By Guest Writer Aleydis Nissen
The United Nations (UN) Committee on Social, Economic and Cultural Rights has historically sidestepped the right to access sports in its concluding observations. Yet, the Committee’s latest recommendations to Palestine and France mark a significant milestone in recognizing the intersection of sports and human rights. As the global landscape evolves, this development challenges traditional notions of sports autonomy, signaling a crucial step towards ensuring inclusivity and the right to access sports.
A Right to Access Sports for All
Unlike other UN core human rights conventions, such as those dedicated to the rights of women and people with disabilities, the Covenant on Social, Economic and Cultural Rights (CESCR) (adopted in 1966) does not explicitly include the right to access sports. Nevertheless, the Committee that monitors this covenant recognizes this right as a derivative of the right to cultural life (as outlined in Article 15 of CESCR), particularly highlighted in General Comment 21 (2009).
Monitoring the Right to Access Sports
Up till date, the CESCR Committee has been reluctant to refer to the right to access sports in its monitoring tool, known as “Concluding Observations.” While the committee has occasionally (and increasingly) asked States Parties to comment on this right, it has not adopted Concluding Observations on this right. The Committee has limited itself to addressing violations of the right to housing, in the case of individuals who have been displaced or evicted due to the organization of large sporting events. Yet, at the end of 2023, the Committee made a groundbreaking move. It included references to the right to access sports for professional, as well as amateur athletes, in its Concluding Observations to Palestine and France.
A Major Shift
The Committee, addressing Palestine, emphasized the importance of ensuring that companies awarded public contracts do not unduly raise prices at the detriment of individuals’ ability to afford ‘cultural activities, including sports’, in line with its General Comment 24 on state obligations, in the context of business activities (2017). The Committee told France to ensure that the rules concerning the organization of the Paris 2024 Olympic Games both respect and are in conformity with the right to take part in cultural life. This includes sports as indicated in General Comment 21. The Committee also recommended that France ensure compliance with human rights due diligence in the organization of the Olympic Games, including in the rules and regulations of every sport. This allows for the identification and mitigation of the risks for economic, social and cultural rights. All athletes, regardless of racial or ethnic origin, religion, sexual orientation and/or gender identity* should be able to participate and compete in the Olympic Games in complete safety and without discrimination. It is up to France to watch over this matter, to the best of its abilities as the hosting country. The Committee is, in particular, concerned by the fact that hijab-wearing athletes on the French team are not allowed to compete, though foreign athletes are, during the upcoming Olympic Games.
Sports Autonomy
This recent shift demonstrates the CESCR Committee’s willingness to engage in debates about the autonomy of the sports legal system. Rooted in International Olympic Committee regulations, and recognized by intergovernmental organizations (including the UN, the Council of Europe and the European Union), this autonomy is facing increased scrutiny in an era of heightened commercialization. Sports organizations traditionally enjoyed considerable autonomy to regulate sports, safeguarding its proceedings from external political and other influences. This system “protects itself against the intrusion of state law”, and in return, guarantees “the responsibility for ensuring that principles of good governance be applied.”
In today’s commercialized world, this autonomy is increasingly challenged in institutional debates and courtrooms as outside observers see that human rights, and other principles of good governance, are not always respected in the world of sports. In 2020, former UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein and Rachel Davis also emphasized the expectation that sports bodies, including the International Olympic Committee, “will increasingly be expected to also respect international human rights standards” to continue enjoying their autonomy privileges. The CESCR Committee’s two recent Concluding Observations align with this call for stronger synergies between sports regulations and the protection and respect of human rights.
What do you think? Did the CESCR Committee make a leap forward, or is it too late to the party? Or did it intrude upon the autonomy of sports?
* The CESCR Committee uses the wording ‘origine raciale ou ethnique, leur religion, leur orientation sexuelle et leur identité de genre’ (emphasis added (the word “et” means “and” in English)) in the original French concluding observations, and the wording ‘racial or ethnic origin, religion, sexual orientation or gender identity’ (emphasis added) in the English translation. Arguably the wording and/or best captures the fact that discrimination needs to be considered from an intersectional perspective.