Can the Japanese government cancel the Olympics? Yes, it is possible – Monash Lens

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In April, Japanese Prime Minister Yoshihide Suga declared: “The IOC has the power to decide, and the IOC has already decided to host the Tokyo Olympics,” and thus declared his government powerless to cancel the event in the face of to a pandemic. which put Tokyo in a state of emergency and killed more than 10,000 of its citizens.

It is a remarkable statement by the prime minister of a sovereign nation. But is this correct? Is the Japanese government powerless to cancel the Olympics? Does this power only belong to the International Olympic Committee (IOC)?

The answer to the question of whether the Japanese government can cancel the Olympics is yes, it can. The most relevant questions, however, are whether this should be the case and who should bear the consequences if it happens?

Let’s take a look at each question in turn.

Can the Japanese government cancel the Olympics?

While Clause 66 of the Tokyo Olympics Host City Contract grants the power to end the Games to the IOC only – and therefore at first glance seems to suggest that no other party has the right to cancel the event – the contract is between the IOC and the City of Tokyo, the Japanese Olympic Committee and the Tokyo Organizing Committee for the Olympic and Paralympic Games (OCOG).

The Japanese government is not a party to the contract, and the contract is silent on the ability of the Japanese government to close its border, impose restrictions on the movement and assembly of people, or take other measures to protect the health of its citizens which would make the organization of the Olympic Games impossible.

And in doing so, the Japanese government could violate the covenants and guarantees it has provided for the hosting of the Olympics by Tokyo, this has consequences, not capacity.

Should the Japanese government cancel the Olympics?

Can the Olympics be held safely and without the spread of COVID-19? With a bit of luck. It is clear that every effort is being made to do so. However, health issues – although of paramount importance – are only a consideration. There is also a question of priorities.

It is instructive that the Tokyo Medical Practitioners Association representing 6,000 primary care physicians has called for the games to be canceled, and that public opinion is also strongly against the conduct of the games. Even the leaders of Japan’s business community are questioning the wisdom of conducting the games, as are some of its top sportsmen.

However, canceling the Olympics would be a national humiliation and a blow to how Japan is viewed by other countries and how it sees itself. There would be damage to the national psyche. And, of course, there would be a significant financial cost to anyone who invested in making the games run.

The figures cited are astronomical, with some estimates of the cost of canceling the Olympics reaching 1.81 trillion yen (AU $ 21.3 billion).

Like all difficult decisions, the “should” question involves balancing – and sometimes making compromises – complex health, economic, social and political considerations. Finding these balances and making these compromises is the domain and the responsibility of democratically elected governments, and not of organizations such as the IOC, whatever the virtue of their missions.

Who should bear the consequences if the Japanese government cancels the Olympics?

The political cost of canceling the Olympics (and not canceling the Olympics) will be borne by the Japanese government. But who would bear the financial cost?

The Host City Contract specifies the City of Tokyo, the Japanese Olympic Committee and the OCOG. In turn, they would likely turn to the Japanese government (and their insurers). But the Host City Contract is the starting point of the analysis, not the end point.

The contract provides that disputes must be resolved by the Court of Arbitration for Sport (CAS), and failing that, the Swiss courts, and according to Swiss law.

Swiss law recognizes the capacity of a party to terminate a contract when extraordinary and unforeseen circumstances beyond the control of the party make the performance as initially envisaged impossible or unreasonable. And while the CAS and Swiss courts have applied strict standards in determining whether such circumstances exist, its application to the “unprecedented” nature of COVID-19 cannot be ruled out.

A dispute of this nature and magnitude – and around which there is legal uncertainty – is most likely to be resolved in a boardroom, not a courtroom, and through mediation and negotiation, and not by litigation.

All this means that the legal situation is uncertain, and the potential players important (once you also take into account broadcasters, sponsors and their insurers, for example). It has all the characteristics of an avocado picnic.

A dispute of this nature and magnitude – and around which there is legal uncertainty – is most likely to be resolved in a boardroom, not a courtroom, and through mediation and negotiation, and not by litigation.

The Japanese government would enter these negotiations occupying high moral ground. The IOC, however, would enter it with more power.

The IOC determines which countries and which athletes participate in their competitions. The IOC has used this power in the past to suspend national teams from participating in its competitions in order to sanction governments that it considers to have acted in a manner hostile to its interests. The most notable and recent example is the IOC’s decision to suspend the Russian national team from competing at the 2018 Winter Olympics.

It’s a big stick. At the end of any negotiation, the Japanese government may bear the lion’s share of the financial costs if the Olympics are canceled, but that doesn’t mean it can’t or shouldn’t.





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