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ОглавлениеДля бесплатного чтения доступна только часть главы! Для чтения полной версии необходимо приобрести книгуSpecial partChapter 10. International cooperation in fighting against doping in sportIn this Chapter the following questions are considered: 10.1. The history of doping and the fight against it within the framework of the Olympic Movement. 10.2. The World Anti-Doping Agency (WADA): its legal status, competence the 2003 WADA World Anti-Doping Code (as amended on 1 January 2015). 10.3. The 2005 UNESCO International Convention against Doping in Sport: its structure, contents, and a control mechanism. 10.4. Fight against doping within the Council of Europe. The 1989 Anti-Doping Convention of the Council of Europe and 2002 Additional Protocol. 10.5. The problem of doping in Russian sports. 10.1. The History of the Emergence of Doping and the Fight Against it Within the Framework of the Olympic MovementA well-known term “doping” originates from the English dope (coll. a drug). According to another version, the origin of the term is associated with the Dutch dop – the name of an alcoholic beverage made from the grape skins used by Zulu warriors. The term became widespread in the XX century, and originally it meant administration of prohibited substances in racehorses. According to available historical information, the use of doping began during the first Olympic Games in 776 BC, when athletes took analgetic substances derived from natural products – mushrooms, herbs, wine. By the time of the Olympic Games revival in 1896, the arsenal of doping agents had already included artificially synthesized codeine and strychnine and it continued to expand throughout the XX century. Since the 1960s the International Olympic Committee has been expressing the most serious concern over the increasing use of doping in sport (Recommendations of the IOC Session in Moscow in 1962 regarding the prohibition of doping, the 1967 Decision of the IOC regarding prohibition of doping in sport, the establishment of the IOC Medical Commission on Doping Control in 1967). The IOC plays a key role in regulating international sports relations in the field of fighting against doping. The IOC efforts have resulted in two documents significant in the context of the fight against doping, namely: The Anti-Doping Code of the Olympic Movement of 4 February 1999 and the Medical Code of the International Olympic Committee of 12 December 2005. The 2005 IOC Medical Code is an example of corporate regulation. It prohibits the use of doping (para. 1, Chapter 1) and administration of certain classes of pharmacological agents (stimulants, drugs, anabolic agents, diuretics, peptide and glycoprotein hormones and their analogues) into the body of athletes, the use of prohibited methods (blood doping, pharmaceutical, chemical and physical procedures), as well as imposes a limited ban on a number of pharmacological agents (Chapter 2). 10.2. The World Anti-Doping Agency (WADA): its Legal Status, Competence, the WADA 2003 World Anti-Doping Code (as amended on 1 January 2015)The 1999 Anti-Doping Code became an integral part of the Lausanne Declaration on Doping in Sport of 4 February 1999 adopted by the World Conference on Doping in Sport. One of the sections of the instrument in question contained a decision on establishing an independent international anti-doping agency. In accordance with the provisions of the Lausanne Declaration, the World Anti-Doping Agency (WADA) was established on 10 November 1999 in Lausanne. Thus, an extremely interesting subject of international sports law that is playing a key role in the implementation of effective control over the non-proliferation of doping in sports emerged. The work of this Foundation established on the initiative of the IOC in compliance with the Swiss Civil Code quickly acquired an international character. Since 2001, the WADA headquarters are located in Montreal, Canada. The Agency operates on the basis of the Constitutive Instrument of Foundation revised in 2016. Statutory goals are set out in Art. 4 and they include: the fight against doping in sport; strengthening ethical principles for the practice of sport free from doping and protecting the health of athletes; development, adoption, modification of the list of prohibited substances and methods; implementation of out-of-competition testing; development, harmonization and unification with respect to samples, technical standards and testing and equipment procedures, including homologation of laboratories; promotion of harmonized rules, disciplinary procedures, sanctions and other measures with a view to their unification; development of educational programmes and implementation of preventive measures in the field of anti-doping at the international level; encouragement and coordination of scientific research in this field. In accordance with Art. 5 the founder transfers the initial capital of 5 million Swiss francs to the Foundation. Other sources of financing include voluntary asset contributions from individuals and legal entities, intergovernmental organizations, governments, public authorities and other public and private entities. As a legal entity established under Swiss Law, WADA is registered with the Lausanne Trade Register (Art. 18). The supervision over its activities is carried out by the Federal Department of the Interior of Switzerland (Art. 19). WADA main bodies include the Foundation Board (Art. 6–10 of the Constitutive Instrument of Foundation) consisting of 40 people appointed for 3 years; the Executive Committee (Art. 11) consisting of 12 persons appointed for 1 year, the Auditing Body (Art. 14) that prepares and forwards an annual report on the activities of the Foundation to the Foundation Board and the Federal Department of the Interior of Switzerland. WADA unites both representatives of the Olympic Movement and State authorities, and the question of who will represent Europe among 38 members of WADA is resolved by two intergovernmental European organizations – the Council of Europe and the European Union. As a consequence, WADA can no longer be called an international non-governmental organization, the signs of which are listed in UN ECOSOS Resolution 1296 (XLIV) “Measures for consultation with non-governmental organizations” of 23 May 1968 (absence of profit-making objectives, recognition by at least one State or acquisition of an advisory status in international governmental organizations dealing with closely related issues, activities in at least two States, the establishment and operation of a foundation act). The Agency is a unique hybrid organization managed and financed equally by the Olympic Movement and State authorities (see, for example, Art. 6, Para. 6, Art. 7 of the WADA Constitutive Instrument of Foundation, Art. 15 of the International Convention against Doping in Sport of 19 October 2005). On the WADA initiative, the World Anti-Doping Code was adopted on 20 February 2003, and it has been in force since 1 January 2015 as amended on 15 November 2013. The Code is a comprehensive set of rules and guidelines that are mandatory for the participants of the sports movement, and this is another example of corporate regulation in international sports. In addition to the Code, WADA has elaborated six International Standards that contain mandatory technical and procedural provisions for anti-doping organizations on the following issues: 1. prohibited list of substances, 2. therapeutic use exemptions, 3. testing and investigations, 4. laboratories, 5. protection of privacy and personal information. 5. protection of privacy and personal information, 6. Сode compliance by Signatories, which was adopted on 15 November 2017 and took effect on 1 April 2018. The Code presupposes strict adherence to all six WADA International Standards. At the moment, the WADA World Anti-Doping Code is officially recognized by 36 International Federations of Olympic Sports, 204 National Olympic Committees, 139 national anti-doping organizations. The Code is included in Addition 1 to the International Convention against Doping in Sport (2005) that does not constitute an integral part of the Convention (Para. 2 of Art. 4 of the Convention). Art. 29 of the 2005 Convention assigns WADA the status of a consultative organization invited to the Conference of Parties and vests it with the powers given in accordance with a specific amendment procedure stipulated in Art. 34 of the Convention to amend the Prohibited List or the Standard of Granting Therapeutic Use Exemptions included into the legally binding Annexes 1 and 2 of the 2005 Convention, respectively. The World Anti-Doping Code consists of four Parts and two Annexes. Part 1 of the World Anti-Doping Code (Art. 1–17) regulates the procedure for the implementation of doping control in WADA-accredited laboratories. Part 2 (Art. 18–19) is devoted to educational programmes and scientific research in the field of anti-doping. Part 3 (Art. 20–22) establishes the roles and responsibilities of the IOC, the IPC, International Sports Federations, National Olympic and Paralympic Committees, national anti-doping organizations, organizers of major sports events and stakeholders, WADA, as well as athletes, athlete support personnel, regional anti-doping organizations. Part 4 (Art. 23–25) regulates the process of adopting, implementing, amending and interpreting the World Anti-Doping Code. The objectives of the World Anti-Doping Code and the World Anti-Doping Programme, which includes the Code itself, the International Standards, Models of Best Practice and Guidelines that WADA will recommend to the signatories, are the protection of the fundamental right of athletes to compete in doping-free competitions; to promote health, justice and equality for all athletes of the world; to ensure the development of coherent, coordinated and effective anti-doping programmes both internationally and nationally in order to disclose, deter and prevent the use of doping. Art. 1 contains the definition of doping and refers to it as the commission of one or more anti-doping rule violations enumerated in the list given in Art. 2. Violations of anti-doping rules entail the imposition of sanctions. In Art. 10 the World Anti-Doping Code determines sanctions against individuals violating anti-doping rules. The measure of punishment under Art. 10.1 can amount to the cancellation of all individual athlete results achieved at a sporting event, including the removal of all medals, points, scores and prizes. The Code also sets the time limits of possible ineligibility for anti-doping rule violations: – for a period of four years under Art. 10.2 for the violation of the requirements of Art. 2.1 (presence of a prohibited substance, its metabolites or markers in the athlete’s sample), Art. 2.2 (the use or attempted use of a prohibited substance or prohibited method), Art. 2.6 (possession of a prohibited substance or prohibited method, unless the athlete proves that such possession is consistent with the therapeutic use exemption); – for a period of two to four years under Art. 10.3.1 for the violation of the requirements of Art. 2.3 (evasion, refusal or failure to attend a sample presentation procedure) and Art. 2.5 (tampering or attempted tampering with any part of doping control); – for a period of one to two years under Art. 10.3.2 for the violation of the requirements of Art. 2.4 (three missed tests or filing failures concerning submitting information on the whereabouts of the athlete for twelve months, as defined in the International Standard for Testing and Investigations); – for a period of four years to lifetime ineligibility under Art. 10.3.3 for violations of Art. 2.7 (trafficking or attempted trafficking in any prohibited substance or prohibited method) and Art. 2.8 (administration or attempted administration to an athlete in-competition or out-of-competition of any prohibited method or prohibited substance). Moreover, in the comments to Art. 10.3.3, it is emphasized that persons engaging athletes in doping schemes or covering them (for example, Athlete Support Personnel ) should be subjected to more stringent sanctions – such cases are recommended to be reported to the competent authorities; – for a period of two to four years under Art. 10.3.4 for violations of Art. 2.9 (complicity in anti-doping rule violations); – for a period of one to two years under Art. 10.3.5 for violation of Art. 2.10 (prohibited association between an athlete or another person subject to the authority of an Anti-Doping Organization in professional or sport-related capacity with any Athlete Support Person). For a second anti-doping rule violation under Art. 10.7 twice the period of ineligibility may be imposed as compared to the period of ineligibility otherwise applicable to the second anti-doping rule violation treated as if it were first violation. Provided a third anti-doping rule violation is ascertained, a period of ineligibility will always amount to life-time. In addition, Anti-Doping Organizations include, by implication of the Code, the IOC, the IPC, WADA, International Sports Federations, National Olympic and Paralympic Committees, national anti-doping organizations (for example, the Russian Anti-Doping Agency-RUSADA), organizers of major sports events (for example, Organizing Committees of the Olympic Games). At the same time, financial sanctions do not affect the term of the athlete’s ineligibility (Art. 10.10). Art. 10.12.1 and comments to it describe which activities are prohibited for the athlete during the period of ineligibility – the only exception under Art. 10.12.2 is athlete’s returning to training activities during the last two months or the last quarter of the imposed period of ineligibility, which is necessary in many team sports as well as in some individual ones (for example, ski jumping or gymnastics). Art. 11 of the Code determines the consequences to the teams members of which were found to be in violation of anti-doping rules (target testing of the team under Art. 11.1, loss of points, disqualification from competition or event under Art. 11.2, disqualification of the team from the Olympic Games under Art. 11.3). Art. 12 allows signatories or governments that have adopted the World Anti-Doping Code to use their own rules to impose sanctions on a sports organization under their jurisdiction. Art. 20 identifies the roles and responsibilities of all anti-doping organizations in their fight against doping in sport: The IOC (Art. 20.1), the IPC (Art. 20.2), International Sports Federations (Art. 20.3), National Olympic and Paralympic Committees (Art. 20.4), National Anti-Doping Organizations (Art. 20.5), organizers of major sporting events (Art. 20.6). Art. 20.7 of the 2003 Code is devoted to the WADA role and responsibility for exercising international control over the use of doping in sport. WADA has been authorised to adopt and implement anti-doping principles and procedures; to monitor the Signatories’ compliance with the Code; to approve the International Standards required for the implementation of the Code; to accredit and re-accredit laboratories to conduct samples analyses or authorise other laboratories to conduct sample analyses; to develop and approve models of best practices; to support, implement, commission, fund and coordinate anti-doping research and promote anti-doping education programs; to plan and conduct an effective independent monitoring program; to carry out doping control procedures in accordance with the plans of other anti-doping organizations, to cooperate with relevant national and international organizations and agencies. Disputes arising as the result of anti-doping rule violations are dealt with by the Court of Arbitration for Sport (CAS). The CAS jurisdiction and powers are determined in Art. 3.2.1 (appointment of a scientific expert to assist CAS arbitrators), Art. 4.4.7, 4.4.8, 7.1, 8.5, 13 (appealing to the CAS), Art. 10.9 (priority of repayment of CAS cost awards and forfeited prize money), etc. The provisions of such a private non-governmental instrument as the World Anti-Doping Code do not create international legal obligations for governments. For this reason, Art. 22 of the Code does not call on governments of States to become Signatories to the World Anti-Doping Code but indicates the need to sign the Copenhagen Declaration on Anti-Doping in Sport of 3 March 2003 and adhere to the UNESCO International Convention against Doping in Sport of 19 October 2005. The Copenhagen Declaration is not legally binding and is not a comprehensive instrument in the field of fighting against doping in sport. The Copenhagen Declaration contains political obligations of States to implement the World Anti-Doping Code as well as to ratify, accept, approve and accede to the UNESCO 2005 International Convention against Doping in Sport. By now, the Copenhagen Declaration has already been signed by 193 States of the world, which indicates successful coordination of efforts of sports movements and state authorities in the sphere of international fight against doping. A fundamental role of the World Anti-Doping Code was highlighted in the amendments to the Olympic Charter adopted on 8 December 2014 (Rules 21, 40, 45) and in a number of provisions of the 2005 International Convention against Doping in Sport (for example, Art. 2, 3, 4, 14, 29, 30). However, the World Anti-Doping Code, as noted above, does not contain international legal norms in their traditional understanding. Nevertheless, the Code provisions became normative in nature. The fundamental role of the World Anti-Doping Code is indicated in the Olympic Charter. For the violation of the World Anti-Doping Code provisions, the Olympic Charter establishes a list of possible measures and sanctions. Rule 45 States that the Olympic Games programme includes only those sports the international sports federations of which are governed by the World Anti-Doping Code. For example, the Parties to the 2003 Code are the Russian Olympic Committee, RUSADA, the All-Russian Olympic Sports Federations. They are obliged to comply with its provisions and WADA international standards adopted in furtherance of the Code. At the same time, the provisions of the 2003 Code do not directly create international legal obligations for the Russian Federation. The essence of the 2003 World Anti-Doping Code and the legal status of WADA requires further scientific analysis. In the scientific literature, the opinion is expressed that the Code is a body of norms of international “soft” law adopted to develop common approaches in the field of fighting against doping in sport. 10.3. The 2005 UNESCO International Convention against Doping in Sport: its Structure, Contents, and a Control MechanismIn order to establish an international treaty framework to fight against doping in sport, a convention was drafted that obliges States to follow the principles of the Code at the national level. The UNESCO International Convention against Doping in Sport of 19 October 2005 that entered into force on 1 February 2007 (hereinafter referred to as the 2005 Convention) was the first instrument introducing a universal international legal prohibition on doping. 183 States of the world participate in the 2005 Convention. Russia ratified the UNESCO 2005 International Convention against Doping in Sport in December 2006. The Preamble to the 2005 Convention States that “sport should play an important role in the protection of health, in moral, cultural and physical education, and in promoting international understanding and peace”; some concerns are expressed with regard to the use of doping in sport by athletes and the consequences thereof for their health and the principle of fair play. It points out that doping puts at risk the ethical principles and educational values imbodied in the UNESCO International Charter of Physical Education and Sport oof 21 November 1978 and in the Olympic Charter; it is mentioned that the Anti-Doping Convention and its Additional Protocol adopted within the framework of the Council of Europe are the public international law tools that form the basis of national anti-doping policies and intergovernmental cooperation. The purposes of the 2005 Convention are to promote the prevention of and fight against doping in sport with a view to eliminate it (Art. 1). Tools applied to achieve the purposes of the 2005 Convention include the adoption at the national and international levels of appropriate measures and the promotion of all forms of international cooperation between participating States and leading organizations in the field of fight against doping in sport, in particular, in cooperation with WADA. States Parties undertake to adhere to the principles of the World Anti-Doping Code that is included into the number of Annexes to the 2005 Convention (Art. 3). The Annexes form an integral part of the 2005 Convention. Annex I of the 2005 Convention reproduces the First International Standard of WADA – Prohibited List of Substances, Annex II sets forth the Second International Standard of WADA – Standard for Granting Therapeutic Use Exemptions. On 1 January 2018 the Prohibited List of Substances for 2018 entered into force. Under Art. 34 of the 2005 Convention, its monitoring body, the Conference of Parties, considers amendments to the Convention adopted by WADA, the Prohibited List of Substances and the Standard for Granting Therapeutic Use Exemptions for their approval. Amendments are made unless two thirds of the States Parties object to the proposed amendment. Among the main anti-doping activities at the national level the Convention names adoption by the States Parties of measures aimed at restricting the availability of prohibited substances and methods for the purpose to prevent and restrict their use by athletes in sports, except for therapeutic use exemptions, including measures to combat the spread of prohibited substances and methods among athletes, measures to control their production, movement, import, distribution and sale (Art. 8). At the same time, the use of nutritional supplements is not prohibited (Art. 10). In addition, among the main anti-doping activities at the national level the 2005 Convention provides for the promotion of measures, in particular, sanctions or penalties to be taken by sports organizations and anti-doping organizations and aimed at athlete support personnel who commit anti-doping rule violations (Art. 9) and financial measures applicable in this area (Art. 11). States allocate, within their respective budgets, funds to finance a national testing programme in all sports or assist sports organizations and anti-doping organizations in financing doping control in the form of direct subsidies or grants, and take measures to withhold financial support from athletes and their support personnel if they have been suspended following an anti-doping rule violation and to withhold financial support from any sports organization or anti-doping organization functioning not in compliance with the World Anti-Doping Code. Art. 12 provides for the measures aimed at facilitating and encouraging doping control (for example, preventive control exercised by authorised doping control teams from other countries, assistance in gaining access to an accredited doping control laboratory for the purposes of analysis). Section III of the 2005 Convention devoted to International Cooperation indicates the need for States Parties to support WADA in accomplishing its important mission. The States Parties support the principle of equal funding of the WADA’s approved core financial budget by public authorities and the Olympic movement (Art. 15). It is emphasized that fighting against doping in sport can be effective only with no advance notice, and samples must be transported in a timely manner to laboratories for analysis. Therefore, the States undertake to ensure timely movement of duly authorised doping control teams across borders when conducting doping control activities. Funds-in-trust established in accordance with the UNESCO Financial Regulations are used to establish the “Fund for the Elimination of Doping in Sport” (Art. 17) which is formed from the contributions made by the States Parties (in addition to the States Parties obligations to pay annual budget contributions to the WADA core budget), contributions and donations from other States and private organizastions and individuals. The funds of the Voluntary Fund are allocated by the Conference of Parties – the sovereign body of the 2005 Convention under Art. 28 – to fund the activities approved by the Conference, in particular, to assist States Parties in developing and implementing anti-doping programmes (Art. 18). Section VI of the 2005 Convention entitled “Monitoring the Convention” regulates the procedure established for the operation of the Conference of the Parties and enumerates the powers of the Monitoring Body. Under Art. 28 the Conference of the Parties is referred to as the sovereign body of the Convention in question. In the context of public international law, the Conference of Parties is a textbook example of an international supervisory body. Ordinary sessions of the Conference of the Parties are to be held every two years. WADA is invited as an advisory organization to the Conference of the Parties. The International Olympic Committee, the International Paralympic Committee, the Council of Europe and the Intergovernmental Committee for Physical Education and Sport (CIGEPS) are invited as observers (Art. 29). Art. 30 of the 2005 Convention enumerates the functions of the Conference of the Parties: the Conference of the Parties promotes the achievement of purposes of the 2005 Convention, regulates relationships with WADA, approves the plan for using the resources of the Voluntary Fund, considers reports forwarded by States Parties every two years concerning the measures they have undertaken for the purpose of complying with the provisions of the Convention (Art. 31), and considers, for the purpose of approval, amendments to the Convention, the Prohibited List of Standards and Therapeutic Use Exemptions adopted by WADA (Art. 34). On 5 February 2007, at the First Session of the Conference of the Parties to the International Convention against Doping in Sport at UNESCO Headquarters in Paris, the Head of the Federal Agency for Physical Culture and Sport, an outstanding ice hockey player Viacheslav A. Fetisov was elected the Chairperson of the Bureau of the Conference of Parties, and he held the office until 2009. Fitisov’s election as the first President of the Bureau of the Conference of the Parties undoubtedly increased the authority of Russia and facilitated its standing in the field of international cooperation in fighting against doping in sport. In the scientific literature, a proposal is brought forward to develop an Additional Protocol on Reorganisation of a Monitoring Mechanism established in compliance with the International Convention against Doping in Sport that could amend a number of Convention provisions. For the purpose of enhancing efficiency of the international anti-doping system provided for by the 2005 Convention, the States Parties could amend Section VI “Monitoring of the Convention” and reorganise a relevantly weak monitoring mechanism that previously existed. As a new mechanism, an intergovernmental organization consisting of such major bodies as the Conference of the Parties, the Executive Council and the Technical Secretariat could be established. The Conference of the Parties is the highest representative body within the meaning of Art. 28 of the 2005 Convention. At present, its ordinary sessions are held every two years, but if the States Parties to the Convention take an appropriate decision, the sessions can be convoked more often, probably annually, similar to the UN General Assembly (see Art. 20 of the 1945 Charter of the United Nations). The absence at the present stage of such an authority as the Conference of Parties to consider WADA regular reports cannot but surprise. Art. 30 of the Convention, as it stands, mentions submission of a request for a report on the implementation of the Code to each of its sessions for consideration. In a similar way, para. 6 of Art. 10 of the WADA Constitutive Instrument of Foundation as revised in 2016 States that WADA publishes a report on its activities, profit and loss account. However, the instrument does not contain any obligation for WADA to forward the report to the Conference of the Parties for examination. The Executive Board can be entitled to act as a body accountable to the Conference of the Parties and performing executive functions, as its name implies, in order to ensure the proper implementation of the decision of the Conference of the Parties. It shall be convoked to resolve all problems arising during the periods between the sessions of the Conference of the Parties as often as it may be required to exercise its powers and functions. The Technical Secretariat could consist of the Director-General – the head and the chief administrative officer of the Technical Secretariat – and such scientific, technical and other personnel as may be required. The Technical Secretariat could include the International Data Centre – a coordination centre for data storage and processing having the powers similar to the powers provided for in Art. 4 of the Comprehensive Nuclear-Test-Ban Treaty of 24 September 1996. The activities carried out by the International Data Center could include administration of the ADAMS programme for the collection and storage of data on the whereabouts of athletes, the doping tests passed and their results, the therapeutic use exemptions. However, the decision significantly expanding the State influence on international sports can be regarded as unacceptable by the Olympic movement. In the process of finding useful innovations, all involved parties, of course, must demonstrate readiness for a compromise and seek a reasonable balance in the distribution of control powers. 10.4. Fight Against Doping Within the Council of Europe. The 1989 Anti-Doping Convention of the Council of Europe and its 2002 Additional ProtocolUntil 2005, issues concerning the fight against doping were regulated only at the regional level: the Council of Europe Anti-Doping Convention of 16 November 1989 (ETS No. 135), to which the Additional Protocol (ETS No. 188) was adopted on 12 September, 2002, may serve as an example. The USSR acceded to the 1989 Convention on 12 February 1991. The 1989 Anti-Doping Convention aims at eliminating doping in sport by means of encouraging each State to adopt the measures necessary for the implementation of the 2005 Convention within the framework of their respective constitutional provisions (Art. 1). Under “doping in sport” the 1989 Convention understands “administration to sportsmen or sportswomen, or the use by them, of pharmacological classes of doping agents or doping methods” (para. 1-a, Art. 2). Art. 4 entitled “Measures to restrict the availability and use of banned doping agents and methods” contains a list of obligations of the Parties to the 1989 Convention. Parties to the 1989 Convention adopt laws, legal provisions or administrative measures to limit the availability of doping and the use of prohibited drugs and doping methods in sports (para. 1, Art. 4). States Parties shall assist their sports organizations by means of providing finance for doping controls and analyses; take appropriate steps to withhold the grant of subsidies raised by public funds, for training purposes, to individual sportsmen and sportswomen who have been suspended following a doping offence in sport; encourage and facilitate the carrying out by their sports organisations of the doping controls required by the competent international sports organisations; encourage sports organisations to negotiate and conclude agreements permitting their members to be tested by doping control teams (para. 3, Art. 4). Under Art. 5, Parties to the 1989 Convention are obligated to establish or facilitate the establishment on their territories of one or more doping control laboratories in compliance with the criteria adopted by the relevant international sports organisations or to assist their sports organisations in gaining access to such a laboratory on the territory of another State Party. Also, the Parties to the 1989 Convention undertake to implement educational programmes and information campaigns emphasising the dangers to health inherent in doping and its harm to the ethical values of sport activities (Art. 6); cooperation with national and international sports organizations (Art. 7); international cooperation (Art. 8). For the purpose of monitoring the implementation of the 1989 Convention, a monitoring group was established (Art. 10). The monitoring group is authorised to undertake an ongoing review of the provisions of the 1989 Convention and examine any modifications necessary; approve the list of pharmacological doping agents and doping methods banned by the relevant international sports organisations; hold consultations with relevant sports organisations; make recommendations to the Parties concerning measures to be taken for the purposes of the 1989 Convention, etc. (Art. 11). It is interesting that the 1989 Convention is open to accession for States that are not members of the Council of Europe (para. 1 (f), Art. 11). The Additional Protocol of 12 September 2002 promulgates the mutual recognition of the results of doping controls carried out by sporting or national anti-doping organizations of the Parties to the 1989 Convention as well as the recognition of the WADA competence (Art. 1). 10.5. The Problem of Doping in Russian SportsThe Russian Anti-Doping Agency (RUSADA) was established in January 2008 on the initiative of the Federal Agency for Physical Culture and Sport. RUSADA is not a state authority, however, the Ministry of Sport of the Russian Federation is still listed on its official website as one of its founders, along with the ROC, the RPC, the Russian State Medical University, the Russian Academy of Education, the All-Russian Public Organization “The League of the Nation Health”. In November 2015, the RUSADA accreditation was revoked by WADA. In the following two parts of the report represented to WADA and the general sporting public on 18 July and 9 December 2016 respectively, Prof. McLaren argued that in order to conceal the use of doping among Russian athletes, sports organizations (RUSADA, the Centre for Sports Training of Russian National Teams (CSP), the Moscow Laboratory) and government authorities of the Russian Federation (the Ministry of Sport and the Federal Security Service) were involved in institutional conspiracy. According to prof. R. McLaren, the degree of state participation in the coordination of actions related to the concealment of doping, gradually increased: during the period from 2011 to 2013, Russia had a decentralized model of doping (section 5.1); starting with the Universidad in Kazan in 2013 and the World Championships in Athletics in Moscow in 2013, a substitution of a limited number of samples B (sections 5.2–5.4) took place; during the preparation and holding of the Winter Olympic Games in Sochi in 2014 the Ministry of Sport allegedly controlled and was responsible for “planning and implementing a unique scheme for manipulating doping”, while RUSADA, the FSB, the DSP, the Moscow laboratory and the Sochi 2014 Organizing Committee (section 6.1) were involved in the process. Not going into the issues of admissibility and reliability of the evidence presented by prof. R. McLaren, we state what serious consequences they have caused for Russian athletes. In August 2016, most Russian athletes, all weightlifters and the whole Paralympic team were denied admission to the Summer Olympic Games in Rio. During his speech on 2 August 2016 at the IOC session in Rio, IOC President Thomas Bach said: “We need to completely revise the WADA anti-doping system.” He sharply criticized the idea of collective responsibility and described his understanding of the future reform as “clear responsibilities, greater transparency, greater independence and more successful harmonization around the world”. In the Declaration of the Fifth Olympic Summit of 8 October 2016 the IOC determined three main directions for action aimed at reforming the current global anti-doping system. First, it was proposed to create a new body for testing athletes independent from sports organizations. Secondly, the Summit approved plans to assign to the CAS the leading role in determining the penalty for guilty athletes. Thirdly, it was proposed to create a structural unit to collect information concerning the use of doping among the athletes themselves. All these measures are aimed at ensuring greater transparency and consistency in the fight against doping at the global level. Section III of the 2005 Convention devoted to International Cooperation indicates the need for States Parties to support WADA in accomplishing its important mission. The States Parties support the principle of equal funding of the WADA’s approved financial budget by public authorities and the Olympic movement (Art. 15). It is emphasized that fighting against doping in sport can only be effective with no advance notice and samples being transported in a timely manner to laboratories for analysis (Art. 16). Funds-in-trust established in accordance with the UNESCO Financial Regulations are used to establish a “Fund for the Elimination of Doping in Sport” (Art. 17) which is formed from the contributions made by the States Parties (in addition to the States Parties obligations to pay annual budget contributions to the WADA budget), contributions and donations from other state and private organizations and individuals. The funds of the Voluntary Fund are allocated by the Conference of Parties – the sovereign body of the 2005 Convention under Art. 28 – to fund the activities approved by the Conference, in particular, to assist States Parties in developing and implementing anti-doping programmes (Art. 18). Since 22 April 2012 the Fund for the Elimination of Doping in Sport has been headed by the representative of Russia Gennadiy P. Alyeoshin. The amount of Russia’s annual contributions to the Fund for the Elimination of Doping in Sport and in WADA is determined by the decisions of the Government of the Russian Federation. Under Resolution of the Government of the Russian Federation of 19 August 2016 No. 820, in 2017 Russia allocated 50,000 euros to the Fund itself and 100,000 euros for the preparation and holding of the MINEPS-VI, the International Conference of Ministers and Senior Officials Responsible for Physical Education and Sport, to be organized within the UNESCO framework. It was held on 14–16 June 2017 in Kazan. This document does not say anything about Russia’s contribution to the WADA budget. Thus, the Russian contribution to WADA in 2013 was reduced to 300 thousand euros, and in 2017 Russia refused to make contribution to WADA altogether. Despite the involvement of States in the WADA financing process, they do not take the equally active part in the decision-making process of the Agency. Section VI of the 2005 Convention regulates the activities of the Conference of the Parties, where WADA is invited as an advisory organization (Art. 29). Art. 30 enumerates the functions of the Conference of the Parties, including discussion of the relationship with WADA, adoption of the plan for the use of the resources of the Voluntary Fund, examination of the reports submitted by State Parties twice a year concerning the measures they undertake in compliance with the 2005 Convention, as well as examination for approval of modifications of the 2005 Convention, the Prohibited List and the Standard for Granting Therapeutic Use Exemptions (Art. 30, 34). It seems necessary to give the Conference of the Parties such authority as examination of WADA regular reports. Recently, the problem of doping has acquired an incredible urgency. The necessity of further legal regulation of this issue at the international and national levels for the purpose of protecting athletes from unjustified accusations of using doping is also practically assured. The IOC Declaration of 8 October 2016 mentions a clear separation of powers. In our opinion, in the global anti-doping system, WADA should remain an organ that preserves rule-making powers. However, there is no need to establish a new testing body independent of sports organizations and associated with WADA. These functions could be successfully carried out by the Conference of the Parties as the main representative body provided for by the UNESCO Convention and the Fund for the Elimination of Doping in Sport accountable to the Conference of Parties. The States Parties to the 2005 Convention could extend the powers of the Conference of the Parties by giving it the right to accredit national anti-doping laboratories in a way similar to the Organization for the Prohibition of Chemical Weapons with regard to national laboratories of States Parties to the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemicals Weapons and on their Destruction and to increase their contributions to the UNESCO Fund for the Elimination of Doping in Sport. With the third proposal one cannot but agree: the CAS should remain the only authority that determines the punishment for violators. Внимание! Авторские права на книгу "International Sports Law. Textbook for Bachelor Students" ( Zakharova Lari a I.; ed. by Bekya hev K.A. ) охраняются законодательством! |
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