By: Muriel Jones, Member of Journal of Transnational Law & Policy

In light of the upcoming Winter Olympics in Sochi, Russia, the world once again becomes captivated by the unique snow-oriented sports and conditioned athletes who have become masters of their craft. Behind the quirky sports, the International Olympics Committee (IOC) is coordinating an enormous body of international athletes and must regulate those athletes according to agreed upon international standards.  But what happens when a host country’s standards differ from the IOC established international standards in areas like steroids usage?  Should a State be forced to change domestic laws in order to comply with international standards?

Such a case arose in the London 2012 Olympics, where international anti-doping measures and UK domestic steroid laws were at odds. “Soft” UK laws concerning the importation of anabolic steroids allowed athletes to cross the border with banned substances without fear of criminal consequences from the UK.[1]  An athlete could not be apprehended if the banned drugs were deemed to be solely for “personal use.”[2]  The UK government, unlike the Summer Olympics hosts before it, had not toughened drug importation legislation before the games, synthesizing domestic steroid laws with IOC standards.[3]  Athletes were still strictly liable under the World Anti-Doping Agency (WADA), but the UK wasn’t.

International athletes are subject to the rules, standards and procedures of the IOC, WADA, International Federations (IF), which monitor individual sports, and their origin country’s National Olympic Committee (NOC).  Olympic athletes are monitored by all of these agencies with overlapping regulations.[4]  To participate in any Olympic sport, athletes must agree to be regulated by and under the sole authority of WADA and the World Anti-Doping Code (Code); however, countries themselves are not so strictly regulated.  “The Code sets forth specific anti-doping rules, definitions of doping, burdens of proof, prohibited substances and methods, and addresses standards for testing, sample analysis, sanctions, appeals, confidentiality, reporting and statute of limitations.”[5]  Like most international agreements there is no enforcement mechanism or world court to force State governments to adopt the Code and be legally bound by it.[6]

At the Second World Conference on Doping in Sport in March 2003, several States decided to formally recognize and implement the Code through the Copenhagen Declaration.[7]  The Copenhagen Declaration does not require countries to implement domestic legislation, but only “[c]ooperate with WADA…subject to relevant host countries’ regulations.”[8]  This seems to suggest that WADA’s anti-doping measures are subject to a host country’s regulations. Therefore, any difference in laws, as displayed in the London Olympics, could frustrate the international standard.  139 countries, including Russia, have signed the Copenhagen Declaration. [9]

175 countries, including the United States and Russia, have also ratified the International Convention against Doping in Sport through the United Nations Educational, Scientific, and Cultural Organization (UNESCO) Convention.[10]  Unlike the Copenhagen Declaration this is the “first global treaty against doping in sport.”[11]  However, ratification of a treaty does not necessarily equal compliance.  States must uphold their treaty obligations or face consequences set forth in the treaty, but many States have varying degrees of treaty implementation into domestic laws.  For example, the United States considers a case-by-case policy of examining whether a treaty is “self-executing” and whether the treaty law should automatically apply in the domestic law sphere.  Therefore, if the U.S. signs an international treaty and ratifies it internationally and domestically, through 2/3 approval of the Senate, but the treaty is not self-executing, then the international law does not apply to the domestic states.[12]  Other countries, like France, have duly ratified treaties, which are essentially always self-executing, automatically allowing ratified treaties to have the force of law in the domestic sphere. While in other countries, like the UK, treaties are never self-executing, and require an implementing statute from the domestic legislature to apply in the domestic sphere.  Therefore, even the ratification of an international treaty may not automatically compel a country to implement domestic legislation that conforms to international standards.

To encourage States to adopt international standards, States are subject to fines by international sports governing bodies if athletes are found to be doping. WADA may report non-compliance to the IOC, which can impose sanctions.[13]  Also, sports that do not adopt the Code are not eligible to be included in the Olympic Games.[14]  “Similarly, if a country does not ratify the UNESCO International Convention against Doping in Sport, it may also be subject to sanctions from the IOC and from other sports organizations, including losing the right to host major games.”[15]  There is no enforcement mechanism to force States to adopt the Code, but the IOC may issue “consequences” to non-compliant States including ineligibility to bid on host events, cancellation of international events, and symbolic consequences.[16]

Russia is no stranger to these measures and has had several athletes fail international steroid standards in recent years.[17]  In 2010 there was major concern that Russia’s anti-doping programs were inadequate, especially if the enormous country – which spans nine time zones – was going to be able to successfully regulate not only its native athletes but also global athletes in an international competition.[18]  However, unlike the UK, Russia, through its anti-doping agency RUSADA, has updated domestic anti-doping standards in compliance with WADA Code and International Conventions.[19]  Even though Russia has implemented RUSADA there are still major problems.  Since the beginning of 2013, 88 athletes have been sanctioned for a variety of anti-doping offenses, and more than 80 other competitions are currently under investigation.[20]

Why wouldn’t a country want to conform to WADA’s standards? Most NOC’s implement standards very similar if not identical to the Code, so why fight it?  And why not just fix domestic legislation right before the games like Australia and China did so that both domestic and international laws align?

It all comes down to State sovereignty and the role of international treaties in domestic laws.  Because there is no overhead enforcement mechanism or supreme world court to force compliance, countries are free to make and break treaties as they please.  It may be in a country’s best interest on an international stage to make sure steroid regulations are consistent, but outside of international competitions, governments are free to regulate domestic steroid usage however they want.

Despite a State’s seeming freedom under international regulation of steroid usage, there seems to be an overall high rate of compliance. There is a serious attempt by international organizations and participating States to gain across the board international anti-doping standards.  Also, most Olympic host countries seem to agree to the Code on its face.  However, despite there shaky anti-doping standards, both Russia and Brazil where given, some would deem, the greatest honor under the IOC – the privilege to host the Olympics.

 


[1] Jacquelin Magnay, “London 2012 Olympics,” The Telegraph (Mar. 29, 2012, 9:35 PM),

[2] Id.

[3] Id.

[4] Zachary Blumenthal, The Punishment of All Athletes: The Need For A New World Anti-Doping Code in Sports, 9 J. Int’l Bus. & L. 201, 204-07 (2010).

[5] Maureen A. Weston, 10 Pepp. Disp. Resol. L.J. 5, 25 (2009).

[6] See Governments, WADA http://www.wada-ama.org/en/World-Anti-Doping-Program/Governments/ (last updated Oct. 2009); Copenhagen Declaration on Anti-Doping in Sport, WADA http://www.wada-ama.org/en/World-Anti-Doping-Program/Governments/Copenhagen-Declaration-on-Anti-Doping-in-Sport/ (last updated Oct. 2009).

[7] See Governments, WADA http://www.wada-ama.org/en/World-Anti-Doping-Program/Governments/ (last updated Oct. 2009).

[8] “Copenhagen Declaration,” available at:  http://www.wada-ama.org/Documents/World_Anti-Doping_Program/Governments/WADA_Copenhagen_Declaration_EN.pdf

[10] See International Convention against Doping in Sport, WADA http://www.wada-ama.org/en/World-Anti-Doping-Program/Governments/UNESCO-International-Convention-against-Doping-in-Sport/ (last updated Oct. 2009).

[11] Id.

[12] See Foster & Elam v. Neilson, 27 U.S. 253 (1829); Asakura v. City of Seattle, 265 U.S. 332 (1924).

[13] Questions & Answers on Stakeholder Obligations on Compliance, WADA http://www.wada-ama.org/en/Resources/Q-and-A/Stakeholder-Obligations-on-Compliance/ (last updated Sept. 2011).

[14] Id.

[15] Id.

[16] Questions & Answers on WADA Compliance Monitoring, WADA http://www.wada-ama.org/en/Resources/Q-and-A/WADA-Compliance-Monitoring/ (last updated Sept. 2011).

[17] See “Russian Sports Minister promises major clean-up before Sochi 2014, inside the games,” June 4, 2010, http://www.insidethegames.biz/olympics/winter-olympics/2014/9750-russian-sports-minister-promises-major-clean-up-before-sochi-2014; “Three Russian track and field athletes recognized ineligible,” Oct. 14, 2013, http://www.rusada.ru/en/press/news/three-russian-track-and-field-athletes-recognized-ineligible-0; “Two Russian kayak & canoe athletes provisionally suspended,” Oct. 9, 2013, http://www.rusada.ru/en/press/news/two-russian-kayak-canoe-athletes-provisionally-suspended.

[18] See Associated Press, Anti-doping programs fall short, 2010, http://sports.espn.go.com/oly/news/story?id=5768257.

[19] See RUSADA National Anti-Doping Rules http://www.rusada.ru/en/work/national.

[20] Duncan Mackay, “Russians caught for drugs doubled in a year, admit country’s anti-doping agency,” Oct. 3, 2013, http://www.insidethegames.biz/news/1016407-russians-caught-for-drugs-doubled-in-a-year-admit-country-s-anti-doping-agency.

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