Islj 2009 3-4 - TMC Asser Instituut

2.2.The objectionable NAOC intention
On June 21, 2007, NAOC directed a letter to the IOC mentioning as
subject indication: “evolution of NOC of the Netherlands Antilles”. 30 In
this letter NAOC once again highlights its sell to the IOC suggesting
that the constitutional change is nothing more than some minor status
changes of the several islands causing a few logical internal adaptations
of the NAOC structure.
However, in that same letter to the IOC, NAOC requested to
receive a letter stating the following: “based on the Olympic Charter,
definitely it is impossible for one of the five Antillean islands to establish
their proper recognized NOC, as long as the respective island
does not get its independent status as defined by the United Nations”
( -underlined by me- ). Note that the NAOC request differs significantly
from Rule 31.1 of the Olympic Charter which states: “In the
Olympic Charter, the expression country means Independent State,
recognized by the international community”. As can be seen, no reference
whatsoever is made to the United Nations. For the account of
NAOC, the terminology “international community” was suspiciously
substituted with “United Nations”.
The IOC answer of June 28, 2007 shows that the NAOC request
is fundamentally out of line. This can be seen unmistakably because
IOC wisely only quoted Rule 31.1 and did not dare to substitute -
international community- with -United Nations-. Certainly the IOC
(NOC Relation Department in this matter) is fully aware of the complexity
of international recognition of countries.
NAOC as supreme national sports authority of the dissolving
Netherlands Antilles, in fact acted inimical in its effort to deliberately
try to twist (falsify) an existing Charter Rule, with the intention to
create an extra difficult obstacle for CSF on its way to the IOC. CSF,
even though not a member of NAOC, but whose interest is known to
NAOC, rightfully blames NAOC for acting dishonestly and for willful
misleading.
2.3. Against good faith and fair play
Good faith is a basic principle of law. In sports it is referred to as fair
play, which is a fundamental doctrine of Sports Law. 31 With this as the
backdrop, I have analyzed the available documents and the way the
interest of CSF / Curaçao in the matter was treated. In addition to the
NAOC missteps already mentioned, the profound search uncovered
several violations of good faith and/or fair play. Most of these were
smartly hidden and integrated into innocent looking approaches. The
result shows a pragmatic bond of political and personal power conservation.
It leaves no room for doubt that NAOC, the highest national
sports authority of the Netherlands Antilles, must honor and respect
the lawfully expressed preference of the people of Curaçao. Given its
undisputable precognition of the dissolution of the Netherlands
Antilles, it should have refrained from actions that would diminish
the rightful consequences of the referendum held. However, exactly
the opposite occurred.
NAOC knew perfectly well that it was not appointed or authorized
to act as attorney of CSF to discuss this matter with the IOC or NOC
/ NSF. Moreover, when confronted with its questionable acts, NAOC
justifies its behavior by saying it acted in the interest of the athletes.
In the several meetings I had with CSF related audiences, I learned
that no one was convinced by this explanation, simply because
NAOC never attempted to obtain authorization for representation of
CSF specifically for this matter. As the highest sports authority of the
dissolving Netherlands Antilles, NAOC has willfully violated the fundamental
principles of good governance, 32 and in particular has fail to
30 NAOC letter to IOC, June 21, 2007,
NAOC2007.180/wm.
31 O. Olatawura. International Sports Law
Journal (2008) Volume 3-4, p 300-143.
32 www.unescap.org/pdd/prs/
ProjectActivities/Ongoing/gg/governance.asp.
33 NAOC letter December 10, 2008. Nr.
NAOC2008.303/rt.
34 NAOC Resolution July 5, 2007,
Paragraph D sub 3.
35 NAOC Resolution July 5, 2007,
Paragraph E sub 6.
36 CSF letter of April 16, 2009 to Island
Council of Curaçao, announcing its
intention to seek a Curaçao NOC of its
own.
comply with the requirements of transparency and accountability
with the CSF (Curaçao) interest.
The following illustrate the additional objectionable NAOC
actions.
• Refusal to present proof of steps taken to have firstly investigated
the possibility of IOC recognition for an NOC of Curaçao. NAOC
refuses to cooperate to present background information, saying
their archive is not accessible. 33 The status of NAOC is comparable
with a governmental institute in service of the general public and
therefore must be governed transparently as set forth by principles
of good governance.
• Intentionally use of an unsigned ministerial note, dated May 2006,
as the formal standpoint of the national government to sell their -
we do not have another choice- story to their members and the
sport society in the islands. The document has had an intimidating
effect on several parties, leaving them no other choice than to agree
with the NAOC information.
• Intentionally incorrect formulation of a Resolution. On July 5,
2007 NAOC had its members sign a Resolution in compliance
with the IOC condition regarding proof of unity on the matter.
The first subparagraph states that none of the islands will get an
autonomous status as described by the United Nations. This information
is not accurate: the reserved autonomy of Curaçao is fully
in accordance with United Nations description as shown in the
UN Treaty on Civil and Political Rights (ICCPR) article 1.
Furthermore, NAOC refuses to disclose the translated copy of the
said Resolution as it was sent to the IOC. Suited with certain exclusive
authority and recognized as a public service institute of the
country, this refusal to practice transparency must be regarded an
act of inappropriate governance.
• NAOC violated the right of the IF, the island federations affiliated
with CSF, by way of intentionally created confusion by the unjust
act of having the Antillean federations formally declare to support
the continuation of NAOC, despite the ongoing dissolution of the
Netherlands Antilles 34 . Whilst it is very clear to NAOC that the
only ones entitled to agree on their right of international representation
once Curaçao becomes autonomous, are the island federations
of Curaçao. This willful involvement of unauthorized parties
with the intention to give the impression of nationally agreed cooperation
is a flagrant violation of the consequently legally reserved
future rights of the island federations of Curaçao to decide their
Olympic destiny.
• The NAOC falsely creates the impression that the CSF has agreed
to the continuing existence of NAOC 35 . In its earlier mentioned
achieved Resolution, the NAOC intentionally listed a meeting
with the CSF as part of their process, although it is aware of the
fact that the CSF, the lawful representative of the sports federations
of Curaçao, by far the largest sports federation of the Netherlands
Antilles, has ever since withheld its support to the NAOC intentions
and recently has repeated their position by formal letter to the
government of Curaçao and copies to the Antillean Minister of
Sports, the NAOC and the IOC, emphasizing once more that it
has never abandoned its right to establish a Curaçao NOC of its
own and will pursue its right towards IOC recognition 36 . NAOC
hereby violates the right by acting indecently against good faith,
harming reserved rights of CSF and its members.
• NAOC intentionally diminishes the value of the autonomy of
Curaçao to something of ample significance, not of sufficient
weight to reckon with. NAOC wrote “essential in our discussion
with you is that all of the five islands will remain part of the Dutch
Kingdom, and our nationality (Dutch E.U Passport) will remain the
same”. In that same letter:”it is therefore not possible for one of the five
islands to apply for an NOC of its own” 37 . NAOC again did not
mention that it is not a matter of an island, but an autonomous
country. NAOC also included:”The bigger islands will go for a separate
status within the Dutch Kingdom, somewhat like Aruba. It is
stated though by Holland that the new status will differ from the one
of Aruba”.
• NAOC purposely induces formal substance of national govern-
A RT I C L E S
2009/3-4 47