Sanctioning through Sport: The Elusive Legal Qualification and the Relative Effectiveness of Sporting Exclusion as an Instrument of International Coercion

Abstract

Since 2022, excluding a State from international sporting competitions has become a standard reflex of the international response to crises, and this study examines the legal nature of such a measure. The inter-State model, that of Security Council resolution 757 (1992) and of the International Convention against Apartheid in Sports, has given way to a transnational model in which the decision rests with legal persons governed by Swiss private law, ruling on the basis of texts designed to regulate competition rather than to punish internationally wrongful acts. The result is a structural legal weakness, visible at four points: the triggering event remains imprecise; the liability imposed is collective, in that it strikes the athlete for the conduct of his or her State; no published criterion explains why comparable situations receive different responses; and judicial review remains weak. This deficiency is not a malfunction. It is a condition of operation, since sporting exclusion owes its speed to its discretionary character, and the assessment of its effects confirms the hypothesis. Measured by any change in the behaviour of the targeted State, it almost always fails, and its dominant function is expressive. The article closes by proposing that the conditions governing recourse to this instrument be laid down in a written text, and sets out three avenues of reform, ranging from the publication of criteria to making the gravest decisions conditional on a prior international qualification.