The Questionable “Extraterritoriality” of Switzerland’s Jurisdiction in the Semenya Case (ECtHR)

On 15 May, the Grand Chamber of the European Court of Human Rights (ECtHR) held public hearings in the case of Semenya v Switzerland. This follows the appeal from the first instance judgment in July 2023 in which the Court found a violation of Caster Semenya’s rights under Article 14 in conjunction with Article 8, and Article 13, due to the imposition on her of World Athletics’ regulations requiring her to undergo hormone treatment to lower her naturally high testosterone levels to be able to compete in the women’s category. The case raises many important issues related inter alia to gender in sport. The factual circumstances and first instance decision have been discussed previously in this blog and elsewhere.

This post seeks to draw attention to one particular aspect, namely the issue of jurisdiction. Specifically, it questions whether, as Switzerland claims, this is truly a case of the extraterritorial application of human rights law, thus requiring the Court to establish that Switzerland exercises extraterritorial jurisdiction over the alleged violations of the Convention.

As many readers will be aware, jurisdiction under the ECHR is based on Article 1 and is primarily territorial, with some limited exceptions (see Bankovic [59]). Switzerland has been keen to cast this case as one in which the factual circumstances surrounding the alleged violations ‘had no territorial link with Switzerland’ (2023 judgment [85]). The international elements of the case have been repeatedly emphasised, including by Switzerland in their pleadings before the Grand Chamber. This echoes a similar sentiment expressed by dissenting judges at the first instance:

“The complaint before the Court was brought by a South African athlete who lives in South Africa, about measures adopted by a private-law organisation registered in Monaco that prevent her from participating in athletic competitions all over the world. By accepting that the Court has full jurisdiction … the majority has dramatically expanded the reach of this Court to cover the whole world of sports.” (Joint Dissenting Opinion of Judges Grozev, Roosma and Ktistakis appended to the 2023 judgment, at page 1).

The Applicant presented arguments to establish jurisdiction ‘even assuming that extraterritorial aspect were to exist’, but equally contended that ‘she did not necessarily see extraterritorial aspect’ to the case (2023 judgment [97]-[98]). The Court did not explicitly resolve this issue at first instance, although in referring to jurisprudence on extraterritorial jurisdiction (e.g. at [101], [104], [110]) it could be seen by implication that the Court considers this to be an extraterritorial situation. However, despite Semenya’s country of origin and the location of World Athletics, it is highly doubtful that this is actually a situation of extraterritoriality.

The Semenya case follows and is based on previous case law which sets up a jurisdictional chain between the actions of sports governing bodies (SGBs) and the ECtHR, most notably the case of Mutu and Pechstein v Switzerland. Both Mutu and Pechstein had appealed decisions of the respective SGBs (FIFA and the International Skating Union (ISU)) to the Court of Arbitration for Sport (CAS). CAS is a private legal entity established under Swiss law, based in Switzerland, whose decisions are given legal force under Swiss law and are subject to review by the Swiss Federal Supreme Court (Private International Law Act (PILA), Article 190). Unsuccessful at the CAS, Mutu and Pechstein appealed next to the Swiss Federal Supreme Court where their claims were again dismissed, before they brought their complaints to the ECtHR. They alleged before the Court that their Article 6 rights had been violated due to issues related to the composition of and proceedings before the CAS. The Court found that, because Swiss law confers jurisdiction on the Swiss Federal Supreme Court to examine the validity of CAS awards and grants those awards force of law in the Swiss legal order, ‘the Court has jurisdiction ratione personae to examine the applicants’ complaints as to the acts and omissions of the CAS that were validated by the Federal Court’ (at [67]).

The Semenya case looks very similar, although it differs from Mutu and Pechstein in two key respects: the SGB whose decision lies at the origin point of the alleged violation (World Athletics) is based in Monaco, whereas FIFA and the ISU are based in Switzerland; and Semenya alleges violations of substantive rights (particularly under Article 14) rather than only procedural (Article 6) rights. This post contends that while the second difference (substantive vs procedural rights) may matter, the first (location of the SGB) does not.

The key issue here is: where and when do the alleged violations take place? In Mutu and Pechstein, it is clear that the violations took place at the stage during which the applicants appeared before the CAS. Mutu and Pechstein complained of interferences with their Article 6 rights by the CAS, not by their respective SGBs. There was no suggestion by either party that the relevant facts occurred outside the territory of Switzerland.

The Semenya case is different in that the violations complained of are substantive in nature; they relate not only to the CAS procedures but also to the substance of the decision and the impact that it had on Semenya’s Article 14 rights, amongst others. Given that the case before the CAS was an appeal of a decision by World Athletics, it might be argued that the point at which Semenya’s Article 14 rights were interfered with occurred prior to CAS proceedings, in Monaco. However, Semenya was present in Lausanne when the CAS ruling confirmed the decision of World Athletics. The CAS decision is given force of law in Switzerland. These aspects therefore lie squarely within the territorial jurisdiction of Switzerland. Purely on this basis, therefore, there appears to be a sufficient territorial link for the purposes of establishing jurisdiction under Article 1 ECHR.

In addition to this territorial link, there is also the role played by the Swiss Federal Supreme Court. Following Markovic, ‘once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a “jurisdictional link” for the purposes of Article 1’ (at [54]).

Switzerland therefore clearly has jurisdiction with regard to any alleged violations taking place during the CAS proceedings and the proceedings before the Swiss Federal Supreme Court. The fact that the original decision by World Athletics was made outside Swiss territory does not immunise its affirmation and implementation within Swiss territory. Monaco may also have positive obligations under international human rights law in relation to World Athletics, but that has no bearing on the possibility of there being additional violations of the ECHR in Switzerland. Semenya’s rights may have been infringed at multiple points, some extraterritorial and some territorial, but it is the latter which concern the ECtHR in this instance.

It is worth briefly considering the situation had Semenya attended CAS hearings digitally rather than in person in Lausanne, as is common practice at the CAS. In such circumstances, there would of course be a weaker territorial link with regard to the CAS hearings. Drawing an analogy with Wieder and Guarnieri v UK (see the post by Milanovic, here), it is likely that this would still fall under the (extraterritorial) jurisdiction of the state. The jurisdictional link through the Swiss Federal Supreme Court à la Marković would not change.

Returning to Semenya, the territorial links discussed above imply that this is not a case of extraterritorial jurisdiction. The key issue is thus not whether Switzerland had jurisdiction over the acts complained of, but rather the extent to which Switzerland was required to take action to prevent interference by the CAS with Semenya’s Convention rights. It is an issue of Switzerland’s positive obligations in relation to the operation of an international arbitration body, established in Switzerland under Swiss law, to prevent interference by this body with the rights of individuals on Swiss territory. Neither the nationality of Semenya, nor the location of World Athletics, nor the international nature of her competitions is relevant, despite these things being emphasised by Switzerland and by the dissenting judges.

Turning to the question of Switzerland’s positive obligations, this is where it becomes relevant, once again, that Semenya’s complaints are substantive rather than only procedural. Article 190 PILA provides for a number of grounds upon which a CAS award may be set aside, including a single, rather narrow, substantive ground: ‘where the award is incompatible with public policy’ (Article 190(2)(e)). At the first instance, the Court found that because Switzerland had this power of substantive review, it had a positive obligation to conduct a detailed review of the compliance of the CAS award with the applicant’s Convention rights (at [186]). By contrast, Switzerland argued both in the first instance and in the recent Grand Chamber hearings that the scope of ‘public policy’ under Article 190 is exceptionally narrow, and too narrow to allow for such a Convention-compliance review. Interestingly, the applicant contended in the Grand Chamber that this is a “circular” argument, given that Switzerland itself has the power to determine the scope of their own review. Whichever way the Court comes down on this question, it is contended in this post that this is the key question: not whether or not Switzerland had jurisdiction over the acts complained of.

The outcome of this case will have significant implications for the protection of human rights in the sporting world, and perhaps even in other arbitration contexts given how many arbitrative bodies are established in Switzerland. Following the logic of Mutu and Pechstein, this is a case of territorial jurisdiction over interferences by the CAS with Convention rights in Switzerland. While Switzerland has framed this as a matter of extraterritorial jurisdiction, the key issue lies in the application of Switzerland’s positive obligations in relation to international arbitrative bodies within its own territory. It is crucial that the international elements of this case do not obscure the territorial obligations that Switzerland has under the Convention.