For two-time Olympic champion Caster Semenya, the European Court of Human Rights may well be the last court of appeal to overturn the restrictions placed on her by the IAAF to compete as a woman. The case may come to rest on whether the IAAF’s stricture that the South African should medically reduce her testosterone levels to continue competing in select races is a human rights violation.
But what’s gaining ground is the view that athletes’ human rights should be the starting point and not the last resort. It found support at the GoSports Foundation Sports Law & Policy Symposium on Saturday through Brendan Schwab, Executive Director of World Players Association and a leading human rights lawyer, and Craig Foster, a former Australian footballer, whose stellar role helped free Hakeem al-Araibi, an Australian citizen of Bahraini descent who was on the verge of being extradited to Bahrain by Thailand on the basis of dodgy criminal charges.
“There should be a policy commitment to internationally recognised human rights,” said Schwab. “The rights against cruel and inhumane treatment are absolute. If you apply that test, I don't possibly see how the regulations that were proposed to Semenya would be upheld. The World Medical Association said afterwards that it was unethical to prescribe that treatment. That should have been picked up before the regulations were passed.”
The fact that the IAAF said it was not subject to any universal declaration of human rights as it was a “private body” hasn’t gone down well.
“The CAS can just decide cases with reference to the rules that are there before them. But rules are deliberately narrow,” said Schwab. “It is not an accident that the IAAF refers [only] to unlawful discrimination, because discrimination is not an absolute right. That's their level of commitment. The term human right does not appear in their constitution and that is not a accident.”
“We need constitutional commitments that respect human rights. FIFA has done that, Commonwealth Federation will soon do. If this case had been heard in football, I am sure there would have been a very different outcome, irrespective of the science. Because the inquiry will be broad enough that even if some athletes were to be excluded, we could be confident that it would be human rights compatible.”
According to Foster, it is that legal human rights framework embedded in a small number of sports including football that helped secure Hakeem’s release. “Hakeem had the entire international system of law on his side,” explained Foster. “In the IAAF case with Caster Semenya, the notion that a sport can say that it feels no obligation to respect the human right of an individual is staggering.”
“We were successful with Hakeem because we united fans and players and they forced the authorities to act. In Semenya’s case where are her fellow athletes, the brethren, male or female? If they say ‘if you breach her rights, you breach ours,’ it would be very different.”