The UN ‘human rights machinery’ in a nutshell: how do treaty bodies work?
The UN ‘human rights machinery’ is composed of a ‘multiplicity of mechanisms working more or less towards the same goal’: the promotion and protection of human rights worldwide (Alston and Mégret 2013, p. 1). For the purpose of our analysis, it is useful to distinguish between conventional or treaty-based and charter-based mechanisms.
The former are ten human rights treaty committeesFootnote 22 composed of independent experts who monitor compliance with the obligations imposed by the core international human rights treaties.Footnote 23 States parties to these treaties assume the obligation to take all the necessary measures to ensure that everyone under their jurisdiction can enjoy the rights set out in them. As said, the role of the committees is to monitor compliance with this general obligation. These treaties establish specific mechanisms for this purpose. All committees conduct periodic reviews of states’ compliance following a procedure based on the periodic submission by the state party of a report detailing all measures taken during the reporting period to comply with the obligations contained in the treaty. After reviewing the report, the committee in question issues its ‘Concluding Observations’: a set of recommendations aimed to enhance the implementation of those obligations. In addition to that, several of the committees may, under certain conditions set up in the relevant treaty or in the optional protocols, receive individual complaints, called communications, regarding actual or foreseen violations of the guaranteed human rights.Footnote 24 Complaint procedures can be brought only against a state that satisfies the following conditions. On the one hand, it must be a party to the treaty guarantying the rights which have allegedly been violated. On the other, the state party must have recognized the competence of the committee monitoring that treaty to receive and consider complaints from individuals. This means that in all cases, this mechanism is optional for the state party. That is, a state can be a party to a given treaty and not accept the competence of the monitoring committee to examine individual communications. Receiving inter-state communications are also possible for several committees. Accepting the committee’s competence in this regard is also optional for the state. This is not the case for periodical reports, though. The competence of the committees is automatic in this case. Once the committee examines the admissibility and the merits of the case, it adopts a decision that represents and authoritative interpretation of the treaty. Committee’s views are communicated both to the complainant ant to the state party and made public after the session at which they are adopted. It is well known, however, that, in general, ‘effective implementation of decisions of international human rights bodies remains a significant challenge’ (Sandoval et al. 2020, p. 71) and this is especially true regarding our ten treaty-based committees, since, at least formally, they lack binding nature.Footnote 25 A final word has to be said on ‘inquiries’ and ‘General Comments/Recommendations’. Confidential inquiries, that may only be conducted with regard to states parties having recognized the competence of the committee in question in this regard, are initiated upon receiving reliable information concerning any serious, grave or systematic violations of the rights guaranteed by the treaties they monitor. General Comments or Recommendations are committees’ interpretation of human rights treaty provisions, concrete topics or their methods of work. They are usually elaborated with the purpose of clarifying the extend of the conventional obligations imposed upon state parties and suggest ways of due implementation. They are also authoritative committee’s views regarding the interpretations of concrete treaty provisions or a thematic issue.
As regards the charter-based mechanisms, in this paper, they will be identified with the so-called special procedures of the HRC. Being the most relevant intergovernmental UN body in charge of strengthening the promotion and protection of the human rights worldwide, it adopts resolutions concerning different questions related to that goal and establishes and supervises the work of a variety of subsidiary mechanisms. These include the Universal Periodic Review (UPR) process and the Special Procedures of the UN Human Rights Council. The UPR is a mechanism under which the human rights situation of all UN member states is reviewed every five years. The process is only operated since April 2008, starts with the peer-review of states’ human rights situation, ‘is followed by the implementation of the recommendations accepted and commitments made by states during the first stage, and culminates at the subsequent review with reports on the progress made’ (Domínguez-Redondo 2012, p. 676). The Special Procedures may be thematic or geographic mandates. Mandates’ holders are special rapporteurs, independent experts or working groups composed of five members who are appointed by the HRC. They are able to receive information about specific allegations of human rights breaches and send urgent appeals or letters of allegation.
It has to be taking into account that this universal human rights system coexists with the regional ones: the American, African and European systems. In these three cases, genuine permanent judicial bodies (the African Court of Human and Peoples’ Rights, the Inter-American Court of Human—IACtHR—Rights and the ECtHR) monitor the compliance of States parties to the African Charter on Human and Peoples’ Rights,Footnote 26 the American Convention on Human RightsFootnote 27 and the ECHR with their treaty obligations. Although it is not the purpose of this paper to delve into the peculiarities of each of them, the following should be noted. In all the cases mentioned, universal and regional, the victims have the possibility of lodging an application against the state they consider to be the responsible for one or more violations of the human rights contained in the corresponding instrument. While the same rights will often be protected by one or more universal treaties and by regional treaty instruments, the victims will not be able to seek simultaneous or successive protection from more than one mechanism for the same human rights violation. Considerations regarding res judicata and lis pendens will have to be taken into account (Reinisch 2004). An example of this is article 35.2.(b) of the ECHR, according to which an application that is substantially the same as a matter that has already been submitted to another procedure of international investigation or settlement and contains no relevant new information, will be declared inadmissible by the ECtHR. In another sense, it should also be noted that while regional human rights treaties clearly affirm the binding nature of these human rights court’s judgements,Footnote 28 the legal nature of the committees’ pronouncements remains controversial (Kanetake 2018).
Having briefly explained the mechanisms for the promotion and protection of human rights that operate in particular within the UN system, I will now analyse their work in relation to sporting issues. The purpose of this analysis is to reveal the absence of a systematic and relevant practice in this regard to date. An absence, on the other hand, practically ignored or at least overlooked in academia.
Sporting issues within the work of the HRC
The HRC ‘political’ pronouncements
The HRC has repeatedly referred to sport in the context of the promotion of peace and development. Specifically, it has periodically approved resolutions on promoting awareness, understanding and the application of the Universal Declaration of Human Rights through sport and the Olympic ideal.Footnote 29 However, for the purpose of our study, HRC’s pronouncements denouncing human rights violations suffered by athletes or that occur during major sporting events are more interesting. A recent example of these is the reaction to the Caster Semenya affair.Footnote 30 This episode has drawn the attention of both the UN High Commissioner for Human RightsFootnote 31 and of a group of Special Procedures of the HRC.Footnote 32 Both pronouncements agree on the idea that World Athletics regulations are not compatible with international human rights norms and standards, including the rights of women with differences of sex development to equality and non-discrimination, to physical and mental health, and to physical and bodily integrity. These international rights are enshrined in international norms of a conventional or customary nature, binding on states. It is clear that, from a technical-legal point of view, these are not formally binding rules for the SGB’s.Footnote 33 The question that immediately arises is therefore how, through what mechanisms, mandate holders could contribute to their effective implementation by engaging state responsibility. In order to try to answer this question, I will now turn to the UPR and to the Special Procedures potential in this respect.
The UPR: a possibility to make visible the commitment of states to the protection of human rights in the field of sport
Human rights violations in the field of sport have remained largely absent from this process. It follows that either states are not aware of them or do not consider them sufficiently serious. And yet we know that they are. Therefore, UPR is a mechanism that should be better exploited to make these violations more visible. In this respect, a number of initiatives pushed by representatives of the civil society and aimed to encourage its use in this regard should be mentioned.Footnote 34 The design of tools aiming to encourage states, National Human Rights Institutions and non-governmental organizations and associations to participate in the reporting process seems particularly useful. Even if the UPR is conceived as a state-driven process, civil society participation can certainly contribute to raise awareness around and make visible the violations of human rights in the sporting domain.
Special procedures of the HRC
Special procedures are a key part of the UN human rights protection system. Since its action does not depend on the ratification of a given international treaty, the consent of the state is not required. They carry out their work through a number of different procedures. First, it has to be taken into account that they can act on individual cases of alleged violations and/or concerns of structural nature by sending communications to states. They can also conduct thematic studies and convene expert consultations, as a way of contributing to the development of international human rights standards. Third, as in the case of Caster Semenya and other athletes with differences of sex development, they may engage in advocacy and raise public awareness.Footnote 35 Finally, by providing advice for technical cooperation, they can help states and non-state actors to properly fulfil their obligations.
Special procedures mandate holders apply generally recognized international human rights protection standards. In their letter related to Caster Semenya, they consider that ‘the eligibility criteria and the procedures for their implementation set forth in these regulations appear to contravene international human rights norms and standards including the right to equality and non-discrimination, the right to the highest attainable standard of physical and mental health, the right to physical and bodily integrity and the right to freedom from torture, and other cruel, inhuman or degrading treatment and harmful practices’.Footnote 36 To support this assertion, they refer to the most relevant international legal instruments that guarantee these rights, on the one hand, and to previous pronouncements of other international human rights protection bodies, both charter and treaty based, on the other. Surprisingly, however, the letter does not contain references to the Yogyakarta Principles on the application of IHRL in relation to sexual orientation and gender identity.Footnote 37 The Principles were adopted in 2007 by a group of experts and expanded on their tenth anniversary.Footnote 38 The Yogyakarta Principles do not expressly refer to rights in sports. The YP+10 Principles do. First, additional obligations on states are set out in relation to Principle 2 (non-discrimination). Second, specific recommendations are addressed to sports organizations. They are asked to integrate the principles adopted in both 2007 and 2017, along with all relevant human rights norms and standards, into their policies and practices.
Pronouncements by the mandate’s holders on human rights violations in sports are not common. Examples include the Report on girl’s right to education adopted by the Special Rapporteur on the Right to Education in 2006. The Special Rapporteur considered the question of equality and non-discrimination in the field of sport, in this case between girls and boys, and underlined that ‘boys usually have sufficient space to practice certain sports’ while ‘girls are not provided with similar space’.Footnote 39
The work of the UN treaty monitoring bodies
An overview on the practice so far…
A preliminary conclusion can be announced. Questions related to the protection of human rights in the domain of sport have been marginalized in the UN treaty bodies’ work. It should be noted at the outset that it has never been directly addressed by any of the committee’s pronouncements. In particular, the almost complete silence of the committees in their General Recommendations/Comments is striking.Footnote 40 Of course, no General Recommendation/Comment has been adopted that focuses specifically on one or more of the human rights violations that occur in the field of sport. Second, the issue has been given scant consideration in the Concluding Observations as a consequence of the information periodically submitted by states in compliance with their obligations under human rights treaties whose compliance they monitor. Even so, we can cite some cases in which, exceptionally, the sporting issue emerges in the analysis of the relevant committee. Thus, the HRC has repeatedly referred to the persistence and importance of discrimination against women in the sport domain in certain countries and has affirmed that such discriminations breach article 3 of the International Covenant on Civil and Political Rights.Footnote 41 The CEDAW Committee has also addressed this issue. For example, in the Concluding Observations to the seventh periodic report submitted by Italy,Footnote 42 the Committee showed concern about the underrepresentation of women in sports federations and about the fact that women’s sports competitions are allocated a significantly lower share of broadcasting time.Footnote 43 But far from making concrete recommendations, the Committee confined itself to highlight the need of pursuing efforts to achieve substantive gender equality in sports, including through the use of temporary special measures.Footnote 44 Examples from the CRCFootnote 45 and the CRPDFootnote 46 can also be cited.
Finally, the committees have also hardly addressed any alleged violations through individual communications. A thorough search in the committee’s jurisprudence databaseFootnote 47 brings to light that athletes haven’t resorted to this mechanism. As we will see below, a variety of combined reasons could explain this underutilization. Here too, however, I can refer to some examples.
In Hagan vs. Australia,Footnote 48 the CERD concluded in 2003 that the use of an offending term in a football stadium grandstand and orally during the matches in honour to a famous sporting personality was in breach of the International Convention on the Elimination of All Forms of Racial Discrimination.Footnote 49 In 2016, the CESCR declared inadmissible the communication submitted by a Colombian national on behalf of her minor son. He had received refugee status in 2009 in Ecuador, where the whole family had moved in 2002 to escape the violence in Colombia. The author of the communication claimed that her son was the victim of the violation by Ecuador of some of the rights enshrined in the Convention due to the refusal of the sporting authorities to register him due to his refugee status. The refusal prevented the minor from participating in certain competitions for which he had been selected.Footnote 50 The CESCR decided that the communication is inadmissible under article 3, paragraph 1, of the 2008 Optional Protocol establishing the competence of the committee to receive and consider communications since it concluded that domestic remedies had not been exhausted. Of course, a committee decision on the merits in a case where an SGB is at the origin of the alleged violation of the convention by the state would have been very interesting. The last example to be mentioned it’s a much more recent one: the case of Yuliya Stepanova and Vitaly Stepanov vs. Russian Federation before the HRC. The victims are two of the whistle-blowers who revealed the Russian doping programme that ended up in the imposition by the IOC and WADA of sanctions on both athletes and Russian sports federations from 2016. They allege the violation of different rights protected by the ICCPR for which the respondent state would be responsible.Footnote 51 In particular, those protected under articles 7 (prohibition of cruel, inhuman and degrading treatment and the prohibition of medical experiment without consent), 8.3.a) (right no to be subject to force labour or slavery), 17 (right not to be subject to arbitrary or unlawful interference with privacy and family or to unlawful attacks on honour and reputation), 19 (right to freedom of expression, and 23 (rights of families), in connection with article 2 (duty to respect and give effect to the Covenant).
…and some preliminary conclusions
Sports-related human rights violations have so far been largely absent from the work of UN treaty-based human rights monitoring bodies. They have not addressed the issue either on their own initiative or at the request of potential victims. I will turn now to the possible reasons for this omission, on the one hand, and its consequences, on the other. Later in this paper, I will reflect on the possible advantages of a more decisive intervention of these mechanisms and the benefits this would have for the protection of the human rights of athletes and in the field of sport.
Let’s start with the reasons behind UN human rights monitoring bodies’ silence on sporting issues. First, it has to be taken into account that disputes arising in the field of sports usually demand a prompt response. As known, average span of professional athletes’ careers is relatively short, which may prevent the answer of the committee from timely solving the problem. On the one hand, it has to be considered that exhaustion of domestic remedies is required before submitting a communication unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.Footnote 52 On the other, length of the procedures has to be taken into account. Although the duration of the procedure varies from committee to committee, ‘for cases concluded in 2016, for example, it took the relevant committees, on average, three and a half years to reach their final Views’ (Limon 2017, p. 25). Second, the sport movement shows a certain reluctance to let athletes to get their problems solved by ordinary courts.Footnote 53 Such an attitude is heavily influenced by the idea of specificity of sport and may even turn into incorporating the prohibition of accessing ordinary justice in the statutes of sporting federations. But it also works the other way round. As Nafziger has put it, the ‘historic reluctance’ of domestic courts to adjudicate issues arising in the sports arena can be explained by the unfamiliarity with the subject matter and structure of sports (Nafziger 1992, p. 510). Finally, a risk of suffer reprisals from the sport movement is not an imaginary one. The case of the Belgium footballer, Jean-Marc Bosman,Footnote 54 provides a useful example in this regard. His historical judicial success, that have been labelled as a hollow victory, ‘alerted potential litigants to the costs of challenging the game structure’ (Weatherill 2017, p. 99). Institutional condemnation of sportspeople who seek access to judicial remedies is one of the key elements explaining the success in the effective establishment and enforcement by the sport governing bodies (SGB’s) of the lex sportiva (Schwab 2018, p. 218). However, UN committees could address human rights violations in sport even in the absence of victims’ complaints. They could do so, for example, in the general comments or concluding observations that follow the periodic reports of states.
What are the consequences of this? Firstly, it makes the UN human rights protection system appear to be oblivious to human rights violations in the sporting environment. Of course, this feeds back into the idea that it is not an adequate or useful system in this sense, which leads to perpetuating its failure to be taken into account in strategies to defend the human rights of athletes. Secondly, they are therefore deprived of a possible means of defending their rights. Finally, states do not receive guidelines on how best to fulfil their obligation to protect athletes’ rights, leading incomplete developments in IHRL regarding the protection of human rights in sports. The latter is a fundamental issue. It should not be lost sight of the fact that these mechanisms, like the ECtHR, are called upon to declare the responsibility of the state for non-compliance with obligations contained in international human rights treaties. This lurks serious questions related to when it can be considered that such responsibility should be declared, in particular when non-state actors are at the origin of the violations. Similarly, it is worth asking how a stronger contribution of the UN’s international human rights protection bodies would lead to raising the standards of human rights protection in this area.
It should be recalled, in any case, that the procedures and mechanisms referred to above are aimed at determining the responsibility of states for non-compliance with the obligations imposed by the IHRL. In the case of General Comments/Comments, the main purpose of the Committees is to clarify or outline the scope of those obligations. This forces us to address two different issues. On the one hand, and given that in most cases the origin of human rights violations in sports lies in norms or practices emanating from the sporting movementFootnote 55, it must be considered under what circumstances the responsibility of the state could be declared in such cases. And, on the other hand, how this could contribute to the better protection of human rights in the field of sport. This will be discussed in the following section.