The Cyprus Issue Current Developments, Legal Aspects and Prospects for a Federal Solution

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1 and Prospects for a Federal Solution In-House Seminar 17/06/2014 Speaker: Aristoteles Constantinides Assistant Professor, University of Cyprus Moderator: Hakan Akbulut Research Fellow, oiip Venue: oiip Conference Room Participants: 10 Author: Hakan Akbulut

2 Zusammenfassung Die Verhandlungen zur Wiedervereinigung der Mittelmeerinsel Zypern wurden im Februar 2014 wiederaufgenommen, nachdem sich die Seiten auf den Text einer gemeinsamen Erklärung einigen konnten, der die Parameter der Lösung, auf die hingearbeitet werden soll, sowie die Modalitäten der Verhandlungen vorgibt. Insgesamt wurde das Ziel einer bizonal und bikommunal organisierten Föderation bestätigt. In seinem Vortrag hat Aristoteles Constantinides die Genese des Konflikts kurz nachgezeichnet, die aktuellen Entwicklungen skizziert und die legalen Aspekte beleuchtet und diskutiert. Abstract Negotiations to put an end to the division of the Mediterranean island of Cyprus restarted in February 2014 after the Greek and Turkish Cypriots reached agreement on a joint declaration which sets out the parameters of an eventual solution and defines the modalities of the negotiations. Overall, the goal of reunification under the roof of a bi-communal and bi-zonal federation was reaffirmed. In his presentation, Aristoteles Constantinides briefly summarized the evolution of the conflict, outlined current developments, and highlighted and discussed legal aspects. 2

3 Summary In his presentation, Aristoteles Constantinides briefly summarized the evolution of the conflict in Cyprus, referred to recent developments, and discussed a number of relevant legal aspects. He first drew attention to the fact that 2014 marked the anniversary of a number of tragic but also positive developments in Cyprus. To begin with, the capital of Nicosia has been divided since It is also worth remembering that in 1964 UN troops were deployed to Cyprus. Ten years later, Turkish troops landed on the island. Thus, Constantinides stated, more than one third of Cyprus has been under occupation for almost 40 years. On the positive side, 2014 marks the 10 th anniversary of Cyprus accession to the EU. Recently, there have also been a number of other significant developments. In February 2014, Greek and Turkish Cypriots reached an agreement on a joint declaration that sets out the parameters of an eventual solution and defines the modalities of the negotiations. This opened the way for a resumption of intercommunal reunification talks after a hiatus of almost two years. Moreover, in May 2014, the European Court of Human Rights (ECHR) made a historical judgement in a case, where the merit judgement had already been made back in This time, the Court decided on the remedy to be paid to the relatives of missing persons as well as to the Greek Cypriot residents of the Karpas peninsula (in Northern Cyprus), whose rights have been violated by Turkey as the Court found. Constantinides pointed out that this was the first ruling on just satisfaction in an interstate case (Cyprus vs. Turkey). Constantinides, thereafter, went back in history and referred to what he termed the reluctant foundation of the Republic of Cyprus in Reluctant because independence constituted a compromise formula that many people did not support. The Greek Cypriots had been in favour of enosis (i.e. unification with Greece) while the Turkish Cypriots would have rather seen taksim (i.e. a partition of the island between the two communities and union with Greece and Turkey respectively) materialize in case the status quo was to change. Independence was a formula preferred by the then colonial power, Great Britain, Constantinides explained. 3

4 The first president of the Republic, Archbishop Makarios III, soon proposed a number of amendments to the constitution which, from his point of view, was dysfunctional and impracticable given the built in compromise arrangements. This was very much to the dismay of the Turkish Cypriots who withdrew from government or were expelled Constantinides maintained that different accounts of what exactly happened existed and that historians would need to clarify that. Inter-communal violence broke out on the island in late Ever since, Turkish Cypriots and Turkey have contested the lawfulness of the government of the Republic of Cyprus. With regards to the domestic legislation, the so-called Ibrahim decision of the Supreme Court taken in 1964 provided clarification according to which the Parliament of the Republic of Cyprus could enact laws in absence of Turkish Cypriots in the light of the doctrine of necessity. In 1974, Turkish troops invaded the island and brought more than one third of the territory under their control. Ever since, Turkey has argued that this was in line with the Treaty of Guarantee signed back in However, Constantinides highlighted that in his personal view and also for most international lawyers, this was a very weak and insufficient legal basis. Overall, the operation constituted an illegal use of force and there was no justification for the Turkish occupation, Constantinides asserted. He also quoted from a UN report drafted by Hans Kelsen in 1959, which held that Article 3 of the Treaty of Guarantee was to some extent, obscure but cannot validly be interpreted as granting the guarantors an unqualified right to intervene by use of armed force. The proclamation of the Turkish Republic of Northern Cyprus (TRNC) in 1983 was condemned by the international community and the UN Security Council, which declared the proclamation to be invalid. Furthermore, the Security Council called upon the international community not to recognize the secessionist entity, Constantinides recapped. Turkey was, in fact, the only country to recognize TRNC and exchange ambassadors. Both communities on the island had to suffer a lot, Turkish Cypriots especially before 1974 and Greek Cypriots during and after the Turkish invasion. Many people lost their homes; others were killed or remain missing until today. Over the years, many cases have been referred to the ECHR. A landmark ruling was made in the case Loizidou vs. Turkey in the mid-1990s. The ECHR found that the displaced Greek Cypriots remained the lawful owners of their properties in Northern Cyprus and nothing adopted by the TRNC had validly affected their rights as lawful owners. This has been reaffirmed in subsequent cases. 4

5 In the case Demopoulos and ors v. Turkey (2010), the ECHR found that the Immovable Property Commission (IPC) set up by Turkey in the TRNC constituted a proper and effective legal remedy mechanism, which should be used by Greek Cypriots before referring their case to the ECHR. This was very much to the dismay of Greek Cypriots as they were barred from directly taking their case before the ECHR. Nevertheless, Constantinides pointed to the significance of the latest ruling of the ECHR mentioned above, which held that the Court s decision in the case of Demopoulos and Others, cited above, to the effect that cases presented by individuals concerning violation of property complaints were to be rejected for non-exhaustion of domestic remedies, cannot be considered, on its own, to dispose of the question of Turkey s compliance with section III of the operative provisions of the principal judgment in the inter-state case. Consequently, the property issue was not resolved in 2010 and continues to constitute a major topic in current negotiations. In a next step, Constantinides discussed the basic parameters of an eventual solution, which were agreed upon back in the 1970s. There was agreement that a reunited Cyprus should constitute a bizonal and bicommunal federal republic. Furthermore, the basic features of a settlement were also outlined in various UN documents. The UNSC Resolution 750 (1992), for instance, held that a Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded, and comprising two politically equal communities as defined in paragraph 11 of the Secretary-General's report (S/23780) in a bi-communal and bi-zonal federation, and that such a settlement must exclude union in whole or in part with any other country or any form of partition or secession. The terms political equality, bizonal and bicommunal were further defined and explained in other UN documents, too: While political equality does not mean equal numerical participation in all federal Government branches and administration, it should be reflected inter alia in various ways: in the requirement that the federal constitution of the State of Cyprus be approved or amended with the concurrence of both communities; in the effective participation of both communities in all organs and decisions of the federal Government; in safeguards to ensure that the federal Government will not be empowered to adopt any measures against the interests of one community; and in the equality and identical powers and functions of the two federated states. (UN Doc. S/21183, 8 March 1990, annex, pp. 7-8). Furthermore, the bizonality of the federation is reflected in the fact that each federated state would be administered by one community which would be guaranteed a clear majority of the population and of land ownership in its area (UN Doc , 3 April 1992, para. 20). 5

6 Constantinides asserted that this definition of bizonality was to some extent problematic given the size of the two communities on the island. This interpretation of bizonality would imply a limitation on the number of Greek Cypriots that could return to Northern Cyprus in the case of a settlement. Otherwise, this would challenge the numeric majority of Turkish Cypriots in their zone. Hence, it was necessary to find a formula which could accommodate both the concept of bizonality as well as international human rights law and EU law given the four freedoms, including those of free movement and establishment. Permanent derogations from EU law constituted, according to Constantinides, also one reason why the majority of Greek Cypriots rejected the Annan Plan in Moreover, accepting the plan would have meant giving up the possibility of taking their cases before the ECHR to settle property issues. Also conditioning the Greek Cypriot no was that Turkey would have retained its status as a guarantor power as well as the lack of strong enforcement mechanisms and the related concern that the terms of the agreement were impracticable. Apart from these and similar reasons, the Greek Cypriots were about to join the EU and assumed that they would be able to negotiate a settlement on better terms as an EU-member. However, this has not been the case so far. In the final part of his presentation, Constantinides discussed the Joint Declaration adopted in early February The Declaration holds that the status quo is unacceptable for both parties and reiterates the basic parameters of a settlement which shall be based on a bi-communal, bi-zonal federation with political equality [ ] single international legal personality and a single sovereignty, [ ] which emanates equally from Greek Cypriots and Turkish Cypriots. Moreover, next to a single united Cyprus citizenship, there should be citizens of either the Greek-Cypriot constituent state or the Turkish-Cypriot constituent state. Constantinides underlined the significance of this wording given divergent Greek and Turkish Cypriot understandings on fundamental issues. He noted that from a Greek Cypriot perspective only one people but two different communities existed on Cyprus. Accordingly, there should be one single state composed of two entities. For Turkish Cypriots, however, there were two people with a distinct right to self-determination and, hence, to their own states. Thus, Turkish Cypriots would like to reunite with the Greek Cypriots under the roof of a confederation. Constantinides also underlined that under international law the TRNC was not considered a state but rather an illegal entity. 6

7 The Joint Declaration also refers to EU law and holds that the principles upon which the EU is founded will be safeguarded and respected throughout the island. This implied full freedom of establishment and movement throughout the island, Constantinides argued. Therefore, there should be no derogations as envisaged in the Annan Plan. Going further, the Declaration also states that negotiations are based on the principle that nothing is agreed until everything is agreed and that a final agreement should be put to separate referenda in the end. Ultimately, Constantinides once more pointed to a number of difficulties and contentious issues in the current round of negotiations. The conformity of a final agreement with EU law constituted such a challenge. The Turkish Cypriots favoured permanent derogations from EU law to guarantee Turkish Cypriot majority in their constituent state once a settlement had materialized. The Greek Cypriots, on the other hand, opposed such derogations and were willing to accept transitional arrangements to accommodate Turkish Cypriot concerns. With regard to the property issue, the main point of contention was as to who should decide which settlement formula should apply (compensation, restitution or a swap), the original owner (as demanded by the Greek Cypriot side) or the current user (as the Turkish Cypriots demand). In terms of security and guarantees, the Turkish side was in favour of retaining the Treaty of Guarantee while this was a no-go for Greek Cypriots. The future status of settlers from the Turkish mainland was another contentious issue, Constantinides stated and added that under international law the alteration of the ethnic composition of an occupied territory constituted a war crime. Overall, given all these and other contentious issues, Constantinides concluded that it was no surprise that the Cyprus issue had remained unresolved for so many years. Constantinides argued that, given the developments in countries such as Egypt or Syria, the region could not bear anymore instability, which made a settlement on the island of Cyprus even more urgent. This was one reason conditioning a renewed and enhanced international interest in the Cyprus issue. The discovery of gas in Cyprus exclusive economic zone was another factor why actors such as the US moved to upgrade their efforts in contributing to a solution. It was no coincidence, Constantinides asserted, that a US vice-president had visited the island for the first time in 50 years. At the same time, one needed to consider that the gas issue had caused some additional tensions with Turkey that objected the delimitation of the exclusive economic zone of the Republic of Cyprus with other countries for reasons that were not very clear or lacked legal justification. 7

8 Overall, Constantinides presentation once more highlighted the complex nature of the Cyprus issue and showed that, even after so many years of negotiations, fundamental issues have not been settled. Nevertheless, the status quo does not serve the interests of either the Cypriots or of countries such as Turkey. Furthermore, given the developments in Ukraine or in the MENA region as well as the discovery of gas in the Eastern Mediterranean, the actors do not seem to have any choice but to continue to push for a solution. Whether all the contentious issues can be sorted out this time and reunification materializes within the framework of the EU, remains to be seen. Aristoteles Constantinides is an Assistant Professor of International Law and Human Rights at the Law Department of the University of Cyprus. He is a founding member of the Department, which was established in He was educated in Greece and holds a PhD in International Law from Aristotle University of Thessaloniki. He has been a visiting scholar at the European Inter-University Center for Human Rights and Democratization in Venice, the Amsterdam Center of International Law and the University of Grenoble. He reports on Cyprus for the Oxford Reports on International Law in Domestic Courts. He is a member of the International Law Association Committee on Recognition and Non-Recognition in International Law, the International Law Association Committee on Non- State Actors, the Cyprus National Bioethics Committee, the Committee on the Reform of the Cyprus Law on Prisons, the Committee for Migrants, Refugees and Asylum Seekers of the Cyprus Red Cross as well as various other academic and professional associations. His research interests and publications include the law of the United Nations, statehood and recognition, international law in domestic courts, socioeconomic rights and development as well as non-state actors, particularly armed opposition groups. Finally, he is also a member of the team of lawyers advising the Greek Cypriot negotiator in the current round of negotiations for the settlement of the Cyprus problem. 8