Abstract

Paulo David has written this book from the viewpoint of someone who was once a member of the Swiss under 21 hockey team, later a sports journalist and now the Secretary of the Committee on the Rights of the Child. Based mainly on old research, facts and information David sets out his argument for looking at youth participation in sport from the new angle of rights as laid down in the UN Convention on the Rights of the Child (CRC).

The focus of David’s book ‘is limited to the respect of rights and it therefore emphasises violation of those rights: consequently it reflects only one aspect of a wider, more positive context’ (p.5). However, while David may have strong moral and ethical reasons for sports individuals and organisations to follow the principles laid out in the CRC, his argument for the CRC to be legally binding on them appears to be flawed.

Part I of David’s book covers consideration of competitive sport for young people from the human rights perspective. Part II questions whether the CRC principle of the ‘best interests of the child’ (Art 3(1)) is compatible with early involvement by young people in sport, with Part III discussing the abuse and violence some young people suffer while participating in sport. The subject of Part IV is whether competitive sport can be considered child labour for some young athletes and what part commercial interests and the sale and trafficking of children play in this. Part V is an analysis of whether young athletes are treated with dignity, while Part VI questions the responsibility of adults in respecting the rights of young athletes. The book concludes with Part VII laying out some key measures to improve the guarantee of the human rights of young participants in competitive sport.

David’s Argument

David argues that his book does not debate the value of sports competitions, nor advocate an end to them. However, he estimates ‘very roughly’ that the human rights of 30% of young athletes are challenged by their participation in sport. For David human rights do provide an ethical and sustainable form of competitive sports system, and ‘by its very nature’ it is these 30% that his book focuses on (p. 7). He suggests that, although the CRC has raised awareness about violations of children’s rights in ‘a wide spectrum of groups in society from families to schools, courts to labour unions, associations to public authorities. ... amazingly, one of the few areas - if not the only one - that has yet to integrate international child rights norms and standards is competitive sport’ (p. 5). He argues that respecting human rights is not an option for sports authorities but an obligation and that the CRC could help to reduce the number of young athletes at risk of human rights violations in it.

In order to promote and protect the rights of young athletes David suggests that the CEC’s ‘standards and norms need to be fully integrated into all sporting rules, by-laws, regulations, administrative and court decisions, policies and programmes and at local, national, regional and international levels’ (p. 29). There should be periodic and independent monitoring of all sports programmes, centres and institutions, especially where intensive training takes place. More generally, the behaviour of coaches, parents, officials and all others involved in training programmes and games should be supervised on a regular basis by sport teams, clubs and associations.

He continues by suggesting that both public and private authorities need to ensure that all sports teams and centres have established mechanisms for young athletes to access and file individual complaints easily; and should guarantee that the complaints are properly addressed. In support of his argument of the exploitation of young people in competitive sport David gives examples ranging from intensive training and child abuse (p. 55, American gymnast Dominique Monceanu and her father); sexual abuse and violence (p. 97, Dutch female judokas abused by their coach); trafficking (p.176, Pakistani children as Bedouin camel racers); and exploitation by sponsors (p.43 American Ashley Harkleroad’s ‘very revealing, very tight shorts and a midriff-bearing top’). However, while there is no doubt that there is exploitation, abuse and harassment of young people in some areas of sport, David’s argument for CRC principles to be legally binding on sports organisations appears to be flawed. 

The Convention on the Rights of the Child

Taking David’s first point that of it being ‘amazing’ that competitive sport is ‘one of the few areas - if not the only one - that has yet to integrate international child rights norms and standards’. He suggests a reason for this are long standing, widespread practices and beliefs in the sports world which includes:

the failure of the human rights and sporting communities to interact; both are poorly informed of the other’s activities.... Discussions of the rights of athletes often overlooks the human rights of these individuals.... Sports institutions which are traditionally self regulating and independently financed, have tended to brush aside any problems and been able to escape scrutiny or questions of accountability (p. 6).

However, although this may well be accurate, what also needs to be taken into account is time scale. According to David the mistreatment of young people in sport is not new. He gives the example of Ancient Greece where children took part in sports competitions from an early age ‘and little attention was paid to possible negative effects’. Also, in the sixth century BC:

child athletes, aged about 12 years old were selected and sent to sports schools to become professional athletes. Boys - and also girls in some sports - had to endure intensive training, follow strict discipline and diets, take drugs and obey the sexual demands of their trainers. In the fifth century BC, both child and adult athletes changed clubs for a better salary, even if it meant changing their nationality (p. 6).

Therefore, sport and the participation, and potential for the abuse and exploitation, of young people in it is not a new development. On the other hand, human rights in general, and the rights of the child in particular, is a twentieth century development. Indeed it was not until 1959 that the UN first agreed on a Declaration of the Rights of the Child.

Also debatable is David’s legal argument for the CRC to apply to competitive sport in the first place. Not because there is no express reference to sport in the CRC, what is in doubt is his assertion that sporting entities and individuals are bound by it. Having admitted that the CRC ‘is an international public law treaty’ David goes on to say that ‘[b]y ratifying it, states have agreed to reform their legal system accordingly and have committed to adopt the policies and programmes and establish the institutions and mechanisms necessary to ensure that all children and adolescents are able to profit from their human rights’ (pp. 20-21). This is undoubtedly correct, however, he then begins his argument for sports entities to be bound by it by saying:

increasingly the human rights community is realizing that private for- and non-profit associations - including private sports entities - can have some obligations under legally binding international human rights Treaties .... this level of responsibility is sometimes referred to as the ‘horizontal effect’, i.e. the effect that human rights have on relations between private parties, as opposed to the effect they have on the vertical level between the individual and the state (p. 27).

He continues, ‘[s]tate authorities are responsible for guaranteeing children’s human rights and are directly accountable under domestic and international law .... [r]esponsibility cascades down from the top.’ David then invokes Articles 5 and 18 CRC to argue that ‘[t]he Convention clearly engages non-state actors’ as both Articles recognise that parents or legal guardians have the primary responsibility for the upbringing and development of the child (p. 27). For David, it follows that although:

[t]raditionally, human rights obligations imply that the state and its agents are under obligation to prevent and refrain from performing specific acts ... in order to protect the rights of individuals.... In the specific field of children’s rights, the pyramidical approach of human rights between public and private entities is of a slightly different nature, as the child is not considered to be legally autonomous by the state. Therefore a third party (usually but not necessarily, the parents) has the primary responsibility for the upbringing and development of the child, including guaranteeing his or her human rights. As discussed throughout the book, in this legal context, private parties in charge of the care of children, such as sport authorities, have clear human rights obligations under the Convention (pp 257-258).

However, none of the Articles in the CRC can bind individuals and non-state parties because the CRC is, as David says, ‘an international public law treaty’. As with all international Treaties it has to be incorporated into national law before it can bind anyone other than the state signatory. This is demonstrated in the UK in the cases of British Airways v Laker Airways [1985] AC 58 and Re P (Children Act: diplomatic immunity) [1998] 1 FLR 624 at 626) where it was held that without incorporation by statute into English domestic law, courts are not bound to apply international Treaties.

Conclusion

David has produced an interesting book, which does offer critical analysis of some very real problems within youth sport. It also breaks new and important ground in its treatment of the moral and ethical issues of youth participation. In looking at sport, be it competitive or otherwise, from a human rights perspective David reached the conclusion that: ‘[i]t is simply unacceptable that children who voluntarily engage in a sporting activity run the risk of being given illegal drugs or being physically ill-treated, sexually abused or trafficked’ (p. 263).

The answer for David is the CRC, as one of its main objectives is to recognise children as ‘... full subjects of rights’ (p. 192) and because the ‘[v]iews of young athletes are rarely taken into account when decisions affecting their own life and career are taken’ (p. 194), ‘[t]o ensure adequate protection, adults must be ... ready to listen to young athletes and act in their interests’ (p. 195). David argues that the CRC could help to reduce the number of young athletes at risk of human rights violations. However, in order for this to happen ‘ [f]rom local to international level, public and private authorities need to ensure full compatibility of all bodies of relevant legislation, sporting rules, regulations and by-laws with the provisions and principles of the [CRC]’ (p. 258). He reaches this conclusion despite the fact that ‘the use of the human rights approach to guarantee the rights of all athletes and achieve justice in the sporting world has been the object of very little research’ (p. 254). This is not a valid reason to dismiss out of hand his call for sport in general to have more regard to human rights in its dealings - whether that be in training, competing, simply taking part or any administrative processes – and in this way David’s argument does appear to have strong ethical and moral justifications. However, the practicalities of it can be questioned.

As has been discussed above, despite David’s assertion that in a legal context sports authorities have clear human rights obligations under the CRC, in fact the CRC is an international law convention that does not have the capacity to apply to non-state parties. Also, it only applies to the states signatory to it, all of which have differing cultures, customs and legislation. They range from poorer developing countries to the much richer western states, and do not include the United States of America a major and rich participant in competitive sport around the world. How practical is it going to be ensuring that ‘full compatibility of all bodies of relevant legislation, sporting rules, regulations and by-laws with the provisions and principles of the [CRC]’ is to be obtained? Especially without co-operation of the USA. Who, or what, will fund this full compatibility? In the UK sport is run mostly by volunteers; are they to bear the costs? What about the poorer developing nations? With funding so short when it comes to the sick and starving, will the UN set money aside just for sport?

David also suggests that there are those within the human rights community who believe in the horizontal effect of human rights law; however, he provides no evidence to support this suggestion. On the other hand, there is evidence from the UK courts that the principles in the CRC are only applicable to the States Parties to it. It has no horizontal effect. International human rights conventions that bind states cannot, in turn, bind non-state actors or individuals.

With human rights in general playing a more prominent role in the actions of more affluent countries, it is understandable that there are calls for young sports participants to be included. At first glance perhaps the CRC does appear to be ideal for the task in question. Especially to the Secretary of the Committee on the Rights of the Child. However, while the initial challenge may be simply the recognition by both public and private entities of their obligations towards young athletes, an even bigger challenge may be convincing them that they should be legally bound to do this by international, rather than national, law.