Islj 2009 3-4 - TMC Asser Instituut

however it will all come to the level of drive and determination of the
involved parties.
The formal request for recognition to be presented at the IOC,
must contain well selected justifying and legal arguments, and also
include supporting legalized exhibits. I am aware that once hired, the
experts will come up with a few more, but in this chapter I have listed
my most relevant advocating arguments supporting the request at
IOC or later instances.
7.1 The CSF main legal arguments
Argument # 1
Equality among the countries in the Kingdom is part of the Charter of the
Kingdom of the Netherlands.
Based on the Charter of the Kingdom, constituted in 1954, every
country in the Kingdom shall have the same constitutional rights and
in particular each shall be entitled to independently take care of its
own interests 93 . Self-representation and participation at Olympic
Games or alike, is not singled out. Holland and Aruba already have
their own NOC. Withholding Curaçao (CSF) IOC recognition, will
create an unacceptable disharmony and unneeded controversy among
the countries. The Kingdom will certainly be forced to step forward
to protect the interest of Curaçao.
Argument # 2
The Kingdom of the Netherlands has never had an NOC.
Contrary to other Monarchies or Republics with overseas associated
countries or territories, the Kingdom of the Netherlands has never
had a centralized NOC. Each country within the Kingdom has always
provided for its own NOC which has ever since been regarded a
national identity in each of the countries, considered to be very
important for the national sports development and the unity among
their people. An imposed continuation of the NAOC of a dissolved
Netherlands Antilles devaluates the autonomy of Curaçao as compared
with Aruba and Holland.
Argument # 3
The Charter does not provide for any geographical and sports authority as
the NOC.
The islands of the Netherlands Antilles will no longer have a constitutional
unifying relationship. The Olympic Charter has no provision
for an NOC consisting of more countries and fractions of another
country. Neither is there any provision to accept a “geographical and
sports authority” as an NOC. This bethought solution is against the
interest of the new country Curaçao.
Argument # 4
Curaçao historically has its own national sports federation with active
affiliated member federations, and has adapted its Statute to IOC standards.
In accordance with the Charter Rule 29.5, the jurisdiction of an NOC
must coincide with the limits of the country where it is established
and has its headquarter. The CSF, the national federation of Curaçao
has existed since 1968 and has already jurisdiction over Curaçao as
regards sports. Once Curaçao becomes an autonomous country, the
CSF is willing and prepared to act in accordance with the Charter.
Consequently, the CSF will take charge and be the NOC of Curaçao.
Its members will become the national sports federations and will also
be prepared to take on their obligation in this connection. Solutions
in which federations of a dissolved Netherlands Antilles are maintained
are against the interest of Curaçao and therefore not acceptable.
The IOC is requested not to support violations against Rule 29.5
and, consequently, accept the CSF as the single entitled party for
Curaçao, able to comply with the rule mentioned.
Argument # 5
The General Assembly of the CSF has chosen for its own IOC recognition.
The NAOC has never had authority over the Olympic future of an
autonomous Curaçao.
The NAOC and the IOC were made aware that the CSF has formally
elected to pursue its own IOC recognition and were requested to
respect this rightful choice. Although not a condition, the CSF position
taken has the support of the island government. As a result, the
presented NAOC Resolution of July 5, 2007 has no effect or meaning
for Curaçao. The CSF was never part of it. Reference is made to the
fact that the IOC and the NOC /NSF Holland have conditioned the
continuation of the NAOC with the approval of each of the five
islands. The CSF, the lawful representative of the Curaçao sports society,
has never approved NAOC’s continuation and will not do so in
the future either.
Argument # 6
Denying CSF the IOC recognition is an act against the Fundamental
Principles of Olympism.
Curaçao will undisputedly be a self governing country, equal to
Aruba and Holland. It will have the capacity to independently take
care of its interest as can be seen in the Preamble Charter of the
Kingdom of the Netherlands. The choice of being part of the
Kingdom of the Netherlands is a political. According to Fundamental
Principle of Olympism # 5 “ Any form of discrimination with regard
to a country or a person on grounds of race, religion, politics, gender
or otherwise is incompatible with belonging to the Olympic
Movement”. According to Charter Rule 1.2 the IOC is also part of the
Olympic Movement and fully bound by the Charter. And in addition,
the IOC has formally adopted the UN Charter which grants
equal rights to peoples.
Argument # 7
UN Resolution A/RES/53/189, February 12, 1999 is applicable.
Once autonomous, Curaçao will be added to the UN list of developing
small island states. In accordance with the UN Resolution on
this, these countries need to be assisted additionally because of their
limited territorial size and small population. In line with this, application
of a more current interpretation of Rule 31.1 in favor of the
CSF will be consistent with the spirit of this said UN Resolution.
Argument # 8
The access doctrine of Sports Law supersede Rule 31.1
The access doctrine in Sports Law prescribes promotion of participation
and disavows exclusion. Rejecting the CSF request for IOC
recognition de facto means denying these athletes, falling under the
jurisdiction of the CSF, the effect of this doctrine. Given the
explained status of Curaçao, once autonomous, the overtaken meaning
of Rule 31.1 must be derogated by the mentioned Sports Law doctrine.
Argument # 9
Participation under the NAOC will establish a precedent effect against
the CSF.
If an autonomous Curaçao participates in the next Games under
the suggested artificial, and in fact illegal, NAOC identity, it may be
bound by the precedent effect, an often used customary in
International Law, making it very difficult to recall the choice once
made. The CSF is aware of this and wants to avoid being forced into
that position. The CSF therefore requests the IOC not to accept the
suggested geographical and sports authority NOC format as mentioned
in the NOC Relations Department letter to NAOC and
NOC/NSF, but to grant the CSF the requested recognition for appropriate
representation in accordance with the Charter.
Argument # 10
The CSF request for recognition qualifies for a decision ex aequo et bono
applying the legal method of rule interpretation.
Based on all the foregoing it is clear that the situation of Curaçao
is exceptional. Considering that the country is on its way to become
93 Charter of the Kingdom of the
Netherlands, Preamble.
A RT I C L E S
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