The International Olympic Committee’s new anti-discrimination clause has symbolic power.
The recent announcement by the International Olympic Committee of the introduction of an anti-discrimination clause into the contract for Olympic host cities has been welcomed. It is an indication that the committee is taking discrimination seriously following Russia’s controversial anti-gay laws in the runup to Sochi 2014.
The clause mirrors the wording of Principle 6 of the Olympic Charter, which states that ‘any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement’.
The real question is: how far can a clause in a contract make any real difference to the human rights activities of host cities and states?
The IOC has generally preferred to rely on the positive benefits that flow from being accepted as a host nation and city to encourage better respect for human rights and equality. It has historically used its position to encourage change rather than as a sanction, except in the most extreme cases. After significant pressure, the IOC took the step of banning apartheid-era South Africa from the Olympics in 1964 because of its refusal to allow black and white athletes to compete against one another.
By contrast, the use of an imperative in the form of a contractual clause could force host states and cities to address any human rights abuses or discriminatory legislation or practice before applying to host the games. The new clause arguably requires a demonstration of an active commitment to equality of opportunity and human rights by an applicant country.
The clause should ensure that a country which demonstrably does not comply with the principles because it has anti-gay legislation, or denies rights to women, would be disqualified from applying to host at the outset. Of course, this raises a number of questions for any lawyer as to what standard of equality and human rights practice will be required, how it will be measured, and what must be demonstrated by an applicant state. Will the IOC consider, for example, the laws of the state; the way that the state is policed; or the record of respect for human rights and equality and diversity reflected in wider society? Will future breach of this clause be a fundamental breach terminating the contract?
A starting point for enforcement might be to consider the vast amount of readily available information – from organisations as diverse as Amnesty International and the United Nations Human Rights Commission – about state abuses of human rights and discriminatory state practices. A next step might be to consider the numerous treaties binding signatories to respect citizens, and report any human rights breaches.
Alternatively, standards could be drawn from the widely accepted international jurisprudence defining what constitutes a breach of a person’s human rights by discrimination or otherwise. While breaches of contract or disputes are referred to arbitration, the contracts could define the improvements or changes required in respect of any past actions of the state, or set out examples of legislative developments or police actions which would be considered as breaches.
Of course, the clause will have its critics in those who argue that it is not appropriate for the IOC to seek to intervene in this way, pointing to the increasing cost of hosting the Olympics and the limited number of states applying to host the 2022 Olympics as factors making enforcement difficult. The IOC faces a choice between Almaty in Kazakhstan and Beijing in China – Oslo in Norway having pulled out – with neither state having a particularly strong human rights record.
In the short term, the value of this clause may lie in its symbolic power.
This article first been published by The Law Society Gazette.