GAL fun in the world of international cricket...

I have been meaning to post for a while now on some of the always entertaining (and often GAL/relevant) machinations of international cricket governance. An interesting storm is brewing in this field once again: the Board of Control for Cricket in India (BCCI) - a hugely important actor in this sector given the popularity of cricket in India and the vast sums of money that can now be generated there around the sport - has decided that it will side with the views of its elite players and refuse to become a signatory to the WADA Code.

Interesting issues of public/private governance are raised here. The WADA is a formally private body, but its Anti-Doping Code is of major public significance, not least after having been formally incorporated into the UNESCO International Convention Against Doping in Sport. According to Gordon Farquhar of the BBC, the Indian Sports Minister and its Olympic association are lobbying the BBCI to change its mind. The BCCI is, however, preparing to propose instead to the International Cricket Council that all cricketing bodies leave the WADA system and adopt a cricket-specific anti-doping code. This seems an unlikely outcome, but given the extraordinary popularity and finaces of the new 20/20 Indian Premier League, I suppose that anything is possible. Will be watching this space over the next few weeks, in any event..

More on the ski-jumping...

I am currently in summer mode, in a mountain retreat, hence the lack of action on here of late (no posts for a month! Worse than I had thought...): I actually have to go into the next town to get online. While my world has regressed to the stone age, however, that of GAL continues apace, and as such I will be making an effort to post at least once a week from now on – if only to cut down on the catching up I will have to do when I get back to the real world.

Talking of catching up, here’s something I should have posted a few weeks ago: a quick follow up to the controversy in Canada over the IOC’s decision to exclude women’s ski-jumping events from the next Winter Olympics, despite the fact that it has organised equivalent men’s events (see my previous post here). On the July 10th, the Supreme Court of British Columbia in Canada handed down its judgment: perhaps unsurprisingly, there will be no women’s ski jumping at the next Winter Olympics. More surprising, however, and of no little interest from a GAL perspective, is the judge’s reasoning in coming to this judgment.

The arguments, put briefly, were as follows: the complainants alleged that the decision to hold men’s but not women’s events in ski-jumping constituted unlawful discrimination under the Canadian Charter of Rights and Freedoms. They recognised the the International Olympic Committee was not subject to the Charter; however, they argued that the Vancouver Organising Committee (VANOC) was (despite the fact that it is a formally private body), and that as such it could not organise an Olympics on Canadian soil that had one event but not the other. They also recognised that VANOC did not have the power itself to organise the inclusion of a women’s event (only the IOC can decide on which events are included), but that a finding that VANOC was acting unlawfully would in effect compel the IOC to take remedial action. Thus, in effect ,the claim was that a domestic court should make a “bottom-up” demand for GAL within a private global administrative body.

As noted above, VANOC is formally a private body, although with signficant government involvement from the federal, state and local levels. The judge first inquired as to whether VANOC could be held to be “controlled” by the Canadian government (and there is an interesting review of the Canadian jurisprudence on the requirements of this for those interested) – holding, ultimately, that it could not. Despite significant input into decision-making and funding, the day-today running (“effective control”) was clearly that of the IOC.

(Incidentally, the judge also noted in passing - para. 14 - that there is a real difference between “effective” and “ultimate” control, dismissing the argument that the Canadian Government had the latter. Someone should really tell the EctHR…)

The other way in which the Charter can become applicable to a formally private body within Canada is if that body is conducting “a truly governmental activity”:

53. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.

54. In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature… In McKinney v. University of Guelph, … La Forest described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.

56…. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”. Historically, governments hosted the Games directly… While the historical role of government is not conclusive, it is one factor that supports the governmental nature of the Olympic Games.

61. Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:
The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.

62. In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.

63. The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act…which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.

Noting, in passing, a 1984 US judgment that held that the the equal protection rights under the Fifth and Fourteenth Amendments of the U.S. Constitution were applicable to the Olympic Games in Los Angeles, despite the fact that these were run by the Los Angeles Olympic Committee (the equivalent of VANOC), the judge thus held that VANOC is carrying out a governmental function, and as such is bound by the provisions of the Charter: “A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.” (para. 72)

The next question, then, was whether there had been discrimination. Here, the judge found in the affirmative: that, even although the women’s event failed to meet the IOC’s universality requirements (i.e. enough countries participating to a high level), this was also the case for the men’s event, which had been given a special exemption due to its historical presence in the games. All agreed, however, that the IOC, albeit the source of the discrimination, could not be brought before the Canadian court under the Charter.

113. The plaintiffs argue that by implementing the direction of the IOC not to plan, organize, finance, and stage a ski jumping event for women, VANOC imports the IOC’s discrimination… It is the plaintiffs’ view that the IOC can make decisions that draw distinctions between the benefits it provides to men and women in its activities in Switzerland, but VANOC cannot implement discriminatory decisions in carrying out the Olympic Programme in Canada.

It is at this final point, however, that the judge disagreed – finding that mere implementation of a decision over which the body in question had no control could not itself create a violation of the Charter:

121. VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women‘s ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it.

123. In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control.

124. I acknowledge that there is something distasteful about a Canadian governmental activity subject to the Charter being delivered in a way that puts into effect a discriminatory decision made by others, but it is VANOC’s conduct that is challenged here. It must be remembered that, in addition to not having control of the impugned decision, VANOC supported inclusion of women’s ski jumping and remains ready and willing to host such an event should the IOC change its decision. There may be exceptions to the general principle that a party should only be found to be in breach of the Charter when the impugned decision is within its authority to make and amend, but if they exist they would be extremely rare, and this is not such a case.

132. There will be little solace to the plaintiffs in my finding that they have been discriminated against; there is no remedy available to them in this Court. But this is the outcome I must reach because the discrimination that the plaintiffs are experiencing is the result of the actions of a non-party which is neither subject to the jurisdiction of this Court nor governed by the Charter. The plaintiffs. application is, therefore, dismissed.

An interesting case, then, and much of interest from a GAL perspective, both in terms of the public/private issue and the possibilities of domestic “bottom-up” demand for GAL from domestic courts in relation to global bodies – even if the judged ultimately baulked at the latter. It is also interesting to speculate on what the wider effects of this decision would be, as there is nothing in the judgment to suggest that it should be limited to the Charter’s governance of sports, or indeed of private bodies carrying out governmental functions more generally. For example: in theory, Canada has no formal control over a UN Security Council Resolution mandating the freezing of an individual’s assets on the gorunds of suspected links to terrorist organisations. Would the application of the Canadian Charter of Rights and Freedoms be just as easily circumvented in this context, I wonder? We are told that the ski-jumpers are currently considering an appeal, so it may be tested futher yet...

GAL and... women's ski-jumping

As if to prove that there is almost no conceivable field of human activity that is not of at least potential interest to us here at the GAL blog, an interesting situation is developing in Canada with regard to its hosting the 2010 Winter Olympics. In a nutshell, a group of female ski-jumpers has brought a claim before the Supreme Court of British Columbia, claiming that the fact that men can compete in this event at the Olympics while women can't is discriminatory, and in particular in violation of Canada's Charter of Rights and Freedoms.

The International Olympic Committee (IOC) argues that the women's sport is not developed enough tobe included in the Olympics. The Vancouver Olympic Organizing Committee argues that the decision was made by the IOC, which is immune from jurisdiction before Canadian courts. According to the BBC, the key issue will be showing that the Canadian government has effective control over the Organizing Committee, which will thus render the Canadian Charter applicable. The Plaintiffs' Memorandum of Argument can be found here. Certainly, much time is spent arguing that VANOC is controlled and financed by the Canadian Government. Just as much time, however, is spent on the discrimination claim itself, and the fact that the women train and sacrifice just as much as the men, and thus deserve equal recognition. And it does not shy away from emotive language: "At its core, VANOC's failure to plan, organize, finance and stage even one ski jumping event for women is an affront to the human dignity of the Plaintiffs" (para. 181).

Loads of interesting issues here: the discrimination claim; the immunity claim; the role of domestic courts in effectively applying domestic law to decisions of an international organisation; the public-private dimension ever-present in controversies involving the IOC; and the liability of domestic members of global organisations for activities and decisions of the latter. What is the legal nature of the Vancouver Organizing Committee? Is it a Canadian Government Agency? An autonomous NGO? An IOC "field mission"? We'll be keeping a close eye on this one...

ISO standardizes pasta cooking times

It has been a bit slow on here of late; apologies for that. To kick things off again, some good news for those dismayed by setback to the transnational standardization process represented by the sad news that the EU was to repeal its laws banning the sale overly-bendy bananas (and some 25 other types of fruit and vegetables inflicted with some aesthetic deformity). To reassure us that the global standardization community remains as productive and worthwhile as ever, the International Organization for Standardization has proudly presented ISO 7304-2:2008:

A new ISO standard offers the ingredient of objectivity to the delicate debate on the cooking of pasta which is so dependent on subjective taste: what is nice and firm for one is undercooked for the other, too this or too that…

Now, ISO 7304-2:2008... describes a test method for laboratories to determine a minimum of cooking time for pasta.

This International Standard specifies a method for assessing, by sensory analysis, the quality of cooked alimentary pasta in the form of long, solid strands (e.g. spaghetti) or short, hollow strands (e.g. macaroni) produced from durum wheat semolina, expressed in terms of the starch release, liveliness and firmness characteristics (i.e. texture) of the pasta. It does not apply to pasta in the form of small strands usually consumed in soups.

Gone are the days, then, of throwing bits of linguine at the wall; sighs of relief all round, I should think...

Shame about the soup, though.

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.

Radical changes in internet governance approved by ICANN

From the BBC, we learn that "a complete overhaul in the way that people navigate the internet" has been approved by ICANN (the Internet Corporation for Assigned Names and Numbers) during its recent meeting in Paris. The previously strict rules limiting the number of "top-level domain names", such as ".com" or ".co.uk", are to be relaxed, paving the way for more specific suffixes such as, for example ".sport" or ".nyc".

This will create opportunities and risks in equal measure, particularly with regard intellectual property rights. While companies will be able to fully incorporate their brand names within their web addresses, the possibilities for "cybersquatting" - the practice of unfairly registering domain names in order to make money - will be vastly increased. As the Guardian reports, however, the current move will not create anything like a free-for-all; some domain names could cost as much as ₤250,000, and all applications will have to be approved by ICANN.

Increased will of necessity create increased administrative discretion for ICANN; and the increased stakes in play will in turn mean that demands for accountability and transparency from all relevant stakeholders will only grow stronger. Perhaps it was with this in mind that ICANN published, in January of this year, a document detailing its "Frameworks and Principles on Accountability and Transparency". This document is interesting for a number of reasons, not the least of which being that it confronts ICANN's dual role as a private company fulfilling a public governance function, and the ways in which different stakeholders' expectations of accountability can conflict on that basis. In any event, this is clearly of great importance from a GAL-perspective, and deserves detailed attention in its own right; I will blog on it in more detail later in the week.