Memorandum by the Ministry of Foreign
Affairs of the Republic of Cyprus regarding the Operation of Ports
and Airports in the Areas of the Republic of Cyprus under Turkish
Military Occupation
Under international law, every State has, as
a matter of sovereignty, the indisputable right to determine which
of its ports and airports are open and functioning, as well as
to define the terms of operation and access for these ports and
airports; there is no right for ships of one State to enter the
ports of another, unless such a right is established by treaty.
No State is obliged to open any of its airports
to international traffic unless it has bound itself by treaty
to do so. Every State has also the indisputable right to close
certain ports and airports for reasons that it is alone competent
to determine.
The Republic of Cyprus, as the territorial sovereign,
has every right to determine that the ports and airports in the
areas under foreign occupation are closed due to military occupation;
such a position is absolutely logical and self-evidently reasonable,
having especially in mind that the Republic is not in a position
to control and impose the terms of operation on these ports and
airports, or to secure the discharge of its obligations under,
international and EU law (especially those relevant to maintenance
of navigational aids and other aspects of the safety of shipping,
transboundary international crime, security, illegal immigration,
narcotic drugs trafficking and terrorism).
The ports in the occupied areas of Cyprus were
closed by an Order of the Council of Ministers of the Republic
of Cyprus, of 3 October 1974, which was communicated to the International
Maritime Organisation on 12 December 1974 for distribution to
its Member States.
The ports having been closed by the Government,
it is for the Government to determine whether, when, and on what
conditions they shall be reopened. The sovereign Republic of Cyprus
alone, and nobody else—any third party—has the right
to decide that the ports in the areas under foreign occupation
will operate again. The same applies to the airports, which were
built in the occupied areas after 1974, and the functioning of
which was never authorised by the Cyprus Government.
A decision to open or reopen the port and airports
in the northern part of Cyprus falls quite clearly within the
category of public acts that can only properly be taken by the
recognised government, ie, the Government of the Republic of Cyprus.
The subordinate local administration established by Turkey in
the occupied areas of Cyprus (European Court of Human Rights in
its judgment in the Case of Loizidou v Turkey) has
no right to take that decision. Thus, even though the "authorities"
in the occupied areas of Cyprus operate ports and airports, all
States are under a legal duty not to consider those ports and
airports closed.
Furthermore, the Chicago Convention on International
Civil Aviation, the constitutive instrument of ICAO, to which
188 Countries including Cyprus, Turkey, the United Kingdom and
the United States of America are contracting States, affirms that
every State has "complete and exclusive sovereignty over
the airspace above its territory" (Article 1). The Government
of the Republic of Cyprus, under the principle of "complete
and exclusive sovereignty", has the right to decide whether
to permit aircraft of other States to enter Cypriot airspace,
and on what terms. This includes aircraft of any flag, and, of
course, means the airspace of Cyprus as a whole.
Consequently, air services to and from the northern
part of Cyprus, if conducted without the approval of the Government
of the Republic of Cyprus, violate Article 1 of the Chicago Convention.
THE CASE
OF TAIWAN
It has been invoked, unfoundedly, that the ports
of Taiwan, an unrecognised entity, operate and that this case
could serve as a precedent. Any comparison between the two situations
is completely inappropriate, since it concerns two absolutely
different cases. Taiwan is effectively a "derecognised state"
which exercises residual functions.
However, in the case of "government"
established as a result of the invasion of one State by another,
as is the case of Cyprus, international law rules very clearly
that such "government" and occupation must not be recognised.
For the case of Cyprus, one should recall more particularly that
the Security Council explicitly "calls upon all States not
to recognise any Cypriot State other than the Republic of Cyprus",
(resolution 541 (1983)), and "not to facilitate or in any
way assist" the so-called "Turkish Republic of Northern
Cyprus", (resolution 550 (1984)). No similar resolutions
exist in the case of Taiwan.
PARTICULAR OBLIGATIONS
WITHIN THE
FRAMEWORK OF
THE EU
According to an established case law of the
European Court of Justice, the European Union is bound to comply
with mandatory obligations under general international law and
with Security Council resolutions. Therefore, the obligation under
international law and relevant Security Council resolutions to
fully respect the sovereignty and territorial integrity of the
Republic of Cyprus, which includes the obligation to respect the
right of the Cyprus Government to regulate access to its ports
and airports, binds both the Member States and the institutions
of the Union.
Furthermore, this obligations strengthened by
the existence of a specific duty of loyal cooperation between
the Member States and the European Community enshrined in Article
10 of the EC Treaty. In that respect, the European Court of Justice
held that the said duty "imposes on the Member States and
the Community institutions mutual duties to cooperate in good
faith", (Judgment of 16 October 2003, in Case C-339/00).
Moreover, as has been recognised by the Legal
Service of the EU Council (Opinion of the Legal Service of 25
August 2004, Doc. No 11278/04), the duty of loyal cooperation
would be breached if the Member States or the institutions of
the Union were to ignore the sovereign right of the Government
of Cyprus to declare the closure or to authorise the opening of
ports and airports situated in the occupied areas of Cyprus.
23 December 2004
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