Respecting the Right to Nationality in International Sport

Abstract

International sports pledge to eradicate discriminatory practices, yet paradoxically continue to support discrimination on the grounds of nationality. Athletes compete as part of a national team. This requires sporting associations and the International Olympic Committee (IOC) to make distinctions among athletes merely on the grounds of nationality. The Olympic Charter does this. Because of this need to make nationality distinctions, those associations must also develop nationality rules. These rules force choices of nationality and place restrictions on the ability to compete for the new national team. When athletes wish to change nationality, they risk falling into a nationality limbo, where they cannot compete, for lack of a sports nationality.

In contrast to international sporting rules and the Olympic Charter, international human rights law takes a different approach to nationality as a human right. Every individual has a right to a nationality. This nationality is often the source of other rights, such as political participation, employment and education. In addition, this right includes the right to change nationality. However, the IOC limits recognizing nationality changes. The result is that athletes who do not satisfy nationality rules can be deemed de facto stateless for sport, even though the creation of statelessness is largely prohibited. For these reasons, IOC rules on change of nationality do not live up to the Committee’s own human rights aspirations and the Olympic Charter must be amended to respect the rights to nationality.

1 Introduction

International sports are not in compliance with international human rights law in regards to nationality. This is exemplified by the Olympic Games, which are entirely structured around the concept of nationality, both ceremonially and substantially. Olympic athletes must be members of a National Olympic Committee (NOC), in addition to the relevant International Sports Federation (IF) governing their particular sport (e.g., the International Tennis Federation (ITF)). In order to join an NOC, each athlete must have the nationality of the state with which the NOC is affiliated. Athletes then compete on the basis of nationality, generally on teams composed entirely of co-nationals; should they win a medal, they do so in the name of the state and its NOC. If an athlete possesses more than one nationality, or loses their nationality to acquire another, then the NOC faces a challenge, since changes to nationality require changes to NOC membership. In order to provide for orderly transitions, the Olympic Charter includes rules related to changes of nationality. However, these rules do not fully respect international human rights on nationality.

As a whole, states have significant freedom to prescribe rules on nationality; international law covers the right to have, acquire, and change nationality, as well as rights against discrimination on the basis of nationality or national origin. While there is no particular right to possess multiple nationalities, there is a right to one nationality, and states cannot render individuals stateless. States can, however, refuse to respect grants of nationality from other states, as expressed in the famous Nottebohm case at the International Court of Justice (ICJ), although the actual application of Nottebohm is not as broad as often claimed. As such, states are limited in their ability to refuse nationality, except for situations of multiple nationality, where there are stronger connections to one state compared to another. Beyond this narrow exception, states must respect the individual’s freedom to change their nationality. States are permitted to make some distinctions among individuals based on nationality, but again, those situations are very limited. In all of these situations, when states propose to withdraw nationality, curtail nationality changes, or make nationality distinctions, they must act only to achieve legitimate aims through proportionate measures.

International law on nationality applicable to states stands in partial opposition to nationality rules at the Olympics. For one, the Olympics classifies athletes by nationality, yet nationality discrimination is prohibited by international law. The Olympics also limits the ability to change nationality, yet changing nationality is a protected right and treating athletes on the basis of former nationality implicates discrimination on the basis of national origin. Athletes also face the assimilation of dual nationality to nationality change, ignoring which state has stronger connections. During the lengthy process of nationality change, the Olympics can treat an athlete as if they were stateless, which is forbidden by international law. The question, then, is whether the Olympics has any underlying justification for these measures that can pass scrutiny. While several justifications can be identified, they are surprisingly weak, and the blanket nationality rules are far too broad to support them. Therefore, nationality rules at the Olympics constitute a violation of international human rights.

This is perhaps a surprising thesis given that the International Olympic Committee (IOC) claims to respect and protect human rights. The Olympic Charter and other Olympic documents contain language that strongly rejects discrimination on numerous grounds. Yet the problematic rules on nationality, as the basic organizing principle of the Olympics and international competition, tend to go unnoticed. One can imagine the international uproar were the Olympic Charter to discourage freedom of thought or bodily integrity. Nationality should be no less protected as a fundamental human right. This chapter suggests an amendment to the Olympic Charter that would abolish the nationality classification scheme or at least permit a freer change of nationality, thus avoiding the creation of de facto statelessness.

Throughout this chapter, it is assumed that international legal standards, such as those enshrined in the International Covenant on Civil and Political Rights (ICCPR) and other human rights instruments, constitute the relevant standard. This chapter will not analyze whether the IOC is formally bound to follow human rights law in a manner comparable to states, resulting in responsibility. The Court of Arbitration for Sport (CAS) has determined that international human rights law on nationality is applicable to sports, unless otherwise specified.¹ For example, the CAS has applied international law on nationality to determine whether an athlete is stateless, in spite of the views of the IOC and NOC.² Ultimately, CAS decisions on sport arbitration fall under the jurisdiction of the European Court of Human Rights due to Switzerland’s judicial oversight. This chapter argues that the Olympics should at least follow the spirit of international human rights since the IOC has pledged to comply with these standards.³ However, for the sake of clarity in the analysis, the chapter will apply human rights law to the actions of the IOC, in a manner similar to how human rights would apply to a state, as if the IOC were formally bound. As such, the chapter will describe the nationality classification system and the rules on election and change of nationality; it will clarify the law on nationality-based discrimination, the right to a nationality, and the right to change nationality, following Nottebohm and other recent case law from the ICJ, CAS, and other authorities. Because of the partial overlap between nationality-based discrimination and national origin discrimination, it will also clarify this distinction. Finally, it will note where Olympic practices deviate from international law, critique those practices, and recommend changes to bring those practices into compliance.

The structure of the chapter proceeds as follows. After the introduction, Sect. 2 identifies and critiques the nationality classification system at the Olympics. Section 3 compares multiple nationality and change of nationality rules under international law and the rules of the Olympics. Having concluded in those sections that the Olympics violates international human rights standards, Sect. 4 tests whether those nationality rules can nonetheless be justified as proportionate to legitimate aims. The final section concludes with recommendations for changes to the rules and practices of the Olympics.

2 Classification on the Basis of Nationality

At its core, the Olympic Games maintain a discriminatory regime on the basis of nationality categorization. The IOC argues that it is autonomous⁴ and independent⁵ from state governments, and while it cooperates with them, it maintains it is politically neutral.⁶ But there is one area where this independence and neutrality does not apply: nationality. The IOC encourages and enforces laws from state governments regarding nationality and fundamentally supports the current political world order that separates people into states by nationality. An athlete must fall into some state citizenship classification category in order to compete, and if they do not, they may be excluded. In the rare situation that an athlete is permitted to compete as stateless, their participation is nonetheless still classified by their exclusion from the state citizenship scheme. Peter Spiro has argued forcefully for the end of the use of nationality in the Olympics based on the increasingly widespread adoption of dual nationality laws, the realities of athletes’ international life, and the arbitrariness inherent in the nationality system.⁷ This section argues that, in addition to these considerations, the nationality system in international sport is potentially discriminatory and contrary to contemporary human rights law.

2.1 The Nationality Classification System in International Sport

According to the Olympic Charter, athletes may only participate if they meet certain qualifications: they must respect the Olympic Charter;⁸ they must have a nationality that has an NOC;⁹ and their nationality must be from a state recognized by the international community. The Charter states that a “country” is a state recognized by the international community¹⁰ in alignment with the recognized name and territory of that state.¹¹ It is doubtful that this latter requirement is still applied with such strict rigor,¹² as the CAS has held that Puerto Rico was a valid nationality for participation,¹³ and Taiwan has been permitted to participate as “Chinese Taipei” on several occasions,¹⁴ even though neither is recognized as a ‘state’ by the international community. Nevertheless, these unusual situations still largely follow the general intent of the rule that an athlete must participate in a category of some territorial-based, political, quasi-state entity.

In addition, even if an athlete has a qualifying nationality, they must also comply with potentially more burdensome qualification criteria of their respective NOC¹⁵ and IF.¹⁶ These requirements are strange, considering the fact that the Charter declares the NOC only serves the purpose of selecting athletes to compete in the Olympics,¹⁷ as well as promoting the Olympics in their country,¹⁸ and that IFs are only meant to contribute “technical direction” to competition.¹⁹ Although in other contexts, the Charter declares that NOCs “represent … their respective countries at the Olympic Games”.²⁰ In any event, every athlete must be qualified by having a nationality, and the Charter permits distinctions between athletes on the basis of their nationality.

The IOC has shown that these rules on nationality can be applied flexibly. For example, while the Charter is quite clear that an athlete must have nationality in a recognized state, represented by a NOC, non-state entities have been admitted as NOCs, and the IOC has just recently permitted a new non-state “Refugee Team”.²¹ However, the Refugee Team includes participating athletes who have a nationality de jure but whose state and/or NOC will not support or protect them.²² This concept is quite distinct from a truly stateless person who is lacking any nationality de jure.²³ Nonetheless, the entire system of the Olympic Games is based on a structure where nationality, or lack thereof, is the central organizing principle, rather than purely individual competitiveness in sport.

2.2 The Prohibition of Discrimination on the Basis of Nationality

This system of classifying and qualifying athletes by nationality creates and supports a system of discrimination; specifically, discrimination on the basis of nationality, and potentially also on the basis of national origin. In its numerous documents, the IOC repeatedly affirms that it prohibits discrimination “of any kind” without limitation.²⁴ Examples are provided regarding the kinds of discrimination that is prohibited, including “race, colour, sex, sexual orientation”;²⁵ discrimination on the basis of “national origin”²⁶ any “other status”,²⁷ is also explicitly prohibited. The IOC maintains that sport is a “human right”²⁸ and conducted for the benefit of “humankind,”²⁹ not for the states concerned.³⁰ With that said, the Charter appears to narrow this absolute prohibition to “discrimination affecting the Olympic Movement”,³¹ suggesting that the forms of prohibited discrimination must have some bearing on the conduct of international sport.

The UNESCO International Charter of Physical Education, Physical Activity and Sport permits only one kind of discrimination: on the basis of sporting ability.³² Indeed, this is a form of meritocratic discrimination that is defensible in the context of sport and, as such, could be the only form of discrimination that is inherently necessary for the purpose of the Olympic Movement.³³ However, given that the Olympic Charter simultaneously prescribes distinctions on the basis of nationality, it is difficult to imagine that the Charter can prohibit nationality-based discrimination. There are other sources of international human rights law that do prohibit nationality discrimination. Both nationality and national origin discrimination are addressed by a number of international human rights treaties; many cover “national origin” explicitly, some include “nationality,”³⁴ and others have been interpreted to cover nationality, though they might only specify national origin and/or “other status”.³⁵ In addition, there is a nuanced distinction between discrimination by a state against foreigners, and discrimination between foreigners who possess nationalities of different states.³⁶ Because the IOC is not a state, and it is impossible for it to discriminate between citizens and non-citizens, this section will only address discrimination among nationalities. As is apparent in the interpretation of the following treaties, nationality-based discrimination is implicit in virtually any anti-discrimination regime.

The ICCPR, much like the Olympic Charter, prohibits “discrimination of any kind”, listing the protected grounds of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.³⁷ In Article 26, on the right to equality before the law, the above list of protected grounds is referenced, and it states that this protection applies to “any discrimination” against “all persons”.³⁸ However, in Article 13, on expulsion, and Article 25, on civil and political participation, the ICCPR refers to “citizens” and “alien[s]” as distinct categories,³⁹ so it can be understood that the Covenant provides an exemption to the usual rule against discrimination, including on the basis of nationality. The UN Human Rights Committee has concluded that the rights in the ICCPR apply to persons regardless of nationality.⁴⁰ Thus, any such distinctions that invoke nationality would need to be justified as legitimate and proportionate.⁴¹

The International Covenant on Economic, Social and Cultural Rights (ICESCR) contains the same language as the ICCPR, prohibiting “discrimination of any kind” against persons on the basis of various characteristics or “other status”.⁴² This instrument, considering its content, prohibits nationality discrimination with only one exception,⁴³ demonstrating that discrimination on the basis of nationality was otherwise prohibited. The Committee on Economic, Social and Cultural Rights has stated that the ICESCR prohibits discrimination on the basis of nationality.⁴⁴

Both the European Convention on Human Rights (ECHR) and American Convention on Human Rights (ACHR) prohibit nationality discrimination. The ECHR covers “everyone”,⁴⁵ and prohibits discrimination on various grounds “such as” sex, race, and so on, including “national or social origin” and “other status”.⁴⁶ In a few areas, it permits nationality discrimination.⁴⁷ The ECHR notes that these are deviations from the general rule prohibiting nationality discrimination,⁴⁸ and has been interpreted to prohibit nationality discrimination insofar as such treatment also infringes on an individual’s right to their identity.⁴⁹ Thus, measures that discriminate on the basis of nationality must be justified⁵⁰ and only “very weighty reasons” would suffice.⁵¹ For example, discrimination between EU and non-EU citizens for purposes of deportation law was justifiable,⁵² but nationality discrimination for social security benefits was not.⁵³

The ACHR also protects individuals from nationality discrimination. It covers “all persons … without any discrimination” on the grounds of “race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition”.⁵⁴ Although it does not use the phrase “such as”, it does include “any other social condition”.⁵⁵ The ACHR refers to nationality in several places, with some of the references more aligned with national origin,⁵⁶ and others with citizenship (such as the “right to a nationality”).⁵⁷ By its terms, few rights may be limited on the basis of nationality,⁵⁸ and the instrument is understood to generally prohibit nationality discrimination.⁵⁹ The Inter-American Court of Human Rights has upheld this protection, demanding that distinctions on the basis of nationality be legitimate and proportionate,⁶⁰ although some measures may survive this scrutiny.⁶¹

The Convention on the Elimination of All Forms of Racial Discrimination (CERD) also covers nationality discrimination, though this coverage has recently been challenged by the International Court of Justice (ICJ).⁶² The CERD largely follows the format of the other treaties, prohibiting “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin”.⁶³ However, it also exempts “distinctions … between citizens and noncitizens”,⁶⁴ which led the ICJ to conclude that the CERD does not cover discrimination on the basis of nationality.⁶⁵ While other tribunals have determined that “national origin” in other treaties can mean the same thing as “nationality”,⁶⁶ the ICJ took the position that the CERD did not consider such a definition.⁶⁷ This interpretation was met with discomfort by the CERD Committee, because it held that nationality discrimination was clearly covered by the CERD.⁶⁸ The ICJ did, however, agree that the CERD prohibits national origin discrimination, which it viewed as an immutable characteristic of descent and heritage acquired at birth,⁶⁹ as opposed to nationality or citizenship which was changeable.⁷⁰

All of the treaties discussed in this section cover national origin, and most cover nationality, with the single exception being the contested interpretation of the CERD. Nationality discrimination is well founded in international human rights law and derogations must be legitimate and proportionate. Insofar as the IOC has pledged to comply with human rights, including protection from nationality-based discrimination, its engagement with human rights and anti-discrimination must cover nationality-based discrimination. The only question that remains is whether those nationality-based measures can be justified. Before assessing nationality discrimination for proportionality, the next section will consider other nationality issues that arise under human rights law.

3 Multiple Nationalities and Change of Nationality

Based on the general issue of classification, and thus discrimination, on the basis of nationality, the Olympic Charter also includes rules on change of nationality and dual nationality to enforce the nationality system. In international competition, an athlete is treated as having one nationality.⁷¹ The rules on holding a single “sport nationality” at a time have been adopted in turn by NOCs and IFs.⁷² As such, under IF rules an athlete could have a “football nationality,”⁷³ a “basketball nationality,”⁷⁴ an “ice hockey nationality”⁷⁵ or a “swimming nationality”.⁷⁶ This rule is only necessary because the Olympics is organized by nationality; a different structure would render nationality, change of nationality, dual nationality and even no nationality, as concepts only relevant for the administrative purpose of securing visas. The CAS has declined to explain the precise relationship between nationality and sports nationality.⁷⁷ While it has acknowledged that the concepts of nationality and citizenship have a nuanced distinction in international law,⁷⁸ it has failed to make this distinction in the realm of international sports.

3.1 Election and Change of Nationality Rules

As some athletes discover, the Olympic Charter takes no view on changing nationality under domestic law but may place restrictions on the athlete’s ability to compete for the new national team. First, the individual would need to have the nationality of the relevant state under domestic laws. The CAS has repeatedly determined that domestic laws on nationality cannot be reviewed,⁷⁹ though it has examined the application of domestic nationality laws to determine whether an individual qualifies as a national.⁸⁰ In short, international sport will look to a state’s laws for determining nationality.⁸¹ Even when states discriminate between nationals who acquired nationality by birth or by naturalization—a distinction generally avoided by human rights law⁸²—the CAS has recognized the independence of the state to prescribe nationality laws.⁸³

Second, if an athlete has the nationality of the state, then the next question is whether they have the “sports nationality” sufficient to be selected by an NOC for competition. The CAS has ruled that sports nationality need not directly follow from nationality in a state.⁸⁴ As for cases of multiple nationality, the Olympic Charter states that the athlete must select one nationality for competition; should they wish to change to another nationality in a future competition, they must comply with the same change of nationality rules that apply to situations where an athlete has acquired a new nationality and lost a previous one.⁸⁵ If an athlete has ever competed for a national team, then they are prohibited from competing for the new national team for 3 years.⁸⁶ While the CAS has previously shown flexibility in interpreting the term “nationality”⁸⁷ and “change”,⁸⁸ it has concluded that the 3-year waiting period rule is “clear”⁸⁹ and “straightforward”,⁹⁰ leaving little room for ambiguity. By comparison, under Fédération internationale de football association (FIFA) rules, the first election of nationality can be tested by registration with a club,⁹¹ and cannot be reversed without showing bad faith in the initial registration.⁹² The FIFA test has not been applied by to the Olympics, so it may not be possible to reverse an election of nationality to circumvent the 3-year ban.

In addition to the 3-year wait, other rules may restrict a change in sports nationality. In some cases, the 3-year period can vary; for example, if the state granting the naturalization had any delay in processing.⁹³ The IF might also have more onerous nationality rules,⁹⁴ distinguishing between particular forms of nationality acquisition the federation views as legitimate. While applying the Fédération Internationale de Basketball (FIBA) rules, the CAS ruled against automatically designating a person as having a sports nationality based on place of birth, regardless of whether the athlete has competed for the national team.⁹⁵ It has previously upheld nationality rules limiting nationality qualification to the traditional means of jus soli, jus sanguinis, and “[s]ome other exceptional legal concept”.⁹⁶ In addition, the CAS upheld an IF demanding that an athlete reside for a certain period of time in the state in order to claim its nationality.⁹⁷

The 3-year waiting period can be reduced in two particular situations. One option is for a waiver of the rule by exclusive discretion of the IOC,⁹⁸ with the agreement of the relevant IFs and NOCs.⁹⁹ The CAS has confirmed that the refusal of those bodies to agree is not reviewable by any authority. The IOC does not produce statistics on the agreement of IFs and NOCs, so the actual possibility of such a waiver, based on historical data, is unclear. The only other exception is that the 3-year waiting period does not apply in the case of states acquiring independence. In these cases, the athlete may choose, and only choose once, which national team to join, either the prior state or the newly independent state, and skip the waiting period.¹⁰⁰ Any subsequent decision to change nationality will result in the 3-year waiting period under the normal rules on changing nationality.

This system means that an athlete who has lost their nationality and acquired a new one, cannot compete for the prior team because they no longer have that state’s nationality, and cannot compete for the new team unless they wait 3 years. Effectively, the athlete is ‘stateless’ for the purpose of sport. Although the person might hold de jure nationality in relation to the state, the individual cannot exercise one of the benefits of having a nationality: the ability to compete under that state’s flag.

3.2 The Right to a Nationality

Nationality is widely protected under a range of sources of international human rights law, and the interpretation of that law informs the IOC of the practices it should adopt. Most major human rights instrument provide for the right to a nationality, including the ICCPR,¹⁰¹ CERD,¹⁰² the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),¹⁰³ the International Convention on the Rights of All Migrant Workers (Migrant Workers Convention),¹⁰⁴ and the Convention on the Rights of Persons with Disabilities (Disabilities Convention).¹⁰⁵ This development in the law, providing for a right to a nationality, arose in parallel to the associated movement to abolish statelessness. Several treaties prohibit the creation of statelessness,¹⁰⁶ and the prohibition of statelessness has become a norm of customary international law.¹⁰⁷ Some regional treaties also protect the right to a nationality (e.g., the ACHR).¹⁰⁸ The ECHR does not protect a right to a nationality as such,¹⁰⁹ though protection against statelessness is indirectly protected through other rights in the Convention.¹¹⁰ More directly, the European Convention on Nationality protects the right to a nationality,¹¹¹ although it has fewer parties than the ECHR (21 compared to 46). Similarly, the African Charter on Human and Peoples’ Rights does not expressly cover nationality,¹¹² but has been interpreted by the African Commission on Human and Peoples’ Rights to cover it.¹¹³ In addition, the right to nationality has been reaffirmed in non-treaty declarations, such as the Universal Declaration of Human Rights (UDHR),¹¹⁴ and United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).¹¹⁵ Some authorities, such as the Inter-American Court of Human Rights, have gone so far as to argue that the right to a nationality is a non-derogable right.¹¹⁶ Holding multiple nationalities, however, has not been widely understood to constitute a right.¹¹⁷ It has previously been concluded that when individuals possess more than one nationality their state of nationality is free to regard them as only having one nationality vis-à-vis the state.¹¹⁸

Nationality is therefore protected and states may not deprive individuals of their nationality arbitrarily.¹¹⁹ If an individual has only one nationality, then that nationality may not be revoked at any time;¹²⁰ deprivation that is discriminatory is also arbitrary and prohibited.¹²¹ Nationality laws may not prescribe or be applied in a manner that discriminates on the basis of race, color, gender, religion, political opinion, or national or ethnic origin.¹²² Other deprivations may also be arbitrary when they are not proportionate to a legitimate purpose.¹²³ For example, the Eritrea-Ethiopia Claims Commission held that revocation of nationality was acceptable when it was undertaken for security purposes or when a person had another nationality.¹²⁴

In conclusion, international law forbids depriving an individual of nationality on an arbitrary basis. The creation of statelessness should always be considered arbitrary, but actions based on discrimination, such as national origin discrimination, are also arbitrary; states may not restrict change of nationality in an arbitrary manner. For the Olympics, the question is whether the 3-year waiting period, and possible additional restrictions by IFs, constitute an arbitrary limitation on the right to change one’s nationality, and an arbitrary deprivation of a ‘sport nationality’ resulting in ‘sports statelessness’. Where an athlete was completely prohibited from competition due to de facto ‘sports statelessness’, the CAS has found that this constitutes a loss of nationality.¹²⁵

3.3 The Right to Change Nationality

The right to a nationality also includes the right to change nationality.¹²⁶ In the Nottebohm case at the ICJ, the Court held that states did not have to give effect to a claim of diplomatic protection when the nationality of the individual was not supported by a “genuine connection” with that state.¹²⁷ However, the Court did not question the underlying grant and change of nationality. The Court explicitly stated that states are free to grant their nationality as they see fit,¹²⁸ and that it did not seek to make any determination of the validity of the individual’s nationality.¹²⁹ The question in the case was whether there were any international effects of that valid grant of nationality.¹³⁰ In the more recent Preliminary Objections Judgment in the Interpretation and Application of the International Convention on the Elimination of All Forms of Racial Discrimination case,¹³¹ brought by Qatar against the UAE, the Court affirmed its views in Nottebohm that nationality is a changeable political-legal status.¹³² In his dissent, Judge Robinson also noted that Nottebohm must be read in harmony with the development of human rights law in the years since the judgment.¹³³

Nottebohm is dubious authority for international sport. Insofar as it proposes to apply its ‘genuine connection test’ to an individual with one nationality, the Court’s conclusion in the case has since been proved to have been incorrect. The Court relied on an analogy to situations of dual nationality,¹³⁴ to which the dissenting judges objected.¹³⁵ In its holding, the Court observed that its decision addressed whether the individual was “more closely connected with the population of the State conferring nationality than with that of any other State”,¹³⁶ which suggests that the ICJ may have considered the individual to have had a de facto, though not de jure, alternative nationality. Thus, the decision may have been wrong on its face.

Nottebohm has not fared well since 1955, with most authorities in the law of nationality having rejected its central premise,¹³⁷ or at least that the case should be limited to only situations of diplomatic protection.¹³⁸ Several authorities concluded that Nottebohm is only applicable to situations of diplomatic protection of individuals with multiple nationalities.¹³⁹ The International Law Commission rejected Nottebohm out of hand for situations of single nationality,¹⁴⁰ finding that, even after Nottebohm, the genuine connection test was only ever applied by other authorities to situations of multiple nationality.¹⁴¹ This was applied to weigh the relative connections between two or more states, and support diplomatic protection by the state with the strongest connection.¹⁴² In fact, the Court of Justice of the European Union (CJEU) in Micheletti¹⁴³ went even further to reject Nottebohm by finding that, under the EU legal order, EU member states may not apply the genuine connection test to individuals with multiple nationalities as a basis for refusing to recognize nationality from another EU member state.¹⁴⁴ The Court did not even cite to Nottebohm as a relevant precedent.¹⁴⁵ These developments support a narrow reading of Nottebohm.

The CAS has only ambiguously discussed the application of Nottebohm to cases of sport nationality. In United States Olympic Committee (USOC) and USA Canoe/Kayak/International Olympic Committee (IOC) [in the matter of Perez] (USOC & USA Canoe/Kayak/IOC [Perez]), the CAS merely noted that Nottebohm “may be relevant” for disregarding a valid grant of nationality and rejecting sport nationality.¹⁴⁶ However, the CAS also stated that Nottebohm “may also be relevant” for resolving situations of multiple nationality.¹⁴⁷ In the end, the CAS concluded that neither of those situations were relevant in the USOC & USA Canoe/Kayak/IOC [Perez] case.¹⁴⁸ In the Miranda case, the CAS also mentioned the “effective nationality” concept in international law, without specifically invoking Nottebohm.¹⁴⁹ It distinguished its application to situations of refusing to recognize state grant of nationality but not, as was the case in Miranda, for recognizing nationality where the state had not acted. It seems then that CAS’ position on the applicability of Nottebohm remains unclear.

From the above discussion we can conclude that Nottebohm must be interpreted far more narrowly, in line with its original terms and in line with contemporary international human rights law. While it is doubtful that Nottebohm can be safely applied outside of diplomatic protection for people with multiple nationality, even if it can be applied by analogy, it is limited to dual nationals and requires an assessment of genuine connection. Thus, states and the IOC must give effect to nationality whenever an individual has one nationality, and in cases when an individual has more than one nationality they may only require a showing of genuine connection to select the operative nationality. A 3-year waiting period does not in itself test for genuine connection.

A highly unusual case, where a state might wish to refuse to recognize an athlete’s nationality, could include situations when the grant of nationality was itself unlawful and the principle of jus non oritur¹⁵⁰ operates to deny its validity. However, the exception to this rule expressed in the Namibia advisory opinion by the International Court of Justice requires the recognition of nationality despite jus non oritur where such disregard would be to the disadvantage of the individual.¹⁵¹ Instead, an athlete with more than one nationality may only be prohibited from changing their ‘sport nationality’ if they have a genuine connection to the other state of nationality. For this, there is no derogation or proportionality test, so the 3-year wait under Olympic rules cannot be justified. It also means that international law would permit the IOC and NOCs to prohibit an athlete with multiple nationalities from electing a sport nationality in a state with which they do not have genuine connection. The fact that the Olympic Charter presently does not impose this condition on first election is more liberal than human rights require and is thus acceptable. But it also means that a change to a new sport nationality, to a state where the athlete has genuine connection, cannot be refused.

For an athlete with only one nationality, who has lost a nationality and acquired another, the Nottebohm genuine connection test does not apply, and human rights law would demand that the new nationality be given international effect immediately. Any limitation on this respect for a change of nationality must be legitimate and proportionate.¹⁵²

3.4 Change of Nationality and the Prohibition of National Origin Discrimination

International human rights law forbids discrimination on the basis of national origin. This ground would largely prevent the Olympics from prohibiting an athlete from participating on a new Olympic team on the basis of having their origin in another state. This possibility will not be discussed in detail because its full implications are outside the scope of this chapter, but it is relevant in its relationship to nationality discrimination.

In the previous section, this chapter discussed the prohibition of discrimination on the basis of nationality with reference to multiple instruments. Most of these same instruments also prohibit national original discrimination: the UDHR,¹⁵³ ICCPR,¹⁵⁴ ICESCR,¹⁵⁵ Migrant Workers Convention,¹⁵⁶ ECHR,¹⁵⁷ and ACHR.¹⁵⁸ While the ICJ has interpreted the CERD to not prohibit nationality discrimination (although the CERD Committee understands the opposite),¹⁵⁹ the ICJ expressly affirmed that the CERD covers national origin discrimination.¹⁶⁰ In reaching this conclusion, the Court defined ‘national origin discrimination’ as an immutable characteristic, akin to the other characteristics in the CERD such as “race, colour and descent”.¹⁶¹

Turning to the Olympics, in cases where an athlete is receiving less favorable treatment than other comparable athletes on the basis that they are “from” another state, there may be a valid claim of national origin discrimination. Consider that the IOC or an NOC blocking the quick transfer of an athlete to a new NOC is treating this athlete differently from other athletes on the basis of that athlete’s origin. When the athlete wishes to transfer and retain their original nationality, discrimination is sometimes more difficult to identify; but when the athlete loses the prior nationality and acquires the new nationality, it is more obvious. To illustrate, an NOC demands that a foreign national athlete be blocked from participation in the Olympics because they have a national origin from a particular state. The athlete cannot change their former nationality, as it is immutable in the past. Yet, they are blocked from participation due to this immutable characteristic. The possibility that national origin discrimination might be at issue for individuals changing their sports nationality also argues in favor of a proportionality assessment.

4 Legitimacy and Proportionality of Nationality Rules

The sections above concluded that provisions in the Olympic Charter infringe on the right to a nationality (including the obligation to prevent statelessness), the right to change nationality, and the right to be free from discrimination on the basis of nationality and national origin. For these reasons, the infringing provisions must be justified by having a legitimate aim and being proportionate to that aim. Although each of these human rights provisions calls for specialized proportionality assessment, for the sake of brevity this chapter consolidates the assessments into a single section.

4.1 Identifying Possible Legitimate Aims of Nationality Rules

The IOC, CAS and other bodies have submitted a variety of reasons for the nationality regime at the Olympics, and in international sport generally, although the Olympic Charter itself says very little about the purpose of such a regime. This section will assess only those arguments that sport authorities have actually submitted, and will thus exclude other speculative arguments. While the Olympics are organized to promote the “harmonious development of humankind, with a view to promoting a peaceful society concerned with the preservation of human dignity”, this aim does not specifically focus on classification by nationality, the denial of nationality (‘sports statelessness’), limitations on acquisition and change of nationality, and national origin considerations.¹⁶² While the Charter proclaims that sport is a human right,¹⁶³ it seems only concerned with human rights infringements (e.g., discrimination) “affecting the Olympic Movement”,¹⁶⁴ leading one to wonder whether the objective of the rules is the protection of the interests of athletes or the interests of the Olympic Games. Most of the interests that follow are largely incoherent, and it is difficult to identify any interest important enough to justify infringing international human rights.

In some instances, the existence of nationality rules has been presumed as a foregone conclusion. The CAS has supported the change of nationality rules without seeing a need to explain their purpose,¹⁶⁵ or has simply stated that an athlete’s request to change nationality was not compatible with the “spirit” of the Olympic Charter.¹⁶⁶ In a case under international baseball rules, the International Baseball Federation (IBAF) argued that it was “unthinkable” to engage in international sport without nationality classifications.¹⁶⁷ In a somewhat less conclusory manner, the Fédération Internationale de Natation (FINA) has argued that it is simply reality that international sports function with the concept of nationality;¹⁶⁸ the FIBA argued that it is merely tradition.¹⁶⁹ Even more questionable arguments have been submitted. FIBA stated that without nationality rules they might suffer a loss of spectator interest.¹⁷⁰ In Liang Ren-Guey v. Lake Placid 1980 Olympic Games Inc., the US State Department submitted a statement of interest, arguing that the US had strong foreign policy interests in the Olympic Games,¹⁷¹ a direct repudiation of the Olympic Charter’s objective of political neutrality. In one case before the CAS, the Court concluded that the motivation for the change of nationality rules was strangely to inconvenience athletes and, presumably, chill attempts to change.¹⁷² Obviously none of these statements can serve as justifications for infringing human rights.

In other cases, the IOC or IFs have appealed to a form of compulsory patriotism. The IBAF has argued that international sport is best served when athletes have close ties to their sports nationality.¹⁷³ In attempting to understand the underlying justification for Olympic sports nationality rules, Peter Spiro concluded that their purpose must be to require a connection between sport nationality and personal identity.¹⁷⁴ Of course, such a purpose assumes that an athlete’s personal identify can be easily deduced from his or her nationality. The Federación de Béisbol Aficionado de Puerto Rico argued that an individual should not be permitted to compete against their true state of nationality.¹⁷⁵ This assertion runs contrary to the Olympic Charter that proclaims that the competition is between athletes and not countries.¹⁷⁶

Others have argued that the purpose of nationality rules is to prevent “nationality shopping”.¹⁷⁷ The IBAF has referred to this practice as a “commerce of nationalities”.¹⁷⁸ The International Ice Hockey Federation (IIHF) sees it as “national team tourism”,¹⁷⁹ while FINA refers to such athletes as “mercenaries”.¹⁸⁰ By and large these complaints invoke “romantic” notions of nationality,¹⁸¹ and run contrary to the notion that competition is between athletes and not states.¹⁸² Surprisingly, in its criticism of some EU Member States’ Citizenship-by-Investment schemes, the European Commission actually supported the long-standing practice of granting nationality to athletes on the extraordinary basis of “national interest”.¹⁸³

The argument against ‘nationality shopping’ does have certain important implications, most significantly, an economic argument. The IBAF¹⁸⁴ and FINA¹⁸⁵ have argued that they need to safeguard their economic investment in ‘their’ athletes, and that changes of nationality create a loss of investment. Some IFs argue that nationality rules simply prevent change, which can be interpreted to include such a loss of investment. FIBA noted that the athlete “has to be put into one of two possible baskets because otherwise, he would be able to jump from one ‘athletic nationality’ to the other at his sole discretion”.¹⁸⁶ The IBAF also argued for the importance of choosing one nationality,¹⁸⁷ emphasizing that unexpected changes of nationality should be prevented.¹⁸⁸ However, the CAS has explicitly ruled that for the Olympic Games, membership in an NOC does not create any property interest in the athletes.¹⁸⁹

Another worry is that less restrictive nationality rules would encourage poaching athletes and introduce a ‘financial arms race’ into sport.¹⁹⁰ Poaching does have anti-competitive implications, and few would doubt that competitions should be won by talent and not by a bank account. According to the CAS, the modern implementation of more restrictive nationality rules at FIFA was largely triggered when Qatar began hiring and naturalizing Brazilian players, which other teams regarded as an unfair advantage.¹⁹¹ Previously, FIFA had far less restrictive nationality rules and poaching was not considered problematic.¹⁹² Linked to this concern, FINA has also argued in the Rinaldi case, that more liberal nationality rules would negatively impact the equal opportunity of athletes.¹⁹³ FINA did not explain how nationality rules operate to promote equal opportunity, although we can assume that if athletes were free to change nationality, then the free movers might take competition opportunities away from others. However, this argument is difficult to sustain because presumably those opportunities would go to athletes who performed better, and discrimination on performance is not a problem.¹⁹⁴ But poaching also has an alternate side which is providing more opportunity for athletes who are not selected by an NOC for competition. While NOCs have condemned nationality shopping for the purposes accessing international competitions as “opportunistic” behavior,¹⁹⁵ the very argument presumes that excluding athletes is a legitimate goal.

A strong argument in favor of the nationality regime is that the objective of the Olympics, and other international sport competitions, is to promote international engagement and thus the competition needs to be international in character. The Olympic Charter states that sport promotes the “harmonious development of humankind, with a view to promoting a peaceful society”.¹⁹⁶ The UNESCO International Charter of Physical Education, Physical Activity and Sport further articulates this objective, stating that sports promotes “stronger bonds between people, solidarity, mutual respect and understanding, and respect for the integrity and dignity of every human being”,¹⁹⁷ partly through exposure to cultural diversity.¹⁹⁸ FIBA has argued that without nationality regulations, it would be more difficult to maintain the international character of the competitions.¹⁹⁹ Indeed, it could be that organizing the Olympics by nationality protects the games from being dominated by nationals from certain well-funded states. Without promoting more teams from different states,²⁰⁰ there is a risk of less diversity and less international, intercultural engagement.²⁰¹

It is the view of this author that there are few arguments for the IOC, and international sport in general, to impose nationality regulations. Some of the arguments above are easily dismissed, although the fact that these arguments were even offered lends some doubt as to their good faith. It is difficult to understand how the IOC has any legitimate interest in tradition, spectator interest, foreign policy of states, or compulsory patriotism, which leads them to infringe human rights. The derogatory language that refers to athletes who change nationality as “mercenaries”,²⁰² or mocking them for their hardship,²⁰³ also casts doubt on the legitimacy of these interests. Arguments against ‘nationality shopping’ are also weak, especially when the European Commission appears to support the practice as a well-established, traditional way for states to promote their national interests.²⁰⁴

The argument that there is an economic investment in athletes in reliance on their continued nationality, though standing in contrast to the prohibition on property interests in athletes, does have some validity. After all, athletes cannot compete, and the Olympics cannot function, without funding. Discouraging poaching is dubious because it is unclear why the IOC has an interest in preventing athletes seeking out opportunities for support. The argument in favor of retaining the traditional nationality rules often has the effect of locking athletes into poorly-funded training support on the basis of their nationality. Perhaps the strongest argument in support of the IOC’s nationality regime is in order to maintain the ‘international character’ of international sports competitions. This interest could be stronger for team sports where each team has a more unified character compared to individual sports. In order to pursue its aims of international cooperation and exchange, one could understand that the IOC would want to involve as diverse a group of athletes as possible, competing at the same level.

4.2 Assessing the Proportionality of Nationality Rules

This section will consider whether nationality rules are proportionate to their aims, and whether there are less restrictive ways to achieve legitimate aims. Throughout all arguments for nationality rules, the sport authority is clearly subordinating the interests of the athlete in favor of another interest, be it the NOC, IF, IOC, or even the state involved. FIBA has even argued that sport nationality should not depend on “goodwill or interests of the players”.²⁰⁵ These arguments all run counter to the Olympic Charter’s statement that sport is a human right and that the interests of athletes are “fundamental”.²⁰⁶ As such, even by the terms of the Charter, and certainly under human rights law, nationality rules that infringe on nationality rights should be as limited and narrow as possible to achieve the aims of the IOC. After all, as noted by the Austrian Supreme Court, sporting federations are monopolies with considerable market power.²⁰⁷ Some IFs have nationality rules that are even harsher than the Olympic Charter,²⁰⁸ and in some cases, the formal 3-year wait was far lengthier,²⁰⁹ so those rules should also fail should the underlying Olympic rules fail.

The strict nationality rules have come under criticism on grounds of being disproportionate. The CAS held that the need for an ‘international character’ of sport can justify some rules on nationality,²¹⁰ and a 3-year wait is an incidental hardship.²¹¹ The CAS noted, however, that in the context of IF nationality rules, a hardship of 3 years is only acceptable if the athlete may continue to participate as a foreigner on their sports team.²¹² The Court criticized NOCs that oppose all requests for a waiver of the 3-year rule as unduly harsh.²¹³ In fact, 22 years ago, it strongly suggested that the IOC review and reconsider the inflexibility of the change of nationality rules.²¹⁴ The Austrian Supreme Court was not impressed that an athlete would be barred from competing for a state with which they had the strongest connection,²¹⁵ although the CAS reasonably believes that any genuine connection with a state for nationality needs objective tests rather than subjective feelings.²¹⁶ The CAS has also suggested to some IFs that they change their more onerous change of nationality rules because of their potential “invalidity”,²¹⁷ and further speculated that economic reimbursement for the costs borne by the NOC could be a viable alternative to strict nationality rules.²¹⁸ This view suggests that a 3-year ban, without any flexibility or opportunity to compete, would always be disproportionate. The Austrian Supreme Court agreed that an inflexible 3-year ban is disproportionate,²¹⁹ and suggested that these concerns can be satisfied by changes to domestic nationality laws,²²⁰ or by requiring a period of competition in the new state²²¹ rather than a ban on all competition.

The CAS also concluded that the decision by the NOC to refuse to waive the 3-year ban was contrary to the spirit of the Olympic Charter,²²² even though the Court was not empowered to reverse the decision.²²³ The rules themselves are also fundamentally arbitrary. Peter Spiro observed that nationality rules depend entirely on the luck of birth and family descent, and even with the change regulations, can be manipulated.²²⁴ Athletes who never competed for a national team can change nationality freely.²²⁵

For the economic reliance argument that NOCs may invest in athletes on the basis of nationality and unexpectedly lose the benefit of their investment should the athlete change nationality, this rule could be narrower than regulating change of nationality. In essence, the NOC could request some form of compensation for any investment rather than block the change of nationality. For the sake of brevity, this chapter will not venture to propose a precise valuation scheme, but some accounting of the funding paid out by the NOC and the benefit that it received leading up to the change of nationality could be appropriate. Any payment that exceeds the value added by the NOC would be punitive, resembling a claim to property interest in the athlete, thus leading to a chilling effect regarding a change of nationality. It is clear that the economic argument can be addressed with far narrower rules that do not infringe on human rights.

For the argument that the Olympic Games seek to retain an international character, and to some degree the argument of reducing poaching, the question is over the value of nationality diversity in the Games. The Olympic Charter appears to focus on both the international and intercultural character of the Games as benefitting cooperation and respect. One could surmise that the interaction of persons with differing nationalities forces engagement across nationality lines. Deliberately matching people with different backgrounds exposes people to different ways of acting and behaving, but matching two individuals with different nationalities does not necessary achieve any political dialogue, especially as the Olympics are meant to be apolitical, so the interaction is more likely to be cultural. However, nationality rules do not necessary achieve the aim of intercultural engagement. The assumption is that athletes with different political nationalities will have differing cultures, but that assumes that different passports equals cultural difference and engagement.

It is certainly possible that athletes active on the international stage have more in common culturally with their competitors from other countries than they might have with their fellow nationals. In fact, more liberal rules on change of nationality could achieve far more international and intercultural engagement. The Brazilian athletes poached by Qatar for its national team could have bridged far more cultural divides than they would have by staying in Brazil; immigration inherently fosters intercultural exchange. These are all speculative observations, but serve to demonstrate that nationality rules may not have sufficient justification so as to infringe human rights. At a minimum, if the change of nationality rules permitted immediate change to the state with which the individual has the closest connection, then athletes representing states would be far more genuine representatives, and would not need a 3-year waiting period. That being said, one could imagine that a team sport might have an even stronger need for all athletes to have the same nationality, and for that nationality to be the one with which they have a genuine connection, in order to present a more unified cultural representation.

5 Conclusion

Following from the conclusions of this chapter, if the IOC seeks to comply with international human rights, then it must comply with the laws on nationality and discrimination. It is probably already bound to these rules, but, as this cannot be determined with certainty, we can at least rely on the IOC’s repeated intentions to comply with human rights law and the provisions of various instruments, such as the Olympic Charter. In this and other documents, the IOC engages with and draws upon the discourse over human rights law as a benchmark for its actions. In order to comply with international law prohibiting nationality and national origin discrimination, the Olympic Charter must be amended to largely abolish nationality discrimination. This discrimination could only be justified in the rarest of cases, such as team sports where all players would need to have a common nationality.

Alternatively, if the IOC wishes to retain nationality classification for individual competitors as well as for team sports, then the Olympic Charter must at least be amended to alter the terms on change of nationality. For an individual with one nationality, the athlete may join the national team of their nationality without a genuine connection test. If that athlete were to lose nationality and acquire a new one, then the athlete must be permitted to join the team of their new nationality immediately, without any waiting period. Any other limitation would infringe on the right to change nationality, creating ‘sports statelessness’ and potentially discriminating on the basis of national origin. It would be permissible for the prior team to request some form of compensation, which must be offset by the benefit that the athlete provided to the team during the term of membership, and not be designed to constitute a punishment with the effect to chill the decision to change nationality; such compensation would therefore end up being minimal.

For an athlete with more than one nationality, the Olympic Charter might limit changes of national team membership within narrow parameters. It could limit the initial election of sport nationality to the state with which the individual has the closest connection, although human rights law would not require this practice. The terms on change of membership could restrict change to a state with which the athlete could show a stronger connection. If the athlete could show a stronger connection, then the change should be effective immediately, with similar terms on compensation as discussed above. A mandatory waiting period would not be acceptable under any circumstances as it could risk ‘sports statelessness’.

If the athlete cannot show a stronger connection to the other state, then human rights would permit the IOC to refuse the change, but that would not prevent them from allowing those changes in limited circumstances. The athlete would, of course, be free to renounce their nationality and join the new team immediately even without a genuine connection. The rules could permit change to a new NOC without renunciation after a 3-year waiting period, or even longer, following the request, even lacking a genuine connection, but human rights law would not demand this option. If the IOC chose this option, then it is already doing more than human rights on nationality require. However, refugee law and the right to leave any state might be relevant to support a nationality change without genuine connection, but such considerations are outside the scope of the present chapter. If there were to be a waiting period, the athlete should be permitted to continue participating for the original team to avoid experiencing ‘sports statelessness’. A veto by either NOC would also be unacceptable because they may be interested in retaining the athlete. The decision on genuine connection must be bona fide. In this case, the right to an impartial tribunal and the right to appeal became relevant, though this is also outside the scope of the chapter. There should be a mechanism to decide issues of genuine connection, although this proposal does not preclude decision-making by the IOC, provided it complies with the right to impartial decision-making, and is based on a good faith assessment of genuine connection.²²⁶

Abolishing the NOC system and nationality classification entirely would avoid most of these problems, bypassing human rights concerns and promoting international understanding. Without NOC funding of athletes, replaced by direct IF or IOC funding, investment expectations in athletes would be irrelevant and athletes would not be trapped in poorly-funded situations due solely to their nationality. Instead, funding issues would only arise if athletes changed IFs, which is far less likely, and does not implicate any human rights issues. Abolishing the nationality classification would also prevent poaching concerns, to the degree that those are even valid, because there would be no NOC organization. Strangely enough, as Spiro has argued, spectator interest might even increase as the Olympics would be limited to only the most qualified athletes.²²⁷ Abolishing nationality regulations could actually improve the international character of the Olympics, taking the focus away from nationalities, medals rankings, flags and anthems; and also avoiding the whispered disputes over geopolitics. The spotlight would be placed solely on the athletes.

For a wide variety of sporting competitions around the world, nationality is already irrelevant. From Wimbledon to the Boston Marathon, the nationality of the competitors is more of a curiosity, and not a qualification. Should the Olympics also abandon its nationality regime, athletes would interact as individuals, pushing each other to the heights of physical and mental excellence, rather than as proxies for national governments. This is a remarkable sporting ideal, and indeed a social ideal, to present to the world.

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