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CYPRUS: FACTS BEFORE THE LAW

Arman Ratip,
Editor and publisher
Pan magazine
CYPRUS TODAY APRIL 26-MAY 2, 2003

My reply to your “Opinion” entitled “After Wednesday” (Cyprus Today, April 12-18) is not an opinion, but a resume of the true facts.

Your assumptions that “The south will be seen as the legal and legitimate ruler of the whole of Cyprus” and that “Turkey will be seen as the invader force in the north” are wrong.

Fact 1:  Turkey will never be an invader force in the TRNC. The Partnership Council Agreement between Turkey and the TRNC was signed in August 1997. This agreement covers the defence and security of the TRNC. This agreement which was signed by the two states  is vaild under international law. Furthermore, as a 20-year-old independent Sovereign State under International Law, the TRNC is and will be outside the European Union (EU). This organisation and its new member (“The Republic of Cyprus”) cannot claim jurisdiction over the territories of the independent sovereign TRNC state. Therefore the South can never be “the legal and legitimate ruler of the whole of Cyprus” as you put it..

Fact 2: The Montevideo Convention of 1933, Article Three says: “The political existence of a state is independent of recognition by other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organise itself as it sees fit, to legislate upon its interests, administer it services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to International Law...”

The rights of the TRNC as an independent sovereign state are well defined in this article. The Two Theories of Recognition.

The Declaratory Theory: This is a statement of political fact acknowledging that a state or government exists and therefore merits recognition.

The TRNC state exists since the Declaration of Independence in 1983 – 20 years of existence as an independent sovereign state. Therefore the TRNC merits recognition.

The Constitutive Theory: This asserts that the act of recognition itself constitutes a new state or government. Under this theory also the TRNC merits recognition.

Advocates of realpolitik will find support in the declaratory theory, which stresses the acceptance of a political fact irrespective of the legitimacy bestowed by a democratic and constitutional government. The interest of a state requires diplomatic relations with all other members of the international community, and accordingly recognition is extended without implying approval or disapproval. If international law is to regulate the relation of states, then it must be universal.

To withhold recognition from a state is to deny its right to exist. From this perspective recognition becomes a necessary act, even a duty. The state exists and its sovereignty and independence are not subject to external approval. In the tradition of realist diplomacy the legal fact of statehood is above question. For another state to question the legitimacy of a new state runs counter to the doctrine of territorial supremacy. The assumption that the international system is a loose anarchy of sovereign entities leads to the conclusion that the declaratory principle is the correct one.

Constitutive theorists argue that recognition not only bestows rights, but stresses the obligation of the newly-formed state to fulfill its duties as a member of international society. The government of a new state must affirm a readiness to enter into constructive relations with other states on the basis of international law.

In both the Declaratory Theory and the Constitutive Theory the TRNC merits recognition and should have been recognised years ago.

Fact 3: The international law of recognition and a solution to the Cyprus problem. This may serve a purpose by providing a framework for a solution of the “Cyprus problem”. International law says that to overcome the problem a comprehensive formula crafted to meet the unique conditions on the island must be found. Nevertheless, a single pre-condition must be accepted. Each party to the dialogue must recognise the legitimacy of the other. Without such reciprocity, productive negotiations will not take place.

Here, the declaratory theory of recognition makes its contribution. Immediately prior to a solution each government must extend recognition to its negotiating partner. The advantage of reciprocal recognition followed by a solution is that of resolving the myriad legal problems which would arise if the lawfulness of the statutes or treaties of one of the governments was subsequently called into question. Prior recognition as a pre-condition before a permanent solution resolves the issue and enhances the chances of success.The doctrine of recognition becomes a means of restoring good relations between the two states.