UNESCO International Convention against Doping in Sport and the Obligations Erga Omnes Partes-Sepehr Saremi

Sepehr Saremi - Ph.D. Candidate of International Law at Allameh Tabataba’i University
2024/01/04

What happened in the Sochi Winter Olympics sent shockwaves across the international sports community. In two reports, prepared and written by Canadian lawyer Prof. Richard McLaren and his team mandated by WADA, it was revealed that the Russian Federation has orchestrated state-sponsored doping among its athletes. Since then international sports law experts (including Faraz Shahlaei here and here and David Pavot here) have inked on issues such as the responsibility of states for state-sponsored doping, accountability of states, human rights victims of such breaches, methods of compensation, etc.

I also have been studying and writing my Ph.D. thesis on the world of the fight against doping in light of public international law. Needless to say, the contributions of the aforementioned experts were a huge help in my work. A few months ago, I came across the article titled A New Tool for Enforcing Human Rights: Erga Omnes Pates Standing apart from the fact that it was very informative and interesting, it gave me a new perspective and angle on the area of the fight against doping which to my knowledge has not been debated elsewhere.

 In the aforesaid article, a two-fold framework for the identification of Erga Omnes Partes character has been formed. Relying on this method which was studied by its authors meticulously, I intend to assess some obligations stipulated in the UNESCO International Convention against Doping in Sport (UNESCO Convention).  This Convention was adopted by the 33rd session of the UNESCO General Conference in 2005. The UNESCO Convention is a crucial instrument for ensuring fair play in sports by aligning anti-doping laws, regulations, and rules globally. This international treaty is unique in its focus on anti-doping and provides governments with the legal framework necessary to implement the World Anti-Doping Code.

The framework I mentioned before consists of two criteria. 1. Common interest of state parties. 2. The relevance of the provision invoked to the common interest. These two criteria are in line with the definition given by the Institut de Droit International. I do not intend to delve into the intricate and complicated issue of the difference between Erga Omnes and Erga Omnes Partes obligations. I just aim to evaluate the obligations of UNESCO in light of the two named criteria.

To begin with, it should be established that the UNESCO Convention entails a common interest among State Parties. In other words, as Koskenniemi has pointed out, it should be confirmed that there are no quid pro quo relations.  Article (1) UNESCO Convention stipulates that the purpose of this Convention is to promote the prevention of and the fight against doping, with a view to its elimination. Evidently. The obligation to fight against doping is not a state-to-state obligation.

As Stated In The Ninth Conference Of Parties (9CP), the Convention pursues the realization of certain ideals, and the commitments entered into by the state parties are intended to confer reciprocal rights and benefits on each other. Therefore, I opine there is no doubt that there is a common interest among State Parties in complying with the provisions of this Convention. Interestingly, in CP9 parties also declared the obligations under the UNESCO convention are erga omnes, but no explanation and clarification were given.  To consolidate this position, due regard should be given to the preamble of the UNESCO Convention which has highlighted the importance of the fight against doping concerning the health of athletes, the principle of fair play, the elimination of cheating, and the future of sport.

The second criterion requires locating some provisions that when breached, will lead to the defeat of the purpose and ipso facto the breach of the common interest of the State Parties. Having read articles (8), (14) and (16) of the UNESCO, both their wording and content make these provisions the candidates to be a relevant provision.

Article (8) emphasizes regulation access and use of banned substances while allowing exceptions for medical needs. This article can be broken down into three parts: 1. Restriction of availability; 2. Prevention measures; and 3. Medical use. It goes without saying that if State Parties do not restrict the availability of prohibited substances and if they do not use their capacity to prevent athletes from using prohibited substances, the purpose of the UNESCO convention is already futile. Article (14) accentuates the commitment of State Parties to support WADA and its mission in the fight against doping. Article (16) can be also divided into the main following areas: 1. Facilitation of doping control; 2. Cross-border cooperation; 3. Sample integrity; 4. International coordination; 5. Laboratory cooperation; 6. Reciprocal Testing Arrangements; and 7. Mutual Recognition of Procedures. It is obvious that in the very complex and sophisticated system of the fight against doping, any non-compliance with the aforesaid obligation will fail the combat against doping.

As a final point, I believe that the UNESCO Convention embraces obligations that if breached (as what took place in the Sochi Winter Olympics) will bring about the defeat of its purpose and object. Therefore, the common interest of the State Parties will certainly be compromised. Although as long as a dispute settlement mechanism has not been provided for in the UNESCO Convention, discoursing the nature of obligations therein might not be as effective as it is expected to be, I believe that highlighting the importance of the nature of those obligations might accelerate or at least incentivize the insertion of a dispute settlement mechanism.