Trond Solvang

A heated debate is unfolding following the International Olympic Committee (IOC)'s public statement of January 25, which opened for discussions of re-entry of Russian and Belarusian athletes into international sports. 

This is in stark contrast to IOC’s public statement one year ago, recommending international sports bodies to exclude athletes from these countries. IOC’s January 25 statement makes no mention of the crucial question: have realities in Ukraine changed to justify such a shift in policies? 

Rather, IOC seems to have been influenced by a letter from two experts of the United Nations (UN) Human Rights Council, dated September 14 2022.

This letter contains statements like the following: "We express serious concern, however, about the recommendation [of February 2022] to ban Russian and Belarusian athletes and officials such as judges from international competitions, based solely on their nationality, as a matter of principle. This raises serious issues of non-discrimination."

Such statements have led some to articulate the matter even more unambiguously. In Norwegian media the IOC member Astrid Uhrenholdt Jacobsen has unreservedly claimed that the current system violates human rights, on the premise that it discriminates "solely on the basis of athletes’ nationality."

That is, however, an over-simplistic perspective. To put this difficult topic in its right context, we must go back in time.

A first point from a Norwegian perspective - when the Russian military invasion started unfolding on February 24, displayed live in the media, the upcoming Skiing World Cup events at Drammen and Holmenkollen were only a few days away. 

Norwegian sporting authorities, public authorities, organisers and sponsors, and the public at large, were all confronted with the difficult and urgent question - in the face of the brutalities of the invasion, is it right to let Russian athletes compete as if nothing has happened?

The response was a clear no. The Norwegian Ski Federation (NSF) and the Norwegian Sports Federation (NIF), supported by the Minister of Culture, made a public statement on February 26 (a Saturday!) not to allow Russian skiers to compete on Norwegian soil. 

Cross-country skier and International Olympic Committee member Astrid Uhrenholdt Jacobsen claimed that the IOC's current system discriminates solely on the basis of athletes nationality ©Getty Images
Cross-country skier and International Olympic Committee member Astrid Uhrenholdt Jacobsen claimed that the IOC's current system discriminates solely on the basis of athletes nationality ©Getty Images

This was an instinctive moral reaction, not aimed at individual athletes but intended to exert pressure on the Russian Government to prevent Russian sports heroes from being used for propaganda purposes, thus legitimising further warfare.

In the days that followed, similar decisions were made in other sectors, such as culture, education, and science exchange programmes.

Turning to the international scene, one will recall the immediate and heavy sanctions imposed on Russia by the European Union, and the massive condemnation of the Russian warfare by the UN General Assembly. 

One will also recall that the Council of Europe on March 15 decided to exclude Russia’s membership, based on grave violations of human rights. 

It may be noted that the Council of Europe is the author of the European Convention of Human Rights and hosts the European Court of Human Rights.

On the international sports scene, all the main International Federations eventually took the same position as that taken by Norway, and on February 28 the IOC gave its important public statement.

Its key recommendation - based on the integrity of sports and safety of athletes - was "that International Federations not invite or allow the participation of Russian and Belarusian athletes and officials in international competitions."

IOC also expressed support for the decision of the International Paralympic Committee (IPC) not to allow Russian and Belarusian participation in the then upcoming Paralympics in Beijing - and it announced an ad-hoc decision to strip three Russian Government officials, among them President Putin, of their Olympic Order, "based on the exceptional circumstances of the situation and considering the extremely grave violation of the Olympic Truce and other violations of the Olympic Charter by the Russian Government in the past." 

Furthermore, IOC expressed the view that it "admires and supports in particular the calls for peace by Russian athletes."

The invasion of Ukraine by Russia, aided by Belarus, passed its one-year anniversary yesterday ©Getty Images
The invasion of Ukraine by Russia, aided by Belarus, passed its one-year anniversary yesterday ©Getty Images

This was an important statement at the time, which must be seen in the general framework of the other sanctions listed above. Sport is not detached from society. The brutality of the Russian invasion clearly justified such measures, politically and legally.

The two UN experts behind the letter of September 14 2022 are, however, critical of the IOC’s position at the time. 

They put what comes across as a rather patronising request to IOC, even bordering on cynicism: "Please indicate whether the principles of the Olympic Charter were considered before deciding on sanctions against Russian and Belarusian athletes, and if so, with which outcome."

It is a remarkable statement, as if IOC in such a serious matter should not have "considered" the content of their own Charter.

The letter is also noteworthy because of what it ignores. The UN experts make, for example, no mention of the following: In March 2022 the Russian Union of Football (RUF) brought suit before the Court of Arbitration for Sport (CAS) requesting a provisional order to set aside FIFA’s ban on Russian participation in the upcoming Qatar World Cup (CAS 2022/A/8708). 

In that case RUF argued that FIFA’s ban violated FIFA’s duty to act in politically neutral ways (paragraph 41) and that it violated Russian athletes’ human rights in terms of personality rights and freedom of economic activity (paragraph 43) - but to no avail. 

Holding for FIFA, CAS essentially stated that the governing bodies (FIFA) must be allowed discretion to implement such measures as deemed necessary to safeguard the integrity of sports in the prevailing extraordinary circumstances.

One would expect the UN experts to counter such judgments with a simple: "Russian athletes were banned solely on the basis of their nationality!" But such a perspective would be flawed. There were legitimate reasons for such measures not based on the athletes’ nationality.

The UN experts also disregard another relevant precedence.

Before the Rio Olympics and Paralympics in 2016, the IPC decided to suspend the membership of the Russian Paralympic Committee (RPC) due to the first McLaren Report on systemic Russian doping.

That meant that all Russian Para athletes were collectively excluded from participation in the Paralympics as a consequence of RPC being detached from its membership of IPC. 

Russian President Vladimir Putin's actions in Ukraine have left to Russia's almost complete exile from international sport ©Getty Images
Russian President Vladimir Putin's actions in Ukraine have left to Russia's almost complete exile from international sport ©Getty Images

RPC challenged this decision before CAS, but lost (CAS 2016/A/4745). Also in this case human rights arguments were invoked by RPC on behalf of its member athletes, but to no avail, as these athletes were (naturally) not party to the dispute, and CAS declined to comment on the question in the abstract.

The UN experts could again of course exclaim: "That was an exclusion solely based on athletes’ nationality!" But the perspective is flawed. The exclusion was a consequence of association law and membership suspension on a federation level.

Similar examples could be taken from the Pyeongchang Olympics in 2018. Here the Russian Olympic Committee was suspended from its membership of IOC based on the Schmid report on the doping calamities at the Sochi Olympics in 2014, affecting Russian athletes collectively. 

Or examples could be found on a federation level - World Athletics suspended the Russian Athletic Federation as early as 2015 based on the Pound report on systemic Russian doping, affecting Russian athletes collectively.

These are complex constellations involving structures in the law of associations, which in turn may affect athletes collectively. Such consequences may therefore arise from a country’s programme of systemic doping, being confined to the realm of sports. 

Or they may arise from a country’s brutal warfare going beyond what can be tolerated by the international sports community, and which cannot realistically be detached from the realm of sports, hence affecting athletes collectively.

In a homogenous society like Norway, the severity of what is unfolding in Ukraine affects people essentially in the same way. There is currently no difference in view between state authorities and sports authorities as there is no reason for there being such a difference. 

Moreover, top athletes are citizens on a par with other citizens. Views may differ among athletes and other citizens alike, but whether one belongs to the one or the other group, the obvious question must be - have realities in Ukraine changed, and to the better, to justify a change in policies? The answer is, unfortunately, in the negative.

That is also the question that must be put to the IOC. It is very difficult to comprehend that questions of values under the Olympic Charter are to be discussed before IOC addresses the question of realities in Ukraine: Have these realities changed, and to the better, since IOC’s decision of 28 February 2022? Unfortunately, the answer is no.

As to the UN experts on human rights - it is very difficult to comprehend that these experts leave out the crucial realities in Ukraine - and that they leave out the complexity of association law and its impact on the collective exclusion of athletes - and, most importantly, that they leave out any discussion of proportion between what they call human rights principles of non-discrimination in sports, and genuine human rights violations in Ukraine.

Based on such wholly imbalanced premises, the UN experts seem to take the view that the dilemmas confronting IOC and other sports bodies can be resolved through law and human rights principles. That is simply not true. This is not a question governed by law but by a perception of what is right and what is wrong.