accession
to the European Union - are inevitably linked together.(24) The
question, however, remains, whether a political settlement will end up
in a federation, which the Turkish Cypriots(25) have already strongly
objected to, or in a confederation of two independent states on the
island of Cyprus. V. A Confederal Solution as a First Step towards
Reunification Regarding the political situation
and the international legal status of the two states existing within
the territory of the former "Republic of Cyprus", a reunification seems
to be only possible on the basis of an accord between the two political
systems about the future constitution of a unified bi-communal and
bi-zonal state. Such a "constitutional compact" of a new federal system
seems to be the essential precondition of transforming the two
sovereignties into one new state without denying either ethnic group
the right of self-determination. Therefore, the
first steps towards reunification must consist of international
treaties embedded in a confederal system - and not in a federal state
yet. This seems to be the only realistic and democratic way for the now
strictly separated political entities to create a new homogeneous legal
and political system during an extended transitional period that should
be part of the reunification process. Attention must be particularly
drawn on the fact that in a federal system the population must not be
divided by allotting certain groups of people to certain parts of the
territory and prohibiting them to settle in another part of the
country. However, when seeking protection from the ethnic predominance,
which might be caused by the unlimited "immigration" of persons
belonging to one ethnic group, problems with EU law could only be
avoided, if the Turkish Cypriot state, though connected with the Greek
Cypriot state in a confederal system, acceded to the EU under the
proviso that the free movement of persons might still be restricted by
domestic law if necessary. A finally reunified
Cyprus should be a federal system based upon two constituent states of
both ethnic groups.(26) These component states should have full
autonomy in all important matters due to their specific interests. On
the other hand, the organisation of federal powers must provide
effective mechanisms to guarantee participation of both ethnic groups
according to the principle of "ethnic
partnership".(27) Beyond all formal legal
concerns about the way and individual steps towards reunification it
seems to be clear that in a bi-communal and bi-zonal federal system
accords between the two nations are a precondition of exercising
constitution-making power ("pouvoir constituant"). The reason for this
is that both nations equally share sovereignty of the new state, based
upon their respective rights of
self-determination. Moreover, this basic
constitutional agreement would have to define how the
constitution-making power within the new federal system should be
shared between the two constituent states and which guarantees or
sanctions would be provided if these power-sharing mechanisms were
violated. International guarantees given by
external states should be clearly defined and limited by special
trea-ties between the two Cypriot states and the external powers at the
beginning of the reunification process ("2+3 treaties"). These
international treaties should also settle the complex problem of
repatriation of refugees and compensatory payments, the withdrawal of
the Turkish troops, international economic help to develop the northern
part of Cyprus and the final territorial borders between the two
constituent states within the future federal system of Cyprus.
VI. Conclusion1. The Requirement of a Constitutional
Compact The precondition of a constitutional
reunification under the auspices of a new federal system would be a
contractual agreement between both ethnic groups. This binding
agreement should contain all essential elements of a future federal
constitution and clarify the adherent legal questions. A system of
contracts ("2 + 3 Treaties") between the constituent states and the
guarantor powers should be established under international law. If such
a system were prevented by political reasons, the constitutional
compact would have to be enshrined in another legal form permitting
judicial review in the future in accordance with the legal conditions
required for the new federal constitution. Following the concept
underlying the South African constitutional process, eventually all
salient points of this agreement would have to be enshrined in the
constitutions of both constituent states in order to allow the
constitutional review of its correct legal implementation.2. The
Requirement to Embody the Key Elements of the Agreement in EU Primary
Law Considering the definitely bad Austrian
experience with EU special provisions, extreme cautiousness concerning
the process of EU accession must be advised. Since the EU is basically
"blind" regarding the internal federal structures of its member states
and accepts special provisions only as limited as possible, one must
not oversee the risk that the measures, taken by the Turkish
constituent state in order to protect itself against foreignization,
and the full self-determination within its territory would be
increasingly repelled after EU accession on account of the jurisdiction
of the European Court of Justice and EC secondary law. Thus, the first
and indispensable precondition of Cyprus's EU accession is the
embodiment of all salient points of the constitutional compact
mentioned above within EU primary law, e.g. in the form of a binding
annex to the accession treaty, following the concept of the specific
rules concerning the autonomy of the Aland Islands set up in the
accession treaty of Finland and Sweden. Otherwise, even EU law as it is
in force today (acquis communautaire) would contradict the key
provisions intended for the protection of the Turkish group, since the
latter would be incompatible with the fundamental freedoms of the EU,
as they have been construed and developed by the jurisdiction of the
European Court of Justice.3. The Requirement of Ethnic Protective
Provisions (Asymmetric Federalism) In order to
protect the Turkish group within a future state common to both ethnic
groups, it is by no means sufficient to transfer the model of the Swiss
federal system to the two national constituent states of the Greek and
Turkish groups. Namely, the Swiss federation is based on a constitution
which serves as a typical example of homogeneous federalism, as it does
not permit any special provisions in favour of certain constituent
states (cantons). Accordingly, the Swiss system makes it impossible to
restrict certain parts of the population to live in certain parts of
the territory or to vest them in their territories with different
rights. Such a model of federalism - which presupposes a homogeneous
nation (the "Swiss people") - is not acceptable to the Turkish group,
since, in the end, it would restore Greek hegemony. As a consequence,
only concepts of "asymmetric federalism" are suitable for Cyprus, as
they allow effective ethnic protection and special provisions
pertaining to the constituent states (e.g. Belgium or Canada). Unless
the ethnic constituent states enjoy equality, the states, procedures
and institutions of the whole state, the organisation of which must
reflect the idea of partnership and must not enable the majority to
outvote the minority, cannot be provided. Given the time required for
setting confidence-inspiring measures, a real, homogeneous and
comprehensive federal system can thus develop only on the basis of such
a system of quasi-confederal organisation and of the equality of both
constituent ethnic groups in their respective autonomous constituent
republics.(The author would like to thank Dr. Anna Gamper for her
assistance with this article.) - Cf also Art 2 of the Constitution of
1960, which does not mention a "Cypriot nation", but only the Greek and
Turkish "Communities".2 - Cf the famous statement of the British
Colonial Secretary, Mr. Lennox-Boyd: "(It) will be the purpose of Her
Majesty's Government to ensure that any exercise of self-determination
should be effected in such a manner that the Turkish Cypriot community
... shall ... be given freedom to decide for themselves their future
status ... (The) exercise of self-determination in such a mixed
population must include partition among the eventual options." (House
of Commons, 1956). See also Oberling, Negotiating for Survival. The
Turkish Cypriot Quest for a Solution to the Cyprus Problem (1991) 37 f;
Leigh, The Legal Status in International Law of the Turkish Cypriot and
the Greek Cypriot Communities in Cyprus, in Ertekün (ed), The Status of
the Two Peoples in Cyprus: Legal Opinions (1997) 54; Lauterpacht/Leigh,
On Sovereignty in Cyprus and its Relationship to Proposals for a
Solution of the Cyprus Problem along Federal Lines, in Ertekün (ed),
The Status of the Two Peoples in Cyprus: Legal Opinions2 (1997) 69 ff;
Blumenwitz, The Legal Status of Greek Cypriots and Turkish Cypriots as
Parties of a Future Agreement for Cyprus, in Ertekün (ed), The Status
of the Two Peoples in Cyprus: Legal Opinions (1997) 85, 88 and Heinze,
On the Question of the Compatibility of the Admission of Cyprus into
the European Union with International Law, the Law of the EU and the
Cyprus Treaties of 1959/60, in Ertekün (ed), The Status of the Two
Peoples in Cyprus: Legal Opinions (1997) 181, 199. Heinze, Zum Stand
des Zypern-Konflikts unter besonderer Berücksichtigung des Grundsatzes
der Selbstbestimmung der Völker, ZfP 1991, 406, 425 f points out that
the establishment of the Republic of Cyprus in 1960 was not an act
based on the self-determination of a homogenous "Cyprus nation", but on
the congruent self-determination belonging to each of the two
communities.3 - Cf Bouony, The Status of the Turkish Republic of
Northern Cyprus and its Adherence to the Organization of the Islamic
Conference, in Ertekün (ed), The Status of the Two Peoples in Cyprus:
Legal Opinions (1997) 112, 113: "The equality of status is the
fundamental notion recognized and accepted by the founders of the new
state and also by the guarantor states of the status of the island ...
(which) leads to the free exercise of the right of self-determination
particular to each of the communities and to the insubordination of one
to the other."4 - The qualification as a "semi-federal" system seems to
be justified considering those provisions in the Constitution of 1960
which established institutions of "functional federalism": Namely, one
could mention Art 46 et seq, which provided for a Turkish
Vice-President (vested with the right to final veto in certain cases)
and a Council of Ministers composed of seven Greek Ministers and three
Turkish Ministers. Moreover, according to Art 86 et seq, the Greek and
the Turkish Communities respectively were entitled to elect from
amongst their own members their own Communal Chambers which were
responsible for certain matters of legislation.5 - Cf Lauterpacht, The
Right of Self-determination of the Turkish Cypriots, in Ertekün (ed),
The Status of the Two Peoples in Cyprus: Legal Opinions (1997) 9, 12:
"(Not) only did the Greek Cypriot community ... break the Constitution
and violate its pledged word in an absolutely fundamental way; it also
repudiated a solemnly assumed treaty undertaking which formed an
indispensable element in any legal assessment of its position."6 - Cf
Lauterpacht (fn 5): "But that de facto acceptance (of the Greek Cypriot
regime) by the international community could not, and did not, in any
way expunge the international illegality or ... deprive the Turkish
Cypriot community of its entitlement, possessed in common with the
Greek community, to the enjoyment of its right of self-determination."
See also Leigh (fn 2) 61, 63.7 - Cf Panico et al, Joint Opinion on the
Legal Status of the Turkish Republic of Northern Cyprus, in Ertekün
(ed), The Status of the Two Peoples in Cyprus: Legal Opinions (1997)
101.8 - Cf Mani, Resolving the Cyprus Conflict: A Framework for
Self-Determination, in Sharma/Epaminondas (eds), Cyprus: In Search of
Peace and Justice (1997) 195 ff.9 - Accordingly, the UN Security
Council as well as the Secretary-General have always emphasized that
negotiations between the two communities should be on an "equal
footing".10 - See Rumpf, Die staats- und völkerrechtliche Lage Zyperns,
EuGRZ 1997, 533, 544 f; Necatigil, The Cyprus Conflict in International
Law, in Dodd (ed), The Political, Social and Economic Development of
Northern Cyprus (1993) 46 ff and Panico et al (fn 7) 107. 11 - See
Necatigil (fn 10) 66 ff; Leigh (fn 2) 65 f and Heinze (fn 2) ZfP 1991,
417.12 - See Rumpf (fn 10) 546; idem, Verfassung und Recht, in
Grothusen et al (eds), Cyprus - Handbook on South Eastern Europe VIII
(1998) 155, 175; Panico et al (fn 7) 105 and 108; Leigh (fn 2) 64 f;
Blumenwitz (fn 2) 88 ff and Necatigil, The Cyprus Question and the
Turkish Position in International Law (1998) 310 ff.13 - Similarly
Rumpf (fn 10) 544.14 - See Stephen, The Cyprus Question (1997) 1: "The
Greek Cypriots claim that the Cyprus problem was caused by the landing
of Turkish troops in 1974 and that if only they would withdraw, the
problem would be solved. This is a serious misconception, for the
modern Cyprus question began in 1960 and the landing of the Turkish
troops was the consequence, not the cause of the problem." Cf also
Lauterpacht (fn 5) 32: "(The Security Council) should not have found
that the TRNC Declaration was 'incompatible' with the 1960 Treaty of
Establishment without also having found that the conduct of the Greek
Cypriot Community had for the previous 20 years been 'incompatible'
with the 1960 settlement and ... that it was that conduct of the Greek
Cypriot community that had led directly to the reaction of the Turkish
Cypriot community. There can be no legal basis for holding one party to
the terms of an agreement without predicating the requirement of an
equal degree of compliance by the other ... (As a) Cyprus that is not
regulated by the Basic Articles of its Constitution is not 'the
Republic of Cyprus' at all ... it follows that the assertion of the
independence of the TRNC cannot be an unlawful secession." Similarly,
Heinze (fn 2) in Ertekün (ed), The Status of the Two Peoples in Cyprus:
Legal Opinions (1997) 188 and 198 even perceives a "Greek Cypriot
secession" from the constitution of 1960, after which a "Turkish
Cypriot secession was no longer possible as the object of a secession
no longer existed" (cf also idem [fn 2] ZfP 1991, 418).15 - See Rumpf
(fn 12) in Grothusen et al (eds), Cyprus - Handbook on South Eastern
Europe VIII (1998) 175.16 - See Rumpf (fn 12) in Grothusen et al (eds),
Cyprus - Handbook on South Eastern Europe VIII (1998) 175.17 -
Similarly Blumenwitz (fn 2) 91.18 - Cf. the International Court's
decision regarding East Timor and Hilpold, Der Osttimor-Fall (1996).19
- Cf Rumpf (fn 10) 535; Mendelson, The Application of "The Republic of
Cyprus" to join the European Union, in Ertekün (ed), The Status of the
Two Peoples in Cyprus: Legal Opinions (1997) 139, 177 f and Stephen (fn
14) 80.20 - Cf eg Mendelson (fn 19) 177.21 - COM 1993/313 final of 30.
June 1993: "[The] Commission must envisage the possibility of the
failure of the intercommunal talks to produce a political settlement of
the Cyprus question ... [In this case] the situation should be
reassessed ... and the question of Cyprus's accession to the Community
should be reconsidered."22 - Cf Panico et al (fn 7) 108: "That the
(Greek Cypriot) Government ... cannot implement its norms and policies
on the territory under the competence of the ... TRNC is clearly
evident."23 - Cf Necatigil (fn 12) 344.24 - Apostolides, The European
Acquis Communautaire and a Federal Cyprus, in Sharma/Epaminondas (eds),
Cyprus: In Search of Peace and Justice (1997) 251 f objects to the
notion that "a solution to the Cyprus problem is necessary for Cyprus
to become an EU Member State", but the close connection between an
accession and a general solution to the conflict cannot be denied (see
Pabst, Zypern, UN, EU und Status quo, Vereinte Nationen 4/2001, 139 ff,
142). 25 - See the "Proposal for a Lasting Solution in Cyprus" by
President Denktas in Moran, Sovereignty Divided (1998) 206.26 - Such a
system would certainly not be compatible with the idea of "reducing the
Turkish Cypriots ... to merely minority status", as Moran (fn 25) 149
points out rightly.27 - Cf Wippmann, International Law and Ethnic
Conflict on Cyprus, Texas International Law Journal 31 (1996), 141, 172
ff.
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