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The UN Convention on the Rights of the Child - A Commentary edited by Tobin, John

Art.31 The Right to Rest, Leisure, Play, Recreation, and Participation in Cultural Life and the Arts

Gerison Lansdown, John Tobin

From: The UN Convention on the Rights of the Child: A Commentary

Edited By: John Tobin

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 14 December 2019

Subject(s):
Human rights

(p. 1195) Article 31  The Right to Rest, Leisure, Play, Recreation, and Participation in Cultural Life and the Arts

  1. 1.  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.

  2. 2.  States Parties shall 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 culture, artistic, recreational and leisure activity.

(p. 1196) I.  Introduction

A.  A Collection of Legitimate and Innovative Rights

At first glance, article 31 could well be considered the Achilles’ heel of the Convention on the Rights of the Child (‘CRC’, ‘the Convention’), given its potential to be used by detractors to illustrate the Convention’s alleged lack of universality or even the illegitimacy of rights discourse. For some commentators the idea of children having rights to play, leisure, recreation, rest, and participation in cultural life and the arts may simply be a luxury which many developing states can ill afford.1 Moreover, in a world where violence and poverty abound, the use of human rights discourse to secure such entitlements for children could be considered both misplaced and harmful to the credibility of the entire corpus of human rights law.2 However, the Convention drafters were clearly not dissuaded by such potential criticisms and imposed an obligation on states to recognize these rights.

Unfortunately, states’ commitment during drafting to the rights under article 31 has not been matched by subsequent conduct. Indeed, it has been referred to as the ‘forgotten right’3 and the Committee on the Rights of the Child (‘CRC Committee’, ‘the Committee’) has observed that it is one of the most neglected rights in the reporting process.4 In marked contrast, there is evidence of a growing interest in article 31 among advocates and scholars, at least with respect to the right to play.5 This trend appears to be driven by the expanding body of literature examining the developmental benefits of play. There is also the prospect that the CRC Committee’s 2013 General Comment on article (p. 1197) 31 (‘CRC GC 17’) will encourage this trend and lead to greater engagement and interest with the rights in article 31.6

Significantly, the adoption of CRC GC 17 represents a major departure from the Committee’s own ambivalence with respect to article 31, which until 2013 it had largely neglected.7 The objectives set out in CRC GC 17 demonstrate the Committee’s determination to recast the conception of article 31 into one of the most innovative and potentially radical provisions of the Convention. According to the CRC Committee, CRC GC 17 was developed to ‘raise the profile, awareness and understanding among states of the centrality of the rights in article 31 in the life and development of every child’.8 Thus, for the Committee, play, recreation, rest, leisure and cultural life are not optional extras, rather they serve ‘to enrich the lives of children;’ they ‘describe conditions necessary to protect the unique and evolving nature of childhood’ and ‘[t]heir realisation is fundamental to children’s entitlement to optimum development … [,] the promotion of resilience and to the realisation of other rights’.9 Importantly, the rights protected in article 31 have intrinsic value and worth. However, the Committee has recognized that the enjoyment of these rights also has the potential to play a profound instrumentalist role in the contributing to a child’s health, well-being, and development, as the current literature now demonstrates.10

B.  The Relationship between Article 31 and Other Convention Articles and International Instruments

The instrumental role of the rights recognized in article 31 renders this provision relevant to and interdependent with many of the rights under the Convention. The CRC Committee has certainly taken this view and explained, for example, that the right to freedom of expression under article 13 is ‘fundamental to the right to participate freely in cultural and artistic activity’,11 while the right to freedom of association under article 15 (p. 1198) is relevant to children’s ‘right to exercise choice in their friendships, as well as membership of social, cultural, sporting and other forms of organisation’.12 Play is also relevant to the right to education under articles 28 and 29, given research which indicates that play is an important means through which children learn.13 Furthermore, play and artistic expression have been used effectively to secure the right to reintegration under article 39.14 Thus, there is increasing awareness that, far from being of marginal importance, article 31 has the potential to play a major role in contributing to the realization of other Convention rights.

Article 31 is structured around three clusters of rights—the rights to rest and leisure; the rights to engage in play and recreational activities; and the rights to participate freely in cultural life and the arts. Each of these traces their history to earlier international instruments—the rights to rest, leisure, cultural life and the arts are found, for example, in the Universal Declaration of Human Rights (‘UDHR’) and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’),15 while the rights to play and recreation are included in the 1959 Declaration on the Rights of the Child.16 The formulation adopted under article 31, however, is unique in international law17 and differs from other instruments in which, for example, rest and leisure are defined in opposition to work. Thus, when interpreting the rights under article 31, there is a need to ensure that the adult-centric understanding of terms in other instruments is not assumed relevant or applicable to a child-centred understanding of these same terms as they appear in article 31 of the Convention.

C.  Key Issues

It might be possible to justify the rights under article 31 on the basis that they represent valid and justifiable interests to which all children should be entitled because of their intrinsic value,18 or because the realization of these rights aligns with children’s developmental needs.19 However, there remains the challenge of offering an understanding of the rights protected under article 31 which is ‘action guiding’20 and ‘socially manageable’21 in the sense of being able to define with precision the scope of each of the entitlements and the nature of states’ obligations to protect these entitlements. The text of article 31 (p. 1199) certainly does not specify the amount of leisure, play, rest, or recreation which children ought to enjoy or the form which such activities should take. Nor does it offer any details with respect to the measures required of states to satisfy their obligations to ‘recognize’, ‘respect and promote’, and ‘encourage’ the provision of appropriate and equal opportunities to enjoy these rights.

Fortunately, CRC GC 17 represents a genuine and well-conceived attempt to respond to these interpretative challenges. More importantly, it demonstrates that it is possible to offer guidance with respect to the discrete meaning of each of the rights to rest, leisure, play, recreation, and participation in cultural life and the arts. It also outlines an extraordinarily detailed and comprehensive list of the measures which states are required undertake in order to fulfil their obligations under article 31. This list will hopefully encourage discussion and invoke criticism as to legitimacy of the measures demanded by the Committee. However, what is clear from the Committee’s work is that it is possible to present a persuasive account of the meaning of the rights under article 31.

Moreover, from a practical perspective the obstacles to the implementation of the Committee’s vision for article 31 are often attitudinal rather than based upon a scarcity of resources. For example, these attitudes include ‘excessive pressure for educational achievement’,22 linked to the rise of neo-liberal values which prioritize economic outcomes and devalue activities such as play, leisure, and recreation23 and adults’ aversion to risk-taking for children, which leads to greater control over children’s free time.24 States clearly have an obligation to take reasonable measures within the scope of their resources to create the infrastructure necessary for children’s enjoyment of their article 31 rights. However, states also have an obligation to create the appropriate enabling environment by countering attitudes that inhibit children’s capacity to enjoy those rights.

II.  Article 31(1): The Rights to Rest, Leisure, Play, Recreational Activities, and Cultural Life

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.

A.  Scope of the Rights

1.  Recognizing Interdependence

According to the CRC Committee:

[a]rticle 31 must be understood holistically, both in terms of its constituent parts and also in its relationship with the Convention as a whole. Each element of article 31 is mutually linked and reinforcing and when realised serves to enrich the lives of children.25

(p. 1200) Thus, the CRC Committee has explained that:

environments in which play and recreational opportunities are available to all children provide the conditions for creativity; opportunities to exercise competence through self-initiated play enhances motivation, physical activity and skills development; immersion in cultural life enriches playful interactions; rest ensures that children have the necessary energy and motivation to participate in play and creative engagement.26

Despite the interdependent nature of the rights under article 31, the Committee has formed the view that each right retains an essential core that is unique to the particular right in question. Other commentators have tended to take a different approach by treating, for example, play and recreation27 or rest and leisure28 as largely synonymous. However, the Committee’s approach is warranted given that the text of article 31 supports the idea of each term having an independent albeit overlapping meaning.

2.  The Right to Rest

The right to rest has its origins in article 24 of the Universal Declaration on Human Rights which provides that ‘[e]veryone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.’29 A similar provision is found in article 7(d) of the ICESCR and reflects the ‘culmination of the historical struggle by the labour movement … to reduce working hours’.30 Thus, under general international law, the right to ‘rest’ is traditionally associated with an obligation to limit working hours and guarantee a real cessation of activities, to enable employees both to regain their strength and to enjoy leisure activities.31 Children also enjoy this understanding of the right to rest given that they too are beneficiaries not only under the Convention but also the UDHR, ICESCR, and those ILO Conventions that regulate children’s work.32 It is for this reason that the CRC Committee has encouraged states to ratify and implement ILO Conventions Nos 79, 90, 138, and 182, and urged the introduction of legislation and regulations for child employees in order to guarantee appropriate limitations on the nature, hours and days of work, rest periods, and recreational facilities, in accordance with their evolving capacities.33

(p. 1201) However, the text of article 31 contains nothing to indicate that the right to rest is intrinsically tied to work, in contradistinction to the UDHR, ICESCR, and other human rights treaties.34 Moreover, proposals made during drafting to include a reference to work were not adopted. For example, Canada sought to include the following phrase in article 31(2): ‘including making reasonable limitations on school and working hours’.35 However, this was not even discussed. Thus, an interpretation of the right to rest which conforms to the ordinary meaning of this term demands that the concept of rest not be conceived of as merely an alternative to work. It is for this reason that the Committee has defined the scope of the right in the following terms:

The right to rest requires that children are afforded sufficient respite from work, education or exertion of any kind, to ensure their optimum health and well-being. It also requires that they are provided with the opportunity for adequate sleep. In fulfilling the right to both respite from activity and adequate sleep, regard must be afforded to children’s evolving capacities and their developmental needs.36 [emphasis added]

This understanding of the right to rest differs from traditional conceptions of the right in two distinct ways. First, it extends the idea of rest as being an alternative not just to work but also to education and exertion of any kind, which might include, for example, training for a sport, practicing a musical instrument or learning a skill, such as drama or dancing. Each of these activities may actually constitute a form of leisure or recreation in their own right, but the Committee’s understanding of rest demands that participation in any form of exertion not compromise the child’s developmental needs.

Second, the Committee’s approach extends the idea of rest beyond simple respite from physical and mental activity, to an entitlement to adequate sleep. Although this conception may be seen as a devaluation of the human rights currency by some commentators, there are strong developmental reasons to justify the Committee’s approach. It is now widely accepted that insufficient and poor quality sleep has implications for children’s well-being and development.37 As the Committee itself has recognized, [w]ithout sufficient rest, children will lack energy, motivation and physical and mental capacity for meaning participation or learning’38 and there is potential that ‘[d]enial of rest can have an irreversible physical and psychological impact on the development, health and well-being of children’.39

It is important to note that the CRC Committee has not sought to mandate what constitutes ‘sufficient’ respite from exertion or ‘adequate sleep’. Nor should it do so. With (p. 1202) respect to these issues, states are accorded a level of discretion. However, this discretion remains subject to the caveat that the measures taken by states to protect the right to rest must be effective, which in turn demands that any understanding of sufficiency of respite from exertion and adequacy of rest be informed by the available evidence, rather than simply parental preferences or social expectations. Also important in this regard are the views of children themselves as to when they consider that their right to rest is being compromised. These views are not necessarily determinative but article 12 requires that they be given due weight, in accordance with age and maturity.

It is within this context that the Committee has expressed that pressure for educational achievement is, in many countries, leading to curricula and daily schedules that lack recognition of the necessity of appropriate rest.40 In its observations for Japan, for example, it expressed concern ‘that children are exposed to developmental disorders due to the stress of a highly competitive educational system and the consequent lack of time for leisure’.41 It has also explained that states must ensure that school days guarantee sufficient opportunities for rest, in accordance with children’s age and developmental needs.42

These demands are likely to invoke allegations that the Committee is seeking to impose a narrow conception of childhood, which is insufficiently sensitive to the social and cultural realities. Two points can be made in this context. First, the Convention advances a conception of childhood that seeks to balance a child’s involvement in education, work, leisure/play/cultural and rest activities, which is directed towards the child’s well-being, health and survival, and development. This model will challenge alternative conceptions of childhood in many jurisdictions, where work or education are often prioritized because of perceived instrumentalist benefits. However, upon ratification of the Convention, states accept a good faith obligation to recognize and take measures to secure the entitlements of children under the Convention.43 Second, states still enjoy a significant degree of discretion in adopting appropriate measures to ensure that the balance between a child’s involvement in education, work, leisure, and recreational activities and rest is consistent with the child’s effective enjoyment of Convention rights.

3.  The Right to Leisure

The definition of the right to leisure, which is closely associated with the rights to rest and reasonable working hours under article 24 of the UDHR and article 7(d) of the ICESCR, has been defined as an opportunity for the ‘individual to cultivate his mind and interests’44 and to enjoy the free time remaining after engaging in remunerative employment.45 (p. 1203) The idea of leisure as the opposite of paid work has been widely criticized by feminists for its failure to accommodate women’s experiences of leisure, given that many women spend their time in areas other than the paid labour force.46 The same concern applies to children, whose time is more likely to be spent in schools or unpaid employment. Thus, any definition of leisure which relies on the distinction between leisure and remunerative employment is seriously flawed. An alternative approach is to list specific activities as constituting leisure.47 But such a definition would also be problematic given that participation in a specific activity will not always amount to leisure for the person involved. Compulsory sports in school, for example, will constitute leisure for some students but not others. Thus, the subjective nature of leisure makes it difficult to define the term by reference to specific activities.

For its part, the CRC Committee has defined leisure as:

the time in which play or recreation can take place. It is … free or unobligated time that does not involve formal education, work, home responsibilities, performing other life-sustaining functions, or engaging in activity directed from outside the individual. In other words, it is largely discretionary time to be used as the child chooses.48

Leisure is therefore a time and space without obligations, entertainment, or stimulus, which children can choose to fill as actively or inactively as they wish. This approach certainly defers significant autonomy to children regarding the time which is to be identified as leisure time.

As to how much leisure a child should enjoy, the Convention and Committee are both silent. However, article 5 provides parents and guardians with the right and duty to provide guidance and assistance to children in the exercise of their rights. Thus, the principle of internal system coherence demands that children’s leisure time be determined in most cases by their parents and guardians. Article 12 demands that children’s views are informative with respect to this issue but not determinative. Moreover, children, like adults, must always exercise their rights in a manner that is consistent with the rights of other persons. Thus, it cannot be said that leisure time for children is to be enjoyed without boundaries. Despite this caveat, the thrust of the Committee’s approach appears to be justified in the sense that a child’s leisure time should be understood to involve the indulgence and pursuit of his or her own subjective interests under the direction, oversight, and assistance of parents, in accordance with the child’s evolving capacities.

4.  The Right to Engage in Play

The foresight of the drafters to insist on the inclusion of a child’s right to play should be seen as much more than an attempt to preserve a certain notion of childhood as being an idyllic period of self-indulgence and frivolity. Indeed, while anthropologists have documented play as an enduring characteristic of the human species,49 contemporary research (p. 1204) demonstrates that it has a number of positive effects on children’s development.50 It is for this reason that the CRC Committee has taken the unequivocal view that not only is play a fundamental and vital dimension of childhood, but it also contributes to children’s health and well-being and promotes ‘the development of creativity, imagination, self-confidence, self-efficacy, as well as physical, social, cognitive and emotional strength and skills’.51 In this sense, the right to play can be seen to have both a moral justification, which is linked to its intrinsic value, and an instrumental role in enabling children to realize the development of their normative agency and sense of identity.52 However, what tends to be overlooked is that the right to play also provides instrumental benefits to broader society, in the sense that it contributes to children’s health and well-being and their capacity to make a positive contribution to society.53 As the Committee has indicated, ‘play and recreation facilitate children’s capacities to negotiate, regain emotional balance, resolve conflict and make decisions’;54 skills that will enhance children’s ability to assume constructive roles in society.

Research also indicates that playfulness and associated creativity are vital skills for innovative professionals in areas such as mathematics, architecture, and science.55 Thus, it might be argued that the enhancement of play and creativity among children creates the potential for these same children to make enhanced contributions to society as adults. This is especially relevant given suggestions of a shift in the global economy from ‘knowledge based activities to creativity, innovation, entrepreneurship and imagination’.56 Thus, there is something both ironic and troubling by trends which suggest a narrowed focus in education, the marginalization of creativity and play,57 and a decrease in creative thinking,58 at a time when creativity and imagination are seen as the foundations of entrepreneurship and innovation within the global economy and broader society. Thus, from being childish and indulgent, engagement in sustained and meaningful play may well offer instrumentalist benefits not just for children but for society more generally.

The literature reveals the absence of a universal consensus regarding the definition of ‘play’. Indeed, most researchers preface their comments with a statement about the difficulties of defining the term.59 Despite this lack of unanimity, the Committee has defined (p. 1205) children’s play as ‘any behaviour, activity, or processes initiated, controlled and structured by children themselves; it takes place whenever and wherever opportunities arise’.60

The CRC Committee has further explained that ‘caregivers may contribute to the creation of environments in which play takes place but play itself is non-compulsory, driven by intrinsic motivation and undertaken for its own sake rather than as a means to an end’.61 According to the Committee, play:

involves the exercise of autonomy, physical, mental or emotional activity, and has the potential to take infinite forms, either in groups or alone, which will change and adapt throughout the course of childhood. The key characteristics of play are fun, uncertainty, challenge, flexibility and non-productivity. Together, these factors contribute to the enjoyment it produces and the consequent incentive to continue to play.62

Given the contentious nature of play, this definition is likely to be scrutinized. For example, does the emphasis on self-initiation and autonomy exclude the idea of play being a collaborative act between adults and children? On this issue, however, the Committee has explained that ‘[b]oth play and recreation can take place when children are on their own, together with their peers or with supportive adults’.63 The principles of fun, flexibility, lack of structure, curiosity, engagement, self-control, creativity, and the capacity for play to take infinite forms and evolve organically either in isolation or in collaboration with others, appear, however, to align with the generally accepted parameters of what constitutes play.

5.  The Right to Engage in Recreational Activities

The right to recreational activities, although intimately linked with the concepts of leisure and play, has a discrete and separate meaning under article 31. According to the CRC Committee,

Recreation is an umbrella term that describes a very broad range of activities, including … participation in music, art, crafts, community engagement, clubs, sports, games, hiking and camping, and pursuing hobbies. It consists of activities or experiences chosen voluntarily by the child either because of the immediate satisfaction provided or because he or she perceives some personal or social value will be gained by accomplishing them.64

Thus, whereas leisure is defined in terms of unallocated time available for the child to use as she or he wishes, recreational activities are those which can be pursued during that leisure time. In other words, recreation requires some form of action, while leisure may be a passive and unstructured experience. Recreation is also distinct from ‘play’ to the extent that recreation will invariably involve some form of structure whereas play can include completely spontaneous and unstructured activities.

Importantly the Committee has stressed that ‘[c]ompulsory or enforced games and sports or compulsory involvement in a youth organisation … do not constitute recreation.65 In practice, the boundary between voluntary and enforced participation may be difficult to draw. Indeed, for younger children, whose decision-making capacity is still (p. 1206) evolving, their inability to understand fully the nature of their involvement in a particular activity is likely to leave them unable to consent genuinely to involvement. Moreover, in the face of parental pressure and/or a desire to satisfy parental or social expectations, the apparent voluntariness of a child’s participation in a recreational activity may disguise deep and serious anxieties about such participation.66 Thus, states bear the onus of encouraging parents and guardians to engage in a genuine dialogue with their children about the nature, demands, and potential benefits of involvement in recreational activities and to enable children, in accordance with article 12, to be given a genuine opportunity to express their views about the participation.

This does not mean that children have a right to trump parental views about the activities in which they participate. Indeed, parents may well be justified in encouraging their children to undertake activities which the children consider more of a chore than recreation. For example, swimming lessons are unlikely to constitute recreation for all children but they do provide children with valuable life skills by minimizing the risk of death by drowning. Thus the key issue with respect to the conception of an activity as recreational for the purposes of article 31 is that it represents fun and enjoyment for the child and is consistent with his or her development. This last criterion is significant given children’s propensity to engage in recreational activities which they enjoy but which may be harmful to their development. Examples include children’s increasing engagement in sedentary activities such as video games and the use of social media, at one end of the spectrum, and the excessive physical and psychological demands experienced by children who voluntarily participate in sporting activities at elite levels. Although children’s evolving autonomy must be respected in accordance with articles 5 and 12 of the Convention, there remains an obligation to ensure that recreational activities in which children engage are not harmful to their development.

6.  The Right to Participate Freely in Cultural Life and the Arts

This dimension of article 31 is based on article 27(1) of the Universal Declaration of Human Rights which provides that ‘[e]veryone has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’. Indeed, such is the reliance on article 27 that there is little guidance in the travaux préparatoires as to the meaning of either ‘participate freely’ or ‘cultural life and the arts’. The Canadian drafting delegation suggested their inclusion at the 1983 session and they were adopted without comment in 1985.67

(a)  Freely Participate

The term ‘freely participate’ implies an obligation on the part of states to respect and to protect the rights of children in relation to their participation in cultural life and the arts. It requires that states ‘respect, and abstain from [unreasonable] interference in, the child’s access to, choice of and engagement in such activities, subject to the obligation to ensure the protection of the child and the promotion of the child’s best interests’.68 The CRC Committee has also stressed that ‘[s]tates parties must also ensure that others do not (p. 1207) [unreasonably] restrict that right [and that] [t]he child’s decision to exercise or not this right is a choice and, as such, should be recognized, respected and protected’.69

In this regard, the CRC Committee has emphasized that the right to participate freely requires respect for articles 13 (freedom of expression), 15 (freedom of association), and 17 (access to information). Children’s free participation is contingent on their right to express themselves however they choose, subject to only such restrictions as defined by law and necessary to ensure respect for the rights and reputations of others and for the protection of public order and public health or morals.70 Children also have the right to exercise choice in their friendships, as well as memberships of social, cultural, sporting, and other forms of organization. Children should never, however, be compelled to participate or join organizations.71 Finally, access to information and materials from diverse community, national, and international sources is essential for the realization of their right to participate fully in cultural and artistic activity. States are therefore encouraged to ensure that children are provided with the widest possible sources of access, through different media, to materials related to their own culture and to others.

(b)  Cultural Life and the Arts

The right to participate in cultural life, contained in article 15 of the ICESCR, has been the subject of a General Comment by the Committee on Economic Social and Cultural Rights (‘ESCR Committee’). The ESCR Committee has taken the view that:

Culture is a broad and inclusive concept encompassing all manifestations of human existence. The expression cultural life is an explicit reference to culture as a living process, historical, dynamic and evolving with a past, a present and a future.72

Thus, for the purposes of the ICESCR, culture encompasses, among other things:

ways of life, language, oral and written literature, music and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport and games, methods of production of technology, natural and manmade environments, food, clothing, shelter and the arts, customs, traditions through which individuals and communities express their humanity and the meaning they give to their existence.73

This broad and fluid understanding of culture is consistent with the approach adopted by UNESCO in its Recommendation on Participation by People at Large in Cultural Life and their Contribution to It, which provides that rather than being limited to access to works of art and the humanities, culture is concerned with the ‘acquisition of knowledge, the demand for a way of life and the need to communicate’.74

In CRC GC 17, the CRC Committee did not explicitly embrace the broad definition of cultural life adopted by the ESCR Committee. Instead it chose to focus on ‘aspects (p. 1208) related to creative or artistic activities’ rather than the broader definition of culture.75 It therefore took the view that ‘[c]ultural and artistic expression is articulated and enjoyed in the home, school, streets and public spaces, as well as through dance, festivals, crafts, ceremonies, rituals, theatre, literature, music, cinema, exhibitions, film, digital platforms and video’.76 This approach places greater emphasis on the creative expression of cultural life, in contrast to the broader approach of the ESCR Committee which is also concerned with participation in the general day-to-day processes and systems that reflect the cultural characteristics of a particular community.

From a purely practical perspective, it would have been difficult to do justice to the complexity raised by including the broader concept of culture, given the many other dimensions of article 31 which had to be addressed. It is therefore understandable that the Committee decided to adopt this approach. Moreover, article 30 of the Convention does address the right of children from minority and indigenous groups to enjoy their own culture.77 That said, there is still a need to avoid falling into the trap of reducing culture to historical and traditional practices—an approach which anthropologists have rejected in favour of an understanding of culture as a complex interaction of social process and power that produces constantly shifting and changing systems, practices, and customs.78

The CRC Committee has, however, endorsed the view of the ESCR Committee ‘that it is through cultural life and the arts that children and their communities express their specific identity, the meaning they give to their existence, and build their world view representing their encounter with external forces affecting their lives’.79 It has also recognized that ‘[c]ulture derives from the community as a whole’, that ‘no child should be [unreasonably] denied access either to its creation or to its benefits’ and that culture should not be ‘imposed from above, with the role of States parties being to serve as facilitators not suppliers’.80

The Committee has also recognized the constitutive role that children play in maintaining and transforming cultural life. Children ‘reproduce, transform, create and transmit culture through their own imaginative play, songs, dance, animation and stories’.81 According to the Committee, they also ‘translate and adapt’ cultural practices ‘through their own generational experience, thereby contributing to their own ‘culture of childhood’.82 Thus the right to participate in cultural life is not simply an entitlement to participate in dominant social and cultural practices, which have been created by adults. It is true that the Convention requires children to respect their culture83 but they are not expected to remain passive recipients of cultural life. On the contrary, they have an entitlement to transform and adapt cultural practices not just as they pertain to childhood but also as they pertain to the broader communities in which they live. The right to participate in cultural life for a child is therefore about recognition of their evolving capacity and agency and an entitlement not only to access, but also to shape, cultural practices in a way that pays due regard to their age and level of maturity, in accordance with article 12 of the Convention.

(p. 1209) (c)  The Requirement of Age Appropriateness

The text of article 31 includes an obligation that engagement in the rights to play and recreation must be ‘appropriate to the age of the child’. On an ordinary reading of the text, this requirement appears confined to play and recreational activities. However, to exclude this requirement from the other rights recognized under article 31 would lead to absurdity and would be inconsistent with the object and purpose of the Convention. Children’s engagement in each of the rights recognized under article 31 must be age-appropriate if it is to facilitate the effective enjoyment of their rights; be consistent with their best interests (art 3); contribute to their development (required under art 6) and minimize the risk of harm or injury (required under art 19), which would be increased if they were to engage in activities which were not age-appropriate.

For its part, the CRC Committee has explained that with respect to play and recreation, a child’s age must be taken into ‘account in determining the amount of time afforded; the nature of spaces and environments available; forms of stimulation and diversity; the degree of necessary adult oversight and engagement to ensure safety and security’.84 The same considerations apply equally with respect to the other rights protected under article 31. Clearly, the forms of each of these activities will change and be adapted throughout the course of childhood. Thus, the Committee has stressed the importance of acknowledging that as children grow older, their needs and wants evolve from settings that afford play opportunities to places offering scope to socialize, be with peers, or be alone.85 This ability to exercise increasing autonomy over how a child chooses to enjoy his or her rights under article 31 is consistent with the principle of dynamic self-determinism reflected in article 5.

Ultimately the obligation to provide age-appropriate activities for children demands ‘developmentally appropriate’ activities,86 which is consistent with research indicating children’s needs, interests, and capabilities with respect to rest, play, leisure, and recreation change with age.87 It is within this context that the Committee has specifically urged states to ensure the provision of clubs, sports facilities, organized games, and activities, as well as cultural activities to girls and boys of all ages88 and that the right to rest must take account of children’s evolving capacities and developmental needs. The Committee itself has not sought to be prescriptive with respect to these issues, and states enjoy a degree of discretion when they develop appropriate measures to secure the rights under article 31 in an age appropriate manner. As a minimum, however, if such measures are to be effective they must be informed by the available evidence and remain subject to ongoing monitoring and evaluation which takes into account children’s views.

(d)  Protection against Inappropriate Activities

The phrase ‘appropriate to the age of the child’ not only require states to promote age-appropriate rest, leisure, play, and recreational activities and participation in cultural life and the arts, but also that they take the necessary measures to protect against activities which are age-inappropriate and which present a risk to the child’s physical, mental, (p. 1210) emotional, moral, social, and intellectual development. Thus the CRC Committee has recognized the need to balance article 31 rights with the obligation under article 19 to ensure that children are not be exposed to injury as a consequence of those activities.89

Within this context, the Committee has expressed concern that, for example, young children are exposed to marketing and media about toys and games which are inappropriate for their age, and has urged states to take action to limit children’s exposure to such advertising.90 With respect to the right to leisure, children’s use of the internet and social media raises the prospect of exposure to cyberbullying,91 pornography,92 and cybergrooming.93 Thus, although the Committee has recognized the increasingly important role of social media and online activities in enabling children to enjoy their rights under article 31,94 it has also urged states to take action to promote more effective online safety to prevent children from damaging exposure to online gaming, pornography, and potential abuse.95 The measures proposed include action to promote digital literacy, and empower children to enable them to make more informed choices, as well as legislative measures and international collaboration to reduce impunity for abusive adults; limiting access to harmful or adult-rated material and gaming networks; improving information for parents, teachers, and policy-makers to raise awareness of the potential harms associated with violent games; and developing strategies for promoting safer and attractive options for children.96

(p. 1211) (e)  Promotion of Reasonable Risk-Taking

Significantly, recognition of children’s evolving autonomy requires acceptance that they will progressively explore risk-taking and challenging activities as they age. Although the Convention contains a general obligation to protect children’s best interests and well-being, this does not demand that adults prohibit all risk-taking activities. On the contrary, as children grow older, article 12 demands that their views influence the content of measures adopted with respect to the enjoyment of their rights under article 31. It is for this reason that the Committee has stressed the need to balance risk and safety within the context of article 31 activities.97 This does not mean that children must be abandoned to their autonomy and undertake any acts that they consider to be within the scope of their rights under article 31. Their views are to play a mediating rather than determinative role in assessing the level of risk to which they should be exposed.98

At the same time, research now suggests that some degree of risk associated with play and recreational activities is developmentally beneficial for adolescents and can contribute to their discovery of identity and belonging.99 It is in this context that the Committee has stressed the need to re-evaluate the trend towards overprotection which has developed in some parts of the world, which sees children subject to increased surveillance and their opportunities for play and recreation constrained because of perceived fears about risks to their safety.100 On the contrary, measures must be taken to minimize the real risks to children’s well-being and development, which arise from unsafe and hazardous environments, the growing role of electronic media, and the marketing and commercialization of play.101 However, the response to any risks must be based on evidence rather than speculation and misplaced assumptions about children’s capacity and resilience.

(f)  A Qualitative Framework for Understanding the Scope of Article 31 Rights

There is a trend in international human rights discourse to adopt the principles of availability, accessibility, acceptability, and quality (the ‘3AQ Model’) to provide a framework for the various elements of a particular right.102 The justification for this framework comes from its role in contributing to an understanding of the practical measures required to secure the effective enjoyment of a right.103 Although the CRC Committee did not explicitly embrace this framework in its General Comment on article 31, it nevertheless relied heavily on its underlying principles when exploring its scope.104 Thus, the following, more formalized approach is warranted, given its potential to clarify the nature and scope of the rights protected under article 31:

  • •  the principle of availability means that children are entitled to opportunities to engage in play, recreation, leisure, rest, cultural life, and the arts;

  • (p. 1212) •  the principle of accessibility is a multidimensional concept, which provides children with protection against discrimination when accessing activities which would enable them to enjoy their article 31 rights. It is also linked to physical accessibility to these activities; economic accessibility, or affordability, to engage in them; and information accessibility regarding available activities. Importantly, the CRC Committee has stressed the need to pay particular regard to accessibility for girls, children with disabilities, children living in poverty, children in institutions, children from indigenous and minority communities, and children in situations of conflict and humanitarian and natural disasters.105

  • •  the principle of acceptability demands that these activities be acceptable to children and their parents or guardians in light of considerations such as the child’s age, gender, ability, and religious and cultural background; and

  • •  the principle of quality demands that the activities made available to children are of an appropriate standard to ensure that children’s experiences are enjoyable and pose no threat to their development. In practice, this requires that any facilities or equipment used comply with appropriate standards and any personnel involved in the delivery of activities be appropriately trained. The assessment of quality must also be informed by the views of children themselves, in order to improve the quality of those activities.

This framework provides practical guidance for those involved in the delivery and design of activities that enable children to engage in article 31 activities. Importantly, it places an emphasis on children’s experience and demands reflexivity on the part of the adults who assist, create, and enable such activities. For example, it is insufficient simply to offer children the opportunity to engage in an article 31 activity that is enjoyed by adults without modifying the nature and rules of the activity to accommodate the age and developmental needs of children. Significantly, a number of major sporting codes have developed special rules to facilitate children’s participation and enjoyment in their sports.106 However, while adaptation of adult-orientated activities for children is certainly necessary, this is not sufficient to ensure the effective enjoyment of article 31 rights. This is because adults, whether in their capacity as policy-makers, regulators, parents, educators, or volunteers for sporting and recreational groups, must also collaborate with children in accordance with article 12 to ensure that article 31 activities are not only available and accessible, but are also deemed acceptable and of a sufficiently high quality by children themselves.

A further point needs to be stressed in relation to the use of the 3AQ Model as a tool for understanding the nature of a child’s entitlements under article 31. Critically, this model is principally concerned with providing guidance to adults with respect to their involvement in the creation and facilitation of activities and opportunities for children to realize their article 31 rights. It must always be remembered, however, that children are not entirely dependent on the assistance of adults to enable them to exercise these rights. (p. 1213) On the contrary, when given sufficient freedom and time, children’s inquisitiveness and imagination will invariably enable them to engage in activities that allow them to enjoy their rights under article 31 independently of adult involvement or assistance.

(g)  Reasonable Limitations on the Rights under Article 31

Unlike some other rights under the Convention, article 31 does not include a general limitation clause allowing for restriction where necessary to protect the rights of other persons or to protect broader social objectives such as public health, welfare, or morality. However, the absence of such a provision should not be taken to imply that the rights protected under article 31 are absolute. To hold otherwise would be to accept, for example, that the amount and nature of the play or leisure time to which children are entitled is unlimited, which is simply impractical. The real challenge is therefore to outline a principled basis for imposing limitations on article 31. In this respect, there are at least four possible grounds upon which to justify any such interference.

First, article 31 rights may be interfered with where there is a reasonable likelihood that the child’s involvement in the activity in question, whether classified as play, recreation, leisure, or participation in cultural life and the arts, would harm the child’s development. This is consistent with the requirement that article 31 activities be age-appropriate. It is also consistent with article 6, which requires measures to ensure the development and survival of a child; article 19, which requires measures to protect children against injury; and article 24, which demands measures to secure children’s health, including a specific obligation to protect children against harmful traditional practices. Importantly, any measures taken to protect children’s health, well-being, and development must be proportionate. Thus, denial of a child’s participation in an activity claimed to be potentially harmful will not be justified in the absence of evidence confirming that the risk is real and unreasonable or where measures are reasonably available to reduce the risk.

Second, interference with a child’s article 31 rights will be justified where there is a reasonable likelihood that the child’s involvement would harm the rights of another person. The Convention does not contain an equivalent of article 29 of the UDHR, which provides that:

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

The absence of an equivalent provision in the Convention exemplifies an ‘effectiveness gap’ or ‘blind spot’; that is, an issue overlooked during drafting which must be addressed to ensure a practical and persuasive interpretation of article 31.107 Thus, it is necessary to imply into the text of article 31 the possibility of interference with the rights which it contains, where this is necessary to protect the rights of others. Under this test, any measures taken to protect the rights of others must be proportionate; that is, they must have a rational connection with the protection of those rights and there must be no other measures reasonably available to achieve the same end.108

(p. 1214) Third, article 28 anticipates that children will spend considerable time in compulsory education.109 This time curtails a child’s ability to engage in his or her article 31 rights. However, interference with these rights will be reasonable and justified provided that an appropriate balance is struck between the time spent in educational activities and the time available the child’s enjoyment of those rights. Where this balance will be struck falls within states’ discretion. This margin, however, remains subject to the caveat that policy decisions regarding the division of time between education and leisure or recreation must be informed by evidence regarding the impact of time spent in education on the development of a child in accordance with article 6 of the Convention, rather than speculation or assumptions. It also requires children’s views to be given due regard in accordance with their age and maturity, in accordance with article 12.

Fourth, the Convention provides that parents and guardians have primary responsibility for children’s care and upbringing (arts 18 and 27). Article 5 also demands that states respect parent’s rights and responsibilities to provide guidance and direction in the exercise of children’s article 31 rights. The scope accorded to parents and guardians in this regard is significant and allows them to determine, in consultation with their children, the level of time and nature of the activities to be enjoyed by children in pursuit of their article 31 rights. For this reason, it will generally be parents and guardians, rather than the state, who will limit these rights. Although children’s best interests must be parents’ basic concern (art 18), these interests are not the paramount concern and parents must therefore balance children’s article 31 rights with competing priorities. It is important to stress, however, that this deference to parents is not unlimited and states must ensure that parents do not adopt measures that deprive children of their article 31 rights or harm children’s well-being and development.

B.  States’ Obligations with Respect to Article 31 Rights

1.  The Obligations to Respect, Protect, and Fulfil

Article 31 requires states to ‘recognize’ the rights which it contains. This obligation, which is found in several articles of the Convention, is linked to article 4 of the Convention, which provides that ‘States Parties shall take all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention (emphasis added)’. The general nature of this obligation is explored in detail in chapter 4. (p. 1215) The CRC Committee’s contribution to developing an understanding of which measures will be considered appropriate in the context of article 31 rights is outlined below. At this point, however, it is important to stress that article 2 also imposes an overriding obligation on states to ‘respect and ensure the rights set forth in the Convention’. In summary, it is generally accepted that this obligation requires states to take reasonable measures to respect, protect, and fulfil the rights under the Convention.110 It is within this context that the Committee in its general comment on article 31 explained that:

The obligation to respect requires State parties to refrain from interfering, directly or indirectly, in the enjoyment of the rights provided for in article 31;

The obligation to protect requires State parties to take steps to prevent third parties from interfering in the rights under article 31;

The obligation to fulfil requires States parties to introduce the necessary legislative, administrative, judicial, budgetary, promotional and other measures aimed at facilitating the full enjoyment of the rights provided in article 31.111

This account of the nature of the obligations flowing from the obligations to ‘respect’ and ‘ensure’ is largely consistent with the generally accepted position under international law. However, the Committee omitted the qualification that any assessment of a State’s efforts to respect, protect, and fulfil these rights will remain subject to the test of reasonableness. In other words, interference with article 31 rights by state or non-state actors, or a failure to secure the full enjoyment of these rights, is not of itself a violation of these rights. For any interference with, or the inability to fulfil, these rights to be adjudged a violation, it must be unreasonable.

2.  Assessing the Reasonableness of a State’s Actions and the Question of Resources

The determination of whether an inference with article 31 is reasonable will be informed by the considerations outlined above. Where a state fails to fulfil such rights, reasonableness will invariably be tied to the availability of resources and the manner in which the state has allocated them. Although this test is explored in more detail in chapter 4, in CRC GC 17, the CRC Committee acknowledged that the realization of article 31 rights remains subject to the availability of resources. However, it explained that states must nevertheless ‘strive to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances’112 and that any regressive measures must be ‘justified bearing in mind all other rights provided for in the Convention’.113 The Committee’s test is actually too narrow given that states are obliged to consider all their obligations under international law when determining the allocation of scarce resources and not just their Convention obligations.114 What is clear, however, is that a state cannot invoke the defence of scarce resources to justify its failure to take reasonable measures to fulfil the rights of a child under article 31.

In any event the issue of resources is invariably both misunderstood and overestimated in this context. It is true that states will be required to commit significant resources to fulfil the Committee’s vision of child-friendly urban and rural environments in which children are able to play in parks, community centres, sports and playgrounds.115 However, (p. 1216) the resources issue also engages the private corporate sector and the broader community. Corporate sponsorship, philanthropy, and volunteering by parents, other adults, and children themselves offer vast resources that can, and invariably do, contribute to children’s enjoyment of article 31 rights. Thus, states need to encourage, support, and facilitate the potential for such non-state actors to provide resources for this purpose.

Moreover, many of the article 31 rights require few, if any, resources to facilitate at least some level of enjoyment. Children’s imagination is invariably sufficient to provide the foundation for constructive play, leisure, recreation, and rest time, none of which are necessarily dependent on any resources other than the provision of time and a safe environment in which to engage in such pursuits. Even the addition of a few very inexpensive resources, such as a ball, skipping rope, or pencil and paper, can have a transformative effect. Indeed, in many cases the major obstacles to the enjoyment of such rights are attitudinal and institutional—these rights are devalued, relative to other activities such as education and/or work; they are denied to certain children on the basis of attributes such as gender, age, or disability, and the enjoyment of such rights is undermined because the design of urban and rural environments is either not conducive to, or potentially hazardous to children’s health and well-being. Thus, the measures required of states must include measures to address these attitudinal and institutional obstacles.

3.  The Measures Required of States

As noted above, article 4 demands that states take all appropriate measures, subject to the availability of resources, to secure the enjoyment of all the rights under the Convention, including those recognized in article 31. Although states enjoy significant discretion with respect to the adoption of these measures, this remains subject to the overriding caveat that the measures must be effective in contributing to the enjoyment of the article 31 rights. For its part, the CRC Committee has detailed an extremely extensive list of measures to be adopted by states, including:

  1. (a)  with respect to the obligation to respect:

    • •  support and guidance for caregivers as to how to facilitate play, leisure, and recreational activities for and with children; and

    • •  awareness-raising to challenge widespread cultural attitudes which attach a low value to article 31 rights;116

  2. (b)  with respect to the obligation to protect:

    • •  legislation to protect against discrimination in relation to the enjoyment of article 31 rights;

    • •  regulation of non-state actors to ensure minimum hours of work; the adoption of safety guidelines for toys and recreational equipment; the creation of opportunities for the realization of article 31 rights in urban and rural development proposals;

    • •  measures to protect against harmful cultural, artistic, or recreational practices;

    • •  child protection policies, procedures, and codes for all persons working with children in recreational, play, and cultural activities to protect them from potential harm and abuse;

    • (p. 1217) •  special measures to restore and protect article 31 rights in post-conflict settings;

    • •  the review of marketing and media policies which promote violence or reinforce gender or disability stereotypes; and

    • •  independent safe, accessible, and effective complaint mechanisms for children to seek redress when their article 31 rights have been violated.117

  3. (c)  with respect to the obligation to fulfil:

    • •  legislation and planning to address the principle of sufficiency which demands that all children have sufficient time to enjoy their article 31 rights;

    • •  data collection and research with respect to indicators that allow for evaluation of the extent to which article 31 rights are being enjoyed;

    • •  cross departmental collaboration in national and municipal government to ensure the effective enjoyment of article 31 rights;

    • •  budgetary review to ensure resources appropriate allocation to allow for cultural, artistic, sports, recreational, and play activities for children;

    • •  investment in universal design with regard to play, recreational, cultural, and sports facilities for children;

    • •  municipal planning to ensure provision of play and recreational facilities to ensure ‘child friendly urban and rural environments’;

    • •  the creation of school environments that provide a physical environment with appropriate space and facilities for play, recreation, and drama during and around school hours; a daily structure that enables sufficient opportunity for play and rest; a curriculum that provides sufficient time to learn, participate in, and generate cultural and artistic activities including music, drama, poetry, and art and an educational pedagogy that offers playful activities; and

    • •  training and capacity-building for all professionals working with and for children or whose work impacts on children including government officials, educators, health professionals, social workers, early years and care workers, planners, and architects.118

4.  A Radical and Transformative Agenda

The measures which the CRC Committee has suggested are comprehensive and are certain to provoke discussion regarding whether each can legitimately be said to fall within the scope of states’ obligations under article 31. On balance, however, these measures all appear to fall within the scope of what the literature indicates is necessary to ensure the effective and practical enjoyment of these rights. The Committee’s vision is clearly ambitious and is certain to invoke further allegations that the conception of childhood reflected in CRC GC 17 only serves to compound allegations that the Convention perpetuates a Western vision of childhood that is intolerant of non-Western practices. But such a critique misses the point that the measures outlined by the Committee are deeply critical of the fundamental features of many Western States which have adopted an educational system that devalues the concepts of play, culture, and leisure119 and/or urban (p. 1218) planning policies that prioritize the interests of developers and motor vehicles at the expense of vibrant community spaces in which children can safely play and engage in activities with their peers.120 Indeed, the transformative nature of the agenda set by the Committee indicates that article 31 may in fact be one of the radical provisions of the Convention.

The CRC Committee itself is acutely aware of the challenges associated with the realization of article 31 and has identified the following primary obstacles to its implementation:

  • •  lack of recognition of the important of play and recreation;

  • •  the existence of unsafe and hazardous environments;

  • •  resistance to children’s use of public spaces;

  • •  the appropriate balancing of risk and safety;

  • •  lack of access to nature;

  • •  pressure for educational achievement;

  • •  overly structured and programmed schedules;

  • •  neglect of article 31 in development programmes;

  • •  lack of investment in cultural and artistic opportunities for children;

  • •  the expanding role of the media; and

  • •  the marketing and commercialization of play.121

It is questionable whether states alone have the capacity to address each of these challenges, which require a radical transformation in the values and orientation of many societies. However, states clearly have the capacity to contribute to the creation of an environment in which the realization of article 31 may be facilitated by adopting appropriate policies in areas such as budgeting, education, urban planning, and regulation of the media and relevant corporate actors.122 States also have the capacity to play an important educative role in promoting the value and importance of article 31 among parents, educators, and professional groups working with and for children or whose work impacts on children. As the Committee has explained, in many parts of the world ‘play is perceived as “deficit” time spent in frivolous or unproductive activity of no intrinsic worth’.123 It is either a luxury that children in developing countries cannot afford because they must work to support themselves and their family, or a distraction for children in developed countries, which must be restricted lest it impede a child’s education.

These perceptions misunderstand the significance of article 31. Play and the other rights protected under article 31 have intrinsic value to children; they also play a vital role in contributing to children’s development and in the case of cultural activities, the transmission of cultural practices, albeit potentially modified and adapted from one generation to the next. Importantly, the play and the other article 31 activities have the (p. 1219) potential to benefit the broader community. Children whose resilience, capacity, adaptability, creativity, health, and cultural awareness are enhanced by engagement in article 31 activities are far more likely to make a positive contribution to their communities than children who have been deprived these rights. To date, the Committee and commentators have largely overlooked this instrumentalist justification for article 31, however it is worth noting since it effectively undermines any argument that article 31 activities are frivolous and without value. On the contrary, a state that ignores article 31 does so at it peril given that ‘many see playful thought as a powerful requirement for a human species that needs to be able to adapt effectively to changing conditions’.124

III.  Article 31(2): The Specific Obligations of States with Respect to Participation in Cultural and Artistic Life, Recreational and Leisure Activities

States Parties shall 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 culture, artistic, recreational and leisure activity.

A.  Overview

The ordinary meaning of this clause is directed towards two separate but related considerations: first, states’ obligation to respect and promote the child’s right to participate fully in cultural and artistic life; and second, to encourage the provision of appropriate and equal opportunities for culture, artistic, recreational, and leisure activity. It was presumably intended to provide greater detail as to the content of states’ obligations under article 31(1). However, when read within its context and in light of the object and purpose of the Convention, it is arguable that article 31(2) is largely superfluous. This is because the general obligation to respect and ensure all rights under article 2 of the Convention already imposes an obligation to respect, protect, fulfil, and promote article 31 rights. Thus, if paragraph 31(2) has a substantive role, perhaps the best that can be said is that it explicitly affirms the nature of the obligations that already exist by virtue of article 2 of the Convention.

Moreover, for reasons that remain unclear from the drafting history, there is no reference to the rights to rest and play in paragraph 31(2). Such an omission is curious and arguably represents another ‘blind spot’ in article 31, since there is no obvious explanation as to why states should not be required to respect and promote these rights. In any event, the CRC Committee has legitimately interpreted paragraph 31(2) as including obligations to respect and promote the right to play, alongside cultural, artistic, recreational, and leisure activity.125 As to why it did not also include rest, one possible explanation is that because rest is not an activity. The Committee therefore determined that it need not fall within paragraph 31(2) because it took the view that this paragraph was concerned with participation in the relevant activities. In any event, the issue is probably moot as the general obligation to respect and ensure the right to rest still demands that states create the necessary conditions to ensure the effective realization of a child’s right to rest.

(p. 1220) 1.  The Obligation to Respect and Promote Full Participation

In an attempt to give meaning to states’ obligation to respect and promote children’s full participation in cultural and artistic life, the CRC Committee has explained the three inter-related and mutually reinforcing dimensions of such participation:

  1. (a)  access, which necessitates that children are provided with opportunities to experience cultural and artistic life;

  2. (b)  participation, either individually or as a group, in creative activities which enable children to develop their personalities; and

  3. (c)  contribution to cultural life which enables children to contribute to the spiritual, material, intellectual, and emotional expressions of culture and the arts.126

This understanding of children’s full participation in cultural and artistic life offers a conceptualization of children as active participants with agency and evolving autonomy who do not simply receive culture but in the words of the CRC Committee, ‘reproduce’, ‘transform’, ‘create’, and ‘transmit’ culture through, for example, imaginative play, songs, dance, animation, stories, painting, games, street theatre, puppetry, and festivals.127

This conceptualization of children’s full participation as one that recognizes their evolving capacity and agency also reminds states of their obligation to counter social ignorance or resistance as to the benefits of a child’s participation in cultural life and the arts. Indeed, during drafting, proposals were made to include a specific statement obliging states to encourage parents, educational institutions, and state organs to implement the rights outlined in the article.128 Although such proposals were never formally accepted, they remain implicit in the obligation to promote children’s full participation in cultural life and the arts. Moreover, as the Committee has suggested, there is a need for enhanced public awareness of all article 31 rights, as well as measures to challenge negative attitudes impeding their realization.129

2.  The Obligation to Encourage the Provision of Appropriate and Equal Opportunities for Cultural, Artistic, Recreational, and Leisure Activities

(a)  The Obligation to Encourage

The final text of paragraph 31(2) imposes an obligation to ‘encourage the provision of appropriate and equal opportunities for culture, artistic, recreational and leisure activity’. It is a curious provision for two reasons. First, it is unclear from the drafting history why the verb ‘encourage’ was adopted when the first part of paragraph refers to the obligation to ‘respect and promote’. Some proposals during drafting suggested the use of stronger language such as ‘ensure’130 and ‘promote measures ensuring’.131 The term ‘encourage’ was included in the draft used as the basis for discussion at the 1985 session132 but there was very little debate on this paragraph.133 Thus the choice of word does not appear to have been particularly significant to the drafters. In any event, states remain subject to the overriding obligation under article 2 of the Convention to ‘respect and ensure’ every right, including article 31.

(p. 1221) Second, the scope of the obligation to encourage does not extend to play or rest. This represents another blind spot in the text of article 31, since there is no obvious explanation as to why play and rest should be excluded in this way. Indeed, to do so would create an absurd result which would be inconsistent with the overriding obligation to ensure these rights, which, as explained above, requires states to create an appropriate enabling environment in which these rights can be effectively enjoyed. Certainly, the Committee has taken the view that play should be read into the text of paragraph 31(2).134 However it has not adopted the same approach with respect to rest, despite there being a principled basis for doing so.

(b)  Appropriate and Equal Opportunities

The obligation to provide appropriate and equal opportunities for the realization of the rights under article 31 is implicit in the general scope of the obligation to respect and ensure these rights. The fact that this obligation is expressly stated in article 31(2) does not impose any additional obligations on States Parties to the Convention. It does, however, affirm the positive and qualitative nature of states’ obligation imposed in this respect. It is in this context that the CRC Committee has emphasized that ‘States parties must ensure the necessary and appropriate preconditions to facilitate and promote opportunities for the realization of rights under article 31.’135 Thus, there can be no misapprehension amongst states regarding the active and effective role which they must play in allocating the necessary resources and implementing the necessary measures to create an appropriate regulatory and social environment in which children can enjoy their article 31 rights. The scope of these measures cannot be underestimated and, as outlined above, the CRC Committee’s expansive CRC GC 17 provides a coherent and systematic approach to guide states in the implementation of their obligations.

The guidance provided in CRC GC 17 provides a clearer interpretation of what the Committee expects states to provide in terms ‘appropriate’ and equal’ opportunities. In respect of appropriate opportunities, it draws attention to three dimensions. First, it identifies a range of developments which are increasingly impeding the availability of appropriate opportunities, for example, the growing practice of overcrowding and structuring schedules for children which result in lives that are determined solely by adult-directed activities;136 the imposition of curfews and restrictions on children’s access to public spaces; and the erosion of traditional play spaces as societies become increasingly urbanized and privatized,137 with poorer children most likely to lack adequate access to green spaces.138 While acknowledging the huge benefits of the Internet, it also expresses concern that growing dependence on on-screen activities is contributing to negative outcomes for children and denying them access to a wider range of appropriate play, recreational, cultural, and artistic activities.139 There is a growing body of evidence indicating (p. 1222) the extent to which these environments, as well as the amounts of time spent in them, can also contribute to significant risk and harm to children.140 There is also concern that the increasing levels of participation, particularly amongst boys, in violent video games is linked with aggression.141

The Committee has pointed to growing trends for many toy manufacturers to produce toys which impede imaginative play, reinforce gender stereotypes or early sexualization of girls, contain dangerous parts, or reduce children to passive observers, all of which it considers inimical to appropriate opportunities for play and recreation.142 Thus the Committee has identified a range of approaches, documented above, which it recommends as appropriate measures to counter these developments.

Second, the Committee has emphasized that the development of appropriate opportunities is contingent on states taking account of the views of children themselves. It has drawn attention to article 12, children’s right to express their views on all matters of concern to them, and for those views to be given due weight, in accordance with their age and maturity. Respect for article 12 must be applied at two levels.143 Children must be provided with opportunities to contribute to the development of legislation, policies, strategies, and design of services to ensure that appropriate provision is be provided. This might include their involvement, for example, in consultations on policies related to play and recreation, legislation affecting educational rights and school organization and curriculum or protective legislation on child labour, the development of parks and other local facilities, urban planning and design for child-friendly communities and environments, feedback on opportunities for play, or recreation and cultural activities within the school and the wider community.144 In addition, the Committee urges recognition that children are entitled to exercise choice and autonomy in their play and recreation, as well as cultural and artistic activities.145

Finally, the provision of appropriate opportunities requires not only that states invest in the creation of child-centred environments, with play, recreational, cultural, and artistic opportunities and facilities, but that they also promote recognition that children require time in which they are free to do what they choose, or, indeed, to do nothing.146 Narrowly focusing all children’s leisure time into programmed or competitive ventures is not appropriate and can be damaging to children’s physical, emotional, cognitive, and social well-being.147 The CRC Committee has also pointed to the fact that where investment is made in respect of article 31, it tends to be focused on structured and organized (p. 1223) activities. However, it has emphasized that it is equally important to allow the space in children’s lives for spontaneous play, recreation, and creativity.148

In respect of the interpretation of ‘equal opportunities’, article 2 imposes a general obligation on states to secure each of the rights under the Convention without discrimination. The inclusion of the obligation to provide ‘equal opportunities’ in article 31 affirms this general obligation and recognizes that social position, disability, race, gender, and economic factors and other potential bases for distinction can affect a child’s access to and ability to enjoy the rights set out in article 31. States must therefore take measures both to prevent direct discrimination and facilitate equal opportunities for children to participate in the relevant activities.

The CRC Committee has made it clear that ‘appropriate’ and ‘equal’ opportunities are closely linked. For example, cultural, attitudinal, physical, communication, and transportation barriers contribute to the widespread exclusion and isolation from participation in play, recreation, and cultural and artistic activities of children with disabilities. The measures needed include both accessible and appropriate provision and the removal of discriminatory attitudes and practices which deny equality of opportunity. The Committee has emphasized the need for dedicated resources to guarantee children with disabilities the opportunity to realize their article 31 rights.149 It has also welcomed article 30 of the Convention on the Rights of Persons with Disabilities which emphasizes states’ obligations to ensure that children with disabilities have equal access with other children in exercising these rights, including in the mainstream school system.150

IV.  Evaluation: A Transformative but Justifiable Agenda

Article 31 demands far more than the construction of parks and playgrounds for children or the provision of opportunities for them to dress up and dance in national costumes. For years, the CRC Committee’s treatment of article 31 did little to advance such a simplistic misconception. However, its adoption of CRC GC 17 has presented a radically different conception of children’s rights to play, rest, leisure, recreation, and participation in cultural life and the arts. This is strongly informed by and aligned with expanding research which demonstrates the developmental benefits for children when they enjoy each of the rights protected under article 31, and particularly the right to play. Moreover, the Committee has offered definitions for the various elements of article 31 which counter the perception that these rights are abstract and devoid of meaningful content.

Just as importantly, CRC GC 17 outlines a comprehensive vision of states’ obligations to respect, protect, and fulfil the rights under article 31. The measures required of states are certainly demanding and their implementation will often require a radical transformation of the values that currently inform policy design and the delivery of services in areas such as education and urban planning or the regulation and accessibility of social media and information communication technologies for children. Although appropriate resources remain critical to the full and effective realization of article 31 rights, their significance should not be overstated. In many cases, children need nothing more than time, space, and appropriate supervision to enjoy their article 31 rights. They are often denied (p. 1224) this time and space, however, because of social attitudes that prioritize education or work and marginalize and devalue play and participation in cultural life and because of risk aversion among parents, which leads to increased control over children’s lives.151 Indeed, these attitudinal constraints may well present the greatest obstacle to the realization of children’s rights under article 31. Thus, states must play the central role in creating an appropriate environment for policy-makers, service providers, corporate bodies, the media, parents, and children themselves to be able to recognize the legitimacy of article 31 rights. Importantly, when pressing this case, states must be mindful that far from being frivolous or an indulgence suitable only for children in the West, the justification for article 31 rights is not simply tied to their intrinsic value for children. On the contrary, engagement in play, recreation, and leisure, appropriate rest, and participation in cultural life and the arts each contribute to the development of more resilient, healthy, creative, and culturally sensitive children, which is of benefit not only to children themselves, but also to the broader communities in which they live.

Select Bibliography

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  • Austin M, ‘Do Children Have a Right to Play? (2007) 34 Journal of Philosophy of Sport 135
  • Beckett H, ‘Adolescents’ Experiences of the Right to Play and Leisure in Northern Ireland’ (2010) 16 Child Care in Practice 227
  • Committee on the Rights of the Child, ‘General Comment No 17 on the Right of the Child to Rest, Leisure, Play, Recreational Activities, Cultural Life and the Arts’ (17 April 2013) CRC/C/GC/17
  • Davey C and Lundy L, ‘Towards Greater Recognition of the Right to Play: An Analysis of Article 31 of the UNCRC’ (2011) 25 Children and Society 3
  • David P, Article 31: The Rights to Leisure, Play and Culture (Martinus Nijhoff 2006)
  • International Play Association Global Consultations on Children’s Right to Play: Report (August 2010)
  • Lester S and Russell W, Children’s Right to Play: An examination of the importance of play in the lives of children worldwide (Bernard Van Leer Foundation 2010)
  • Powell S, ‘The Value of Play: Constructions of Play in Government Policy in England’ (2009) 23 Children and Society 29
  • Saul B, Kinley D, and Mowbray J, ‘Article 15: Cultural Rights’ in Saul B, Kinley D, and Mowbray J, The International Covenant on Economic, Social and Cultural Rights: Cases, Material and Commentary (OUP 2014) 1176
  • gerison lansdown john tobin*

Footnotes:

1  See eg Vanessa Pupavac, ‘The Infantilization of the South and the UN Convention on the Rights of the Child’ (1998) 3 Human Rights Law Review 1, 3 (argues that ‘the Convention requires the universal attainment of a modern Western childhood without the industrialization and development that was considered a prerequisite to this modern construction of childhood’).

2  See Maurice Cranston, ‘Human Rights Real and Supposed’ in David Raphel (ed), Political Theory and the Rights of Man (1967) 43, 51 (argues that very idea of economic, social, and cultural rights, which would include art 31, ‘debilitates, muddies and obscures’ the notion of human rights). In contrast, a number of commentators actually suggest that ‘leisure’, far from being a benign concept is intrinsically linked to questions of control and power within society and thus occupies a legitimate space within human rights law. See eg: Susan Shaw, ‘Conceptualizing Resistance: Women’s Leisure as Political Practice’ (2001) 33 Journal of Leisure Research 186 (examines leisure as a form of resistance and political practice, an idea which is based on the assumption that leisure practices are linked to power and power relations within society); Maria Allison, ‘Leisure Diversity and Social Justice’ (2000) 32 Journal of Leisure Research 2 (examines the use of the social justice paradigm for leisure research); Karla Henderson, ‘One Size Doesn’t Fit All: The Meanings of Women’s Leisure’ (1996) 28 Journal of Leisure Research 139 (examines the role of gender and feminism in exploring the different meanings of leisure for women).

3  Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (3rd edn, UNICEF 2007) 469.

4  Committee on the Rights of the Child (‘CRC Committee’), ‘General Comment 17: The Right of the Child to Rest, Leisure, Play, Recreational Activities, Cultural Life and the Arts’ (17 April 2013) UN Doc CRC/C/GC/17 para 2 (‘CRC GC 17’).

5  See eg Stuart Lester and Wendy Russell, Children’s Right to Play: An Examination of the Importance of Play in the Lives of Children Worldwide (Bernard Leer Foundation 2010); Michael Austin, ‘Do Children have a Right to Play? (2007) 34 Journal of the Philosophy of Sport 135; Sarah Powell, ‘The Value of Play: Constructions of Play in Government Policy in England’ (2009) 23 Children and Society 29; Lucie Ozanne and Julie Ozanne, ‘A Child’s Right to Play: The Social Construction of Civic Virtues in Toy Libraries’ (2011) 30 Journal of Public Policy and Marketing 264. An explicit rights-based approach to play has been adopted by organizations such as the International Play Association (‘IPA’) (http://ipaworld.org/childs-right-to-play/the-childs-right-to-play/) and art 31 (https://www.cypcs.org.uk/rights/uncrcarticles/article-31).

6  See CRC GC 17 (n 4).

7  See Paulo David, ‘Article 31: The Right to Leisure, Play and Culture’ in André Alen and others (eds), A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff 2006) 17 (referring to an analysis of the CRC Committee’s concluding observations between 2000 and 2004 which indicated that the CRC Committee only addressed art 31 in fifteen reports in ‘a very brief and scattered manner’). An examination of the treatment of art 31 in subsequent concluding observations reveals a similar pattern. See eg: CO Bhutan, CRC/C/BTN/CO/3-5 para 41; CO Austria, CRC/C/AUT/CO/3-4 para 59; CO China, CRC/C/CHN/CO/3-4 paras 77–78; CO Kuwait, CRC/C/KWT/CO/2 para 67; CO New Zealand, CRC/C/NZL/CO/3-4 paras 47–58; CO Ukraine, CRC/C/UKR/CO/3-4 paras 70–71; CO Japan, CRC/C/JPN/CO/3 para 76; CO Mongolia, CRC/C/MNG/CO/3-4 paras 61–62. In the CRC Committee’s defence, it did raise art 31 in some of its general comments before CRC GC 17. See eg CRC Committee, ‘General Comment No 7: Implementing Child Rights in Early Childhood’ (20 September 2006) UN Doc CRC/C/GC/7/Rev.1 para 34 (placing considerable emphasis on the importance of play); CRC Committee, ‘General Comment No 9: The Rights of Children with Disabilities’ (27 February 2007) CRC/C/GC/9 paras 70–71 (elaborating in some detail the importance of appropriate and inclusive opportunities for children with disabilities to exercise all the rights under art 31); CRC Committee, ‘General Comment No 10: Children’s Rights in Juvenile Justice’ (25 April 2007) CRC/C/GC/10 para 89 (emphasizing that children detained in custody, must be provided with opportunities ‘to participate in sports, physical exercise, the arts and leisure time activities’). It has also mentioned art 31 albeit briefly in subsequent comments. See eg: CRC Committee, ‘General Comment No 21 on Children in Street Situations’ (21 June 2017) CRC/C/GC/21 para 56; CRC Committee, ‘General Comment No 20 on the Implementation of the Rights of the Child During Adolescence’ (6 December 2016) CRC/C/GC/20 para 75.

8  CRC GC 17 (n 4) para 5.

9  ibid para 8.

10  CRC GC 17 (n 4) paras 8–13. See also Ciara Davey and Laura Lundy, ‘Towards Greater Recognition of the Right to Play: An Analysis of Article 31 of the UNCRC’ (2009) 25 Children and Society 3, 4.

11  CRC GC 17 (n 4) para 20.

12  ibid para 21.

13  ibid para 9.

14  ibid para 39.

15  Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (10 December 1948) (‘UDHR’) art 24; International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (‘ICESCR’) art 7. See also Convention on the Elimination of All Forms of Discrimination against Women (opened for signature 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (‘CEDAW’) art 13 (right to participate in recreational activities, sports, and all aspects of cultural life); Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) (opened for signature 17 November 1988, entered into force 16 November 1999) 28 ILM 156, OAS Treaty Series No 69 arts 7 and 14; European Social Charter (opened for signature 18 October 1961, entered into force 26 February 1965) 529 UNTS 89 art 2; and International Convention on the Elimination of All Forms of Racial Discrimination (opened for signature 21 December 1995, entered into force 4 January 1969) 660 UNTS 195 (‘CERD’) art 5.

16  GA Res 1386(xiv) UN GAOR, 14th sess, 841st plen mtg, Agenda Item 64, Supp 16, 19, UN Doc A/4354 (1959) principle 7.

17  Art 12 of the African Charter on the Rights and Welfare of the Child (‘ACRWC’) duplicates art 31 of the CRC; see African Charter on the Rights and Welfare of the Child (opened for signature 11 July 1990, entered into force 29 November 1999) OAU Doc CAB/LEG/24.9/49.

18  See eg Austin (n 5) 135.

19  See Powell (n 5) 37–38; Davey and Lundy (n 10) 4.

20  Charles Beitz, The Idea of Human Rights (OUP 2009) 163.

21  James Griffin, On Human Rights (OUP 2008) 37–38.

22  International Play Association, Global Consultation on Children’s Right to Play: Report (International Play Association 2010) 38.

23  Sophie Alcock, ‘Searching for Play in Early Childhood Care and Education Policy’ (2013) 48 New Zealand Journal of Educational Studies 19, 28.

24  See eg: Paul Tranter and Scott Sharpe, ‘Children and Peak Oil: An Opportunity in Crisis’ (2007) 15 International Journal of Children’s Rights 181, 184; Davey and Lundy (n 10) 10; Margaret Kernan and Dympna Devine, ‘Being Confined within? Constructions of the Good Childhood and Outdoor Play in Early Childhood Education and Care Settings in Ireland’ (2010) 24 Children and Society 371, 372–73.

25  CRC GC 17 (n 4) para 8.

26  ibid.

27  David (n 7) 23.

28  Ben Saul, David Kinley, and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials (OUP 2014) 472–74.

29  See also ICESCR art 7(d).

30  Saul, Kinley, and Mowbray (n 28) 472.

31  Göran Melander, ‘Article 24’ in Asbjørn Eide and others (eds), The Universal Declaration of Human Rights: A Commentary (Scandinavian University Press Oslo 1992) 379, 380.

32  See generally Saul, Kinley, and Mowbray (n 28) 472–84.

33  CRC GC 17 (n 4) para 56(b). See eg: International Labour Organization, Convention (No 79) concerning Restriction of Night Work of Children and Young Persons in Non-Industrial Occupations (opened for signature 9 October 1946, entered into force 29 December 1950) 78 UNTS 1019 art 2 (prohibiting children under 14 from at night); Convention (No 90) concerning the Night Work of Young Persons Employed in Industry (revised 1948) (opened for signature 10 July 1948, entered into force 12 June 1951) 91 UNTS 3 art 2 (mandating a rest period of at least seven hours for workers between 16 and 18 years of age); Convention (No 138) concerning Minimum Age for Admission to Employment (opened for signature 26 June 1973, entered into force 19 June 1976) 1015 UNTS 297 art 2 (requiring states to regulate the minimum age for work); and Convention (No. 182) Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (opened for signature 17 June 1999, entered into force 19 November 2000) 2133 UNTS 161 art 3 (prohibiting children from carrying out work which is likely to harm their health).

34  See (n 15).

35  Office of the United Nations High Commissioner for Human Rights, Legislative History of the Convention on the Rights of the Child (United Nations 2007) (‘Legislative History’) 689.

36  CRC GC 17 (n 4) para 14(a).

37  See eg: Jennifer Vriend and others, ‘Sleep Quantity and Quality in relation to Daytime Functioning in Children’ (2012) 41 Children’s Health Care 204; Avi Sadeh, ‘Consequences of Sleep Loss or Sleep Disruption in Children’ (2007) 2 Sleep Medicine Clinics 513; Avi Sadeh, Reut Gruber, and Amiram Raviv, ‘The Effects of Sleep Restriction and Extension on School Age Children: What a Difference an Hour Makes’ (2003) 74 Child Development 405; Mona El-Sheikh and Dilburd Arsiwalla, ‘Children’s Sleep, Skin Conductance Level and Mental Health’ (2011) 20 Journal of Sleep Research 326. Eide and Showalter estimate that the optimal amount of sleep for academic performance in 12-year-olds is between 8.34 hours and 8.43 hours; and for 16-year-olds is 7.02 to 7.35 hours: see Eric R Eide and Mark H Showalter, ‘Sleep and Student Achievement’ (2012) 38 Eastern Economic Journal 512, 517 (noting that these figures are significantly lower than the 9.25 previously recommended by the National Sleep Foundation in Adolescent Sleep Needs and Patterns: Research Report and Resource Guide (National Sleep Foundation 2000)).

38  CRC GC 17 (n 4) para 13.

39  ibid para 13.

40  ibid para 41.

41  CO Japan, CRC/C/15/Add.90 para 22. More recently, the CRC Committee has expressed similar concerns with South Korea (see CO Republic of Korea, CRC/C/KOR/CO/3-4 paras 62–63).

42  CRC GC 17 (n 4) para 58 (g).

43  Art 26 of the Vienna Convention on the Law of Treaties (opened for signature 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 (‘VCLT’).

44  Melander (n 31) 380.

45  For a discussion of this approach see: Karla Henderson, ‘The Meaning of Leisure for Women: An Integrated Review of the Research’ 22 Journal of Leisure Research 228 (1990) 231; Serena Arnold, ‘The Dilemma of Meaning’ in Thomas Goodale and Peter Witt (eds), Recreation and Leisure Issues in an Era of Change (Venture Publishing 1985) 16; John Farina, ‘Perceptions of Time’ in Thomas Goodale and Peter Witt (eds), Recreation and Leisure Issues in an Era of Change (Venture Publishing 1985) 31–33; Gary Ellis and Peter Witt, ‘Conceptualization and Measurement of Leisure: Making the Abstract Concrete’ in Thomas Goodale and Peter Witt (eds), Recreation and Leisure Issues in an Era of Change 105, 105–06; Eileen Green, Sandra Hebron, and Dianne Woodward, Women’s Leisure, What Leisure?: A Feminist Analysis (Palgrave Macmillan 1990) 10–17.

46  Green, Hebron, and Woodward (n 45) 17–20. See also H F Moorhouse, ‘Models of Work, Models of Leisure’ in Chris Rojek, Leisure for Leisure: Critical Essays (MacMillan London 1989) 17; Henderson (n 45) 231; Susan Shaw, ‘Gender Leisure and Constraint: Towards a Framework for the Analysis of Women’s Leisure’ (1994) 26 Journal of Leisure Research 8.

47  On this approach see: Ellis and Witt (n 45) 106; Henderson (n 45) 231–32; Les Haywood, Francis Kew, and Peter Bramham, Understanding Leisure (Hutchinson 1989) 4.

48  CRC GC 17 (n 4) para 14.

49  See eg Anthony D Pellegrini and Peter Smith (eds), The Nature of Play: Great Apes and Humans (The Guildford Press 2005).

50  On the research into the benefits of play, Lester and Russell (n 5); Jacob Sattelmair and John Ratey, ‘Physically Active Play and Cognition: An Academic Matter?’ (2009) 3 American Journal of Play 365; Kathleen Roskos and James Christie, ‘Gaining Ground in Understanding the Play-Literacy Relationship’ (2013) 6 American Journal of Play 83; UNICEF, Sport, Recreation and Play (UNICEF 2004).

51  CRC GC 17 (n 4) para 9.

52  See eg Austin (n 5) 135; Davey and Lundy (n 10) 4.

53  Peter Gray, ‘The Decline of Play and the Rise of Psychopathology in Children and Adolescents’ (2011) 3 American Journal of Play 443 (arguing that a decline in play among children has contributed to a decline in the well-being of children).

54  CRC GC 17 (n 4) 9.

55  Doris Bergen, ‘Play as the Learning Medium for Future Scientists, Mathematicians and Engineers’ (2009) 1 American Journal of Play 413.

56  Ian Fillis and Ruth Rentschler, ‘The Role of Creativity in Entrepreneurship’ (2010) 18 Journal of Enterprising Culture 49, 49. See, also, Bergen (n 55) 425; Michael Peters, ‘Creativity, Openness and the Global Knowledge Economy: The Advent of User Generated Cultures’ (2010) 5 Economics, Management and Financial Markets 15, 15–16; Murray Hunter, ‘Creative Intelligence and its Application to Entrepreneurial Opportunity and Ethics’ (2012) 4 Contemporary Readings in Law and Social Justice 69, 70.

57  See eg: Powell (n 5); International Play Association (n 22) 38; Alcock (n 23) 28.

58  See generally Kyung Hee Kim, ‘The Creativity Crisis: The Decrease in Creative Thinking Scores on the Torrance Tests of Creative Thinking’ (2011) 23 Creativity Research Journal 285.

59  For a discussion on the definitions of play see Bergen (n 55) 416; Lester and Russell (n 5) 7–14; Albert Solnit, ‘A Psychoanalytic View of the Child’ (1987) 42 Psychoanalytic View of the Child 205; Jerry Lewis, ‘Childhood Play in Normality, Pathology and Therapy’ (1993) 63 American Journal of Orthopsychiatry 6 (1993) 6–7; Peter Neubauer, ‘The Many Meanings of Play’ (1987) 42 Psychoanalytic Study of the Child 3; Anthea Holme and Peter Massie, Children’s Play: A Study of Needs and Opportunities (Michael Joseph 1970) 39; James Johnson, James Christie, and Thomas Yawkey, Play and Early Childhood Development (Scott, Foresman and Co 1987) 10–11.

60  CRC GC 17 (n 4) para 14 (c) .

61  ibid para 14 (c).

62  ibid para 14 (c).

63  ibid para 10.

64  ibid para 14 (d).

65  ibid para 14 (d).

66  See generally: Paulo David, Human Rights in Youth Sports: A Critical Review of Children’s Rights in Competitive Sports (Routledge 2005); and Paulo David, ‘Children’s Rights and Sports’ (1999) 7 International Journal of Children’s Rights 53.

67  Legislative History (n 35) 689.

68  CRC GC 17 (n 4) para 14 (g).

69  ibid para 14 (g).

70  ibid para 20.

71  ibid para 21.

72  ESCR Committee, ‘General Comment 21: Right of Everyone to Take Part in Cultural Life’ (21 December 2009) UN Doc E/C.12/GC/21 paras 11–12.

73  ibid para 13. For a discussion of the ICESCR see Saul, Kinley, and Mowbray (n 28) 118–82. See also Human Rights Committee, ‘General Comment No 23 The Rights of Minorities’ (8 April 1994) CCPR/C/21/Rev.1/Add.5 para 7 (noting that ‘[w]ith regard to the exercise of the cultural rights protected under article 27 [of the ICCPR], the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law’.)

74  UNESCO, Recommendation on Participation by People at Large in Cultural Life and Their Contribution to It, Records of the General Conference, 19th sess, Nairobi (26 October—30 November 1976) Annex 1, 29.

75  CRC GC 17 (n 4) para 6.

76  ibid para 14(f).

77  ibid para 6.

78  See generally Sally Merry, ‘Human Rights and Transnational Culture: Regulating Gender Violence through Global Law’ (2006) 44 Osgoode Hall Law Journal 53.

79  CRC GC 17 (n 4) para 14(f) (referring to ESCR Committee (n 72)).

80  CRC GC 17 (n 4) para 14, citing Mexico City Declaration on Cultural Policies, adopted by the World Conference on Cultural Policies, Mexico City, 26 July—6 August 1982.

81  CRC GC 17 (n 4) para 12.

82  ibid.

83  See CRC arts 5 and 29.

84  CRC GC 17 (n 4) para 14 (e).

85  ibid.

86  See Sue Bredekamp, ‘What Is Developmentally Appropriate and Why Is It Important’ 63 Journal of Physical Education Recreation and Dance 31 (1992).

87  See Joan Isenberg and Nancy Quisenberry, ‘Play: A Necessity for All Children’ (1988) 64 Childhood Education 138, 140; Lewis (n 59) 7–9; and Solnit (n 59) 207–10.

88  CRC GC 17 (n 4) para 58(f).

89  ibid para 39.

90  ibid para 57(f).

91  See eg: Justin Patchi and Sameer Hinduja, ‘Bullies Move Beyond the Schoolyard: A Preliminary Look at Cyberbullying’ (2006) 4 Youth Violence and Juvenile Justice 148; Elizabeth Englander and Amy Muldowney, ‘Just Turn the Darn Thing Off: Understanding Cyberbullying’ in D L White, BC Glenn, and A Wimes (eds), Proceedings of Persistently Safe Schools: The 2007 National Conference on Safe Schools (Hamilton Fish Institute 2007) 83–92; Ruth Gerson and Nancy Rappaport, ‘Cyber Cruelty: Understanding and Preventing the New Bullying’ (2011) 1 Adolescent Psychiatry 67; Sameer Hinduja and Justin Patchin, ‘Cyberbullying: An Exploratory Analysis of Factors Related to Offending and Victimization’ (2008) 29 Deviant Behavior 129; Deborah Muir, Violence against Children in Cyberspace: A Contribution to the UN Study on Violence against Children (ECPAT International 2005); Donna Cross and others, Australian Covert Bullying Prevalence Study (Edith Cowan University 2009); Sonia Livingstone and others, Risks and Safety on the Internet: The Perspective of European Children (LSE and EU Kids Online 2011).

92  See eg: Janis Wolak, Kimberley Mitchell, and David Finkelhor, ‘Unwanted and Wanted Exposure to Online Pornography in a National Sample of Youth Internet Users’(2007) 119 Pediatrics 247; SveinMossige, Mare Ainsaar, and Carl Göran Svedin (eds), The Baltic Sea Regional Study on Adolescents’ Sexuality (Norsk institutt for forskning om oppvekst, velferd og aldring (NOVA) 2007) 37; Galina Soldatova, Russian School-children as Internet Users: Types and Risk Groups (Foundation for Internet Development 1999); Tufail Muhammad, ‘Danger for Children at Pakistan’s Cafes’, ECPAT Newsletter (No 48, July 2004) 5.

93  Stephen Webster and others, Scoping Report: European Online Grooming Project (European Online Grooming Project 2010) 7; Kimberley Mitchell and others, ‘Use of Social Networking Sites in Online Sex Crimes Against Minors: An Examination of National Incidence and Means of Utilization’ (2010) 47 Journal of Adolescent Health 183; Ethel Quayle, ‘Sexualized Images of Children on the Internet’ (2011) 23 Sexual Abuse 7; Janis Wolak and others, ‘Online “Predators” and their Victims: Myths, Realities and Implications for Prevention and Treatment’ (2008) 63 American Psychologist 111.

94  CRC Committee, ‘General Comment No 20’ (2016) On the Implementation of the Rghts of the Child during Adolescence (6 December 2016) CRC/C/CGC/20 para 75 (noting that both online and offline platforms are ‘fundamental to their [adolescents] exploration of identity, enabling adolescents to explore their culture, forge new artistic forms, create relationships, and evolve as human beings’.); CRC Committee, Report of the 2014 General Day of Discussion ‘Digital Media and Children’s Rights’ para 85 available at http://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2014.aspx (recommending that ‘States should recognise the importance of access to, and use of, digital media and ICT [information and communication technologies] and their potential to promote all children’s rights including the rights to … rest, leisure, play, recreational activities, cultural life and the arts’).

95  CRC GC 17 (n 4) para 57(d); CRC Committee, Discussion Day on ‘Digital Media and Children’s Rights’ (n 94) para 105.

96  CRC Committee, Discussion Day on ‘Digital Media and Children’s Rights’ (n 94) para 105.

97  ibid para 39.

98  ibid para 39.

99  See eg: David Ball, Playgrounds—Risks, Benefits and Choices (Middlesex University 2002); Cheryl Greenfield, ‘Can Run, Play on Bikes, Jump the Zoom Slide, and Play on the Swings’: Exploring the Value of Outdoor Play’ (2004) 29 Australian Journal of Early Childhood 1; Rebecca Mitchell, Margaret Cavanagh, and David Eager, ‘Not all Risk is Bad, Playgrounds as a Learning Environment for Children’ (2006) 13 International Journal of Injury Control and Safety Promotion 122.

100  CRC GC 17 (n 4) para 39.

101  ibid paras 34–36, 46, and 47.

102  ESCR Committee, ‘General Comment 14: The Right to the Highest Attainable Standard of Health (Art 12)’ (11 August 2000) E/C.12/2000/4 para 12.

103  John Tobin, The Right to Health in International Law (OUP 2012) 158.

104  See eg CRC GC 17 (n 4) para 58(f), which recommends the availability and accessibility of parks and the affordability of cultural activities within urban and rural environments.

105  ibid para 53.

106  See eg: Cricket Australia, Australian Cricket Junior Formats—Stage 1 and Stage 2 and Girls and Boys Junior Pathway (available at https://community.cricket.com.au/clubs/junior-formats); Australian Football League, Junior Football Match Guide: For the Conduct of Australian Football for Junior Players Aged 5–12 Years (available at http://aflcommunityclub.com.au/index.php?id=32); Rugby Football Union, Kids First Rugby (New Rules of Play) (outlining rules of play for children aged 7–12; available at www.rfu.com/managingrugby/newrulesofplay); National Rugby League, Rugby League: Laws of Mini Footy and Mod League (available at http://www.nrl.com/portals/nrl/RadEditor/Documents/LawsofMiniMod2013.pdf).

107  John Tobin, ‘Seeking to Persuade: A Constructive Approach to Human Rights Treaty Interpretation’ (2010) 23 Harvard Human Rights Journal 201, 244.

108  See Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights E/CN.4/1985/4 (28 September 1984) Annex paras 10–11.

109  CRC art 28 states:

  1. 1.  States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:

    1. (a)  Make primary education compulsory and available free to all;

    2. (b)  Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;

    3. (c)  Make higher education accessible to all on the basis of capacity by every appropriate means;

    4. (d)  Make educational and vocational information and guidance available and accessible to all children;

    5. (e)  Take measures to encourage regular attendance at schools and the reduction of drop-out rates.

  2. 2.  States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.

  3. 3.  States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.

110  See chapter 2 of this Commentary.

111  CRC GC 17 (n 4) para 54.

112  ibid para 55.

113  ibid para 55.

114  See chapter 4 of this Commentary.

115  CRC GC 17 (n 4) para 58(f).

116  ibid para 56.

117  ibid para 57.

118  ibid para 58.

119  See eg: Peter Gray ‘The Decline of Play and the Rise of Psychopathology in Children and Adolescents’ (2011) 3 American Journal of Play 443, 444–47; CO New Zealand, RC/C/NZL/CO/3-4 paras 47–48; CO Belgium, CRC/C/BEL/CO/3-4 paras 70–71.

120  See eg: Tranter and Sharpe (n 24); Carolyn Whitzman and Dana Mizrachi, ‘Creating Child-Friendly High-Rise Environments: Beyond Wastelands and Glasshouses’ (2012) 30 Urban Policy and Research 233; and Carolyn Whitzman, Megan Worthington, and Dana Mizrachi, ‘The Journey and the Destination Matter: Child-Friendly Cities and Children’s Right to the City’ (2010) 36 Built Environment 474.

121  CRC GC 17 (n 4) para 33–46.

122  In this respect, the CRC Committee has outlined an extensive list of factors which it considers necessary to provide the optimum environment for children to realize their art 31 rights, which ranges from freedom from stress, social exclusion, and prejudice to the availability of appropriate rest and leisure time and recognition by society as a whole as to the value and legitimacy of art 31 rights: CRC GC 17 (n 4) para 32.

123  CRC GC 17 (n 4) para 33.

124  Bergen (n 55) 415.

125  CRC GC 17 (n 4) para 15(a).

126  ibid para 15(a).

127  ibid para 12.

128  See Legislative History (n 35) 689 (Joint NGO Proposal).

129  CRC GC 17 (n 4) para 56(b).

130  Legislative History (n 35) 689 (Joint NGO Proposal).

131  ibid 690 (NGO Ad Hoc Group).

132  ibid (US proposal).

133  ibid 691 (paras 108–09 of the Working Group Discussion).

134  CRC GC 17 (n 4) para 15 (b).

135  ibid para 15 (b).

136  ibid para 42.

137  ibid para 37.

138  Tom Jambor, ‘Factors Restricting Children’s Play Opportunities in the United States: A Point of View’ (1995) 27 Play Rights 11 (also suggests that the increased incidence of single parent households requires children to stay inside after they return home from school and are thus deprived of the opportunity to play outdoors with friends and neighbours). See also Naoko Iwata and Koko Hara, ‘Issues of Children’s Play in Japan Today’ (1995) 27 Play Rights 30 (lists as impediments to the enjoyment of the right to play: lack of play spaces; effect of traffic; lack of raw materials for children to play with; lack of time for play; over-controlled school life; influence of the mass media).

139  CRC GC 17 (n 4) para 46.

140  UNICEF, Child Protection Online: Global Challenges and Strategies (UNICEF Innocenti Research Centre, 2012).

141  See eg: Oene Wiegman and Emile van Schie, ‘Video Game Playing and its Relations with Aggressive and Prosocial Behaviour’ (1998) 37 British Journal of Social Psychology 367; Hanneke Polman, Bram Orobio de Castro, and Marcel AG van Aken, ‘Experimental Study of the Differential Effects of Playing Versus Watching Violent Video Games on Children’s Aggressive Behavior’ (2008) 34 Aggressive Behavior 256; and Muniba Saleem, Craig A Anderson, and Douglas A Gentile, ‘Effects of Prosocial, Neutral, and Violent Video Games on Children’s Helpful and Hurtful Behaviors’ (2012) 38 Aggressive Behavior 281.

142  CRC GC 17 (n 4) para 47.

143  ibid para 19.

144  See also CRC Committee, ‘General Comment No 12: The Right of the Child to be Heard’ (20 July 2009) CRC/C/GC/12.

145  See eg CO Kuwait, CRC/C/KWT/CO/2 para 67.

146  CRC GC 17 (n 4) para 42.

147  Marta Santos Pais, ‘The Convention on the Rights of the Child’, in United Nations Office of the High Commissioner for Human Rights, Manual of Human Rights Reporting under Six Major International Human Rights Instruments (United Nations 1997) 393.

148  CRC GC 17 (n 4) para 2.

149  CO Slovenia, CRC/C/SVN/CO/3-4; CO Guinea, CRC/C/GIN/CO/2.

150  CRC GC 17 (n 4) para 50.

151  See eg Margaret Kernan and Dympna Devine, ‘Being Confined Within? Constructions of the Good Childhood and Outdoor Play in Early Childhood Education and Care Settings in Ireland’ (2010) 24 Children and Society 371, 372; Tranter and Sharpe (n 24) 185–86.

Special thanks for Laura Lundy for her helpful feedback on earlier drafts of this chapters. All errors and omissions remain those of the authors.