pensable
in order to review subsequent constitutional amendments that diminished
the Turkish Community's rights. Considering the negative experience
which the Turkish Community suffered from the former Republic of
Cyprus' constitutional reviewing mechanism, such an international
protection mechanism would be indeed imperative. The Monitoring
Committee, created by the proposed Treaty between Cyprus, Greece,
Turkey and the United Kingdom on Matters Related to the New State of
Affairs in Cyprus (Annex IX, Attachment 1), would provide a purely
international law procedure, which would be open neither to the Turkish
Community nor the Turkish constituent republic.
5. According to the Swiss model, the
constituent states neither are sovereign under constitutional law,
since they do not enjoy exclusive, supreme and independent state power
within their territories. The constituent states are subordinate to the
federal constitution and the federal constitutional jurisdiction,
enjoying only those state functions which are allocated to them by the
federal constitution. According to the proposed allocation of powers
(Art 14 of the Constitution) essential competences would be reserved to
the central government. Beyond that - as in all federal systems -,
there would be an obligation as to federal loyalty (Art 2 § 2 and 3 of
the Foundation Agreement), which, being not exhaustively determined, is
usually made more concrete by the jurisdiction of a Federal
Constitutional Court, which creates new obligations and reduces the
constituent states' autonomy. 6. Above all,
however, the constituent states are not sovereign, since they are
legally and politically subordinate to the supranational power of the
EC (EU), without being entitled to direct participation, as the member
states are. EU law takes priority in the constituent states as well:
They are obliged to enforce and implement it effectively, being subject
to supranational and national measures of supervision (e.g. transfer of
competences, cf. Art 19 § 5 of the Constitution). It is true that Art 2
§ 2 of the Foundation Agreement provides the constituent states' right
to take part in formulating and implementing European and international
policies. This participation procedure, however, is limited to the
constituent states' own competences and does not comprise their
autonomous representation at the international and European level,
which is reserved to the federation. Co-operation with the Federal
Government thus becomes essential and needs to be practically
determined by co-operation agreements. 7. The
reference which is made to the "Belgian model" by the Foundation
Agreement is misleading in this context, since the Belgian allocation
of powers relies on a totally different system (cf. Art 167 of the
Belgian Constitution). As Art 2 § 1b of the Foundation Agreement and
Art 14 of the Constitution provide the federal government with an
exclusive and uniform competence regarding international and European
law, all rights of participation solely refer to the intra-national
organisation of this exclusive federal power sub reservo the devise "to
speak with one voice" within European and international organs. This
means, that in case of conflict the federal government will be
definitely competent to determine and represent a "uniform position" of
the Republic of Cyprus, which results from its rights of representation
within international and European organs.
B) The foundation of a federal state based on
two equal constituent states, as proposed by the drafted constitution,
neither solves the question of the sovereignty of the state as a whole
and the constituent states in the sense of self-determination nor will
it ensure sufficient protection if the Greek majority abuses the
constitution. 1. Today, both federal theory and
practice agree that not the constituent states, but the federation
(federal government) are sovereign under international and
constitutional law. The allocation of powers and structural
organisation of a federal state only provides the constituent states
with constitutional rights of co-determination and participation in
federal government according to standards laid down by federal
constitutional law, which rely on confidence and co-operation between
the federation and the constituent states ("federal loyalty"). Without
this basic political requirement, a federal state will not be able to
work and will be forced to solve future crises unilaterally by
empowering the federation - either written or unwritten - to act with
unlimited emergency powers. Due to the federal government's sovereignty
and emergency powers the regular federal system is incapable to protect
nations or ethnic groups, which dispose of a majority in only one
constituent state, unless there were - as in Canada or Belgium - an old
tradition of peoples living peacefully together and being mutually
loyal to each other, which is obviously lacking in Cyprus
presently. 2. If, under such a federal
solution, nationalities are to be protected effectively and
permanently, the compliance with the federal constitutional framework
will need to be supervised and enforced by supra-state control and a
sanction mechanism. Such an external control on the federal system's
functioning, however, is not explicitly provided by the UN Plan, if one
abstains from the reference "that the Treaty of Establishment, the
Treaty of Guarantee und the Treaty of Alliance shall remain in force
and apply mutatis mutandis to the new state of affairs" (Art 1 § 3 of
the Foundation Agreement). In practice, these treaties will have as
little effect to the new federal system as to the Constitution of 1960
and would, moreover, need to be amended and completed by a new treaty
between Cyprus and the guarantor powers. This concept is to be turned
down in particular, as it would vest the new federal state (as a
whole), being party to the agreement, with the sole international law
guarantee, whereas, vice versa, the international sovereignty of the
federal state would need to be restricted in order to protect the
rights of the Turkish Community. 3. Thus, the
sole acceptable solution would be a special confederal arrangement
between the two existing Cypriot states, at any rate for a certain
period of time. Only such a confederal solution could ensure a special
international status and legal protection of the Turkish Community.
Moreover, a confederal arrangement could gradually inspire political
confidence in both ethnic groups, whose faith in a joint political and
legal future would be indispensable for a successful federal system.IV.
Some Comments on the Consequences of EU Membership regarding the
Protection of the Rights of the Turkish Population1. In Case of
Reunification and Commencement of the Legal Acts Related to the
"Comprehensive Settlement": A. The restrictions
imposed on the freedom of establishment and the acquisition of land by
the Foundation Agreement and the Constitution (in particular,
Attachment 3: "Constitutional Law on Internal Constituent State
Citizenship Status and Constituent State Residency Rights") are
necessary in order to protect the Turkish Community from foreign
infiltration, but contravene the EU's acquis communautaire as well as
the European Convention on Human Rights. They would thus need to be
embodied in EU primary law by the means of special provisions in the
Accession Treaty. Beyond that, the Turkish constituent state will be
likely to take additional measures of protection, which cannot be
pinpointed at the moment, since they depend on the factual -
particularly, economic and social - development in the aftermath of
reunification. It may be possible as well that the measures provided by
Annex VII: "Treatment of Property affected by Events since 1963"
individually contravene EU law and the European Convention on Human
Rights, although it is impossible to determine them more precisely at
present. B. The "Protocol requested to be
attached to the Treaty of Accession of Cyprus to the European Union",
which is provided by Annex IX, does neither suffice regarding its
general conception nor its detailed provisions, if the aforementioned
special provisions are to be guaranteed on the basis of European law.
First of all, article IV of its preamble relativizes the whole
dimension of protection as provided by the Protocol, as it is
understood to achieve "Accommodation of the Foundation Agreement in
line with the principles on which the European Union is founded". These
"principles" - which mainly consist of the four fundamental freedoms,
but also of other basic structures of European law - thus take priority
over the rules laid down in the Protocol, which - being exemption
clauses - have to be construed narrowly anyway. Moreover, as regards
time and content, these proposed special provisions seem to be too
restrictive to guarantee sufficient protection to the Turkish Community
for longer periods. In particular, one cannot find any exemption clause
regarding the European Convention on Human Rights, regarding the
property question (Annex VII) or in favour of necessary future
protection measures taken by the Turkish constituent state. Whereas, in
this respect, the Federal Government might at least negotiate with the
EU (without any promising prospects of success), the Turkish
constituent state is protected from doing so due to its lacking legal
personality at the international and European level.
Finally, it should be pointed out in this
context that the proposed protocol to the Accession Treaty does not at
all approach the level of protection inherent in the "Protocol No 2 on
the Åland islands" (Official Journal 1994 No C 241, of 29 August 1994)
which was annexed to Finland's and Sweden's EU Accession Treaty in
order to guarantee the comprehensive protection of the islands'
autochthonous Swedish minority from EU primary law without any time
limit. 2. In Case of Accession of the Greek de-facto regime of
"Cyprus": An accession of the divided island
would meet several legal obstacles: According to Art 1 para 2 of the
Treaty of Guarantee the "Republic of Cyprus ... undertakes not to
participate, in whole or in part, in any political or economic union
with any State whatsoever. It accordingly declares prohibited all
activity likely to promote, directly or indirectly, either union with
any other State or partition of the Island." The first question to be
raised is therefore, whether the accession of the so-called "Republic
of Cyprus" would be contrary to this treaty. Considering the fact that
the first pillar of the European Union certainly establishes an
economic union and that the intention to move towards a political union
cannot be overseen, there may remain some difficulties with identifying
the European Union or the European Communities as well with "any State
whatsoever". It is true, of course, that neither the EU nor the EC are
states in the strict meaning of that word. It has to be considered,
however, that the EU is not a legal person under international law and
that an applicant has to conclude the EC, ECSC, EURATOM and EU treaties
with each of the 15 member states. Thus, it could be argued with good
reasons that an accession would bring an at least economic union with
"any state whatsoever", considering in particular that "whatsoever"
clearly broadens the rigid meaning of "state".(19) Moreover, several
authors(20) suppose an accession to be likely to promote, directly or
indirectly, a union with Greece in the long term. As
pointed out by the Turkish Memorandum of 1990, "a membership of the
European Communities would involve a degree of participation by the
Communities in the life of their Members which is quite unworkable in
the circumstances presently prevailing in Cyprus". The difficult
situation was also realized by the European Commission(21) that
particularly emphasized the importance of a "political settlement"
prior to the accession, which, although it was not considered a
"precondition" by the Helsinki European Council, clearly remains an
essential political as well as legal target. Given the present
situation, it seems to be obvious that the territorial application of
the acquis communautaire would be limited to the southern part of the
divided island. Thus, it may well be asked how a fundamental breach of
EU principles could be avoided. It appears to be rather paradoxical
that - not only by its name - the impression of the applicant being the
legitimate successor of the formerly undivided Republic of Cyprus is
given, whereas it has neither the de facto nor, in my view, the de iure
authority necessary for implementing EC law on Cyprus as a whole.(22)
If the current situation is not changed, the Greek Cypriot regime will
have to restrict the free movement of persons, services, goods and
capital within the very territory which it pretends to be its own.(23)
It is quite obvious that both issues - a political settlement and an
[ 
.. 30 31 32 33 34 35 36 37 38 39 .. ] 
