Comments by the Government of Cyprus on
the Report of the Secretary General on his mission of good offices
in Cyprus (S/2004/437 of 28 May 2004)
INTRODUCTORY REMARKS
The United Nations' continuing role in promoting
an agreed Cyprus Settlement
1. The Greek Cypriot side has always relied
on the principles embodied in the Charter of the UN, on international
law and on the resolutions of the Security Council in its search
for a freely agreed solution of the Cyprus problem and for reversal
of the effects of Turkey's military intervention in Cyprus. It
has always had faith in the good offices of the SG, pursuant to
guidelines of the Security Council. It has always shown determination
to negotiate a solution, with a mutually acceptable constitutional
arrangement which would ensure that the independence and territorial
integrity of the Republic was maintained in a reunited Cyprus.
Throughout that period, various Secretaries-General and their
representatives worked hard to achieve this result. They were
trusted to act in accordance with the UN Charter and within the
framework of the Security Council's Resolutions establishing the
Secretary-General's mission of good offices (since SCR367 (1975))
and the Security Council's position taken (ever since SCR649 (1990))
on reunifying the Island by way of a bi-communal bi-zonal federation
in line with the Cypriot parties' 1977 and 1979 high level Agreements.
2. The ultimate goal remains unchanged,
that of seeking a bizonal, bicommunal federation, so that all
Cypriots may benefit from accession of their country to the EU,
looking beyond the past and cooperating on the best of terms in
peace and security. Such search will be based on the existing
Plan.
3. Although disappointed at and concerned
by the recent Report, skilfully slanted by its drafters to present
co-operative Turks and unfairly isolated Turkish Cypriots as against
obstructive Greek Cypriots blocking reunification of Cyprus, the
Government of the Republic believes that the United Nations will
in due course revert to its hitherto impartial stance and once
again use its best endeavours to promote an agreed settlement
of the problem confronting Cyprus. Believing this, it is necessary
to set out where and how the recent Report mis-presents the situation,
because the Report's errors and distortions will, unless corrected;
harm the prospects of future agreement. Both sides need seriously
to consider what can be salvaged from the Plan, rather than basking
in smug self-satisfaction, having' been patted on the back by
the very draftsmen responsible for formulating a Plan so unacceptable
to a large majority of the population of Cyprus. Before embarking
on a systematic analysis of the Report's deficiencies and its
coloration, intended both to conceal the Secretariat's misguided
negotiating tactics and the idealisation of the Plan's provisions,
certain basic points require emphasis. No mention is made of the
fact that the very same Plan in its previous versions had twice
been turned down by the TC side. Nor was there any reference to
previous reports of the SG, squarely putting the blame for the
failure of the efforts on the Turkish side. Significantly, as
opposed to now, no measures were then suggested for pressurising
or "punishing" such side because of its negative stand,
even though this had been long-continued.
Delays and the consequent last minute rush were
caused by Turkey
4. The debate was caused by undue haste
and a rush to impose a settlement' in the 2½ months before
Cyprus entered the European Union as a Member State. That the
time for negotiating an overall settlement and the many associated
matters was so brief was not the fault of the Greek Cypriot side,
but that of Turkey and the Turkish Cypriot side. From December
1999, when the recent negotiations started, until the end of March
2004, every effort to achieve progress was made by the Greek Cypriot
side. In contrast, the Turkish and Turkish Cypriot sides would
not negotiate throughout 2001, the last months of 2002, and from
March 2003 to February 2004.
Throughout 2003 the Greek Cypriot side pressed
for resumption of negotiations, so these could be completed by
1 March 2004, leaving two months for a proper campaign prior to
referenda preceding Cyprus' EU entry on 1 May 2004. A letter from
President Papadopoulos to the Secretary-General on 17 December
2003 initiated the recent negotiations. In contrast, Turkey only
decided to resume negotiations on the Plan on 24 January 2004,
when her National Security Council (the formal State body expressing
Turkish Army views) confirmed the Turkish Foreign Ministry's proposed
policy of re-opening Cyprus negotiations through the Secretary-General.
The latest Report has been drafted, obviously
by UN personnel, who participated in the drafting of the Plan
and looks as if it is an "argument" or a "pleading"
in support thereof. It gives their views and places the blame
on the GC part of the people of Cyprus for having expressed their
disapproval at the Referendum of the 24 April 2004. It contains
assumptions and a narration of the facts, which do not always
correspond to the actual events. It is a highly subjective evaluation
of the negotiations and of the overall "balance" of
the Plan.
That the Plan was so comprehensively developed
into a form capable of being put to Referenda was mainly due to
the sustained efforts of the GC side, particularly its determination
to remain within the existing Plan's parameters throughout the
recent negotiations, its preparation of thousands of pages of
legal documents and its goodwill exhibited throughout the four
and a half years of negotiations with which it persisted in pursuit
of a solution.
Turkey's substantive policy was implemented by
Mr Denktashh and has only marginally changed
5. Even after the Turkish decision to re-open
negotiations, Mr Denktashh remained (and still is) "leader"
of the Turkish Cypriot side. The Report's picture of a "triumvirate"
(para 15) and new "leadership" (para 6), together with
its fulsome praise of Mr Talat and Turkish Cypriots (paras. 76,
87, Annex III, para 4), is designed to obscure that the Plan has
incorporated Turkey's policy of two separate "sovereign"
ethnically— composed States in Cyprus, only loosely linked
together, and that Turkish demands for this were, by technical
legal drafting, satisfied in the final version of the Plan, even
though their adoption is inconsistent with the framework laid
down by 30 years of UN Resolutions on Cyprus. Only after Mr Denktashh's
refusal to come to Bürgenstock for meetings from 24 March
2004 were some of his demands flagrantly contradicting the Security
Council's Resolutions put aside. Even then, his authorised agents,
Messrs Talat and Serdar Denktashh, were kept under his orders
and those of Turkey's Foreign Ministry via Ambassador Ziyal, present
in the New York, Nicosia and Bürgenstock negotiations and
giving continuous policy directions. Ambassador Ziyal saw that
the Turkish Cypriot side concentrated on a few provisions, demanding
that the Plan be changed: to meet Turkey's security interests;
to enhance the Turkish Cypriot constituent state's power to restrict
Greek Cypriots from living, conducting business or acquiring property
there; and to empower its government to act independently in spheres
which should have been exclusively federal.
Praise of Turkish Cypriots designed to circumvent
SCR541 (1983) and SCR 550 (1984)
6. The fulsome praise in the Report is also
designed to secure an unlawful objective, namely, to give Turkey's
subordinate local administration in occupied Cyprus the economic
attributes of an independent state without formally recognising
it. That entity would then, despite the protestations in the Report
about not assisting secession (Introduction, paras 90 and 93),
be able to function so that there was no incentive to move to
reunification of Cyprus. It is an attempt to by-pass a jus cogens
rule of international law, which forbids recognition of the fruits
of aggression. That rule is the reason why SCR541 (1983) and SCR550
(1984) were passed. Yet not a single word in the Report indicates
that the Republic of Turkey is in unlawful military occupation
of 36.4% of Cyprus, controlling that large proportion of Cyprus
through 35,000 Turkish troops and her subordinate local administration.
Instead, the Report implicitly suggests that such Turkish local
administration be given all the benefits of international co-operation
and participation in international bodies.
Historical observations
7. In paras. 2 to 14, the Report makes reference
to the time after The Hague, but the drafters fail to mention
that the Secretary-General squarely placed the blame for the failure
at The Hague on the Turkish side. Nor do they mention that, prior
to The Hague, the GC Leader had set out the main concerns of the
GC side (letter of 28 February 2003, delivered on 28 February
to the SG). He had emphasized that his readiness to support the
Plan was dependent on those concerns being satisfied. Only if
the other side would do likewise, was he prepared not to reopen
the substantive provisions of the Plan.
8. Though in para 6 the drafters write that
"most of 2003 was a fallow period," no mention was made
of the reasons for this, which were the continuous negative attitude
of Mr Denktashh and the support he was receiving from the Turkish
Government. Nor did they mention the constant positive stance
of the GC side. (Statements by Mr Denktashh, Mr Erdogan and Mr
Gul are available).
9. The drafters consider (para 6) that the
December 2003 vote in the TC community "brought to the fore
a new Turkish Cypriot leadership". This TC new leadership
did not replace Mr Rauf Denktashh, who was present in New York
(10-13 February) and during all talks until 22 March 2004 appeared
as "leader". It was he who on 24 February presented
his positions, which were way outside the parameters of the Plan.
The GC side was never told by the UN team either in New York or
thereafter that there was a leadership "triumvirate".
On the contrary, the UN seemed to consider Mr Denktashh as the
"leader"" (eg page 1 of the Summary and inter alia.
paras. 10, 11, 12). The others (Mr Talat and Mr S. Denktashh)
were members of his negotiating team. Mr RaufDenktashh has never
ceased to claim that he is' still the "leader". Whereas
he refused to attend the Bürgenstock meetings, he then, as
leader, authorized other persons to be present and such authorisation
was considered valid by the UN.
10. Despite the April 2003 Report by the
SG. which had criticized the Turkish side, the UN undertook no
initiative in that "fallow" time, tolerating the tactics
of the Turkish side and taking no measures to "break it"
or to "punish"" the "guilty" party. The
drafters of the current Report, in creating the atmosphere of
cooperation and progress all being due to Turkey, also play down
the importance of the letter from the President of the Republic,
on 17 December 2003, which, after the long delay, with there being
no fault for this attached to the GC community, actually restarted
the ball rolling. On the contrary, the meeting between the SG
and PM Erdogan in Davos is emphasized in their Report as being
important. Mr Erdogan is quoted as saying that he would be "one
step ahead" for many years. The actual fact is that the GC
side were then many steps ahead.
11. In paras. 12 and 14 the drafters speak
of the 13 February "agreement". This "agreement"
in fact comprised both the "Statement attributable to the
Spokesman of the SG" and the SG's letter to the leaders of
4 February 2004, outlining the procedure to be adopted. Together
they formed the basis of the "three phase process" leading
to the Referendum (if one considers the Referendum as not being
a fourth phase).
The First Phase
Attempts to discredit the Greek Cypriot side's
conduct in the negotiations by its presentation of a "vast
bulk" of materials
12. The Greek Cypriot side has always worked
for a stable and enduring solution and a properly considered constitutional
settlement. There had not been any proper consideration by the
UN team of young lawyers of economic and financial matters or
of changes necessary in light of Cyprus's impending EU membership.
The property scheme and much of the Constitution had never been
directly discussed by the two sides. The Greek Cypriot side took
at face value and as genuinely necessary Mr de Soto's proposal
to both sides in "Clusters of Issues," 20 February 2004
(referred to in para 18). He had written:
"The UN suggests that each side explain
in concrete terms, including with non-papers as necessary, the
actual changes they want to the plan, taking the Clusters, in
turn during the coming meetings."
Accordingly, the Greek Cypriot side presented
specific changes and reasoned explanations why these were necessary.
They dealt with the major aspects of the Plan which they had,
ever since President Papadopoulos' letter of 28 February 2003,
stated required to be changed; they raised other issues consequential
upon the Turkish Cypriot proposals (as the Greek Cypriot side
explained); they raised crucial issues arising from the Technical
Committees' work (eg refusal to accept, at Turkey's instance,
that Cyprus had a continental shelf); and that the "treaties"
with Turkey and her subordinate local administration were aimed
at integrating the occupied area and Turkey but were now to be
applied to all of Cyprus and they pointed out some significant
drafting defects in the Plan and its Annexes. The future Constitution,
the economy and the long-term rights of hundreds of thousands
of Cypriots were at stake. Yet several Paragraphs in the Report
snidely scatter criticism at the Greek Cypriot side for its serious
approach to the negotiations. Paragraph 8 ironically claims that
the Secretary-General was reassured by President Papadopoulos
that he did not want "forty or fifty" changes to the
Plan"; para 19 refers to "the virtue of concision"
of the Turkish Cypriot proposals (substantially altering key parameters
of the Plan); and para 20 contrasts Turkish Cypriot behaviour
with the conduct of the Greek Cypriot side, which took each issue
in turn (as invited to do) and produced "dense and lengthy
papers one after another." Para 20 also sarcastically states
that, "As they continued to present papers, it became apparent
that the 10 February 2004 paper summary of Greek Cypriot demands
was far from exhaustive". This is a reference to a "Talking
Points" summary produced in New York at 10 minutes notice
upon request of the Secretary-General who knew that the Turkish
Cypriot side was intending to produce outline demands agreed with
the Turkish Foreign Ministry. (The Report is silent on this tactic.)
However, in a meeting of 22 February, immediately after Mr de
Soto had presented his paper "Clustering of Issues,"
President Papadopoulos had emphasised that the 10 February paper
did not comprehensively state the issues. The Report continues
in this sarcastic vein referring (at para 22) to "the vast
bulk of the material" and adds an innuendo (effected by quoting
the Turkish Cypriot side) that the Greek Cypriot side was "filibustering".
Again (at para 37), the Report exaggerates the scale of Greek
Cypriot proposals (running to 44 pages). In fact, produced at
UN request although if the Special Adviser read the papers earlier
presented he would have known what was proposed, a three page
list was provided while the 44 pages consisted of legal texts,
including crossed out texts and relevant contexts of legal provisions,
so that each amendment could be understood in context. The actual
text would have been less than six pages of changes to 9,000 pages
of the Plan and its Annexes.
Attempts to discredit the Greek Cypriot side for
not giving the Special Adviser its "priorities"
13. In para 20 the Report claims that the
Greek Cypriot side
"declined to prioritise its demands, despite
my Special Adviser's request of 15 March to both sides to do so".
Paragraph 20 was preceded by para 19, where
the Report claims that in mid-March
"The Turkish Cypriot side replaced their
initial papers with a less far-reaching set of proposed textual
amendments, described as a priority list".
Such "list" was not sent by the UN
to the Greek Cypriot side until 19 March (Letter de Soto to President
Papadopoulos), but there was no indication whatsoever in his letter
that there was any priority. The letter merely listed the attached
documents by their titles "eg. Consolidated list of Turkish
Cypriot Proposals (revised text)," dated 18 March 2004. Para
20 also asserts that the Special Adviser had, in suggesting agendas
for meetings and in primary discussions of the items clustered
for consideration,
"left aside Turkish Cypriot demands which
were clearly outside the parameters of the plan".
These statements give a misleading impression
of the tactics followed by the Special Adviser. What in fact happened.
was that, at the start of the Nicosia phase of negotiations, the
Special Adviser had on 20 February selectively assembled in a
"non-paper" substantive points made by the two sides
in New York on 10 February in their "Talking Points".
He grouped the sides' points as four "clusters" of issues,
suggesting that the sides concentrate on his "clusters,"
which he so grouped as to indicate that there should be bargaining
inside each cluster. This tactic of seeking to confine the sides
to the clustered issues was rejected by both Mr Denktashh and
President Papadopoulos. Moreover, President Papadopoulos emphasised
in further "Talking Points" of 22 February, and orally
in a meeting, that although the Special Adviser asserted he was
not implying tradeoffs by virtue of grouping the issues into the
four clusters, the only reason for their combination was trade-offs
and many of the issues taken from Mr Denktashh's 10 February speech
were outside the parameters of the Plan. He explained that the
Greek Cypriot side was not willing to discuss matters outside
the scope of what had just been agreed in New York. The "clusters"
therefore became an outline agenda only. Mr de Soto then waited
until the sides had laid out their proposals, and then on 15 March
submitted Talking Points on which he would "shuttle".
These Talking Points he listed in two categories. The first category
attempted to get the two sides to discuss
"changes on the substance where one party
or the other, or sometimes both, are seeking changes that affect
the balance of one of the parameters of the Plan, or to respond
to a demand from the other side for such changes."
He made it clear that he looked for trade-offs
here "within or between issues" and that the sides should
prioritise changes. In his second category, he sought to discuss
practical matters, so as to enable the Plan actually to work and
for both sides to get what the Plan promised them. The Greek Cypriot
side, relying on the Secretary-General's undertakings in his 4
February 2004 letter that the parameters of the Plan should not
be altered, refused to make proposals to that effect, and declined
to be lured into opening up the first category by prioritising
any matters within it. It was however anxious to discuss the practical
matters to make the Plan work, and made proposals covering the
second category, co-operating with the Special Adviser (as shown
in para 25). The Special Adviser's tactics of presenting the Turkish
Cypriot demands in his "Talking Points" (although they
were mostly outside the Plan's parameters) and of suggesting that
the sides start bargaining on these was therefore frustrated,
so trade-offs could not be proposed by him (para 26).
14. Most Turkish Cypriot demands, which
had only partially been abandoned, and which were outside the
Plan's parameters, remained. They consisted, inter alia of demands
for permanent stationing of Turkish troops in Cyprus; a switch
from the core bargain of political rights being based on place
of residence and not on ethnic identity; bi-zonality and bi-nationality
restrictions to continue after Turkey's EU accession; and return
of fewer Greek Cypriot displaced persons. The Special Adviser
continued to look for "trade-offs" and "win-win"
situations, using States with envoys at Bürgenstock to press
the Greek Cypriot side into bargaining on these matters. The Greek
Cypriot side declined to give priorities for this purpose. They
had no expectation, in view of what had been agreed in New York
(letter of 4 February 2004 as modified by the Spokesmen's Statement
of 13 February) that the Secretary-General would use the limited
discretion conferred upon him to insert in the Plan new matter
going beyond its existing parameters. That the Secretary-General
later saw himself as having carte blanche (despite his having
been given a paper by the Greek Cypriot side "Talking Points,"
dated 17 March 2004, and setting out the framework in which the
discretion was exercisable) is apparent from para 32 of the Report.
The Secretary-General appears to think that, since it might fall
to him to finalise the Plan, there was a duty on the parties (the
Cypriots) to impress upon the UN their key priorities and to indicate
what changes they might be prepared to live with to accommodate
the other side. There is criticism of the Greek Cypriot side in
paras 37 and 66 for not prioritising or engaging in give and take
with Turkey and the Turkish Cypriots. But the negotiations had
a framework, which should have been observed by all parties, not
least by the UN.
15. The Greek Cypriot side was not being
formalistic and rigid in declining to prioritise. Prioritisation
was in any event difficult, because there were major inter-related
points in connection with each strand of the Plan (functionality
of the Constitution, security, implementation of the territorial,
security and other aspects, property and residential rights, the
situation under EU law etc). Nor was it possible to assess the
outcome of particular "concessions" or "priorities,"
all aspects of the Plan being interconnected, until such time
as the whole picture could be seen: specific points could not
sensibly be singled out without appreciation of the overall balance.
Finally, to have given priorities would necessarily have implied
that, if some Greek Cypriot priorities or parts thereof were put
in the final text by the Secretary-General, there would have been
a "balancing" by his putting in the text as against
these priorities provisions satisfying Turkish demands beyond
the Plan's parameters, and that such a "balancing" had
been agreed to by the Greek Cypriot side.
16. In essence, the SG's Special Adviser
was following an improvised method of conducting the negotiations.
It was a method aimed at a mathematical balancing of unrelated
issues and which failed to concentrate on substance, or to have
regard to principles of the UN Charter and international or constitutional
law. A glaring example was his demand for priority lists, while
he had before him detailed documents on all issues put forward
by the GC side. Whilst we understand his effort to "simplify"
things and meet time constraints, the Cyprus problem was not a
matter to be dealt with in a simplistic way. The process was not
intended to give the UN discretion to choose between parties'
"key priorities," but only to make indispensable suggestions
in the event of continuing and persistent deadlock (paras 32 and
para 37).
17. Another method used in the Report to
criticise the Greek Cypriot side is the suggestion in paras 21
and 66 that the Greek Cypriot side would not engage in "trade-offs"
and give and take. However, the Greek Cypriot side offered to
make trade-offs as regards its request for UN administration of
the territories to be adjusted, offering in exchange full rehabilitation
of affected TCs and intense work to this end. This was rejected
by the TC side. Likewise a suggestion to trade-off Community representation
in the Senate for removal of restrictions on resumption of residence
by GCs was not accepted. Nor was there acceptance of a general
proposal for trade-offs made on 20 March by President Papadopoulos
in Nicosia. The only issues on which the TC side would engage
and compromise were the composition of the Presidential Council
and its functioning, especially as regards the EU, and a federal
first instance court. All other GC proposals about security, implementation,
the period of transitional government, treaties, Laws, property,
Turkish settlers were flatly rejected.
18. In para. 26 the drafters after claiming
that the TCs responded more positively, and trying to play down
the "mini-crisis provoked by Mr Denktashh's decision not
to attend phase 2 of the process", assert that the "asymmetry
of the response" by the Greek Cypriot side prevented the
UN from proposing trade-offs on the major issues. It is not surprising
that the Turkish Cypriot appeared positive: they were being allowed
by Mr de Soto's 15 March Talking Points "framework"
to raise changes on substance affecting the balance of several
of the parameters of the Plan, while the Greek Cypriot side was
objecting, because the process agreed in New York did not envisage
such changes (13 February statement read with 4 February letter).
The GC side, although refusing to discuss the first category of
changes, discussed the Special Adviser's second category (issues
where the parties sought to ensure the Plan would work and to
give each side what the Plan promised). Such issues were not "secondary
issues," as the Report indicates, but major issues (implementation
of the Plan, the question of whether there would be a long transitional
period of joint government).
19. In para 83 it is mentioned, albeit in
brackets, that 120,000 displaced Greek Cypriots would be returning
under Greek Cypriot administration. This is most definitely not
so. Based on the 1973 Census of population 85,000-90,000 displaced
persons would be the maximum number able to return. They were
not a majority of the refugees. It is curious, to say the least,
why the Report exaggerates the number of displaced persons who
potentially may return by extrapolating the population to its
present levels including the descendants of many who have left
Cyprus. The UN negotiating team well knows the true facts. At
the same time, in para 51, it is mentioned that "over time
100,000 Greek Cypriots would be able to take up permanent residence
in the Turkish Cypriot State". Here again the figures are
grossly exaggerated and no time frame is given. The actual potential
numbers are as follows: between 2010-13 12,000-13,900 persons
were eligible to resettle; between 2014 and 2018 the cumulative
number would have increased to 26,700-31,500; and between 2018-23
the maximum cumulative number could have become 44,000 to 51,000.
20. As to territory, paras. 22 and 59 are
contradictory. In fact the drafters attempt to shift responsibility
for not clearing the map to the Greek Cypriot side, by saying
(para 59) that they did not discuss their own territorial ideas,
even informally with the UN. The UN team knew, however, that the
territorial aspect, combined with the number of displaced Greek
Cypriots to resettle under Greek Cypriot administration, was all
along a main concern of the GC side. The drafters of the Report
fail to mention that the "straightening" of the line
between federated states had been repeatedly mentioned by the
Turkish side, but this was, as it turned out, only a tactic to
avoid discussing the territorial issue. Nevertheless, territory
was always brought up by the Greek Cypriot team and the reference
on para 22 proves it. Surely it did not escape the UN team that,
even in the absence of the President in Brussels, Mr D Christofias,
acting as leader of the Greek Cypriot side, at three separate
meetings with Mr de Soto and the representatives of Security Council
permanent members on the 26 March 2004, raised the territorial
issue again and the Karpas area in particular.
The second and third phases
21. In para 35 it is mentioned that the
Special Adviser of the SG was not able to meet the GC leader at
Bürgenstock, due to Mr Papadopoulos' other commitments in
Bürgenstock and Brussels. This statement has no foundation.
Mr de Soto showed signs of pique when, upon his arrival at Bürgenstock
on 23 March, he asked to see the President at 7 pm, but the National
Council had been convened to meet at that time in order to examine
the "authorisation" granted by the leader of the TC
community, Mr Denktashh, to Mr Talat and Mr S. Denktashh. The
President's office replied that he was available to meet Mr de
Soto at 8 pm. At 7.45 pm, Mr De Soto stated that he. could not
meet the President at 8 pm. Nevertheless the meeting took place
at 10.45 pm. As to the absence of the President in Brussels, Mr
De Soto knew long before the Bürgenstock meetings that the
President would be attending the EU Summit Council on the 25-26
March and that in his absence, Mr D Christofias was fully authorised
to act in the President's stead. It is completely denied that
the Special Adviser had difficulties in meeting the GC side at
any time, and one wonders why such statements are made.
22. Another inaccuracy appears in para 36
in relation to the framework presented on 25 March "for signing
an agreement should one emerge by 29 March," by stating that:
"The Greek Cypriot side did not [react to this framework]
but publicly indicated concerns about it". This does not
reflect the true facts. Mr Christofias on 26 March confirmed to
the National Council that Mr Vassiliou had on behalf of the Greek
Cypriot side notified Mr De Soto that there could be no signature,
because this had not been agreed as part of the procedure in New
York. Only thereafter was a public announcement made.
23. Para 37: On 1 March 2004 the GC side
gave a general but full account of the changes it desired, explaining
that further specific proposals would be developed as a result
of the positions taken by both sides in the negotiations. Since
the Technical Committees' work also involved constitutional issues
(many being placed in Laws) and the work was not finalised, specific
amendments kept being made until 22 March. The Report tries to
exaggerate the scale of GC demands (see para 12 above). As there
pointed out, the Greek Cypriot side made only 44 pages of specific
textual changes (all these set in their contexts) to over 9,000
pages of the Plan and its Annexes. This shows how careful the
GC side was not to make extensive demands.
24. Para 39. There was no misreading by
the Greek Cypriot side of what the Turkish side sought. What was
sought was set out in Mr Ziyal's 26 March paper, which came into
Greek Cypriot hands through the press. On 29 March, the Secretary-General
told Mr Erdogan that he had got virtually nine of the 11 points
demanded and half of each of the balance. On 31 March he gave
Mr Erdogan the remaining parts of Turkey's points upon making
the settlement primary law of the EU, lifting the quota barrier
to immigration from Turkey, and providing for permanent stationing
of Turkish troops in Cyprus.
25. Para 42.B, says constituent state constitutions
were "exchanged for information between the two sides".
This gives a misleading picture. Although the TCCS constitution
should have been given on 12 March under the arrangements made
in New York and this date was complied with by the Greek Cypriot
side, there was no TC compliance. Only on 28 March was the GC
side presented with a document and given only a few hours to look
at the TCCS constitution. After that very night being-provided
with the Greek Cypriot side's comments (which showed that there
were many inconsistencies with the FA) the UN stated that it was
too late to make any changes.
26. Para 42,C, para 45, para 54, para 63,
misstate what Annan V provided. Annan V left it ambiguous whether
the guarantors had to sign the Treaty into force before the Foundation
Agreement came into operation. The GC side indicated its concern
as soon as it discovered a change in Annan V on returning to Nicosia.
On 6 April, Turkey failed to provide a proper commitment to undertake
completion of its internal ratification procedures and to sign
the Treaty into force. The UN was aware of Turkey's failure, but
decided, when Turkey declined to do anything, to "understand"
Turkey's evasive letter as honouring the commitment and the Secretary-General
wrote to Mr Erdogan to such effect on 7 April 2004. Had this been
left as it was, the Turkish Grand National Assembly could have
delayed ratification and they, and President Sezer in terms of
Article 89 of Turkey's Constitution, could endlessly have batted
back to each other a ratifying Law, thus being able to extort
new concessions from a UCR without any Turkish troop reductions.
President Papadopoulos obtained a legal Opinion
from two leading jurists, one a member of the International Law
Commission and the other a former member, about the risks of this
procedure for the future of Cyprus. Accordingly, President Papadopoulos
wrote to the Secretary-General on 8 April 2004 with the Opinion,
indicating that the referendum was dependent upon the Guarantor
Powers' commitments being duly given (quoting the Secretary-General's
31 March letter). Only thereafter did the UN obtain a written
assurance on 12 April from Turkey's Permanent Representative to
the UN and on 18 April re-amended the Plan by Clarifications and
Corrigenda. There is silence in the Report about Turkey's action
to give herself room for manoeuvre not to sign the Treaty into
force and silence about the Secretariat's unwillingness to do
anything to secure compliance unless compelled to take action.
It is interesting to note that these legal issues were associated
with the UN's last minute changes on 31 March to the "null
and void clause" of Annex IX should the referenda be negative.
Earlier the UN had tinkered with the same clause, actually removing
it without any forewarning, from the Plan in Annan III of 26 February
2003. Only President Papadopoulos' strong objection by letter
of 28 February 2003 resulted in the clause being reinstated by
the Corrigenda of 8 March 2003.
27. Para 42D. The draft Act of Adaptation
of the UCR's accession to the EU contained in the Plan was not
"in line with the principles on which the EU is founded".
The Draft Act, annexed to the Plan, was adapted so as not to apply
these principles, and so as to override them-by virtue of "adaptations"
departing from these principles being made "primary law"
of the EU.
Para 42E and para 69. These paragraphs give
a false picture. President Papadopoulos did not "subsequently"
to the Secretary-General's 16 April Report indicate his desire
that the Foundation Agreement not be endorsed by the Security
Council. At Bürgenstock it was made clear that the Greek
Cypriot side did not believe endorsement by the Security Council
should be used as a device to persuade the Cyprus public. Moreover,
in para 69 the false statement is made that President Papadopoulos
did not wish the Council to take decisions before the referenda
"even on security issues". In fact, in his letter of
13 April (note also that this was before, not subsequent to, the
16 April report), President Papadopoulos requested the Secretary-General,
while not seeking endorsement of the domestic arrangements for
Cyprus, to "put the security aspect to the Council".
Furthermore, the Permanent Mission of the Republic of Cyprus to
the United Nations, upon instructions from the Government, conveyed
to all members of the Security Council, on 20 April 2004, a Memorandum
with specific proposals to be reflected in the draft Resolution
presented to the Council. All proposals were addressing security
issues and in particular were aiming at strengthening the provisions
for the implementation of the Foundation Agreement, subjecting
any right of intervention by the Guarantor Powers to a prior authorization
of the Security Council, assuring the compatibility of the Treaty
of Guarantee to the UN Charter and at stating clearly that the
objective should be the total withdrawal of foreign military forces
from Cyprus.
Other provisions
28. The Report from paras. 43-57 is written
to show how "balanced" the Plan was and how much it
was improved to meet GC and TC concerns. But, the Secretary-General
did not have discretion to make "improvements" to address
key concerns. The Report is written so as to obscure his assumption
of the role of an arbitrator, whereas he had not been empowered
to act in that way, and his Special Adviser misinterpreted the
arrangements made in the 4 February letter and 13 February statement
in New York to assume such functions. Indeed, the account of what
the Report now calls the 13 February 2004 agreement and the "enlarged
role" of the Secretary-General (paras 3-14) is designed to
mask the appropriation of powers which were not agreed, which
certain permanent members of the Security Council had earlier
sought for the Secretary-General. Ultimately his Special Adviser
"finalised" the Plan for the Secretary-General as if
he had indeed been endowed with such a large competence. It needs
adding that in the Report's promotion of the virtues of the Plan,
setting out how improvements were "inspired" by the
two sides' concerns, most of those attributed to the TCs were
really those of Turkey, which, contrary to its role as agreed
in NY, demanded that its major proposals of 26 March be accepted.
29. Para 46. The Secretary-General's proposals
for assurances regarding implementation did not address the GC
requests that the UN be involved throughout the period proceeding
transfer of the territory due to the readjusted so that return
of the property in good order could be ensured.
30. Para. 47. This alleged significant reduction
in Turkish troop levels is misleading. Troop numbers would remain
the same until 1 January 2011, and there would be 3,000 until
Turkey's EU accession or 1 January 2018. GCs did not want this
later reduction in exchange for permanent stationing of 650 Turkish
troops (in effect a bridgehead).
31. Para 48 is misleading in many respects
and designed to convey to any reader unaware of the hidden technicalities
and "Catch 22s" in the property provisions that the
changes favoured Greek Cypriot property owners and were designed
to meet their concerns. In fact, the changes were designed to
create the impression that all individuals were given back some
of their property so that the property provisions would be more
likely to withstand scrutiny by the European Court of Human Rights.
In the same vein, para 48 depicts the changes as "providing
that most Greek Cypriots would have some property reinstated in
the Turkish Cypriot State. . . and all for returnees to four Karpas
villages and the Maronite village of Kormakiti." This superficially
rosy picture is deceptive. First, as regards homes, only persons
who owned a dwelling at the time it was built or had lived in
it for 10 years were eligible for reinstatement. Second, current
users' rights were significantly increased and their rights were
to prevail over the entitlements of eligible dwelling-owners.
Third, current users' rights would also prevail over the rights
of returnees to the Karpas and Maronite villages, so "all"
their property would not be returned.
32. The paragraph also misleads by implying
that the total area of land returnable "would be roughly
doubled," although the fine print is careful to refer to
property "eligible, to be reinstated". Under the earlier
scheme, there had been a 10% "ceiling" on the amount
of land eligible for reinstatement. In addition, all owners could
enter into long leases, thus keeping their properties. In the
result, the limit was much higher than the 10% "ceiling".
These proposals were removed in Annan V. Instead, owners could
get up to one third of their property or one-third of its value
whichever was the lower. Since 51% of the land area in the TCCS
belongs to Greek Cypriots, they could in theory have been reinstated
to up to 17% of the land. The drafter of para 48 in referring
to rough doubling is casuistically comparing the 10% ceiling (which
ignored the effect of owners' rights to keep leased property with
this upper limit of 17%. Yet the rate of reinstatement will not
be 17%, but far lower for three reasons: the rights given to current
users; the double constraints of value and area, whichever first
applies: and a prohibition on reinstatement to institutions (companies
and the Church of Cyprus except as regards religious sites). Eligibility
in theory there is, but, because of other unmentioned provisions,
the overall amount of land actually returnable will scarcely be
increased, if at all.
33. There is yet another misleading statement:
"Restrictions on the establishment of secondary residence
by Cypriot citizens anywhere in Cyprus were removed". All
this sentence means is that persons may rent a property for this
purpose, but, elsewhere in the Plan, the TCCS authorities are
given power to restrict the purchase of property.
34. Finally, a property and residency ceilings
package was not "discussed with all parties at Bürgenstock"
and certainly not with the Cypriot side. The side's property team
sat around in Bürgenstock waiting to be called to a projected
meeting, but the call never came, so no package was discussed
as para 48 wrongly alleges.
35. Para 49 misleadingly indicates that
the alteration of permanent derogations from EU Law to 15 year
derogations as regards rights to acquire property was to meet
GC concerns. The GC side objected to any such limitation. Nor
does the Plan remove all permanent derogations as asserted. In
fact, it contains a permanent derogation demanded by the TC side,
whereby the TC side can act to ensure that no less than two-thirds
of its Cypriot permanent residents speak Turkish as their mother
tongue (see para 51).
36. Para 50 does not even mention the words
"Turkish settlers". A complex mechanism requiring the
agreement of TCs in order to stem the flow of Turkish settlers
after Turkey joins the EU or 19 years was substituted for a permanent
fixed small quota to which the GC side had agreed. The change
was in response to a demand by Mr Ziyal on 26 March. The new mechanism
was that the Aliens Board, equally composed of members from each
constituent state, would have to consult the European Commission.
This would have to be done through the Federal Ministry of European
Union Affairs. To give effect to any measures would then require
regulations, which in turn would require approval by nine Turkish
Senators, (since all immigration regulations under Article 25.2.c
of the UCR Constitution have to be approved in this way.) Turkish
Cypriot politicians with an electorate consisting of a majority
of Turkish settlers and their descendants would therefore have
to vote for restricting Turkish immigration once Turkey joined
the EU.
37. Para 52. The GC side was never consulted
about equal rotation of the first President and Vice President
of the Presidential Council. Nor was it consulted about equal
numbers of members of TC and GC Ministers with Turkish Cypriots
holding crucial Ministries (such as Foreign Affairs and Defence
with the full Turkish Army of occupation still present. This change
is alleged to balance the fact that transitional government was
a shorter period at GC request. Anything can retrospectively be
said to be balancing anything.
38. Para 53. Ever since 1999 the GC side
had said that it was unlawful for a settlement to interfere with
individual rights and to strike out proceedings concerning property
claims against Turkey. A device to satisfy the Court was substituted
in the Plan since there were obvious doubts about the lawfulness
of the Plan's property provision and the denial of access by individual
victims to the Court. The new device was designed so as to be
able to say to the Court that domestic remedies provided by the
settlement must first be exhausted. In addition, the Co-Presidents
were to write to the President of the Court and the Secretary-General
of the Council of Europe to tell them of the Plan's provision
of a domestic remedy. This stratagem was introduced upon demand
by Turkey in order to protect her in cases now before the Court
and is currently being relied up on by Turkey before the Court.
The UN should not have been talking to the Court's judges and
officials and interfering in pending cases before the Court in
the interests of a State, or at all.
39. Para 55 asserts that there are to be
"symbolic force levels" of Turkish troops even after
Turkey's EU accession. 650 Turkish troops is not "symbolic".
They are sufficient in numbers to constitute a bridgehead (in
UNFICYP language)—as they did in late 1963 and in 1974.
40. A slightly larger number of police was
a Turkish Army demand (Cumhuriyet 7.1.04). The avowed purpose
was to avoid the demilitarisation provisions and to keep members
of the "Turkish Cypriot Security Forces" in action.
41. Para 60. This is drafted to obscure
the fact that the issue is "Turkish settlers". Mr Pfirter
told Bogazici University in Istanbul on 17 July 2003 that "the
Plan does not foresee that anybody will be forced to leave"—his
speech having outlined provisions indicating that 70,000 Turks
could remain in Cyprus. On 15 March 2004, the Turkish Cypriot
side, under Ambassador Ziyal's guidance, asked for a list of "50,000
persons in addition to their spouses and children" to be
granted UCR citizenship. Since some 18,000 settlers, married to
Turkish Cypriots, were entitled to citizenship under another provision,
Turkey was in effect asking for 68,000 settler families to be
granted citizenship. On the basis of two persons per family (2
x 50,000) plus the 18,000 spouses of Turkish Cypriots, Turkey
was therefore admitting to the presence of at least 118,000 Turkish
settlers. The Plan as "finalised" provided for: a list
of 45,000 persons; the spouses of Cypriots (18,000 plus); and
20,000 Turks as permanent residents, entitled in years to UCR
citizenship, thus providing for some 83,000 Turks to remain. In
addition, 18,000 Turkish University staff and students would remain
as residents, while, under the Turkish immigration quota, another
10,000 Turks could settle (in fact stay). Thus, under the 2004
version of the Plan, 111,000 Turkish settlers were either entitled
to UCR citizenship or to residence. Accordingly, Mr Pfirter's
17 July 2003 statement that nobody would be forced by the Plan
to leave remained accurate, while para 60 is deliberately misleading
in suggesting that about half the "settlers" would have
to leave Cyprus.
42. Para 61 implies that the Greek Cypriot
side was not concerned in Cyprus about Turkey's claim to a right
of unilateral intervention and the Treaty of Guarantee. In fact,
in Cyprus on 8 March 2004, in its "Talking Points" on
"Security-Ratification of the Treaty related to the coming
into effect of the Foundation Agreement," the Greek Cypriot
side rejected the Turkish Cypriot side's view (expressed in their
papers) that there was a right of military intervention and insisted
that the Treaty of Guarantee did not empower intervention. At
Bürgenstock on 30 March, the Greek Cypriot side asked for
clarification that the Treaty did not empower unilateral military
intervention. Following the Bürgenstock meeting, the Government
of Turkey circulated to the Turkish General National Assembly
a paper asserting that the Plan gave Turkey "the right of
intervention" either alone or together with the UK and Greece.
Since clarifications were still being finalised, the Greek Cypriot
side on 15 April 2004 insisted that the matter, which involved
a jus cogens rule of international law, must be clarified.
It gave the UN an Opinion by 19 of the world's leading jurists
on the unlawfulness of unilateral intervention under the Treaty
of Guarantee. The UN ignored this. The Report evades the issue
by referring to a political factor—Cyprus's EU membership—as
creating a "different context" from earlier years when
Turkey militarily intervened in Cyprus (1964, 1967 and 1974),
forgetting that Turkey is still intervening in Cyprus, being in
military occupation of 36.4% of the Republic of Cyprus.
43. Para 62 purports to deal with limiting
the vote in the referendum in the north to persons who were members
of the Communities in 1963. This conceals the issue. It is really
about Turkish settlers voting. The UN was given an Opinion by
18 of the world's leading jurists on the unlawfulness, of letting
settlers vote. The Greek Cypriot side had raised this issue continuously.
Most notably, President Clerides raised it on 24 July 2000 at
Geneva, when Mr de Soto gave his Preliminary Thoughts on a Plan
for Cyprus. President Clerides also raised it many times thereafter,
as did President Papadopoulos in letters of 28 February 2003,
and 22 March and 25 March 2004. However, when the issue was yet
again raised by President Papadopoulos as the referenda approached,
the UN Secretariat briefed diplomats that, by raising "settlers,"
the Greek Cypriot side was attempting to torpedo the talks. The
SG did not take up the President's request to discuss at Bu"rgenstock
modalities easily and quickly to settle the issue. Nor did he
ask for extension of his mandate, having doubted that it was within
his role to deal with the matter. He merely stated that raising
the issue was a major addition to the Plan which was before the
Parties and that it undermined a fundamental parameter of his
Plan. This approach of not touching fundamental parameters was
inconsistent with his willingness to add the parameter of Community
representation to the Senate and elections for the Senate (para
51) in order to satisfy Turkey. Reference in connection with the
whole settler issue, (in particular to settlers voting) should
be made to President Clerides' statement on 24 July 2000 at Geneva
and to international law, under which the UN and its officials
are supposed to operate—especially as the TCs, whom the
Secretary-General applauded, were, many of them, settlers who
knew that under the particular Plan they could stay in Cyprus.
The settlers issue had repeatedly been raised and in detail long
before the recent talks. President Clerides had on 24 July 2000
advanced a long argument depicting the illegality of settlers
and, the various relevant instruments (Fourth Geneva Convention
etc.) He had concluded by saying: ". . . The Greek Cypriot
side expects UN representatives who are assisting in the settlement
of disputes to do so in the spirit of the Purposes in the UN Charter,
that is, to see that the dispute is settled in conformity with
principles of justice and principles of international law. I do
not believe there should be silence about remedying these grave
breaches of international law."
44. Paras 65 and 66. The Report indicates
surprise at President Papadopoulos' views on the unwisdom of the
Plan. Yet the UN knew that President Papadopoulos had constantly
expressed doubts since his 27 February 2003 meeting with the Secretary-General,
when the Plan was still subject to negotiation and had not been
finalised in the way it was at Bürgenstock. By the end of
March 2004 the Plan's balance was not acceptable, particularly
in view of the Secretary-General's decision to finalise provisions
which meant that large numbers of Turkish settlers would remain
in Cyprus and politically control the TCCS. This possibility had
always been rejected by the GC side. Without settlers as the dominant
voting body in the northern part of Cyprus, the Plan would be
different. Moreover, the active intervention and direction of
Turkey had become ever more apparent, and she was in 2004 again,
as in earlier years, explicitly claiming a right of unilateral
military intervention. Above all, the Plan had not been so modified
in the negotiations as to meet the conditions set out in February
2003 by President Papadopoulos for his support.
45. In para 66 it is suggested that the
GC side might have been given what it wanted had it complied with
the Special Adviser's negotiating desires. This is fallacious,
because the Secretariat and the two Permanent Members of the Council
active in the talks process wanted Turkey to get what she desired.
What the GC side wanted conflicted with that.
46. Para. 71 is misleading. Cyprus does
not have "State television". The Cyprus Broadcasting
Corporation is operationally independent, although State-funded.
President Papadopoulos wrote this to the Special Adviser on 21
April, when he told President Papadopoulos in his letter of 20
April 2004, that a journalist who had wished to interview him
"had been instructed not to interview foreigners". The
President also pointed to the fact that Cyprus had a lively and
well-functioning democracy in which the media are virtually unfettered
and that newspapers and the media were replete with analysis and
commentaries on the UN Plan. Indeed, Mr de Soto was given much
space in leading newspapers and his statements were reported on
the news programs carried by the electronic media. Para 71 is
designed to cast doubt on the fair and free conduct of the referenda.
47. Even when it comes to the Report on
technical aspects (Annex II) this is less than candid. It claims
that three international judges "were selected in close consultation
with the parties". This is false. The UN would not accept
the Greek Cypriot side's nominations from a list of names of judges
supplied by the UN. They rejected very distinguished human rights
jurists and Mr Pfirter insisted on his own choice in one case
while in the other case the lame excuse was used that there was
no time to check that the nominated judge was still available,
although the UN had been notified of the Greek Cypriot wish that
he serve (his name having been put forward by the UN) a week before
the UN decided whom to nominate. The decision was announced to
the Greek Cypriot side without consultation with it, but with
full consultation with and after having given a short list to
the Turkish Cypriot side.
A far more significant aspect is that the Report
gives a misleading impression of improving functionality (para
44) and of indicating that the Plan represented a solid and workable
economic basis for reunification of Cyprus (Annex II, para 9).
The Report did not explain that important recommendations by the
Technical Committee on Economic and Financial Aspects of Implementation
(which had only been appointed at Greek Cypriot insistence) had
either been changed or not included in the final, fifth Annan
Plan and the accompanying Laws. Indicatively, the "Record'
of Recommendations of Technical Committee on Economic and Financial
Aspects of implementation," submitted by the UN on 25 March
2004 to the two sides, had noted that "the Cyprus Pound mentioned
in the Plan is the current Cyprus pound". This note was not
included in the accompanying Central Bank Law attached to the
fifth Annan Plan. Again, the Committee had recommended that in
the future Monetary Policy Committee (ensuring currency stability)
the Greek Cypriot side should have a majority of members, but
the final version of the Plan, provided for equal representation
of Greek Cypriots and Turkish Cypriots. Moreover, the Committee
had recommended that the branch of the Central Bank in the TCCS
should be closed one year after the entry into force of the Foundation
Agreement, subject to the possibility of a contrary recommendation
from a working group including IMF and EU experts. Yet the Plan
left open the possibilities of maintaining the branch in the TCCS
and of widening its responsibilities. Such a development could
seriously undermine the effective exercise of monetary policy.
Even more seriously, the Committee had recommended that "An
advisory Council should be created to serve as the main coordinating
vehicle between the federal and constituent states to define a
joint fiscal policy stance and contain and manage new borrowing
by an Internal Stability Pact within the MSC". There were
detailed provisions on the functions of this Macroeconomic Stability
Council and on the borrowing limits of all levels of government,
but the Plan and the accompanying Laws only referred to the possibility
of setting up an MSC with an advisory role by a later federal
Law. Yet again the Committee tackled the issues of prevention
of harmful tax competition and taxation of commuters, whereas
the fifth Plan and Laws were silent. Finally, the Committee had
defined federal economic policy, whereas the Plan did not touch
upon this major issue. All these Committee recommendations were
agreed by the Committee's members, including the Turkish Cypriot
experts, but Annex II, while it indicates that implementation
of the Committee's recommendations would ensure a workable economic
basis for a reunified Cyprus, is silent as to the departures from
these recommendations by the Plan.
48. Para 76. The non-utilisation of "the
opportunity for frank negotiations was certainly not due to unwillingness
by the Greek Cypriot side" to negotiate. At Bürgenstock,
it sat about in waiting, vainly hoping to be called to meetings,
but the UN did not organise any meetings. Earlier in Nicosia,
Mr Denktashh was in charge and would not negotiate.
49. Para 76. The Plan was negatively presented
by Mr R Denktashh and Mr S Denktashh, as well as by the President
and some Greek Cypriot political figures. Likewise it was positively
presented by politicians from both sides (Mr Talat, Mr Anastassiades,
Mr Clerides and Mr Vassiliou). More GCs voted for the Plan than
TCs (99,976 GCs to 77,646 TCs including settlers). "One side"
cannot be singled out as having unfairly presented the Plan to
the public.
50. Para 78. Mr Erdogan committed himself
to being "one step ahead in the efforts for a solution".
This is exactly so. It was a matter of PR tactics. There was no
Turkish support for territorial concessions or for security changes
which could have crowned the Secretary-General's effort with success.
51. Para 83. It was not "the solution
itself" which was rejected. It was the "blueprint"
which Mr de Soto produced that was rejected. The' benefits listed
in para 83 were precisely why the Plan, as it evolved from Versions
I, II and III, was kept as the basis for negotiations. It is why
Version V will also be a basis for negotiations, although it will
certainly require some important modifications.
52. Para 86. Turkish Cypriots must, not
just by word, or by a cross of the pen, also demonstrate their
willingness to share. That is why they too must cooperate in measures
to re-integrate their economy and develop it with joint participation
by Greek Cypriots and the Government of Cyprus, which has sovereignty
over all Cyprus, especially since governmental arrangements are
matters within the domestic jurisdiction.
Concluding remarks
The GC side is grateful for the efforts and
involvement of the SC and the good offices of the SG. It remains
committed to exerting all efforts that may be needed to achieve
a final solution and reunification of the Island in a bi-communal
and bi-zonal federation. The recent democratic outcome of the
Referendum, conducted in accordance with the Plan in the GC community,
is in no way a rejection of the solution itself (as the drafters
of the Report seem to infer in a sweeping statement in para 83)
but only marks voters protest in relation to the specific plan
as it emerged from the Bürgenstock meetings.
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