By Michael Kourabas
Did the International Olympic Committee (IOC) violate the UN Guiding Principles on Business and Human Rights (UNGPs) by allowing Russia to host the 2014 Winter Olympics? I think it did.
Unless one has been living under a rock during the entire Putin reign, one probably knows – or, at least, can (rightly) assume – the following things about the current Russian government: it is anti-gay; it is totalitarian; it treats the environment like a toilet and environmental activists like, well, excrement; and it is in the midst of a protracted war against an ethnic minority, one that makes its home not too far from the home of the 2014 Winter Olympics in Sochi.
The International Olympic Committee’s decision to host the 2014 Winter Games in Sochi has shone a brighter light on some of these issues, particularly Russia’s antipathy towards the LGBT community, and that increased scrutiny is a good thing for human rights. Perhaps the pressure of being under the international community’s microscope will force policy change. It seems unlikely and entirely antithetical to the Putin administration’s core operating principles, but who knows. It’s not like Russia is a stranger to media coverage of its abysmal human rights record, but maybe the games and the attendant scrutiny will force the government’s hand. Or perhaps not.
One issue that seems to be receiving scant attention in the media, though, surrounds the IOC’s decision to host the games in Russia in the first place. Maybe this debate played out in the public sphere back when the decision was announced in 2007, or maybe nobody really cares since the point is now moot and so much attention is focused on the prospect of a terrorist strike in Sochi. But I think the IOC’s decision, and its obligations under international law after making such a decision, bears (renewed?) consideration here.
First, a brief primer on the current state of international law as it relates to the human rights obligations of businesses:
According to the UNGPs, in order to act in compliance with international law, a business enterprise must “avoid infringing on the human rights of others” (UNGP 11). This obligation extends not only to infringements “caus[ed] or contribut[ed] to . . . through [the enterprise’s] own activities,” but also to “adverse human rights impacts that are directly linked to [the enterprise’s] operations, products or services by [the enterprise’s] business relationships, even if [the enterprise] ha[s] not contributed to those impacts“ (UNGP 13; my emphasis). In other words, while an enterprise is clearly in violation of the UNGPs if the enterprise itself directly causes an adverse human rights impact, the enterprise may also be in violation if one of its business partners or entities in its supply chain, without any knowledge or assistance of the enterprise itself, causes an adverse human rights impact.
The UN’s Office of the High Commissioner of Human Rights’ (OHCHR) commentary on the UNGPs helps clarify the situation. According to the OHCHR, an enterprise can be involved in an adverse impact on human rights in one of the following three ways:
- It caused the impact through its own activities;
- It contributed to the impact through its own activities—either directly indirectly;
- Though it may have neither caused nor contributed to the impact, it “may be involved because the impact is caused by an entity with which it has a business relationship and is linked to its own operations, products or services.”
Now, back to the games. There haven’t, to my knowledge, been any allegations against the IOC for violating human rights directly, and it doesn’t appear that the IOC is “contributing” to adverse human rights impacts in any way. But what about that third category, which covers violations “caused by an entity with which [the IOC] has a business relationship?”
Let’s imagine the IOC as a traditional product-making corporation based in Switzerland. In this case, instead of a smartphone or a laptop manufactured somewhere in Asia and sold everywhere around the world, the IOC’s product is the Olympics and, in this cycle, it is being “manufactured” in Russia (and also sold all over the world). The host country is responsible not only for literally hosting the games and all the athletes and country delegations, but also for constructing the relevant facilities, hiring workers to build and work in those facilities, and so on. Russia, then, would appear to be a material link in the IOC’s supply chain. In fact, the relationship is not so different from Apple’s association with Foxconn in China or Walmart’s connection to workers in Bangladesh.
So the IOC could be on the hook for human rights violations perpetrated by the Russian state, but to what extent? The OHCHR’s examples for this type of tertiary “liability” are illustrative:
- Providing loans to an enterprise for activities that, in breach of agreed standards, result in forced evictions;
- Embroidery on a company’s clothing products that are subcontracted to child laborers, counter to the parties’ contractual obligations;
- “Use of scans by medical institutions to screen for female fetuses, facilitating their abortion in favor of boys.” In each case, the enterprise is in trouble because its product is being used in or in furtherance of a violation by a third party, without the enterprise’s knowledge.
When I first started thinking about this question, I wondered whether the IOC was in violation of international law simply by choosing Russia as host. Yet, the foregoing makes clear, at least to me, that this conclusion is not supported by the UNGPs. After all, if it were really the case that the IOC was on the hook simply for letting Russia host the Games, no businesses could operate in any countries whose governments abuse human rights. Not a bad outcome if you ask me, but not the type of outcome likely to be supported by business (which the UNGPs were).
It’s also clear, however, that the IOC could be in trouble to the extent that Russia’s Olympic-related activities have had adverse human rights impacts. Recall the above: a violation occurs where harm is caused by an entity with which the enterprise has a business relationship, and the harm is linked to the enterprise’s operations, products or services. Here, Russia is the business with which the IOC has a relationship and the link is that the harm is in furtherance of Russia’s duties as host of the Olympics.
So, what’s the verdict?
It should probably come as no surprise that there have been extensive reports that Russia’s Olympic-related activities have had adverse impacts on the human rights of the Russian people and those working to support Russia’s duties. For instance:
- Sochi families have been forcibly evicted and their houses demolished to make room for Olympic facilities;
- Migrant workers are being exploited;
- Workers are not being paid;
- Waste from Olympic-related construction is being dumped irresponsibly and may be contaminating the water supply.
Under the UNGPs, the IOC had a duty to ensure that these things did not happen. It failed, and in doing so, appears to have violated its obligations under international law.
Image credit: Olympic Organizing Committee