TURKISH CYPRIOT MEMORANDUM ADDRESSED TO
THE COUNCIL OF MINISTERS OF THE EUROPEAN COMMUNITIES IN RESPECT OF
AN "APPLICATION" FOR MEMBERSHIP BY "THE REPUBLIC OF CYPRUS"
1. The President in office of the Council of Ministers has been sent three applications, dated 3 July 1990, by a body calling itself "the Government of the Republic of Cyprus" seeking membership for "Cyprus" (not "the Republic of Cyprus") in the three European Communities. In this connection the Turkish Cypriot side respectfully requests the Council of Ministers to take into consideration the following objections and observations. Cyprus is a two-community island.
2. The basis of the Turkish Cypriot opposition to the present application is that the Republic of Cyprus as originally conceived and brought into being in 1960 was founded on the existence of two separate and politically equal communities - one Turkish, the other Greek. Whatever may have happened since then - and the essential elements will be recalled below - the fact remains that there are still two separate communities in Cyprus and a legal background which recognizes the separateness and political equality of these two communities. Even if the Greek Cypriot community has in a number of contexts succeeded in assuming the mantle of "the Republic of Cyprus", that is not a consideration that can now entitle it to represent the whole of Cyprus in so fundamental a development as the acquisition of membership of the European Communities or at all. Membership of the ECs is unworkable in a divided island.
3. Unlike any other international relationship into which the Greek Cypriot community has purposed to enter -albeit illegally- in the name of "the Republic of Cyprus", membership of the European communities would involve a degree of participation by the Communities in the life of their Members which is quite unworkable in the circumstances presently prevailing in Cyprus and pending a mutually acceptable comprehensive settlement in the form of a bi-communal, bi-zonal, federal republic. The European Communities cannot have, and should not consider having, as a single member, an island which is divided into two parts, each separately governed and divided by a firm boundary, when membership demands, among other things, free movement of goods, persons, services and capital, not to mention the application of common policies on such important matters as agriculture, fisheries and transport throughout the territories of the Members of the Communities. The application is misconceived.
4. The applicant, in submitting an application in respect of "Cyprus" (not, it should be noted, "the Republic of Cyprus") suggests a unity of the island which is not supportable either in law or in fact. It will be useful to recall the essential elements in the situation. They are, regrettably, too often overlooked. Early recognition of the two-community nature of Cyprus.
5. There are two different peoples in Cyprus. This historical fact was underlined by the British Government during the period when Cyprus was approaching independence. The British Colonial Secretary, Mr. Lennox Boyd said on 19 December 1956: "... it will be the purpose of Her Majesty's Government to ensure that any exercise of self-determination should be effected in such a manner that the Turkish Cypriot community, no less than the Greek Cypriot community, shall, in the special circumstances of Cyprus, be given freedom to decide for themselves their future status.
In other words, Her Majesty's Government recognize that the exercise of self-determination in such a mixed population must include partition among the eventual options". This statement was confirmed by the Prime Minister, Mr. Macmillan, on 26 June 1958, who described these assurances as "pledges". Bi-communal essentials of the 1960 settlement.
6. Despite the reference to "partition" as an option, in answer to Greek Cypriot claims for union of Cyprus with Greece, this was not the solution eventually adopted. Instead, a compromise was reached along the lines of a bi-communal State, in which the respective legal and political positions of the two communities were carefully regulated. Absolutely fundamental to the division of power between the two communities was the idea that Cyprus could not be ruled by one community to the exclusion of the other.
Both communities had to participate as partners in all decision making and in the administration of the island. Equally fundamental was the idea that the greater numbers of the Greek Cypriot community, could not be used to impose unacceptable policies or decisions upon the Turkish Cypriot community. Adequate checks and balances were provided in the constitution for the preservation of the national identity and partnership status of each community. International and constitutional nature of the 1960 settlement.
7. These fundamentals were incorporated in what has come to be called "the 1960 settlement". It is characterized by the fact that it is both an international and a constitutional settlement. Thus the subsequent conduct of the Greek Cypriot community has to be judged not only in terms of constitutional law but also of international law. Strict division of power between the two communities.
8. The 1960 settlement consisted, first, of the Zürich and London Agreements of 1959. These were international treaties which raised to the level of international legal obligation the undertakings given by the parties. Thus, the Zürich Agreement, concluded between the Greek and Turkish Prime Ministers on 11 February 1959, established the Basic Structure of the emergent Republic of Cyprus.
It provided, as basic articles for inclusion in the Cyprus Constitution, a clear and balanced division of power between the Greek and Turkish Cypriot communities, including provision for a Greek Cypriot President, elected solely by Greek Cypriots, and a Turkish Cypriot vice-president, elected solely by Turkish Cypriots, and seventy percent - thirty percent distribution of seats in the Council of Ministers and the legislature, as well as the same allocation of places in the administration.
Also, the President and the Turkish Cypriot vice-president were granted veto powers which would have enabled them to block measures prejudicial to their respective communities. Executive power "ensued from the President and vice-president acting conjointly." Another essential feature of the basic articles was the specific exclusion of the total or partial union of Cyprus with any other State. International guarantee of the Settlement.
9. The undertakings given in these Agreements were reinforced by the Treaty of Establishment and the Treaty of Guarantee of 1960, as well as by incorporation in the Cyprus Constitution itself. The parties to these treaties were the Republic of Cyprus, on whose behalf "the Greek Cypriot President and the Turkish Cypriot vice-president" signed, Greece, Turkey and the United Kingdom. These treaties created for the parties rights and duties under international law. In the Treaty of Guarantee especially the Republic of Cyprus undertook to ensure respect for its constitution, while Greece, Turkey and the United Kingdom, taking note of this undertaking, recognized and guaranteed the state of affairs established by the Basic Articles of the Constitution.
This Treaty also expressly provided that "In so far as common or concerted action may prove impossible, each of the three guaranteeing Powers reserved the right to take action with the sole aim of re-establishing the state of affairs established by the present Treaty." Early Greek Cypriot rejection of Turkish Cypriot participation.
10. Within three years of the conclusion of these solemn compacts the Greek Cypriots had embarked upon a deliberate course of subverting the basic articles. This culminated in the resignation of the neutral President of the Constitutional Court and the eventual denial of each and every right given to Turkish Cypriots under the Constitution.
In pursuance of the so-called "Akritas Plan" that was aimed at uniting the Island with Greece, the Turkish Cypriots were ousted from their guaranteed positions in the organs of government, the political equality and the vested rights of the Turkish Cypriots were denied, while the Greek Cypriot members of the House of Representatives enacted, in flagrant violation of the 1960 settlement and the basic articles of the Constitution, legislation providing for the operation of various organs of government without Turkish Cypriot participation.
In June 1967 the Greek Cypriot legislature went so far as unanimously to pass a resolution in favor of "Enosis", union with Greece, so clearly prohibited by Article 185 of the Constitution. Separation of the Turkish Cypriot community.
11. Since December 1963, the Turkish Cypriot community, faced by discrimination, threats and physical attacks was for its self-preservation, compelled gradually to withdraw into self-administering enclaves, cut off from public services and unassisted by public monies. The fact of administrative and territorial division between the communities was acknowledged eleven years later by the Foreign Ministers of Greece, Turkey and the United Kingdom in the Declaration of 30 July 1974, which "noted the existence in practice in the Republic of Cyprus of two autonomous administrations, that of the Greek Cypriot community and that of the Turkish Cypriot Community."
It is further attested by the maintenance of a dividing line across the island by UNFICYP, which had arrived in Cyprus with the consent of both sides in March 1964 as a result of the break up of the partnership state and its administration. In due course, in 1975, the Turkish Cypriot administration which had been administering Turkish Cypriots since the breakdown of the legitimate partnership government, developed into the Turkish Federated State of Cyprus, by way of adaptation to the circumstances, and for the purpose of creating the federated Turkish Cypriot wing of a future federal republic of Cyprus, thus re-establishing the defunct partnership state in a federal form. Constitutional illegitimacy of Greek Cypriot action acknowledged.
12. The lack of constitutional foundation for the Greek Cypriot administration was acknowledged by the Foreign Ministers of Greece, Turkey and the United Kingdom in a Declaration of 30 July 1974 when they recorded that "among the constitutional questions to be discussed should be that of an immediate return to constitutional legitimacy, the vice-president assuming the functions provided for under the 1960 Constitution". Such words could not have been used if the prevailing condition at the time had been one of adherence to the constitution.
In fact Makarios had openly declared the 1960 Agreements and the Constitution to be "dead and buried", and he offered Turkish Cypriots minority rights in what he regarded a Greek Cypriot state. Here was a plain recognition therefore that there was not a legitimate government representing the whole population. And the reference to the need for the vice-president to assume the functions provided for under the 1960 Constitution, coupled with the well known fact that the vice-president had been Turkish and had not voluntarily renounced the exercise of his functions, indicates appreciation that he had unlawfully excluded from his office -an exclusion which in constitutional terms means -inter alia- that the Turkish Cypriot community was deprived of its right under Article 57 of the Constitution to veto decisions relating to foreign affairs (or, conversely, to approve such decisions by deliberately acquiescing in them) and the collapse of the partnership state.
1974 - `Enosis' thwarted by guarantor action of Turkey.
13. Prior to this, however, certain Greek and Greek Cypriot elements had carried a stage further their repudiation of the prohibition of "Enosis". For the purpose of bringing about immediate "Enosis", in July 1974 a Greek-inspired and militarily supported coup took place against Archbishop Makarios, who himself had previously maintained that by destroying the constitutional order he had brought Cyprus to the "nearest point to Enosis".
In the exercise of its rights and duties as a guarantor of the 1960 settlement and upon the urgent plea of the Turkish Cypriot side for help, Turkey landed forces in Cyprus in order to safeguard the Turkish Cypriot population and prevent a takeover of the island by Greece. They freed the northern part of the island from Greek and Greek Cypriot forces, which Makarios had described to the Security Council on 19 July 1974 as "forces of invasion from Greece", and made it a haven for the whole Turkish Cypriot population including those stranded in the enclaves in the south -a process which was completed by the 1975 Agreement on the voluntary Regrouping of Populations.
There now co-exist on the island two separate administrations -the Greek Cypriot administration in the South which has assumed the role of the Republic of Cyprus" and the Turkish Cypriot administration which has established itself as the "Turkish Republic of Northern Cyprus" in view of the refusal of the Greek Cypriot side to agree to share power with the Turkish Cypriots on the basis of equality as envisaged in the 1977 and 1979 High Level Agreements. Greek Cypriots not the lawful government of Cyprus.
14. In the circumstances set out above, it will be readily understood why the Turkish Cypriots regard as unlawful the assumption by the Greek Cypriots of the role of "the Republic of Cyprus". That Republic was as ordained and in the image of the 1960 settlement. The Greek Cypriots overthrew that settlement in December 1963. Yet they appear to have been accepted internationally as the appropriate representatives of Cyprus. This cannot be right, legally or morally and no one should be surprised by the view that the Turkish Cypriots take of the situation. International illegality of Greek Cypriot action.
15. The Turkish Cypriots believe that the unilateral application by the Greek Cypriots to join the Communities is an international act of an entirely different order of intensity and significance to anything that has come before.
The Council of Ministers of the European Communities may not lawfully disregard the illegality of the position and conduct of the Greek Cypriot regime in Cyprus when the latter purports to present itself as the "government of the Republic of Cyprus". The objection now raised by the TRNC on behalf of the Turkish Cypriot people to the validity of the application rests upon the lack of entitlement of the Greek Cypriot community to make the application in the name of "Cyprus" or, indeed, of "the Republic of Cyprus".
This objection rests only indirectly upon the constitutional illegitimacy of the Greek Cypriot regime for it is possible to conceive of cases in which merely constitutional illegitimacy would not preclude a regime from seeking admission to an international organization on behalf of a State. However, where, as in this case, the constitutional illegitimacy occasions an international illegitimacy, the position is quite different and cannot be ignored by the European Communities.
Moreover, in the case of Cyprus where the bi-communality of the state and its government was the precondition for legitimacy, this unilateral act by Greek Cypriots is a clear and unacceptable action to impose their political will on the Turkish Cypriots on a matter which will affect generations to come. Greek Cypriot application violates international and constitutional ban on Enosis.
16. The application is also open to objection on the ground, arising from Article 1 of the Treaty of Guarantee, and echoed in Article 185 of the Constitution, that the Republic of Cyprus has undertaken "not to participate in whole or in part, in any political or economic union with any State whatsoever." This limitation is broad enough to prohibit the link with Greece that a membership initiated and negotiated by the Greek Cypriots alone would bring about, even within the framework of the European Communities. Comparison with Germany is false.
17. Greek Cypriot awareness of the vulnerability of the application is suggested by the following report in the press (see The Wall Street Journal, 5 July 1990) that Mr. Iacovou, the Foreign Minister of the Greek Cypriot regime, said:
"the island's political situation shouldn't have an effect on his country' membership application. He drew an analogy with Germany, saying that the division of that country into East and West had never been viewed as a barrier to EC membership."
The "analogy" is quite false and reveals precisely the weakness of the Greek Cypriot application. When the Federal Republic of Germany became an original member of the European Communities, no claim was made by it that the territorial scope of its membership extended beyond the area under its actual control. It did not claim to represent East Germany for purposes of becoming a member.
(1) It is indeed significant that the only territorial maters raised by the FRG related to the position of Land Berlin and the Saar. In the present situation, however, it is evident that the Greek Cypriots do not seek to limit their application in a comparable manner... Application is a nullity. No action should be taken on it.
18. The present opposition to the Greek Cypriot applications is of a fundamental nature. It arises in limine. The internationally unlawful character of the authority that purports to make the application deprives it of the capacity so to act, while, the scope of the application and the manner of its making both taint the application with invalidity. It is a nullity.
In law, therefore, there exists no application that the Council of Ministers may refer to the commission for an opinion and no application that the commission may properly receive. The suggestion is, accordingly, respectfully made that the proper course is for the Council of Ministers to take no action on the application
. If, none-theless, this Council of Ministers should feel that it is necessary or desirable that the commission should express an opinion on the validity of the application, then the reference to the Commission should be precisely limited to this. It should not be a reference to the commission for an opinion on the substance of the application.
TRNC would welcome EC membership but only after settlement.
19. Notwithstanding this the TRNC does not wish to create the impression that it is opposed to the eventual membership of the European Communities by a State of Cyprus restored to legality and stability by a settlement freely negotiated between parties of equal standing. When such a political settlement has been achieved, the Turkish Cypriot community will be no less desirous than the Greek Cypriot community to secure membership for the whole of Cyprus in a manner that will ensure that the benefits of such membership, as well as its burdens, are enjoyed and borne by both communities genuinely, without discrimination between them.
A leading authority of the international status of Germany, Professor F.A. Mann, has said: "... the Federal Government is not the Government in the East. It is, therefore, unable to render treaties effective in respect of the East. Hence, it cannot conclude treaties which require implementation in the East. Nor, it appears, has the Federal Republic ever attempted to do so." ("Studies in International Law (1973), p.702)
Greek Cypriot admission would mean a second vote for Greece.
20. In the meantime, it must be recognized that the effect of the admission to the European Communities of the Greek Cypriot side under the assumed title of "the Republic of Cyprus" represented as it is today exclusively by the Greek Cypriot element in the island would in effect, be to give to Greece a second vote in all the deliberations of the Communities.
There is no room for the pretense that, left to itself, the Greek Cypriot community, irrevocably committed in spirit as it has always been to union with Greece, would act within the organs of the European community as anything other than a proxy of Greece. The only way to ensure that Cyprus acts as a fully independent member of the European Communities is to insist that membership should not be given to it until there is reasonable certainty that its foreign and economic policy will not be subservient to the interests of any neighbor.
That can only be assured by the establishment within Cyprus of a system of government reflecting the existence of the two communities, each possessing the capacity to prevent the exploitation of the country's position for the sole or disproportionate benefit of the other. Application violates most recent UN Security Council resolution.
21. In its most recent resolution on Cyprus, of 12 March 1990 ,the UN Security Council called on "the parties concerned to refrain from any action that could aggravate the situation". In the specialized vocabulary that has developed in this context, the words "the parties" means not only the two Cypriot communities but the interested governments, including, with special reference to the present context, Greece. The present move clearly aggravates the situation by destroying the equality of status between the two communities that is the essential foundation for the continuance of negotiations on the wider question. Membership can only grow out of settlement. Not vice versa.
22. It must be realized that the entry into the European Communities of a uniquely Greek Cypriot state cannot contribute to the resolution of the differences between the two communities. Participation in the European Communities can only grow out of the creation of a new Republic of Cyprus that fully reflects the proper status and role of both communities.