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A
Federal or Confederal Solution to the Cyprus Problem?
(Brief
Summary of a recent article)
Prepared
by:Univ.-Prof. Dr. Peter Pernthaler
University
of Innsbruck/Austria
I.
The Legal Position of the Populations in Cyprus
The
two populations of Cyprus are two clearly distinct ethnic
groups, which means that
there
is no homogenous "nation" or "people"
of Cyprus that could exercise a "national"
right
of self determination for the entire island. Therefore,
both Greek and Turkish Cypriot
communities
are subjects of the right of self-determination in
Cyprus. Neither of the two ethnic groups (peoples)
possesses the, de jure or the de facto power to deny or
overrule the right
of self determination of the
the group.
The
illegal amendments of the constitution and the violations
of the civil rights of the Turkish population during the
early sixties therefore surpassed the legal scope of Cyprus sovereignty (ultra vires acts). 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,
because
this was not within the de jure or the de facto power of
the Greek authorities. The “new state" therefore
was a de facto Greek national regime. In principle, the
Treaties of 1959 and 1960 still exist legally, although,
practically, on account of the constitutional changes and
the new political situation in Cyprus they are more
or less inapplicable.
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 unitary state
of Cyprus, but rather a reaction to the foundation of the
national Greek de facto regime leading to 10 years of
civil war. 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. The disavowal of the TRNC by all
states except Turkey is a severe practical problem, which,
however; has no legal effect on the Republic's quality of
being an independent state according to the prevailing
declaratory theory. 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. 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 state.
A new federal or confederal unity of Cyprus must be
established guaranteed by a new international treaty
system between the two new states and the three "London
Powers" (“2
plus 3 treaties ").
We
have to accept that the reconstruction of the
constitutional situation of 1960 is impossible. Thus, the
territorial separation and the establishment of a Turkish
Cypriot Republic is the only realistic alternative to
guarantee human rights and the right of self determination
to the Turkish population.
Both
the new Turkish and Greek Cypriot states represent the no
longer existing "Republic of Cyprus" -- as it
was established in 1959 -- 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. Within its particular
territory, each state represents the continuity of the
former "Republic of *Cyprus": Therefore, the
* “part-states" can legally produce two
separate citizenships.
In
1990 the so-called "Republic of Cyprus" applied
for an accession to the European Communities; which was
rejected by a TRNC memorandum almost immediately:
Nevertheless; the European Commission delivered a
favourable opinion on the application
of
"Cyprus"; and was therein supported by the
European Council. “The Republic of Cyprus" was
finally accepted as an official applicant in 1998 and an
"acquis screening" as well as substantive
negotiations have been taken up since. Art .1 para. 2 of,
the Treaty of Guarantee reads as follows: "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 "an 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 "an state whatsoever"; which doubtless is a
comprehensive expression in itself. Moreover, several
authors suppose an accession to be likely to promote,
directly or indirectly, a union with
Greece
in the long term. As the Turkish Memorandum of 1990
pointed out, "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 which particularly emphasizd the
importance of a "political settlement" prior to
the accession. Given the present situation, it seems to be
clear 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 jure authority necessary for
implementing EC law on Cyprus as a whole. If the current
situation is not changed, the Greek Cyprus 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: It is quite obvious that both
issues – a political settlement and an accession to the
European Union - are inevitably linked together. The
question; however; remains, whether a political settlement
will end up in a federation, which the Turkish Cypriots
have already strongly objected to, or in a confederation
of two independent states on the island of Cyprus.
IV.
A Federal or Confederal Solution to the Cyprus Conflict?
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 to transform
the two sovereignties into one new state without denying
either ethnic group the right of self-determination.
Therefore, the first steps towards reunification
must be 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 homogenous
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. If protection
from the ethnic predominance, which might be caused
by the unlimited "immigration" of one-etknic
group, were sought for, however, there would be only way
to avoid problems with EU law, i.e. the Turkish Cypriot
state, though connected with the Greek Cypriot state in a
confederal system, would have to accede the EU under the
proviso that the free movement of persons might still be
restricted by domestic law if
necessary A finally reunified Cypriot state should
be a federal system based upon two constituent states of
both ethnic groups. These federated states should have
full autonomy in all important matters of their specific
interests. On the other hand, the organisation of federal
powers must provide effective mechanisms to guarantee
participation of both ethnic groups according the principle of "ethnic
partnership”.
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 to
exercise 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 treaties 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 with the future federal system of
Cyprus.
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