Written evidence submitted by Council
of Turkish Cypriot Associations in UK
CONSIDERATIONS ON CYPRUS WITH PARTICULAR
REFERENCE TO THE FOLLOWING QUESTIONS
1. Should UK continue to back Annan Plan?
2. What role should the UK play in peace
negotiations?
3. What are the implications of Rejection
of Annan Plan on the Turkish Cypriots?
4. Should the British Government seek to
alter its relationship with the North Cyprus?
5. What are the implications of Europe's
relationship with Turkey?
6. What is the Implications of Europe's
admission on divided island?
1. INTRODUCTION
These six questions invoke several areas of
discussion with common and divergent determinants. The common
determinants are the Fundamental Principals of International law,
while the divergences are determined by domestic political systems
of the Three Guarantor States, as well as regional international
and global political systems. Common Jurisprudential aspects are
further sub divided under two headings; Those matters which preside
within Jurisdiction of Domestic Legal system and those issues
which preside within Jurisdiction International Law. For instance
it was conceivable in 1959 among NATO members at the height of
Cold war and that of the age of decolonisation, to support the
creation of Constitutional Order and a sovereign state with all
its attributes within the jurisdiction of that domestic legal
system. Yet the fundamental or basic aspects of the constitutional
order were un-amendable and guaranteed and subject of amendment
only by the approval of the Congress of three guarantor states
as confirmed by an international treaty law.
Political considerations inherent within the
six questions can be analysed at three different political levels;-
domestic, regional, and Global. For instance domestic political
systems are governed partly by Common Law of the land and political
conventions or Constitutional and Administrative law and democratic
system, and local constituency organisations and Members of Parliament.
While the regional inter national and Supra national organisations
though while progressively becoming democratically accountable
is very much determined by foreign policy considerations and general
political consideration and ideologies within the conduct and
management of executive branch of the state. Furthermore international
political systems are determined by groups of nations whose national
interests are in accorded with the super power, and are led by
heads of states which enjoy the confidence of executive branch
of their respective sovereign states.
Thirdly, the subject matter invoked by these
six questions clearly lay within the jurisdiction of International
law as well as domestic national laws. For instance, the Island's
constitutional order in 1960 was principally influenced by the
1933 Montevideo convention, as well as 1945 UN Charter Article
1 Paragraph 2 and 3 therefore by the Principal of Self Determination.
These constitutional values while incorporating the contemporary
customary international law principals, they also became basic
norms of the domestic legal system of the island, guaranteed by
intentional treaties signed by three sovereign nations which included
UK. The paradox and complex relationship between the domestic
law and international law while remaining volatile the International
Courts has been declaring since 14 September 1872 with the Alabama
Case, the supremacy of international law over national laws. This
had been very recently touched upon by Advisory opinion of 26
April 1988 I. C .J Reports 1988 p12. Judge Schwebel stated that
"no Executive in a democratic parliamentary democracy can
over look supremacy of international law over national law"
non-the-less we cannot but raise the question if an executive
can overlook the consequences of unpopular governmental policies
in a Divided Houses of Parliament or Congress or House of Representatives
very long.
In conclusion our responses to the six questions
and the invoked three issues— (i) The Foreign Policy Determinants
being legal and political (ii) as well combined application of
National and International Law in nation- creations (iii) as well
as Supremacy of International law and States obligation to global
community at large, are constantly bourn in mind and adhered to
here within.
(1) Should UK continue to back Annan
Plan?
The common usage of English word "Should"
implies an imperative. The present usage in the context, invoked
by the questions, refer, to Britain's obligation identifiable
in Public International Law. It also refers to moral obligation
often fundamental to legitimisation of national and international
political system thus to "political" obligation. The
nature of legal and political obligation raised by the above said
question can be analysed in terms of Public International Law
Norms and International Political System. The Article 38 section
1 and 2 of 1946 Statute of Intentional Court of Justice identifies
the sources of legal obligation known in Intentional law as follows:
1. The Court, whose function is to decide
in accordance with international law such disputes as are submitted
to it, shall apply:
(a) international conventions, whether general
or particular, establishing rules expressly recognized by the
contesting states;
(b) international custom, as evidence of
a general practice accepted as law;
(c) the general principles of law recognized
by civilized nations;
(d) subject to the provisions of Article
59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.
2. This provision shall not prejudice the
power of the Court to decide a case ex aequo et bono, if the parties
agree thereto."
Firstly at a glance it seems no obligation is
created by the "Good office principal of Secretary General
create," under the statue and Section 38. Non-the-less while
the Pacific Solution to international conflicts which constitutes
danger to the world peace is a established general International
Law as, ius cogent and erga omnes while remains subject
to other fundamental principal of international law, concerning
sovereignty and rights to self defence. In Nicaragua and USA Merits
Case (27.6.1986 I. C. J Report 1986 Page 14) International Court
of Justice held that Article 1 and Article 33 does create an obligation
to search for pacific solution to international disputes along
with other fundamental principals of international law of prohibitive
nature.
Secondly, there was no reference to Secretary
General's Good offices creating obligations on sovereign states.
As Thomas Franck Professor and ad hock Judge of ICJ once commented
"Secretary general wears many hats all of his own making".
One respects Secretary Generals office and Security Council often
takes note of his findings. However all of these create moral
justification and therefore political imperative upon one to respect
Secretary General's actions as long as they are impartial and
non-controversial in customary and treaty law. Thirdly we are
assisted by Annan Plan's terms of reference. Secretary General
declared that if both of the disputing parties had voted in favour
of the plan on 23 April 2004 then plan will go further towards
creating a new Constitutional order as though the island was decolonised
for the second time.
This did not happen, thus Annan Plan came to
its pre-determined end. If Britain continues to support this plan,
then it is not Annan Initiative but British initiative. Therefore
Britain has no legal nor political obligation to support Annan
Plan, no more then the obligation which exists under general legal
obligation for pacific solution to any international problem which
is threat to world peace. This begs the next question;- Is Cyprus
one such problem?
(2) What role should the UK play in
peace negotiations?
In general one can ague that no nation has any
role to play in the domestic affairs of another nation save under
special circumstances such as intervention on humanitarian grounds
and self defence, all of which form part of fundamental principals
of general international law. However pre-emptive strike as self
defence has recently been argued to be emerging contemporary international
law however this is a unsettled issued. There are many samples
involving intervention whose legitimacy is highly contestable
under customary international law. Many will argue that juris
opnio thus state action forms customary international law
while others will argue to the contrary arguing that breaches
of treaty law and fundamental principals of international law
jus cogens (fundamental peremptory principals) which are
erga omners (applicable to all nations) may occur when
the states feel that they are under obligation to act or not to
act in international plane. These considerations must be balanced
with the General State Obligation to the Global Community at large.
Britain as any other sovereign state has a political and legal
role in peace process which may be potential threatens to the
global security.
Britain has a treaty of alliance with the island
as well as being a Guarantor state with sovereign bases on the
island. Thus she has obligations to play a role under fundamental
principals of customary international law as well as under treaty
law and UN Charter. Whether or not Cyprus problem is a threat
to world peace is a subject open to debate. However this does
not necessarily undervalue the relative importance of peace to
the island and the region so much so that on the eve of second
Iraq war Prime Minister argued that the Island and the British
bases was under threat form long range missiles and weapons of
mass destruction. This was a political justification for the war
although it has not been pleaded in any international court as
a self defence.
When we refer to specific obligation of Britain
and two other Guarantor state's role in the peace process we must
also refer to obligations created under international treaty,
to play a role on the internal affairs of the island. All treaties
are subject to fundamental principals of international law including
the principal of Pact Sunt Servant which simply means to
observe the terms of the treaty with good will. How or why such
a constitutional order was deemed necessary may account for a
terminology of "state of affairs" as stated in Article
2 of Treaty of Guarantee which, sums up the expresses considerations
as principal determinants prevalent at the time which are still
valid today.
Following extract is primary evidence and will
shed light to the matter under discussion.
TREATY OF
GUARANTEE
"The Republic of Cyprus of the one part,
and Greece, Turkey and the United Kingdom of Great Britain and
Northern Ireland of the other part,
I. Considering that the recognition and maintenance
of the independence, territorial integrity and security of the
Republic of Cyprus, as established and regulated by the Basic
Articles of its Constitution, are in their common interest,
II. Desiring to cooperate to ensure respect for
the state of affairs created
by that Constitution, Have agreed as follows:
ARTICLE II Greece, Turkey and the United Kingdom,
taking note of the undertakings of the Republic of Cyprus set
out in Article I of the present Treaty, recognise and guarantee
the independence, territorial integrity and security of the Republic
of Cyprus, and also the state of affairs established by the Basic
Articles of its Constitution. Greece, Turkey and the United Kingdom
likewise undertake to prohibit, so far as concerns them, any activity
aimed at promoting, directly or indirectly, either union of Cyprus
with any other State or partition of the Island.
ARTICLE III The Republic of Cyprus, Greece and
Turkey undertake to respect the integrity of the areas retained
under United Kingdom sovereignty at the time of the establishment
of the Republic of Cyprus, and guarantee the use and enjoyment
by the United Kingdom of the rights to be secured to it by the
Republic of Cyprus in accordance with the Treaty concerning the
Establishment of the Republic of Cyprus signed at Nicosia on today's
date.
ARTICLE IV In the event of a breach of the provisions
of the present Treaty, Greece, Turkey and the United Kingdom undertake
to consult together with respect to the representations or measures
necessary to ensure observance of those provisions. In so far
as common or concerted action may not prove possible, each the
three guaranteeing Powers reserves the right to take action with
the sole aim of re establishing the state of affairs created by
the present Treaty.
There are two fundamental terms to the Treaty
of Guarantors. These are, the protection of the independence,
territorial integrity and security of the Republic of Cyprus,
and also the state of affairs established by the Basic Articles
of its Constitution. Furthermore these two terms are interrelated
and interdependent and supplementary to each other. Failure of
one implies ipso fact failure of the other. Treaty of alliance
is also logical extension of State of affairs on the island as
expressly confirmed by the International treaties and by measures
brought about by the Cold war era at the height of decolonisation
period.
Political determinants of Britain's Role in
1960 are not same now. In 1960 GB has colonies thus we were still
in the age of Colonisation and the era of decolonisation and the
Cold war was about to become acceptable aims within global political
system. Non-the-less geopolitical, and strategic importance of
the island is recognised by the regional powers through out the
history accounting for the sovereign basis. These basis were used
during Middle East Wars form 1950s onwards including during the
2nd Iraq war of 2004. However on the whole in general terms EU
members Foreign policy is determined by contemporary global political
system which is dominated by UN Security Council and NATO and
EU. On 27th September 1987 Danish Foreign secretary spoke on behalf
of EU in 42nd General Assembly and said that:
"we affirm our strong baking for the independence,
sovereignty territorial integrity and unity of Republic of Cyprus
in accordance with the relevant UN resolutions. We stand fully
by our previous statements and reject any action which purports
to establish an independent state within Cyprus.
We also express our support to the Secretary
General in his mission of good office and ask those concerned
to cooperate with him in search for a solution to this problem
of international concern and to refrain form words of actions
that might adversely affect the prospects of solution by peaceful
means"
On 24 April 2004 EU Commission directly released
a Statement:
The European Commission deeply regrets that the
Greek Cypriot Community did not approve the comprehensive settlement
of the Cyprus problem, but it respects the democratic decision
of the people. A unique opportunity to bring about a solution
to the long lasting Cyprus issue had been missed.
The European Commission would like to warmly
congratulate Turkish Cypriots for their "Yes" Vote.
This signals clear desires of the community to resolve the island's
problem. The commission is ready to consider ways of further promoting
economic development of the Northern part of Cyprus. The Commission
will start its internal reflections on the new situation and will
present its views to the Council of Ministers meeting to be held
in Luxemburg next Monday. We wish to thank the UN Secretary General
and his Good offices team who have worked so hard for a comprehensive
solution and for their close cooperation with the European Commission
in drawing up their plan".
Non-the less on 1 May 2004 EU accepted membership
of Republic of Cyprus into EU with all its imperfection of international
legal personality.
What is the political role Britain in peace negotiation
in the current state of affairs?
These can be summed up under several headings;
Firstly as stated in 42nd assembly "ask
those concerned to cooperate with him in search for a solution
to this problem of international concern and to refrain form words
of actions that might adversely affect the prospects of solution
by peaceful means".
It is reasonable for Britain to argue that intentional
legal personality of a sovereign state—and even in the case
of lesser sovereign state as in this case—is not determined
by "recognition principal" only but also by reference
to "constitutive" principal too. This will not mean
breach of impartiality but a measured response to continuous breach
of principal of Pact Sunt Servant by one of the community of two.
After all the international legal personality was vested equally
on both communities and usurped by one since 1963.
We are assisted by International Court Decisions
on this matter by the following Advisory Opinion:
Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations Headquarters Agreement
of 26 June 1947 Advisory Opinion of 26 April 1988 I.C.J. Reports
1988, p 12 [pp 34-35]
. . .inter alia It would be sufficient to recall
the fundamental principle of international law that international
law prevails over domestic law. This principle was endorsed by
judicial decision as long ago as the arbitral award of 14 September
1872 in the Alabama case between Great Britain and the United
States, and has frequently been recalled since, for example in
the case concerning the Greco-Bulgarian "Communities"
in which the Permanent Court of International Justice laid it
down that "it is a generally accepted principle of international
law that in the relations between Powers who are contracting Parties
to a treaty, the provisions of municipal law cannot prevail over
those of the treaty (P.C.I.J., Series B, No 17, p 32).
[p 42 S.O. Schwebel] It is axiomatic that, on
the international legal plane, national law cannot derogate from
international law, that a State cannot avoid its international
responsibility by the enactment of domestic legislation which
conflicts with its international obligations. It is evident that
a party to an agreement containing an obligation to arbitrate
any dispute over its interpretation or application cannot legally
avoid that obligation by denying the existence of a dispute or
by maintaining that arbitration of it would not serve a useful
purpose."
We are further assisted by the robust statement
of Judge Kreca in Application of the Convention on the Prevention,
and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections, Judgment of 11 July 1996,
I.C.J. Reports 1996, p. 595 [pp. 621-622] 44.
According to the second objection of Yugoslavia,
the Application is inadmissible because, as Mr Alija Izetbegovi
was not serving as President of the Republic—but only as
President of the Presidency—at the time at which he granted
the authorization to initiate proceedings, that authorization
was granted in violation of certain rules of domestic law of fundamental
significance. Yugoslavia likewise contended that Mr Izetbegovi
was not even acting legally at that time as President of the Presidency.
The Court does not, in order to rule on that objection, have to
consider the provisions of domestic law which were invoked in
the course of the proceedings either in support of or in opposition
to that objection. According to international law, there is no
doubt that every Head of State is presumed to be able to act on
behalf of the State in its international relations (see for example
the Vienna Convention on the Law of Treaties, Art 7, para 2 (a)).
As the Court found in its Order of 8 April 1993 (I.C.J. Reports
1993, p 11, para 13), at the time of the filing of the Application,
Mr Izetbegovi was recognized, in particular by the United
Nations, as the Head of State of Bosnia and Herzegovina. Moreover,
his status as Head of State continued subsequently to be recognized
in many international bodies and several international agreement—including
the Dayton-Paris Agreement—bear his signature.
[p 704-705 D.O. Kreca] Can the fact that "[i]n
the United Nations and in the International Conference on the
former Yugoslavia, Mr Izetbegovi has been regarded and continues
to be regarded as the President of Bosnia-Herzegovina" change
the legal order established by the Constitution of Bosnia and
Herzegovina? The answer to this question can only be negative,
as if this were not the case, we would find ourselves in the absurd
situation of attributing to the institution of recognition, which
is in practice an eminently political act constitutional powers,
the power to change the internal political structure of a State.
Another conclusion may be drawn however—that the international
community organized within the United Nations was in legal error
(error juris), judging from the meaning of the formulations used
in the aforementioned letter, with regard to the nature of the
institution of Head of State in the constitutional system of Bosnia
and Herzegovina.
38. In the light of the relevant provisions
of Bosnia and Herzegovina's internal law, it is evident that Mr
Alija Izetbegovi was without constitutional authority to
act in the capacity of President of the Presidency of Bosnia and
Herzegovina as of 21 December 1991. The relevance of that fact
cannot be denied in the domain of international law, as, in my
view, we are faced with a general legal principle according to
which:
"the act of an official cannot juridically
be set up as an act of State unless it was within the sphere of
competency of that official. The act of an incompetent official
is not an act of the State." 87
39. This general principle is also expressed
in Article 8 of the Convention on the Law of Treaties (1969).
A measure taken by an official outside the sphere of competence
of that official is by definition a non-existent measure, a measure
limited to the factual sphere as it is devoid of legal effect.
In that respect the qualification contained in the commentary
on Article 8 of the Convention on the Law of Treaties is applicable
per analogiam:
"where a person lacking any authority to
represent the State in this connection purported to express its
consent to be bound by a treat; the true legal position was that
his act was not attributable to the State and that, in consequence,
there was no question of any consent having been expressed by
it . . . the unauthorized act of the representative is without
legal effect"
Secondly Britain must remind EU that she protests
well into 1969 on every occasion when 1960 constitutional order
was demolished by one community while the other was subjected
to political and armed repression necessitating the arrival of
UN on to the island in 1963 and that is why Annan Plan came about
some 40 years later. Britain's role in these processes are legally
and politically supportable .
Thirdly Britain in its role as a moderator between
other two Guarantors and UN and EU is helped by peremptory principals
of international law and Principals of Self determination in the
age of Post Colonialism. British role cannot be one of balance
of power and diplomacy without reliance of on international law.
This role should activated by displaying balanced diplomacy with
international jurisprudence. Sadly this has been seriously wanting
.The role may be better understood if one looks at the nature
of the dispute and consider the appropriate diplomatic and judicial
measures by way of defensible intervention. The political role
of the guarantors is determined by the nature of the conflict
which must take "national interests into account". One
of the parties to the dispute mistakenly assumes, that the island
before it was colonised was a terra nullius and under the political
order created by colonialism in 1924 and that, it was possible
to divide the population contrary to the Montevideo Convention,
but according to the terms best referred to as "Fundamental
rights and majority and minority". The opposing community
holds the view that prior to 1924 GB colonisation the land was
territory of another sovereign state who lost it as direct result
of First World War. The fact that ethnic composition of the island
is understood in terms of 1933 Montevideo Convention does not
mean that the island at the end of the decolonisation period should
returned to the status prior to annexation. Nor can one support
the suggestion of majority and minority principle as being a safe
assumption, in the age of post colonial self-determination. In
short the argument is between the supporters of self determination
in post decolonisation era and majority who had rejected power
sharing constitutional order guaranteed in 1960. Subsequently
the other community who was the co founders of the republic was
also subjected to legal and political deprivation contrary to
rights acquired under the 1960 constitutional defined as "to
as state of affairs" in which their international legal personality
had been nullified to this day.
In conclusion UK as member of Security council
and NATO and EU and guarantor has a special and unique political
role to play impartially and equitably since she also legal obligation,
to observe the principals of self determination under UN Charter
now ius cogens and erga omnes under the treaty of guarantors of
1960
(3) What are the implications of Rejection
of Annan Plan on the Turkish Cypriots?
The answer to this question lays in response
to two questions:
What did the Annan Plan attempt to alter? And
What are the consequences of its failure?
Secretary general described his mission in the
introduction to the security Council United Nations S/2003/398
on 1 April 2003 as Report of the Secretary-General on his mission
of good offices in Cyprus
"Summary Under my auspices, an intensive
effort was undertaken between 1999 and early 2003 to assist the
two sides in Cyprus to achieve a comprehensive settlement of the
Cyprus problem. This effort was undertaken in the context of a
unique opportunity which, had it been seized, would have allowed
a reunited Cyprus to sign the Treaty of Accession to the European
Union on 16 April 2003. Proximity talks were held from December
1999 to November 2000, and direct talks from January 2002 to February
2003. During the process the parties were not able to reach agreement
without third-party assistance. Accordingly, I submitted a comprehensive
settlement proposal on 11 November 2002, a first revision on 10
December 2002, and a second revision on 26 February 2003. The
plan required a referendum before 16 April 2003 to approve it
and reunify Cyprus. At The Hague on 10 and 11 March 2003, it became
clear that it would not be possible to achieve agreement to conduct
such a referendum, and the process came to an end. My plan remains
on the table. I do not propose to take a new initiative without
a solid reason to believe that the political will exists necessary
for a successful outcome."
Secretary general concerned with accession as
well resolving the problem and this is evident in the proposals
index which came to be known as Annan Plan.
B. Constituent State Constitutions
C. Treaty on matters related to the new state
of affairs in Cyprus
D. Draft Act of Adaptation of the terms of
accession of the United Cyprus Republic to the European Union
E. Matters to be submitted to the United
Nations Security Council for Decision
F. Measures to be taken during April 2004
There is no difference between the Annan Proposals
and the Command Paper which was published in 1960 at the time
of decolonising the Island by bestowing sovereignty on the state
in which power was shared proportionally between two ethnic communities.
It is therefore defensible to argue that the
principal consideration which were present at the time of decolonisation,
in 1960 such as luck application of principal of self determination
was very much present in 1999 when Annan Plan set out to rectify
this imperfect international legal personality of the island.
Fundamental criticism which may be levelled
against the Plan is that it was totally based on politics and
diplomacy without involving institutions of International law.
Evidence in support is found in the closing sentence of the Secretary
General "My plan remains on the table. I do not propose to
take a new initiative without a solid reason to believe that the
political will exists necessary for a successful outcome."
How can there be a political will on the island
if one community is the total beneficiary of international legal
personality while the other is totally deprived of? How can this
be expected when an army is needed to protect life and liberty
of a community from the other?
The answer to both questions show how unjust
circumstances can be when only political norms are used without
application of jurisprudential principals to conflict resolution
at intentional and national plane.
What are the consequences of failure of the
plan?
The answer is simple:
Continuations of state of affairs, which the
Guarantor nations set out to guarantee in 1960 and failed to do
so during 1963-68. As result one community is seen as being vested
and other not vested with international legal personality, contrary
to the 1960 Constitution.
Treaty of guarantee was aimed at by "Greece,
Turkey and the United Kingdom, taking note of the undertakings
of the Republic of Cyprus set out in Article I of the present
Treaty, recognise and guarantee the independence, territorial
integrity and security of the Republic of Cyprus, and also the
state of affairs established by the Basic Articles of its Constitution.
Greece, Turkey and the United Kingdom likewise undertake to prohibit,
so far as concerns them, any activity aimed at promoting, directly
or indirectly, either union of Cyprus with any other State or
partition of the Island."
Without the protection of 1960 Constitutional
order Turkish Community is deprived of the benefits of 1933 Montevideo
Convention, benefits under 1945 UN Charter and total benefits
of 1954-75 decolonisation period advanced to the humanity by the
Global political system. Suffering of humanity in all four corners
of the world from terrorism, hunger and diseases an unjust division
of wealth and natural resources because of "failed state"
syndrome is primary concern of every international political order.
What is unjust on the island is that process of rectification
has been in place since 1960 and International community miserably
failed to pay attention to simple principal of Pact Sunt Servant
. Failure of Annan plan means perpetuation of this miserable state
of affairs.
(4) Should the British Government seek
to alter its relationship with the North Cyprus ?
This question invokes further two questions:
What stand should UK take towards the legal
personality of the Republic be?
What should the UK relationship towards South
of the Island and to the North of the island?
In response to the first question one can say
that Britain's obligation to the island is established under Customary
as well as by treaty law. Therefore these obligations imposed
equitable treatment of the two communities on which international
legal personality of the republic is vested. If the independence,
territorial integrity and security of the Republic of Cyprus,
and also the state of affairs established by the Basic Articles
of its Constitution no longer in force within domestic jurisdiction
then this should be reflected in the application of intentional
law to the relationships between perfectly sovereign state and
imperfectly sovereign state.
Therefore it is inherently unjust to treat one
community different form the other as guarantor power with above
said obligation specially ipso facto independence, territorial
integrity and security of the Republic of Cyprus, and also the
state of affairs established by the Basic Articles of its Constitution,
when this no longer the reality on the island and all those matters
to have been guaranteed have been compromised.
Therefore the North should not be treated any
different form the South and the international legal personality
of the Republic should be sought in the political order founded
in North and in the South of the island.
This is justifiable both on political and ethical
grounds since intentional law is totally ignored. Had Intentional
law been applied justly, Turkish Community would have been given
proportional international legal personality, equitably sustainable
both within imperfect domestic jurisdiction and in within the
jurisdiction of the international law. But sadly this has not
been the case.
This intolerable situation had risen because
neither the constitution of 1960 was safeguarded nor proper laws
of state succession been applied when international community
failed to recognising the failure of "State" in 1968
where one of two communities constituting the sovereign state
had been depoliticised and deprived its international political
personality.
It is with regret that instead of suspending
the international legal personality of the Republic in its current
imperfect constitutional state, it has been further integrated
with other supra national order as EU.
(5) What are the implications of Europe's
relationship with Turkey?
The link between Turkey and some of the members
constituting EU known to international, law starts in 1924. The
creation of common institutions continue to flourish through 1945
to present day save actual accession into EEC then what became
known as EC and finally into EU. There is no link known to international
law between Turkey and EU and Cyprus other then an argument which
rages: could Cyprus enter any organisation or state without the
membership of Turkey GB and Greece being its members?
We referred to ARTICLE I of Treaty of Guarantee.
"The Republic of Cyprus undertakes to ensure the maintenance
of its independence, territorial integrity and security, as well
as respect for its Constitution. It undertakes not to participate,
in whole or in part, in any political or economic union with any
State whatsoever. It accordingly declares prohibited any activity
likely to promote, directly or indirectly, either union with any
other State or partition of the Island."
It is possible to argue that many envisaged
EEC progressing from economic social integration form 1957 onwards
towards military union and pursuance of common foreign policy
with express desire to become principal international actor in
intentional political systems in 2002 so much so that in 2004
draft Constitution has been prepared for Federal State of Europe.
Therefore there is merit in the argument that
EEC and now EU is a supranational entity with international legal
personality thus within the above said provision preventing the
islands entry into EU.
Non the less consequently, as stated by Secretary
General EU played a role in influencing political opinion on the
island and Erdogan Government in Turkey. These policies are normatively
subjected to moral analysis, and ends must justify the means.
Furthermore not all ends justify the means. Turkish community
is totally deprived its entitlement to self determination as though
the decolonisation age has passed them by, in spite of the fact
they were the very few first colonies to be decolonised in 1960.
Therefore Current policy of EU to be a catalyst
has totally failed on the island in view of the referendum of
2004.
The conflict resolution process deployed seems
to be too much political and little jurisprudential, thus became
subject to criticism that the diplomatic front since 1992 has
been one of apology to a failed state of 1960 Republic.
(6) What are the Implications of Europe's
admission on divided island?
Politically speaking EU had removed any incentives
Greeks might have had to resolve the problem by being admitted
to EU as the sole benefactress of international legal personality
attributed to 1960 Republic, while the Turkish Cypriot community
is exposed to arbitrary rule of EU law since they had no say in
the negotiation stage.
Legally, EU attributed de jure status
to Greek Cypriot usurpation of island's international legal personality
which had been defacto since 1963. Turkish Cypriots remain the
victim of usurpation since 1963. Finally we are very mindful of
Judge Can Kreca of ICJ in 1996 Bosnia case.
the fact that "[i]n the United Nations and
in the International Conference on the former Yugoslavia, Mr Izetbegovi
has been regarded and continues to be regarded as the President
of Bosnia-Herzegovina" change the legal order established
by the Constitution of Bosnia and Herzegovina?
The answer to this question can only be negative,
as if this were not the case, we would find ourselves in the absurd
situation of attributing to the institution of recognition, which
is in practice an eminently political act constitutional powers,
the power to change the internal political structure of a State.
Another conclusion may be drawn however—that the international
community organized within the United Nations was in legal error
(error juris), judging from the meaning of the formulations used
in the aforementioned letter, with regard to the nature of the
institution of Head of State in the constitutional system of Bosnia
and Herzegovina.
38. In the light of the relevant provisions
of Bosnia and Herzegovina's internal law, it is evident that Mr
Alija Izetbegovi was without constitutional authority to
act in the capacity of President of the Presidency of Bosnia and
Herzegovina as of 21 December 1991. The relevance of that fact
cannot be denied in the domain of international law, as, in my
view, we are faced with a general legal principle according to
which:
"the act of an official cannot juridical
be set up as an act of State unless it was within the sphere of
competency of that official. The act of an incompetent official
is not an act of the State." 87
39. This general principle is also expressed
in Article 8 of the Convention on the Law of Treaties (1969).
A measure taken by an official outside the sphere
of competence of that official is by definition a non-existent
measure, a measure limited to the factual sphere as it is devoid
of legal effect. In that respect the qualification contained in
the commentary on Article 8 of the Convention on the Law of Treaties
is applicable per analogism: "where a person lacking any
authority to represent the State in this connection purported
to express its consent to be bound by a treat;, the true legal
position was that his act was not attributable to the State and
that, in consequence, there was no question of any consent having
been expressed by it . . . the unauthorized act of the representative
is without legal effect".
Since EU accepted a divided island with a failed
constitutional order since 1963. One cannot be optimistic in an
attempt to defend the view that that EU is a catalyst in conflict
resolution in view of the Greek Cypriot rejection of power sharing
as guaranteed in 1960 thus effects of EU policy on Cyprus has
been unhelpful.
In conclusion we have endeavoured as loyal subjects,
with interminable interest in the affairs of the island with a
commitment to peaceful and lasting solution sustainable legally
and politically for the benefit of world peace to offer reasoned
and just response in honest desire to be helpful to the Honourable
Committee, in readiness to appear before any hearing.
Ali Ratip and Ahmet Mustafa Osam
Chairman, Political Committee, Council of Turkish
Cypriot Associations in UK
7 September 2004
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