Islj 2009 3-4 - TMC Asser Instituut

5.3 Recognition by the international community
Rule 31.1 contains another questionable element: recognition by the
international community. This concept is very controversial and
among the most complicated topics of international law.
Professor Peter Malanczuk, a reputable expert in International Law,
defines recognition as willingness to deal with the other state as a
member of the international community 80 . Considering this definition,
I feel comfortable to say that future country Curaçao will easily
meet the recognition criterion aspect of Rule 31.1.
In more support of the above I add that according to Malanczuk,
Switzerland and Germany have always applied the effective law governing
a foreign territory, even if it was not recognized as a state 81 . So,
regardless of recognition, these two countries look in particular at the
practical side of the government and if the law in that country functions
effectively and creates the public management structure needed,
it is a major reason to accept it as a state. To my humble opinion, I
see herein a conflict between the Swiss international law policy and
the verbatim text of IOC Rule 31.1
79 C.F. Amerasinghe. Principles of the institutional
law of international organizations
(1998), Chapter 2.
80 P. Malanczuk. Akehurst’s Modern introduction
to international law (2006), p. 82.
81 P. Malanczuk. Akehurst’s Modern introduction
to international law (2006), p. 86.
82 www.unohrlls.org/UserFiles/File/
SIDS%20documents/A-RES-53-
189A.pdf.
83 Lammert de Jong en Dirk Kruijt.
Extended Statehood in the Caribbean
(2005), p. 11.
84 http://www.tas-cas.org/d2wfiles/document/281/5048/0/3.1%20CodeEngnov20
04.pdf .
85 P. Malanczuk . Akehurst’s Modern introduction
to international law ( 2006), p. 79.
5.4 A country, a nation, or simply both
The variations on statehood have increased in number and are no
longer limited to the conventional types. One of the new conceptions
is well represented in our region and is called nation-state. In the
Caribbean every island-country represents a nation, a culturally
homogeneous group of people, larger than a single tribe or community,
sharing a common language, national institutions, a general religion,
and substantial historical experience. These are amicably functioning
respected and organized societies. However, if graded by
European standards they may come short in certain ways, due to their
size and inherent characteristics. This requires a different approach,
which is formally recognized and accepted by the UN General
Assembly 82 . These island nation-states are usually very small, but nevertheless
reasonably self-supporting countries 83 . The UN adopted
approach leaves no room for any doubt that the international self-representation
of these small nations must be respected. Of course,
Olympic representation is an inherent part of these UN accepted prerogatives.
As a consequence, an autonomous Curaçao should not be
held off for the important privileged right of presenting itself to the
world during the Games.
Against the background of the foregoing information, filing a substantiated
request for IOC recognition is absolutely recommendable
and if rejected, CSF must present the matter to CAS requesting ex
aequo et bono principle application ex CAS Procedural Rule R45 84 .
Among other arguments, CSF shall have to make it clear that there is
a big difference between our country Curaçao and the earlier mentioned
groups whose territorial claims and unlawful searching for
international recognition through the Games, have been denied in the
past and have caused the existence of Rule 31.1.
Next to the noted reasons, it is important to underline that an IOC
decision to consider Curaçao a country in line with Rule 31.1, is not
against no other party’s interest. The absence of whatever harm suffering
of others may not be a legal ground for the requested recognition,
but surely it should be regarded as favorable to CSF. I hereby refer to
the recognition disputes such as: China - Taiwan ( heavy political confrontations
); Scotland- Great Britain ( precedent effect, once part of
Great Britain NOC, no alteration unless change of constitutional status
by Scotland) ; Kosovo-Russia / Serbia ( difficult rooted regional
internal political contests) and the several others, who for many years
already are blocked from IOC recognition due to objections by powerful
interested parties. Besides the absence of a harm suffering party,
recognition of the CSF, will also not create any political tension or
imbalance in our region or elsewhere. And most important….,
Curaçao has no intention whatsoever to abuse IOC recognition for
political purposes. In other words, there is no justifying third party
linked reason to withhold the CSF the IOC recognition. In concluding
this paragraph I want to point to the fact that for a while already,
there has hardly been any so-called Independent State, with really full
control over its initial sovereign territory or actions. Mostly for efficiency
reasons, many became an integrated part of a larger entity and
have subjected their constitution and laws to supranational law provisions.
Examples are the European countries, but also the newly
formed Soviet States within the Russian Commonwealth. These
developments have led to a new phenomenon rising with regard to
statehood, referred to as interdependent states 85 . I therefore once more
emphasize that applying the outmoded verbatim text of Rule 31.1
must be on a casuistic basis.
6. No IOC recognition without Charter compatibility
The foregoing chapter explained that statehood conceptions are
judged differently nowadays, since the evolution of international relations
between countries makes the conventional definitions outmoded.
It was also brought forward that the future country Curaçao will
fulfill nearly all required aspects of statehood reflected by the most
respected countries today and I emphatically advocated a case by case
approach when using Rule 31.1.
In this chapter I will present the most important sine qua non conditions
and highlight the essentials CSF needs to cover and comply
with, in order to become eligible. In this section I also make mention
of meetings I had with reputable experts in Europe on the matter.
6.1 Resetting the legal position of CSF
Somewhere in September 2008 I once again read in the newspaper
that the NAOC will be maintained because an NOC of Curaçao is
not achievable, due to Charter Rule 31.1. Being very sensitive to
national Olympic representation, it was against my gut feeling. To
verify the matter I then contacted some former Olympic international
friends, who requested me not to refer to them because they occupy
important positions on their NOCs. All listened to my story and
advised to not accept the rejection solely based on Rule 31.1 and to
find ways to CAS arbitration or even the Swiss court. Among these
friends are former Dutch and British world top contenders.
Analyzing the situation it became clear to me that I will have to win
the hearts and minds of the CSF board and the members, in order to
go against the NAOC proclamation. Collecting information was crucial
and since I stepped down as president of the Curaçao Lawn
Tennis Federation in 2005, my access to information is very much
limited and could solely rely on confidential cooperation. I also knew
upfront that this would not be easy, given the threatening nature of
my opinion. I came quickly to the logical conclusion that I will need
adequate lobbying to get me there. Luckily, out of nowhere I ran into
a former senior governmental sports advisor and it appeared we share
the same vision on the matter. In a very short time we met frequently
and at a point decided to team up to pursue what we believe in.
Things like this of course do not remain undiscovered in a small
community. In no time we were labeled troublemakers in the media
and experiencing heavy resistance to our expressed idea. This was not
surprising since no one so far has questioned the related NAOC steps.
It quickly became clear that politicians and some of the other islands
sport federations were supporting NAOC in its slick survival struggle,
without even being aware that nation-owned valuable future rights
were giving away without even having investigated the possibilities for
Curaçao. Based on the aggressive reaction we realized that we were
disturbing the smooth runway NAOC and company have had so far.
Knowing that the CSF is the only entity that truly can claim formal
representation of the Curacao sport society, we were very happy when
asked to do an informing presentation to a selected audience consisting
of IF’s, governmental officials and a few members of the Island Council
of Curaçao. Meanwhile I had made contact with the T.M.C. Asser
A RT I C L E S
2009/3-4 55