Deterritorialising Semenya: Jurisdiction and Extraterritoriality in the Grand Chamber judgment

Dr. Sarah Thin

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Between the first and the eight of October, the Strasbourg Observers blog is hosting a symposium examining various aspects of the ECtHR’s ruling in Semenya v. Switzerland. The symposium was curated by Dr. Antoine Duval and Dr. Faraz Shahlaei. An introduction to the symposium and the case can be found here.

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Introduction

Questions of jurisdiction lie at the heart of the Semenya v. Switzerland proceedings. The case concerned the DSD Regulations by World Athletics in Monaco, which require athletes with certain differences of sex development (DSD) to medically lower their natural testosterone levels in order to compete in women’s athletic events. These regulations were challenged by Caster Semenya, a South African middle-distance runner, after she was informed that she would not be able to compete unless she medicated to reduce her naturally high testosterone levels. In the words of the dissenters to the Chamber judgment (2023), this was therefore a case about ‘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.’

Article 1 of the European Convention on Human Rights (ECHR, the Convention) requires the contracting parties to ‘secure to everyone within their jurisdiction the rights and freedoms’ in the Convention. Central to this application, therefore, is whether and to what extent the violations complained of fall within the jurisdiction of the contracting party (i.e. Switzerland), and therefore within the remit of the Court.

In 2023, the Third Chamber Section found that there was a sufficient jurisdictional link between Switzerland and the matters complained of, both as regards Article 6 (1) and as regards the rights claimed under Articles 8, 14 (in conjunction with Article 8), and 13. Had the Grand Chamber followed this decision, it could have had far-reaching ramifications, particularly in the world of sport. It would have brought within the competence of the Court substantive and procedural complaints relating to the decisions of the Court of Arbitration for Sport (CAS) and could have had potentially important consequences for the practices of the CAS and its regard for human rights in its proceedings. It would, by extension, likely have an impact on the conduct of the sports governing bodies (SGBs) whose decisions are subject to appeal to the CAS. It would therefore have held significant potential to increase human rights protections for athletes across the world.

That ship, however, has alas sailed – at least as regards substantive, rather than procedural, rights. In the most recent Grand Chamber judgment of 10 July 2025, the Court found that the complaint fell within the scope of Switzerland’s jurisdiction only insofar as it concerned the applicant’s Article 6 (1) (fair trial) rights, but not insofar as it concerned her Article 8 (respect for private and family life) rights, read alone or in conjunction with Articles 14 (prohibition of discrimination) or 13 (right to an effective remedy).

This blog post analyses the reasoning and decision of the Court in this most recent instance, and in particular how and why it differed so drastically from the earlier 2023 judgment.

Territorial vs Extraterritorial Jurisdiction

A preliminary point relates to the manner in which the Court characterises these jurisdictional questions. In the 2023 judgment, it was never explicitly stated whether the Semenya case was one of territorial or extraterritorial jurisdiction. The applicant appeared to present the situation as one of territorial jurisdiction (it was noted that ‘she did not necessarily see an extraterritorial aspect’ to the case (Chamber judgment paras 97-98)). I have previously argued that the Semenya case is one of territorial, and not (exclusively) extraterritorial jurisdiction. The Grand Chamber, however, was of a different opinion, explicitly noting that ‘[i]t is … clear that the applicant did not fall within the territorial jurisdiction of the respondent State’ (para 127).

Why does this characterisation matter? The labelling of extraterritorial/territorial has a profound impact, firstly, on the interpretation of the facts and the identification of relevant acts that engage Convention rights, and, secondly, on how the jurisdictional link is conceptualised.

First, referring to this as a case of extraterritorial jurisdiction deterritorialises the realities of the case. Caster Semenya was present at her hearing before the CAS, in the territory of Switzerland, when the CAS made a decision which directly impacted her human rights. This decision was then reviewed, confirmed, and given force of law by the Swiss Federal Supreme Court (FSC). These factual elements do not denote the exercise by Switzerland of jurisdiction outside its national territory but relate to events that occurred within Swiss borders. Treating this as a case of extraterritorial jurisdiction de-centers this territorial aspect of the case and refocuses instead on the acts that occurred outside Swiss territory, namely the publication of the DSD regulations by World Athletics in Monaco.

Second, by viewing this case as a situation of extraterritoriality, the ‘jurisdictional link’ is no longer conceived as a link between the acts complained of and the territory (a territorial link). It becomes instead a link between the facts complained of by the victim and the authority or control by the State (a control link). This can be seen in the emphasis by the Court that ‘extraterritorial jurisdiction as conceived under Article 1 of the Convention requires control over the person himself or herself rather than the person’s interests as such’ (para 149). While this may be logical in situations where there is genuinely no territorial link, such as overseas military operations, it seems inappropriate to apply this control test when the alleged victim was present on the territory of the Member State when key decisions were made which could, in and of themselves, have amounted to violations of her rights.

Distinguishing Article 6 from other Convention Rights

As noted above, the Court distinguished between Caster Semenya’s Article 6 (1) rights and her rights under Articles 8, 14, and 13. Indeed, Switzerland did not dispute the admissibility of the Article 6 claims in these proceedings. Accepting that the State is bound to comply with Article 6 standards in such situations is a logical application of previous case law: see Mutu and Pechstein (which also concerned the Article 6 (1) rights of athletes within the context of the CAS); and Markovic (which established that if a person brings a civil action within a State relating to events that occurred outside the State’s territory, the State is required to ensure the rights guaranteed by Article 6 (1) during those proceedings).

The Court refused, however, to extend this jurisprudence to jurisdiction over substantive rights. According to the Grand Chamber, the finding by the Third Section that the Articles 8, 14, and 13 claims did fall within Switzerland’s jurisdiction was ‘not based on any case-law precedent’ (para 140). In discussing the case law relevant to jurisdiction, the Court did not mention Mutu and Pechstein but it did hold that ‘a general exception to the territoriality principle cannot be inferred from the exception set out in Markovic’, limiting the Markovic jurisprudence to the ‘specific context of Article 6 (1)’ (para 143).

While it is true that these cases were limited to Article 6 complaints, that does not in and of itself justify this strict distinction between Article 6 and other Convention rights. The notion that the Third Section’s finding of jurisdiction was ‘not based on any case-law precedent’ seems misplaced in a legal system that commonly builds from and does not limit itself to prior case law. Indeed, it is illogical to expect to find a definitive answer in precedent when this situation and the claims put before the Grand Chamber are unprecedented: never before has an athlete in Semenya’s situation made claims against Switzerland relating to their substantive rights under the ECHR.

Platini and International vs Domestic Arbitration

Quite aside from this unconvincing reasoning as regards case-law precedent, this distinction between Article 6 (1) and other rights also required the Court to make some (arguably rather artificial) distinctions between Semenya and previous applications to the Court, notably the Platini case.

In Platini, the applicant complained inter alia of a violation of his Article 8 rights due to sanctions imposed on him by FIFA, subsequently confirmed by the CAS, and later by the FSC. The Court held that Switzerland was under an obligation, stemming from Article 8, to ensure that the applicant had ‘sufficient institutional and procedural safeguards available to him, in the form of a system of courts to which he could submit his complaints, and whether those courts delivered reasoned decisions which took account of the Court’s case-law’ (Platini, para 62).

The Court in Semenya distinguished Platini on the basis that the facts complained of had concerned acts (sanctions) by FIFA, which was instituted under Swiss law and whose seat was in Switzerland. By contrast, World Athletics (the SGB responsible for the DSD regulations) was a Monegasque private law entity based in Monaco. As such, ‘the case did not concern international arbitration, governed by the Swiss Federal Act on Private International Law, but domestic arbitration, governed by the Code of Civil Procedure’ (para 141). It is on this basis that the Court found that there was an insufficient link between the Article 8 complaint and Switzerland.

However, in Platini, although the Court did indeed note that it concerned domestic rather than international arbitration, the key factor was not that characterisation, but rather that ‘Swiss law gives effect to the arbitral awards of the CAS and confers jurisdiction on the Federal Supreme Court to examine their validity […], thereby giving the arbitral award the force of res judicata in the Swiss legal order’ (Platini, para 37). This legal structure held as true for Semenya as it did for Platini. In the words of the dissenting Judges Bošnjak, Zünd, Šimácková and Derenčinović, this legal structure ‘led Switzerland to exert authority and control over the fundamental rights of an international athlete who, in this instance, happens to be a South African national and resident but who in fact could just as easily hold a different nationality and be resident elsewhere’ (para 12). The distinction between domestic and international arbitration is thus arguably much less definitive than the Court in Semenya suggests.

Procedural vs Substantive Obligations and the ‘Detachability’ Test

The Court also distinguished between Semenya and earlier case law in which it had been held that procedural obligations stemming from substantive violations of Article 2 (right to life) were binding on the State even if the substantive violation had occurred outside that State.

In Güzelyurtlu, for example, it was held that the procedural obligation to investigate an alleged violation of the right to life under Article 2 was binding upon the State even if the death occurred outside that State’s territory. However, the Court in Semenya considered that procedural obligations arising out of Articles 8 and 14, notably the obligation to put in place a legal framework for the protection of private life against interferences by private persons and to provide an effective remedy (see Söderman), did not bind Switzerland in an equivalent manner. This was because, according to the Court, the procedural obligation to investigate under Article 2 was ‘a separate and autonomous duty’, ‘detachable’ from the substantive limb of Article 2, whereas the procedural obligation under Article 8 was not (para 142).

This test of detachability lacks clarity in this context. When the Court has previously discussed the ‘detachability’ of procedural obligations under Article 2, this phrasing has been used to underpin the idea that a State’s duty to investigate can persist independently of whether the State caused or directly committed the original substantive violation (see e.g. Šilih para 156). It is not immediately apparent why this characterisation would not apply to the obligation to instate a legal framework for the protection of private life against interference by private persons; by definition, this positive procedural obligation relates to situations where the State is not directly responsible for interference in an individual’s private and family life, but rather that the interference has been caused by a private actor.

In the case at hand, there is, it is submitted, no need to establish that Switzerland has any direct duties with regard to the DSD regulations and the actions of World Athletics in Monaco. It is, however, entirely possible to view the procedural obligations under Article 8 and Article 14 and their application to private actors in Swiss territory as being separate, autonomous, and detachable from the original interference with Semenya’s rights in Monaco. The distinction drawn by the Court in this manner therefore appears, at best, artificial.

Insufficiency of the Spirit, Object and Purpose of the Convention

Finally, the Grand Chamber recalled the finding of the Third Section that ‘it would risk barring access to the Court for an entire category of individuals, namely professional female athletes, which would not be in keeping with the spirit, object and purpose of the Convention’, but held that this ‘does not, however, suffice to link the present case to Switzerland in such a way as to establish a jurisdictional link between that State and the applicant’ (para 150). This arguably sums up the jurisdictional approach of the Grand Chamber in this case.

Semenya was a test case for the exercise of the Court’s jurisdiction over non-Article 6 (1) rights regarding the treatment by individuals of SGBs subject to appeal to the CAS. It presented an opportunity to the Court to address the high degree of power that SGBs have over athletes (recognised by the Court at para 204); and to account for ‘the specific and important role played by Switzerland in the sports domain’ (Joint Opinion of Judges Bošnjak, Zünd, Šimácková and Derenčinović, para 2), including in enabling transnational sports governance by allowing forced arbitration to preclude access to national courts for athletes.

There existed a doctrinally defensible (if perhaps somewhat bold) path, building on and extending from prior case law, and drawing from the teleological tradition of human rights interpretation, which would have allowed for the admissibility of the applicant’s claims under Articles 8, 14, and 13. Instead, the Court has rejected that path in favour of a more cautious approach: an approach that is built on doctrinal conservatism, artificial distinctions, and a skewed focus on the extraterritorial elements of the case.

As a result, the Court has denied substantive rights protection to a ‘vulnerable minority’ (para 111) of athletes whose sport happens to be regulated by an SGB outside Europe. As many SGBs are still located in Switzerland and are therefore subject to Swiss (territorial) jurisdiction, the category of directly-affected athletes may admittedly be small. Nonetheless, the Court’s decision in this case entrenches an arbitrary inequality and creates a legal vacuum within the ECtHR system that insulates non-European-domiciled SGBs from human rights accountability – all the while facilitated by Swiss legal structures.