In addition to my treaties obsession, I seem to be spending more and more time each year following the U.S. national pasttime – baseball. This year, in addition to the on-the-field action, attention has swirled around the question of doping – who used steroids to amplify their physical performance, when did they use it, and what should baseball do about it. Just today, ESPN.com leads with a story on how a federal grand jury is purportedly hearing evidence that Barry Bonds may have perjured himself in discussing whether he used performance-enhancing drugs. Of course, the steroid crisis in baseball is only the latest (and some would say long-overdue) story in a long string of tales about steroid use in sports. Just yesterday, a French court dismissed a defamation case against Lance Armstrong that emerged out of charges involving steroid use in cycling. The Olympic Movement has also spent much of the last decade wrestling with questions of doping. Thus, my parochial interests in baseball aside, doping has become a problem of global dimensions.
And once a problem gains global attention, you can be sure international lawyers won’t be too far behind. Sure enough, this past fall UNESCO adopted the International Convention against Doping in Sport. In less than six months, nine states and the Cook Islands have already joined the Convention, which will enter into force once it receives three more ratifications or accessions. What I find most interesting about the Doping Convention, however, are not its fairly predictable provisions about increasing international cooperation and financing of anti-doping efforts, but the Convention’s origins. Rather than emerging from inter-state negotiations, the Doping Convention culminates a sophisticated effort to combine non-governmental forces with public authorities in combating sports doping.
In 1999, The
World Anti-Doping Agency was created largely at the impetus of non-governmental institutions such as the International Olympic Movement, but with active participation by intergovernmental organizations, governments and public authorities. In 2003, WADA members produced the
World Anti-Doping Code.
According to WADA, the Code :
clarifies the responsibilities of stakeholders and brings harmonization where
rules or policies varied between different sports and countries. For example,
the organizations that sign the Code have to accept the WADA List of Prohibited
Substances and Methods . . . . The Code includes articles that are mandatory
relating, for example, to sanctions and hearings. Other articles, such as those
dealing with consequences to teams, leave some latitude to signatories.
The important thing for international lawyers, however, was the fact that the Code was not binding under international law, since many of its signatories lacked the authority to create international legal obligations. At most, it reflected a so-called “soft-law” commitment of states whose governments directly managed sports through ministries or government agencies, while at the same time functioning as a private law, contractual commitment by those private organizations overseeing sports in nation states (like the United States) who do not view sports as a government function. For a number of countries, however, these commitments proved insufficient, particularly when it came to banning athletes from participating in events or giving force to the Code’s arbitral dispute provisions; hence, the Doping Convention, which translates the Code’s soft-law obligations into true treaty commitments. For example, Article 4 of the Doping Convention makes the WADA Code an integral part of the Convention and requires States Parties to “commit themselves to the principles of the Code.”
Now, commitment to Code “principles” may not mean that states parties to the Convention have to follow each and every article of the Code. But I’m interested to see how the Convention will relate and react to developments in the soft-law WADA world. If, for example, the WADA Code is amended to change the list of prohibited substances, will states parties to the Convention incorporate those changes as treaty amendments? Article 34 of the Convention allows for that possibility if the Conventions’ Conference of the Parties agrees. As such, the WADA Code and the Doping Convention promise to serve as more than another example of how so-called soft-law commitments may eventually generate hard law, treaty obligations; it also presents a potential case study for how well two normative regimes on the same subject operate in concert or (potentially) in tension. At present, WADA and the Convention look to reinforce each other. Indeed, according to WADA, if a state does not ratify the Doping Convention “it may be subject to sanctions from the IOC and from other sports organizations, including losing the right to host Olympic Games.”
So, just as I’ll be watching a few baseball games this summer and its attendant steroid scandals, I’m going to be keeping an eye on WADA and the Convention. After all, WADA’s already criticized Major League Baseball for failing to adhere to the Code’s standards in steroid testing for the World Baseball Classic. I wonder whether WADA will have anything to say on Major League Baseball’s current steroid crisis, and whether WADA’s actions will influence the U.S. decision to join the Doping Convention itself.
If I’m not mistaken, I think Neil MacCormick’s understanding and discussion of law as an ‘institutional normative order’ ‘which has built into it an inherently pluralistic conception of legal system’ might be useful here (wherein there is a clear conceptual distinction between law and state). In addition, the ‘governance’ literature (e.g., neo-liberalist institutionalists and constructivists) has some explanatory virtues pertinent to this discussion. Finally, Slaughter’s thoughts on the ‘disaggregated State’ (and the corollative emergence of ‘government networks’) could be of some analytical help as well. [and that’s leaving out the ‘civil society’ stuff]