This is a follow-up
contribution to my previous blog on human rights
implications of the Olympic Games published last week. Together with
highlighting some of the most serious Olympic Games-related human rights
abuses, the first part has outlined the key elements of the Host City Contract
('HCC') as one of the main legal instruments regulating the execution of the
Olympic Games. It has also indicated that, in February 2017, the International
Olympic Committee ('IOC') revised the 2024 HCC to include, inter alia, explicit human rights
obligations. Without questioning the potential significance of inserting human
rights obligations to the 2024 HCC, this second part will refer to a number of
outstanding issues requiring clarification in order to ensure that these
newly-added human rights obligations are translated from paper to actual practice.
Implementation of Agenda 2020 into the HCC
In December 2014, the
IOC Session unanimously approved Olympic Agenda 2020
('Agenda 2020'), a set of 40 recommendations intended to protect the uniqueness
of the Games and strengthen Olympic values in society. Agenda 2020 makes five
specific recommendations with respect to the HCC which should have been taken
into account as of the 2022 HCC concluded between the IOC on the one hand and the
City of Beijing and the Chinese Olympic Committee on the other hand.
Agenda 2020 encourages the IOC to include in the HCC clauses reflecting the
prohibition of discrimination as well as the protection of environmental and
Fundamental Principle 6 of the Olympic Charter, now also reflected in Article
13.2. (a) of the 2024 HCC, reads as follows: ''The enjoyment of the rights and freedoms set forth in this Olympic
Charter shall be secured without discrimination of any kind, such as race,
colour, sex, sexual orientation, language, religion, political or other
opinion, national or social origin, property, birth or other status.''
Non-discrimination on the basis of sexual orientation had been absent from the
Olympic Charter prior to Agenda 2020. As far as environmental and
labour-related matters are concerned, the Host City, the Host National Olympic
Committee ('Host NOC') and the Organising Committee of the Olympic Games
('OCOG') are obliged under the 2024 HCC to ''ensure that their activities in relation to the organisation of the
Olympic Games comply with any international agreements, laws and regulations
applicable in the Host Country, with regard to planning, construction,
protection of the environment, health and safety, labour and working conditions
and cultural heritage''.
For the first time, the 2024 HCC also makes a specific reference to the United Nations' Sustainable Development Goals.
In addition to
promoting non-discrimination, environmental protection and labour-related
rights, Agenda 2020 also fosters transparency by demanding the IOC to: (i) make
the HCC public; (ii) disclose details of the IOC's financial contribution to
the OCOG; and (iii) provide the HCC at the outset of a bidding procedure.
Moreover, Agenda 2020 suggests that entities other than the Host City and the
Host NOC may become signatories to the HCC in line with the local context.
What exactly has been added to the 2024 HCC?
As indicated above, the
prohibition of discrimination,
and to a certain extent also the protection of labour-related rights,
appeared for the first time in the 2022 HCC, reflecting the recommendations
laid down in Agenda 2020.
Moving to the 2024 HCC, the core human rights provision inserted therein
demands that the Host City, the Host NOC and the OCOG in their activities
related to the execution of the Games ''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-recognized human rights standards and principles, including the
United Nations Guiding Principles on Business and Human Rights, applicable in
the Host Country''. Of
particular importance is the explicit reference to the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles'), a non-binding legal
framework intended to minimize adverse human rights impacts triggered by
business activities. The UN Guiding Principles are based on three pillars,
namely (i) the State duty to protect human rights; (ii) the corporate
responsibility to respect human rights; and (iii) access to remedy.
The following sections
will address some of the issues that remain outstanding even after the
insertion of human rights obligations to the 2024 HCC.
No direct involvement of the Host Country
First and foremost, the
Host Country itself is not directly obliged to protect and respect human rights
under the 2024 HCC. Instead, the provision discussed above imposes human rights
obligations on the Host City, the Host NOC and the OCOG. It is critical to note
that the relevant provision requires the Host City, the Host NOC and the OCOG
not only to respect, but also to protect human rights, suggesting that these
entities shall take positive actions to facilitate the enjoyment of human
rights. This begs the question whether the Host City, the Host NOC and the OCOG
have the political, legal and financial capacity to effectively take such
For instance, the Host
City and the OCOG would be expected to include human rights obligations in
their contracts with suppliers of public infrastructure and sporting
facilities. However, even if they do so under the threat of contract's
termination and further sanctions, it may not suffice to prevent Olympic
Games-related human rights abuses from occurring. Unlike the Host Country
Authorities, the Host City, the Host NOC and the OCOG do not possess the
necessary powers to monitor and adjudicate the human rights compliance of their
sub-contractors. Furthermore, much of the infrastructure build-up might be
conducted by the Host Country directly and would therefore evade the scope of
application of the HCC.
Who determines when human rights obligations are
In practice, human
rights obligations arising out of a contractual relationship are not easy to
deal with, because it might be rather difficult to decide whether they have
been observed or not. For this reason, it is essential to entrust an
independent body with competence to decide whether the Host City, the Host NOC
or the OCOG have complied with their human rights obligations under the HCC.
Unfortunately, the 2024 HCC in its current form does not stipulate who is
responsible for adopting a decision determining that the Host City, the Host
NOC and the OCOG are in breach of their human rights obligations.
It follows that the IOC
itself (via the Coordination or Legal Affairs Commission) may take on this inquisitorial and quasi-judicial
role. However, this would lead a very interested party to monitor and
adjudicate the human rights compliance of the Host City, the Host NOC and the
OCOG. The potential for a conflict of interests is evident, as the IOC could
face negative financial and other consequences if it decides to withdraw the Games
from the Host City, the Host NOC and the OCOG. In this configuration, the
incentives will therefore be strongly opposed to finding for a lack of compliance.
Instead, we could
imagine a separate, truly independent body consisting of NGO members, athletes'
representatives, union representatives, CAS arbitrators and independent experts
(such as academics or judges at the European Court of Human Rights). This body
could have an investigative and an adjudicative chamber (not unlike the FIFA Independent Ethics Committee), ensuring a separation between monitoring and adjudicating. Should the
Host City, the Host NOC or the OCOG consider sanctions imposed under such a
mechanism arbitrary, they might still activate the CAS arbitration clause
and challenge the validity of these sanctions before the CAS.
Will the sanctions contemplated by the HCC be effective?
As explained in the
first part of this blog, the most severe sanction contemplated by the HCC in
the event of non-compliance is the withdrawal of the Games from the Host City,
the Host NOC and the OCOG with prior notice. It
should be emphasized, however, that a removal of the Games would result in both
financial and reputational harm being incurred by the IOC.
Therefore, it is arguable whether the IOC would in practice be ready to
withdraw the Games. In fact, the IOC has withdrawn the Games so far only due to
the outbreak of the First and Second World War, when the Games were cancelled
altogether. Being aware of the IOC's
unwillingness to withdraw the Games, the Host City, the Host NOC and the OCOG
may not perceive the threat of losing the Games as credible. Consequently, these
entities may not feel obliged to adhere to their human rights obligations under
With regard to other
enforcement measures, the IOC is entitled, inter
alia, to retain all amounts held in the General Retention Fund
or withhold any payment due, or grant to be made to the OCOG pursuant to the
not providing the relevant financial contribution to the OCOG, the IOC would
risk delays in construction and other preparatory works – something the IOC certainly
wants to avoid. Eventually, these sanctions might prove to be as inefficient as
the threat of losing the Games, given that the IOC may turn a blind eye to
violations of the HCC in order to safeguard its financial and other interests. Besides
financial considerations, the IOC's reluctance to impose sanctions on the Host
City, the Host NOC and the OCOG follows from the fact that the IOC would
thereby implicitly acknowledge its mistaken decision to award the Games to a
particular Host City in the first place.
This blog has
identified three specific concerns potentially relativizing the impact of the human
rights obligations recently added to the 2024 HCC. First, the Host City, the
Host NOC and the OCOG as the formal addresses of these obligations may not have
the capacity to ensure the human rights compliance of their sub-contractors.
Second, the 2024 HCC in its current form lacks clarity as to when the Host
City, the Host NOC and the OCOG are in breach of their human rights obligations
and who is responsible for adopting a decision to that effect. Third, being
aware of the IOC's unwillingness to withdraw the Games due to financial and
other interests involved, it is likely that the Host City, the Host NOC and the
OCOG might refuse to abide by their human rights obligations under the HCC.
This is not to say, however, that introducing human rights requirements is not
an important step forward, but as always with this type of decisions the devil will be in the implementation.