By W.J. (Jorrit) Westerhof, Research Master Student.

During its 18 December 2021 press conference, the Dutch government announced a new set of lockdown measures due to the rapid increase of COVID-19 cases in the Netherlands. These measures included a prohibition of all organised sports activities for persons above the age of eighteen years.[i] The desirability of this measure was heavily contested within Dutch parliament. Some members of parliament even decided to file a motion, asking the cabinet to research whether and under what circumstances sports activities could be excluded from the new measures. They argued that the value of physical exercise is not limited to the physical aspect; it also has an inherent emotional, social, personal, intellectual, and financial value.[ii] Other members of parliament, however, argued that research was not necessary and wanted the government to take immediate action. They filed their own motion, in which they asked the cabinet to immediately exclude sports activities from the measures.[iii]

The positive effects of sports activities on public health are undisputed.[iv] During the COVID-19 pandemic, however, sports activities do not only positively affect public health; they also form a risk for public health, since those activities might lead to the spread of COVID-19. It is clear that positive obligations under human rights law require states to take the necessary measures to effectively protect the life and health of citizens during a pandemic.[v] But is there also a human right to physical exercise based on global human rights treaties? And what could such a right mean for the proportionality of a measure prohibiting all organised sports activities?

A right to physical exercise?

A right to physical exercise can be found explicitly in several international soft law documents. For instance, it is mentioned in the 2015 International Charter of Physical Education, Physical Activity and Sports, adopted by UNESCO’s General Conference.[vi] Secondly, it is referred to by the WHO on several occasions, including in the WHO Global Action Plan on Physical Activity 2018-2030.[vii]

Although less explicitly, a right to physical exercise also follows from more well-established human rights treaties. The most important human right in this regard is, naturally, the right to health, as laid down in Article 12 of the ICESCR, Article 24 of the CRC,[viii] and Article 25 of the CRPD. The right to health entails the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The UN’s Special Rapporteur on the Right to Health and the UN General Assembly have stressed that the right to health entails an obligation of states to reduce the extent to which individuals adopt unhealthy or risky lifestyles, such as physical inactivity.[ix] In order to ensure the effective enjoyment of this right, states need to take into account four criteria: availability, accessibility, acceptability and quality; the so-called AAAQ-criteria.[x] Especially with regard to the availability criterion, a prohibition of organised sports activities poses a serious problem for the effective enjoyment of the right to health, and thus for the proportionality of that measure. The other AAAQ-criteria also raise important questions regarding the proportionality of the prohibition of organised sports: is physical exercise still (physically) accessible when sports clubs have to close their doors? Is it acceptable if physical exercise is only possible in an unorganised, small-scale context? And will the quality of physical exercise decrease when it is not organised by professional sports instructors?

Other human rights that can be interpreted to entail a right to physical exercise include the right to rest and leisure (Article 7 ICESCR, Article 31 CRC), the right to participate in recreational activities (Article 13 CEDAW, Article 30(5) CRPD), and the right to education (Article 13 ICESCR, Article 29(1)(a) CRC).[xi] With regard to Article 31 of the CRC – the right to rest and leisure – the Committee on the Rights of the Child noted in a General Comment that physical activity and participation in sports is of fundamental importance to children.[xii]

From the above, it is clear that a right to physical exercise might be of fundamental importance in realising other, more well-established rights, such as the right to health. In realising those rights, states have an obligation to respect, protect, and fulfil: they may not infringe the right (respect), must act to prevent infringements of the right by others (protect), and must adopt appropriate measures to realise the right (fulfil). [xiii] Most important in the context of a prohibition of organised sports activities are the duties to respect and fulfil, since such a measure is clearly in contradiction with those obligations. 

States thus have an obligation to take measures that effectively protect, for example, their citizen’s right to health. In the context of an outbreak of an infectious disease, this means that states are obliged to prevent further spread of the disease through public health measures. The CESCR even confirmed that this obligation is of a comparable priority to that of a core obligation.[xiv]

A ban on organised sports activities: a disproportionate measure?

Prohibiting organised sports activities arguably has tremendous negative public health effects. For example, while the Dutch restrictive measures regarding sports activities were in force, a huge drop in physical activities and a decrease of fitness as well as mental and physical resilience was seen among Dutch citizens.[xv] It is, however, well-defendable to say that taking measures against the spread of COVID-19 was very urgent, and that the spread of COVID-19 posed a more acute risk to public health than a drop in physical activities among Dutch citizens. Not taking measures might even amount to an omission that constitutes a violation of the right to health.[xvi] This, however, does not mean that there are no limits to the restrictiveness of measures aimed at slowing the spread of infectious diseases; such measures must be necessary, which means they must be proportional and that there may be no less restrictive measure available that will have the same effect.[xvii] In this case, one could reasonably claim that there were indeed less restrictive means available for protecting citizens against the spread of COVID-19. The government could, for example, have chosen to allow organised sports activities under the condition that a hygiene standard and a physical distance protocol were followed.

In conclusion, to ensure the legality of future infectious disease control measures, it is pertinent that states explicitly consider a right to physical activity when adopting and designing those measures. A (near) complete prohibition on organised sports activities – such as the one in the Netherlands – is a disproportionate restriction of the right to physical exercise and thus arguably a disproportionate restriction of well-established rights, such as the right to health. Relating to the required necessity, more creative measures, such as allowing organised sports activities under certain conditions, are likely less problematic when balancing the right to physical exercise with the state’s obligation to protect citizens from infectious diseases.[xviii]

[i] Rijksoverheid, “Letterlijke tekst persconferentie coronavirus minister-president Rutte, minister De Jonge en OMT-voorzitter Van Dissel (18 december 2021)” https://www.rijksoverheid.nl/documenten/mediateksten/2021/12/18/letterlijke-tekst-persconferentie-coronavirus-minister-president-rutte-minister-de-jonge-en-omt-voorzitter-van-dissel-18-december-2021 accessed on January 9 2022.

[ii] The motion was filed by members of three coalition parties Christen-Democratisch Appèl, Volkspartij voor Vrijheid en Democratie, and Democraten 66.Kamerstukken II. Staatscourant, 25295, 1681.

[iii] This motion was filed by members of three opposition parties: Forum voor Democratie, Groep Van Haga, and DENK.  Kamerstukken II. Staatscourant, 25295, 1685. The first motion was adopted by a great majority, while the second motion was rejected, see: Tweede Kamer, “Motie van het lid Van den Berg c.s. over onderzoeken onder welke randvoorwaarden sport en bewegen toegevoegd kunnen worden aan de lijst van essentiële sectoren” https://www.tweedekamer.nl/kamerstukken/moties/detail?id=2021Z24086&did=2021D51147 accessed on January 9 2022; Tweede Kamer, “Motie van het lid Jansen c.s. over sportscholen, - verenigingen en -faciliteiten tot de essentiële sectoren rekenen” https://www.tweedekamer.nl/kamerstukken/moties/detail?id=2021Z24090&did=2021D51151 accessed on January 9 2022.

[iv] See for example: D.E. Warburton and S.S. Bredin, “Health Benefits of Physical Activity: A Systemic Review of Current Systemic Reviews”, Current Opinion in Cardiology 32/5 (2017), pp. 541-556; I.M. Lee, E.J. Shiroma, F. Lobelo et al., “Effect of Physical Inactivity on Major Non-Communicable Diseases Worldwide: An Analysis of Burden of Disease and Life Expectancy”,  Lancet 380/9838 (2012), pp. 219-229; G. Lippi and F. Sanchis-Gomar, “An Estimation of the Worldwide Epidemiologic Burden of Physical Inactivity-Related Ischemic Heart Disease”, Cardiovascular Drugs and Therapy 34 (2020), pp. 133-137.

[v] See for example: Article 12(2)(c) ICESCR.

[vi] UNESCO, International Charter of Physical Education, Physical Activity and Sport (Paris: UNESCO, 2015).

[vii] World Health Organization, Global Action Plan on Physical Activity 2018-2030: More Active People for a Healthier World (Geneva: World Health Organization, 2018).

^[viii] Article 24 of the CRC is an important part of the legal framework regarding a right to physical exercise. It is noteworthy, however, that the CRC defines ‘child’ as ‘every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’ (Article 1 CRC). The Dutch prohibition of organised sports events, however, only concerns sports events for persons above the age of eighteen years. Thus, the CRC was not violated and is of somewhat less relevance with regards to the prohibition. Nevertheless, I will continue to mention the CRC, because it provides necessary insights on the existence of a right to physical exercise.

[ix] Human Rights Council, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, UN Doc. A/HRC/32/33 (2016); United Nations General Assembly, Political Declaration of the High-level Meeting of the General Assembly on the Prevention of Non-communicable Diseases, UN Doc. A/RES/66/2 (2011).

[x] Committee on Economic Social and Cultural Rights, General Comment No. 14, UN Doc. E/C.12/2000/4.

[xi] S. Messing, M. Krennerich, K. Abu-Omar, et al, “Physical Activity as a Human Right”, Health and Human Rights Journal 23/2 (2021), pp. 201-212.

[xii] Committee on the Rights of the Child, General Comment No. 17, UN Doc. CRC/C/GC/17 (2013).

[xiii] Inter-Parliamentary Union and United Nations, Human rights: Handbook for Parliamentarians No. 26 (Geneva: Inter-Parliamentary Union, 2016).

[xiv] Committee on Economic Social and Cultural Rights, General Comment No. 14, UN Doc. E/C.12/2000/4, para. 44(c).

[xv] See for example: NOC*NSF, “Landelijke Sportdeelname Index” https://nocnsf.nl/sportdeelnameindex, accessed on March 16 2022; RIVM, “Feiten en cijfers over sport en bewegen”  https://www.sportenbewegenincijfers.nl/kernindicatoren/beweegrichtlijnen accessed on March 16 2022; RIVM, “Welbevinden en leefstijl tijdens de coronacrisis” https://www.rivm.nl/gedragsonderzoek/maatregelen-welbevinden/welbevinden-en-leefstijl accessed on March 16 2022.

[xvi] Committee on Economic Social and Cultural Rights, General Comment No. 14, UN Doc. E/C.12/2000/4, para. 49.

[xvii] Committee on Economic Social and Cultural Rights, General Comment No. 14, UN Doc. E/C.12/2000/4, para. 28 and 29.

[xviii] Office of the United Nations High Commissioner for Human Rights, Compilation of Statements by Human Rights Treaty Bodies in the Context of COVID-19 (2020).