Analysis of the Treaties of 1959

Intelligence Report

No. 8047

Department of State

Bureau of Intelligence and Research

This report is based on information available through July 1, 1959.

The instruments which constitute the Cyprus agreement of 1959 form an intricate whole of inter-related agreements and declarations. The basic framework for the future constitution of Cyprus is contained in the so-called Basic Structure whose provisions nave to be inserted verbatim into the constitution of the new state. The "Basic Structure" provides for the establishment of a presidential republic with a unicameral legislature. Its most important feature is the scrupulous attention paid to the safeguarding of the rights of the two ethnic groups. This leads to considerable rigidity which might make adjustment to changed circumstances difficult. The creation of what amounts to a dual chief executive, a Greek President and a Turkish Vice President with essentially equal rights, is a new departure in modern constitutional practice and the effectiveness of this institution in actual practice remains to be tested. Generally, the "Basic Structure" endeavors to spell out in detailed provisions the adjustments in the exercise of power made necessary by the existence within the body politic of two mutually suspicious groups which other constitutions have left to constitutional practice.

Another important feature of the Cyprus settlement is the retention of base areas by the British under British sovereignty. This too is a new departure and while it may constitute a greater safeguard against the unilateral abolition of base rights by an unfriendly local government, it also is likely to create many points of friction between tlie British and the future Cyprus government.

A Treaty of Alliance between the governments of the new Cyprus Republic, of Greece and of Turkey provides for consultation among the signatories on Cyprus defense problems and for the establishment of a tripartite headquarters on Cyprus, Greek and Turkish contingents shall be responsible for the training of the Cyprus army. A Treaty of Guarantee to which the United Kingdom is a party in addition to the other three governments undertakes to "insure the maintenance of [Cyprus] independence, territorial integrity and security, as well as respect for its Constitution." The Treaty of Guarantee, as well as the Basic Structure in effect prohibit both enosis and the partition of Cyprus thus trying to safeguard against the solutions advocated for the Cyprus problem by the Greek and Turkish extremists respectively. In case of infringement the Treaty of Guarantee does not provide for automatic action but only for consultation among the Greek, Turkish and British Governments. If joint action proves impossible, the Treaty permits unilateral action to safeguard its provisions In case of serious rifts among the signatories the Treaty is thus unlikely to work effectively, unilateral action in such a case is likely to increase rather than mitigate existing differences.

Generally, the Cyprus solution as embodied in these documents, establishes a permanent influence of the Greek, Turkish and UK Governments in the affairs of Cyprus and institutionalizes the position of the two communities as two separate entities in the Cyprus body politic. The various instruments break considerable new ground in constitution making and international relations and the effectiveness of many of the solutions found can only be evaluated on the basis of the practical tests which are still to come.

I. GENERAL

The instruments which constitute the agreed settlement of the Cyprus form an intricate inter-related whole. They take various forms, from unilateral declarations to multilateral treaty drafts, but all of the instruments have been accepted by all the interested parties and therefore

are integral parts of the overall settlement. The following matters are dealt with by these various documents:

a. Constitutional problems. A framework for the constitution of the Republic of Cyprus is established by the so-called "Basic Structure" agreed upon by the Greek and Turkish Governments in Zurich.

b. External guarantees. The settlement includes the drafts of two treaties. One is a "Treaty of Alliance" between the Greek, Turkish and Cypriot Governments, the other a "Treaty of Guarantee" between the United Kingdom, Greece, Turkey and the Republic of Cyprus.

c. British rights. A "Declaration by the British Government" accept the settlement of the Cyprus problem and promises relinquishment of sovereignty over Cyprus contingent upon the maintenance of two enclaves under British sovereignty and agreement on several other issues.

d. Declarations accepting the settlement. A joint declaration by the Greek and Turkish Foreign Ministers expressly accepted the British declaration. The whole settlement was accepted in separate declarations by the representatives of the Greek and Turkish communities.

e. Transitional measures. Three committees to deal with 1) the interim government of the island, 2) the drafting of the constitution and 3) negotiations with the UK. on details of the transfer of power are established by an instrument called "Agreed Measures to Prepare for the New Arrangements in Cyprus."

II. THE BASIC STRUCTURE

A. General Features

The "Basic Structure" embodies a number of provisions which according to Article 27 of the document "shall be considered to be basic articles of the Constitution of Cyprus." Article 7 specifically exempts these articles from constitutional amendment. Article 2 (A) of the "Agreed Measures on New Arrangements" stipulates that the constitution of the Republic

of Cyprus shall be drafted by a joint commission "incorporating the basic structure agreed at the Zurich conference." The provisions of the Basic Structure are thus immutable and changes could presumably be accomplished only with the formal agreement of all the parties concerned.

Article I of the Basic Structure establishes the State of Cyprus as a "republic with a Presidential regime." This means that the constitution of Cyprus follows in general the American prototype under which executive power is vested in the President. There is no Prime Minister and the cabinet serves exclusively at the President's pleasure and is not subject to a parliamentary vote of censure. The most striking feature of the Basic Structure is its emphasis on giving the two ethnic groups on the island a proportionate voice in all affairs and on working out arrangements to avoid domination of one group by the other. In contrast to other constitutions which have to contend with similar problems, such as the Lebanese one, the Basic Structure codifies these rules in great detail. This method avoids the uncertainties and strains which might arise in instances where these rules are codified in less detail, but at the same time the flexibility which goes with more generalized stipulations has been lost. In the political atmosphere of the negotiations it was probably inevitable that the rights of the two ethnic groups would be spelled out in as much detail as possible. However, over-detailed constitutions usually have proven less able than more generalized constitutional documents to withstand the unavoidable changes, in political, economic and social conditions which take place over a period of time. Unless the Cyprus settlement leads to a durable detente between the two ethnic groups and dispels permanently the existing deep-seated suspicions, the inflexibility of the constitution may in time become a hindrance rather than a help in the maintenance of good relations between Greeks and Turks on the island.

The Basic Structure lays down a considerable number of the provisions which will make up the constitution of the Republic of Cyprus, but by no means all. One of the important sections which will have to be drafted by the joint committee is that on civil rights. The Basic Structure contains only a few provisions in the civil rights category (for example expropriations), but most fields, such as freedom of the press, freedom of assembly and association, freedom of speech, etc., are not covered. The drafting of the civil rights section of the constitution may not be an easy task, since either ethnic group will want to avoid provisions which would in its view unduly limit its freedom of expression or assembly. It has been customary in many European and most Near Eastern constitutions not to guarantee the majority of civil rights in an absolute form, but to limit them by provisos which permit the imposition of restrictions through simple legislation. For example, freedom of the press may be granted "within the limits established by the law," thereby permitting the legislature to enact limitations on the freedom of the press at any time and without the need for constitutional amendment. When the civil rights section of the Cyprus constitution is drafted, it is conceivable that the representative of Turkey and of the Turkish community will try to have as many civil rights as possible established without limitations so as to exclude amendment by simple legislation.

B. The Executive Branch of Government

1. The Presidency. The new constitution of Cyprus will be one of the very few constitutions now in existence which stipulates a dual chief executive. Article I of the Basic Structure provides for a Greek President to be elected by the Greek community and a Turkish Vice President to be elected by the Turkish community. Both officials serve for five years. In spite of the terminology, the President and the Vice President are actually joint chief executives of Cyprus. In contrast to other constitutions which provide for a Vice President, the Cyprus Vice President does not step into the President's position if that position becomes vacant during the term. Article 4 of the Basic Structure provides that "in the event of absence, impediment or vacancy of their posts, the President and the Vice President shall be replaced by the President and the Vice President of the House of Representatives respectively." Although not expressly stated in Basic Structure the President and Vice President of the House of Representatives obviously also will have to be Greek and Turkish respectively. These officials will not serve out the term of the chief executive whom they replace but in the case of vacancy will occupy the post only until a successor is elected. This election has to take place within forty-five days after the vacancy has occurred.

Not all of the rights and duties of the President and Vice President are set forth in the Basic Structure. Nothing is said, for example, as to whether the chief executive is to be commander-in-chief of the armed forces, a position usually given to the head of state. This position, even though it may be purely formal, obviously does not lend itself to duality. The same is true of the representative functions of government, such as receiving foreign ambassadors etc., although these duties could be split between the President and Vice President.

The duality of executive power is expressed in Article 5 of the Basic Structure which states that "executive authority shall be vested in the President and Vice President." Legislation is signed and promulgated iointly by the President and Vice President. Most important among the rights of the President and Vice President, however, is the right of veto. The veto is final in some instances and suspensive in others. A final veto may be exercised by the two executives jointly or separately on any decision passed by the House of Representatives concerning foreign affairs or concerning defense and security as defined in Annex I of the Basic Structure. According to this Annex the following defense and security questions are subject to veto: composition and size of the armed force; and credits for them; appointments and promotions in the armed forces and police; imports of war materiel and explosives; granting of bases and other facilities to allied countries; allocation and stationing of security forces; emergency measures and martial law; and police laws. The veto covers all emergency measures and decisions, but not those which concern the normal functioning of police and gendarmerie. According to Article14 compulsory military service may only be instituted with the agreement of the President and Vice President, which amounts to a right of veto.

In the field of foreign affairs the veto does not apply to participation of Cyprus in international organizations and pacts or alliance in which Greece and Turkey both participate. The veto thus could not be exercised with regard to Cypriot membership in the UN or its affiliated organizations such as FAO or ECOSOC or with regard to Cypriot membership in NATO or the Balkan Pact. The veto could be exercised, however, if the Cyprus House of Representatives should decide that Cyprus should join the Baghdad Pact or an Afro-Asian organization. The veto could also be used to prevent Cyprus from joining the Commonwealth, although this may be only a theoretical possibility in view of anticipated general Greek and Turkish Cypriot support for membership in the Commonwealth. However, some Greek Cypriots are concerned that a Turkish veto might prevent Cyprus from ever leaving the Commonwealth, if they once joined. From the text of the provisions in the Basic Structure it is not clear whether the veto is inapplicable only to a decision by the House of Representatives that Cyprus should join any of these organizations in which Greece and Turkey are members or whether it could be used to prevent the implementation of a decision of the House that Cyprus should leave such an organization. Since Article 8 uses "participation" it could be argued that exclusion of the veto in these cases should operate both for joining and leaving these organizations. A further question which is not clear is whether the veto could be applied to questions concerning the duties of membership in these organizations. For example, could the President or Vice President veto a law or decision of the House of Representatives concerning the size of Cyprus' financial contribution to an international organization or to NATO?

All laws and decisions of the House of Representatives other than those mentioned in Article 8 may be returned within fifteen days to the House by the President or Vice President acting jointly or separately. In this case the House may reaffirm its decisions within another fifteen days thereby overriding the veto. No special majority is required. In case the President or Vice President considers that a law or decision discriminates against either of the two communities, the law or decision in question shall be submitted to the Supreme Constitutional Court. This Court may confirm or annul the legislation or return it to the House of Representatives for reconsideration in whole or part. If the President or Vice President considers that there are discriminatory provisions in the budget, he may return it to the House and if the House does not alter the provisions in question he may appeal to the Constitutional Court.

The right of pardon is to be exercised by the President and Vice President over members of their respective communities who are condemned to death. In cases where the victims of the crime and the persons convicted are members of different communities the right of pardon is to be exercised jointly in agreement between the President and the Vice President. If the two executives disagree clemency shall prevail. The Basic Structure stipulates that a death sentence may be commuted only to life imprisonment (Article 18). There are no provisions for a more generalized right of pardon or commutation of sentence to be exercised by the heads of state. If such a more generalized right should be included in the constitution, the same method of exercise could be applied as is used in the case of death sentences.

The establishment of a chief executive with two individuals of equal power is a rather isolated phenomenon in modern constitutional law. The most famous precedent, or course, is the Roman republic with its duality of magistrates extending to the post of chief executive, the consulate. However, one of the reasons for a duality in the consulate was the fear that one man might reestablish the kingship or set himself up as a dictator. The two consuls were not representatives of two different ethnic, religious or social groups. Both consuls represented patrician interests and the interests of the other important social group, the plebs, were represented by the tribunus plebis. At present the only Western constitutional which has a duality of chief magistrates is that of San Marino. This small republic is headed by two capitani reggenti who are elected by the legislature for a term of six months. The duality in this case appears to be due entirely to historical reasons. Switzerland has, in effect, a collegiate federal executive, the seven-men Federal Council, which is elected by Parliament for four years. One of the members of the Federal Council is elected by Parliament every year to serve as Federal President and another as Federal Vice President. However, the Swiss constitution does not provide for any allocation of seats on the basis of ethnic origin or language. The only restriction contained in the constitution is that no more than one member of the Federal Council may be chosen from the same canton.

While there are few constitutions which specifically establish a sharing of the chief executive's power between representatives of different religious or ethnic groups, there are a number of cases where such a sharing has developed in fact in the form of constitutional custom or as a result of inter-party agreements. An outstanding example is Lebanon where the whole functioning of the state is based on the principle of confessionalism, that is, the balance between Christians and Muslims. According to an agreement made by Christian and Muslim representatives in 1943, the so-called National Pact which was apparently never reduced to writing, the seats in Parliament are to be distributed in such a manner as to ensure a majority to the Christians. The President of the Republic was always to be a Christian while the Premier was to be a Muslim. Under the constitution the office of the Lebanese President is largely ceremonial, after the pattern of the office of the French President in the third and fourth republic. In practice, however, considerable power has been exercised by the President who at times has eclipsed the Premier whose power under the constitution is considerably greater. The system of shared power has worked reasonably well in Lebanon. There have been severe strains, however, the greatest one during the prolonged civil war of 1958 which, while never developing a clear cut confessional conflict, gravely accentuated Christian-Muslim differences. Outwardly the terms of the National Pact relative to the sharing of executive power have continued to be observed with the election of General Shihab, a Christian, as President, and the appointment of Rashid Karami, a Muslim, as Premier. However, it is not at all certain that the civil war of 1958 has not upset the basic confessional balance in the country to such an extent that the erosion of the system becomes inevitable. The Lebanese example demonstrates two things: (1) In the sharing of executive power between two individuals representing mutually suspicious groups of the population sharing is not usually equal. The stronger individual or the one backed by the stronger forces (internal or external) will assert leadership, either privately or openly. (2) There is a chance that a system of balance between two mutually suspicious groups of the population of a small country can survive severe strains, but only at the cost of increased bitterness and a progressive weakening of the basis of cooperation. c

Another example of the sharing of executive power is the Republic of Austria. While Austria has no problem of religious or ethnic division, it was plagued during the inter-war period by continual near-civil war between the Christian Socialists (now the People's Party) and Socialists who nearly balanced each other in popular vote and seats in parliament. When independent Austria was re-established after World War II, the two major parties entered into a coalition agreement in order to avoid the tensions of the inter-war period. The agreement does not cover the presidency, which under the Austrian constitution is largely ceremonial and subject to direct popular election. However, since the coalition was formed the chancellor has been a member of the People=s Party and the Vice-Chancellor has been a Social Democrat. Other cabinet offices and government posts have been distributed proportionally. On the whole the coalition has worked reasonably well, although the system of proportional distribution of government jobs and the virtual absence of an opposition have apparently encouraged corruption and depressed the quality of governmental services. Strains in the coalition also have made themselves felt in recent years and as a result new elections were held this spring, considerably earlier than anticipated. Although there was some shift in the balance of power, it was not great enough to obviate the need for a coalition government and the coalition regime will probably continue for some time despite strains and stresses.

Lebanon and Austria thus are two outstanding examples of the adjustment of the constitutional and governmental machinery to the need for establishing a balance between two groups of the population. In both cases the system has been maintained primarily because of the fear that its abandonment would seriously endanger the stability if not the existence of the state. In both these instances the system is based on constitutional custom. This has both advantages and disadvantages as compared with the pattern of dual control which the Basic Structure seeks to establish for Cyprus. An advantage is its greater flexibility. Since the arrangements are not anchored in immutable constitutional provisions they can be adjusted to political, economic or social changes with less strain than would be the case in Cyprus. They can also be abandoned by common consent without causing a collapse of the formal constitutional structure. Both in the cases of Austria and of Lebanon the same constitutions could continue to function if the coalition or confessional bases of government were modified or abandoned. In Cyprus an abandonment or modification of the principle of dual control would necessitate the agreement of the Greek and Turkish Cypriot communities and of the Greek and Turkish governments. The disadvantages of the Austrian or Lebanese arrangements is that they might be too informal and might be jettisoned or subverted as the result of temporary pressures or because of the political ambitions of an individual or a small group.

2. The Cabinet. The Council of Ministers shall consist of seven Greek and three Turkish ministers to be appointed by the President and Vice President respectively. The instrument appointing the ministers shall be signed by both the President and the Vice President. Article 25 provides that one of the following ministries has to be entrusted to a Turk: the Ministry of Foreign Affairs, the Ministry of Defense or the Ministry of Finance. This system may be replaced by a system of rotation if the President and Vice President agree. The ministers are not responsible to the Legislature and apparently will serve at the pleasure of the chief executive. It can be assumed that only the President can dismiss Greek ministers and only the Vice President Turkish ministers. Since the state is to be a presidential republic there is no Prime Minister.

3. Other Government Offices. The principle of apportioning positions between the two ethnic groups on Cyprus extends also to government offices below the cabinet level. Article II states that the civil service shall be composed of 70% Greeks and 30% Turks. This quantitative division is to be applied "as far as practicable" to all grades of the civil service. In regions or localities where one of the two communities is in a majority approaching 100%, the organs of the local administration responsible to the central administration shall be composed solely of officials belonging to that community. In practice the quantitative division envisaged in this provision may lead to difficulties if there is not enough trained Turkish or Greek personnel available to fill the positions allotted to the respective community. A dearth of qualified officials may make itself felt particularly in the higher civil service grades. It is unlikely that either community would be willing to relinquish any of the positions to which it has a right under the proportional system and the result will probably be that unqualified persons will fill some of the posts. The problem which faces most newly created states in this general area of not having enough trained administrative personnel may therefore be magnified n the case of Cyprus, making an orderly administrative development even more difficult than it would be ordinarily. It might be noted that even in a country with a well-established civil service such as Austria, the proportional system of filling civil service jobs was found to increase inefficiency.

In the case of certain high officials the principle has been established that the deputy may not belong to the same community as the official himself. This is specifically stipulated in Article 12 for the Chief Prosecutor of Cyprus, the Inspector General, the Treasurer and the Governor of the Cypriot Bank of Issue. Article 13 applies the same principle to the chiefs and deputy chiefs of the armed forces, the gendarmerie and the police with the additional proviso that one of the chiefs has to be Turkish. All these officials are to be appointed by the President and the Vice President acting in agreement.

The proportional principle also extends to the rank and file of the army and the security forces. Article 14 provides that Cyprus shall turn an army of 2,000 men of whom 60% shall be Greek and 40% Turkish. The gendarmerie and police shall have a combined total strength of 2,000 men which may be increased or decreased by joint action of the President and Vice President. These forces shall be composed of 70% Greeks and 30% Turks. However, during an initial period the relationship may be 60% Greeks to 40% Turks so as to avoid discharging Turks now serving in the police (exclusive of the auxiliary police). Paragraph 15 stipulates that forces stationed in areas inhabited in a proportion of nearly 100% by members of a single community shall belong to that community. It is not clear whether this Article means to include the army or only the gendarmerie and police. The word "forces" is used without further qualification, but the context seems to indicate that the article applies to the gendarmerie and police only. However, it is possible that the phrasing could give rise to disputes. It is also not clear from the phrasing of these provisions whether the proportional principle is to be followed strictly through all the units of the army and possibly of the gendarmerie and police. With regard to the latter two it seems likely that the proportional principle would not be followed at least for small units, otherwise it would be difficult to implement the provision calling for the stationing of units of one nationality in areas inhabited very largely by members of that nationality. As far as the army is concerned the same would probably apply if Article 15 is extended to the army. Unless the units composed solely of members of one community are very small, there might be danger that in case of a communal conflict the security forces would split by units along communal lines. This danger would in all likelihood be minimized, if the Lebanese experience is any guide, if the communities were mixed at all levels in the armed forces.

C. The Legislative Branch of Government

1. The House of Representatives. The Basic Structure established a unicameral "House of Representatives." The members are to be elected by universal suffrage for a period of five years. Each community votes separately and the representatives are distributed between the two communities on a basis of 70% Greek to 30% Turkish. The number of representatives shall be fixed by mutual agreement between the two communities and independent from statistical data. The latter proviso may have been prompted by the Lebanese experience where the Christian communities resisted the holding of a census because it was afraid that a census would disclose its loss of a majority in the population. The House of Representative has general legislative powers except in matters expressly reserved to the Communal Chambers. Laws and decisions shall be adopted by a simple majority and shall be promulgated within15 days unless the President or the Vice President exercise the suspensive vote.

Constitutional amendments may be enacted by a majority of two-thirds of the Greek and two-thirds of the Turkish members of the House of Representatives. Thus a two-thirds absolute majority of the representatives of each community is needed for constitutional changes. The provisions of the Basic Structure cannot be changed at all by the House of Representatives. A qualified majority is also required for changes in the electoral law, for the enactment of any law relating to the municipalities and for any law imposing duties or taxes. In these cases the representatives of the two communities vote separately and a simple majority of those voting is required for each community. Nothing is said in this article about the repeal of duties or taxes. While the imposition of new taxes or duties is no doubt the more important case, it is conceivable that the repeal of a duty or tax also could be regarded as discriminatory. For example, if the House of Representatives should consider a lowering of taxes in order and should decrease a tax or duty which by its nature affects one community more seriously than the other, the representatives of the latter community may well claim discrimination. The most effective recourse which they would have in such a case is probably to prevail upon the President or the Vice President to exercise his right to challenge the specific or the budget as discriminatory.

2. The Communal Chambers. Each community is to have a communal chamber composed of as many representatives as the community itself shall decide. The communal chambers have exclusive authority in all matters concerning religion, education, culture, instruction and personal status (that is questions concerning marriage, divorce, inheritance, guardianship and parent-child relationships). They also have jurisdiction where interests or institutions of a purely communal nature are concerned. These include foundations, charitable institutions or associations, sports clubs ind associations, producers' and consumers' cooperatives and credit establishments, all of these being set up for the promotion of the community's welfare. Where cooperatives or credit institutions are governed by the laws of the Republic of Cyprus they still shall be under the control of the communal chambers. In a parenthetical note it is stated that the provisions relating to these various institutions shall not be construed in such a fashion as to inhibit the creation of "mixed and common" institutions where such is desired by the inhabitants.

The communal chambers also have the right "to promote the objectives" of municipalities composed of a single community. Where these municipalities are governed by the laws of the Republic, their functioning shall be supervised by the communal chambers, or the central administration on the basis of existing legislation has to assume control of any of the institutions, establishments or municipalities mentioned, such supervision shall be exercised by officials belonging to the same community as the institution, establishment or municipality in question.

The communal chambers as constituted by the Basic Structure appear to be an outgrowth of the millet system which has been familiar to Cyprus at least since Ottoman times. In the Ottoman Empire each non-Moslem community (called millet) was permitted to live according to its own laws and administer its own affairs with regard to religious matters and personal status. In most of the Near East, except for Turkey itself, remnants of the millet system still exist. In many of the Arab countries and in Israel each community has its own religious courts and even where, as in Egypt, all religious courts have been abolished, personal status matters are still governed by the laws of the various communities. However, the communal chambers established by the Basic Structure have a broader jurisdiction than the religious communities have had in modern times either in the ottoman Empire or in its successor states and their rights are more specifically defined. In this respect too the tendency of the Basic Structure to spell out and fix in considerable detail the rights of the two communities makes itself felt.

Nevertheless, some of the provisions concerning the communal chambers appear unclear. For example, what is meant by giving the communal chambers the right "to promote the objectives" of municipalities composed of members of their community? From the wording of the pertinent provisions it is not clear whether it is contemplated to give the communal chambers any legislative functions with regard to these municipalities or whether they merely are to have a right to inquire into matters relating to these municipalities or to enact resolutions concerning them. In spite of lengthy provisions, the relationship between the communal chambers and the central government in cases where institutions or municipalities are governed directly by laws of the state would appear to require further clarification. It remains to be seen whether the constitution of Cyprus as finally drafted will endeavor to give a better definition of the functions of the communal chambers than has been done in the Basic Structure. Since the communal chambers will carry on a tradition well established in Cyprus and continued to some degree even during the period of British control, their functioning will probably not create great difficulties. They may, however, become foci of communal separatism and try to expand their influence beyond matters entrusted to their control.

D. The Judicial Branch of Government

1. The Supreme Constitutional Court. This court is to DC composed of one Greek and one Turkish member and a neutral president. Although the language is ambiguous, Greek and Turkish Cypriots presumably are meant and the "neutral" should be a citizen of a country not involved in the Cyprus problem. All three members shall be appointed jointly by the President and the Vice President of the Republic. This court has a rather narrowly circumscribed jurisdiction and is by no means a general constitutional court to which citizens generally can have recourse. It decides conflicts of jurisdiction between the House of Representatives and a communal chamber. The President or the Vice President may appeal to the Court if he has returned the budget to the House because he regards a provision as discriminatory and is overruled. Laws regarded by the President or Vice President as discriminatory against either of the communities may also be placed before the Supreme Constitutional Court, which may confirm or annul the law or return it to the House for reconsideration. Thus, even in those matters where the Court has jurisdiction, action can be initiated only by certain officials. There is no indication in the Basic Structure whether the functions of this Court might be widened in the constitution.

2. The High Court of Justice. This court is actually an organ of judicial administration. It is to consist of two Greeks, one Turk and one neutral, appointed jointly by the President and Vice President of the Republic. The neutral member shall be the president of the court and full have two votes. This court is to deal with the appointment, transfer, promotion, etc., of judges. It resembles similar organs set up by other Near Eastern and European constitutions. Its purpose is to preserve the independence of the judiciary since, in theory at least, the court would not be motivated by political considerations, while a member of the executive branch of government, such as a Minister of Justice, might be. In addition, since appointive and disciplinary power over the judiciary rests with the Court, neither the executive nor the legislative branch can bring direct political pressure upon members of the judiciary by threatening dismissal or transfer.

3. The ordinary courts. In establishing the judicial system of the Cyprus Republic the Basic Structure sets forth a system under which justice is administered on the basis of the communal principle. Systems of this kind have been well-known in the Near East for a long time and can be traced at least as far back as Hellenistic Egypt. The courts established under the capitulatory regime in the Ottoman Empire and the consular and mixed courts of Egypt are more recent examples of the application of the same principle. As a rule the courts of each religious community or ethnic group apply the laws of that community. In the Cyprus case this will no doubt be true where personal status is concerned. In the field of criminal and civil law outside personal status, however, it is likely that identical legislation will be applicable to both communities since initially at least much of the law applied under British rule will no doubt continue to apply.

Specifically, the Basic Structure provides that civil suits where both parties belong to the same community should be tried by judges belonging to the same community. If plaintiff and defendant belong to different communities the case is to be tried by a mixed tribunal whose composition shall be determined by the High Court. In case civil disputes relate to matters of personal status or religious matters they shall be tried by judges belonging to the community in question. In these cases the composition of the court shall be determined according to the law drawn up by the Communal Chamber and the legislation enacted by the Communal Chamber shall be applied. This provision is not quite clear and says nothing about mixed cases. However, it appears to permit the continuation of religious courts as far as they exist at present and the establishment of new religious courts should the Communal Chambers so desire. Criminal cases are to be tried by judges belonging to the same community as the accused. If there is an injured party which belongs to another community, the case shall be brought before a mixed tribunal whose composition it again to be determined by the High Court. Nothing is said about cases involving non-Cypriots who are Greek or Turkish nationals. It is likely that they would be assimilated to members of their respective communities.

These provisions clearly apply to courts of original jurisdiction. Nothing is said in the Basic Structure about the composition of appellate courts, but it would seem that the same principles should apply to the composition of the bench trying a case on appeal as apply to the courts of original jurisdiction. In effect, this would amount to the establishment of three separate chambers, a Turkish chamber, a Greek chamber and a mixed chamber. It is not clear from the stipulations of the Basic Structure whether the composition of the tribunals to try mixed cases should be determined by the High Court ad hoc for each case. It would appear that such a determination should be made regardless of the individual case at stated intervals, for example once a year. If this is not done, the High Court could lay itself open to charges of bias, particularly if a case should have political overtones.

At present, the court structure of Cyprus consists of a Supreme Court, six Assize Courts and six District Courts. The Supreme Court has appellate jurisdiction, both civil and criminal, over the decisions of all other courts and original jurisdiction in some special matters, such as Admiralty and matrimonial cases. In civil matters where the amount or value in dispute is ,300 or over an appeal lies from the Supreme Court to the Privy Council in London. In cases where the court has original jurisdiction the bench is composed of a single judge. Appellate jurisdiction is exercised by a bench or two or three judges. The Assize Courts are composed of a judge of the Supreme Court and two judges from a District Court. These courts have unlimited jurisdiction in all criminal matters. The District Courts have unlimited jurisdiction in civil matters and limited summary jurisdiction in criminal matters. The ordinary courts exercise jurisdiction over Cypriots and non-Cypriots. They have, however, no jurisdiction in matrimonial cases where either party is a member of the Greek Orthodox Church and the marriage was celebrated in accordance with the rites of that Church or where one party is a Moslem and the marriage was celebrated according to Moslem religious law. The courts also have no jurisdiction in any other matters which under the Ottoman Law had been under ecclesiastical jurisdiction. There are two Turkish Family Courts in Cyprus, one for Nicosia, Kyrenia and Famagusta and one for Limassol, Paphos and Larnaca. They have jurisdiction over Moslems in matters of marriage and divorce, maintenance, administration of infants' estates and the registration of Moslem religious foundations (waifs).

The law applied by the courts in Cyprus consists of the ordinances enacted in the Colony, certain Ottoman laws, the British Common Law and the rules of equity, and statutes enacted by the British Parliament for all colonies or Cyprus in particular. The personal status law of the religious communities is expressly preserved. As has been the case in other colonial territories which were emancipated from British rule, the basic legal structure is likely to be preserved and changes will probably be slow. The right to appeal to the Privy Council is likely to be abolished even if Cyprus should remain in the Commonwealth. In that case intermediate appellate courts may be established so as to provide for two reviews in more important cases. Except for the Chief Justice of the Supreme Court, who is British, the Cyprus Courts are staffed with Greek and Turkish Cypriot judges. However, a shortage of Turkish Cypriot judges may develop if there is a considerable load of cases involving only Turkish or Turkish and Greek Cypriots.

E. Local Government

Article 20 of the Basic Structure provides for the establishment of separate municipalities by the Turkish inhabitants in the five largest towns of Cyprus. In these municipalities a coordinating body is to be set up to deal with matters of joint Greco-Turkish interest. This body is to be composed of two Greeks and two Turks with a chairman chosen by agreement between the two municipalities. After four years the President and Vice President of the Republic shall examine the question of whether the separation of the municipalities in the five largest towns shall continue. In other towns special arrangements shall be made for the constitution of municipal bodies, following, as far as possible, the rule of proportional representation for the two communities.

These provisions on municipalities have already proven troublesome in negotiations between the Greek and Turkish Cypriots, with the Turks insisting that the separate municipalities provided in the Basic Structure be defined geographically. c

F. Miscellaneous Provisions

1. Agrarian reform. The Basic Structure provides in Article 19, paragraph 1, that in case of an agricultural reform lands shall be distributed only to persons who are members of the same community as the expropriated owners. This provision is obviously designed to prevent the

change in the ratio between the communities in specific towns and villages through the assignment of agricultural lands. It may have been prompted by the Palestine experience where during the British mandate Arab farmlands were purchased by Jews and Jewish settlements were established.

2. Expropriation. Property may be expropriated by the State or the municipalities on payment of a just and equitable compensation. Disputes shall be referred to the courts. Expropriated property may be used only for the purposes for which it has been expropriated, otherwise it shall be restored to its owner. This proviso minimizes the possibility of the abuse of the right of expropriation to upset the communal balance.

3. Education. According to Article 24 of the Basic Structure, each community has the right to subsidize educational, cultural, athletic and charitable institutions which belong to it. If either community considers that it does not have the number of teachers or clergy needed, these needs may be filled, to the extent strictly required, by the Greek and Turkish Governments respectively. This latter provision could conceivably prove troublesome in the future. Teachers have quite often been potent nationalist propagandists, as for example Egyptian teachers in other Arab countries, and the right of the two communities to appeal to the Greek and Turkish Governments for teachers could serve to perpetuate an uncompromising nationalist spirit, unless the detente between Greece and Turkey is lasting and penetrates below the governmental level.

4. Political Provisions. A treaty guaranteeing the independence, territorial integrity and the new constitution of Cyprus shall be concluded between the Republic of Cyprus, Greece, the United Kingdom and Turkey. A treaty of military alliance shall be concluded between the Republic of Cyprus, Greece and Turkey. These two treaties shall have constitutional force. This latter provision appears to be an additional safeguard against the unilateral abrogation of these treaties by Cyprus. It is not clear whether the treaties are to have constitutional force also in the other contracting states. However, from the context it appears that the provision would apply to Cyprus only. The stipulation that this provision should be inserted in the constitution as a basic article would seem superfluous, since all the provisions of the Basic Structure are to be regarded as basic articles of the constitution. The Republic of Cyprus shall accord most-favored-nation treatment to Great Britain, Greece and Turkey, except that this provision shall not apply to the treaties concluded between Cyprus and the United Kingdom with regard to the British base facilities.

The Republic of Cyprus is to come into being with the signature of the treaties and shall be established not later than three months from the signature of the treaties. Article I of the Agreed Measures on New Arrangements provides that the constitution and the treaties shall be brought into full effect as soon as practicable and in any case not later than the 19th of February 1960.

Nothing is said in the Basic Structure about the assumption by the Republic of Cyprus of obligations incurred by the colonial government. However, in the Declaration by the British Government assumption of these obligations by express agreement is made a condition for the transfer of sovereignty. Treaties and agreements concluded by the British Government and applicable to Cyprus will thus presumably continue unless expressly exempted by agreement from the obligations assumed by the new government. The Declaration of the British Government also makes it a precondition for the transfer of sovereignty that the Cyprus Government protect the fundamental human rights of the various communities on Cyprus, protect the interests of members of the public services in Cyprus and determine the nationality of persons affected by the settlement of the Cyprus question.

The problem of nationality may prove to be one of the more difficult questions in the settlement. Provisions will have to be made for the acquisition of nationality by naturalization. Unless naturalization provisions tie strict, friction could result in case there is a considerable influx of persons from either Greece or Turkey. Many European nations award citizenship to teachers who are invited to take permanent positions, particularly in institutions of higher learning. Were this principle applied to Cyprus, it could be abused in connection with the right of asking the Greek and Turkish Government to provide teachers. For example, a Greek or Turkish university professor with extremist views could be called to Cyprus and, as a citizen of Cyprus, engage in political activities and conceivably even run for office.

The Basic Structure expressly forbids Cyprus to form a total or partial union with another state or to partition the island. Since this is an immutable provision of the constitution, not subject to amendment, it precludes as effectively as any legal provision can, the extremist Greek and Turkish solutions for the Cyprus question. Greek and Turkish are to be the official languages of the Republic of Cyprus and authorities and communities shall have the right to fly the Greek or Turkish flags together with the flag of Cyprus. The Greek and Turkish communities may celebrate Greek and Turkish holidays.

III. THE TREATY OF GUARANTEE

This is the draft of a treaty to be concluded between the Republic of Cyprus on the one part and the United Kingdom, Greece and Turkey on the other under which the Republic of Cyprus undertakes to "insure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution." The Republic of Cyprus also undertakes "not to participate in whole or in part, in any political or economy union with any state whatsoever." Activities promoting union or partition are prohibited. The United Kingdom, Greece and Turkey on their part guarantee the independence, territorial integrity and security of the Republic of Cyprus and the system established by the basic articles of the Constitution. The three powers also will prohibit in their territories any activities promoting the union of Cyprus with another state or the partition of Cyprus. In case the undertakings of this treaty are infringed upon, Greece, Turkey and the United Kingdom shall consult "with a view to making representations or taking the necessary measures to ensure observance of these provisions." If common or concerted action proves impossible, each of the three guarantors reserves the right to act alone "with the sole purpose of re-establishing the state of affairs established by the present treaty." The treaty is to come into force with its signature.

This treaty thus establishes an international obligation on the part of the government of Cyprus as well as on the part of the United Kingdom, Greece and Turkey to abide by the provisions of the Basic Structure and to prevent enosis or partition of the island. The treaty does not establish automatic sanctions for infringement but merely calls for consultation among the guarantors. There is thus the ever-present possibility that one of the guarantors would try to use delaying tactics to prevent effective and timely action on disputes. The treaty tries to meet this danger by allowing each of the three powers to act on its own. This unilateral action is circumscribed in two ways: (a) it may be undertaken only in so far as common action may be impossible and (b) it must be taken only to reestablish the state of affairs established by the treaty. Both of these conditions may be hard to meet to the satisfaction of all three parties once disagreement has become so pronounced that common action is not feasible. It is thus likely that the provisions of the treaty on consultation will work satisfactorily only in such instances where actions are taken by the Cyprus Government which all three guarantors do not condone or regard at least as inopportune. The effectiveness of the treaty with regard to common as well as unilateral actions is questionable should serious rifts develop among the guarantors. c

An additional article added to the Treaty of Guarantee in the London negotiations contains an undertaking by the Greek, Turkish and Cypriot Governments to respect the integrity of the areas to be retained under its sovereignty by the UK and a guarantee of the British rights as set forth in the Declaration by the British Government.

IV. TREATY OF ALLIANCE

This is another international instrument designed to guarantee the status of the new Republic of Cyprus. Only Greece, Turkey and Cyprus are parties to it. The treaty provides for consultation among the signatories on Cypriot defense problems and obligates the parties to resist all indirect and direct aggression against "the independence and territorial integrity"of the Republic of Cyprus. A tripartite headquarters is to be established on Cyprus with the command rotating on a yearly basis among the three countries. The general officer commanding for the one year period is to be designated by the respective government, in the case of Cyprus jointly by the President and Vice President.

Greece is to participate in the tripartite establishment with a contingent of 950 officers and men and Turkey with 650 officers and men. These contingents shall be responsible for the training of the Cyprus army. They may be increased and decreased upon joint request by the President and Vice President of the Republic of Cyprus. Nothing is said in the treaty about the armaments of the Greek and Turkish contingents or about the armament and arms and ammunition supply of the Cyprus army. Since Greece and Turkey have joint training responsibilities, it would stand to reason that the arms used by the Cypriot army should be those in use in the Greek and Turkish armies. Some agreement will probably have to be reached among the three governments on these points. As long as a friendly atmosphere continues between Greece and Turkey, the question of the armament of their national contingents may not be important, but it might become so should relations between the two countries deteriorate again or should communal strife reappear in the island. The treaty mentions specifically only the utilization of the two foreign contingents for training duties; it is therefore left open whether they could be used for other purposes such as the preservation of internal security.

V. DECLARATION BY THE BRITISH GOVERNMENT

This is a unilateral declaration by the British Government and one of the most important in the series of documents constituting the Cyprus settlement. Its most significant feature is the continuation of British sovereignty over two enclaves in Cyprus territory. The areas to be retained under "full British sovereignty" are described in general geographical terms in the British Declaration. The British Government is to be granted such rights by the Government of Cyprus as will enable it to use the two areas "effectively as military bases" and these rights are to be guaranteed by Greece, Turkey and Cyprus. This guarantee is contained in the additional article to the Treaty of Guarantee. An annex spells out the rights which "will be necessary in connection with the areas to be retained under British sovereignty." These are: (a) continued use without restriction or interference of the "existing small sites containing military and other installations" with complete control over these sites; (b) free use of roads, ports and other facilities for the transportation of personnel and stores between the British areas and sites; (c) continued use of specified port facilities at Famagusta; (d) use of public utilities; (e) use of specified areas for troop training purposes; (f) use of the air field at Nicosia to the extent considered necessary by the British authorities for the operation of British military aircraft in peace and war, including necessary traffic control operations; (g) right of over-flight with regard to all of Cyprus; (h) criminal jurisdiction over British forces to an extent comparable with that provided by the NATO status of forces treaty; (i) right to employ freely in British areas and sites labor from other parts of Cyprus; (j) right to obtain, after consultation with the Cyprus Government, additional sites or rights considered necessary by the UK Government for the effective use of its base areas and installations in Cyprus. The British Government thus will retain fairly substantial rights outside the areas under its sovereignty.

The most significant feature of this Declaration is the maintenance of full British sovereignty over the two enclaves. This is a rather unusual arrangements. Most foreign base rights are granted for specified period with no abrogation of the sovereignty of the granting state. The UK has maintained bases in a number of countries after the relinquishment of control over them, but this seems to be the only case where the UK has insisted on retaining base areas under its own sovereignty.

A somewhat comparable arrangement is that between the US and the Republic of Panama concerning the Panama Canal Zone. In the treaty of November 18, 1903, Panama granted the US all rights and powers in the Canal Zone which the US "would possess and exercise if it were the sovereign of the territory within which said lands and waters are located to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights, power or authority." This language, while giving the US the sum total of sovereign rights within the Zone, does not amount to a clear cession of territory and in certain respects at least the Canal Zone has not been treated in the same way as other territories or possessions of the US, and the Canal Zone ports have for a number of purpose been regarded as foreign ports.

The British enclaves on Cyprus, by contrast, will not be created by a grant from another state, but will be territory which the UK retains under its full sovereignty when it relinquishes sovereignty over the rest of Cyprus. Legally, the status of these enclaves as British territory will thus be clear. The inhabitants of the enclaves will remain British subjects and the UK will have full judicial and administrative jurisdiction except to the extent as it may choose to limit such jurisdiction. For example, the UK may give inhabitants of the enclaves the right to opt for Cypriot citizenship. While the legal status of the enclaves thus is clear, there is little doubt that in practice their existence could give rise to many problems and mutual irritations. It has already become evident in the discussions in the Joint Committee in London that the Greek Cypriot leaders will take a hard line toward the British enclaves and in deference to Greek Cypriot views the UK has endeavored to draw the boundaries of its two "cantonment areas" in such a way as to include as few Cypriot villages as possible.

The UK. probably hopes that the retention or these areas under full sovereignty will make them more secure against future endeavors by the Government of Cyprus to abolish the foreign base areas than would be the case were the bases retained simply by means of lease arrangements.

From a purely legal point of view the British rights are undoubtedly more secure. However, politically the continuation of British sovereignty even n small parts of the island, may increase irritation, particularly if and when disputes arise over such matters as access, maintenance of additional sites, customs problems and similar questions. It has been nearly axiomatic in the new states of Asia and Africa that full and uninhibited exercise of sovereignty over the territory of the new state is a hallmark of true independence and has to be guarded jealously. It is not likely that the Cypriot Government will feel any differently. Thus, the retention of sovereignty over its base areas is likely to give the UK a more secure legal status but few political advantages over instances where bases are acquired or retained by lease agreements.

In the remainder of the British Declaration the UK makes the relinquishment of its sovereignty over Cyprus contingent upon the fulfillment of several other conditions, such as protection of the fundamental human fights for the various communities in Cyprus, protection of the interests of the civil servants in the island, determination of the nationality of all persons affected by the settlement and assumption by the Republic of Cyprus of "the appropriate obligations of the present Government of Cyprus, including the settlement of claims." Undertakings of this kind on the part of a newly created state are common. The League of Nations requested similar guarantees from states to be released from mandatory control.

Finally, the UK "welcomes" the conclusion of the draft treaty of alliance between Greece, Turkey and the Republic of Cyprus, pledges to cooperate with them "in the common defense of Cyprus" and declares that the Cyprus constitution shall come into force and the formal signature of the various instruments shall take place "at the earliest practicable date" and that sovereignty will be transferred to the Republic of Cyprus on that date.@

VI. DECLARATIONS BY THE GREEK AND TURKISH FOREIGN MINISTERS AND BY THE REPRESENTATIVES OF THE GREEK AND TURKISH COMMUNITIES ON CYPRUS

The Greek and Turkish Foreign Ministers in a joint statement declared that they accepted the British Declaration and the Zurich agreement between the Turkish and Greek governments "as providing the agreed foundation for the final settlement of the problem of Cyprus." Archbishop Makarios for the Greek community and Dr. Fazil Kuchuk for the Turkish community made separate but identical declarations likewise accepting the various documents and declarations as the agreed foundation for the final settlement of the Cyprus problem. This express acceptance by the representatives of the two Cypriot communities obviously is designed to prevent any later contention by a Cypriot faction that the Cyprus solution was not fully accepted by representatives of the Cypriot community. However, it is always possible that one or the other faction may at a later date contend that the solution was "imposed" and that the representatives of one or the other community were pressured into accepting a settlement which they felt was unfavorable. While the legal validity of such a contention would be rather doubtful, its political appeal could be considerable.

VII. TRANSITIONAL MEASURES

These measures are contained in a document called "Agreed Measures to Prepare for the New Arrangements on Cyprus." In it all parties declare that the constitution and treaties shall be brought into full effect as soon as possible and in any case not later than the 19th of February 1960. In the interim, measures to transfer sovereignty in Cyprus shall be initiated. For this purpose three bodies have been established:

(a) a constitutional commission composed of one representative each of the Greek and Turkish communities and of the Greek and Turkish governments, and of a neutral "legal adviser" appointed by the Foreign Ministers of Greece and Turkey. This commission has been constituted and has started its work. The legal adviser is Professor Marcel Bridel, Professor of Law at the University of Lausanne. The constitutional commission has the task of drafting the remainder of the Cypriot constitution. It is enjoined in the "Agreed Measures" to "scrupulously observe the points contained in the documents of the Zurich conference" and to follow the principles laid down in these documents. Since the provisions of the Basic Structure have to be made part of the new constitution verbatim, the task of the constitutional commission is actually more narrowly circumscribed. Furthermore, the commission will have to take into account some of the stipulations of the British Declaration particularly those concerning human rights.

(b) a transitional committee in Cyprus composed of the Governor of Cyprus, the leading representative or the Greek community and the leading representative of the Turkish community together with other Greek and Turkish Cypriots appointed by the Governor after consultation with the two community leaders on a proportional basis "not in conflict" with the provision of the Basic Structure calling for the appointment of a cabinet of seven Greek and three Turkish ministers. This committee has been established and in effect is gradually becoming the provisional government of Cyprus, operating in close conjunction with the Governor and his Executive Council. In accordance with Article 3 of the "Agreed Measures" the Governor has allocated portfolios to the members of the transitional committee. The Greek Cypriots held the ministries of foreign affairs, finance, justice, industry, interior, communications and works, and labor. The Turks hold the ministries of defense, health, and agriculture. A Greek and a Turkish under secretary have been appointed to the ministries of agriculture and finance respectively.

(c) a joint committee in London composed of a representative each of the UK, Greece, Turkey and the Greek and Turkish communities in Cyprus to prepare final treaty drafts on various problems. Among these ire questions arising from the exercise of British rights in connection with the enclaves, problems of nationality, the treatment of liabilities of the present Cyprus Government and financial and economic problems arising from the creation of an independent Republic of Cyprus.

Finally the "Agreed Measures" provide for the establishment of the tripartite military headquarters three months after the completion of the work of the constitutional commission. The Greek and Turkish contingents will enter Cyprus on the date when sovereignty is transferred to the Republic of Cyprus.

VIII. CONCLUSIONS

The series of interlocking documents which constitute the Cyprus settlement establishes a very intricate basis for the new Republic of Cyprus. In a number of respects the solution agreed upon sets up new and largely untried procedures. It attempts to combine some features of a condominium by the three powers with full self-government and independence for the island. It also endeavors to codify in detail the position and rights of the two communities instead of relying on constitutional custom as other countries have done in similar situations. There are dangers inherent not only in the comparative rigidity of the structure of the new state but also in the detailed codification of community rights which will tend to perpetuate rather than eliminate the communal cleavages. However, it is doubtful that the bitterness created by communal strife in

Cyprus would have made a more generalized solution acceptable. In the last analysis the success or failure of the Cypriot experiment will depend not only on the ability of the two communities in the island to cooperate, but even more so upon continued collaboration of Greece and Turkey. This collaboration may well become the crucial factor in the future of Cyprus.