Agenda for sustainable development for the period till 2030” of 25 September 2015.

9. The resolution of the World Health Organization WHA 57.17 “Global Strategy on Diet, Physical Activity and Health” of 22 May 2004.

10. The Olympic Charter (in force as of 15 September 2017).

12. Agenda 21 of the Olympic movement of 23 October 1999.

Chapter 6. Regulation of International Sports Relations at the Universal Level within the Organizations of the Olympic and Paralympic Movements

In this Сhapter the following questions are considered:

6.1. Legal status of international non-governmental organizations of the Olympic movement.

6.2. The IOC Olympic Charter (in force as from 15 September 2017) – the basis of lex olympica. Its features, structure, content.

6.3. The subjects of corporate relations in the field of sports.

6.3.1. The International Olympic Committee (IOC): the structure, mandate, main directions of activities.

6.3.2. International Sports Federations for Olympic sports.

6.3.3. The International Paralympic Committee (IPC): the structure, mandate, main directions of activities. The interaction of the IPC and the Paralympic Committee of Russia (PCR).

6.1. Legal Status of International Non-Governmental Organizations of the Olympic Movement

International sports organization of the Olympic movement are by nature international non-governmental organizations (NGOs), the definition of which is formulated in the resolution of the UN Economic and Social Council 1296 (XLIV) “Arrangements for Consultation with Non-Governmental Organizations” of 23 May 1968: a non-governmental organization is an organization not established on the basis of an intergovernmental agreement. This resolution highlights the following distinguishing characteristics of NGOs: no goals of generating profit, the recognition of at least by one state or the acquisition of a consultative status in international intergovernmental organizations working