Islj 2009 3-4 - TMC Asser Instituut

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which is a private law provision in accordance with Swiss Law, a rightful ground for withholding IOC recognition from an NOC of an autonomous Curaçao? In answering my Thesis I have formulated the following sub-questions: 1. Are sports and international sports representation of the Netherlands Antilles, in particular in Curaçao, formally organized? 2. How important are the Olympic Games to Curaçao? 3. Did NAOC act unlawfully with its approach to the IOC and NOC/NSF (Holland) for its continuation after the dissolution of the Netherlands Antilles? 4. Is access to participation in the Olympic Games a favor or a right of recognized nations? 5. Is there an appeal in case the IOC formally rejects CSF’s request for recognition? 6. What are, in my opinion, justifying arguments against Rule 31.1? 7. Is there any party that may suffer any harm in case it is decided to grant IOC recognition to CSF? “Meta hodos” In random order, the following have been the most important areas of the study: 1. The constitutional and sports structure in relation to the matter. 2. The NAOC attitude against a Curaçao NOC of its own. 3. The interest of IOC recognition for the Curaçao Sports Federation, CSF, and the future country Curaçao. 4. The Olympic Charter, with special attention to relevant articles. 5. The opinion of reputable law experts on the matter. 6. Relevant jurisprudence. 7. The IOC legal and operational structure. 8. Relevant statehood concepts and recognition criteria. 9. Interpretation theories and practices in international law. 10.Procedures at IOC and at the Arbitration Tribunals. 11. The steps to be taken to increase feasibility of the notion. The information was acquired by way of formal documents, literature, interviews and meetings with sports officials and lawyers, and selectively included in the following subdivision of my Thesis. Section 1 contains constitutional information of the Netherlands Antilles, the constitutional reform as agreed by Final Declaration on November 6, 2006 and explains the way sport is formally structured in the Netherlands Antilles and Curaçao. Section 2 gives information on the questionable steps of NAOC against the interest of the future country Curaçao. Section 3 explains the relevant Charter rules for recognition and links the rules development to global political issues. Section 4 gives a short explanation of the IOC organization and the law applicable to this institute. Section 5 deals with the conceptions of an independent state and an autonomous state as regarded by international public law literature and customaries regarding law interpretation, in fact questioning the IOC notion regarding Rule 31.1 Section 6 includes the most important sine qua non conditions towards IOC recognition and stresses the several essential amendments CSF has made of its Articles of Association for complying with the Charter. This Section also covers contacts with experts in Europe on the matter. Section 7 summarizes the essential arguments to be presented in support of the recognition request to the IOC. These are the most 5 http://www.babylon.com/definition/ Kingdom_of_the_Netherlands/English. 6 www.minbzk.nl/contents/pages/48365/ thecharterforthekingdomofthenetherlands.pdf. 7 The right of a state to have primary responsibility for all matters occurring within its boundaries 8 Charter of the Kingdom of the Netherlands, art 43, including the explanatory memorandum. 9 http://www.internet-esq.com/ ussaugusta/atlantic1.htm. 10 www.un.org/aboutun/charter/intro.shtml. 11 A. LeRoy Bennett. International Organizations, Principles & Issues (1991), p. 15 -21. important legal grounds of the issue, valid also for the eventual filing of the case at CAS or the Swiss Federal Court. Section 8 contains my final conclusion, answering the sub-questions and the central matter of the Thesis. It ends with recommendations regarding the legal actions to be taken to achieve an IOC recognized Curaçao NOC of its own, once the constitutional change has taken place. 1. Level playing field The intention of this Section is to give relevant information on our constitutional structure and the way our sport is organized therein. This information is essential to establish that Curaçao is an orderly society as well as that sport is well taken care of and that international sport representation as part of the coming change will no be problem at all. 1.1. Our country’s status in a bird’s eye view Fundamental for any further dealing with the matter is the knowledge that the Netherlands Antilles is a constituent country of the Kingdom of the Netherlands. 5 The other fellow countries are Holland (The Netherlands) and Aruba. In 1954 these countries of their own free will agreed to the Charter of the Kingdom of the Netherlands, the supreme constitutional law. 6 The Kingdom is the formal State, headed by the Crown. The monarchy is represented by a governor in Aruba and one in the Netherlands Antilles. However, all countries have considerable internal right of self-governance, have domestic jurisdiction 7 and intervention by the Kingdom is only permissible under very clear specified conditions, in general when fundamental rights and freedom are at danger and the relevant country’s own national government is failing, or unfit to handle the situation on its own. 8 Further I will refer to the said Charter as the Statute. The coming autonomy of Curaçao can be considered one of the later effects of the Atlantic Charter signed between the United States of America and Great Britain after World War II, which was the stepping stone towards the modern United Nations we know today. It was also the first strong obligation to colonial powers to “respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them”. 9 Shortly thereafter the United Nation Charter was signed, which now explicitly included the right of self-determination of people. 10 It was therefore no surprise, but an inevitable consequence, that self-governance also came alive in the Netherlands Antilles those days. Although it still took until 1954 before the “Statuut voor het Koninkrijk der Nederlanden”, the Statute, was concluded among the countries forming the Kingdom of the Netherlands at that moment. We are underway and well connected to many international structures assisting small countries to become self-supporting and respected societies. Our search for the best concept continues and is not different from others who have already proven to be successful players in the world today. 11 One inevitable requirement is that we have to step forward and occupy our available slot, exercising our right of self-representation given in the Statute. 1.2 Government and sports The Central Government of the Netherlands Antilles is currently a coalition formed by political parties of the five islands of the Netherlands Antilles, viz. Curaçao - St. Maarten - Bonaire - St. Eustatius - Saba. Curaçao, the largest and by far the most populated, is the capital and governing center of the Netherlands Antilles. The legislative National Parliament is elected every four years and in accordance with western democratic principles, a joint majority (coalition) forms the executive council of ministers, including a minister responsible for sports. In addition to these national institutes, each island of the Netherlands Antilles has its own island council and executive commissioners. One of the commissioners is specifically responsible for sports on the respective island. 44 <strong>2009</strong>/3-4 A RT I C L E S
Each country of the Kingdom has all the governmental and nation identifying elements and structures in place. I will elaborate more on this important proof of statehood in paragraph 5.2. Sport in the Kingdom is similarly organized. It must be noted that, contrary to, for instance, Great Britain or France, we do not have a central NOC for the Kingdom. Holland, Aruba and the Netherlands Antilles, each have their own recognized NOC. 12 NAOC is the NOC of the Netherlands Antilles, consisting of 20 affiliated national (Antillean) federations (NF). 13 Each affiliated NF represents one particular sport (soccer or swimming or basketball etc). Most NFs are members of their respective international organization. Setting aside one exception, Triathlon, all NFs are located in Curaçao. According to its regulations, NAOC membership is only open to NFs, affiliated to their designated international governing body. 14 For instance, the NAVU, the Antillean Soccer Federation, is a member of the FIFA, the international governing body for soccer, consequently NAVU was able to affiliate with NAOC. This is a requirement of the IOC. 15 12 geography.about.com/.../countryinformation/.../olympiccodes.htm. 13 NAOC Annual report 2007, enclosure VII. 14 Olympic Charter 2007, rule 30. 15 Olympic Charter 2007, rule 29.1.2. 16 Articles of Association of Curaçao Sport Federation ( 2007). 17 NAOC Annual report 2007, p 3. 18 http://www.sports-reference.com/ olympics/summer/1988/. 19 NAOC annual report 2007, p 10. 1.3 Sports infrastructure of Curaçao Each island has its own overall Sports Federation. The Curaçao Sports Federation (CSF), is the overall sports governing body of Curaçao. It was founded in 1968 in accordance with the laws of the Netherlands Antilles 16 , having its office in Willemstad, Curaçao. CSF has a working relationship with NAOC, but is not affiliated. 17 CSF works closely with the island government and contributes to island sports policy development. CSF has 32 affiliated members, which are the several designated island federations (IF), such as boxing or swimming etc. Almost all known athletes of the Netherlands Antilles originate from Curaçao and were recruited and trained by local IFs. Examples are the many major league baseball players in the USA, but also world class swimmers, tennis players, track & field athletes and shooters. The only exceptions are the windsurfers who are mostly from Bonaire; however, the one and only Olympic medal the Netherlands Antilles ever won, came from the Curaçao windsurfer Jan Boersma (1988 in Seoul). 18 In interviews with officials of NFs (NAOC members), regarding the history and functioning of their respective organizations, it was explained that most NFs, if not all, were in fact founded to comply with IOC rules. It was also voiced that most are not functioning as they should and that in most cases the same people of the board of the respective IF are running also the NFs. NAOC is fully aware of this flattered and unworkable situation. 19 1.4 The relationship between NAOC and CSF It is a public secret that the relationship between CSF and NAOC is uneasy, to say the least, and has frequently resulted in well hidden mean confrontations. According to interviewed insiders, the major causes igniting the repeating clinches are: overlapping areas of authority, chasing the same sponsors, acting on behalf of the same athletes, competence regarding selection of national teams, press exposure, fights for governmental financial support and power play of individ- A RT I C L E S <strong>2009</strong>/3-4 45
Page 1 and 2: 2009/3-4 EU Sports Policy FIFA Tran
Page 3 and 4: EDITORIAL 2 ARTICLES The Future EU
Page 5 and 6: The Future EU Sports Policy: Hollow
Page 7 and 8: Community a new dimension, such as
Page 9 and 10: Sports Ministers Conference, The Ha
Page 11 and 12: and 15) that the provisions of Comm
Page 13 and 14: The Case against the Applicability
Page 15: not fall within the wording “tran
Page 19 and 20: 4 See also in support of this argum
Page 21 and 22: This is not an unrealistic career p
Page 23 and 24: cerned, the specificity of sport, a
Page 25 and 26: compensated for the income it could
Page 27: A more basic question is what weigh
Page 31 and 32: Article 17 (6) For a player over 23
Page 33 and 34: live sports rights in many other co
Page 35 and 36: equired coverage of 90% is not met.
Page 37 and 38: letes in any form, even including a
Page 39 and 40: Article 95 of the CHL Rules governs
Page 41 and 42: The RFL may declare that a player w
Page 43 and 44: ices acquired by the clubs in the r
Page 45: competition (thereby enhancing the
Page 49: 2.2.The objectionable NAOC intentio
Page 53 and 54: Sub Rule 29.5 It reads “The area
Page 55 and 56: To secure the appreciation of CAS i
Page 57 and 58: 5.3 Recognition by the internationa
Page 59 and 60: however it will all come to the lev
Page 61 and 62: ICAS International Council for Arbi
Page 63: or serious bodily harm. Such prepar
Page 66 and 67: cumstances arise, a measure can be
Page 68 and 69: to the amount of regulations in the
Page 70 and 71: 4.1. The relationship between sport
Page 72 and 73: 5. Conclusion In this article I hav
Page 76 and 77: ing a player. In order to create an
Page 78 and 79: 9 The ‘reserve clause’ gave clu
Page 80 and 81: In this research, the focus will be
Page 82 and 83: sports agent will not bargain at ar
Page 84 and 85: have a dominant position. Thereafte
Page 88 and 89: 3.5.2. Regulations of the KNVB The
Page 90 and 91: Siekmann, R.C.R., Parrish, R., Bran
Page 92 and 93: limit on the number of times a play
Page 94 and 95: to these regulations. This refers,
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Article 4 of the Act No. 401/1989 p
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any tax evasions. Added to this is
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the machines while, at the same tim
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saw sports betting as an easy way t
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mulated by football clubs, it was a
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tions,” which means that there we
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which includes the state monopoly a
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estricted items” and, together wi
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influence on the society. 7 Amendme
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6.4. Compatibility with Article 49
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ting market is the fact that most o
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as local). 7 The amount of the paid
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estriction in the most extensive wa
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Conditions for organizing sports be
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Although Delaware discontinued its
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Sports Betting: Law and Policy. A U
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deterred because electronic transac
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lenging time for the industry. As a
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CAS Publishes the Decisions Rendere
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tickets.com>, , and be transferre
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4. to Tottenham Hostpur Public Lim
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Football League after government pr
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Football had given them a rare outl
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Moseneke wanted everyone to underst
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men and to repair the damage that h
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a day of jet travel for any competi
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television rights to the games, 67
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extraterritoriality nor a division
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cal matter, deter interference of h
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Thus, International Law, once a law
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en. 248 Typically, two separate con
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Guarantors would have undertaken to
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ing a professional football club or
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“TRANSLATING IS THINKING WITH ANO
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Islj 2009 3-4 - TMC Asser Instituut

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