Some
Critical Aspects regarding the UN Secretary General's Proposal for a
Comprehensive Settlement of the Cyprus Problem (Revision 26 February
2003) by Univ.-Prof. Dr. Peter Pernthaler
University of Innsbruck, Austria Published with the permission of
the YEDITEPE UNIVERSITY FACULTY OF LAW. This article was
first published in the Journal of Yeditepe University Faculty of
Law I. The Legal Position of the Peoples of Cyprus
The two populations of Cyprus are two clearly
distinct ethnic groups, which means that there is no homogeneous
"nation" or "people" of Cyprus that could exercise a "national" right
of self-determination for the entire island.(1) Therefore, both the
Greek Cypriot and Turkish Cypriot community are subjects of the right
of self-determination in Cyprus.(2) Neither of the two ethnic groups
(peoples) possesses the de iure or the de facto power to deny or
overrule the right of self-determination of the other group.(3)
The sovereignty of the historically
"semi-federal"(4) state of Cyprus was clearly defined and restricted by
international law (London and Zurich Agreements of 1959) in order to
protect the Turkish Cypriot community. The illegal amendments of the
constitution and the violation of the civil rights of the Turkish
population during the early sixties therefore surpassed the legal scope
of Cyprus's sovereignty (ultra vires acts).(5) These acts immediately
caused a civil war between the two populations. The constitutional
amendments certainly cannot be supposed to have created "one Cypriot
nation", because they could not be accepted by the Turkish population,
whose share in the constitutional power had been granted by
international treaties. Nor could these acts create a new type of
unitary state dominated by the Greek Cypriots, because this was not
within the de iure or the de facto power of the Greek authorities.
Thus, the "new state" was a de facto Greek Cypriot national
regime.(6) In principle, the Treaties of 1959
and 1960 still exist legally(7), although practically, on account of
the constitutional changes and the new political situation in Cyprus
they are more or less inapplicable.(8) Both existing states -i.e. the
so-called "Republic of Cyprus" and the Turkish Republic of Northern
Cyprus (TRNC)- are illegitimate regarding the provisions of the
treaties of 1959 and 1960 as well as the constitution of 1960. The
division of both the island and the ethnic groups, which is based on a
complex pattern of clearly illegal acts, makes the reinstatement of the
former constitution (1960) and the application of the larger part of
the Treaties impossible. Therefore, the Treaties should be rephrased in
order to create a new international guarantee for a Cypriot
confederation. Until 1963, the Turkish
population of Cyprus had been a national community that shared
territory and lived intermingled with the Greek majority. Since the
illegal destruction of its constitutional status the Turkish population
has developed to a separate and independent political entity which has
no connection to the Greek Cypriot national regime. Since the illegal
ethnic dividing of the population and the establishment of two separate
territories caused by the Turkish military intervention one has not
been able to speak of "national communities" any longer, but rather of
two different peoples inhabiting the island.(9) II. Statehood and
Recognition Although international law today
clearly grants a right of self-determination to all peoples, it does
not provide a mechanism for the unilateral secession from an existing
state, because this would violate the principles of the integrity and
sovereignty of a state. The foundation of the TRNC, however, was no
secession from a semi-federal state of Cyprus, but rather a reaction to
the foundation of the national Greek Cypriot de facto regime leading to
10 years of civil war.(10) Both de facto
regimes in the north and in the south of Cyprus have now developed into
national states, simply because they possess all essential elements of
independent states that are required by international law, i.e. they
exercise stable and effective constitutional power on a clearly defined
territory and over permanent population without foreign
control.(11) The disavowal of the TRNC by all
states except Turkey is a severe practical problem, which, however, has
no legal effect on its quality of being an independent state according
to the prevailing declaratory theory.(12) The resolutions of the UN
Security Council 541/1983 and 550/1984 not to recognize the TRNC as a
state are merely political advice and not legally binding.(13)
Moreover, they are legally self-contradictory, because they do not
consider the illegal acts that were first performed by the Greek
Cypriots as being the main reason for the establishment of a separate
Turkish Cypriot state.(14) The de facto existence of two national
states in Cyprus legally and practically impedes the application of
those parts of the Treaties of 1959 and 1960 that were the legal basis
of the constitution of the semi-federal "Republic of
Cyprus". Both the new Turkish Cypriot and Greek
Cypriot state represent the former "Republic of Cyprus" within their
respective territories. Although the TRNC is protected by the strong
presence of Turkish troops, it cannot be dismissed as a "puppet-state"
that lacks real sovereignty, because it represents the national
self-determination of the Turkish Cypriot population. The TRNC
government is neither legally nor practically dependent on or
represented by Turkish authorities.(15) Since
there are two legally independent political entities presently, both of
them partly representing the "Republic of Cyprus", the Greek Cypriot
state cannot claim to be its sole successor. Within its particular
territory, each state represents the continuity of the former "Republic
of Cyprus". Therefore, the "part-states" can legally provide two
separate citizenships, because each "part state" has the legal power
over its own citizens and thus controls the conditions of obtaining
citizenship.(16) Therefore, it will not be illegal if the Turkish and
the Greek Cypriot state naturalize persons originating from their
respective ethnic group outside Cyprus. Since, however, according to
international practice only the Greek Cypriot state is recognized as
the successor of the former "Republic of Cyprus", it will be legal if
the Greek Cypriot state assists and protects members of the Turkish
ethnic group with respect to international concerns, because these
subjects are no foreigners, but citizens of the former "Republic of
Cyprus".(17) III. The Foundation of a Federal State of "The United
Cyprus Republic" in the Light of Constitutional and International
Law The foundation of a federal state implies
that -beyond codified federal constitutional law- a whole body of
unwritten determinants, derived from international and constitutional
law and state theory, is co-adopted and embodied on a constitutional
basis ("constitutional pre-understanding"). These determinants are
inextricably connected to the term "federal state", which has been
developed in constitutional and international practice since the
foundation of the "model federal states" of the USA (1787) and
Switzerland (1848). Further to that, the Foundation Agreement itself
refers to the Swiss federal system as its underlying model (Art 2). It
remains unclear which basic structures and unsaid principles of Swiss
federalism, and to what extent, are to be inherited in this way. In
doubt, it is to be assumed that, according to the wording of Art 2 of
the Foundation Agreement, the essential structures (basic principles)
of Swiss federalism are fully inherited. In
detail, this means most notably: A) The
constituent states' designation as "sovereign" is as irrelevant and
misleading as the similar designation used for the Swiss cantons under
Art 3 of the Swiss Federal Constitution of 1999. In truth, only the
federation ("federal government") is sovereign under international and
constitutional law. 1. This is due to
international law and European law in so far as both of them are
"federalism-blind", which means that, without explicit constitutional
authorisation, they only recognize the state as a whole, and its
governmental organs, as international law subjects (monopoly of
international and European legal personality enjoyed by federal
organs). The proposed federal constitution and the Foundation Agreement
do not only provide no exception in favour of the constituent states,
but virtually confirm this structure (Art 2 of the Foundation
Agreement; Art 1 of the Constitution). This is in conformity with the
Swiss model, which provides the federation's monopoly regarding
international law and foreign policy (Art 54 of the Federal
Constitution), but only very limited and inferior exceptions in favour
of the cantons who, however, need to co-operate with the Federal
Government (Art 55 and 56 of the Federal Constitution).
2. Such a constitutional and international
legal basis is unacceptable if a permanently peaceful and just
settlement between the two ethnic groups is to be achieved: As a
consequence, the Turkish community would lose its right of
self-determination and, losing its legal personality, become incapable
to act under international law. This is confirmed by the explicit
exclusion of the constituent states' right of secession (Art 1 § 6 of
the Foundation Agreement), which, in its absolute formulation, might
even be invalid and in breach of international law.(18)
3. Any legal solution to the Cyprus problem
must provide the constituent republics with a sufficiently autonomous
legal personality and capacity to act under international law in order
to allow them to enforce their indispensable interests and conditions
of existence against the international community and, in particular,
against the EU, freely and independently. The solution, as provided by
the Foundation Agreement and the Constitution, presupposes a unitary
state of Cyprus at the level of international law, which only
recognizes a limited autonomy of the constituent states within its
internal dimensions. This model, which follows the Swiss Federal
Constitution, is not at all qualified for preserving the
self-determination and independence of the Turkish ethnic group, as it
would need a homogeneous nation of the state, which is very clearly
expressed by the preamble to the Swiss Federal Constitution ("The Swiss
people"…). It follows from these reflections
that Cyprus requires a multinational federal state shaped after the
model of Belgian or Canadian federalism in principle, but adapted to
the specific situation of the Turkish Community within the framework of
a multi-national confederation of states. According to the model
proposed by the Foundation Agreement, the Turkish Community would not
have any chance to independently determine the EU accession treaty
(which was lopsidedly negotiated by the Greek side), although this
would be essential, or to enforce its rights autonomously before the
courts. Neither are the regions (constituent states) yet entitled to
sue before the European Court of Justice; nor has Turkey, as the
Turkish Community's protection power, joined the EU, which makes it
impossible for Turkey to represent a legal case relating to the Turkish
Community within the EU organs. By contrast, the Greek Community would
not only dispose of a majority within the proposed federal organs of
Cyprus, but would also enjoy the protection of Greece, which is a EU
member state. In case of conflict, the Greek Community could thus act
independently - both legally and politically - at the level of the EU
and that of the international community. 4.
The Foundation Agreement does not even itself provide an independent
mechanism of actions and legal review in favour of the Turkish
Community or the Turkish constituent state, which would be indis
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