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THE ISLAND OF CYPRUS WITHIN THE INTERNATIONAL LEGAL SYSTEM AND ITS ADMISSION INTO THE EUROPEAN UNION

Paolo Bargiacchi

 1. The purpose of this paper is first to evaluate the social situation within the island of Cyprus according to international law so as to ascertain which and how many sovereign entities exist upon the island; then, taking into account the outcome of this legal survey, it is proposed to examine the Greek-cypriot application for admission into the European Union, particularly as to  whether the application is lawful or not as regard to the Turkish-cypriot community. Finally, we will also examine the legal consequences for the European Union law of accepting the Greek-cypriot application for admission and the eventual political solutions to the Cyprus question which would be anyway based on international law.

2. First step is to review the principles and the general rules of international law concerning statehood and sovereignty for the purpose of understanding the position within the international legal system of the two Communities. In fact, this is a precondition to deal with before analyzing the application for admission. To be a State within the international legal system means that the social community – namely the population which organized its life and activities according to a political framework – living in a territory must possess and fulfill certain legal requirements in order to achieve the status of State for purposes of international law. To find and display these legal requirements is a matter that sometime splits experts and professors of international law. Some of them believe that there is a general rules – or maybe a principle –of international law which imposes three conditions to the social community: if the three conditions are fulfilled by the social entity, then it becomes a State. Conditions are: a) a population; b) a territory; c) a government which has the ability to exercise effective sovereign powers over the population and territory. Before analyzing in detail such rule of international law, however, I propose to say a few words as to the other position regarding statehood.

  3. According to some professors, in order to become a State, a social body must not only fulfill the above-mentioned three conditions but it has also to be formally recognized by the international community, and in particular by the United Nations. This is know as the theory of recognition of States. I cannot agree with it because, from a logical point of view, the existence of something – a State as well as an human being or a thing – depends on the fact that it has got some qualities of its own that makes it a State, a human being or a thing; existence cannot depend on the fact that someone else – another State or an international organization – recognizes, states or affirms that the social body is a State. It is just a matter of logic; it is not juridical. To give an example, I am a human being because I have got some skills (like mind and vitality) which are qualities of my own that make me a person; I am not a human being as a result of your recognition that I am a person: in fact, if you should deny my existence, I would be a person all the same despite your denial. The same logical process is applicable to social bodies: a State is a State regardless of any kind of recognition coming from any other subject. Recognition, therefore, is only a political act that has no legal value at all within the international legal system. Accordingly, any argument concerning the Cyprus question that is based or related to the so-called requirement of recognition should not have relevance from a legal point of view; hence, it goes without saying that United Nations resolutions calling States not to recognize the Turkish Republic of Northern Cyprus in order to deny the statehood of the Turkish-cypriot social community do not have legal value.

  4. Getting back to the theory affirming the existence of a rule of international law which encompasses three conditions for a State to be born, it emanates from a social approach to the issue. State, as a legal framework able to rule over an inhabited land imposing duties and protecting rights, is created by the same social reality and environment. An old principle of roman law states that ubi societas ibi auctoritas et ius (where there is a society, there is authority and law): it means that a State, as a sovereign entity, has got a needed and natural link with the social community from which it emanates. In fact, rules of law are effective pursuant to the social, political and historical evolution of the population which is governed by those rules because the link between the societas and the ius makes rules compulsory for everyone living within the community as a member of that community. In other words, the society creates the law and the law, in turn, binds the society. Such social and legal mechanism always applies to all States: when they are born, during their existence, until they cease to exist.

  5. Even in the international relationships, a State is a member of the international community, or ceases to be a member, only if – and until when – it asserts its own sovereign authority over territory and population in a lasting and effective way by means of an independent political framework, regardless of the fact that sovereignty was achieved by peaceful or revolutionary means. Independence is what divides a subject of international law from something that is not. Independence requires the social community that wishes to become a State to secure permanent sovereignty over a defined territory and population living within it. If the requirement is fulfilled, then we do have a State.

  6. I think that these are the only relevant and material rules of international law that may be taken into account when the Cyprus question has to be evaluated from a legal point of view. If we apply these principles and general rules of international law to the present and effective political and social situation within the whole island of Cyprus, then we have a quite clear and logical scenario. Above all, we get a clear and legal answer to any kind of question. Two States presently enforce their sovereign powers in Cyprus, each of them over a defined and divided part of land. Between the two Communities, there is a close and continuous border that was drawn by the United Nations and not by Turkey. Over each own part, the two Communities fully comply with the requirements imposed by the international legal system for the purpose of achieving statehood: they freely organized themselves as a sovereign framework; they effectively exercise sovereign powers over territory and population by and through political structures that encompass legislative, executive and judicial powers; both of them have Constitutions and laws that are respected by people and enforced by competent authorities; Greek-cypriots feel like Greek-cypriot citizens in a Greek-cypriot State and the same is true for the Turkish-cypriot people. In short, social communities living in Cyprus have been able to generate legal effects even for the international legal system and international law: they, in fact, created two States.

  7. Reviewing the history of Cyprus as from 1960, our statement is strengthened. In 1960, one State – the Republic of Cyprus – was created: it had a single citizenship and a single sovereignty which was exercised by both Communities that were absolutely equal from a legal and political point of view. There was no minority nor majority: both of them – being equal – had the same right to self-determination and both of them freely chose, in 1960, to exercise their own and autonomous right to self-determination by governing together over the same island. The Republic of Cyprus had a short life: as from 1963, violence and infringements of the Constitution destroyed the legal, political and constitutional framework and split the two Communities by forcing the Turkish-cypriot community to a progressive withdrawal towards safer areas of the island, especially in the north. The State of Cyprus – as depicted by 1960 Constitution – was no longer a sovereign entity over the population living within the island: it was dead. This slow evolution took several steps: among them, in 1974 the drawing of a border, by dividing the two Communities, granted to both of them its own land to govern. The rule of international law requiring a government, a territory and a population for a social community to become a State was at last fulfilled for both the Greek-cypriot and the Turkish-cypriot community. The evolution that generated two States in Cyprus ended (even from a formal point of view) in 1983 when the Turkish-cypriot community declared its own independence pursuant to its right to self-determination by setting up the Turkish Republic of Northern Cyprus. All of what has happened in Cyprus is well-known to international law: it is called dismemberment and is recognized as a State founding process in which one State ceases to exist and two new States are born. One of the latest examples is the founding of Slovakia and the Czech Republic out of former Czechoslovakia. In our case, the Republic of Cyprus set up in 1960 has slowly ceased to exist between 1963 and 1974 while at the same time two States are born step-by-step.

  9.What about Cyprus Treaties of 1959/60? According to what we said above, there is no issue at stake: it is a logical mechanism of the international legal system that former treaties are not allowed to stop a State from being born. When requirements of international law are met, the State-founding process inevitably causes legal effects within the international legal system and the international Community of States. Social reality dramatically changed in the last 50 years as well as the legal framework according to international law: in 1960, two Communities shared sovereignty over the same territory and it was exercised upon the law of the Cyprus Treaties; today, the same two Communities live apart and freely rule over each own territory by means of their own legal systems. In 1960, one single State with a bi-communal core existed within the international legal system; today, two States exist in the island of Cyprus. Even the fact that  both the Cyprus Treaties and the 1960 Constitution were severely infringed and that - by and through these breaches of laws - a new social and legal order was established within the island is irrelevant and immaterial from the point of view of international law. In fact, the international legal system has no regard of the means - peaceful or revolutionary - by which a social community asserts its sovereignty over a territory by setting up a lasting, effective and independent political framework. It is an undisputable rule of international law that a State born out of a revolution, born out of an overthrow of the former constitutional framework is a State in the eyes of the international legal system, the international law and the international Community of States, as well as a State which had a peaceful State-founding process.

  10.In view of the above, the Greek-cypriot application for admission into the European Union may only refer to the Greek-cypriot State, that is to say, to that southern part of the island where the applicant government actually rules over by exercising its sovereign powers. The Greek-cypriot application is illegal only to the extent it claims to refer to the northern part of Cyprus where the Turkish-cypriot State is settled. Actions and conducts of one State may not, in fact, spread their effects into the sovereign sphere of another independent State; if the Greek-cypriot State signs a treaty with the European Union, that treaty has not legal relevance for the Turkish Republic of Northern Cyprus, that is, a third State to that agreement between the Greek-cypriot State and the European Union. Otherwise, we should deny one of the basic principles of any legal system - internal and international:  pacta tertiis neque nocent neque prosunt.

  11.Notwithstanding all the arguments supporting the legal conclusion that the Greek-cypriot request is not allowed to bind the Turkish-cypriot independent Community, what if the European Union should accept the application for admission as submitted by the Greek-cypriot government, that is to say, with reference to the whole island? As a matter of European Union law, granting such request would mean that all the territory of Cyprus would become part of the European Union; according to European Union law, then, the new member State should guarantee and would be obliged to fulfill two main obligations: a) to implement and enforce the European legislation throughout the whole island; b) to allow – de facto and de jure – every European citizen to exercise the four basic European freedoms: movement, residence, establishment, providing services. The Greek-cypriot government is not able to fulfill these obligations within the area upon which the Turkish-cypriot sovereignty subsusts; the applicant government is prevented from fulfilling these duties both as a matter of fact and as a matter of law. As a matter of fact, there is a total separation between the two Communities that is now 28 years old. A border, drawn by the United Nation in 1974, divides the two population just as every other international border divides two States. Any attempt to come back to the 1960 state of affairs - namely to integrate the two populations - would be a failure from any point of view: social, humanitarian, legal and political. As a matter of law, the Greek-cypriot State may not implement duties and rights on the northern part of the island because there is a factual situation - born out of the social evolution - to which the rules of international law attach a proper and legal consequence: the statehood of the Turkish-cypriot Community. In other words, the Greek-cypriot State cannot exercise its own sovereignty over the northern part of the island for the simple reason that there is another State ruling that land.

  12.To grant the Greek-cypriot application for admission, therefore, is a useless and unreasonable action without any legal consideration, without any effective value given that the social, political and geographical reality is completely different from the one depicted in certain political deeds and remarks and, above all, the granting of such application would represent a serious breach of international law and a denial of the whole international legal system. In addition, the admission of Cyprus into the European Union would make the whole island a European territory. Accordingly, the Common Foreign and Security Policy - as introduced by the Maastricht Treaty - would apply to Cyprus as well as to any other member State. Policy's goals are geared at granting the security of the European Union by defending the territorial integrity of the Union, by strengthening the security of the Union in all the ways and by patrolling and defending the external borders of the Union. Such goals may be pursued with several devices: among them, there is also the opportunity for the State members to adopt and implement joint actions. It is clear that accepting the present application as submitted would mean to admit the Greek-cypriot claim to rule over the whole territory of Cyprus and it is also obvious that if the northern part of Cyprus is going to become a part of the European Union, then that northern part - according to the Common Foreign and Security Policy - would represent a breach of the territorial integrity and security within the borders of the Union. In other words, what is an independent State - according to international law - would become an unsafe area according to the European Union law. Accordingly, the European Union should implement a joint action in order to wipe out the border (or rectius the international border) between the two Communities (or rectius two States) and restore the integrity of the Union by bringing the northern part into the European territory. By this way it would be possible both to apply the European legislation and to exercise the basic freedoms throughout the island. It goes without saying that such attitude would be very hazardous if one keeps in mind the political interests and the complex relationships among States in this area.

  13.In view of the foregoing, it is quite clear that the granting of the Greek-cypriot application is not a step that is able to settle the thirty-years old Cyprus dispute and build good relationships between the Communities but, on the contrary, it could worsen the general framework. The Cyprus question is a matter of international law rather than of European Union law and the Greek-cypriot application for entering the European Union is just a troubled piece within a wider puzzle. Once the Cyprus question is settled, then - and accordingly - also the issue regarding the application would find a proper and legal solution. The starting point for the settlement of disputes, therefore, must be international law; the duty of politics is to formulate the most suitable solution for the specific situation, but all of this must happen pursuant to international law and with the full respect of the principles of the international legal system. What international law states is that sovereignty is only based on power and possession and not on legalities; that a social community becomes a State when it matches certain legal requirements and that the international legal system never gives relevance to the ways - peaceful or revolutionary, lawful or not - by which the social community gained sovereignty over the land. As a matter of international law, what is relevant and material is actual sovereignty and never claimed sovereignty: accordingly, two States exist within the island of Cyprus since 1974. Any political proposed solution to the dispute which deeply divides the two Communities since 1963 must be founded on this assumption.

  14.What is the future of Cyprus? Two Communities have several ways to live together in the same, small island: they may live as a single State with a centralized government; or as a single State with a federal framework; or as a Confederation of independent States; or they may live separated. What happened in the last 40 years both from an historic and a political point of view makes today impossible to think about any kind of cohabitation within the same single State between Greek-cypriots and Turkish-cypriots. The only options left are Confederation or complete separation. It is up to the leaders of these State to understand which is the best solution for their people and for the entire area in order to achieve peace, prosperity and security.