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Norms adopted by international sports organizations (ISO) as a special type of international custom.

Understanding of legal nature of ISO norms is a complicated problem. Therefore, not much research has been done on this question. In Russian scientific literature this issue has not been raised. In foreign scientific literature devoted to international sport law this question was not illustrated enough for having possibility to derive main concepts of legal nature of ISO norms.

Some foreign legal scholars outline this existing problem. In particular, Greek scientist D. Panagiotopoulos states: 'Internationally, the sports legal order - its nature being in doubt - is limited to contractual freedom. The sources and processes for generating this order do not coincide with traditional sources and processes of law where the dominant element is the state. In order to surpass the difficulties raised by the doubtful nature and effect of the law generated within the context of the sports system, the Court of Arbitration for Sport (CAS) ... has been established and operates within the context of the system'. (1)

Some authors point out only the character of norms which regulate international sports movement. For example, B. Simma claims that Olympic movement is regulated by transnational norms (adopted by IOC) which are not included into national legal order. (2)

There is a point of view according to which the norms of ISO are of customary nature. J. Nafziger, a well-known American specialist in the field of international sport law, indicates that some norms of Olympic Charter have the nature of international custom: 'Rules such as these in the Olympic Charter define international custom today ... Rules of the Olympic Charter are the best evidence international custom pertaining to sports competitions; many have only an internal organizational function. Several, however, are definitive'. (3)

J. Nafziger underlines that international custom and general principles of international law play an important role in the development of international sport law. He also claims that the elements of international custom such as frequency, duration of application and strict adherence are common to sport law either. (4)

The abovementioned point of view is supported by other American authors. In particular, A. Vaerenbergh declares that doping regulations can not be defined as technical decisions, standards or norms within the bounds of the game ... this group of regulations is seem to be an international custom. (5)

Thereby, we may claim, that foreign scholars (the American legal scholars in particular) share the opinion that norms of ISO are a kind of international custom. We may agree that this position is well-grounded.

In order to estimate the legal nature of ISO norms we will analyse whether they constitute a part of hard law or soft law.

There are different approaches to define soft law in literature, but no unified approach has been accepted. As M. Y. Velizhanina states in her thesis, some scientists apply the definition "soft law" to international treaties which do not contain precise norms and obligations. The majority defines soft law as not legally binding acts which have high moral and political power. According to third approach, soft law is a combination of both abovementioned definitions. (6)

Further, in order to outline the main features of soft law, we will provide few definitions.

In this regard Lukashuk's statement about soft law is well-known: "The analysis of literature and practical materials shows that the term "soft law" is used to define two different legal phenomena. In the first case we are talking about special kind of international law norms, in the second one about international non-legal norms" (7). The author supposes that the first category of norms are the international treaty norms (policy or declarative) which are not binding in strictly legal sense, but the subjects of legal relations must follow its general instructions (even if these norms do not state concrete rights and obligations). The norms of second category are contained in resolutions of international organizations, declarations and joint communique which are not legally binding but the states fulfill them because of moral and political weight of these norms.

Velezhanina M. Y. defines soft law as the scope of non-legally binding international norms created by states and international organizations which do not contradict basic principles and norms of international law and which are aimed at regulation of international relations. These norms do not contain international legal obligations and are prescribed in recommendations of international organizations, multilateral, bilateral and unilateral political acts of states. (8)

Foreign scholar Chinkin S. gives the further definition of soft law. It is a scope of international documents from treaties, including only flexible obligations, not obligatory or voluntary resolutions and standards of conduct created by international or regional organizations, to statements prepared by individuals in non-governmental manner but which are pretended to establish international norms. (9)

To compare, we provide the definition of soft law according to Oxford Law dictionary: 'Soft law (in international law) is a complex of maxis as, for example, international treaties not having come into force, resolutions of UNO or international conferences, which are not binding by their nature but appear to be more than nothing but declarations about political aspirations'. (10)

Despite the existence of different points of view, almost all authors agree on the main point that formally soft law is not obligatory, it is a kind of recommendation with which state parties often comply because of its high moral and political value. Soft law norms are usually passed by authoritative international organizations what makes these norms even more influential.

It occurs that the majority of ISO norms does not constitute soft law as they are legally binding. The ISO norms in their nature have more common with international law norms (hard law) as both of them are repetitive, they include international legal obligations and the possibility to constrain a party in case of violation of these norms.

The main difference between soft law and hard law is lack of coercion, as parties can not use enforcement measures. Recommendations do not include sanctions which are an indispensable element of hard law norms. In case of violations of soft law norms the party to a legal relationship does not bear international legal responsibility. As Bezborodov Y. S. pointed out that soft law acts had one shortcoming what is lack of legal effect. (11)

Let us consider ISO norms in terms of features common to rule of law. According to Russian doctrine (12), rule of law as a special kind of social rule meets the further criteria: compulsory execution, formal determinacy, state-imperious dictates, legally binding character, three-term structure (hypothesis, dispositions and sanctions). Morozova L. A. points out that generally there is a uniform approach to determine rule of law with small peculiarities in doctrine of law. For example, Goyman V. I. defines rule of law as legally binding, formally determined prescriptions and principles which set the limits of probable and proper conduct of parties to legal relationship and which indicate the legality of such conduct. (13)

ISO norms do not meet all abovementioned criteria. In particular, due to its international character these norms are not secured by state compulsion. As it was already mentioned above, the compulsion is ensured not by state power, but by incontestable authority of ISO.

All other criteria of rule of law are common for ISO norms. They regulate a group of social relations settled in the field of international sport. They are expected to be applied in numerous cases. All Olympic Games and other international contests organized by IOC are carried out in accordance with Olympic Charter and rules of international federations (IF).

Art.27 and art. 30 of Olympic Charter may serve as an example of providing-binding character of ISO norms. IF have right to set rules of certain sports (it is an obligation at the same time). According to Rule 30 the corresponding obligation to this rule is the obligation of National Sports Federations to follow the rules settled by IF.

A lot of norms contained in the Olympic Charter have the structure common to rule of law. Rule 28 (p. 6) stipulates that NOCs must preserve their autonomy and resist all pressures of any kind which may prevent them from complying with the Olympic Charter. This element can be considered as disposition of rule of law. Paragraph 9 contains sanction for noncompliance with abovementioned obligation: the IOC Executive Board may suspense such NOC or withdraw NOC's recognition by IOC, what is an obligatory condition for functioning of NOCs in international sport. We may also find hypothesis in Rule 28 where the mission, the role and rights of NOC as participant of Olympic movement are described.

Surely, not all IOCs' norms have three-term structure. However, S. S. Alekseev states that it is hard to find an example of regulatory act which would correspond to abovementioned theoretical scheme (hypothesis, disposition, sanction in consecutive order - Vostrikova's note) ... the structure of rule of law just refers to these three elements regardless of where and how they are presented. (14)

Hence, we can resume that ISO norms have the main features of rule of law and they can be classified as a kind of social norms (hard law).

Further we will define to what group of social norms ISO norms can be referred and therefore analyze the nature of ISO norms as customary norms. At first we will compare ISO norms with usage (for being sure that ISO norms are not usage) and then examine the elements of international custom and try to find all those characteristics in ISO norms.

Danilenko G. M. points out that usage is not a rule of law, it is not legally binding common rule of conduct which is a result of uniform practice (15).

This point of view is shared by some scholars. For example, Zumbulidze R.-M. Z. claims that the difference between custom and usage is that former is a rule of conduct formed as a rule of law and it exists independently of the will of subjects of legal relations, while usage does not acquire the status of binding legal rules and can only be used in case of expressed mutual consent of parties to a treaty. (16)

ISO norms are binding, they are applied by all subjects of international sport movement and sanctions are imposed on violators of these norms. Thus, there are no grounds to attribute ISO norms to usages.

The basic definition of custom is provided in p. "b" of art. 38 of the Statute of the International Court of Justice. It is stated that the Court should apply "international custom as evidence of a general practice accepted as law". According to this definition, at first general practice appears in particular field and then it crystallizes in custom.

There are many discussions concerning elements and legal nature of international custom, conditions of its appearance and application in theory of international law. The main points of view, which help to deduce the inalienable elements of international custom and their occurrence in ISO norms, will be presented in this article.

G. M. Danilenko indicates two elements of international custom: long, constant, uniform, universal practice and recognition of such practice as a rule of law. Later on he cites judge of the ICJ J. Read: 'International customary law is a generalization of state practice. It can not be derived from cases when states announced far-reaching claims but did not support their claims by factual exercise of sovereignty'. (17) Therefore, the proof of existence of the first element of custom is factual state action.

Moreover, the absolute conformity is not required. To support this position Tostykh V. L. cites the ICJ decision of case concerning Military and Paramilitary Activities in and Against Nicaragua: "The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule ... (p. 186)." (18)

State acts in the sphere of international sports competitions are characterized by the following features. If all states delegate to the Olympic Games national teams which participate in the contests according to the rules set by the ISO, it means that states by their real actions establish a uniform practice of compliance with ISO norms. This practice is spread over the world and many sovereign states from different geographical regions, while participating in international sports competitions organized by IOC, have stuck to this practice since renaissance of the Olympic Games by Pierre de Coubertin.

Zykin I. S. claims that custom should be unique in concrete sphere of relations and it should be a common rule. (19) It is hard to imagine a situation when at the international championship would be applied the rules of specific sports organization instead of rules of international sports federation. There are no signs of such cases in history.

Concerning the second element of custom opinio juris (20) which means recognition of set rules as customary law rules (in our case, it is a recognition of well-established practice by participants of international sport movement), we should state the following.

The state recognition of rules as customary law norms may be expressed in different ways. In scientific literature tacit recognition by means of observance of custom in acts of state authorities and agencies is mentioned among modes of sanctioning custom by state. (21)

It means that a mere practice proves the state recognition of such norms as binding. The Olympic Games Australia in 1956 may serve as an example. Even though Australia did not recognize USSR in 1956 and was against USSR's intervention in Hungary, it had to permit the participation of soviet sportsmen in the Olympic Games in Melbourne as Australia did not have any grounds to refuse USSR to participate according to the Olympic Charter and other Olympic movement regulations.

In North Sea Continental Shelf case the ICJ in its decision (dated 20.02.1969) stated: "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i. e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amount to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough ...". (22)

There is another point of view concerning the second element of custom express, for example, in the Final report of the Committee on the formation of customary (general) international law. It states that if the practice meets all criteria of an element of international custom, then there is no need to mention the second element unless it is an exceptional case when there are grounds to suppose that the opinio juris is absent. The second element could be easily deduced from practice, but then raises a question if there is a need for it. (23)

Regardless of the position, we can confidently state that the majority of ISO norms fit the criteria of international custom.

One more characteristic of first element of custom is common for the ISO norms. They are characterized by regular and steady repetition and stability. Zykin I. S. presumes that these are the most characteristic features of a custom. (24)

It is also noted in scientific literature that the custom is characterized by vagueness of normative content and the problems with defining the scope of application of customary rules. (25) In contrast, these drawbacks are not typical for ISO norms, they have clear contents and well-defined scope of application. Moreover, ISO norms do not meet such criterion of custom, like impossibility of being a source of legal coordination of international relations which need detailed regulation (this criterion is pointed out by Danilenko G. M.). Private international sports relations require precise regulation, this is the main function of ISO norms.

The customary nature of ISO norms is proved by application of custom in case of lack of treaty norms. There are only few cases when international sports relations are regulated by treaty norms. We can not constitute the existence of complex and detailed scope of treaty law regulating international sport movement.

Previously, the doctrine of international law accepted only states and international organizations as subjects which actions could create a custom. (26) Other subjects were not estimated as creators of international custom. According to the dominant position in doctrine the international non-governmental organizations can slightly influence on subjects of international law practice and can only participate in the creation of international custom in the following forms: to carry out research, favour resolution of contentious issues (by means of organization of conferences), control the implementation of international law etc. (27)

There is also another point of view. Its representatives support the idea that the law cannot be only created by states any more. (28) The following words of Neshataeva T. N. are quite appropriate here: "Strict dogmatic postulate of the special role of the state in international relations does not allow scientific thought to respond to the events of a rapidly changing global reality". (29)

Now with the increasing need to regulate specific areas of human activity and development of rule-making function of a number of subjects of international affairs, it is reasonable to recognize international non-governmental sports organizations as subjects which have the right to establish customary rules because of their specific field of regulation. Due to the fact that ISO norms have particular features, the process of creation of customary norms by ISO cannot and should not be in the same order as international customary lawmaking process.

Taking everything into consideration, we can give the further definition of ISO rules. The rules of International sports organizations are a special kind of international custom, which appeared as a result of particular activity of non-governmental international sports organizations and received the tacit approval of the States and other subjects of international sports movement.

(1.) D.Panagiotopoulos 'International sports rules implementation - decisions executability: the Bliamou case'// Marquette sports law review, 2004-2005, Vol. 15:1, p. 3

(2.) Bruno Simma 'The Court of arbitration for sport'// The Court of Arbitration for sport, 1984-2004, The Hague, T.C.M.Asser Instituut, Asser International Sports Law Center, ed. by Ian S.Blackshaw, Robert C.R.Siekmann and Janwillem Soek, 2006, p. 23

(3.) James A.R.Nafziger 'International Sports law', New York, 1988, p.6, 32

(4.) James A.R.Nafziger, ibid, p. 35

(5.) Alec Van Vaerenbergh 'Regulatory features and administrative law dimensions of the Olympic movements anti-doping regime'//IILJ Working paper, 2005/11, p.13

(6.) Velizhanina M.Y., thesis of candidate of science "Soft law, its nature and role in regulation of international relations", Moscow, 2007.

(7.) I. I. Lukashuk "Soft law norms in international regulatory system". M., 1997.

(8.) Velizhanina M.Y, ibid p. 31

(9.) Chinkin C. 'The challenge of soft law: development and change in international law'//ICLQ, 1989, vol.38, p. 850-866

(10.) Oxford dictionary of law, 6th ed.Ed. by E.A.Martin, Oxford, 2006, p.502

(11.) Bezborodov Y. S. "Role of soft law in international legal regulation"//International Public and Private Law, 2004, 6 (21), p.6

(12.) See: S. S. Alekseev "General theory of law". M., 2009; A. B. Vengerov "Theory of State and Law", Vol. 1 "Theory of law", M., 1996; N. I. Matuzov, A. V. Malko "Theory of state and law", M., 2004; L. A. Morozova "Theory of state and law", M., 2003; Chervoniyuck "Theory of state and law", M., 2009.

(13.) L. A. Morozova "Theory of state and law", M.,2003, p. 204.

(14.) S. S. Alekseev; ibid, p. 306

(15.) G. M. Danilenko "Custom in modern international law", M., 1988, p. 9.

(16.) R.-M. Z. Zumbulidze "Custom as a source of civil law", St. Petersburg, 2004, p. 176.

(17.) I.C.J. Reports.1951, p.191

(18.) V. L. Tolstykh "Course of international law", M., 2010, p. 172-173.

(19.) I. S. Zykin "Custom and usage in international trade", Moscow, 1983, p. 12.

(20.) G. M. Danilenko, ibid, p. 65.

(21.) See: G. I. Tunkin "Forty years of coexistence and international law" // Soviet Yearbook of International Law, M., 1959.

(22.) www.icj-cij.org/docket/files/51/5535.pdf

(23.) Final report of the Committee on the formation of customary (general) international law. International law association, Report of the 69th conference, London, 2000

(24.) I. S. Zykin, ibid, p. 11.

(25.) See.: Monograph of I. B. Lomakina, A. V. Dashin "Common law and custom: from social mononorm to legal regulation", St. Petersburg, 2005; V. V. Naumkina "Custom as a source of law", Krasnoyarsk, 2006; O. V. Malova "Custom as a source of law of major modern legal systems", Irkutsk, 2006.

(26.) We are talking about inter-governmental international organizations - see G. M. Danilenko "Custom in modern international law", M., 1988, p. 67.

(27.) This position is enshrined in the thesis of candidate of science L. R. Shammasova "International custom in modern international law", Kazan, 2006.

(28.) Bazedov Y. "Revival of the process of unification of law: European contract law and its elements" // Russian Yearbook of International Law. St. Petersburg, 1998-1999, p. 67-68.

(29.) T. N. Neshataeva 'International organizations and law. New tendencies in international-legal regulating'. M., 1999, p. 68.
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Author:Volstrikova, Elena
Publication:The International Sports Law Journal
Date:Jan 1, 2012
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