论体育权作为一种新型人权

从实然和应然维度论证了体育权在国际上正在发展成为一项基本人权。从实然层面看，无论是各政府间法律文件，如有关国际人权条约，还是国际奥委会的《奥林匹克宪章》，无论是诸多国内立法还是联合国教科文组织的《体育教育、体育运动和体育活动宪章》，都直接或间接规定或阐释了参与体育活动是人人应当享有的一项基本权利。但体育人权不同于一般的体育权利，也不能为健康权、受教育权、文化权、工作权等现有国际人权所涵盖，它应当是一项独立的人权。这项独立人权从应然性上可归为两个方面：一是从哲学层面上讲，体育有助于人的全面发展，尤其是身体潜能发挥和通过团体体育发展合作性和个人意志品质等；二是从法理上讲，速成习惯国际法理论为通过国际共识形成新的人权类型提供了法理支持。前述诸多国内和国际文件中所宣示的体育权支持了这种新型人权正在形成。

On Right to Sports as a New Human Right

From the theoretical and practical perspectives, the paper expounds that the right to sports has become one of fundamental human rights in the world. It is believed that more and more documents, directly or indirectly, express that participation in sports activities is a basic right that everyone should enjoy, whether in intergovernmental legal documents, non-governmental papers, domestic legislation or non-binding documents, as well as Olympic Charter and International Charter of Physical Education, Physical Activity and Sport. However, the human right to sports is different from some "so-called sports rights", which cannot be covered by the existing international human rights such as right to health, right to education, right to culture or right to work. It should be an independent human right, which differs from the human rights in sports. There are two qualifying aspects in which independent human rights can be classified. Firstly, the philosophical perspective emphasizes that sports are helpful to the all-round development of people, especially exerting the potential of the body, developing cooperative spirits, and individual endurance through group sports. Secondly, the perspective of jurisprudence highlights that the instant customary international law doctrine provides theoretical support for this new type of human rights formed by international consensus. The declaration of right to sports in the many domestic and international documents demonstrates that the new type of human right has been formed.