A CONSTITUTIONAL CONVENTION FOR CYPRUS

AARAU KONGRESS

4-5. April 2008

Panel 2: Legal and Political Constraints

Paper by Prof. Alfred de Zayas, Geneva School of Diplomacy

Self-determination, Turkish settlers, and Cyprus referenda

Self-determination is a norm of jus cogens, reflected in the preamble and numerous articles of the UN Charter, in common article 1 of the International Covenant on Civil and Political Rights and of the International Covenant on Economic, Social and Cultural Rights, and in countless resolutions of the UN Security Council and General Assembly, notably GA Resolution 1514 of 14 December 1960, the famous Declaration on the granting of independence to colonial countries and peoples.

The practice of decolonization has given content and contour to the right of self-determination, and the former Commission on Human Rights and the Sub-Commission on the Promotion and Protection of Human Rights adopted many declarations, resolutions and studies on this subject, notably the guiding Principles on Internal Displacement of the UN Special Representative Francis Deng. The UN Human Rights Committee has adopted a General Comment on self-determination and frequently informs its concluding observations in the light of article 1 of the Covenant, notably in its concluding observations concerning the second and 3rd United States reports in 2006.

I will focus my observation on this crucial norm of international law, which is indispensable in formulating an approach to arrive at a just and lasting Cyprus settlement. It is particularly relevant in the context of paragraph 31 of Professor Auer’s paper, which poses the question how an international expert panel should be elected, and how to avoid pitfalls in the drafting of a charter for truly democratic and representative constitution-building.

As we know, the Annan Plan responded more to the interests of the Great Powers, including the so-called Guarantor Powers, and less to those of the Cypriot communities concerned, and thus entailed a pervasive violation of the principle of self-determination. The proposed Charter for a Constitutional Convention must ensure that the fundamental principles of international law and of European law are adhered to and that the exercise is legitimized through broad popular participation.
Professor Auer’s paper signals in paragraph 35 the problem of determining who is entitled to vote in approving the Charter and subsequently who is entitled to vote in a referendum on the Constitution. It is obvious that a masquerade of a referendum would serve no one and would lack legitimacy. By its very nature, participation in a referendum about self-determination must be limited to those who are originally entitled to exercise the right of self determination, and this necessarily excludes both the colonizers and settlers brought in shortly before the referendum so as to manipulate the vote.
A few examples from recent history may help illustrate the problem. Take Alaska, for instance. Until it became the 49th State of the United States in 1959, Alaska was a territory under United States administration. It was considered a non-self-governing territory and the United States reported to the United Nations General Assembly pursuant to article 73 of the UN Charter which provides:
“Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and to this end: a) to ensure, with due respect for the culture of the peoples concerned, their political, economic, social and educational advancement …e) to transmit regularly to the Secretary-General for information purposes … statistical and other information of a technical nature relating to economic, social and education conditions in the territories for which they are respectively responsible…”
Under the generally accepted notion of self-determination, any change in the political status of a colony or non-self-governing territory must be based on the "freely expressed wishes" of the established inhabitants of the territory, who may choose association, autonomy or independence by way of referendum or plebiscite under international supervision. When in 1946 the United Nations system under Chapter XI of the Charter “Declaration regarding Non-self-governing Territories” was established, Native Alaska was a territory administered by the United States. Pursuant to the General Assembly, a colony is a community "geographically separate and ethnically and/or culturally distinct from the country administering it." Alaska was, and continues to be, geographically separate from the United States, and within Alaska, Native communities have remained distinct both geographically and culturally. Moreover, until the 1940's, Natives were the majority of the population.
Was the Alaska statehood referendum in 1958 in conformity with international law? The indigenous of Alaska say no, because the Alaska territory was deliberately flooded with new settlers, who were not only allowed but actively encouraged to vote for statehood, a referendum in which even U.S. soldiers temporarily posted in Alaska were allowed to vote.

In 2006 the Alaska Inter-Tribal Council presented a “shadow report” to the United Nations Human Rights Committee, which was considered in connection with the examination of the 2nd and 3rd periodic Report of the United States of America. In said report, the Alaska indigenous organization contested the validity of the referendum and the confiscation of the natural resources of the indigenous population. In its concluding observations, the Human Rights Committee observed:

“The Committee notes with concern that no action has been taken by the State party to address its previous recommendation relating to the extinguishment of aboriginal and indigenous rights. The Committee, while noting that the guarantees provided by the Fifth amendment apply to the taking of land in situations where treaties concluded between the federal government and Indian tribes apply, is concerned that in other situations, in particular where land was assigned by creating a reservation or is held by reason of long possession and use, tribal property rights can be extinguished on the basis of the plenary authority of Congress for conducting Indian affairs without due process and fair compensation. The Committee is also concerned that the concept of permanent trusteeship over the Indian and Alaska native tribes and their land as well as the actual exercise of this trusteeship in managing the so called Individual Indian Money (IIM) accounts may infringe the full enjoyment of their rights under the Covenant. Finally, the Committee regrets that it has not received sufficient information on the consequences on the situation of Indigenous Native Hawaiians of Public Law 103-150 apologizing to the Native Hawaiians Peoples for the illegal overthrow of the Kingdom of Hawaii, which resulted in the suppression of the inherent sovereignty of the Hawaiian people. (articles 1, 26 and 27 in conjunction with Article 2, paragraph 3 of the Covenant).

”The State party should review its policy towards indigenous peoples as regards the extinguishment of aboriginal rights on the basis of the plenary power of Congress regarding Indian affairs and grant them the same degree of judicial protection that is available to the non-indigenous population. It should take further steps in order to secure the rights of all indigenous peoples under articles 1 and 27 of the Covenant to give them greater influence in decision-making affecting their natural environment and their means of subsistence as well as their own culture.”

It is evident, that the statehood referendum in Alaska did not take into account the best interests of the Alaskan natives. The oil, gold and mineral resources of Alaska were so important, that the United States made sure that the referendum went in favour of statehood and confirmed the spoliation of the First Nations of Alaska.

This situation is comparable to the decades-old dispute over Western Sahara, which had been a Spanish colony until 1975. After the Spanish left the territory, Morocco moved militarily into the phosphate-rich territory. Although the Polisario Front, representing the native Sahrawi people, declared independence in 1976, Morocco continues to occupy Western Sahara and opposes a referendum. Meanwhile, however, tens of thousands of Moroccan settlers have moved into Western Sahara, and if a referendum were to be held, the question is whether a majority of the Moroccan settlers would be allowed to vote in the referendum. This was indeed the proposal made by former US Secretary of State James Baker in his Peace Plan for Western Sahara.

By contrast, East Timor, which had been militarily occupied by Indonesia in 1975, following the departure of the Portuguese colonizers, was allowed to emerge as a free and independent nation. The United Nations supervised a self-determination referendum in August 1999 and the country became the 191st member State of the United Nations as Timor Leste in 2002.

Among the territories that still have not achieved self-determination are the French overseas territories. It is instructive to compare the Alaska and Western Sahara experiences with the legislation adopted by France establishing certain parameters for the conduct of self-determination referenda in New Caledonia, and excluding recent residents from eligibility to vote.

The Human Rights Committee has had the opportunity of examining the validity of the criteria used in self-determination referenda in the context of the examination of State party reports, and in rare cases under the Optional Protocol. In its Views in case No. 932/2000 (Gillot v. France), the Committee found that the exclusion of new settlers from participation in a self-determination referendum in New Caledonia was compatible with France’s obligations under article 1 of the International Covenant on Civil and Political Rights. The Committee observed:
“The Committee notes that the 21 authors were excluded from the 1998 referendum because they did not meet the 10 years' continuous residence requirement. It also notes that one author will not be able to participate in the next referendum because of the 20 years' continuous residence requirement, whereas the other 20 authors do, as things stand, have the right to vote in that referendum - 18 authors on the basis of the residence criterion and 2 others on the strength of having been born in New Caledonia, their ethnic origin and national extraction being of no consequence in this respect.
“The Committee considers, first, that the cut-off points adopted do not have a disproportionate effect, given the nature and purpose of the referendums in question, on the authors' situation, particularly since their non-participation in the first referendum manifestly has no consequences for nearly all of them as regards the final referendum.
“The Committee further considers that each cut-off point should provide a means of evaluating the strength of the link to the territory, in order that those residents able to prove a sufficiently strong tie are able to participate in each referendum. The Committee considers that, in the present case, the difference in the cut-off points for each ballot is linked to the issue being decided in each vote: the 20-year cut-off point - rather than 10 years as for the first ballot - is justified by the time frame for self-determination, it being made clear that other ties are also taken into account for the final referendum.
“Noting that the length of residence criterion is not discriminatory, the Committee considers that, in the present case, the cut-off points set for the referendum of 1998 and referendums from 2014 onwards are not excessive inasmuch as they are in keeping with the nature and purpose of these ballots, namely a self-determination process involving the participation of persons able to prove sufficiently strong ties to the territory whose future is being decided. This being the case, these cut-off points do not appear to be disproportionate with respect to a decolonization process involving the participation of residents who, over and above their ethnic origin or political affiliation, have helped, and continue to help, build New Caledonia through their sufficiently strong ties to the territory.
“The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it do not disclose a violation of any article of the Covenant.”
Applying this precedent to the Cyprus situation, it is clear that the 120,000 Turkish settlers who were implanted in Northern Cyprus following the illegal occupation of the territory by Turkey in 1974 (and in contravention of article 49, paragraph 6, of the 4th Geneva Convention relative to the Protection of Civilians in Armed Conflict, of 12 August 1949) , do not have a right in international law to participate in a self-determination referendum, or in a referendum to adopt a Constitutional Convention. Of course, the Cypriot communities may wish to accord them this opportunity, or to accord some of them the right to vote under appropriate guidelines.
What rights do the Turkish settlers have? They enjoy all the rights guaranteed by the Cypriot Constitution and the rights to which Cyprus is bound pursuant to international treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of all Forms of Racial Discrimination, and the European Convention on Human Rights and Fundamental Freedoms. While the Republic of Cyprus may grant the Turkish settlers special rights, Cyprus is under no obligation to grant them citizenship or even the right to continued residence in the territory. Marriage with the native Turkish population, old age and the health of the individuals concerned are considerations that the Cyprus government would have to take into account on a case-by-case basis.
The Cyprus communities are, of course, free to reach compromises and to empower the settlers to vote, if they so wish. This, however, is not mandated by practice or by international law. Allowing the illegal Turkish military forces that occupy the North of Cyprus to vote, however, would be shocking and immoral.
The guiding principle must remain the respect of the human dignity of all persons residing in Cyprus, and the readiness to make prudent concessions. The principle of humanity must always temper the mathematical application of international law. A durable solution is always one that all parties are willing to live with, in the sense of metron ariston, meden agan..
One last point concerns the limitation of Cypriot sovereignty entailed by the presence of Turkish troops in the North and by the presence of the British Base Areas (Auer paper paragraph 19). The Charter must ensure that these actors do not in any way influence the free exercise of self-determination by the people of Cyprus.
The United Nations General Assembly may consider elevating this legal question to the International Court of Justice for an advisory opinion on the validity of the British Base Treaties and of the Guarantee Treaties of 1960, which are a vestige of colonialism, thoroughly incompatible with modern international law, and a continuing violation of the territorial sovereignty of the Republic of Cyprus. An advisory opinion could also address the issue of the legal consequences of the Turkish occupation of 37% of the territory of Cyprus and the status of the 120,000 Turkish settlers.
Professor Dr. Alfred de Zayas, Geneva School of Diplomacy