Editor's note: Kevin Gerenni is Assistant Professor in Public International Law (Facultad de Derecho de
la Universidad de Buenos Aires) and LLM Candidate 2021 in Public International Law at the London School of
Economics.
Even though the decision rendered by the SFT in the Semenya Case was foreseeable, the Tribunal did put forward
some concerning reasoning in terms of public policy (“ordre public”) and human
rights. In case Semenya decides to challenge the Swiss state before the ECtHR,
one can expect the case to shake some grounds at the ECtHR, which would be
faced with the question of the application to sport not of fair trial
guarantees (as in Mutu & Pechstein) but of substantial human rights provisions such as the
prohibition of discrimination on the basis of sex (Article 14 ECHR) and the right
to private life (Article 8 ECHR).
Under Swiss law, the reasons that may lead to the
annulment of an arbitral award are enumerated in art. 190 of the Swiss Private International Law Act
(PILA). Semenya’s
strongest case relied on art. 190(2)(e): the award’s incompatibility with
public policy. Naturally, this point concentrated most of the SFT’s attention. In
order to analyze the compatibility of the CAS award with Swiss public policy,
the SFT focused on three main potential breaches of human rights: prohibition
of discrimination, personality rights, and human dignity. In doing so, it put
forward certain observations that differ with European human rights standards
and the ECtHR’s jurisprudence. The purpose of this short article is to analyze
those discrepancies and, consequently, Semenya’s prospects of success before
the Strasbourg Tribunal.More...