2022 Amendment to Annexes I and II of the International Convention against Doping in Sport
3.1
Minor treaty actions are generally technical amendments to existing treaties that do not significantly affect the national interest.
3.2
Minor treaty actions are presented to the Committee with an explanatory statement and are published on the Committee’s website unless a request for confidentiality is received and agreed to by the Committee. The Committee can choose to formally inquire into these treaty actions or accept them without a formal inquiry. Once considered they are incorporated into a report of the Committee at the next opportunity.
Proposed minor treaty action
3.3
The minor treaty action contains amendments to Annex I and Annex II of the United Nations Educational, Scientific and Cultural Organization (UNESCO) International Convention against Doping in Sport (the Convention).
3.4
Annex I (Prohibited List – International Standard) identifies the substances and methods prohibited in sport. Annex II (Standards for Granting Therapeutic Use Exemptions) outlines the means by which athletes can use medicines or methods on the Prohibited List to treat legitimate medical conditions. Both Annexes I and II are an integral part of the Convention (article 4(3)).
Background
3.5
The Convention entered into force on 1 February 2007 and aims to ‘harmonise anti-doping legislation, guidelines, regulations, and rules internationally in order to provide a fair and equitable playing environment for all athletes’. To date, there are 191 Parties to the Convention.
3.6
Under the World Anti-Doping Code and since 2004, the World Anti-Doping Agency (WADA) has published an annually updated List of Prohibited Substances and Methods (Prohibited List). WADA consults widely on possible amendments and Australia contributes to the consultation process. According to the Explanatory Statement, the International Standard for Therapeutic Use Exemptions (ISTUE) is amended as required. The ISTUE was last updated in 2021.
3.7
Under article 34 of the Convention, WADA amendments to the Prohibited List or ISTUE must be approved by the Conference of Parties. From the date of the UNESCO Director-General’s notification of amendments, Parties have 45 days to express their objection to the proposed amendment. Unless two thirds of Parties express an objection, the proposed amendment is deemed to be approved by the Conference of Parties. Amendments approved by the Conference of Parties enter into force 45 days after the Director-General notifies the Conference of Parties that amendments have been approved.
3.8
If a Party notifies the Director-General that it does not accept an amendment, the Party remains bound by the Annexes as not amended.
3.9
The Director General notified Parties of the proposed amendments to Annex I and Annex II on 1 October 2022. In accordance with article 34(2), unless two-thirds of Parties expressed their objection, the amendments would be deemed approved by the Conference of Parties 45 days after the Director-General's notification (14 November 2022).
3.10
The Explanatory Statement advised that Australia did not intend to object to the amendments and the proposed amendments would enter into force for Australia on 1 January 2023.
Amendments to Annexes I and II
3.11
The proposed amendments update the Annexes to reflect the 2023 Prohibited List, and changes to the ISTUE adopted by WADA on 23 September 2022.
3.12
The amendments to the Prohibited List consist of technical changes to clarify existing entries, such as the inclusion of named examples of substances in particular banned categories and improvements in terminology to remove doubt as to the nature of a listing. The amendments also foreshadow upcoming additions to the Prohibited List and add additional sports to certain prohibitions.
3.13
The amendments to the ISTUE deal primarily with various aspects of obtaining a therapeutic use exemption.
Reasons for Australia to take the proposed treaty action
3.14
According to the Explanatory Statement, harmonising the regulation of anti-doping arrangements across sports globally provides certainty and consistency for Australian athletes who are required to comply with WADA’s Prohibited List and ISTUE.
3.15
If a discrepancy came to exist between the Australian Government’s agreed Prohibited List (Annex I) or ISTUE (Annex II) and WADA’s corresponding lists, the Explanatory Statement advised, ‘Sport Integrity Australia would be restricted in its ability to implement its anti-doping regime in accordance with the requirements of the World Anti-Doping Code, which is overseen by WADA’.
3.16
According to the Explanatory Statement, the proposed treaty action would not impact significantly on the national interest and it would have a negligible practical, legal and financial effect on Australia.
3.17
The Explanatory Statement confirmed compliance with the proposed amendments to Annex I and Annex II would not require any amendment to the existing legislative framework ‘as the specification of prohibited substances and methods and therapeutic use exemption requirements under the Australian Government’s anti-doping arrangements is based on the Prohibited List and ISTUE, as adopted by WADA and in force at the time’.
Conclusion
3.18
The Committee agreed the 2022 Amendment to Annexes I and II of the International Convention against Doping in Sport be endorsed as a minor treaty action and that binding treaty action be taken.
Chair
6 February 2023