Chambers loses appeal against BOA by-law

And it ends with a whimper. Dwain Chambers has lost his appeal for a temporary injunction against the British Olympic Association's lifelong ban for anyone who has previously tested positive for banned substances. The judge apparently had some critical words for Chambers' legal team, and in particular relating to the last-minute nature of the request (which could have been lodged at any time in the last three years, as the issue that has arisen was entirely foreseeable), holding that

Many people both inside and outside sport would see this bylaw as unlawful. In my judgment, it would take a much better case than the claimant has presented to persuade me to overturn the status quo at this stage and compel his selection for the Games.

I have not yet been able to get my hands on a copy of the judgment (anyone?), but from how the matter is being reported in the press at least, it seems that ultimately there was very little of GAL relevance in the case, with the main focus being on the suggestion that banning Chambers would have constituted an unfair restriction on trade. A curious argumentative platform, given that the Olympics remains an amateur competition, and no prize money is awarded.

I'm still hoping, however, that the actual judgment will show that the issue of the incompatibility of the BOA by-law with the WADA Anti-Doping Code, to which the BOA is a signatory, was raised and discussed. The media is only really reporting the trade angle, along with some pretty irrelevant arguments as to whether Chambers was the UK's best chance of a medal in the 100 metres, and whether he is a suitable role-model for athletics in general. Will post more if/when the actual judgment becomes available...

New global-local governance structure: UNESCO and the International Coalition of Cities against Racism

From the ever-informative (if rarely balanced) Global Governance Watch website, we learn of an interesting new initiative launched by UNESCO: the International Coalition of Cities against Racism. Here's the (abridged) blurb:

The International Coalition of Cities against Racism is an initiative launched by UNESCO in March 2004 to establish a network of cities interested in sharing experiences in order to improve their policies to fight racism, discrimination, xenophobia and exclusion.

The international conventions, recommendations or declarations elaborated at the upstream level need to be ratified and implemented by the States. At the same time, it is extremely important to involve actors on the ground including the targets of discriminations, to make sure that those instruments are applied to respond to concrete problems. UNESCO chose cities as the privileged space to link upstream and downstream actions. The role of city authorities as policy-makers at the local level, is considered here as the key to create dynamic synergies.

The ultimate objective is to involve the interested cities in a common struggle against racism through an international coalition. In order to take into account the specificities and priorities of each region of the world, regional coalitions are being created with their respective programme of action in Africa, Arab Region, Asia and the Pacific, Europe, Latin America and the Caribbean, and North America.

The goal, then, is effectively to bypass national governments in seeking to improve the concrete implementation of international commitments "on the ground", as it were. Whether this is presented as a worrying assault on national sovereignty by an unelected global body (as seems to be Global Governance Watch's take on the issue), or rather as an interesting and innovative way of increasing enforcement of existing human rights obligations often in spite of cumbersome and beholden national bureaucracies (which would, I confess, be closer to my own view on the subject), this is an important example of an increasing trend in global administrative governance, increasing the breakdown of the traditionally fairly rigid barriers between the national and the international planes.

The international coalition is guided by a 10-point plan of action (which will be mirrored by the regional coalitions, altered to accommodate the particular specificities of the situations that they confront):

1. To set up a monitoring, vigilance and solidarity network against racism at the city level.
2. To initiate or further develop the collection of data on racism and discrimination, establish achievable objectives and set common indicators in order to assess the impact of municipal policies.
3. To support victims of racism and discrimination and contribute to strengthening their capacity to defend themselves.
4. To ensure better information for city residents on their rights and obligations, on protection and legal options and on the penalties for racist acts or behaviour, by using a participatory approach, notably through consultations with service users and service providers.
5. To facilitate equal opportunities employment practices and support for diversity in the labour market through exercising the existing discretionary powers of the city authority.
6. The city commits itself to be an equal opportunity employer and equitable service provider, and to engage in monitoring, training and development to achieve this objective.
7. To take active steps to strengthen policies against housing discrimination within the city.
8. To strengthen measures against discrimination in access to, and enjoyment of, all forms of education; and to promote the provision of education in mutual tolerance and understanding, and intercultural dialogue.
9. To ensure fair representation and promotion for the diverse range of cultural expression and heritage of city residents in the cultural programmes, collective memory and public space of the municipality and promote interculturality in city life.
10. To support or establish mechanisms for dealing with hate crimes and conflict management.

That there are a number of points here of GAL relevance should be readily evident: access to information, participation, oversight and review mechanisms, all of which are intended to ensure that local administration complies with global obligations regarding racial discrimination. It is also worth noting, however, that UNESCO's involvement here creates a second - global - level of administrative activity itself; it would be interesting to know what, if any, rights to information, participation and review are envisaged in this latter context. It is worth noting, however, that UNESCO is hosting a series of discussion papers on this topic.

This blurring - or, perhaps more accurately, entire recasting - of the important institutional relationships through which global administration is now increasingly conducted is, of course, not without precedent: for example, the World Bank has had, it seems, some success with its "community-driven development programmes" in Indonesia and East Timor, which aimed precisely at empowering local (even village-level) communities directly, without the mediation of national institutional players (for a detailed account of these projects, see this article by J.M. Migai Akech). In this regard, it is interesting to note the vocabulary used in the UNESCO website on this issue, quoted in the blurb above: aside from the management-speak of the "creation of dynamic synergies", it entirely eschews the terms "international" and "national", speaking instead of "upstream" commitments and "downstream" actions. Whether or not these terms themselves will catch on, the intention - for it is surely deliberate - is clear: the traditional, static dichotomies of international law are no longer appropriate; instead, what is required is a more fluid, less rigid rhetoric.

Of course, the proof of this particular pudding will, as always, be in the eating. In this regard, it's worth mentioning this paper on indicators of improvements in combatting discrimination, part of the discussion paper series noted above. If real improvements are forthcoming, however, this could well provide a useful model that can be followed in terms of other human rights treaties; and GAL - unlike, evidently, traditional public international law - provides a conceptual framework within which such initiatives can not only be adequately captured, but themselves regulated. Worth keeping an eye on, in any event.

GAL and the Betancourt rescue: misuse of the ICRC emblem

No one can have missed the story of the dramatic rescue of the French-Columbian politician Ingrid Betancourt after six years of being held in captivity by the FARC in Columbia a few weeks back. In the last day or so, however, a new element of the "audacious" rescue has emerged, which perhaps raises some issues of GAL significance. I am speaking, of course, of the revelation of - and apology for- the fact that one of the rescuers wore the emblem of the International Committee of the Red Cross (ICRC) on his uniform as part - officially condoned or otherwise - of the efforts to deceive the rebel group into freeing the hostages, before themselves being captured.

It has been clear since news of the rescue broke that members of the Columbian military forces posed as humanitarian NGOs as part of the deception:

Plans for the mission stretch back to May 2007 when police officer John Pinchao emerged from the jungle, weak and disorientated, 17 days after escaping his Farc captors. He brought with him crucial details of a hostage camp, giving Colombia's military intelligence enough to plant a mole in Farc's top ranks. The plans were further shaped when Farc released six hostages in January, handing them over to the Venezuelan President Hugo Chavez.

The aim was to persuade the Farc leader holding Betancourt - Gerardo Aguilar Ramirez, known as César - that the hostages he held were to be moved to another hostage camp by helicopter, with the help of an international humanitarian NGO, so that negotiations could begin for their release.

The Colombians decided to pose as an NGO similar to the one used in the Chavez handovers.

That this might cause problems for future, genuine aid workers in carrying out their duties seems to have been largely overlooked until the emergence today of the fact that one rescuer displayed the emblem of the ICRC, a body with a special status in terms of international humanitarian law through the key role afforded to it in the Geneva Conventions. In order, inter alia, to protect the Organization and its neutrality (key to its ability to carry out its humanitarian functions in conflict situations), the use of the emblem for anything other than medical purposes is generally prohibited. In general terms, Article 37 of the 1st Additional Protocol to the Geneva Conventions prohibits "perfidy" in the following manner:

1. It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.

The following acts are examples of perfidy:

(a) the feigning of an intent to negotiate under a flag of truce or of a surrender;
(b) the feigning of an incapacitation by wounds or sickness;
(c) the feigning of civilian, non-combatant status; and
(d) the feigning of protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other States not Parties to the conflict. (Emphasis added).

It remains, of course, an open question as to whether Additional Protocol 1 applies to the conflict between the Columbian Government and the FARC, although the ICRC has suggested that its provisions now form part of customary international humanitarian law. For much more detail on the international legal ins and outs of this issue, see this excellent post by Duncan Hollis over at Opinio Juris.

According to the ICRC website (see here), the Geneva Conventions contain a number of other rules on the use of the red cross emblem in particular, to the extent that they can only be used by the following actors:

• armed forces medical services (and only when carrying out medical duties);
• National Red Cross and Red Crescent Societies duly recognized and authorized by their governments to lend assistance to the medical services of armed forces;
• civilian hospitals and other medical facilities recognized as such by the government and authorized to display the emblem for protective purposes;
• other voluntary relief agencies subject to the same conditions as National Societies: they must have government recognition and authorization, and may use the emblem only for personnel and equipment allocated exclusively to medical services.

The Conventions also contain obligations on states to prevent and to punish misuse of the emblem. The admission and apology by the Columbian Government of the use of the emblem by one of its actors seems to imply recognition of wrongdoing on its part; whether or not its subsequent action can be viewed as discharging all of its international obligations remains, for the moment at least, very much an open question.

There can be little doubt that - despite its odd formal status - the ICRC is performing a public governance function in carrying out its humanitarian tasks. It is, indeed, one of the most interesting of global administrative bodies, both in terms of its legal structure and status, and through its extensive and important field operations. The sanctity of its symbols is also an unusual - if entirely understandable - feature. Whether or not we think that the official explanation from the Columbian Government - that "one member of the team had worn the emblem 'contradicting official orders' because he was nervous about the operation", but whose name would not be disclosed "because we do not want to affect his career" - rings entirely true, there can be no doubt that this incident raises interesting issues at the GAL/intellectual property/international humanitarian law nexus.

Chambers: 2 weeks and counting...

Dwain Chambers has taken his case against the British Olympic Association (BOA) before the High Court in England, seeking a ruling that the Association's by-law banning anyone who has ever tested positive for drugs from competing in the UK Olympic team for life is itself illegal. There have been successful challenges against individual bans; this, however, is the first time that the legality of the rule itself has been challenged. See my previous posts on the subject here and here.

It remains to be seen, however, just how much of GAL-relevance will emerge in this case. His legal team have stated as follows:

The basis of Mr Chambers claim is that the bylaw is an unreasonable restraint of trade in that it goes further than is reasonably necessary for protecting the interests of BOA and the public. And further, that the bylaw is inherently unfair and unreasonable given the surrounding circumstances.

This statement thus seems, at first glance at least, to confine the issues very much to domestic administrative law. The key question for our purposes is, to what extent will the conflicting international rules, embodied in the WADA Anti-Doping Code and supported by the International Association of Athletics Federations (IAAF) and the International Olympic Committee (IOC), feature in the deliberations of the High Court? They provide, in Art. 10.2, for a two year ban for a first offence, with a lifetime ban to follow the second time.

One issue, then, is whether this sets a minimum standard in the fight against drug abuse, or the definitive balance between the rights of the individual involved and the legitimate public goal of eliminating drugs from sport. Another is whether the rules of global private (the IOC) or hybrid (the WADA) bodies can have "direct effect" over the bylaws introduced by national administrative authorities, whether formally public or private in nature (in the UK, for example, the National Olympic Committee is a private body; in France and in Italy, on the other hand, they are public in nature).

In any event, the High Court will have to act quickly on this; the BOA has to finalise its team by the 20th of July...

** UPDATE **

I wondered if the timescales involved weren't a little too quick. In the pre-Olympic hearing, which will have to rule in time for final team selection in around ten days, Chambers is only requesting a temporary injunction against the BOA bylaw, which, if granted, would be sufficient to allow him to compete in Beijing. A full hearing would then be held later in the year, doubtless at a more leisurely pace. While, then, the forthcoming decision will not be final, it will nonetheless contain much of interest in terms of outlining the directions in which the opposing arguments will be formulated, and a prima facie decision as to their persuasiveness. For more detail, see here.