Book Chapter
Reference
Introduction to the Symposium on the Olympics and International Law
BOISSON DE CHAZOURNES, Laurence
BOISSON DE CHAZOURNES, Laurence. Introduction to the Symposium on the Olympics and International Law. In: The Olympics and International Law. Cambridge : Cambridge
University Press, 2020. p. 354-355
DOI : 10.1017/aju.2020.69
Available at:
http://archive-ouverte.unige.ch/unige:150664
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INTRODUCTION TO THE SYMPOSIUM ON THE OLYMPICS AND INTERNATIONAL LAW
Laurence Boisson de Chazournes*
The intersection between international law and the Olympic Games is hardly explored at all, although the poten- tial encounters are many and varied. In light of the forthcoming 2021 Olympic Games (rescheduled from 2020 due to the Covid pandemic), this symposium analyzes the contemporary legal questions triggered by the Olympics and examines what the application of international law in this unique setting reveals. As such, it aims tofill the gap in the literature on the international legal issues that emerge from the convergence of thousands of athletes from a wide range of states at a single sporting event—and one that is privately ordered.
Various bodies of law are involved in one manner or another in this particular set of circumstances. The legal status of the norms in question vary depending on whether we are referring to principles of international law, to non-binding instruments, to secondary law adopted within the framework of multilateral conventions, to national laws or to contracts. The six essays that make up this symposium illustrate these various normative facets through selected themes. The themes include the notion of citizenship and how athletes use their talents to obtain citizen- ship, state recognition, and Olympic participation, the way in which the Olympics brings contemporary human rights and environmental challenges to the forefront and the legal instruments that are resorted to for promoting their respect. Moreover, the efficacy and normative contours of the self-regulating private legal order that is the Olympics deserve attention.
The governance of the Olympic Games is often characterized by pragmatism. The initiatives taken with respect to dispute settlement offer a revealing example. In this context, due to the specific organizational requirements of the Olympic Games, special procedures designed to settle disputes within a very short timeframe were needed. A dedicated structure within the Court of Arbitration for Sport—functioningin situ—wasfirst established in 1996 and has existed since then for each edition of the Olympic Games.1In 2016, an additional division dealing with anti-doping disputes was created. The need for efficiency and speed resulted in succinct and clear rules of procedure for these dispute mechanisms.2
Human rights and environmental protection concerns have also prompted legal initiatives. As a reaction to increasing pressure from civil society to address adverse human rights impacts during the Olympic Games, the International Olympic Committee (IOC) has promoted the inclusion of human rights provisions into the bidding process and hosting regulations for the Olympic Games. Daniela Heerdt from Tilburg Law School writes about the costs and benefits of embedding such human rights concepts in these bidding and hosting agreements.3She reveals that, from a rights-holder perspective, the benefits are in fact rather meaningless. Her analysis sheds light
* Professor of International Law, University of Geneva, Switzerland.
1Laurence Boisson de Chazournes & Ségolène Couturier,The Court of Arbitration for Sport for the XXIII Olympic Games, 22(3) ASIL INSIGHTS(2018).
2Arbitration Rules Applicable to the CAS Ad Hoc Division for the Olympic Games, COURT OFARBITRATION FORSPORT.
3Daniela Heerdt,A Rights-Holder View on Human Rights Provisions in Olympic Bidding and Hosting Regulations, 114 AJIL UNBOUND356 (2020).
doi:10.1017/aju.2020.69
© Laurence Boisson de Chazournes 2020. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and
reproduction in any medium, provided the original work is properly cited.
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on how the potential benefits are cancelled out by the shortcomings. In a different way, climate change has led the Olympic authorities to launch initiatives that seek to address this global challenge. In her essay, Rebecca Schmidt from the University of Oslo examines the Olympic Movement’s multi-level climate change policy.4In the context of the Olympic Games, this policy is implemented through the interplay between the IOC and actors at the local, host city level. The system is thus highly dependent on local organizers’capabilities, as well as on the IOC’s will- ingness and ability to take an active role in steering and supporting host cities in this process.
Identity and citizenship have always been associated with the Olympics and various points of view have been expressed on these issues. James Nafziger from Willamette University College of Law writes on the mutuality of national and international identity in international sports law.5He assesses whether the term“national”should be defined by national laws with all of their variations and uncertainties, by a concept of sport nationality, or by both criteria, and if a genuine link should exist between a national and the country of the National Olympic Committee.
In a globalized world, he calls for greater clarity on the necessary mutuality between national and international identities in fulfilling the spirit of friendship, solidarity, and fair play in the practice of sport. Peter Spiro from Temple University discusses the idea of abandoning nationality requirements for the Olympics.6He considers that nationality and associated criteria for participant eligibility undermine the autonomy of athletes and the quality of participation and that the rules can no longer guarantee any effective tie between athletes and nations. To the extent that athletes want to compete for other countries, Olympic rules shouldn’t stand in the way. Another issue concerning identity is related to statehood. Interestingly, some entities that are not yet states have been able to participate in the Olympic Games. In this context, Ryan Gauthier from Thompson Rivers University examines the connection between participation in the Olympic Games and claims to statehood.7He considers sport’s role through the modern approach to statehood and looks in particular at two examples: the German Democratic Republic and Kosovo.
The Olympic Movement has been self-regulated from the outset, and its private ordering is governed by the domestic law of the countries in which its organizations are domiciled and operate. It is also, however, an insti- tution of global governance with links to international law. Doriane Lambelet Coleman from Duke Law School writes about the claim that the Olympic Movement and its subsidiaries should be more closely tied to international law.8She examines the nature of those ties and the push for additional alignment between the norms of the Movement and international legal norms. She argues that, while regulatory autonomy is necessary for sport to produce the values expected by its stakeholders, domestic law as it reflects international law is generally an adequate check on abuses of that autonomy. She considers that international norms are useful not as binding law that would displace the Movement’s autonomy, but as pressure for the Movement’s organizations to consider aligning their policies and procedures with the public interests those norms reflect, such as, for example, human dignity.
4Rebecca Schmidt,The Carbon Footprint of the Games–International Climate Change Law and the Olympics, 114 AJIL UNBOUND362 (2020).
5James A.R. Nafziger,The Mutuality of National and International Identities in International Sports Law, 114 AJIL UNBOUND368 (2020).
6Peter J. Spiro,Problematizing Olympic Nationality, 114 AJIL UNBOUND374 (2020).
7Ryan Gauthier,Statehood and the Olympic Games, 114 AJIL UNBOUND380 (2020).
8Doriane Lambelet Coleman,The Olympic Movement in International Law, 114 AJIL UNBOUND385 (2020).
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SYMPOSIUM ON THE OLYMPICS AND INTERNATIONAL LAW
A RIGHTS-HOLDER VIEW ON HUMAN RIGHTS PROVISIONS IN OLYMPIC BIDDING AND HOSTING REGULATIONS
Daniela Heerdt*
The Paris 2024 Summer Olympics will be thefirst Olympic Games for which human rights provisions were added to the Host City Contract (HCC).1The Milano/Cortina 2026 Winter Olympics will be thefirst edition of the Games that were awarded with human rights requirements forming part of the candidature process.2The inclu- sion of human rights provisions into hosting and bidding regulations can be seen as a reaction of the International Olympic Committee (IOC) to the increasing pressure from civil society to address adverse human rights impacts of these events. This essay provides an analysis of the benefits and shortcomings of this development and reveals that from a rights-holder perspective,3the benefits are meaningless. More specifically, it argues that potential ben- efits are cancelled out by the shortcomings and most importantly that there is a mismatch between intended and actual beneficiaries of these provisions.
Human Rights Concerns Related to Hosting the Olympic Games
Virtually every edition of the Olympic Games comes with human rights concerns.4Most recently, the post- poned Tokyo Olympics were criticized for anticipated human rights violations in relation to the disruption of pub- lic transport and the displacement of homeless people. A report by Building and Wood Workers’International uncovered abuses of worker’s rights in connection with the building of the Tokyo Olympic facilities.5Regarding previous Games, the 2016 Rio Olympics caused the displacement of thousands of people, which in some cases were evicted forcefully, to make room for the large-scale construction projects connected to hosting the event.6
* PhD researcher at Tilburg Law School, the Netherlands, Project Officer at the Centre for Sport and Human Rights.
1SeeInt’l Olympic Comm.,Host City Contract–Principles–Games of the XXXIII Olympiad in 2024.
2SeeInt’l Olympic Comm.,Candidature Questionnaire Olympic Winter Games 2026.
3“Rights-holder”in this context refers to those groups and individuals whose rights are adversely affected by the organization or staging of the Olympic Games.
4This has been documented extensively elsewhere.See, e.g., Minky Worden,Raising the Bar–Mega-Sporting Events and Human Rights, HUMANRIGHTSWATCH(2014); Lucy Amis & John Morrison,Mega-Sporting Events and Human Rights—A Time for More Teamwork?, 2 BUS. HUM. RIGHTSJ. 135 (2017); Daniela Heerdt,The Human Rights Impacts of OlympicGames,inDARKSIDES OFSPORT(Jörg Krieger & Stephan Wassong eds., 2019).
5SeeBuilding & Wood Workers’Int’l,The Dark Side of the Tokyo 2020 Summer Olympics(2019).
6SeeWorld Cup & Olympics Popular Comm. of Rio de Janeiro,Rio 2016 Olympics: The Exclusion Games(2015).
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© Daniela Heerdt 2020. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium,
provided the original work is properly cited.
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Similar construction projects were carried out for the Pyeongchang Winter Olympics, which came at the expense of workers’rights and workers’lives.7
Addressing these cases under domestic or international legal structures is challenging, not least because of the mix of public and private, national and international actors involved in staging the Olympics. Consequently, these events are neither governed on the domestic nor on the international level. Instead, they are built under a trans- national private legal order,8dictated by sports governing bodies like the IOC, who impose the rules under which the event has to be delivered and instigate a complex web of contracts and agreements between the various actors involved. The complex governance structures on which these events are based blur the lines of responsibility and accountability, which makes it possible for blame-shifting to occur in case something goes wrong. Moreover, as Megan Corrarino argues, these events create“law exclusion zones,” “in which normal legal processes are jetti- soned and new, exceptional legal regimes take their place—and these regimes often undermine normal human rights protections, allowing a few to profit at the expense of the many.”9 However, because the Olympic Games are organized and governed in that way, it is difficult to bring them under the protection of an international human rights system that squarely focuses on states as the primary duty bearers. The embedding of human rights provisions into Olympic hosting and bidding regulations can present a welcome development in that regard, not least because it imposes contractual obligations to respect and protect human rights on the range of public and private actors involved.
Human Rights Provisions in Olympic Bidding and Hosting Documents
In the spring of 2017, the IOC adopted new bidding and hosting regulations for the Olympic Games. These regulations werefirst implemented for the selection of the hosts of the 2024 and 2028 Summer Olympic Games, and of the 2026 Winter Olympic Games. The HCC Principles for the Summer Games address human rights in Principle 13.2b:
the Host City, the Host NOC [National Olympic Committee] and the OCOG [Organizing Committee of the Olympic Games] shall . . . protect and respect human rights and ensure any violation of human rights is remedied in a manner consistent with international agreements, laws and regulations applicable in the Host Country and in a manner consistent with all internationally-recognised human rights standards and prin- ciples, including the United Nations Guiding Principles on Business and Human Rights, applicable in the Host Country.10
Almost identical wording is used for the human rights provision in the revised candidature process for the 2026 Winter Olympics. While human rights are not part of the rules that govern the candidature process, the Candidature Questionnaire for the 2026 Games asks national, regional, and municipal governments to submit a guarantee that human rights are protected and respected, and violations are remedied accordingly.11These devel- opments prompted the IOC to add a Human Rights Section to the annex of its Evaluation Report for the Winter Olympic Games 2026 Candidates. There, the IOC considers“high level human rights indicators”for each
7SeeBuilding & Wood Workers’Int’l,Construction Worker Rights at Pyeongchang(2018).
8Ralf Michaels & Nils Jansen,Private Law Beyond the State? Europeanization, Globalization, Privatization, 54 AM. J. COMP. L. 847, 868 (2006).
9Megan Corrarino,“Law Exclusion Zones”: Mega-Events as Sites of Procedural and Substantive Human Rights Violations, 17 YALEHUM. RTS. &
DEV. L. J. 180, 182 (2014).
10SeeInt’l Olympic Comm.,Host City Contract–Principles–Games of the XXXIII Olympiad in 2024, Principle 13.2b.
11SeeInt’l Olympic Comm.,Candidature Questionnaire Olympic Winter Games 2026, at 86.
2020 A RIGHTS‐HOLDER VIEW ON HUMAN RIGHTS PROVISIONS IN OLYMPIC BIDDING AND HOSTING REGULATIONS 357
candidate, which however only looks at the number of ratified human rights treaties and Core Conventions of the International Labour Organization, and other somewhat related indices.12
The fact that these provisions are part of the contractual framework of hosting and bidding for the Olympic Games makes these provisions binding on the parties that sign the contract, which are the Host City, the National Olympic Committee, the Organizing Committee once it is established, and the IOC itself. In theory, this means that obligations to respect international human rights law, which traditionally apply to state actors, are now applied to non-state actors by means of contractual obligations. This is also true for the human rights concepts that form part of the candidature procedure, as the commitments made during the candidature process become binding once the event has been awarded.13The IOC itself is obliged to establish a reporting mechanism regarding the human rights obligations of the other contracting parties.14In addition to these provisions, the hosting parties have to fulfil the Operational Requirements regarding human rights.15These requirements closely follow the due diligence process outlined in the UN Guiding Principles for Business and Human Rights and ask the Organizing Committee of the Olympic Games to publicly commit to respecting human rights and to develop and implement a human rights strategy.16
Since these provisions apply only to future events, their true impact remains to be seen. The human rights strat- egies are yet to be developed and currently there is no reference to human rights in any other documents relevant for the delivery of these events, such as the Games concepts or visions.17Moreover, for the rights holder it is unclear whether using human rights, which are of a public law nature, in private legal instruments like the HCC, indeed provides a mean to address adverse human rights impacts. With that in mind, the analysis below tries to anticipate a number of positive and negative implications of these provisions, including their implications for access to justice for victims of Olympic Games-related human rights abuses.
The Benefits
From a rights-holder perspective, the mere fact that these provisions create binding human rights obligations for non-state actors that lack human rights obligations under international human rights law is a positive development.
Also, the fact that these provisions oblige the IOC to create a reporting mechanism for tracking performance of the contracting parties regarding their human rights obligations can be a benefit for rights-holders. However, this depends on how effectively this mechanism functions. The HCC Principles do not clarify how exactly this report- ing mechanism would work. It only states that it would be run by the Coordination Commission, which includes representatives from“the IOC, the International Federations, the National Olympic Committees, Organising Committees of the Olympic Games prior to the Games, the IOC Athletes’Commission and the International Paralympic Committee, as well as experts designated or approved by the IOC.”18Despite these open questions, having such a mechanism in place can potentially contribute to improving access to remedy for rights-holders, as
12SeeInt’l Olympic Comm.,Report IOC Evaluation Commission Olympic Winter Games 2026.
13SeeInt’l Olympic Comm.,Host City Contract–Principles–Games of the XXXIII Olympiad in 2024, Principle 5.
14Id.Principle 13.3.
15SeeInt’l Olympic Comm.,Host City Contract - Operational Requirements128 (June 2018).
16Seeid.
17Search conducted onhttps://www.paris2024.org/en/andhttps://la28.org/, as well as the documents listed underhttps://www.
olympic.org/documents/games-los-angeles-2028-olympic-gamesandhttps://www.olympic.org/documents/games-paris-2024-olympic- games.
18SeeInt’l Olympic Comm.,Host City Contract–Principles–Games of the XXXIII Olympiad in 2024, Principle 27.1.
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reporting systems can provide a valuable source of information and evidence for victims, provided that they are designed in a way that the information collected is accessible for all affected groups.
Another benefit is that the new bidding and hosting regulations include the obligation to ensure that“any vio- lation of human rights is remedied.”19While this is not further clarified and no reference to relevant accountability or remedy mechanisms is made, the IOC’s provisions stand out in that regard when compared to similar initiatives of other sport governing bodies that recently added human rights concepts to their bidding documents. The revised bidding regulations of the Fédération Internationale de Football Association (FIFA) require Member Associations only to“respect Internationally Recognised Human Rights, including workers’rights, in all aspects of its/their activities relating to this Bidding Process in accordance with the UN Guiding Principles.”20The Union of European Football Associations updated its Tournament Requirements and Bid Dossier for the EURO 2024, which require bidders to develop a human rights strategy and oblige them“to respect, protect and fulfil human rights and fundamental freedoms.”21
Two additional benefits, which are not directly for the benefit of the rights-holder but indirectly of relevance, should be highlighted. First, the IOC’s decision to set up a Human Rights Advisory Committee can be traced back to the inclusion of human rights provisions in the new HCC as one factor among others.22This provides a valuable opportunity to increase accountability within the IOC, as the Advisory Committee would support the IOC in meeting its human rights responsibilities in line with a strategy and policy that still need to be developed.
Secondly, as a result of the integration of human rights concepts into the candidature process, candidate cities are required to integrate human rights thinking early on into their planning for hosting the event. This raises aware- ness on the link between Olympic Games and human rights, and sport and human rights more generally. For instance, as part of their application for the Winter Olympics 2026, the Swedish Sports Confederation developed a handbook on sport and human rights, which discusses“how Swedish sport can help promote human rights, both at the national level and in a global perspective.”23
The Shortcomings
A closer look at these provisions reveals that they have significant limitations from the rights-holder perspective, in particular regarding their substantive and temporal scope. Regarding the latter, the human rights guarantee required during the candidature process and the HCC provisions explicitly apply to the activities related to the
“organization”of the Games. Usually, the organization of events like the Olympics takes place in different stages, from the bidding, to the planning, to the delivery, and the leverage stage.24While all these stages carry human rights risks, the formulation of these provisions do not clarify to what extent they apply in all those stages.25
Regarding the substantive scope, two issues are at stake. First, it is not clear what exactly forms part of these organizational activities and if the delivery of the event itself is included. While Principle 15.2b of the HCC clarifies what organizational activities are, it does not apply to the human rights provisions.
19Seeid.Principle 13.2b.
20SeeFIFA Regulations for the Selection of the Venue for the Final Competition of the 2026 FIFA World Cupart. 8(2) (2017).
21SeeUEFA EURO 2024–Bid Dossier Template Section3 (2017) &UEFA EURO 2024 Tournament Requirementssec. 3 (2017).
22SeeInt’l Olympic Comm.,IOC Sets up Advisory Committee on Human Rights Chaired by HRH Prince Zeid Ra’ad Al Hussein.
23SeeRiksidrottsförbundet,Human Rights–A Handbook for Sport.
24Heerdt,supranote 4, at 58-60.
25Id.at 60-61; Inst. for Human Rights & Bus.,Striving for Excellence: Mega-Sporting Events and Human Rights9-10 (2013).
2020 A RIGHTS‐HOLDER VIEW ON HUMAN RIGHTS PROVISIONS IN OLYMPIC BIDDING AND HOSTING REGULATIONS 359
Secondly, the Candidature Questionnaire and the HCC limit the scope of applicable human rights to those stan- dards“applicable in the Host Country.”However, the wording is confusing as it is not entirely obvious whether this limitation applies to the obligation to respect and protect and the obligation to remedy, or if it only applies to the latter. In case it applies to all, it would essentially mean that the Host City, Host National Olympic Committee, and the Organizing Committee of the Olympic Games“only”have to respect, protect, and remedy those human rights standards to which the Host Country is bound under international human rights law. This can significantly limit the applicable human rights standards and lead to a different set of standards being applicable for each ver- sion of the Olympic Games. The latter concern is becoming a reality for the two upcoming Summer Olympic Games. France ratified all core international human rights instruments, with the exception of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (Migrant Workers Convention) and a few Optional Protocols. The United States has signed, but has not ratified, the International Covenant on Economic, Social, and Cultural Rights, the Convention on the Elimination of All Discrimination Against Women, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, and has not taken any action in relation to most Optional Protocols and the Migrant Workers Convention.26This means in effect that the organizers of the 2028 Los Angeles Olympics have fewer human rights standards to comply with than the organizers of the 2024 Paris Olympic Games.
Finally, the greatest shortcoming for rights-holders is that they cannot enforce these provisions directly, since they are not parties to the HCC or candidature process. Only the contractual partners can take legal actions in case one of the other signatories does not perform its contractual obligations. In essence, this would mean that it is the IOC that has the right to start legal procedures against the Host City, the Host National Olympic Committee and/
or the Organizing Committee if they violate their human rights obligations under Principle 13 of the HCC.
The Mismatch
When weighing the benefits of including human rights provisions into Olympic hosting and bidding regulations against their shortcomings, it is not sufficient to simply add the arguments up. Instead, one has to acknowledge that some arguments weigh more heavily than others. Against this backdrop, embedding human rights into Olympic hosting and bidding regulations does not provide any benefits to rights holders, not because the identified short- comings even out the potential benefits, but because rights holders are ultimately not the beneficiaries of these provisions.
If we indeed perceive the embedding of human rights concepts into Olympic bidding and hosting regulations as a reaction to an increased awareness of the adverse human rights impacts of mega-sporting events like the Olympic Games and a growing pressure from civil society on the actors involved, then there is a mismatch between the intended and actual beneficiaries of these provisions. As this concise analysis demonstrates, they do not help those affected by Olympic Games-related human rights abuses to claim their rights and receive compensation. At most, they provide the parties that signed these regulations with a legal basis to start legal proceedings against each other before the Court of Arbitration for Sport. According to Principle 51.2 of the HCC,“Any dispute concerning the validity, interpretation or performance of the HCC shall be determined conclusively by arbitration, to the exclusion of the state courts of Switzerland, of the Host Country or of any other country; it shall be decided by the Court of Arbitration for Sport.”27However, the Court of Arbitration for Sport is a privately regulated organization, which is not mandated to apply public international law in the form of internationally recognized human rights standards.
26SeeStatus of Ratification–Interactive Dashboard.
27SeeInt’l Olympic Comm.,Host City Contract–Principles–Games of the XXXIII Olympiad in 2024, Principle 51.2.
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Creating contractual obligations to respect and protect human rights for non-state actors involved in staging the Olympics is certainly a step in the right direction. However, these obligations are meaningless if they are not accompanied by opportunities for rights-holders to enforce their rights. Such opportunities could be created by making rights holders or their representatives parties to these contracts, or by ensuring that the remedy and accountability mechanisms accessible to rights holders can serve as a check on relevant Olympic bidding and host- ing regulations.
2020 A RIGHTS‐HOLDER VIEW ON HUMAN RIGHTS PROVISIONS IN OLYMPIC BIDDING AND HOSTING REGULATIONS 361
SYMPOSIUM ON THE OLYMPICS AND INTERNATIONAL LAW
THE CARBON FOOTPRINT OF THE GAMES–INTERNATIONAL CLIMATE CHANGE LAW AND THE OLYMPICS
Rebecca Schmidt*
Olympic Games do not happen in a vacuum or a sports bubble. They are embedded in both local and global realities of a social, economic, and environmental nature. Environmental factors, in particular, have impacted the Olympic Movement for several decades. In this context, climate change is a more recent, yet increasingly impor- tant, issue on the agenda. This essay examines the Olympic Movement’s multi-level climate change policy. Based on the goals established in the Paris Agreement,1the International Olympic Committee (IOC) and the UN Framework Convention on Climate Change (UNFCCC) launched the Sports for Climate Action Initiative in 2018.2In the context of the Olympics, this Initiative is implemented through the interplay between the IOC and actors at the local, host city level. Consequently, the system is highly dependent on local organizers’capabilities to meet the Initiative’s ambitious targets, as well as on the IOC’s willingness and ability to take an active role in steering and supporting host cities in this process.
The Olympic Movement, Environmental Protection, and Climate Change
As early as the 1990s, the IOC faced pressure to review its impact on the environment and establish policies to minimize it. This pressure was triggered by a combination of the severe effects that the Games—especially the Winter Games—had on local ecosystems, the increasing awareness of environmental problems among the general global public, and the unique nature of the Olympics as mega-events with an almost universal reach.3In response, by the mid-1990s, the Olympic Movement had put environmental protection prominently on its agenda and devel- oped several initiatives and policies for its implementation.4Cooperation with the UN Environmental Programme facilitated this work.5
* Postdoctoral Research Fellow at the VIROS Project at the Norwegian Research Center for Computers and Law, University of Oslo, Norway.
1Conference of the Parties, Adoption of the Paris Agreement, Dec. 12, 2015, UN Doc. FCCC/CP/2015/L.9/Rev/1.
2Int’l Olympic Comm.,IOC Takes Leadership Role in the UN Sports for Climate Action Initiative(Dec 11, 2018).
3SeeGraeme Hayes & John Karamichas,Introduction: Sport Mega-Events, Sustainable Development and Civil Societies,inOLYMPICGAMES, MEGA-EVENTS ANDCIVILSOCIETIES1 (Graeme Hayes & John Karamichas eds., 2012). For a more detailed overview of the development of an environmental protection regime by the Olympic Movement, see REBECCASCHMIDT,REGULATORYINTEGRATIONACROSSBORDERS– PUBLICPRIVATECOOPERATION INTRANSNATIONALREGULATION154 (2018).
4SeeInt’l Olympic Comm.,Sustainability and Legacy Commission;Olympic Charter, Rule 2. For a summary of the different environ- ment-related activities, see Int’l Olympic Comm.,Factsheet–The Environment and Sustainable Development(2014).
5The cooperation builds on an agreement between the two organizations, which is onfile with the author but not publicly available.
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© Rebecca Schmidt 2020. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium,
provided the original work is properly cited.
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Recently, the IOC has started a more comprehensive reform process to react to increasing societal demands towards the sports sector. To this end, it launched its Agenda 2020, a list of forty recommendations on the Olympic Movement’s future, which includes two recommendations specifically on sustainability and the environ- ment.6The IOC also aligned with the UN Agenda 2030 and its Sustainable Development Goals, which cover climate change in Goal 13.7To implement these policy advances, the IOC developed a Sustainability Strategy out- lining its contribution to sustainability across three spheres: the IOC as an organization, as the owner of the Olympic Games, and as leader of the Olympic Movement.8
Two aspects need to be considered when addressing climate change in the Olympic context: First, sports mega- events such as the Olympics often leave a significant environmental footprint. As such, they negatively impact the climate by being responsible for large amounts of greenhouse gas emissions through factors such as travel of teams and fans, energy use during the events, and construction.9Second, large sporting events are also prone to be affected by climate-related impacts. In the context of the Olympics, this is true for both Summer and Winter Games, with the latter being mainly at risk. Winter sports are dependent on weather conditions that are becoming increasingly scarce in many regions. A recent study led by the University of Waterloo found that if green- house gas emissions are not drastically reduced, only eight of the last twenty-one host cities of the Winter Olympics would provide reliable enough weather conditions to host the games by 2050.10Non-winter sports can be signifi- cantly affected as well. For example, high temperatures may increase health risks for athletes and spectators at outdoor events; extreme temperatures, storms, or coastal erosions may damage sports venues.11
The Olympic Movement’s Contribution to Tackling the Challenges of Climate Change?
In the Paris Agreement governments agreed to“[h]olding the increase in the global average temperature to well below 2°C above pre-industrial levels.”12Even though only states (plus the EU) are parties to it, the Agreement emphasises that climate action includes all levels of society.13Integration of non-state actors is also facilitated by the bottom-up approach that the Agreement adopts. Thus, states must communicate extensive climate action plans, so-called“nationally determined contributions.”14Here they can integrate non-state actors in manners most adequate to meet their commitments.15Such a collaborative spirit is also present at the transnational level. Several initiatives between the UNFCCC and non-state actors were launched with the approval of the Conference of Parties. A prominent example is the Global Climate Action Portal (NAZCA), where actors from all segments of society can display their climate change commitments. Similar to states, non-state actors determine their own contributions to tackle climate change. To date 26,975 actions by 18,119 actors are
6Int’l Olympic Comm.,Olympic Agenda 2020, Recommendation 4 and 5.
7G.A. Res. 70/1,Transforming Our World: the 2030 Agenda for Sustainable Development(Oct. 21, 2015).
8Int’l Olypmic Comm.,Sustainability Strategy, Executive Summary.
9UN Climate Change,Sports for Climate Action Framework, Version 02.0, para. 7 [hereinafter Sports for Climate Action Framework].
For a very detailed overview of the different positions in the context of large sports events relevant to the carbon footprint, see Int’l Olympic Comm.,Carbon Footprint Methodology for the Olympic Games(2018).
10SeeKendra Pierre-Louis & Nadja Popovich,Of 21 Winter Olympic Cities, Many May Soon Be Too Warm to Host the Games, N.Y. TIMES
(Jan. 11, 2018).
11Sports for Climate Action Framework,supranote 9, para. 9.
12UN Doc. FCCC/CP/2015/L.9/Rev/1, art. 2 (a);Sports for Climate Action Framework,supranote 9, at paras. 5 and 12.
13UN Doc. FCCC/CP/2015/L.9/Rev/1, pmbl. para. 15.
14Id.art. 2.4.
15David Wei,C2ES-Linking Non-State Action with the U.N. Framework Convention on Climate Change(Oct. 2016).
2020 THE CARBON FOOTPRINT OF THE GAMES–INTERNATIONAL CLIMATE CHANGE LAW AND THE OLYMPICS 363
listed.16The Sports for Climate Action Initiative, jointly developed by the UNFCCC and the IOC in 2018, is among the non-state actors listing its commitments on NAZCA.17
The UNFCCC also published the Sports for Climate Action Framework.18Various sports actors, such as federations, clubs, or Olympic Organising Committees (OCOGs), have signed up to it.19Participants pledge to make concrete commitments and apply verified standards for measuring, reporting, and reducing emissions.20 To this end, the Framework asks signatories to develop a“climate action agenda for sport”that sets out commit- ments based onfive principles:
Principle 1: Undertake systematic efforts to promote greater environmental responsibility;
Principle 2: Reduce overall climate impact;
Principle 3: Educate for climate action;
Principle 4: Promote sustainable and responsible consumption;
Principle 5: Advocate for climate action through communication.21
Principle 2 is central and requires some more elaboration: Its goal is for sports actors to achieve climate neutrality for their organization and events.22The Framework provides critical steps through which this can be accom- plished. Thefirst step is to“measure and understand.”23Here, information on activities is gathered, and a quan- titative measure of the greenhouse gas emissions is established. This data is then used by decision-makers to understand the overall climate impact of their organization and activities and to determine which activities have the most significant effect.24In a second step, the Framework asks organizations to take action to mitigate their carbon footprint. It suggests a hierarchical approach starting with avoidance of emissions, followed by their reduction and substitution, andfinally, by their compensation through UNFCCC recognized mechanisms. An additional, important step is reporting the climate footprint and the actions taken to mitigate it.25
To understand how the Framework is implemented, let us now turn to the IOC and its main deliverable—the Olympic Games. On the transnational level, the IOC, rather than providing a detailed list with requirements, only sets out the general direction. Thus, in its Sustainability Strategy, the IOC has promulgated the goal of achieving
“carbon neutrality by reducing direct and indirect GHG emissions, and by compensating emissions as a last resort”by 2030.26This is to be achieved through“effective carbon reduction strategies”aligned with the Paris Agreement’s goals outlined above. The Sustainability Strategy provides a list of requirements, which are applicable to the Olympic Games from 2026 onwards:
– OCOGs and host cities [are] to minimise the Olympic Games’carbon emission;
– OCOGs [are] to compensate their“direct”/“owned”emission,
16GLOBALCLIMATEACTION.
17Int’l Olympic Comm.,IOC Takes Leadership Role in the UN Sports for Climate Action Initiative(Dec 11, 2018).
18Sports for Climate Action Framework,supranote 9.
19To date, 132 sports organizations have signed the Framework;seeUnited Nations Climate Change,Participants in the Sports for Climate Action Framework.
20Int’l Olympic Comm.,IOC Takes Leadership Role in the UN Sports for Climate Action Initiative(Dec. 11, 2018).
21Sports for Climate Action Framework,supranote 9, at para. 18.
22Id.at para. 22.
23Id.at paras. 23-25.
24Id.at para. 25.
25Id.at para. 26.
26Id.; Int’l Olympic Comm.,Sustainability Strategy, 42.
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– OCOGs and host cities [are] to promote low carbon solutions for and through the Olympic Games in the host country, [and]
– Candidate cities, OCOGs, and host cities [are] to take into account the potential consequences of climate change when selecting Olympic Games locations.27
These requirements are included by reference into the IOC Host City Contract’s Operational Requirements, specifically the Sustainability and Legacy Section, and thus made binding for host cities.
The Sustainability and Legacy Section further obliges the respective OCOG to develop a sustainability strategy where it must identify its specific sustainability objectives in line with the requirements in the IOC’s Sustainability Strategy.28This is done in cooperation with host country authorities, and the IOC, which also needs to give its approval before publication of the objectives.29The OCOG’s sustainability strategy must be complemented with implementation plans30and a sustainability management system that is in line with ISO 20121:2012 on Sustainable Events Management.31Furthermore, OCOGs must prepare three sustainability reports (two pre- and one post- Games), which outline the host country’s progress in delivering the sustainability strategy. These reports must conform to internationally recognized reporting standards (such as the Global Reporting Initiative standards).32 Additionally, OCOGs also need to develop a specific Carbon Management Plan to measure and minimize carbon emissions. For that purpose, the IOC published the Carbon Footprint Methodology Guideline, a technical document covering aspects such as methodological principles and technical guidance for measuring and calculating carbon footprints.33The Guideline uses a methodology consistent with the Greenhouse Gas Protocol, ISO 14064 and the European Commission’s Organisation Environmental Footprint.34Based on it, OCOGs are to set up an iterative process where theyfirst estimate the carbon footprint of the Games based on planning documents and assumptions.
This constitutes a basis for the carbon management plan and is part of the initial carbon footprint report. In a second step, a carbon footprint reduction plan is developed and implemented. Based on this, a revised carbon footprint report is published. Finally, after the Games, the actual footprint is measured and reported.35
As this section showed, climate change regulation in the context of the Olympics is predominantly implemented contractually. Critically, the sucess of this approach depends on the capabilities of the host cities and the ability of the IOC to steer and support them. In the past, the IOC did not always succed in ensuring compliance with sutain- ability requirements.36A particular problem was a sunk cost dynamic that set in once the Games were awarded.
Even though host city contracts give the IOC a lot of power to determine even minor details of the events, it is difficult to enforce some of the more overarching issues, especially as the event approaches. The ultimate“stick,”
the revocation of the Games, would not only affect the host city but would also be extremently damaging to the IOC. In anticipation of such problems the bidding process has become more stringent in recent years, and the IOC is more involved at the application and preparation stage providing assistance to potential host cities.37Parts of the
27Int’l Olympic Comm.,supranote 26, at Annex 3, 54.
28Int’l Olympic Comm.,Host City Contract - Operational RequirementsSUS 01, 166 (June 2018).
29Id.SUS 01, 166.
30Id.SUS 02, 166.
31Id.SUS 04, 167.
32Id.SUS 06, 167.
33Int’l Olympic Comm.,Carbon Footprint Methodology for the Olympic Games(Dec. 2018).
34Id.at 12 and 17.
35Id.at 20.
36E.g., Judith Mair,Sochi 2014–a‘Rich Green Legacy’to Remember . . . or Forget?, CONVERSATION(Feb. 9, 2014).
37Olympic Agenda 2020,supranote 6, Recommendation 1-3.
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newer sustainability requirements are also helpful in facilitating commitments. As they emphasise the reuse of existing infrastructure and venues, they lower the burden on host cities, and make implementation easier.
However, as the next section will show, successfully lowering emissions of a mega-event like the Olympics remains a challenging endeavor.
Climate Change Actions on the Ground—A Closer Look at Tokyo 2021
The OCOG of the Tokyo Olympics is a signatory of the Sports for Climate Action Framework and, thus, adheres to the Five Principles outlined above.38Moreover, the IOC’s Sustainability Strategy sets out a list of requirements, which, as mentioned, are directly and fully applicable to the Olympic Games from 2026 onwards.
However, even though these requirements are not binding on Tokyo 2021, the Tokyo OCOG has aligned its prac- tices with them.
Lowering carbon emissions already featured prominently in Tokyo’s applicationfile. One of the three pillars of its proposed sustainability strategy was to achieve“minimal impact Games,”which encompassed“carbon-neutral Games by reducing energy and resource consumption and carbon emissions, using renewable energy, public trans- port, and low-energy vehicles, and zero-waste policies.”39This translated intofive proposed key approaches in the sustainability strategy, which were predominantly focusing on avoidance and reduction: strategic site plan (reusing venues, and planning new ones also to reduce transport emissions), low carbon and energy facility and venues, use of renewable energy facilities, low emission, and fuel-efficient vehicles, and a carbon reduction campaign for the broader community.40
When awarded the Games, the bids made in the applicationfile became binding through and together with the general obligations in the host city contract.41Accordingly, the OCOG must develop a sustainability strategy including a carbon management plan; there must be an implementation plan and a management system in place. Furthermore, at least three sustainability reports must be published.42
Thus, the OCOG developed the Tokyo 2020 Olympic and Paralympic Games Sustainability Plan, which includes a carbon strategy.43The main direction in the carbon strategy is “towards zero carbon.” However, this does not mean the planners expect to arrive at zero carbon emissions, but instead refers to the ideal path actions should take.44 In line with the iterative approach outlined in the Carbon Footprint Methodology Guideline, the OCOGfirst measured the initial carbon footprint by calculating“the sum of all the activity levels multiplied by their corresponding greenhouse gas (GHG) emission intensity.”45Based on this calculation, three actions (aligned with the actions under Principle 2 of the Sports for Climate Action Framework) are taken to reduce the carbon footprint:“Avoidance measures,” “Reduction measures,”and“Offset measures.”46
These three measures are further specified through concrete items, targets, and indicators. To illustrate this: one item in the section of emission avoidance is“strategic venue planning for the maximum use of existing venues and
38UN Climate Change,Participants in the Sports for Climate Action Framework.
39Tokyo 2020,Candidature File–Part 05 Environment50 (2013).
40Id.at 60.
41Host City Contract–Games of the XXXII Olympiad in 2020, Section 7; Int’l Olympic Comm.,Host City Contract Operational Requirements, sec. 5.6 (Dec. 2016).
42Host City Contract Operational Requirements,supranote 41, at sec. 5.6.
43Tokyo 2020,Tokyo 2020 Olympic and Paralympic Games Sustainability Plan, Version 2(June 2018).
44Id.at 22.
45Tokyo 2020,Sustainability Pre-Games Report45 (Apr. 2020).
46Tokyo 2020,supranote 43, at 22.
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transport networks.”This translates into the target of reusing“a ratio of 58% of existing competition venues,”and an indicator consisting of“the number of existing competition venues used vs. the total number of competition venues.”47In total, twelve items and nineteen targets are identified in the Plan. Some have already been achieved, but, overall, results are still preliminary as the Games have not yet taken place. So far, the OCOG calculated that the measures combined have led to a reduction of 0.279 million t-CO2compared to the business as usual scenario.
However, despite avoidance and reduction measures, 2.730 million tons of CO2have been or will still be emit- ted, so there is a significant need for offset measures. To this end, the Organisers have implemented a carbon offset program with the assistance of the Tokyo Metropolitan Government and the Saitama Prefectural Government.
Businesses who participate in the cap-and-trade programs of these two administrations can implement energy- saving measures. Credits earned in this way may then be designated to offset carbon emissions from the Olympic Games.48In February 2020, credits for 3,149,739 tons of CO2have been obtained by both programs, and the OCOG expects“to offset a certain amount of carbon emissions from the Games.”49
Concluding Observations and Outlook
Like many globally operating industries, the sports sector and, at its forefront, the IOC have joined the Paris pledge to reduce carbon emissions with ambitious goals that do signal a serious commitment. As with other energy-intense industries, success will depend on whether these can be successfully implemented on the ground.
The main legal instrument to ensure these commitments are host city contracts. Those set binding requirements future host cities must implement. However, the ongoing preparations for the Tokyo Olympic Games show that truly reducing emissions at an event of the Olympic Games’size is easier said than done. So far, reductions only amount to 9.2% compared to the business as usual case. The Paris Agreement and the Sports for Climate Action Framework mandate that future Games such as Paris 2024 and Los Angeles 2028 must meet their higher reduc- tion targets.50At this point it is too early for a conclusive evaluation of whether these reforms will achieve their intended outcome.
47Tokyo 2020,supranote 45, at 40.
48Id.at 65.
49Id.at 66.
50Paris 2024,A Responsible Project; Int’l Olympic Comm.,Olympic Games to Become“Climate Positive”from 2030(Mar. 4, 2020).
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SYMPOSIUM ON THE OLYMPICS AND INTERNATIONAL LAW THE MUTUALITY OF NATIONAL AND INTERNATIONAL IDENTITIES IN
INTERNATIONAL SPORTS LAW James A.R. Nafziger*
The network of institutions that comprise the Olympic Movement include several whose authoritative scope now extends far beyond the mere staging of the Olympic and Paralympic Games to govern some important aspects of virtually all major regional and global competition and to foster the development of a comprehensive body of international sports law. The issues include nationality, which is the focus of this essay. More broadly, the proper resolution of nationality issues in the sports arena offers a limited model for reconciling tensions between national and international interests in the progressive development of international law.
The Olympic Charter Framework
Rule 6(1) of the Olympic Charter begins by providing that“[t]he Olympic Games are competitions between athletes in individual or team events and not between countries.”1This is the basis for the abiding aspiration to maximize opportunities for athletes in their individual interests and as role models while minimizing geopolitical interference in the sports arena. As such, this core provision underscores one of thefive Fundamental Principles of Olympism: that“[the] practice of sport is a human right . . . without discrimination of any kind and in the Olympic spirit, which requires mutual understanding with a spirit of friendship, solidarity and fair play.”Unfortunately, Rule 6(1) is sometimes misinterpreted so as to question any functional participation of“countries”in the organization of the Olympics. Such misinterpretation can lead to confusion about the national structure of the Olympic Movement.2 The remainder of Rule 6(1), however, clearly confirms that structure by designating National Olympic Committees (NOCs) to manage national participation in the Games and to select eligible athletes subject to their acceptance by the International Olympic Committee and the technical direction of the pertinent International Federation (IF) governing each athlete’s particular sport. Nearly all NOCs are government-sup- ported, many operating under the direct supervision of a national ministry of sport or in close association with it. This national structure of core activity in the Olympic Movement is not only necessary as an organizational principle but, as will be suggested, as a matter of institutional sustainability. Rule 6(1) thus establishes the essential role of“countries”in vindicating the right of qualified athletes to practice sport within the Olympic Movement.
As the Charter subsequently provides in detail, governing national and international institutions are symbiotic.
* Thomas B. Stoel Professor of Law, Director of International Law Programs, Willamette University College of Law, United States.
1Rule 30, as amended in 1996, defines a“country”entitled to establish a National Olympic Committee (NOC) as“an independent state recognized by the international community.”Several NOCs of non-state entities (e.g., Puerto Rico) were recognized before 1996.
2See generally James A.R. Nafziger,Rights and Wrongs of and About Nationality in Sports Competition,inFUNDAMENTALRIGHTS IN
INTERNATIONAL ANDEUROPEANLAW309, 310 (Christophe Paulssen et al. eds., 2016).
doi:10.1017/aju.2020.72
© James A.R. Nafziger 2020. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any
medium, provided the original work is properly cited.
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Even so, the controversial question remains whether nationality should be required for all members of a national team. Rule 41 of the Charter might seem to answer that question definitively by providing that“[a]ny competitor in the Olympic Games must be a national of the country of the NOC which is entering such competitor.”But should the term“national”be defined by national laws with all of their variations and uncertainties, by a concept of sport nationality or by both criteria? Must a genuine link, in a strict if not legal sense, exist between a“national”under Article 41 and the country of the NOC? More fundamentally, does Rule 41 conflict with Rule 6(1)’s premise of competition between individuals, arguably without regard to their nationality, however essential“countries”may be in the structure of competition? Indeed, is Rule 41 a good idea at all in today’s world of globalization? Why not scrap it in the interest of maximizing opportunities for individual athletes freed of the shackles of nationality and thereby better ensure the highest-quality of performance? Responses to these questions are split but generally take insufficient account of a necessary mutuality between national and international identities in fulfilling the spirit of friendship, solidarity, and fair play in the practice of sport.
Accelerated Naturalization
The issue of nationality in sports competitionflared up in recent years because of what was feared to be a grow- ing practice of accelerated naturalization by governments to acquire top-level athletes for national fame and for- tune.3Growing acceptance of dual citizenship and the diminishing significance of citizenship as a whole aided and abetted what came to be known variously as, for example,“country swapping,” “quickie citizenship,”or the deployment on the soccerfield of“plastic Brits,” all intimating temporary and artificial links between states and talented foreigners sharing a quest for gold medals and resulting prestige. The integrity of the Olympic struc- ture was thought to be in jeopardy.
To be sure, the examples were often startling: members of the Nigerian women’s bobsled and skeleton teams born and raised in North America; a former investment fund manager and his Italian wife from Staten Island, New York who alone represented Dominica (in cross-country skiing) at the 2014 Winter Games in Sochi, having traded their contributions to charities on that Caribbean island for the opportunity to compete; a gold medalist for Russia in men’s snowboarding who was born, raised, and trained in the United States but married to a Russian national; and the proud bearer of the Marshall Islandsflag in the opening ceremony of the 2012 London Games who, though of Marshallese parentage, had never been there. These examples underscore that the practice of accelerated naturalization includes both states already well-endowed with athletic prowess and those in need of talent. The top naturalizing states have been, in order, France, the United States, Spain, Canada, Qatar, and Bahrain.“Muscle drain”is normally not a problem.
Often, accelerated naturalization is not artificial or temporary, but rather a reflection of dual citizenship, mar- riage to a national of another state, professional relocation there, or parentage as in the case of tennis star Naomi Osaka, a naturalized U.S. citizen, born in Japan of Japanese-Haitian parentage, who opted to join the Japanese team for the Tokyo Olympics. Sometimes humanitarian reasons explain a change of nationality as in the instance of Yamilé Aldama, a world-class triple jumper who participated in three consecutive Olympics as a member of the Cuban, Sudanese, and British teams, respectively. Also, accelerated naturalization may be reasonably viewed as simply a specific instance of normal competition among states, especially immigrant-destination ones, to acquire the best and brightest new citizens, however they are categorized.
Moreover, the practice may often be commendable and perhaps should be encouraged as a means to expand opportunities for athletes who do not make a cut or are otherwise ineligible to compete for a team of their original nationality such as a third-seeded Chinese table tennis player, a Kenyan distance runner or an Austrian skier.
3SeeAyelet Shachar,Picking Winners: Olympic Citizenship and the Global Race for Talent, 120 YALEL.J. 2088 (2010-11).
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