DIRECTOR-GENERAL S PRELIMINARY REPORT ON THE PREPARATION OF THE INTERNATIONAL CONVENTION AGAINST DOPING IN SPORT I. INTRODUCTION 1. The General Conference, at its 32nd session: Reaffirmed its belief that UNESCO should play a major role in the preparation of an international convention against doping in sport; Decided that the question of combating doping in sport should be regulated by means of an international convention; Invited the Director-General to convene one or more category II intergovernmental meetings to draw up such a convention; and Invited the Director-General to submit to it at its 33rd session a final report on the question, and a draft convention (32 C/Resolution 9). 2. The Executive Board, at its 168th session, prescribed a list of participants to be invited to the category II meeting(s) and urged Member States and Associate Members to take immediate steps, within their fields of competence and in the framework of international cooperation, to cooperate in the drawing up of an international anti-doping convention in sport (168 EX/Decision 7.1.2, para. 4). 3. According to the Rules of Procedure concerning recommendations to Member States and International Conventions (Article 10), for the Convention to be considered at the 33rd session of the General Conference, the Director-General must provide a Preliminary Report to reach Member States 14 months before the opening of the 2005 General Conference. The likely date of commencement of the General Conference is 12 September 2005 (yet to be decided by the Executive Board). This Preliminary Report sets forth the position with regard to the problem to be regulated and to the possible scope of the regulating action proposed and is accompanied by a first draft of the Convention. II. HISTORICAL BACKGROUND EVOLUTION THROUGH UNESCO INTERGOVERNMENTAL MEETINGS MINEPS III 4. The Declaration from the Third International Conference of Ministers and Senior Officials Responsible for Physical Education and Sport of UNESCO (MINEPS III), held in Punta del Este, Uruguay, in December 1999, stated: The Ministers emphasize the ethical values of sport and urge all countries, both developed and developing, to work together to combat unethical behaviour, ED/2004/CONV-DOP Rep 1
including doping in sport. They appreciate the initiative of the International Olympic Committee (IOC) in establishing the World Anti-Doping Agency (WADA) and emphasize the important role of all governments in WADA and in eliminating doping in sport in general. They further encourage this Agency to assist developing countries in their efforts to fight against doping in sport. UNESCO s role in this field should concentrate on information and education in particular. Round Table of Ministers and Senior Officials responsible for Physical Education and Sport, 2003 5. The Final Communiqué of the Round Table of Ministers and Senior Officials responsible for Physical Education and Sport, held by UNESCO in January 2003, which brought together 103 Member States and 20 intergovernmental and non-governmental organizations, stated: Doping, as a breach of sporting ethics and a danger to public health, threatens to kill sport as surely as it kills athletes. In order to combat this risk that is developing among young people, prevention is the best defence. This prevention is conducted through education, information, research and medical follow-up as well as through dissuasion, controls and sanctions. It must be recognized that there is a need for increased coordination of efforts at the international level to facilitate a more effective struggle against this scourge, through the harmonizing of regulations and practices and by securing greater adhesion to these regulations and practices among all concerned stakeholders. The primary responsibility rests with States, some of which need assistance. Hence, the urgency of elaborating an international convention against doping must be underlined, for only an international instrument of this kind will enable the necessary protective measures and controls to be introduced into national legislation in a consistent manner. (166 EX/42, Annex I, para. 1(c)) 6. The Round Table participants committed to, inter alia: accelerate the preparation of an international convention against doping based on the Council of Europe s Convention against doping ; and request UNESCO, in cooperation with the United Nations, other competent United Nations system agencies and the Council of Europe, in close collaboration with other concerned bodies such as the International Olympic Committee, WADA and IICGADS, to coordinate the preparation, if possible before the Summer Olympic Games of 2004, and the adoption, if possible before the Winter Olympic Games of 2006, of a universal international instrument for this purpose. (166 EX/42, paras. 8 and 9) 2
III. THE POSITION WITH REGARD TO THE PROBLEM TO BE REGULATED Existing international instruments 7. Although a number of intergovernmental instruments have been adopted to combat doping at the national, regional and international levels, none has intergovernmental legal force worldwide. The two intergovernmental instruments with the broadest reach are the Council of Europe Anti- Doping Convention (and its Additional Protocol) and the Copenhagen Declaration on Anti-Doping in Sport. 8. The Council of Europe Anti-Doping Convention has been effective in harmonizing anti-doping policies and practices and in raising the standard of anti-doping programmes of signatory governments. However, this Convention does not have global reach, with 45 States, primarily European, having ratified it to date. 9. The Copenhagen Declaration was drawn up in March 2003 in response to rapid developments in the anti-doping field, with the primary purpose of supporting the role of WADA and the World Anti-Doping Code ( the Code ). In addition, the Declaration called for a timely process leading to a convention or other obligation to be implemented through instruments appropriate to the constitutional and administrative contexts of each government on or before the first day of the Turin Winter Olympic Games. As of 1 June 2004, 110 governments have signed the Copenhagen Declaration. However, the Declaration is not legally binding, nor is it comprehensive enough to address all the issues that governments must tackle to address doping in sport. The World Anti-Doping Agency (WADA) 10. WADA is a foundation under Swiss private law. The Board of WADA is composed of 50% of representatives from government/intergovernmental organizations and 50% of representatives from sporting organizations. This unusual structure is recognition of the fact that governments and the sporting movement must act together to fight doping and that neither sector will be successful without the collaboration and cooperation of the other. 11. WADA has a central leadership role in the anti-doping movement, recognized by both the sporting movement and governments. The World Anti-Doping Code 12. WADA adopted, in March 2003, the World Anti-Doping Code ; a comprehensive set of rules and guidelines that binds the sporting movement. The twin purposes of the Code (and the World Anti-Doping Programme, of which the Code is a part) are: 3
to protect the athletes fundamental right to participate in doping-free sport and thus promote health, fairness and equality for athletes worldwide; and to ensure harmonized, coordinated and effective anti-doping programmes at the international and national level with regard to detection, deterrence and prevention of doping. 13. The International Standards are documents developed by WADA, which support the Code by prescribing technical and operational requirements for anti-doping organizations. Adherence to the Standards is mandatory for compliance with the Code. Four Standards will be annexed to the Convention: International Standard for Laboratories; International Standard for Therapeutic Use Exemptions; International Standard for Testing; and The Prohibited List. WADA has, at this time, only published the Standards in French and English. The Standards are in the process of translation to the other official languages of UNESCO. 14. A large number of sporting organizations have signed the Code. The International Olympic and International Paralympic Committees have signed and are requiring all sporting organizations wishing to participate in the Olympic or Paralympic Games to sign; almost all have already done so. Many sporting and anti-doping organizations outside the Olympic and Paralympic movements have also signed. 15. For most governments, the Code cannot be legally binding under public law; a convention is required to provide a mechanism for governments to support the Code. Further, there are actions that governments must take to combat doping in sport that are beyond the powers of sporting organizations or of WADA. Such actions must be complementary to those actions being taken by the sporting movement under the Code, as any lack of harmonization between the two instruments has the potential to be exploited by unscrupulous individuals to perpetuate doping in sport. IV. SCOPE OF THE REGULATING ACTION PROPOSED 16. A truly global, legally binding Convention is a necessary response to the need for an internationally recognized legal framework to: provide support to the World Anti-Doping Agency, in the knowledge that it has a global leadership role in the fight against doping; provide support for the World Anti-Doping Code and International Standards, recognizing the importance of the Code and Standards in harmonizing policy and practice in the sporting movement worldwide; and 4
ensure that governments take actions against doping in sport, which are complementary to those already being taken by the sporting movement, including anti-doping activities at the national level, international cooperation, education and training, and research. V. DEVELOPMENT OF THE PRELIMINARY DRAFT CONVENTION 17. Since 1999, with the new leadership of WADA and a proactive attitude from the International Olympic Committee, the sporting movement has made enormous strides in the fight against doping, including especially the adoption of the Code. Recognizing that the momentum built by WADA and the sporting movement must be backed up with immediate action by governments, the General Conference, at its 32nd session, set out an extremely tight time frame for presentation of the new Convention presentation to the 33rd session. 18. In pursuance of 166 EX/Decision 3.2.2 of the Executive Board, the Director- General convened meetings of an ad-hoc group of experts in June, November and December 2003. These meetings, chaired by Mr Jean-Pierre Blais of Canada, resulted in a first preliminary draft of the Convention, which was subsequently considered by a category II intergovernmental meeting also chaired by Mr Blais held from 19 to 23 January 2004. An intersessional drafting group meeting, constituted of three members from each UNESCO regional group and chaired by Ms Vera Lacoeuilhe from Saint Lucia, was then held from 25 to 27 February 2004 to further develop the text based on the decisions of the category II plenary. The second session of the category II meeting, held from 10 to 14 May, produced the final version of the Preliminary Draft, which is attached (Appendix 1). VI. ISSUES AGREED UPON IN THE PRELIMINARY DRAFT OF THE CONVENTION 19. The category II plenary reached consensus on the majority of issues upon which action by Member States is needed to address the problem of doping in sport. In brief, the following key issues have been agreed: The Purpose (Article 1) is, essentially, to promote the prevention of and the fight against doping in sport, with a view to its elimination. Of note in the definitions section (Article 2) is the chapeau: The definitions are to be understood within the context of the Code. This is recognition that the Code already contains definitions in common use in the sporting world. This reference enables definitions in the Convention to be kept simple and easy to understand, as well as ensuring harmony between definitions in the Code and Convention. Article 3 encourages the general principle of international cooperation, particularly with WADA, and also notes the importance of ensuring that any 5
easures adopted against doping in sport are consistent with the Code. These two points are reiterated in various articles dealing with specific issues. Article 4 reinforces the theme, committing States Parties to the principles of the Code, while allowing States to adopt more stringent measures against doping than those contained in the Convention, if such measures are complementary to the Code. However, since the bulk of the Code is for the sporting movement and many parts of it are not applicable to governments, the Code is an appendix to the Convention, not an integral part. The International Standards however, create binding obligations to both governments and the sporting movement and are thus integral parts of the Convention, attached as annexes. Article 5 recognizes that States currently, and may in the future, take different approaches to combat doping in sport, including through legislation, regulation, policies or administrative practices. Success in the fight against doping is best measured in outcomes rather than in processes. Effective anti-doping programmes consist of actions to both reduce the supply of and demand for doping agents. Article 8 calls for action to reduce the availability and use in sport, while ensuring that supply for legitimate use, for example in treatment of medical conditions, is not compromised. Article 9 requires States Parties to adopt measures including sanctions or penalties against athlete support personnel as defined, while leaving open the possibility of States Parties extending the range of sanctions or penalties and to whom they might apply. Article 10 encourages action to address the problems associated with athletes taking such supplements, which include inadvertent doping violations and possible dangers to health caused by consuming products with unknown or illdefined contents. Article 11 calls for States Parties to fund doping control programmes a strong deterrent to users and potential users. In addition, this article adds government weight to sanctions that can be applied by sporting bodies by calling for States Parties to apply financial sanctions against those individuals under suspension for a doping offence and against organizations not conforming to the Code. The fight against doping in sport can only be effective when athletes can be tested with no advance notice and samples can be transported in a timely manner to laboratories for analysis. Articles 12 and 13 aim to ensure that doping controls can be conducted on athletes anywhere with no impediment. Article 16 contains a number of provisions to this end, notably addressing the need for doping control teams and samples to cross borders efficiently and mutually recognizing the doping control actions of any anti-doping organization consistent with the Code. 6
Article 14 provides the background for all articles mentioning WADA by supporting the important mission of WADA in the international fight against doping. Article 15 backs this up by supporting the principle of co-funding of WADA by public authorities and the Olympic Movement. Articles 17 and 18 establish a Voluntary Fund for the elimination of doping in sport and outline its use and governance. Education is an essential tool in the fight against doping. Articles 19 to 23 encourage the implementation of education and training programmes on antidoping for athletes and athlete support personnel. The topics to be covered are defined. States Parties are required to work with professional associations and institutions to implement codes of practice and ethics related to anti-doping in sport. Similarly, Articles 24 to 27 encourage research into anti-doping and define the parameters for such research. Articles 28 to 32 establish a Conference of Parties and describe its functions. The process for amendments to the Convention itself is described in Article 33. Article 34 provides a fast-track mechanism for dealing with amendments to the Convention arising out of changes made to the annexes. Both the sporting movement and governments use the annexes and it is vital for governments and the sporting movement to use the same texts. However, the annexes, in particular the List of Prohibited Substances and Methods may require frequent change. WADA, as the custodian of these annexes, may propose changes to them as amendments to the Convention. Such amendments shall be approved by the Conference of Parties and then enter into force 90 days after notification except for any State Party that has previously notified the Director-General that it does not accept them. States Parties not taking any action will have therefore been deemed to have automatically accepted them. Final clauses are dealt with in Articles 35 to 43. VII. OUTSTANDING ISSUES 20. Only four sections remain undecided: (a) the two interrelated sections on: (i) the Secretariat to the Conference of Parties (Article 32); and (ii) the Voluntary Fund (Articles 17 and 18); (b) the Federal States clause (Articles 35, 38 and 40); and 7
(c) the Reservations article (Article 43). These are summarized below, the first two issues discussed together. (a) Secretariat to the Conference of Parties and the Voluntary Fund 21. A major issue at the second session of the category II meeting was finding an appropriate balance between the need to keep the ongoing costs of the Convention to a minimum yet still provide adequate monitoring functions. The respective roles of UNESCO and of WADA in implementation of the Convention through education and capacity-building as well as the secretariat functions are also factors. Two sections of the draft Convention dealing with the issue remains undecided: the Secretariat of the Conference of Parties, in particular the relationship between WADA and the Conference of Parties (Article 32); and the Voluntary Fund (Articles 17 and 18). Articles 28, 29 and 30, relating to the establishment and functions of the Conference of Parties are relevant. 22. Regarding the Secretariat of the Conference of Parties and the relationship with WADA, the Preliminary Draft notes that WADA would be given status as an advisory organization to the Conference of Parties (Article 29). There was also general support from the second session of the category II meeting for WADA to also take on some of the work that would normally be done by a Secretariat based within UNESCO in a typical convention, though the exact nature of this work was not decided. A cooperative partnership between UNESCO and WADA has the potential to realize cost savings by avoiding duplication of effort between UNESCO and WADA, as well as placing the technical work in the hands of an established organization with experts in the field already implementing such activities. It was agreed that the UNESCO Secretariat would work with WADA to discuss these issues. 23. On the related issue of the Voluntary Fund, some delegates at the second session of the category II meeting called for the Fund to be made compulsory out of concern that the cost to UNESCO of maintaining the convention would require too much money to be diverted from other areas of UNESCO s work. Pending the results of UNESCO s discussions with WADA, this section was held in abeyance for discussion and decision by Member States. It is the view of the Secretariat that exclusive reliance upon voluntary contributions to ensure the ongoing viability of a Convention is likely to create uncertainty and lack of predictability. Follow-up and implementation of this Convention should be accorded the same status as any other UNESCO convention and should receive the same level of support. Consequently expenses necessary for the servicing of the Conference of Parties and for related Secretariat services should be financed from the regular budget and not from extrabudgetary sources. (b) Federal States clause 24. The category II meeting was not able to reach consensus on the Federal States Clause (Article 35). Some delegations opposed the Article on the basis that it could potentially reduce the impact of the Convention if some jurisdictions were not obliged to 8
adopt it. Others noted that their legal systems did not permit their governments to force their constituent jurisdictions to comply with provisions of the Convention for which those constituents had responsibility. The concerned Member States have been encouraged to discuss this informally. (c) Reservations 25. The original intent of Article 43 Reservations was to seek to make it simpler for those States Party to the existing Council of Europe Anti-Doping Convention to sign to the new UNESCO Convention on the basis that certain Articles in the UNESCO Convention would be similar or identical to those already contained in the Council of Europe Convention. It is noted that subsequent development of the current Preliminary Draft has resulted in substantial differences between the two Conventions. 26. This Article was only briefly discussed by the category II meeting and no decisions were taken. VIII. NEXT STEPS 27. To meet the time frame for adoption at the 33rd session of the General Conference, the following steps must be taken: Date 12 July (14 months before the 33rd session of the General Conference) Event Director-General s Preliminary Report must reach Member States 12 November (10 months before the 33rd session of the General Conference) Comments by Member States on Director- General s Preliminary Report must reach the Director-General 12 February (seven months before the 33rd session of the General Conference) Director-General s Final Report must be communicated to Member States with draft text 12 September* UNESCO General Conference * Date of commencement of UNESCO General Conference is not yet confirmed. 9
28. Two important events will help us to meet this timeline: (a) The Fourth International Conference of Ministers and Senior Officials Responsible for Physical Education and Sport (MINEPS IV) will be held in Athens, Greece, from 6 to 8 December 2004. By this time, comments on the Preliminary Draft will have been received from Member States and synthesized by the UNESCO Secretariat. MINEPS IV will be an opportunity for the remaining issues to be discussed and political agreement on the Preliminary Draft to be obtained. (b) A Third Session of the Intergovernmental Meeting of Experts on the Preliminary Draft of an International Convention Against Doping in Sport is anticipated in January 2005. This will provide an opportunity to finalize the Convention text that will be submitted to the 33rd session of the General Conference in 2005. IX. CONCLUSION 29. As noted before, the attached Preliminary Draft contains provisions agreed upon so far by the experts, as well as, in square brackets, a number of sections not yet decided (as discussed above). Comments and observations from Member States to this report may be made regardless of whether or not they have been expressed by the governmental experts at either of the two sessions of the intergovernmental meeting held to date. Any such comments or observations must reach the Secretariat by 12 November 2004. 10