Conceptualizing the Right to Sport: Why Should Trivial Participation in Sport Be Regarded as a Human Right?

Abstract

Considering its extraordinary capacity to be a vehicle of rights, and to give meaning to reality, sport is among the most important trivial subjects in the world. Discriminated groups, which are denied (or substantially limited) access to the practice of sport, demand not only their right to participate in sporting activities but also the recognition of this claim as valid by society and public authorities. This chapter proposes the idea that expanding the catalogue of human rights, by including the right to sport, is supported by the existing body of international human rights law. It would reinforce the protection of human rights in sporting contexts by enhancing the unity of fragmented claims founded on a plurality of legal instruments. Taking into consideration the thesis that inclusive and non-discriminatory access to sporting activities would be an amalgamation of several treaty-based rights, the legal foundations of the right to sport are explained and evaluated. By verifying the legal relationship between access to sporting activities and sport’s social functions, the beneficiaries of such a right are investigated, and the obligations for national and sporting authorities are explored. By arguing that the right to pursue personal development would play a central role, while the right to health and education would be complementary, this chapter strives to answer the essential ethical question of why the trivial participation in sport should be considered an inherent right of the human being, cutting through the considerable confusion surrounding the right to sport.

1 Introduction: The Distinction Between Cultural Tool and Legitimate Claim

When we call anything a person’s right, we mean that he has a valid claim on society to protect him in the possession of it, either by the force of law, or by that of education and opinion. […] To have a right, then, is, I conceive, to have something which society ought to defend me in the possession of. (Mill, Utilitarianism, 1861, 54)

To have a right means, theoretically, to “have a claim against someone whose recognition as valid is called for by some set of governing rules”.¹ From this perspective, defining sport as a right is a complex task, since sport itself is of an ambiguous nature.² Considering that ‘sport’ as a concept includes a great variety of physical activities and actors, which in turn vary in relation to the social and economic context, it is not clear what exactly the claim is.³ In addition, there is no consensus on the ‘government regulations that recognize this right as valid’. According to Giummarra and Lubrano, for example, the claim to access sport is essentially founded on the right to health, and on the freedom of peaceful assembly and association; other fundamental rights are taken into account as complementary or supporting sources.⁴ Latty and Maniatis, as well as Stelitano and Pensabene Lionti, have instead focused on the right to education.⁵ Other authors looked at these fundamental rights through the prism of the rights of some vulnerable categories; Colliver and Doel-Mackaway pay attention to the children’s right to play;⁶ Weston considers the claim to access sport in the light of the right of people with disabilities to participate meaningfully in all aspects of society.⁷ The right to sport appears to be an emblematic case of what we can refer to as an ‘incompletely generalized agreement’, in which there is no consensus on its foundations, although there appears to be loose agreement on the recognition of some of its components.⁸ Regarding sport as a right would be a controversial theoretical exercise, which could foster the traditional concern about an illegitimate and uncontrolled expansion of new human rights.⁹ The protection of sportspeople’s claims should therefore be tied to existing rights, which can be given a particular color according to the evolution of social needs.

Sport has traditionally been regarded as a cultural tool to promote a democratic society, rather than a legally enforceable right. The United Nations (UN) has underlined in several occasions that sport is “a tool of peace and sustainable development”.¹⁰ The Council of Europe (CoE) has habitually described sport as “a vehicle of rights”,¹¹ and the European Union (EU) has regarded it as “a source of, and driver for active social inclusion”.¹² Several authors have addressed the complex relation between sport and human rights, by highlighting that sport is essentially a means to guarantee other important rights;¹³ while others have argued that the right to sport could not be regarded as a stand-alone right.¹⁴ However, the International Olympic Committee (IOC) emphatically affirms that “the practice of sport is a human right”;¹⁵ and the International Charter of Physical Education, Physical Activity and Sport (ICPEPA), adopted by the UN Educational, Scientific and Cultural Organization (UNESCO), states that “every human being has a fundamental right to physical education, physical activity and sport”.¹⁶ The CoE, in turn, has recently revised the European Sport Charter (ESpC),¹⁷ by introducing the principle that “all human beings have an inalienable right of access to sport”.¹⁸ The need to regard sport as a human right emerges from this recent activity.

The ancillary and functional nature of sport ends up blurring the traditional division between ‘cultural tool’ and ‘legitimate claim’. The UN High Commissioner for Human Rights (OHCHR) notes, “while sport is often an instrument for promoting peace, development, solidarity and human rights, [it] is often characterised by inequality and discrimination within and across national borders”.¹⁹ Around the world ethnic and religious minorities,²⁰ persons with disabilities,²¹ women,²² and the LGBTQ+ community²³ are in many cases still de facto and de jure denied access to sport (or have severely limited access). These groups demand not only their right to participate in sporting activities, but also the recognition of this claim as valid by society and public authorities. Fragmented legitimate claims, potentially founded on a plurality of legal instruments, would converge in questioning the uncertain status of human rights in sport.²⁴ From this perspective, expanding the catalogue of human rights, by including the right to sport, could enhance sportspersons’ protection. By introducing the universal principles of gender equality, non-discrimination, and social inclusion in and through sport, it could be assumed that the right to sport would have an instrumental and hermeneutical function in relation to the implementation of existing rights in the sporting context according to the evolution of social needs.

By moving from the idea that the claim to participate in sport is a derivative treaty right, this chapter aims to describe, explain, and evaluate the legal foundations of the right to sport. Taking into account sport’s social functions, which appear constant over time, independent of the dominant values in a specific period, it is possible to detect existing rights upon which the general claim to participate in sport could be based. By analyzing the legal relationship between access to sporting activities and sport’s social functions, we can thus define who can effectively enjoy the right to sport, and under which conditions; to what extent the instrumental nature of sport can support a legitimate claim regarded as an enforceable right; and which obligations would be provided for national and sporting authorities in order to guarantee the effectiveness of this emerging right. Generally, by regarding sport as a right, rather than as a cultural tool, this chapter strives to answer the essential ethical question of why, and to what extent, the trivial participation in sport should be considered an inherent right of the human being, cutting through the considerable confusion surrounding the right to sport.

In order to answer to this essential ethical question, with the aims described above, the legal derivation’s method will be applied to the main international and European law instruments potentially affecting sportspeople.²⁵ Particular attention will be focused on the ICPEPA, the ESpC, the activity of the relevant Committees of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the European Convention on Human Rights (ECHR), and on case law from the European Court of Human Rights (ECtHR). Reference to the ECtHR is particularly relevant in light of its emerging jurisdiction on the Court of Arbitration for Sport (CAS) case law.²⁶

The chapter will first analyze the legal sources of the right to sport, supporting the thesis that this right is a derivative treaty right (Sect. 2), and then explore the legal relationship between access to sporting activities and sport’s social functions, as its natural contribution to human health (Sect. 3), its historical educational value (Sect. 4), and its important identity-social function (Sect. 5). It will finally illustrate to what extent the right to sport is a functional/derivative right, legally enforceable, and why the trivial participation in sport should be considered a human right for all (Sect. 6).

2 Sources of the Right to Sport: Sport as a Derivative Treaty Right

In the ICPEPA and the ESpC, UNESCO and the CoE, respectively, enshrined the right to sport at the international level. They followed a state practice including provisions on the right to sport in their laws, whether at the constitutional level or ordinary law.²⁷ It would be not a state practice to identify an international custom, as required under Article 38(1)(b) of the Statute of the International Court of Justice (ICJ).²⁸ The lack of consensus on the real nature and existence of a right to sport, highlighted in the previous section, suggests that constitutional recognition of the right to sport does not have identifiable practices amounting to a “constant and uniform usage” or an “extensive and virtually uniform behaviour considered as binding”.²⁹ However, by starting from an approach based on the deduction from statements rather than on the induction of state behavior,³⁰ it could be assumed that this emerging constitutional practice would reflect an arising opinio juris, composed of a combination of lex ferenda (what the law should be) and lex lata (the law as it exists). This would reinforce and support the idea that sport could be a derivative treaty right.

The ancillary nature of sport, its functional and instrumental dimensions for the protection of human rights, allows it to be considered as a derivative right. Indeed, fundamental human rights generate claims regardless of their instrumental value in realizing or protecting other rights. By contrast, derivative or non-fundamental rights generate claims because they contribute to, or are pre-conditions for, safeguarding or implementing fundamental rights.³¹ From this perspective, the derivative right should be inferred from other rights, with which it must logically share legal features (i.e., civil and political rights could only create civil and political rights, while socio-economic rights can only generate socio-economic rights).³²

While sources of soft law that lack the capacity to directly create international law, ICPEPA and ESpC provide the primary interpretative backbone for the development of the right to sport. As UN institutions and CoE bodies make constant reference to these documents, they are a useful starting point for defining the normative content of the right to sport.³³ Under the ICPEPA, the claim of the right to sport is expressly linked to the right to health (Articles 1.2 and 2) and to education (Articles 1.7, 4 and 5). According to the broader approach of the ESpC, the recognition of a valid claim to exercise sport is called for by “the rights to health, education, culture and participation in the life of the community” (Article 10). ICPEPA and ESpC both point to health and education as the source rights for the right to sport. As derived from these two treaty-based rights, the right to sport would essentially be a socio-economic right.

However, the scope and content of such a right to sport appear, prima facie, extremely large and generic. According to the ICPEPA, the claim of the right to sport should be generic access to “physical education, physical activity and sport” (Article 1.1). In more precise terms, the ESpC defines sport as “all forms of physical activity which, through casual or organized participation, are aimed at maintaining or improving physical fitness and mental well-being, forming social relationships or obtaining results in competition at all levels” (Article 2). The scope of the right to sport potentially covers a large variety of physical activities and actors, from the most expensive (e.g. skiing), and in part contested (e.g. hunting), to the most socially institutionalized (e.g. physical education in school systems), and collectively organized (amateur or professional sporting events). It may also include activities that are not physical (e.g. chess), or physical activities that are not necessarily regulated by sporting authorities or social conventions and customs (e.g. surfing or yoga). In relation to this wide scope, ICPEPA and ESpC have introduced at the international and regional level the universal principle of gender equality, non-discrimination, and social inclusion in and through sport. The right to sport would entitle everyone to “inclusive, adapted and safe opportunities to participate in physical education, physical activity and sport” (ICPEPA, Article 1.3; ESpC, Article 1.1).

This lack of clarity inevitably raises doubts as to the validity of the legal derivation under analysis. It would be a source of uncertainty and inaccuracy from a legal perspective, lending support to those who warn against proliferation, inflation, or dilution of human rights. Furthermore, considering that sport is a heterogeneous phenomenon, with pronounced divergences regarding its organization or social impact, it could be argued that its legal/social/anthropological foundation may be different; accordingly, the link with the basic rights should be verified on a case-by-case basis for all kinds of sporting activities potentially covered by the ICPEPA and the ESpC. In order to avoid an ever-expanding list of new human rights, which would erode the very idea of these rights, it should be verified to what extent the “inclusive, adapted and safe opportunities to participate in physical education, physical activity and sport” would contribute to the realization of the source rights. This should allow a more accurate definition of the scope and legal effects of the right to sport.

Thielbörger argues that “[if] a derivative right is a conditio sine qua non for the realization of the source right, there can be no objection to the derivative right’s creation; otherwise the recognition of the source right itself would become void”;³⁴ this would be a case of ‘indispensable derivation’.³⁵ By contrast, if it is merely favorable for the implementation of the source right, the justification should meet the criteria elaborated by Philip Alston,³⁶ and the guidelines adopted by the UN General Assembly (UNGA) in developing international instruments in the field of human rights.³⁷ Namely, pursuant to UNGA guidelines, the emerging right to sport should,

be consistent with the existing body of international human rights law; be of fundamental character and derive from the inherent dignity and worth of the human person; be sufficiently precise to give rise to identifiable and practicable rights and obligations; provide, where appropriate, realistic and effective implementation machinery, including reporting systems; attract broad international support.³⁸

We can assume that the right to sport would be a case of favorable derivation, as theoretically, there are several conceivable ways in which the source rights (i.e., to health or education) can meaningfully exist even without “inclusive, adapted and safe opportunities to participate in physical education, physical activity and sport”. The recognition of sport as a derivative right would be one option that maximizes implementation and guarantee of the source right. Accordingly, in light of the UNGA guidelines mentioned above, it should be noted that the right to sport has attracted international support from international organizations, such as CoE and UNESCO, and by international sporting federations (ISFs), like the IOC. Nevertheless, its consistency with the existing body of international human rights law, as well as its fundamental character inherent to human dignity, and especially its ability to give rise to identifiable and practicable rights and obligations, are largely untested.

We can see above that only some of the key criteria are met for treating access to sport as a human right. However, its capacity to contribute to the implementation of basic rights—by establishing identifiable and practicable rights and obligations, and the ability to define its scope and legal effects—could be verified by taking into account some of the fundamental functions of sport. Here we are discussing the structural features of sport, which appear constant over time, independently of the dominant values of a specific period. For example, the inherent relationship between sport and health.

3 The Natural Relationship Between Sport and Health: The Right to Achieve Psycho-Physical Integrity

The link between sport and health is evident and has been underlined by the World Health Organization (WHO) on several occasions.³⁹ Sport’s contribution to health was recognized during the COVID-19 pandemic by the UN⁴⁰ and the Parliamentary Assembly of the Council of Europe (PACE).⁴¹ The WHO has also signed several agreements with ISFs to promote health through sport and physical activity, confirming the important role of Sporting Organizations (SOs) to contribute to the health of people.⁴² This is an essential function of sport emphasized during different periods, which has often been used for the benefit of the state and its ideology. For example, the promotion and prescription of therapeutic exercise during the Greek and Roman ages,⁴³ or the mass regimentation of people in SOs by totalitarian regimes in Europe.⁴⁴ In the “age of rights”,⁴⁵ the natural relationship between sport and health has been addressed with regard to the implementation of the right to health, as suggested by several recommendations of the CoE,⁴⁶ the PACE,⁴⁷ and the UN.⁴⁸ The UN has underlined that,

healthy lifestyles have not traditionally been viewed as a rights issue, but their adoption is integral to realisation of the right to health. Sport and physical activity are a vital part of healthy lifestyles, and States and other actors incur important obligations to maximize individual capacity to exercise and to live healthfully.⁴⁹

The “inclusive, safe, and adapted” access to sport would be an underlying determinant of the right to health, enshrined in Article 25 of the Universal Declaration of Human Rights (UDHR),⁵⁰ Article 13 ICESCR,⁵¹ or Article 11 of the European Social Charter (ESC).⁵² As noted by the Committee on Economic, Social and Cultural Rights (CESCR), the “right to health is an inclusive right, covering a wide range of factors that can help us lead a healthy life”.⁵³ Furthermore, it should be interpreted “as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health”.⁵⁴ Considering the broad definition of health in the WHO Constitution—“a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”⁵⁵—access to sporting activities could be regarded as part of the right to achieve or maintain psycho-physical integrity. It would be a new addition to the list of the underlying determinants of health indicated by the CESCR;⁵⁶ another case of the emerging trend of defining derivative rights based on the right to health.⁵⁷

In light of the therapeutic function of sport, it could be argued that the emerging right to sport would theoretically cover all sports, even those that do not involve physical activity (e.g., chess), which contribute to psycho-physical well-being. From this perspective, dangerous sports, which may have detrimental effects on the health of people, should be excluded.⁵⁸ Further, it could be assumed that the right to health would only partially cover sporting activities carried out for economic and professional purposes, where the therapeutic function is marginal. For example, in the famous case of the athlete Semenya,⁵⁹ the rules of athletics that set a limit for the natural levels of testosterone for female runners in order to be admitted into women’s competition have been strongly contested from the point of view of respect for the right to health,⁶⁰ and for the principle of non-discrimination.⁶¹ While considering “forced medical examinations and treatment […] the very essence of a claim of violation of Article 3 of the Convention”,⁶² the ECtHR did not assess the appellant’s exclusion from the sporting competitions in the light of this Article, considering that the “seuile de gravité” had not been reached to take account of this provision.⁶³ Moreover, it should be noted that the Court did not explicitly reject the objective of World Athletics to guarantee equal opportunities in women’s competitions, which was the basis for the exclusion of the appellant.⁶⁴

If the emerging right to sport is simply considered to be an underlying determinant of health, it could still be argued that the exclusion from a given competition may be regarded as “necessary, reasonable and proportionate” to ensure fair competition in women’s sport.⁶⁵ The athlete’s right to health would not be compromised, since there are several conceivable ways to achieve this right, even without the participation in specific sporting events. By contrast, a specific medical practice that may have detrimental effects on health should be banned. Non-state actors and SOs should guarantee access to sport in a safe environment, at both the professional and amateur level.⁶⁶ They should have the obligation to protect the health of their members and of those that already take part in their events.⁶⁷

Accordingly, by taking into account the therapeutic function of sport, the right to sport would cover mainly (non-dangerous) amateur sports. Nevertheless, it could be regarded as a new emerging derivative human right since it theoretically meets all five criteria of the guidelines endorsed by the UNGA. The ‘natural’ contribution of access to sport to achieve or maintain psycho-physical integrity would confirm its fundamental character inherent to human dignity. National authorities would comply with the traditional obligations to fulfil this right, which require that states take positive actions to ensure the implementation of human rights.⁶⁸ The right to sport should be recognized in national political, budgetary, and legal systems, implying the adoption of a national physical activity policy for its realization.⁶⁹ On the basis of the obligation to respect and protect the right, all people should have access to state-run sporting facilities on an equal basis, with particular attention to vulnerable minorities.⁷⁰ Public authorities should be responsible for setting framework conditions, concerning sporting facilities and, where appropriate, legal requirements necessary to guarantee access to sporting activities.⁷¹

The right to sport, as a derivative right, logically shares the legal features and limits of the right to health. It would mainly imply general programmatic and interpretative obligations typical of socio-economic rights, which need to be implemented by national authorities⁷² to achieve their progressive realization “to the maximum available resources”.⁷³ In this sense, it could be noted that according to the CESCR, “the right to health is not to be understood as a right to be healthy”;⁷⁴ instead it “must be understood as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realization of the highest attainable standard of health”.⁷⁵ Access to sport activities would be connected to the right to the enjoyment of a variety of sporting facilities; it would play an important role in public policymaking, and in particular regarding the most vulnerable groups for whom sport can have a therapeutic function.

However, the right to sport would not necessarily imply an obligation of admission to sporting competitions; it would then cover a limited part of the large scope defined by ICPEPA and ESpC. For this reason, the right to health cannot completely justify the right to sport. Judged exclusively on this basis, the nature of sport as a derived right could not be established, at least in the terms in which it is presented by ICPEPA and ESpC. The contribution of sport to other ‘basic rights’ must then be considered. The next section will address the right to education, the implementation of which could be improved by the pedagogical value of sport.

4 The Pedagogical Value of Sport: The Right to Physical Education

Sport’s educational-pedagogical value is at the core of the resolutions and acts adopted by the UN,⁷⁶ the CoE,⁷⁷ and the EU mentioned in the previous discussion.⁷⁸ As noted by the CoE,

sport has become more than just a leisure pursuit. It is a recognised social phenomenon. Sport offers a common language and a platform for social democracy. It creates conditions for political democracy and is instrumental to the development of democratic citizenship. Sport enhances the understanding and appreciation of cultural differences, and it contributes to the fight against prejudices. Finally, sport plays its part in limiting social exclusion of immigrant and minority groups.⁷⁹

The international organizations would have recognized the sport’s pedagogical value emerged throughout history, dating back to the ancient Greek understanding of sport as giving meaning to reality⁸⁰ and encouraging adherence to rules of behavior.⁸¹ Cultures have ludic elements which influence human beings’ interpretation of life, and their conception of good.⁸² Sporting values have some influence on societies’ values, and for this very reason sport appears as “the most important of the trivial subjects in the world”.⁸³ In the light of its extraordinary capacity to educate and to be vehicle of values, sport has been largely regarded as “an inspirational force for good”.⁸⁴

Accordingly, the governing rules recognizing the right to sport as valid could also be connected to the right to education, as provided by Article 26 of the UDHR or Article 13 ICESCR. In Article 13 ICESCR, there is clear evidence of the traditional binomial sport/education, considering that both sport and education activities are envisaged as a means of enabling “all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups”. As argued by the CESCR, within the “educational objectives which are common to Article 26 (2) of the UDHR and Article 13 (1) of the Covenant, perhaps the most fundamental is that education shall be directed to the full development of the human personality”.⁸⁵ From this perspective, it could be argued that sport is an underlying determinant of educational objectives, and therefore, it would be part of the right to education. This has been implicitly affirmed by the UNESCO resolution that established the Statutes of the Intergovernmental Committee for Physical Education and Sport (CIGEPS),⁸⁶ and expressly admitted since the first International Conference of Ministers and Senior Officials Responsible for the Physical Education and Sport (MINEPS).⁸⁷ These are the two international bodies that have carefully examined the new version of the ICPEPA and elaborated the notion of “global education”,⁸⁸ which includes physical education, and is enshrined in the International Convention on the Rights of the Child (ICRC).⁸⁹

By affirming the right of the child to education (Article 28), the ICRC establishes that “the education of the child shall be directed to [t]he development of the child’s personality, talents and mental and physical abilities to their fullest potential” (Article 29). As argued by the UN Committee on the Rights of the Child (CRC), Article 29

insists upon a holistic approach to education which ensures that the educational opportunities made available reflect an appropriate balance between promoting the physical, mental, spiritual and emotional aspects of education, the intellectual, social and practical dimensions, and the childhood and lifelong aspects.⁹⁰

Further, the right to (global) education is reinforced by the “children’s right to sport activities” enshrined in Article 31 ICRC, according to which, “States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts”. The CRC has considered the implementation of children’s right to play as “essential to achieving compliance with the right provided for in Article 29”.⁹¹ Indeed, the Committee emphasized the positive impact of the rights under Article 31 on children’s educational development, arguing that “inclusive education and inclusive play are mutually reinforcing […], [and that] research has shown that play is an important means through which children learn”.⁹²

The ECtHR has also recognized the pedagogical value of sport by underlining the importance of physical activities as an underlying determinant of educational objectives. In the case Osmanoǧlu and Kocabaş v. Switzerland,⁹³ the applicants alleged that the obligation to send their daughters (who were minors at the time) to mixed swimming lessons was contrary to their religious convictions, arguing that “swimming was only one element of sports education and that an exemption neither called into question any education content nor threatened the attainment of a school certificate or subsequent professional opportunities”.⁹⁴ The applicants’ arguments, however, were rejected by the Court, according to which,

sports education, of which swimming is an integral part in the school attended by the applicants’ daughters, is of special importance for children’s development and health. That being said, a child’s interest in attending those lessons lies not merely in learning to swim and taking physical exercise, but above all in participating in that activity with all the other pupils, without exception on the basis of the child’s origin or the parents’ religious or philosophical convictions.⁹⁵

Treated in this way, sport has a fundamental educational role, which goes far beyond physical well-being. The possibility of attending private swimming lessons was regarded as irrelevant by the Court, because what was important to the children was “above all the fact of learning together and taking part in that activity collectively”.⁹⁶

On the basis of the pedagogical role of sport, it could be argued that the emerging right to sport—treated as an underlying determinant of the right to education—would be enforceable in relation to educational and schooling activities, with specific reference to formal and informal educational systems. The Declaration of Berlin, where MINEPS V invited the Director-General to consider a revision of the Charter,⁹⁷ focused on the persisting inequalities in sport by certain categories of vulnerable people (such as children, women, and persons with disabilities).⁹⁸ In particular, the Ministers were committed to “ensure quality and inclusive physical education classes, as a mandatory part of primary and secondary education”;⁹⁹ to “improve the conditions for physical education and sport at school”;¹⁰⁰ to “foster the important role of inclusive extracurricular school sport in early development and educating children and youth”;¹⁰¹ and to “provide opportunities for traditional sport and games as a means for wider inclusion”.¹⁰² The other stakeholders (i.e., the SOs) were called upon to support the broad-based anchoring of sport in school and in all other educational institutions, recommending a generic review of sport governance in order to ensure equal opportunities to participate in sport at all levels.¹⁰³

From the ICPEPA perspective, the claim of the right to sport would essentially concern participation in physical education classes and extracurricular school sports. Pursuant to the ESpC, the obligation to safeguard and promote the right to sport should be “guaranteed, both within the educational system and in other aspects of social life”.¹⁰⁴ However, the “other aspects of social life” remain largely undefined, with the only concrete references to educational systems and programs. Therefore, there would not be a general right to participate, for example, in professional or amateur sporting events organized by private associations; perhaps with the exception of those organized in cooperation with formal and informal educational institutions.

With this in mind, a restrictive interpretation of the right to sport seems to be in part supported by the international instruments of hard law that expressly recognize the right to sport for certain vulnerable categories. In order to implement the children’s right to play, for example, the CRC has argued that “[e]ducational environments should play a major role in fulfilling the obligations under Article 31”, offering the educational system detailed indications.¹⁰⁵ The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),¹⁰⁶ in Article 10, foresees that,

States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women […] the same opportunities to participate actively in sports and physical education.

Considering the limited scope supported by the right to education, the right to sport appears as an emerging and “incomplete theorised right”, in the sense that the emphatic affirmation of the principle (the access to sport for all) would reveal limited agreement as to how this principle should be implemented.¹⁰⁷ On the basis of the right to education, the access to physical activity and sport would be an enforceable right only for pupils within informal or formal educational systems. The right to access sport for all would be a right for a few categories, and in relation to very restricted contexts. Expanding the catalogue of human rights by including a general right to sport could lead to an illegitimate and uncontrolled expansion of new human rights, and would clearly be a source of uncertainty and inaccuracy from a legal perspective, which would not be sufficiently (and generally) supported by the existing body of international human rights law.

Finally, the educational role of sport suggests the idea that sport promotes the emergence of a pluralist, dynamic, and cohesive society. In this sense, the claim to participate to sport should be supported, in addition to the right to health and education, by the right to culture and participation in the life of the community, as indicated by the ESpC (Article 10). In this regard, sport would exercise an identity-social function suggesting an extensive interpretation of the emerging right to sport, as the following discussion will demonstrate.

5 The Identity-Social Function of Sport: The Right to Participate in Cultural Life

The identity-social function of sport is closely linked to its ability to create, strengthen, and maintain over time social and interpersonal relationships between sportspeople, as well as with spectators.¹⁰⁸ As Silvia Salardi argues, this “minimal social function”, grounded in a motivational force towards aggregation based on emotions more than rationality, would be the “constitutive definitional element of sport allowing its use to support very different models of civil and social coexistence”.¹⁰⁹ From this perspective, the inclusive participation to physical activity and sport could maximize the implementation of the right to culture and the right to participate in the life of the community.

The reference to the right to culture and participation in the life of the community, provided by Article 27 UDHR and Article 15 ICESCR, is based on the anthropological notion of culture in international human rights, according to which “culture is to be understood as the way of life of a person or a group”.¹¹⁰ Since the first report on cultural rights, adopted by the Human Rights Council, culture is defined as “a broad, inclusive concept encompassing all manifestations of human existence, […] inter alia, […] sport and games”.¹¹¹ Sport would be covered by this extensive notion of culture, and it would be an important part of the cultural life of the community.

Access to sport activities would therefore be closely linked to the right to freely construct one’s personality, which is a key right of the post-war UDHR.¹¹² As argued in the ‘General Discussion on the Right to Take Part in Cultural Life’, organized by the CESCR in 1992, “participation in cultural life, at the very core of which lay a person’s duties and responsibilities towards the common good, gives the individual a sense of belonging and reinforces his/her sense of identity”.¹¹³ While defining culture as all activities “through which individuals, groups of individuals and communities express their humanity and the meaning they give to their existence”,¹¹⁴ the CESCR underlined the fundamental role of the access to cultural life in the construction of identity, since it includes those meanings and values in which people find the references to make sense of the world around them. This link is particularly emphasized where the right to participate in cultural life is regarded as fundamental for “the transmission […] of common cultural and moral values in which the individual and society find their identity”.¹¹⁵

The idea that the claim to exercise sport should be founded, inter alia, on the rights to culture and participation in community life, is supported by international instruments of hard law that expressly recognize the right to sport for some vulnerable categories. For instance, Article 30 (5) of the Convention on the Rights of Persons with Disabilities (CRPD) establishes the right to participate “in cultural life, recreation, leisure and sport”, and provides a general obligation to support “the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels.¹¹⁶ The “children’s right to play”, enshrined in Article 31 ICRC, is supported by the obligation of the States Parties to “respect and promote the right of the child to fully participate in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity”.¹¹⁷ This right is expressly linked to the right to culture and participation in the life of the community; CRC has emphasized that “children reproduce, transform, create and transmit culture through their own imaginative play, songs, dance, animation, stories, painting, games, street theatre, puppetry, festivals, and so on”.¹¹⁸ The access to sports activities would be an essential part of the “[i]nvolvement in a community’s cultural life [, which] is an important element of children’s sense of belonging”.¹¹⁹

The right to play would simply not be addressed in the educational system context. The CRC recommends fostering the right to play outside of overly structured and programmed schedules:

children are entitled to time that is not determined or controlled by adults, as well as time in which they are free of any demands – basically to do nothing, if they so desire. Indeed, the absence of activity can serve as a stimulus to creativity. Narrowly focusing all of a child’s leisure time into programmed or competitive activities can be damaging to his or her physical, emotional, cognitive and social well-being.¹²⁰

The CRPD and the ICRC suggest that the right to sport would also be supported by the right to leisure, provided by Article 24 of the UDHR.¹²¹ The right to rest and leisure is indeed a structural component of the right to participate in collective life, the implementation of which would contribute to personality development and to a sense of belonging to a community.¹²² In general terms, it could be argued that leisure is a medium through which other rights and related benefits can be exercised, including: the physical, mental, emotional, and social development of people through play; support for family life; personal expression and development; sustaining the cultural life of the community; and the promotion of physical and mental health through sport and cultural engagement. Conversely, the denial of time for beneficial leisure activity can have serious consequences for the well-being of individuals and societies. According to this interpretation, the right to sport should then be understood holistically, both in terms of its constituent parts and also its relationship with the implementation of the different basic rights. Each element of the right under analysis would be mutually linked and reinforced, and when realized, would contribute to enriching people’s lives. From this perspective, participating in sport activities is essential to one’s health, well-being, and education, as well as improving the community’s cultural life, by contributing to personality development and to a sense of belonging to a community.

The reference to the right to participate in cultural life broadened the scope of the emerging right to sport, which should be expressly guaranteed “both inside and outside school settings”.¹²³ It would therefore cover both amateur and professional sports, and even dangerous sports would not immediately be excluded to the extent that they contribute to the definition of personal identity and to the feeling of belonging to a community. Furthermore, drawing on international indications concerning access to culture, the right to sport would emphasize more affordable activities, paying special attention to the poorest in society.¹²⁴ On the basis of the general principle of gender equality, non-discrimination and social inclusion in and through sport, enshrined in the ICPEPA and ESpC, national and sporting authorities should offer equal access to sporting opportunities, especially concerning vulnerable groups of people, such as persons with disabilities,¹²⁵ the elderly,¹²⁶ or children. The emerging right to sport would support the claim of everyone to participate in all traditional contexts of sporting activities.

It could thus be argued that the ‘minimal social function’ of sport would be regarded as a right to participate and be part of a community. This idea is implicitly affirmed, for instance, in the EU legal order. The identity-social function of sport has gained momentum in the European project since ‘Adonnino Report’,¹²⁷ and was explicitly recognized by the Amsterdam intergovernmental conference. The conference “emphasise[d] the social significance of sport, in particular its role in forging identity and bringing people together”, with “special consideration […] to the particular characteristics of amateur sport”.¹²⁸ Richard Parrish notes that “sport was identified as a tool through which the EU could strengthen its image in the minds of Europe’s citizens”;¹²⁹ it was “intended to be used as the means of creating a common will of Europe and help the awareness of Union citizenship to increase”.¹³⁰ In TopFit e.V. and Daniele Biffi v. Deutscher Leichtathletikverband e.V.,¹³¹ the Court of Justice of the EU (CJEU) affirmed the right of all EU citizens to participate in sporting competitions of the state in which they are residents; this includes the possibility of winning the title of national champion and representing the host Member State at the international level, on the basis of their right to be integrated in the host state.¹³²

For signatories of the ECHR, the emerging right to sport would also be supported by Article 8 ECHR, concerning the right to respect for private and family life. This protects a right to personal development, and the right to establish and develop relationships with others and the outside world.¹³³ In the case Friend and Countryside Alliance v. the United Kingdom,¹³⁴ for instance, the applicants alleged that some national acts banning hunting constituted an interference with their private life.¹³⁵ The Court recognised that “the hunting of wild mammals with hounds had a long history in the United Kingdom; that hunting had developed its own traditions, rituals and culture; and, consequently, that it had become part of the fabric and heritage of those rural communities where it was practised”.¹³⁶ The ECtHR focused on the significant role played by a sport/leisure activity (hunting) in relation to the identity of a person or a community, accepting that “hunting provides hunters opportunities for establishing interpersonal relations, for carrying out outdoor activities and being entertained”.¹³⁷ The Court finally stated “that it cannot be qualified as an identity feature of a hunters”,¹³⁸ finding “hunting to be too far removed from the personal autonomy of the applicants, and the interpersonal relations they rely on to be too broad and indeterminate in scope, for the hunting bans to amount to an interference with their rights under Article 8”.¹³⁹ Nevertheless, this statement could be interpreted, a contrario, to argue that a specific sport or leisure activity does define the identity of a specific social group, so as to challenge a national measure capable of interfering with private life. As Bestagno argues,

Following the European Court of Human Rights argument in Friend and Countryside Alliance, the applicants would have to prove that the activity at stake does not only amount to a pastime they share with other people, but that it is a traditional practice of the community they belong to, or, in other terms, an essential element of their identity.¹⁴⁰

This interpretation is partly supported by the recent Semenya case, where the exclusion of the appellant from sporting competitions was considered discriminatory in light of Article 8 ECHR.¹⁴¹ Although the sporting activity’s contribution to the athlete’s social identity was not particularly emphasized,¹⁴² Judge Serghides, in his opinion, partly dissenting and partly concurring, stressing how the appellant’s “identity is linked to her ability to compete and succeed like the elite athlete she is”.¹⁴³

The identity-social function potentially appears as the main feature of sport able to support the claim to participate in professional and/or amateur sporting activities. The essential condition is that the sporting activity supports the definition of personality and identity; this is not conditional on belonging to specific categories or restricted contexts. Indeed, this could support a ‘complete’ legal conceptualization of the right to sport, leading to the development of a ‘complete theorized right’.

6 Conclusion: Conceptualizing the Human Right to Sport

This chapter has developed the thesis that sport could be regarded as a human right on the basis of its fundamental social functions. The claim to take part in sporting activities and events should be recognized as valid because sport contributes to the development of identity and social relations, and fosters psycho-physical integrity. This argument emerged by analyzing sport’s natural-born relationship with human health, its pedagogical value, and its identity-social function. The innate features of sport suggest that the right to sport should be understood as an amalgam of several (rather than a single) treaty-based rights.

As shown in the previous sections, sport should be a treaty-based right because access could be regarded as an underlying determinant of the right to health, education, and to participate in cultural life. It would be a case of favorable derivation, as theoretically there are several ways in which the source right could meaningfully exist, even without “inclusive, adapted and safe opportunities to participate in physical education, physical activity and sport”, which would define the right to sport (ICPEPA, Article 1.3; ESpC, Article 1.1). However, it would be an option that maximizes the implementation and guarantee of the source rights, and this is a position that has attracted significant international support. According to the Alston criteria and the UNGA guidelines in developing international instruments in the field of human rights, this would reflect an important social value attributed to sport, relevant throughout a world of diverse value systems.

This chapter has also argued that guaranteeing inclusive, adapted, and safe opportunities to participate in sport is consistent with the existing body of international human rights law. Sport’s natural contribution to achieve or maintain psycho-physical integrity further confirms its fundamental character inherent to human dignity. In addition, the basic rights of the emerging right to sport allow to detect practicable rights and obligations. These could potentially be covered by realistic and effective implementation machinery, including reporting systems; indeed, it could be argued that the access to physical activities and sport as a right has been implicitly protected by the ECtHR and the CJEU in the cases mentioned in the text, and it is essentially monitored by certain international bodies, such as the Enlarged Partial Agreement on Sport (EPAS).¹⁴⁴

Obligations and rights inferred from each basic right suggest that the treaty-based rights would be considered as interdependent and essential elements of the legal construct of the right to sport. Every treaty-basic right, considered separately, would partially contribute to guaranteeing access to sport. As an extension of the right to health, this chapter contends that the right to sport would imply obligations traditionally foreseen for the implementation of the right to health. There would be a general obligation for public authorities to maximize individual capacity to exercise and to live healthfully, with particular attention on groups that sport could have a therapeutic function; this would cover the traditional general programmatic commitments for a progressive realization “to the maximum available resources”. Sporting authorities would be required to guarantee the safety and health of sportspeople who already have access to SOs’ activities or competitions.

The right to education, in turn, would mainly concern participation in physical education classes and extracurricular school sport. The potential contribution of sport to the right to education would not imply a general right to participate, for example, in professional or amateur sporting events organized by private associations (except, perhaps, those organized in cooperation with formal and informal educational institutions). A general right to sport therefore would not be sufficiently supported by the right to health and education. The right to access sport for all would be a right for few categories, and in relation to restricted contexts.

The right to participate in cultural life, by contrast, would support a general claim of access to sporting activities, to the extent that it contributes to defining personal autonomy and interpersonal relations. However, it would not involve the same obligations of political and economic intervention, and planning as associated with the right to health.¹⁴⁵ Taking separately into account the treaty-based rights, the right to sport would be an “incomplete theorized right”. The emphatic affirmation of the principle (access to sport for all) would reveal limited agreement as to how this principle should be implemented, which implies the difficulty of efficiently guarantee the right, and could lead to a case of illegitimate and uncontrolled expansion of new human rights. The right to sport should therefore be understood holistically, both in terms of its constituent parts, and also its relationship to the implementation of the different basic rights. As argued in the previous section, each element of this emerging right would be mutually linked and reinforced, and when realized, would contribute to enriching the lives of people. Playing and participating in sport activities would be understood as essential to the health, well-being, and education of society. Nevertheless, it could be placed in the more general context of the community’s cultural life, by contributing to personality development and the sense of belonging to a community.

The problem of treating sport as a right does not seem to be its legal existence, or the possibility of regarding it as a human right; it would, rather, be the definition of its scope that would be generic and essentially undetermined. Some authors have argued that the lack of a clear universal definition of sport has contributed to children’s right to play being referred to as “the forgotten article of the ICRC”.¹⁴⁶ Without a clear definition of the preconditions and characteristics of sport as a human right, it is difficult for public and sporting authorities to ascertain whether participation in sporting activities is functional to the implementation of the basic rights. Similarly, without consensus on a definition, or agreement on universal criteria of sport as a human right, it is difficult for public and sporting authorities to know whether the right to sport is being upheld. Having clear and operational criteria that universally separate sport as a human right from other non-sporting pastime activities is crucial to ensure that public and sporting authorities uphold the right to sport. It is also essential to avoid a dangerous inflation of rights, according to the warning expressed by Philip Alston almost 40 years ago against conjuring up an ever-expanding list of new human rights.¹⁴⁷

This chapter has argued that the notions of personal autonomy and interpersonal relations—which emerged in the Friend and Countryside Alliance v. the United Kingdom case—may be used as fundamental criteria to define the scope of sport as a human right. In the ‘age of rights’, recognition of the claim to “inclusive, adapted and safe opportunities to participate in physical education, physical activity and sport” would be regarded as ‘valid’ by moving from the ‘minimal social function’ of sport indicated in the previous discussion. While the right to health could be implemented in several other ways, participating in particular sporting activities can be seen as essential to the definition of one’s identity. In this sense, it can be argued that the right to participate in cultural life, regarded as the right to freely construct one’s personality, would play a central role in defining the right to sport. The right to education and health would be complementary or supporting in nature; the right to education would be complementary in relation to the scope of the right to sport, sharing with the right to participate in cultural life the fundamental aim of the full development of the human personality.

Pursuant to this approach, it could be deemed that all sportspeople who are (or would like to be) members of SOs, should enjoy the right to sport; considering that membership of an association, and participation to activities collectively, could affect personal autonomy and interpersonal relations. Vis-à-vis the sporting authorities, every sportsperson would be entitled to demand respect of the principle of non-discrimination and protection of their health and safety; the right to freely construct one’s personality would be of capital importance. For example, in the aforementioned case of the athlete Semenya, this chapter emphasized that taking into account the right to health, the exclusion from a given competition may be regarded as “necessary, reasonable and proportionate” to ensure fair competition in women’s sport. The athlete’s right to health would not be compromised, since theoretically there are several other ways in which this right can be achieved even without participation in particular collective sport events. By contrast, moving prima facie from the right to participate in cultural life, in order to assess the claim of the athlete to participate in sporting events, it could be argued that her right to freely construct her personality would be irremediably compressed; without taking unjustified medication and maintaining the essential characteristics that define her identity, it would preclude her to participate in events which have given an important meaning to her existence.¹⁴⁸

For sportspeople that practice in a casual and individual way, evaluating on a case-by-case basis is all the more necessary. According to the reasoning of the ECtHR in the Friend and Countryside Alliance v. the United Kingdom case, we could assume that, for example, amateur and non-professional skiers, who do not participate in competitions organized by traditional SOs, would not enjoy the right to sport. Skiing would not be a sporting activity that may be regarded as a human right, because it is “too far from the personal autonomy”, and the interpersonal relations that it implies are “too broad and indeterminate in scope”.¹⁴⁹ Public and sporting authorities would clearly have the obligation to guarantee safety and health of sportspeople practicing this sport, however, derived from the right to health, skiers could not expect a right to enjoy this sport. It could be noted that this example is open to a different interpretation if we consider, in a separated way, the right to health as a basic right: we could argue that skiing is a sport that contributes to mental and physical wellbeing, and accordingly, public and sporting authorities should be ‘obliged’ to plan and provide ski facilities. This interpretation is extremely generic and inaccurate from a legal perspective, and indeed lends support to those who warn against the proliferation, inflation, or dilution of human rights. This would also confirm the idea that the basic rights of the emerging right to sport should not be considered separately in order to recognize a specific claim as valid.

It could also be argued that the recognition of the right to sport appears particularly significant to guarantee the effective legal protection of human rights in a sporting context. The several violations related to access to sport, mentioned in the introduction of this chapter, are in part linked to the uncertain and contested status of human rights standards in sporting contexts, due to the private nature of SOs and the transnational dimension of the sport legal order. This has resulted in a situation of legal uncertainty and different degrees of protection, and led to an inadequacy in sportspeople’s protection. By enhancing the unity of fragmented claims founded on a plurality of legal instruments, it could be assumed that the right to sport might have the legal status of the ‘right of rights’, since it would provide the means whereby sportspeople could ultimately enact and uphold all their other rights. In situations where the application of human rights standards are contested, the right to sport would provide a direct legal source for their application. If the claim to participate in specific physical and sporting activities is recognised as a valid human right, enshrined in the Olympic Charter, we could assume that international and European fundamental standards should also be applied in such a situation (in particular, the universal principle of gender equality, non-discrimination, and social inclusion in and through sport).

The ESpC has significantly contributed to the recognition of sport as a human right, by including for the first time the right to culture among the essential elements of the legal construct of the right to sport. In its form of soft law, it “may facilitate reaching a political consensus, bring [the issue of sport as a human right] into the international agenda, define the area of international concern, and provide guidelines for behaviour that may generate the requisite practice for a rule of international law”.¹⁵⁰ A topic as complex as the human right to sport deserves such a meaningful and clear recognition. However, if such recognition is to be granted, it must be legally sound. Only a legally justified right to sport can also be politically compelling. Finally, it should be noted that the criteria of personal autonomy and interpersonal relations require case-by-case evaluation, which is not immune to criticism and unclear points.¹⁵¹ However, these criteria make it possible to answer the essential ethical question that underpins every human right; namely, why participation in sport should be considered an inherent right of the human being. Indeed, as Amartya Sen has argued, “human rights can be seen as primarily ethical demands”,¹⁵² and that they allow for “immediate use of the colossal appeal of the idea of human rights to confront intense oppression or great misery, without having to wait for the theoretical air to clear”.¹⁵³