INTERNATIONAL EXPERT PANEL
CONVENED BY
THE COMMITTEE FOR A EUROPEAN SOLUTION IN CYPRUS
A principled basis for a just and lasting Cyprus settlement in
the light of International and European Law
Preamble
1. The purpose of this Report, prepared by an International Expert
Panel, is to seek a just Cyprus settlement providing for the peaceful
and prosperous future of all the people of the island. In order
to do this, one must apply the key principles drawn from international
and European law which apply in the settlement of international
disputes, including disputes concerning members of the European
Union. Such principles lie at the heart of international and European
law. Failure to respect such principles is likely not only to prejudice
the success of any particular settlement plan by internalising contradictions
with international law and thus weakening its sustainability, but
also to constitute a destabilising element for the future. The precedent
of a political settlement contrary to accepted international and
European legal principles may well be resorted to in other dispute
situations with serious consequences for the stability of the international
order.
2. The fundamental principles of international and European law
offer a unique guide and methodology by which to initiate and successfully
conclude a process leading to a Cyprus settlement within the framework
of a new and genuinely Cypriot Constitution in accordance with the
right of self-determination. This is at the very core of a European
solution for Cyprus, consistent with international and European
law.
3. The solution of the Cyprus problem must be found by respecting
and applying the fundamental principles on which international law
and the European Union are founded: these are in brief, the peaceful
settlement of disputes; the sovereignty, independence and equality
of states; the prohibition of aggression and the non-recognition
of its consequences; and respect for human rights, liberty, democracy
and the rule of law. Both the present state of affairs in Cyprus
and the terms of the current Annan Plan are inconsistent with these
fundamental principles. It is also essential to arrive at a solution
that fully respects the need for the reconciliation of, and cooperation
between, the communities and all relevant parties.
4. The European Union is called upon to seize this historic opportunity
and to assume its special responsibility for actively helping to
put in motion a process of constitution-making that will finally
allow the Republic of Cyprus, as a member state, to recover full
sovereignty and independence and to establish peacefully a constitutional
order respecting the above mentioned principles, and based on full
respect for diversity.
Basic facts
5. The Republic of Cyprus came to independence in 1960 by virtue
of a series of international agreements. However, unlike other decolonised
territories, it was subject to Treaty of Guarantee provisions in
favour of the United Kingdom, Turkey and Greece. In 1974, Turkey,
invoking the coup by the Greek Junta against the legitimate Cypriot
government of Archbishop Makarios, invaded and proceeded to occupy
northern Cyprus. This initial action, however, hardened into a prolonged
and continuing occupation which has now continued for over 30 years
and which has involved a series of human rights violations as attested
by the organs of the European Convention of Human Right. Since 1974,
Cyprus has been de facto divided into the Republic of Cyprus recognized
by the international community and the “Turkish Republic of
Northern Cyprus”, an entity declared invalid by UN Security
Council resolutions 541 (1983) and 550 (1984) and recognized and
sustained only by Turkey. While roughly half of the Turkish Cypriot
community has emigrated since the 1974 events, mainly to the United
Kingdom, more than 120,000 Turkish settlers are now living in northern
Cyprus, transforming the Turkish Cypriots into a minority within
their own constituency. The population of Cyprus at present (settlers
apart) is 802,500 of whom some 80% are Greek Cypriots, 11% are Turkish
Cypriots (this figure was 18% in 1974) and 9% are Armenians, Maronites,
Latins and alien residents.
6. The Annan Plan as presented in its final version by the Secretary
General of the United Nations on 31 March 2004 provided for a federal
state, the “United Republic of Cyprus”, replacing and
abolishing the existing Republic of Cyprus and incorporating the
occupied northern area. On 24 April 2004, two separate referendums
were held. While 65% of the Turkish Cypriot and settler voters in
the occupied north accepted the Annan plan, 76% of their Greek Cypriot
counterparts in the Republic of Cyprus rejected it. On May 1st,
2004, the Republic of Cyprus as a whole became a member state of
the European Union. An Additional Protocol to the Treaty of Accession
provided for the temporary suspension of the acquis communautaire
in the occupied areas. Negotiations on Turkey’s accession
are about to start.
The Fundamental Principles
1. The Peaceful Settlement of Disputes
a) The Meaning of the Principle
7. Article 2 (3) of the United Nations Charter provides that; “All
members shall settle their international disputes by peaceful means
in such a manner that international peace and security and justice
are not endangered”. Accordingly, a settlement that does,
or appears likely to, endanger international peace and stability
and is inconsistent with accepted standards of justice cannot be
consistent with the obligations upon all states laid down in the
Charter.
b) Annan Plan Deficiencies
8. The terms of the Annan Plan would in fact have embedded instability
into the heart of a Cyprus settlement and would inevitably have
led to increasing friction and destabilisation. This is underlined
by the provisions concerning the position of foreign nationals with
effective control over key areas of governmental activities in Cyprus.
Examples where non-Cypriots would (in the event of disagreement
between the equal numbers of Greek and Turkish Cypriots) have effective
control appeared to include the Reconciliation Commission; the Supreme
Court invested with legislative and executive powers; the Central
Bank; the Relocation Board; the Property Court and the organs of
the Property Board. Bearing in mind the experience of the period
1960-63, the need for stability in the ordering of governmental
activities is critical. Further, the foreign nationals concerned
would not be democratically accountable to the people of Cyprus.
9. Any settlement of an international dispute must also be in accord
with justice. This point is noted below (paragraph 15) in relation
to the fundamental principle of respect for human rights.
2. The Sovereignty, Independence and Equality of States
a) The Meaning of the Principle
10. International law, as well as EU law, is founded upon the recognition
of independent and sovereign states. Consequential principles include
the obligations of non-intervention in the internal affairs of states
and respect for the territorial integrity of all states. In addition,
the right of self-determination provides that while people within
a state have the right to participate in the governance of that
state, the free choice of the people of a state, conforming to fundamental
international and European values must be respected on the international
level.
b) Annan Plan Deficiencies
11. The Annan Plan is founded upon the abolition of the legitimate
and recognised Republic of Cyprus. Further, the right of intervention
in the internal affairs of Cyprus, reserved to Greece, Turkey and
Great Britain as the Guarantor Powers according to the Treaty of
Establishment of 16 August 1960 and extended in the Annan Plan to
cover the territorial integrity, security and constitutional order
of both the federal “United Cyprus Republic” and the
constituent states, constitutes a significant limitation on the
sovereignty and independence of Cyprus and a challenge to the international
and European legal orders. This was underlined by the proposed creation
of a Monitoring Committee, composed of representatives of the guarantor
powers, the constituent states and the UN, to monitor the implementation
of the Annan Plan settlement and with the power to make recommendations.
Furthermore, the Annan Plan provided for the permanent demilitarisation
and disarmament of the new Cypriot state, thus raising questions
as to the right to self-defence.
12. In addition, one notes under the Annan Plan the right of the
UK to complete and unimpeded access for any purpose whatsoever to
the waters between the Sovereign Base Areas’ waters and the
fact that international judicial or third party settlement procedure
is expressly forbidden with regard to disputes concerning the Sovereign
Base Areas. Such disputes were to be resolved by an arbitrator appointed
by the authorities of the Sovereign Base Areas.
3. The Prohibition of the Act and Consequences of Aggression
a) The Meaning of the Principle
13. The prohibition of aggression is at the heart of the international
legal order. It is enshrined in international law in general terms,
in international criminal law, and with regard to specific situations.
Prohibiting the consequences of aggression means rejecting the benefits
obtained as a result of illegal aggression and is enshrined, for
example, in the jus cogens norm of the non-acquisition of title
to territory as a result of aggression. In the context of Cyprus,
the UN Security Council adopted resolutions 541 (1983) and 550 (1984)
declaring the purported “Turkish Republic of Northern Cyprus”
to be illegal and calling upon all states not to recognise it. Further,
the implantation of settlers from Turkey in an attempt to manipulate
the demography of the island of Cyprus runs counter to the principles
of international law, especially those relating to self-determination
and human rights. In particular, Article 49 of Geneva Convention
IV on the Protection of Civilian Persons 1949 (ratified by both
Cyprus and Turkey) prohibits the transfer by an occupying power
of part of its own civilian population into the occupied territory.
It should, of course, be noted that, having established the illegality
of the position of the settlers, the question of the future of the
settlers and their families is a separate matter to be determined
by the parties concerned within the framework of an overall just
and fair settlement and in a manner consistent with international
and European law.
b) Annan Plan Deficiencies
14. The Annan Plan provided for the legitimisation of acts of the
“TRNC” and by extension of the “TRNC” itself.
The Plan declared that all acts of any authority on the island of
Cyprus (excluding the Sovereign Bases Areas) would be recognised
as valid unless the particular act at issue was inconsistent with
international law, irrespective of the question of the status of
the authority in question. Equally seriously, the provisions of
the Plan in relation to the settlers from Turkey were hardly consistent
with international law. First, the Plan permitted the settlers to
vote in the Turkish Cypriot referendum, even though the former now
constitute a majority of inhabitants of the north and even though
this recognised as a decisive constitutional force an illegal consequence
of an illegal aggression. The UN has not envisaged settlers voting
in internal self-determination elections in other situations, such
as the West Bank and Gaza, Western Sahara and East Timor. Secondly,
the status of the settlers is legitimised in addition by permitting
large numbers of them to stay in the north. It goes without saying
that in any solution to the dispute, the settlers must be treated
in a way which is consistent with international human rights law.
As such the position of the settlers is different from that of the
substantial number of Turkish troops in occupied northern Cyprus.
The presence of such troops in the current situation clearly constitutes
an affront to the principles of democracy and human rights and a
symbol of aggression and they will need to be withdrawn.
4. Respect for Human Rights
a) The Meaning of the Principle
15. Respect for human rights requires the government to promote
and fully to respect the fundamental rights and freedoms granted
to the individuals by international conventions, the European legal
order and national constitutions. Human rights play a critical role
in international law and in European law. The European Convention
on Human Rights binds Cyprus and Turkey. The European Court of Human
Rights has held on several occasions that, since 1974, Turkey is
directly responsible for continuing violations of basic fundamental
rights by occupying the Northern part of Cyprus, by preventing displaced
Greek Cypriot citizens from returning to their homes and property
or from having access to and enjoyment of them, by not investigating
the fate of thousands of still missing persons and by failure to
protect freedom of religion and freedom of expression. These decisions,
unprecedented in scope and gravity, have still not been fully implemented.
Further, the rights enshrined in the European Convention constitute
fundamental principles of the European Union, which itself is based
upon the principles of liberty, democracy, respect for human rights
and rule of law. The European legal order, therefore, both through
the European Convention of Human Rights and the acquis communautaire,
provides the most stringent and efficient system of protection of
human and minority rights worldwide. Moreover, both Cyprus and Turkey
are parties to the International Covenant on Civil and Political
Rights, article 1 of which lays down the right of self-determination,
and to the International Convention on the Elimination of All Forms
of Racial Discrimination.
b) Annan Plan Deficiencies
16. Under the Annan Plan, serious restrictions of political and
civil rights, of freedom of residence, breaches of the prohibition
of racial discrimination and severe violations of property rights
and of the right to respect of one’s home would be maintained
and even perpetuated for all Cypriot citizens during several decades
and in certain cases permanently (eg. freedom to chose one’s
residence and the right to return to one’s home). The question
of settlers has been addressed above (paragraph 14). The Annan Plan
would have prevented the right of all displaced Greek Cypriots from
returning to their homes and would have significantly limited the
right of Greek Cypriots who own property in the north from recovering
their property. Further, the Annan Plan sought to deny the right
of recourse to the European Court of Human Rights for property owners
deprived of their rights (as determined by the Court) by the expedient
of declaring the “United Republic of Cyprus” the appropriate
respondent state, and thus absolving Turkey, and stating that existing
applications should be struck out on the grounds that under the
Plan adequate domestic remedies had been provided for. Parallel
to this, Article 6 of Annex IX of the Foundation Agreement contained
in the Annan Plan provided that the EU be requested to endorse the
plan as accepted by the parties and that this would result in the
adoption of primary law. The implication of this would be in essence
the prevention of the EU’s Court of Justice from challenging
the plan on the grounds of violating the fundamental principles
of the EU.
5. Democracy
a) The Meaning of the Principle
17. Democracy refers to the establishment and continued existence
of a genuinely representative government responsive to the people.
It requires that the basic rules establishing and organizing the
state and its relationship with society be accepted by the citizens.
It further requires full respect of the will of the people as expressed
by the voters and/or their legitimate representatives. Democracy
is founded on majority rule, in full recognition and application
of individual, minority and group rights, as appropriate. The principle
of democracy is an increasingly important part of international
law, and at the very heart of European law. Article 3 of the Statute
of the Council of Europe refers to pluralist democracy, respect
for human rights and the rule of law as principles of the Council
system, while article 6 of the Treaty on European Union declares
the principles of liberty, democracy, respect for human rights and
the rule of law as founding principles of the Union.
b) Annan Plan Deficiencies
18. The Annan Plan process whereby agreements, constitutions and
laws are sought to be imposed on an independent state without being
the result of any democratic legislative process or dialogue cannot
be consistent with the principle of democracy. Neither can strict
reliance on arithmetic equality between two demographically unequal
communities. A constitutional and institutional framework that requires
mutual consent of the representatives of both ethnic communities
on all levels of government and in each one of the three traditional
powers (legislative, executive and judiciary) reserves a permanent
right of veto to both, majority and minority. Leaving the final
decision in case of stalemate to foreign citizens in such critical
organs as the Supreme Court and others is in stark contradiction
to the principle of democracy.
19. On 24 April 2004, 76% of the voters of the Republic of Cyprus
in the government controlled area rejected the Annan Plan. This
decision must be accepted by all as a valid exercise of democracy
and of the right to self-determination.
6. The Rule of Law
a) The Meaning of the Principle
20. The rule of law in international law provides that all official
activities must be undertaken in a way that is consistent with legal
principles. It further means that legal processes must be established
and respected in order for legal principles to operate effectively,
so that, for example, the principle of due process is critical.
As previously noted (paragraph 15), both the Council of Europe and
the European Union are founded upon inter alia the principle of
the rule of law.
21. There can be no international rule of law in a territory illegally
occupied by a foreign power. Indeed, the fact that a member state
of the European Union is prevented from exercising its sovereignty
over part of its internationally recognised territory challenges
the reality of the European rule of law itself.
b) Annan Plan Deficiencies
22. The Annan Plan proposed the replacement of the Republic of Cyprus
by a new state that would with great difficulty have been able to
provide for a stable government, since instability would have been
embedded into it, as noted above. In addition, the restrictions
on human rights and the ability to pursue them freely pursuant to
the European Convention on Human Rights and under the European Union,
and the general principles of international law including those
norms derived from international treaties binding on Cyprus (e.g.
the International Covenants on Human Rights) would have severely
challenged notions of due process and the rule of law.
The Way Forward: A Constitutional Convention for Cyprus
23. Based on the 1960 Constitution, the Republic of Cyprus is the
only internationally recognized and legal government of the island.
Its accession to the European Union has put it under the protection
of the latter, so that any solution of the Cyprus problem must commence
with the existing institutions and legal order of the Republic of
Cyprus as accepted by its people and internationally legitimised.
From here, ways and means must be found to adapt the existing institutions
and law adequately, taking into account the will of the people as
a whole including all communities, in order to recover democratic
rule and full sovereignty in the internationally recognised territory
of the Republic.
24. A democratic process of autonomous constitution-making consisting
of several steps should enable all the people of Cyprus to overcome
the present stalemate and to find means and measures that will eventually
bring about re-unification and reconciliation consistent with the
fundamental principles noted above. The Constitutional Convention
as an instrument of democratic constitution making has been successfully
used, particularly in the decolonisation process. Constitution drafting
must be integrated in, and not separated from, the democratic political
process.
25. A Constitutional Convention for Cyprus, democratically elected
or designated so as to reflect appropriately the will of the voters
and the aspirations of civil society of the different communities
of the island as a whole, should have the sole responsibility for
drafting and adopting a new Constitution for Cyprus, building on,
and eventually amending or replacing, the existing 1960 Constitution
of the Republic of Cyprus.
26. The members of the Constitutional Convention should have complete
liberty and responsibility for choosing whatever political system
they may prefer, whether presidential, parliamentary or combinations
thereof; for finding territorial arrangements by an appropriate
decentralization scheme – in regions, districts, communes
or whatever – and for shaping procedures that will be able
to protect efficiently minority and human rights, in the interest
of the people of all the communities in Cyprus. Experts both from
within and from outside Cyprus may be asked to give advice and assistance
to the Convention or its members. The only legal limits of the Convention’s
sovereign constitutional power are strict compliance with European
constitutional principles and the acquis communautaire, and international
human rights and minority protection standards derived from international
law and from the European Convention on Human Rights and other European
instruments.
27. The new Constitution as framed by the Convention should be
submitted to separate and simultaneous referendums to be held on
both parts of the island, according to the April 24, 2004 experience.
Only the people of Cyprus can bring about the legitimacy essential
for a new beginning. Any solution of the Cyprus problem must be
legal and legitimate and must build on the only existing constitutional
scheme that is recognized by the European Union and the international
community, and that is the 1960 Constitution of the Republic of
Cyprus. The procedures regulating the election or designation of
the Constitutional Convention, its composition and functioning,
as well as the holding of the constitutional referendums will have
to be provided for by amendments to the 1960 Constitution. It is
further proposed that the Constitutional Convention process take
place under European Union auspices.
Recommendations
28. The International Expert Panel seeks a fair and equitable Cyprus
settlement that allows the communities to achieve reconciliation
and a peaceful and prosperous future. It therefore commends the
Fundamental Principles of International and European Law as noted
above to all relevant international institutions, including the
United Nations, the Council of Europe, the Organisation for Security
and Cooperation in Europe, but most particularly to the European
Union in the light of the historic opportunity presented to it by
the recent accession to membership of the Republic of Cyprus and
the opening of accession negotiations with Turkey.
29. The International Expert Panel recommends:
a) The acknowledgement of the aforesaid Fundamental Principles by
those parties involved in seeking peace, justice and security in
Cyprus.
b) The adoption of a Resolution in the European Parliament (and
in other pertinent international institutions) reaffirming the Fundamental
Principles.
c) The establishment in the European Parliament (and in other pertinent
international institutions) of a monitoring mechanism by which the
conformity of any proposed Cyprus settlement with the Fundamental
Principles may be ensured.
d) The creation of a Constitutional Convention under European Union
auspices and on the basis of the 1960 Cyprus Constitution to bring
together the parties directly concerned in order to reach a settlement
in conformity with the Fundamental Principles.
Conclusion
30. The accession of the Republic of Cyprus to the European Union
has fundamentally changed the internal as well as the external aspects
of the Cyprus problem. Greek and Turkish Cypriots have now become
citizens of the Union, enjoying the rights and subject to the duties
provided for in the European legal order. The Republic of Cyprus
is a member state and thus one of the “Masters of the Treaties”.
31. Had the Annan Plan been accepted and implemented before accession,
that very accession would have rested on shaky legal grounds, as
the Union would have integrated a new member state which would not
even have signed the accession treaty, while the Republic of Cyprus,
which has signed the treaty, would have ceased to exist. Now that
accession has become a reality, the abolition of the Republic of
Cyprus through a revised Annan Plan is prevented by the very existence
of the European Union.
32. The European Union has the historic opportunity and the special
responsibility for promoting a new process of democratic constitution
making in Cyprus and for convincing all communities to take part
in such a process. In so doing, the European Union would ensure
the application of its own principles and values, as well as those
of international law generally, within the territory of one of its
own member-states.
******
APPENDIX: Article 6 of the Treaty on European Union
“1. The Union is founded on the principles of liberty, democracy,
respect for human rights and fundamental freedoms, and the rule
of law, principles which are common to the Member States.
2. The Union shall respect fundamental rights, as guaranteed by
the European Convention for the Protection of Human Rights and Fundamental
Freedoms signed in Rome on 4 November 1950 and as they result from
the constitutional traditions common to the Member States, as general
principles of Community law.
3. The Union shall respect the national identities of its Member
States.
4. The Union shall provide itself with the means necessary to attain
its objectives and carry through its policies.”
* * *
International Expert Panel
1. Professor Auer Andreas, Switzerland
Professor of Constitutional Law, University of Geneva
2. Professor Bossuyt Mark, Belgium
Professor of International Law, University of Antwerp
3. Professor Burns Peter, Canada
Former Dean of the UBC Law Faculty,
Professor of Law, University of British Columbia, Vancouver
4. Professor Dr. Alfred De Zayas, United States of America
Geneva School of Diplomacy
Former Secretary, UN Human Rights Committee
5. Professor Helmons Silvio-Marcus, Belgium
Emeritus Professor of Universite Catholique de Louvain, Public International
Law and Human Rights
6. Professor George Kasimatis, Greece
Emeritus Professor of University of Athens, Constitutional Law
Honorary President of the International Association of Constitutional
Law
7. Professor Dr. Dr.h.c. Oberndoerfer Dieter, Germany
Professor Emeritus, Political Science, University of Freiburg
8. Professor Malcolm N Shaw QC, United Kingdom
The Sir Robert Jennings Professor of International Law, University
of Leicester
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