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Автор: Блажеев Виктор Владимирович

Lex Sportiva: International or sui Generis – «Unethnic» Law?

Introduction

Sporting life, the sports community and physical activity are governed by an entire corpus of rules of law12, the rules of law regulating the nature of sports institutions, sporting and physical activity, participation in it, the sports relations between natural persons and legal entities and problems arising from sports events are dealt with. This system constitutes the applicable legal order for sport and sporting activity13. The question to be discussed in the present article is whether the entire system of rules of sports law may be considered a part of international law or a sui generis - «unethnic» law.

1. Subjects of International Law

What is international law? It is a body of rules and principles embodied in the legal instruments of agreements between states, in international customs binding for the subjects of international law, i.e. the states, international organizations, and, more recently, individuals. States are the primary subjects of international law14. Despite the fact that another category of subjects of international law has been emerging, namely international organizations, individuals, groups of people and liberation movements, the states remain the traditional category of international legal subjects which hold the authority in the international legal community15.

When states are interested in realizing and carrying out tasks of mutual interest, they establish international machinery. They institute distinct centers of action for the furtherance of common goals which are designed to perform only those activities which states delegate to them. The International Court of Justice in its advisory opinion on Legality on the Use by a State of Nuclear Weapons in Armed Conflict16, stated that the object of the constituent instruments of international organizations «is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals». In the same advisory opinion the ICJ stressed another feature of international organizations. Unlike states, they have limited competence and limited field of action. As the Court put it, international organizations are subjects of international law which do not, unlike states, possess a general competence. In the famous Reparation case17 the ICJ observed that the performance by the organization of the tasks entrusted to it would be impossible, if the organization did not possess international personality. The judges took great care to link the attribution of such personality to the will of the member states, which is necessarily implied in the case. The court acknowledged in its 1949 advisory opinion that the concept of legal personality has no uniform content in international law18. Hence, from the reasoning of the court and the international law, it appears to be possible for an organization to obtain legal personality via custom19.

International organizations20 are governed by the principle of specialty, i.e. they are invested by the states which create them with powers, the limits of which are a function of the common interests whose promotion those states entrust to them». A twofold test verifies the possession of legal personality by the international organizations21.

First, it must be shown that the member states, when they created these organizations with a view to carrying out certain functions, they intended to confer upon them the competence required to enable them to discharge effectively these functions22.

Second, it is necessary for the organization to enjoy real autonomy from member states and the effective capacity necessary for it to act as an international subject. In the words of the ICJ it is necessary to show that the organization «is in fact exercising and enjoying functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane». What are the international rights and duties conferred upon international organizations? We mention the most important ones:

The right to enter into international agreements with non-member states on matters within the organization's capacity23.

The right to immunity from jurisdiction of state courts for acts and activities performed by the organization. Domestic courts of many states have held that disputes relating to employment with international organizations cannot be submitted to State's jurisdiction for they concern activities which fall within the purview of the organization concerned24. The international organizations have the right to claim immunity from the jurisdiction as well as from the execution of national courts with regard to activities performed to attain the goals laid down in the organization's statutes or constitution25.

The right to protection for all of the organization's agents acting in the territory of a third state in their official capacity as international civil servants26.

The right to bring an international claim with a view to obtaining reparation for any damage caused by a member States or by third states to the assets of the organization or to its officials acting on behalf of the organization. The ICJ upheld this right in the Advisory Opinion on Reparation for Injuries27.

Despite the existence of these rights, international organizations do not always have the capacity to enforce them when member or non-member states breach them. When states do not comply with their own obligations, or with international decisions concerning their wrongful acts, international organizations are often unable to enforce international law.

Another subject of international law emerges timidly yet decisively: the individuals. More and more treaties confer rights directly on individuals and impose obligations on them, especially in the area of International Criminal Law28. The right of individual petition to the ICC and other judicial organs are indications of the slow but marked trend of making individuals subjects of international law. Of course, the states still have exclusive control over the individuals since they are the ones to enforce agreements which confer rights on individuals via the sole vehicle of incorporating international law in their legal systems. The right of individuals to petition international or quasi international judicial bodies is considered exceptional since it lacks any substantive right, or the power to enforce a possible decision of the international body that might be favorable to the individual. Again, at the present stage one cannot argue effectively that the individuals are entitled to seek enforcement of these obligations. Rather, it is the states that are in a position to advance such a claim and pursue enforcement bringing a claim before a national or international court those allegedly responsible for breaches of their international obligations29.

2. International law vs. domestic - national law

The status of the international law versus the national law has given rise to three distinct positions.

1) The monistic view30 according to which international law is not a separate legal order but a set of provisional guidelines to be advanced to the status of law, if this is in the interest of the sovereign state and according to its unchecked will.

2) The dualistic doctrine, according to which the international legal order and the domestic national orders are two different sets of legal order quite distinct from each other. Their differences lie in: a) their subjects (individuals and groups of individuals for the domestic legal orders, states and international organizations in the case of international law), b) their sources (parliamentary statutes or judge made law in the national law systems, treaties and customs in the international law), and c) the contents of the rules (national law regulating the internal functioning of the state and the relation between the State and the individual, while international law regulates the relations between states).31 This position allows for an equal, albeit separate status of international law. However, it is obvious that it is upon the discretion of the states to enforce by implementation in their legal systems or to discard it32.

3) A third view, formulated by Kelsen33, argues for the supremacy of international law vis-a-vis the domestic legal systems. It appears to have gained ground more in theoretical debates than in reality.

In order to find out to which of the above positions any given state ascribes, we must examine the stipulations the state sets for the implementation of international law in its domestic law34.

3. Enforcement of international law

In international law, neither central executive authority, nor an effective mechanism of enforcement exist. One would be justified to state that the UN has fallen short of its role to be the executive power of international order. The lack of an effective enforcement mechanism is coupled with a lack of a system of compulsory international adjudication. The International Court of Justice and other international courts such as the European Court of Human Rights only have jurisdiction when the parties to the dispute have consented to the Court's jurisdiction. On the whole, the history of the ICJ has been, with a few bright exceptions, one of an embarrassing succession of failures to establish its authority over the subjects of international law, the most glaring being the South African case. It appears then that international law is still in a primitive state evident. Current political developments sadly confirm this. International law has moved but a little from the contractual mercantile spirit which gave birth to it. It remains highly fragmented, contractual, and, as a result, basically ineffective in its enforcement35

4. Lex Sportiva: a sui generis - «Unethnic» Law? Features

The term international sports law appears to be a subcategory of international law. Basically all international Sports organizations were the product of private initiative and belonged to the category of Private international organizations. However, it is commonplace that the most important ones, like the International Olympic Committee and the international sport federations, have acquired international legal personality through customary practice36. The compliance by the states and individuals with the rules created by these organizations leaves no other logical alternative. The fact that these organizations are subject to the law of the country they are based, does not contradict with their international personality. It appears that the originally private international sports organizations by the implied will of states and individuals and as a result of custom have international legal personality and effective capacity in order to attain the specific goal of creating and organizing the performance of international sports and international sporting events. Thus, international sports organizations meet the requirements of the twofold test, discussed above, e.g., the International Olympic Committee, which is vested with the authority to organize and supervise the Olympic Games.

We note here a clear departure from the international law reality described above. In international Sports, law obligations and rights are imposed directly on the individual athletes. The direct effect of international sports law on individuals can be compared only with the vertical effect which exists in domestic national law systems and, in the case of regulations, in EU law.

In terms of the creation of the rules, the main legislating function is performed by the international organizations of sports law, i.e. the International Olympic Committee and the international sports federations. However, close to the international practice this might be, there is a specific difference. In case of non-compliance by the member states with the rules of the international sports organizations, the exclusion of the disagreeing member, be it a national sports organization or sports federation or athlete, is immediate and is enforced through the sanction of banishment from the games. Failure of the athlete or the member state to abide by the rules of the international sports law activates a system of penalties which vary from fines and suspension to partial and life game exclusion. The system of penalties for the athletic existence of the individual athlete is the equivalent of detention, temporary incarceration, and life imprisonment in a "land" of non-athletic competition. This is a crucial difference between international law and international sports law: an effective enforcement mechanism is definitely not one of the characteristics of international law while the sophistication of the international sports law has in terms of enforcement is impressive37.

Another very important difference is the exclusive jurisdiction of the judicial organ of international sports law that is the Court of Arbitration for Sport in Lausanne (CAS). In the «Bliamou case»38 the clash between national judicial organs and the CAS proved without doubt the superiority of the CAS jurisdiction in international sports law. In international law there is no system of compulsory international adjudication.

A new species of internationalized sports law

We observe differences between international sports law and international law on issues fundamental to the nature and the quality of the law itself. The position that sports law is merely a category or subspecies of international law does not appear to be true on closer examination. We are faced with a system of law which, although it undoubtedly possesses international characteristics since it regulates relations in the international domain, it has set in place a formidable mechanism of enforcement and compulsory adjudication that can be compared only to the national legal systems. Apart from the domestic national systems, only the EU legal order can exhibit such effectiveness in enforcement procedures.

Lex Sportiva: New demands, higher expectations

Therefore, different demands must be made on this legal system and different expectations are to be met. When a legal system exhibits such a power of enforcement of rules we are faced with the familiar ideological dilemmas that we have encountered in the area of domestic law. This debate has already taken place and the conclusions have been crystallized into principles that are concrete and undisputed, despite the fact that problems still occur in their application. These problems of course are more telling of the shortcomings of our societies rather than of the soundness of the principles. In any law order, where power accrues in the hands of the few, the solution lies in the principle of legality and in the separation of powers. There must be a separation of the legislative, executive and judicial powers. In other words the body which sets the rules must not execute them and must not judge the disputes arising from the application of the laws. Separate bodies must execute these functions. The separation of powers must be guaranteed by an independent judicial organ and by the existence of effective judicial remedy for the people39. Confusion of these powers will result in abuse of power and absence of democratic functions.

The particular nature of international sports law puts accepted and common practices as well as established organizational structures in a new light. First, the inadequacy of the international law practices in a system which possesses an enforcement mechanism comparable to that of the national systems and, second, the need to apply the principles of legality when we investigate its structure, criticize its practices, and state the need for its fundamental structural change.

Conclusion

Lex Sportiva is a new species of law, a synthesis of features of international law, (subjects, jurisdiction and content of regulations) and features of domestic national law (effective enforcement mechanism, vertical effect of its laws, and immediate incorporation in the national law systems and compulsory and exclusive jurisdiction of its judicial organs).

So, it appears we are faced with another species of international legal order that cannot be treated as an international law subcategory. It is a different kind of international law40. No clash exists between Lex Sportiva and international law, since we are dealing with a different kind of international law, sports law, which constitutes a supranational system which regulates a specific domain of international law41.

In conclusion, we could say that lex sportiva is not a part of international law, but a sui generis category of law. Lex Sportiva could be viewed by the people interested in sports law, as a category of law that it is neither part of international law, nor a part of the national one. It could be characterized as an «unethnic» law, meaning that it is a supranational category of law, above the power of the states.

12 See L. Silance (1977), «Sports Law», IOA. 16th Congress, Athens, p.76.

13 See I. Drosos (1992), «Constitution and Sports«, In the Proceedings of the Hellenic Centre for Research on Sports Law (H.C.R.S.L) Conference 17.1.1991, in: international Sports Law Review Pandektis I: 1, p. 134, D. Panagiotopoulos (1994) The Law of International Sports Relations and Institutions (in Greek), Ant. N. Sakkoulas: Athens p. 20.et seq., Article 19 (9) of the Constitution, see E. Venizelos (1993), «Constitution and Sports», in: Proceedings of the International Conference: The Institution of the Olympic Games, Olympia 3-7 September 1991, H.C.R.S.L: Athens, pp. 269-271, Panagiotopoulos (1993), «Issues on Scientific Determination And Application of Sports Law», In: Proceedings 1st International Congress on Sports Law, Dec 11-13, Athens 1992, H.C.R.S.L.: Athens, pp. 65-77, I: 1993 p. 109-116. K. Remelis (1993), «The Meaning and Nature of Sports Disputes» in: Proceedings 1st International Congress on Sports Law, Op. cit, 171-175, H. V. Staveren, «The line Between Sports Regulations and the Law». In: Council of Europe-CDDS Seminar, CDDS (94) 34, Malta 1994, 18-19 May.

14 Part of this chapter (in the form of a paper) was announced in 11th IASL Congress in Johannesburg 28-30 Nov. 2005, South Africa and published in: International Sports Law Review Pandektis (Pand/ISLR), Vol .7:12, pp.1-7.

15 A. Cassese (2001), International Law, Oxford University Press, pp 7- 27, J. Dugard, International Law, A South African perspective, 2000, Juta & Co, Ltd, pp5-10, 26, 133-145. 376, Ian Brownlie, Principles of Public International Law, 1998, Oxford University Press, pp 31-45.

16 Legality of the Threat or Use of Nuclear Weapons Case I.C.J. Rep. 1966.

17 Reparation for Injuries Suffered in the Service of the United Nations Case, I.C.J.Rep. 1949.

18 Ph. Sands, P. Klein, Bowett's Law of International Institutions, 2001, London, Sweet and Maxwell, pp 285, 292, 472,474.

19 Custom one of the main sources of International Law.

20 Sands, Klein, 508,509.

21 Cassese, pp 71-72.

22 Ibid, 78.

23 Ibid, 78.

24 In 1931 the Italian Court of Cassation delivered a seminal decision in Istituto Internazionale di Agricoltura v. Profili. Mr. Profili, an employee of the International Institute for Agriculture, the organization that was the predecessor of the FAO and headquartered in Rome, was dismissed by the organization. He sued the IIA before a court of Rome. The IIA challenged the jurisdiction of the Italian courts, and the case was brought before the Court of Cassation. The Court held that the Organization had international legal personality, as the states establishing the organization had intended to be absolutely autonomous vis-a-vis each and every member state. Consequently it was empowered to organize its own structure and legal order autonomously and without any interference from sovereign states. Therefore the Italian courts lacked jurisdiction over employment relations with the organization.

25 Cassese, pp 80- 81.

26 Ibid 81.

27 On September 1948, the UN mediator, Count Folke Bernadotte, and the UN observer, Colonel Andre Serot, were assassinated while on official mission in Israel. Israel declared itself to be ready to make reparation for its failure to protect the two UN agents and to punish their killers.

28 Sh. Bassiouni, International Criminal Law, 1999, New York, Transnational Publishers pp 456, 678.

29 Cassese, pp. 90, 93.

30 Fitzmaurice, "The general principles of International Law Considered from the standpoint of the Rule of Law" in Hague Recueil 5, 1957, pp 70-80, J. G. Starke, " Monism and Dualism in the Theory of International Law" In British Year Book (1936), p 74.

31 As a counterbalance to these two contrasting opinions, there has been also the opinion put forward, that international law can additionally derive from various other sources; according to these theories even private bodies can set binding rules which extend to the international field of their activities. Typical example of that theory is the lex mercatoria as a foundation of international commercial practice. For the special nature of this autonomous legal order see also Ch. Pampoukis (1996), Lex mercatoria (in Greek), Ant. N. Sakkoulas, p. 17 ff.

32 Cassese, pp 162-165.

33 Kelsen, The Principles of International Law, Rinehart 1952, pp 45-50.

34 States like Greece, the Netherlands, and Spain adopt an automatic incorporation system. In addition, in Greece, according to the Hellenic Constitution, customary international rules and treaties override national law. In Spain provision is made not only for the supremacy of the international treaties but also for the obligation of the national authorities to construe national legislation on human rights in the light of international instruments.

35 Brierly, 167, Dugard, 175, 178, Cassese, 223, 224.

36 D. J Harris, Cases and Materials on International Law, 2000, London, Sweet & Maxwell, pp 24- 43, 143144; Asylum Case, Columbia v. Peru, I.C.J. Rep. 1950, p.226.

37 Considering all the above, the notion expressed by J. Nafziger in International Sports Law, 2nd edition, New York 2004, p 49, that «lex sportiva is the product of only a few hundred arbitral decisions within a limited range of disputes (...) It is still more of a lex ferenda than a mature lex specialis» seems unjustified. For the obvious existence of lex sportiva in the international sports domain compare Panagiotopoulos, Sport Institutions and Sports Law, p 40 f., in: D. Panagiotopoulos (ed. 2005), Sports Law - Implementation and the Olympic Games, Sakkoulas: Athens.

38 See, for a detailed analysis of this case, Part V of this book.

39 See art. 6 of the European Convention for the Protection of Human Rights.

40 Whether this new species of international law belongs to the same species, as the EU legal system will be the subject of another study.

41 This «supranational» character of sports law has substantial similarity to the legal order of the former European Community and after December 2009 European Union, which stands between the national legal orders of the member States and the international legal order, borrowing elements from both of them, while at the same time it remains independent from them.