House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Written Evidence

Written evidence submitted by Dr Claire Palley, former UK Representative to the UN Sub-Commission

on Prevention of Discrimination and Protection of Minorities, and former constitutional consultant to the

President of Cyprus

I. Purpose

The purpose of this Memorandum is to focus attention on three linked aspects of British policy towards Cyprus associated with UK support of the Annan Plan. It is hoped this will assist in inquiring into the substance and implementation of current policy, its consequences and whether policy changes are appropriate. The three aspects are:

(i) Relegation of international law and international humanitarian and human rights law—areas to which the UK has in the past been a major contributor in establishing standards;

(ii) Relegation of the concerns of a friendly Commonwealth and now European Union Member State (Cyprus); and

(iii) Prioritisation of UK interests in having alignment with US foreign policy (which favours Turkey) over UK interests in maintaining smooth operation or even the continued existence of the Sovereign Base Areas in Cyprus.

II. Appendix "A"

Appendix "A", entitled "The UN Secretary-General's mission of Good Offices in Cyprus 1999-2004, with Special Reference to UK and USA Policy and with an Explanation of the outcome of the Referenda," has been attached in order to facilitate appreciation of the abovementioned policy aspects.[31] The Appendix explains:

(i) The UK Foreign Office's active involvement in formulating and supporting the Annan Plan;

(ii) The Plan's controversial final substance and the preceding major changes as it was modified between late 2002 and April 2004, concentrating on its departure from international law and human rights standards;

(iii) The reasons for the response of the majority of Greek Cypriots to the talks under the UN Secretary-General's mission of good offices and to the "finalised"" Plan as manifested in the 24 April 2004 referendum; and

(iii) Subsequent developments involving UK action as regards measures affecting Turkish Cypriots (only in brief).

The Appendix is a detailed insider account by a participant in the talks, who has since 1980 been constitutional consultant to the Government of the Republic of Cyprus. It was compiled because the writer saw the final activities of the UN Secretariat, advised by the USA and supported by the UK Foreign Office, as having wasted a significant opportunity to reach an agreed and fair settlement of the Cyprus problem. That opportunity had been sought for 27 years since the High Level Agreement of 1977 had laid down Guidelines for a settlement. The 1977 Agreement was followed by the 1979 High Level Agreement, which stipulated that human rights and fundamental freedoms of all citizens would be respected, and by development, over many sets of talks, of an indicative framework for a Cyprus settlement[32] Agreement, or failing agreement finalisation of all details, in accordance with the developed guidelines (which had been supported by successive UK Governments who participated in the drafting of Security Council Resolutions on Cyprus endorsing the framework) should have occurred at a time when there were incentives for all concerned to reach agreement. However, the opportunity was thrown away—a charge the Secretariat and some diplomats and ex-diplomats have unjustly levied against Greek Cypriots—because the long-standing and consistent attempts to balance Greek Cypriot and Turkish Cypriot interests were, from late 2002 onwards, subordinated to a desire to secure Turkish and American interests, with this policy being supported by Her Majesty's Foreign Office. US and UK action in producing a Plan perceived as being in Turkish interests caused adverse reactions by many Greek Cypriots and these are set out in the section of the Appendix explaining the reasons for "No-saying". But it was not merely frustration at "the lost opportunity" which provoked the writing of this Appendix: the Plan and its associated presentation by the UN and several EU Member States' representatives have consolidated international opinion that the Annan Plan, as claimed by the Secretariat, conformed to the Security Council's long-held vision of a settlement and that the Plan should not be re-opened.

An account alternative to that provided by the Secretary-General is necessary, because the latter's presentation in his Report, S/2004/437, 28 May 2004, of Secretariat action from late 2002 to May 2004 has become the received picture at a time when persons, other than those directly involved, did not know many of the facts or appreciate the serious consequences for Cypriots (of both Communities) of the provisions of the rapidly evolving Plan. Because the Secretariat's own account was a propaganda exercise to sanction current policies, rather than a more normal balanced UN Report, the Appendix in large measure takes the form of a rebuttal of the 28 May 2004 Report, following a similar conceptual framework[33]

Unless international ignorance of the Plan's real substance is replaced with informed understanding, this deeply flawed Plan will be extremely difficult to re-open and replace. Obviously the Cyprus problem will not be decided by production of histories and arguments applying rules of law, but will be politically decided by the directly interested parties and by major Powers involved in its causation and continuation. However, unless their decision-makers, outside the small core of officials who were responsible for current policies and distortions of previous policy, are alerted to what occurred, a political environment encouraging fresh negotiations will not develop. When negotiations occur, there cannot be mere reconsideration of the Plan with a re-vamping of some selected elements. Even less can there be only consideration of security aspects within the competence of the Security Council, as suggested by the UK Prime Minister. In its own terms, the Plan is "null and void"[34] Contrary to the Secretary-General's suggestion in his recent Report that the Plan had "now run aground" (para.73), but remained "the only foreseeable basis" to achieve a settlement (para 80), the plan sank. Its traces will, in Mr Erdogan's language in relation to Annan III, be "a reference point" for future discussion, but the good ship "Annan" was too controversial and defective to be a model for a settlement. A little tinkering in its engine-room and the addition of some more Heath Robinson devices will not make it sound and one in which Greek Cypriots would be willing to navigate should it be re-floated. Only comprehensive negotiations, in which there are, for the very first time, serious inter-party discussions covering all issues, can end with an agreed settlement. There needs to be a newly named Plan, drawing on the Annan Plan as one source amongst others, just as that Plan in all its five versions did on the preceding de Cuellar and Ghali Plans. Without full reconsideration of all aspects of the Plan—and in depth—there cannot be a Cyprus settlement, unless one is imposed by force or duress.

The writer hopes that the Appendix, despite its imperfections, provides sufficient evidence to persuade the Foreign Affairs Committee that it should recommend a new UK policy approach, leading to constructive engagement of the parties involved and to "comprehensive negotiations" with "no preconditions"[35] in a search for a "just and lasting settlement in Cyprus" (S C Resolution 1250 (1999), 26 June 1999, paras 3 and 7, a Resolution which is still binding and was co-drafted by the UK).

III. UK-Republic of Cyprus relations and risks hereinafter of their deterioration

Over the first 42 years of independence, tactful diplomacy by successive UK High Commissioners[36] together with sensitive low-key administration of the Sovereign Base Areas and close co-operation with the Government of the Republic, has, for much of the time, resulted in excellent UK-Cyprus relations, whatever reservations each Government may have had about the conduct and motives of the other[37] By and large the general public in Cyprus began to see the UK as a friendly State, rather than as the imperial Power colonising their Island, even if some sections of Cyprus society mentally dwelt on the past behind a genial façade.

These good relations developed in despite of the inauspicious background of the bitter and violent anti-Colonial struggle, which left residual resentments and suspicions on both sides. There were of course intermittent difficulties: some small groups of persons, opposed to the Sovereign Base Areas as being a subtraction from Cyprus's sovereignty and a residuum of colonialism, from time to time held demonstrations, although these were discouraged by successive Cyprus Governments; some exhibitionists or mavericks challenged SBA authority to apply SBA laws; some inhabitants of the SBA's tried to extend their farming activities at times or in areas which would obstruct military operations and defied SBA authority; and some villages near Limassol with a "dockland" culture found it difficult to adapt to SBA administration of law. Yet such difficulties have not been permitted to disturb good inter-Governmental relationships and the positive general attitude of the Greek Cypriot public.

This was a significant achievement, rendering smooth operation of the Bases possible, even if in recent years there have been some major incidents in connection with the antennae (particularly a newly erected antenna) at Akrotiri, where local inhabitants claim the equipment causes health hazards[38] The achievement is a joint one of the UK and Cyprus Governments, the latter having afforded full co-operation to the SBA Administration in spheres ranging from day-to-day administration to security issues, policing issues[39] harmonisation of laws, and handling of illegal migrants—particularly those intending to use Cyprus as a transit point to the UK.

The Foreign Office undervalues the support—of which it may not be fully aware—which successive Cyprus Governments have given to ensure SBA security and wider UK interests in Cyprus. For example, in 1986 after US air raids on Libya in which, according to some press reports, the SBAs had been used as a base or for refuelling, President Kyprianou immediately telephoned Colonel Gaddafi and requested him to ensure that action was not taken by Libya against the British Bases in Cyprus[40] This particular instance is symptomatic of a general atmosphere which has led to non-subjection of British interests in Cyprus to terrorist attack, although the Island is located so close to areas of unrest. This has been due to the excellent relations the Republic of Cyprus enjoys with the Arab world. It should be added that the protection afforded British interests has not been at a price of neutrality to terrorism by Cyprus Governments: Mr Clerides' Government in 2002 gave the fullest co-operation as regards anti-terrorist measures, including tolerating actions within Cyprus's territorial waters which were arguably within the exclusive jurisdiction of the Republic; such co-operation continues.

Maintenance of good relationships is not something which happens automatically. It requires continuous attention, especially when the press reports events and comments negatively on these, provoking pubic responses, which are especially prompt when memories of the past linger and when there are active public representatives and others with particular ideologies, happy to take advantage of the situation. Governments, themselves already irritated by particular attitudes of their partners, respond to public emotions and, in a short period, hostility emerges. It is difficult to smooth over such problems when the very persons doing the smoothing (diplomats) are perceived as part of the problem.

If Cyprus-UK relationships become embittered—as they well may, if the attitudes and actions of HM Foreign Office in relation to the Annan Plan and current representations by the UK to EU institutions concerned with EU action as regards activities in the Turkish-occupied part of Cyprus persist—co-operation even on a day-to-day basis is likely to become difficult. Responsibilities undertaken by the Cyprus Government as a matter of goodwill may in future not be undertaken or may even be reconsidered[41] While the letter of agreements reached prior to Cyprus's independence may be observed as regards the SBAs,[42] reluctant and "feet dragging" co-operation will render operation difficult and expensive[43] The tolerant Nelsonian attitude of Cyprus Governments to use of Cyprus airspace, surveillance sites inside the Republic and even SBA facilities by States allied to the UK, which have from time to time been of strategic significance, may also change[44] Moreover, once the Greek Cypriot public as a whole, including the large number of persons living around the Bases, revert to antagonism to the UK, the law and order situation, now under control, will be difficult to maintain.

The matters above-mentioned, though potentially causing aggravation, inconvenience and expense to the Ministry of Defence, may however be regarded as "small beer" by the Foreign Office in relation to the advantages to be secured by its current policy. That policy is to be supportive of the Republic of Turkey as regards Cyprus, both because of Turkey's Middle East strategic situation and the importance which the Foreign Office attaches to Turkey acquiring EU membership, with her membership likely to result dilution of the process of EU economic integration and preclusion of longer-term autonomy in the Security and Defence sphere, thereby maintaining EU dependence on NATO and the importance of the transatlantic relationship with its mediating role for the United Kingdom. What seems to have been overlooked in these policy decisions is that, although the Foreign Office may regard Cyprus as a minnow State, the UK is bound to Cyprus by Treaty obligations. Should the Republic successfully raise these issues before appropriate international judicial fora—and the Republic has legal Opinions from jurists to the effect that she has good chances of so doing— the UK could ultimately lose the SBAs and the consequential international intelligence benefits which accrue to her through information-sharing with the USA. The UK would then forfeit the only secure territory giving the UK (and her allies) unchallengeable strategic access to the Middle East. (Turkey, as the USA found in early 2003, cannot be relied on for this purpose.)

IV. The legal position of the SBAs and the Treaties of Establishment and of Guarantee 1960 and potential challenges to or under the Treaties by the Republic of Cyprus

In the municipal law of the UK there is no doubt that the UK has "sovereignty" over the SBAs.

However, their status as UK territory is uncertain in international law. The Republic of Cyprus has a right to claim self-determination in relation to the residual Crown Colony territory still in Cyprus[45] The Treaty of Establishment 1960 is not determinative of this issue. It was one of a basket of three linked Treaties (the Treaty of Guarantee and the Treaty of Establishment—to both of which the UK, Turkey, Greece and Cyprus were parties—and the Treaty of Alliance—to which the UK was not party). The Government of the Republic disputed the validity of the Treaties in February 1964 at the Security Council on several legal bases, including the Treaty of Guarantee's conflict with a peremptory norm of international law, namely, the rule against the use of force, and all these Treaties on the basis of unequal status and duress attending their execution. This Cyprus view was rejected by Sir Patrick Dean at the Security Council on behalf of the UK[46]

Even if arguments that the Treaties were void are not upheld, especially since there has been practice of Cyprus co-operating with HMG in applying the Treaty of Establishment for 44 years, the events of 1974 when first Greece and then Turkey militarily intervened in Cyprus, Turkey's continuing military occupation of part of Cyprus and the UK's continuing failure to guarantee the territorial integrity and security of the Republic of Cyprus and also the state of affairs established by the Basic Articles of its Constitution (as the UK undertook to do under Article II of the Treaty of Guarantee) entitle the Republic of Cyprus to terminate the Treaty. In passing, it is worth noting that, by Article III of that Treaty, the Republic of Cyprus undertook to respect the integrity of the SBA's and to guarantee rights to be secured to the UK under the Treaty of Establishment. Little heed has been paid also to Article 3 of the Treaty of Establishment, requiring the UK "to consult and co-operate in the common defence of Cyprus". This she has failed to do. It is arguable that these two Treaties stand or fall as one. Hitherto, small Cyprus has not wished to open up a legal front against the UK while confronted by the Republic of Turkey, but, if the Secretary-General is correct in claiming that there is a "totally different context from the 1960s and 1970s, namely, the full membership of the United Cyprus Republic in the European Union" (which he used as justification for the UN's failure to clarify that there was no right of military intervention—Report of 28 May 2004, para 61), Cyprus would not be threatened by simultaneous expansion of the current Turkish military front were it to raise these issues. The Republic of Cyprus is therefore not constrained in this respect as it has previously been. At this point it must be emphasised that the discussion of the three Treaties throughout the talks was without prejudice to the position of the Republic of Cyprus as to the invalidity of the Treaties.

It has not passed unnoticed in Cyprus that the UK attempted through the Annan Plan to re-legitimate the position of the SBAs, and UK rights in respect of these, through the Additional Protocols to the Treaty of Establishment and the Treaty of Guarantee, which were annexed to the draft Treaty between the United Cyprus Republic, Greece, Turkey and the United Kingdom related to the New State of Affairs in Cyprus. The attitude of many Greek Cypriots may have been unduly cynical, but it was "Trust not Albion bearing gifts". Thus the changes were not perceived as a bona fide attempt, by way of UK cession of some territory, to ensure that the territorial proportions of the constituent states in the UCR were acceptable to both Cypriot sides. Rather than being considered a simple benevolent offer, it was analysed as being one involving abandonment of Cyprus's residual claim to self-determination, with the side-benefit of ridding the SBA Administration of certain areas whose inhabitants had intentionally caused law enforcement problems in the Bases.

Alternatively, should the Treaties be valid and remain in force (a view which was from time to time taken by legal advisers in the Foreign and Commonwealth Office before 1974, but fudged when convenient in policy papers by officials), the Republic of Cyprus, however small a State it is, has Treaty rights, which the UK, as a law-respecting State, should uphold. Although officials have interpreted Article IV of the Treaty of Guarantee as conferring a right, not an obligation, on the UK to take action, with previous Foreign Secretaries having contended that they are under no duty because "there is no defence treaty with Cyprus" to respond to any Cypriot appeal in case of Turkish invasion (cp Mr George Brown, CAB 128/42, Cabinet meeting 23.11.67, pp 3-4), this overlooks Article III of the Treaty of Guarantee, whereby the UK has guaranteed the state of affairs established by the Basic Articles of the 1960 Cyprus Constitution and has also guaranteed Cyprus's territorial integrity and security. Although the UK cannot be compelled to intervene either militarily or diplomatically, she remains responsible to uphold the Treaty. This is surely a matter of concern to the Committee, and it could enquire of the Foreign Office what it intends doing by way of policy and action to ensure that the UK's obligations are observed.

The answer will doubtless be given that the UK has been actively involved in negotiations on a Cyprus settlement in terms of SC Resolution 353 (1974) 20 July 1974, para 5, and SC Resolution 939 (1994) 29 July 1994, para 3. The latter Resolution requires the Secretary-General to consult "with the Guarantor Powers" with a view to "fundamental and far-reaching reflection on ways of approaching the Cyprus problem in a manner that will yield results, and reiterates its call to the parties to demonstrate their commitment by co-operating fully to this end"[47] In pursuance of this Security Council request for involvement by the UK the following actions, inter alia, were taken: the then Sir David Hannay was appointed Special Envoy in 1995 and (with Mr Richard Holbrooke of the USA) laid down the procedure to be followed in the talks; the Foreign Office Legal Department and former members gave frequent assistance to the Secretariat team in the talks; a special team to deal with Cyprus issues was set up in the Ankara Embassy; co-ordination with the State Department[48] and the UN Secretariat occurred; diplomatic pressures were applied in Cyprus and in Ankara and to other Governments who were kept briefed as seen fit by the Foreign Office. The Foreign Office input was not merely procedural, but substantive as to the shape and details of the Plan, so much so that the Plan was perceived, at least so long as Lord Hannay was active, as the UK Foreign Office's brain-child.

Although it is because the UK is a Guarantor Power that it has been involved, the involvement has not been in terms of the Treaty of Guarantee. Since the late July 1974 meeting in Geneva preceding the second wave of the Turkish invasion of Cyprus on 14 August, there appears to have been no Treaty meeting (ie no formal Treaty meeting) under Article IV of the Treaty, which governs meetings of the Guarantor Powers in the event of a breach of the provisions of the Treaty in order to consult together as to measures or representations necessary to ensure observance of the Treaty's provisions.

The Treaty contains no provision for other meetings, including any meetings with the Republic of Cyprus, the beneficiary of the guarantees by the other three Powers.

Active Foreign Office involvement in the Plan continued as late as the Burgenstock meetings. There, the UN and EU teams were receiving advice from the Foreign Office Legal Department that there was no problem in derogating from fundamental principles of EU law as regards human rights, particularly the right of return, property rights, rights to assume residence in the Turkish Cypriot constituent state and to restrict establishment of Greek Cypriot business. The Foreign Office, through the UK delegation, advised that the Plan could and should be made EU "primary law" and so framed as to prevail over the relevant rights before the European Court of Justice and the European Court of Human Rights[49]

Earlier, the Foreign Office Legal Department had been advising that derogations from the human rights in the European Convention on Human Rights and Fundamental Freedoms and Protocol No 1 as regards the right to home and to possessions (property) could be dealt with in the Plan so as to require Turkey's State responsibility to be assumed by the future constituent states, who should instead pay compensation for property violations by Turkey, with all claims against Turkey to the European Court of Human Rights being stayed. By the time of Annan V, a device, more likely to be upheld by the Court, was substituted in Article 5 of Annex VII of the Plan on the basis that a domestic remedy was available through compensation paid by the Property Board (with such compensation being funded by Greek Cypriot taxpayers who would have formed 92% of the federal taxbase). Whether the Foreign Office Legal Department contributed to this scheme is unknown. It has certainly used arguments of a similar character in Strasbourg to urge the Committee of Ministers of the Council of Europe to delay pressing Turkey into measures ending property violations in Cyprus found by the Court in Cyprus v Turkey in May 2001. The Committee might now consider inviting the Foreign Office Legal Department to provide it with an Opinion, in light of the International Court of Justice's Advisory Opinion on the Consequences of the Construction of a Wall in the Occupied Palestinian Territories on 9 July 2004. This should examine the compatibility with international law of the Annan Plan property provisions (which do not, except in part, provide for restitution), the restrictions on return of displaced persons plus the rights of settlers to become Cyprus citizens and the toleration of Turkish settlers voting in a self-determination referendum by the Secretary-General. It should be recalled that the United Kingdom is a signatory to the Fourth Geneva Convention of 1949, which the International Court has now declared is crucial to determining issues of these kind put before it in The Wall case.

A final Foreign Office act as regards the Plan immediately before the referenda was perceived by Greek Cypriots as not friendly. This was the UK's and USA's co-sponsorship and forcing to a vote of a Security Council Resolution on 21 April 2004 (S/2004/313) contingently coming into operation upon the approval in the referenda of the Annan Plan. Advance Security Council endorsement of the Plan prior to the referendum was, in view of the virtual reverence with which the Cyprus public treats UN Resolutions, obviously an attempt to manipulate public opinion in Cyprus, thereby interfering with the free self-determination exercise and intervening within the domestic jurisdiction contrary to UN Charter Article 2.7. The Resolution was vetoed by Russia on technical grounds of consultation and timing (see Appendix).

V. The implications for the EU of a divided Cyprus

It is submitted that the focus of this question should first be the basis of the division, because "division" per se is not a legal concept and the mere fact of division does not determine the consequences and the permissible limits of action. The UK, as a State which observes international law, cannot selectively apply such law, even if it leads to what are considered to be undesirable consequences or ones dipleasing to UK allies. It is therefore necessary to begin with the fact that the northern part of Cyprus is under a foreign military occupation and that it is governed by a subordinate local administration of Turkey, the military Power in occupation and control (Judgments of the European Court of Human Rights in Loizidou v Turkey in 1996 and 1998 and in Cyprus v Turkey in 2001). The situation in Cyprus is not a question of a civil war (even if this was arguably the case at the end of 1963, in 1964 and until December 1967, with both Greece and Turkey intervening and sending in forces in excess of Treaty of Alliance numbers or threatening invasion). Since 20 July 1974 only Turkey has been involved following her aggression which then commenced[50] Even were there a civil war situation (as with China and Formosa, later Taiwan), it is not in accordance with the comity due to States to intervene in a civil war, and it would aggravate an intractable situation were it sought to grant some higher intermediate status to the Turkish authorities in the occupied area.

The UK is bound by Security Council Resolutions 541 (1983) and 550 (1984) (which it co-drafted and sponsored) to treat the Turkish Cypriot authorities' declaration of purported secession of part of the Republic of Cyprus as legally invalid, to treat all secessionist actions as invalid and not in any way to facilitate or assist the secessionist entity. Because this entity is the fruit of aggression, international law prescribes its non-recognition. It has not been suggested that there be any "recognition" of the entity[51] but some of the measures possibly under consideration are equally prohibited by the Resolutions. Measures consolidating that entity and its economic status will facilitate it, contrary to SCR 550 (1984).

Individuals who are citizens of Cyprus are entitled to the rights the EU confers on its citizens (unless these have in any way been suspended). Such EU citizens are free to seek employment in many EU States, including the UK[52] Turkish settlers are not citizens of Cyprus, and cannot avail themselves of this benefit[53] A recent development has been the increasing number of Turkish Cypriots who have sought to acquire Republic of Cyprus passports and to effect registration of details of births and marriages so as to be able to acquire all EU benefits. In this they have been facilitated by the provision of enhanced services by the Government to process speedy administrative action[54]

The recent Advisory Opinion on the Consequences of Construction of the Wall in the Palestinian Territory is also relevant in the EU context. The Advisory Opinion has major implications for what can be recognised in relation to properties owned by displaced Greek Cypriots in the areas of Cyprus in which the Republic does not exercise effective control. In this connection, the Committee might consider further asking the Foreign Office Legal Department how it is that, even after that Advisory Opinion, and presumably in accordance with the Legal Department's advice, UK representatives have in the EU Commission and Council, contended that there should not be an Article in the proposed Regulation dealing with the grant of EU funds to the Turkish Cypriot Community precluding such funds from being allocated for projects involving exploitation of displaced owners' property unless such owners have been compensated[55] (This is an important general humanitarian law issue, which will in due course arise in relation to Serb-owned property in Croatia, to Croatian-owned property in Serbia, to Muslim-owned property in Croatia, Serbia and Republica Srpska and to Serbian-owned property in Kosovo when EU aid for reconstruction potentially involving such properties is granted.) Even after other States in the relevant EU-decision making body accepted that seized Greek Cypriot-owned property, for which compensation had not been paid, should not be used in EU aid projects, the UK representatives continued to attempt to water down the protection of property and thus the rights of dispossessed owners.

VI. Role of the UK in the EU after the referenda

The role assumed, subsequent to the referenda results, by the United Kingdom in regard to the Turkish-occupied area has already occasioned adverse comments in the Greek language press and among the public. Since, presumably, the Foreign Office will give a full report to the Committee on its activities on this score in EU institutions, it suffices to say that the UK delegation was prominent in advancing the argument that only qualified majority voting is needed for decisions on the taking of measures to enable direct international trade by Turkish Cypriots, even if by virtue of the EU authorising measures facilitating this, Cyprus's sovereignty over her ports and harbours would be infringed, and the Government of Cyprus's powers and responsibilities as regards international trade (in relation to which, so far as concerns the occupied area, the EU acquis currently has no application) would be disregarded. Thus the Foreign Office advanced arguments, relying on provisions of the EU Treaty eg Article 133, as empowering such action, although, by virtue of Article 1.1 of Protocol No.10, the acquis is suspended in the areas in which the Republic does not exercise effective control—unless this suspension has in part or in whole been altered by unanimous decision of the Council under the provision, which is not the case[56] Such an argument, which the UK persuaded the Commission to adopt, disregards both international law and EU law, and has been described by the Legal Service of the Council as a detournement de pouvoir (see Appendix).

The disregard of UK representatives in the relevant EU decision-making bodies for property rights of dispossessed Greek Cypriots owners (mentioned in V above) has also been, and still is, the subject of criticism in the Greek language press in Cyprus.

Obviously Foreign Office policy-makers are sympathetic to individual Turkish Cypriots, who have not enjoyed the trading opportunities open to Greek Cypriots and whose income per capita is far lower than that of Greek Cypriots due to Turkish mismanagement of the economy of the occupied area (see Appendix) and the refusal of Turkey's subordinate local administration in the occupied area to allow commercial relationships with Greek Cypriots and authorities of the Republic of Cyprus, including making use of its services and facilities[57]. To the extent that any measures by the Government of Cyprus have in effect denied economic benefits to Turkish Cypriots, not as such, but because they are in an area occupied by a foreign Power, this has since been remedied in law by Republic of Cyprus and EU action so far as is compatible with EU Law[58]. It is inappropriate to disregard international and EU law and to take unfriendly stances towards a fellow EU Member State, even if contrived legal arguments and humanitarian feelings rationalising such conduct can be advanced. The situation is perceived in Cyprus as one of the UK fulfilling private promises to Turkey, like those made by the EU Commission through President Prodi and Mr Verheugen on 15 and 16 January 2004 in Ankara prior to re-commencent of the negotiations on the Plan.

The UK Foreign Office is certainly justified in taking an interest in the welfare of all EU citizens (whatever their ethnic background), but, in doing so, it should do so more sensitively and only by private representations, rather than by seeking to impose measures by strained legal constructions and without giving the lawful Government an opportunity itself to act to remedy any inequalities which may exist.

VII. What role should the UK play in the continuing process of negotiations between the two Communities on the Island?

The following suggestions relating to encouraging resumption of negotiations, and rendering any negotiations more susceptible of success, are respectfully made:

(i) The UK as a Guarantor Power, as a Commonwealth State, as a fellow EU Member State and as a Permanent Member of the Security Council, should continue to do all it can to assist in promoting a peaceful and agreed settlement of the problem confronting Cyprus (a role recommended to it as long ago as 4 March 1964 in conjunction with appointment of a Mediator under SCR 186 (1964), a Resolution frequently reiterated over the years (Cf. SCR 1475 (2003), 14 April 2003).

(ii) In acting, the UK will need, in light of Greek Cypriot perceptions of recent Foreign Office conduct and earlier Turkish Cypriot perceptions of unfairness, to be particularly sensitive to potential reactions from both Communities. The UK is still characterised as the former Colonial Power and as self-interested in its Bases and in supporting its NATO allies, Turkey and the USA. The UK must be careful not to give further credence to the view that it is partisan. Rather than reverting to taking " a high profile," as in the days of Lord Hannay, HMG should, as a Permanent Member of the Security Council, encourage the Secretary-General and the Secretariat, to revert to an impartial facilitating role in comprehensive negotiations under the Secretary-General's continued mandate of good offices in terms of all relevant Security Council Resolutions.

(iii) HMG should also encourage the new EU Commission President, Mr Barroso, to embark upon a good offices role, with the two international organisations being complementary and not competitive.

(v) In any discussions that follow, the Foreign Office should cautiously offer ideas for exploration and not seek to impose them, even if the process of negotiation is infuriatingly slow. Anything it suggests must be alert to the significance of symbolism and sensitive in dealing with the desires of the two Cypriot Communities to pursue different aspirations.

(vi) Whatever the Foreign Office suggests, it should be careful not to associate these with or touch on the Sovereign Base Areas. Their situation is an issue which should be left for discussion, with ultimate resolution of difficulties by the Government of a reunited Cyprus, unless of course issues requiring action by the Government of the Republic of Cyprus should emerge in the interim—as they have continuously done over the last 44 years. Such normal relationships should be maintained as cordially as circumstances permit.

(vii) Preceding any settlement negotiations, various interim measures will assist in creating a proper negotiating climate. A significant contribution can be made in the security sphere. The UK, as a Power with good relations with her NATO ally Turkey, should be able to persuade Turkey that:

(a) a Cyprus settlement should be guaranteed by an international military and police force, and that the two States which have intervened in Cyprus (Greece and Turkey) should not be involved in such a force—neither should the UK, which is a Guarantor Power and one with interests and large forces of her own in Cyprus;

(b) Interim substantial reductions of Turkish forces should be made by the Government of Turkey (such a recommendation was made in the Committee's 7 May 1987 Third Report, in para 145).

(c) their military authorities in Cyprus should, using UNFICYP's good offices, directly engage in discussions with the military authorities "of the other side" to agree on the package of confidence-building measures for the reduction of tension along the ceasefire liens as set forth by UNFICYP and reflected in SC Resolutions until SCR 1251, (1999), all sponsored and drafted by the Foreign Office, calling for such measures. It should be noted that the Government of Cyprus, although it earlier did little about agreeing to such measures, has, since the referenda, put forward proposals largely based on UNFCYP's original proposals. The present period constitutes a "lull" which permits the taking of confidence-building measures in the security sphere of a kind certain to have positive effects in both the short and the longer terms.

(ix) The UK should tactfully emphasise to its Government that the Turkish settler problem must not be exacerbated by further Turkish settlement in Cyprus and that Turkey, as the responsible State, will have to take measures—possibly with EU financial aid—for repatriation of persons encouraged to come to Cyprus in violation of the Fourth Geneva Convention (to which both the UK and Turkey are signatories, as are other EU States).

(xi) The UK should, again tactfully, cease to condone delay or make excuses at the Committee of Ministers of the Council of Europe for Turkey's failure to take remedial measures in cases where the European Court of Human Rights has found violations of human rights by Turkey. Instead it should encourage the Turkish Government to consider with its subordinate local administration commencement of schemes to provide alternative accommodation for Turkish Cypriots currently occupying Greek Cypriot-owned property, with such schemes being constructed with the negotiated consent of the Republic of Cyprus on State-owned land (of which there is a great deal in Cyprus) or on land acquired by purchase from individuals including the Church of Cyprus, with good offices of the Government of Cyprus being employed to make arrangements possible and lawful.

(xii) In parallel, the Government of the Republic of Cyprus should be encouraged to take measures to ensure that expropriated property formerly owned by Turkish Cypriots is paid for; that use of requisitioned Turkish Cypriot-owned property is compensated by fair rents by occupiers or by the State; and that the conditions for restoration of requisitioned Turkish Cypriot property to its owners are modified, so that vacant property is immediately returned to Turkish Cypriots once they establish their ownership. Human rights to non-interference with possessions must apply throughout Cyprus, not only because of Cyprus's obligations under Article 23 of the 1960 Constitution, Protocol 1 to the European Convention and the UN Declaration of Human Rights, but also because these are parts of the general principles of EU Law—about which Greek Cypriots feel so strongly. If financial assistance is needed to meet compensation liabilities, whether of Turkey or of the Republic of Cyprus, international financial institutions should be encouraged to make the necessary funds available at affordable rates.

(xiii) Just as the Foreign Office should make quiet representations about observance of Article 1 of Protocol of the European Convention to Turkey, it should make similar recommendations to the Government of Cyprus on the wisdom and need to enact measures to terminate violation of Article 3 of Protocol No.1 (right to free elections) and Article 14 of the Convention (prohibition of discrimination). In Aziz v Cyprus, Application No 69949/01, the European Court of Human Rights decided, on 22 June 2004, that the lack of legislation to resolve the resulting problems concerning Cyprus elections, occasioned by the continuing Turkish occupation for 30 years of northern Cyprus, had completely deprived the applicant, a member of the Turkish Cypriot Community living in the Government-controlled area, of any opportunity to express his opinion in the choice of members of the House of Representatives of the country of which he was a national and where he had always lived. This was because the Electoral Law provided only for a roll of Greek Cypriot electors. The enactment of legislation by the Republics' House of Representatives to afford such an opportunity for voter participation without discrimination, and also to render Turkish Cypriot candidates eligible for election to the House, will create goodwill and evidence Greek Cypriot sincerity in seeking a non-discriminatory society.

(xv) All suggestions need be made in private representations by sympathetic persons, whether they are UK or EU personnel or NGO representatives with financial backing, to the relevant Governments. Megaphone diplomacy is doomed to failure in Cyprus. If progress is made on these fronts, as well as in the EU context, there will be major changes in the Cyprus climate, which will facilitate compromise and will result in some of the complex issues on which the sides need to agree tentatively being resolved in part. There was, however, one useful "megaphone-type" suggestion made in the Committee's 1987 Report, namely, that the Government of Turkey should be encouraged to make an unequivocal statement that it had no claim on the territory of Cyprus and would firmly reject any aspirations towards the union of all or part of Cyprus with Turkey (para 145). The Committee should repeat this 1987 recommendation.

Dr Claire Palley

13 September 2004

"being a scholar, I write also for a community of other scholars. . . who know nearly as much about my subject as I do. They are in a position instantly to remind me of the excluded facts and wrong-headed interpretations that my own bias, self-delusion and lack of diligence have kept me from acknowledging."

I acknowledge that my frustration at the lost opportunity and the fact that the UK's "ethical foreign policy" appears to have became defunct—at least so far as concerns Cyprus—as well as my sympathy for the Greek Cypriot side are evident in the Appendix, but I do not believe that writers should try to mask their attitudes by careful editing. Had I operated such pruning shears, critics would still observe: "She would say that, wouldn't she?" It is up to readers, alerted to my sympathies, and appropriately discounting these, to evaluate whether the Appendix provides a valid alternative account of events and of the effect of the Plan.

31 Not printed. Back

32 The two High Level Agreements of 1977 and 1979 are the only agreements between the two Cypriot sides on the Cyprus problem and form the cornerstone of any mutually acceptable settlement. Back

33 Diplomats and negotiators may explicitly say they are affording justice, but they may also use the term to cover its opposite, especially when there are conflicting concepts of justice, fairness and history on hand-or at least different interpretations-such as those which have divided the sides in Cyprus. The Secretary-General's Report (S/2004/437, 28 May 2004, which stimulated the writing of the Appendix) leaned towards Turkish and Turkish Cypriot interpretations, and the writer of the Appendix as a virtual counter-Report hopes that, while no account can claim to provide "the whole truth," it approximates better to what occurred between late 2002 and April 2004 and to what the Plan portended, if properly appreciated, than did the Secretariat's Report. It is in any event desirable that the perspective of most Greek Cypriots be understood (not least by Turkish Cypriots) because competing views of the past lead to revisions of thought and ultimately to constructive engagement. But it should be clear that the Appendix is not a mere apologia for those Greek Cypriots who voted against the Annan Plan. In a bona fide attempt to narrate the course of the negotiations and surrounding events and to analyse the Plan as it was repeatedly modified, I kept in mind the words of a modern historiographer about the activity of getting the story straight: Back

34 See Annex IX: Coming into Being of the New State of Affairs, Article 1.2. Back

35 By "no preconditions" I mean both procedural conditions and substantive requirements, such as one side insisting that it will not talk unless a right of intervention is granted or the other side insisting that every dispossessed property owner must have restitution of his property rather than compensation where lawful and appropriate. The phrase "no preconditions" is not used by me as code allowing one side to say that UN Resolutions must not be applied as has sometimes been the interpretation given the phrase in Cyprus. Back

36 Notably Sir Arthur Clark, Sir David Hunt, Sir Peter Ramsbottom and more recently the then Mr David Madden (who had an uphill task following the stance of his predecessor). Back

37 This emerges from the now open papers in the UK Public Record Office and from comments to the writer by Greek Cypriot political figures. Back

38 For a long period the Ministry of Defence resisted application of the European Convention on Human Rights and Protocol No 1 to the SBAs. The Foreign Office eventually persuaded HMG to extend the Convention to the SBA's where it had not applied since 1964. The long-term consequence is that, if scientific evidence supports allegations that there is indeed a threat to life or integrity of the person, SBA law will have to afford remedies to persons whose rights have been violated or face possible claims to the European Court of Human Rights. Back

39 The writer was present at a luncheon between the Republic's Attorney-General and the Legal Adviser to the SBA's where a low-key policy on prosecuting "martyrs" who wished to get publicity was informally agreed-as were certain policing matters. Back

40 This conversation occurred in the writer's presence upon her suggestion. Back

41 The co-operation eventually negotiated as regards asylum seekers and illegal migrants entering the SBA's is at considerable expense to a small State. The SBAs do not form part of the EU and Protocol No 3 on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus (with Annex and Declaration), which provides for special arrangements to implement EU Treaty provisions and related EC law and for the implementation of provisions of the Treaty of Establishment in the SBAs, was negotiated with the co-operation of the Cyprus Government. Continued co-operation is essential if delegation of functions imposed on a Member State is to be made to the Government of the Republic, as the Protocol envisages-in the interests of both Parties. If co-operation fell away, Protocol No 3 would require reconsideration and possible incorporation of the Bases in the EU, to the displeasure of the Ministry of Defence. Back

42 The agreements are set out in various Annexes to the Treaty of Establishment 1960 and in the Exchanges of Notes regarding the SBA's and Sites in the Republic (see Cmnd, 1093, July 1960, for the texts). Back