Islj 2009 3-4 - TMC Asser Instituut

INTERNATIONAL OLYMPIC COMMITTEE
ANSWER RELATED TO A QUESTION POSTED ON
WWW.OLYMPIC.ORG
You asked:
Why was Rule 31.1 of the Olympic charter added to the charter?
Answer:
Dear Roy Bottse,
Today’s Rule 31.1 is a revised version of what used to be Rule 34.1
of the Olympic Charter just prior to the revision.
The previous version (1995 Olympic Charter) was the following:
“In the Olympic Charter, the expression “country” shall mean any
country, state, territory or part of a territory which the IOC in its
absolute discretion considers as the area of a recognized NOC
[National Olympic Committee]”.
The revision to paragraph 1 and the reason for the revision is found
in the minutes of the 105th IOC Session in Atlanta in 1996 (15th to
18th of July).
Note that the modification, which you still see in the current edition
of the Olympic Charter under Rule 31.1, was made “to bring into line
the jurisdiction of the NOCs with that of independent member
states of the international community”.
We hope that this information will be of assistance.
Sincerely,
IOC Research and Reference Service
In any case, the verbally received information reflects the real cause of
the alteration, whilst the formally mentioned reason “to bring into
line the jurisdiction of the NOCs with that of independent member
states of the international community” is but a well selected diplomatic
text. The real purpose of Rule 31.1 is solely to protect the IOC and
the Olympic Games against figurative recognition. It does not need
any further argumentation that Curaçao complies with the terms of a
well respected partner in the international community and certainly
cannot be compared with earlier mentioned rebellious groups or
countries who’s origin for many years already is part of severe political
tension.
5.2 Independent State- is an outmoded status
The Netherlands Antilles is considered a country and listed worldwide
as such 72 . This is not so amazing, since in accordance with the
Kingdom Charter we can decide on entering relations with other
countries 73 . This ability co-decides the value of our statehood, which
will be the same for Curaçao once autonomous.
The statehood measure, based on the ability to enter into relations
with other countries, is referred to as the declarative theory. It judges
four factors: permanent population / defined and controlled territory
/ effective control by a government / capacity to enter into relations
with other States. If these are met, then the country is considered a
State. 74
There is also the constitutive theory. This defines a State as a person
of international law if, and only if, it is recognized as sovereign by
other states 75 . Experts agree that this theory is much too open to political
abuse, reason why the declarative theory became the more accepted
measure 76 . I refer to article 3 of the Montevideo Convention 77 as
well as to the Commission on Former Yugoslavia (the Badminter
Arbitration Committee, 1991). They both explicitly follow the declarative
theory of statehood to decide the status of a country.
The foregoing is important since the qualification -Independent
State- has undergone significant changes regarding its meaning and
spirit. Since the global development of integration of states into
72 www.nationmaster.com/encyclopedia/
List-of-countries.
73 Charter of the Kingdom of the
Netherlands, article 41.
74 P. Malanczuk. Akehurst’s Modern introduction
to international law (2006), p. 83.
75 P. Malanczuk. Akehurst’s Modern introduction
to international law (2006), p. 83.
76 P. Malanczuk. Akehurst’s Modern introduction
to international law (2006),
p.84.
77 en.wikipedia.org/wiki/
Montevideo_Convention.
78 geography.about.com/cs/politicalgeog/
a/statenation.htm.
Olympic Movement. Also he wished to mention that the Taiwanese post office had
issued philatelic material to mark the Olympic centennial. He would be pleased to
give a copy to anyone interested.
THE PRESIDENT suggested that Mr. Pound send a letter of congratulation to the
authors of the music used in the public service announcement.
DECISIONS
1. Report of the Centennial Working Group approved
2. A letter of congratulations to be sent to the authors of the music used for the
IOC’s public service announcement.
D) Centennial Olympic Congress of Unity Study
Report by the Chairman, H.E. Judge Kéba Mbaye, 18 th July 1996
H.E. JUDGE MBAYE introduced the members of the Centennial; Olympic Congress
of Unity Study Commission and presented its report (Annex 5).
Item 1. The strengthening of relations between the Olympic Movement and governmental
and non-governmental organizations so that the work of the Movement in
favour of peace is more effective. Rapporteur H.E. Judge Kéba Mbaye.
H.E. JUDGE MBAYE read out the introduction. The Commission Secretary, Mr.
Shahbaz Behnam, read out the proposed amendment to the Fundamental Principles,
paragraph 3.
H.E. JUDGE MBAYE asked the Commission Secretary to read out paragraphs 1 and
2 of Rule 34.
H.E. JUDGE MBAYE pointed out that the provision, if adopted, would not have any
retroactive effect. Portions of territory which possessed an NOC would continue to
possess that NOC and the new rule would not, of course, confer the dignity of independent
states on non-independent portions of countries not recognized by the
international community.
There being no comments, both amendments were approved.
***
Item 2. Issues of Sport and the Environment, Rapporteur, Mr. Richard W. Pound, QC.
H.E. JUDGE MBAYE read out the introduction.
At the invitation of H.E. JUDGE MBAYE, the Commission Secretary, Mr. Shahbaz
Behnam, read out the draft resolution.
THE PRESIDENT pointed out that this was a resolution and not an amendment to
the Charter. He put it into the Session for approval.
There being no comments, THE PRESIDENT declared the resolution adopted.
At the invitation of H.E. JUDGE MBAYE the Commission Secretary, Mr. Shahbaz
Behnam, read out the draft amendment to Rule 2, paragraph 10 of the Olympic
Charter.
H.E. MR. SCHMITT proposed that the words “in a general way (“d’une manière
générale”) be deleted as they were superfluous.
On behalf of the Commission H.E. JUDGE MBAYE said that the amendment could
be accepted.
THE PRESIDENT put the draft amendment, as amended by H.E. Mr. Pal Schmitt to
the Session for approval.
There being no comments, THE PRESIDENT declared the draft amendment, as
amended by H.E. Mr. Pal Schmitt, adopted.
supranational unities, a combination of a variety of factors, has been
taken into consideration to valuate a country’s true statehood. In
addition to the four declarative theory constituents, the following
aspects are now taken into account: existence of an own constitution
78 , well formed culture, language, democratically elected parliament,
flag, anthem, currency, social security system, central bank,
import and export laws, taxation system, independent jurisdiction,
law enforcement, educational system, public media, public transportation,
public healthcare infrastructure. It is true and correct that
Curaçao will not comply with all aspects, but most certainly it will
fulfill far over 90 % of the criteria. In other words, if applying Rule
31.1 to deny the CSF its Olympic recognition, it will be important to
have a clear and actual understanding of the - Independent Stateconcept.
Referring to the Principles of International Law, in particular
the General Rules of Interpretation as used to explain Treaties 79 ,
applying mostly the teleological principle of ut res magis valeat quam
pereat that meanings given to words must be justified. The Olympic
Charter may not be a Treaty, but since the IOC is established in accordance
with international law and in fact is functioning as a Treaty, I
am of the opinion that Treaty interpretation principles may be permissible
to explain the meaning of -Independent State- in the most
current context.
54 2009/3-4
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