Confederation: A Lawyer's Brief

Turkish Cypriots by-and-large seek a confederation--a loose legal, social, and political association with their Greek Cypriot neighbors. The case is rooted in their historical experience and a certain amount of vainglory on the part of Denktash and his followers.  Still, it's a cogent point of view.  Here it is argued from the legal standpoint by a German academic.  It is based on a speech he gave at a meeting of the International Association of Centers for Federal Studies in Jerusalem in 1998. The Jerusalem Center for Public Affairs intended to publish all conference papers, but has not done so yet.

A Federal or Confederal Solution to the Cyprus Problem?
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 other group.

The sovereignty of the historical unitary state of Cyprus was clearly defined and restricted by international law (London and Zurich Agreements of 1959) in order to protect the Turkish minority. 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. Both existing states -- i.e. the so-called "Republic of Cyprus" and the Turkish Republic of Northern Cyprus (TRNC) -- are illegitimate regarding the provisions of the treaties of 1959 and 1960 as well as the constitution of 1960. The territorial division of both the island and the ethnic groups, which is based on a complex pattern of clearly illegal acts, makes the reinstatement of the former constitution (1960) and the application of the larger part of the Treaties impossible. Therefore, the Treaties should be rephrased in order to create a new international guarantee for a Cypriot confederation.

Until 1963 the Turkish population of Cyprus was a national minority that shared territory and lived intermingled with the Greek majority. Since the illegal destruction of its constitutional status the Turkish population has developed into a separate independent political entity which has no connection to the Greek national regime of Cyprus. Since the illegal ethnic cleansing and the establishment of two separate territories caused by the Turkish military invasion one has not been able to speak of a „minority" or a „majority" any longer, but rather of two different peoples inhabiting the island.

II. Statehood and Recognition

Although international law today clearly grants a right of self-determination to all peoples, it does not provide a mechanism for the unilateral secession from an existing state, because this would violate the principles of the integrity and sovereignty of a state. The foundation of the TRNC, however, was no secession from a 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. The de facto existence of two national states in Cyprus legally and practically impedes the application of those parts of the Treaties of 1959 and 1960 that were the legal basis of the constitution of the unitary "Republic of Cyprus". A new federal or confederal unity of Cyprus must be established and guaranteed by a new international treaty system between the two new states and the three "London Powers" ("2 plus 3 treaties").

The assumed legitimacy of the Turkish intervention was mainly based on the specific provisions of Article IV of the Treaty of Guarantee, though in respect of the occupation of 36.4 % of the island’s territory and the cruel violations of the civil rights of the Greek population the intervention definitely exceeded legality. Furthermore, the ethnic cleansing of the northern part of Cyprus and the expulsion of 180,000 Greek inhabitants was a clear infringement of international law.

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.

Since there are two legally independent political entities presently, both of them partly representing the former unitary "Republic of Cyprus", the Greek Cypriot state cannot claim to be her sole successor. 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, because each "part state" has the legal power over its own citizens and thus controls the conditions of obtaining citizenship. Therefore, it is not illegal if the Turkish and the Greek Cypriot state naturalize persons originating from their respective ethnic group outside Cyprus. Since, however, according to international custom only the Greek Cypriot state is recognized as the successor of the former "Republic of Cyprus", it is legal if the Greek Cypriot state assists and protects members of the Turkish ethnic group with respect to international concerns, because these subjects are no foreigners, but citizens of the former unitary "Republic of Cyprus".

III. The Application of "The Republic of Cyprus" to join the European Union - the Impact on the Cyprus Problem

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 "any State whatsoever". It is true, of course, that neither the EU nor the EC are states in the strict meaning of that word. It has to be considered, however, that the EU is not a legal person under international law and that an applicant has to conclude the EC, ECSC, EURATOM and EU treaties with each of the 15 member states. Thus, it could be argued with good reasons that an accession would bring an at least economic union with "any state whatsoever", 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 emphasized 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 iure authority necessary for implementing EC law on Cyprus as a whole. If the current situation is not changed, the Greek Cypriot regime will have to restrict the free movement of persons, services, goods and capital within the very territory which it pretends to be its own. 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 ethnic 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 to 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 within the future federal system of Cyprus.