INTERNATIONAL LAW AND DIPLOMACY ON THE CYPRUS QUESTION
- Έκδοση: 2021
- Σχήμα: 21x28
- Βιβλιοδεσία: Σκληρόδετη
- Σελίδες: 272
- ISBN: 978-960-654-551-1
The book “International Law and Diplomacy on the Cyprus Question” deals with the Cyprus problem after the Turkish intervention of 1974, which is a matter of international law.
Although Turkey’s intervention has been the subject of much comment, a fresh study has been warranted. This is so, because this book takes advantage of information not available to many of the earlier commentators. The monograph is distinctive in that it ranges beyond the question whether the intervention was lawful to consider the legal and political consequences, which flowed from it, and looks to the future exploring afresh prospects for a just and viable settlement to the Cyprus problem.
It is noteworthy that the book is broad enough to comprise analysis of various branches of the academic fields of International Law and Politics such as:
• the International Law of Armed Conflict and the Use of Force
• International Organizations
• the Law of Treaties
• Statehood
• Human Rights
• International Law Theory
• Conflict Resolution
• Foreign Policy
• Constitutional Theory
The book also includes Appendices in which they are included a recording made for the Oxford Colonial Records Project in Oxford on the 23rd/4/1971 and written Opinion of Prof. Sir Eli Lauterpacht (as he then was to the Cyprus Government).
The aim of the book is: to examine from the International Law viewpoint the 1974 Turkish Intervention of Cyprus; actually, whether there are any grounds upon which Turkey may rely in order to establish the legality of intervention, and to explore the legal and political consequences of the intervention; in this way, the book is forward-looking, as prospects for a future settlement of the Cyprus Issue are analyzed in the light of Public International Law, International Politics, and Constitutional Theory.
The book is addressed to lawyers dealing with international law and all scientific researchers on the Cyprus issue.
FOREWORD | Σελ. V |
LIST OF ABBREVIATIONS | Σελ. XI |
INTRODUCTION | Σελ. 1 |
PART I | |
ORIGINS | |
CHAPTER I | |
DIPLOMATIC CONTEXT TO THE CYPRUS QUESTION | |
1. The period up to 1960 | Σελ. 5 |
1.1. Brief Historical background | Σελ. 5 |
1.2. Legal Questions arising out of the British Occupation | Σελ. 9 |
1.3. British constitutional proposals for Cyprus | Σελ. 11 |
1.4. The Structure and legal peculiarities of the Constitution | Σελ. 18 |
2. Inter-communal Conflict analysis | Σελ. 24 |
2.1. The Roots of Political Partition in Cyprus | Σελ. 24 |
2.2. The external factors of Political Partition | Σελ. 26 |
3. Foreign involvement 1960-1974: U.S. Foreign Policy on Cyprus | Σελ. 33 |
3.1. U.S. Policy in the Colonial Period of the Cyprus Question | Σελ. 33 |
3.2. The independent Republic of Cyprus and the United States | Σελ. 35 |
3.3. The Acheson Plan | Σελ. 36 |
3.4. The events leading to 1974 and the U.S. role | Σελ. 37 |
CHAPTER II | |
THE TURKISH MILITARY INTERVENTION OF CYPRUS: THE ARGUMENT FROM THE TREATY OF GUARANTEE | |
1. Turkish justifications for the intervention and claims regarding the treaty | Σελ. 41 |
2. Treaty of Guarantee and International Law | Σελ. 43 |
2.1. Theories on the Legality of Military Intervention by Treaty Right | Σελ. 43 |
2.2. Arguments for the Legality of Intervention envisaged by Treary | Σελ. 46 |
(i) Legitimate limitation of a State’s sovereignty | Σελ. 46 |
(ii) Volenti non fit injuria | Σελ. 47 |
(iii) Pacta sunt servanda | Σελ. 47 |
2.3. Arguments against the legality of Intervention provided for by Treaty right | Σελ. 48 |
(i) General Principles of Law | Σελ. 48 |
(ii) Treaties reached under Duress or Inequitable Treaties | Σελ. 52 |
(iii) Sovereign equality | Σελ. 53 |
3. Did the Treaty of Guarantee purport to authorize military action? | Σελ. 54 |
4. Criteria set by the Guarantee Treaty and the conduct of Turkey | Σελ. 59 |
5. The subsequent actions of Turkey | Σελ. 61 |
6. Stance taken by the International Community | Σελ. 63 |
7. Conclusion | Σελ. 64 |
CHAPTER III | |
INTERNATIONAL LAW AND POLITICAL THEORY ON HUMANITARIAN MILITARY INTERVENTION | |
1. Historical Evidence of Humanitarian Interventions | Σελ. 67 |
2. State Practice | Σελ. 69 |
2.1. Pre-Charter Unilateral Humanitarian Interventions | Σελ. 69 |
(i) Intervention of Great Britain, France and Russia in aid of Greek Revolutionaries | Σελ. 69 |
(ii) French occupation of Syria, 1860-1 | Σελ. 71 |
(iii) United States Intervention in Cuba, 1898 | Σελ. 72 |
2.2. Post-Charter Unilateral Humanitarian Interventions | Σελ. 73 |
(i) Belgian and US intervention in the Congo, 1964. | Σελ. 73 |
(ii) Indian Invasion of Bangladesh, 1971. | Σελ. 74 |
(iii) Tanzanian Intervention in Uganda, 1978-9. | Σελ. 75 |
(iv) Assessment of State practice | Σελ. 76 |
2.3. Post-Charter UN Humanitarian Interventions | Σελ. 77 |
(i) Iraq, 1991 | Σελ. 78 |
(ii) Liberia, 1990 | Σελ. 78 |
(iii) Kosovo, 1999 | Σελ. 79 |
3. Legal and Political Theory on Humanitarian Intervention | Σελ. 79 |
3.1. Sovereignty v. Human Rights | Σελ. 80 |
3.2. Just War (Bellum Justum) | Σελ. 82 |
(i) War is not in conflict with the Law of Nature | Σελ. 82 |
(ii) Biblical texts arguments that war is compatible with the law of the Gospel | Σελ. 82 |
3.3. War as punishment | Σελ. 83 |
3.4. War in the name of the oppressed | Σελ. 84 |
4. Criteria and Conclusions on the Turkish Intervention | Σελ. 84 |
PART II | |
CONSEQUENCES OF THE INTERVENTION | |
CHAPTER IV | |
THE TURKISH FEDERATED STATE AND THE “TRNC” | |
1. Doctrinal considerations | Σελ. 89 |
1.1. Jus Gentium and Positivism | Σελ. 89 |
1.2. The Constitutive theory | Σελ. 90 |
1.3. The declaratory theory | Σελ. 91 |
2. States created as a result of illegal use of force and the “TRNC” | Σελ. 92 |
3. Classic Criteria for Statehood and the “TRNC” | Σελ. 98 |
3.1. Defined Territory | Σελ. 98 |
3.2. Permanent Population | Σελ. 99 |
3.3. Government | Σελ. 100 |
3.4. Independence | Σελ. 101 |
4. Self-determination and the “TRNC” | Σελ. 102 |
4.1. Turkish Cypriot and Greek Cypriot arguments on Self-Determination | Σελ. 105 |
5. Unilateral secession, self-determination and the "TRNC" | Σελ. 112 |
6. International community reaction to the “TRNC” Unilateral Declaration of Independence | Σελ. 119 |
7. Conclusions | Σελ. 120 |
CHAPTER V | |
HUMAN RIGHTS | |
1. Loizidou Case | Σελ. 123 |
2.The Case Cyprus v. Turkey | Σελ. 124 |
PART III | |
THE FUTURE-THOUGHTS ON A SETTLEMENT | |
CHAPTER VI | |
THE UNITED NATIONS AND THE CYPRUS PROBLEM | |
1. The period before Independence | Σελ. 133 |
2. The period after the inter-communal fighting until 1974 | Σελ. 135 |
3. The period from the Turkish intervention 1974 to the present day | Σελ. 141 |
4. Evaluation of U.N. Political Organs’ role in International Dispute Settlement | Σελ. 150 |
CHAPTER VII | |
FEDERAL CONSTITUTIONS AND HUMAN RIGHTS LAW | |
1. Turkish promotion of federation | Σελ. 153 |
2. The Concept of Federalism | Σελ. 155 |
3. Federal State for Cyprus: A Constitutional Law perspective | Σελ. 156 |
3.1. Classical Greek federal consitutions | Σελ. 159 |
(i) The Nature of a Greek Federal State | Σελ. 159 |
(ii) The Aetolian Confederacy | Σελ. 164 |
(iii) The Achaean Confederacy | Σελ. 166 |
3.2. Modern federal government | Σελ. 169 |
4. Federation and Human Rights | Σελ. 179 |
5. European Union involvement in the settlement of the Cyprus Issue | Σελ. 183 |
6. The principles pacta sunt servanda and rebus sic stantibus | Σελ. 187 |
CHAPTER VIII | |
SUGGESTED PROPOSAL AND STRATEGIC PARAMETRES | |
1. Suggested Solution | Σελ. 195 |
2. Human Rights in Foreign Policy | Σελ. 199 |
3. Strategic Considerations | Σελ. 200 |
4. Epilogue | Σελ. 203 |
CHAPTER IX | |
SECURITY POLICIES ON THE CYPRUS PROBLEM: INTERNATIONAL LAW AND STRATEGIC PARAMETRES | Σελ. 205 |
SELECTED BIBLIOGRAPHY | Σελ. 215 |
APPENDIX I - RHODES HOUSE LIBRARY OXFORD | Σελ. 229 |
APPENDIX II - Written Opinion of Professor Sir Eli Lauterpacht to the Cyprus Government | Σελ. 247 |
INDEX | Σελ. 251 |
Σελ. 1
INTRODUCTION
This book is an unrevised version of a thesis submitted for the degree of Doctor of Philosophy (Ph.D.) in the University of London, London School of Economics and Political Science.
The aim of the thesis is basically twofold. First, to examine from the International Law viewpoint the 1974 Turkish Intervention of Cyprus; actually whether there are any grounds upon which Turkey may rely in order to establish the legality of intervention. In this regard, the political context of the Cyprus Question (including the foundation of the Cyprus Republic and the 1959 Constitution alongside its provisions, particularly the ones pertaining to security) is elaborated. Second, to explore the legal and political consequences of the intervention. In this way, the dissertation is forward-looking, as prospects for a future settlement of the Cyprus Issue are analyzed in the light of Public International Law, International Politics, and Constitutional Theory.
Although Turkey’s intervention has been the subject of much comment, a fresh study has been warranted. This is so, because the present analysis takes advantage of information not available to many of the earlier commentators. Extensive research has been conducted in the Public Records Office, examining available Foreign Office and War Office Files relevant to the study. Greek Cypriot politicians have been duly interviewed who gave their own account of the events surrounding the relevant issue. Greek as well as Turkish material has been thoroughly studied and has also been included in the study. Needless to mention that massive International Law and Politics works are quoted in detail, thus making possible the application of legal principles to the political issue under examination. Furthermore, this study is distinctive in that it ranges beyond the question whether the intervention was lawful to consider the legal and political consequences, which flowed from it, and looks to the future exploring afresh prospects for a just and viable settlement to the Cyprus problem.
It is noteworthy that the thesis is broad enough to comprise analysis of various branches of the academic fields of International Law and Politics such as the International Law of Armed Conflict and the Use of Force, International Organizations, the Law of Treaties, Statehood, Human Rights, International Law Theory, Conflict Resolution, Foreign Policy and Constitutional Theory.
The Doctoral Thesis comprises three major Parts and eight Chapters. Supplement to the work is part of the chapter on Federal Constitution (vii), which has also formed the basis of a separate book titled Federal Constitution and Human Rights on Cyprus (Harvard University, 2004). This has been compiled within the Gates of Harvard University in the light of additional material and research. The excellent holdings of the Harvard Widener Library in Classical Greek Constitutions as well as contemporary Federal Government have been immensely useful important. This
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work also comprises an important addition, namely Chapter X: Security Policies on the Cyprus Problem: International and Strategic Parametres.
I would like to express my deepest thanks to the staff of the Royal Institute of Strategic Studies (RISS), the Institute for Advanced Legal Studies (IALS), and the Institute of Commonwealth Studies (ICS), University of London, for their kind assistance over the years.
Also, I would like to thank the daughter of Lord Caradon as well as the Archivist of the Bodleian Library of Commonwealth Studies at Rhodes House in the University of Oxford for kindly granting permission to reproduce and publish extracts from the Papers of Sir Hugh Foot.
Special thanks go to Dr. Roger O’Keefe for writing the foreword to this book. It was ten years ago when Roger was finishing his doctorate and I was a first year undergraduate in Law at Magdalene College, Cambridge. An introduction coming from an old College friend, currently distinguished in the academia, carries very significant weight. I remain indebted.
The message of this book nowadays is that the struggle for implementation of International Law is a battle for life. It requires the personal and collective sacrifice of individuals and peoples for the enforcement of a superior national objective. This idealist gist of the Law of Nations essentially dictates that the just must be powerful, particularly spiritually powerful. This book is designed primarily for those who truly believe (in theory and in practice) that political liberty, State sovereignty and national dignity are values much important than life itself.
Iacovos Kareklas
Visiting Fellow, Pembroke College, University of Oxford
Σελ. 3
PART I
ORIGINS
Σελ. 5
CHAPTER I
DIPLOMATIC CONTEXT TO THE CYPRUS QUESTION
1. The period up to 1960
1.1. Brief Historical background
The History of Cyprus begins with the Neolithic times going back to the 6th millennium. With the discovery of copper in Cyprus early in the third millennium B.C. the history of Cyprus enters into a new period, the Bronze period 2500-1500 B.C.
The most important event during that period was the arrival of Achaean-Mycenaeans around the middle of the second millennium and the Mycenaean culture, previously flourishing in the island of Crete was now introduced into Cyprus. The extent of the Mycenaean influence has been shown by the archaeological findings- tombs, vases and other remains, as well as excavations of Mycenaean cities in the Eastern coast of Cyprus, in the province of Famagusta. Before the end of the second millennium more Greek colonists arrived to live in Cyprus while others on the east and west of Asia Minor. According to history, cities of Cyprus were founded by heroes of the Trojan war such as Salamis by Teucer, brother of Ajax, Paphos by Agapenor from Arcadia, Idalium by Chalcanor, Lapithos by Praxandros of Laconia and others. The Greek colonization was very extensive and this is supported by Herodotus, who says that the inhabitants of Cyprus had come from Athens, Argos, Arcadia, Salamis. The Greek colonists brought with them the Greek culture and way of living, including their political ideas and manner of administration.
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The autochthonous inhabitants, the Eteocyprians (a technical name given by Archaeologists to differentiate the uncivilized population of Cyprus from their civilised descendants) accepted the Greek culture. On the model of the Greek city states and following the Mycenaean system of government many kingdoms have been established in Cyprus. Diodorus Siculus, the historian, refers to nine such kingdoms in the middle of the fourth century.
The Cyprus kings following the Mycaenean precedent were at the same time high priests, judges and generals and the institution of Kingship was hereditary. Gradually the institution of the assembly of the people, the ecclesia, was developed to which the king was referring matters of administration for consideration.
The Kings of Cyprus retained their autonomy under the Egyptians and the Persians from the sixth century to the end of the fourth century B.C. even after the heroic but unsuccessful revolt under King Onesilus in the fifth century B.C. who tried to unite the Cypriots against the Persian domination.
Next important King who united the cities of Cyprus under the leadership of Salamis was its King Evagoras the First. Evagoras carried a ten year war against the Persian yoke and during that struggle was greatly assisted by the Athenians who made him a citizen of Athens. Evagoras is the most important statesman in the History of Cyprus who not only maintained and spread the Greek culture throughout Cyprus but transmitted it to the neighbouring countries.
The kings retained their sovereignty over their own cities during the time of Alexander the Great. When after his death in 323 B.C. a dispute arose over the possession of Cyprus between his successors Ptolemy and Antigonus, the kings of Cyprus were divided some of them supporting the former whilst others supporting the latter, but eventually Cyprus came under Ptolemy who shortly afterwards was proclaimed as king Ptolemy.
Cyprus remained under the Ptolemies for two and a half a centuries and during that time achieved a great degree of culture and prosperity.
Cyprus was occupied by Rome in 58 B.C., as Greece had been occupied earlier (c. 146 B.C.) and became part of the province of Cilicia governed by a proconsul. Among the early proconsuls was the famous orator Cicero. Under Augustus Cyprus became an imperial province.
The introduction of Christianity to Cyprus was the most important event during this period of the Roman rule. On his first missionary journey in 45 A.D. Paul accompanied by Barnabas, a Cypriot, and Mark landed at Salamis and preached the new religion. The conversion to Christianity was
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completed by the beginning of the fifth century through the great ecclesiastical figures of the time, St. Barnabas, Lazarus, Spyridon of Trimithus, Philon of Karpasia, Tychon of Amathus and Epiphanios of Constantia.
On the laying of the foundations of the Byzantine Empire, in 330 A.D. Cyprus received special attention and protection by the emperors of Byzantium. When Cyprus was a Byzantine province, the Arabs, who had accepted the religion of Islam raided at intervals Cyprus from the seventh to the tenth centuries and caused great destruction. But the Arabs never made an organised attempt to occupy Cyprus or acquire sovereignty over it and their activities were limited to looting and taking prisoners.
The Byzantine period of Cyprus came to an end with the reign of Isaac Comnenos. Throughout the Byzantine period the Greek character of Cyprus was preserved in all its manifestations. Richard sold Cyprus to Guy de Lusignan, King of Jerusalem and thus Cyprus became a Frankish Kingdom. The Lusignans ruled for about three hundred years (1192-1489) on the feudal system, all privileges belonging to the nobles whilst the people was oppressed without participation in the administration. The system of administration was alien to the people of Cyprus. During the Frankish period the Greek Orthodox Church was in a state of persecution as the Latin Church was trying to subjugate it. The last Queen of the Lusignan dynasty Catherine Cornaro ceded Cyprus to Venice 1n 1489, when the Lusignan domination of Cyprus ended. The Venetian occupation of Cyprus had a purely military purpose that of defending the Venetian interests from any dangers that might come from Egypt and the Turks.
The Turks, who had captured Constantinople in1453, invaded Cyprus with powerful army in 1570 and, in spite of the defence put up by the Venetians, they captured Nicosia in the same year and in 1571 Famagusta fell after an heroic resistance of the Venetian commander Marcantonio Bragadino. After the capture of Nicosia, but especially after the fall of Famagusta, unprecedented acts of atrocities followed, property was looted and most of the important churches
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such as St. Sophia, and St. Catherine in Nicosia and St. Nicosia in Famagusta were converted to Moslem mosques, and remained as such to nowadays. Hill, in his History of Cyprus after referring to Nicosia at which the massacre and looting went on for there days, writes that “the reader may be spared description of horrors which were such as usually occurred at the capture of any Christian city by the Turks” and after the fall of Famagusta observes that “the history of Cyprus is rich in episodes of horror, and this was an age inferior to no other in barbarity: but as an example of cold-blooded ferocity, in which the childishness of the savage combines with the refinements of the sadist, the martyrdom of the hero of Famagusta by Mustafa Pasha yields the palm to none. It was inspired not by momentary fury, but by deliberate bloodlust. Some details may have been exaggerated by anti-Moslem sentiment, but the main facts are not open to doubt”.
The Turkish conquest brought many radical changes to Cyprus. In spite of the atrocities the Turks supported the Greek-Orthodox Church, which replaced the Roman Catholic as the official Church of the island. The Archbishop of Cyprus was given similar privileges as those of the conferred on the Patriarch at Constantinople.
The Turkish rule in Cyprus ended in 1878. By the Convention of the defensive alliance between Great Britain and Turkey with respect to the Asiatic provinces of Turkey signed at Constantinople on the 4th June 1878, Turkey consented to assign the island of Cyprus to be occupied and administered by England” for enabling her to make the necessary provision for executing her engagements under the Treaty. By an Annex to this Convention signed at Constantinople of the 1st July 1878 between the same Contracting Parties the conditions under which England would occupy Cyprus are provided and provision was made that “if Russia restores to Turkey Kars and other conquests made by her during the last war in Armenia, the Island of Cyprus will be evacuated by England and the Convention of the 4th June 1878 will be at an end”. By an additional article signed at Constantinople on the 14th August 1878, it was agreed between the High Contracting Parties that for the term of the occupation and no longer, full powers were granted to the Great Britain for making Laws and Conventions for the Government of
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the island and for the regulating of its commercial and consular relations and affairs. In July 1878 Cyprus was occupied by Great Britain.
The main purpose of this short historical narrative has been to show that during all the years of foreign occupation many conquerors passed through Cyprus and she came across many cultures. Although they left their traces, which may be witnessed by the various silent monuments, nevertheless Cyprus never has lost its own character or identity.
1.2. Legal Questions arising out of the British Occupation
There is no unanimity as to the legal position of Great Britain in respect of Cyprus during the period from its occupation in 1878 till the annexation in 1914. A view was expressed that Great Britain acquired a de facto though not a de jure sovereignty over Cyprus under the Convention. The concept of sovereignty, as supreme authority which is independent of another authority, coincides with that of the political power and has different aspects. In so far as it excludes the dependence upon any other form of authority of another state, sovereignty is independence. It is external independence with regard to the liberty of action outside the borders of a state in its intercourse with other states and internal independence with regard to the liberty of action inside the borders. As regards the power of a state to exercise authority over all persons and things within its territory, sovereignty is territorial supremacy (dominion, territorial sovereignty). With respect to the territorial sovereignty three theories were expounded especially in international law.
One theory supports that the territory is the object of state power .According to the writers supporting this theory (Oppenheim, Lauterpacht in the U.K.) the territory is an object over which the state exercises a true right. According to the second theory, which extensively is accepted in Germany (by Jellinec) and was introduced in Greece by the late Professor Saripolos, the territory is constituent element of the concept of the state. The territory is not a part of the possessions of the state but a prerequisite of its existence. A third theory inspired by the Austrian school (Kelsen, Verdross) maintains that the territory should be immune from any juristic or geographical element and should be approached from the angle of the exercise of the competence of the state ratione loci. Under this theory the relations of the colonial territories to the metropolitan state territory could be better explained.
The supreme authority which the state exercise over its territory would seem to suggest that on one and the same territory there can exist only one full sovereign state and that two or more sovereign states on one and the same territory are an impossibility. But the controversy
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over the non-divisibility of sovereignty, prevalent in the sixteenth, seventeenth and eighteenth centuries was dying out in the nineteenth century especially with the appearance of colonialism.
Among the examples of the divisibility of sovereignty is the case where one state actually exercises sovereignty which in law is vested the elsewhere, as where a piece of territory is administered by a foreign power with the consent of the state to which the territory belongs. In this respect the reference is made to the position of Cyprus from 1878 to 1914 under British administration and that of Bosnia and Herzegovina from 1878 to 1908 under the administration of Austria-Hungary where a cession of territory has for all practical purposes taken place although in law the territory belonged to the former owner state.
This is borne out by the provisions of the Convention itself under which Turkey assigns the administration of the Island of Cyprus to Great Britain, an expression which denotes transfer of title, whilst at the same time provision is made in the Annex for the eventual return of Cyprus on the fulfilment of certain conditions. That sovereignty was remained in Turkey was never disputed by Great Britain on taking up the administration of the island. The occupation of Cyprus lacked juristic precision but it was analogous to protectorate in the sense that it fell within the designation of a country under protection of Great Britain.
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Great Britain immediately after the outbreak of war with Turkey in 1914, annexed Cyprus by Order in Council of the 5th November 1914 and as from that date Cyprus formed part of the Her Majesty’s dominions.
Cyprus, when annexed, had been under British administration since 1878. Such annexation in time of peace without the consent of the state which in law owns the territory is unlawful and it is of doubtful legality in war. In any event the annexation was recognized by Turkey by article 20 of the Treaty of Lausanne 1923. Turkey furthermore, by Article 16 of the same treaty renounced all rights and titles whatsoever over or respecting inter alia the islands other than those over which the sovereignty is recognised by the present Treaty (and therefore over Cyprus as well) and by Article 27 Turkey was precluded from exercising any jurisdiction in any political, administrative or legislative matter outside the territory of Turkey, on any national of a territory put under the sovereignty of the other signatory Powers. (as in the case of Ottoman subjects in Cyprus).
1.3. British constitutional proposals for Cyprus
On the assumption of the government by the Labour party in 1945 the Secretary of State for the Colonies stated that it was proposed to seek opportunities to establish a more liberal progressive regime in the internal affairs of the island. For this purpose a Consultative Assembly was convened in 1947 but the response was discouraging. These constitutional proposals though constituting a step towards self-government, were inspired by an imperial spirit and were inconsistent with the ideals for which the Second World War had been fought and the declared promises during and after the War by the British government. The limitations imposed by the constitutional proposals and the powers reserved to the Governor with respect to defence and external affairs had not left any room for their acceptance. The Greek Cypriots under the leadership of the Archbishop Leontios had decided that their future aim should be Enosis and only Enosis (Union with Greece). An aim followed by his successors Makarios II and Makarios III. The demand of Enosis was becoming more persistent and on the 15thnof January 1950 a plebiscite was held, under the aegis of the Ethnarchy Council, among Greek Cypriots, at which 96 % of the persons taking part in it voted for Enosis of Cyprus with Greece.
In the meantime the British Government announced that she intended to introduce a constitution as a first step towards self-government, an announcement which was met by the
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immediate reaction of the Greek Cypriots. For overcoming such reaction and winning their cooperation the British thought that the best way was to carry with her some good will from Greece and Turkey and for this purpose she decided to invite Greece and Turkey to send representatives to a conference to be held in London and collaborate for an agreement there. The theme of the conference was to cover all the common interest of the three powers on the eastern Mediterranean.
The proposed Conference was held without the approval of the Archbishop who publicly declared that the convening of such a conference is a trap and a means of undermining Greece’s appeal to the United Nations. It is significant that at the Conference, Macmillan, the British Foreign Secretary, frankly admitted that: “it is an undoubted anomaly and it is in our view wrong that while so many other parts of the world have made steady progress in the art and practice of self-government there has been no comparable advance in Cyprus. We must put this right. Internal self-government has to be the first aim.” The Greek Foreign Minister Stephanopoulos supported the application of self-determination to Cyprus, whilst the late Zorlu, the Turkish Foreign Minister, maintained that it was not right to consider the Cyprus question from the angle of the present day composition of the people and the guiding principles should not be the consideration of the majorities and minorities but rather the granting of full equality to the two groups. Furthermore he added that the status quo should be maintained in Cyprus. If this were to be upset then the island should revert to Turkey.
In broad lines it was proposed a Constitution providing for an Assembly with an elected majority, a proportionate quota being left for to the Turkish Cypriot community and for the progressive transfer of the departments to Cypriot Ministers responsible to the Assembly with the exception of foreign affairs, defence and security which will be left for the Governor. A proportion of the ministerial posts would be reserved for the Turkish Cypriots.
There was no agreement regarding the future international status of Cyprus and confronted with this deadlock the Conference came to an end.
The Greek Cypriots undertook then an armed struggle for the satisfaction of their demands. The Governor was substituted by Field Marshall Sir John Harding, Chief of the Imperial General Staff, who on arriving to Cyprus started protracted negotiations with the Ethnarch Archbishop Makarios in an attempt to find a solution to the problem. The proposals put forward by the British Government during the talks, as far as the constitutional problem was concerned were as follows:
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(a) Though the British Government admits that the principle of self-determination may be applicable to Cyprus nevertheless her position was that it was not a practical proposition on account of the situation then prevailing in the Eastern Mediterranean.
(b) The details of the constitution would be a matter for a discussion between the representatives of all section of the population. Nevertheless the following points were clarified by the British Government
(i) that she offers wide measure of democratic self-government and to this end she proposed the drawing of a new and liberal constitution in consultation with all sections of the community.
(ii) The constitution would enable the people of Cyprus through responsible Cypriot Ministers to assume by suitably phased process, control over the departments of Government except those relating to foreign affairs and defence which would be reserved to the Governor and the public security which would be also be reserved to the Governor for as long as he deems necessary.
(iii) The constitution will provide for an Assembly with an elected majority.
(iv) A Cypriot Premier would head the new administration who would be chosen by the Assembly with the approval of the Governor. Ministerial portfolios would be allocated by the Premier subject to a constitutional provision relating to participation of Turkish ministers in the Council, of Ministers.
(v) There would be proper safeguards for the rights of the individual citizens.
Eventually no agreement could be reached, not only on the constitutional question but also on other matters..
The British Government concentrated on the action necessary to prepare a working plan for self-government of Cyprus and for this purpose entrusted Lord Radcliffe to prepare and submit constitutional proposals for Cyprus. Such was the report submitted by Lord Radcliffe.
By his constitutional proposals Lord Radcliffe recommended that a diarchy for Cyprus consisting of the section of subjects reserved for the Governor, comprising foreign affairs, defence
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and internal security, and the self-governing section consisting of the Legislative Assembly, the cabinet and the Judiciary and comprising all matters other than the reserved ones.
The Legislative Assembly would consist of a Speaker, a Deputy Speaker appointed by the Legislative Assembly and 36 other members out of whom 6 would be nominated from among members of the minority communities and 30 elected members (6 voters on the Turkish communal roll and 24 elected voters on the general roll). The Legislative Assembly would pass all the Bills dealing with self-government matters that shall become Laws on being assented to by the Governor.
The executive power of the self-governing section would be exercised by a cabinet consisting of the Chief Minister, appointed by the Governor from among the members of the Legislative Assembly and enjoying the largest measure of general support in the Assembly and five other Ministers appointed by the Governor on the recommendation of the Chief Minister from among members of the Legislative Assembly. There would be also a Minister of Turkish Cypriot Affairs, appointed by the Governor at his discretion from among the members of the Legislative Assembly elected by the voters on the Turkish Cypriot communal roll, who will be responsible for the office dealing with Turkish Cypriot affairs.
Regarding the Judicature there would be a Supreme Court consisting of the Chief Justice who is appointed by the Governor after consultation with the Chief Minister and two other judges, or such increased number of members as may be provided by law, being uneven, appointed by the Governor after consultation with the Chief Justice.
The Attorney-General would be appointed by the Governor on the recommendation of the Chief Minister and his appointment would be revoked accordingly.
A tribunal of Guarantees would be established, the members of which would be appointed by the Governor in consultation with the Chief Justice and the Chief Minister. The membership of Tribunal shall include an equal number of the Greek Cypriots and Turkish Cypriots under the chairmanship of a person who would not be either Greek Cypriot or Turkish Cypriot. The Tribunal would deal with individual complaints against acts of the administration.
His conclusions are pertinent, even today. For this reason the relevant paragraphs of this Report are quoted in full:
“27. I have given my best consideration to the claim, put before me on behalf of the Turkish Cypriot community that they should be accorded political representation equal to the of the Greek Cypriot community. If I do not accept it I do not think that it is out of any lack of respect for the misgivings that lie behind it. But this is a claim by 18% of a population to share the political power equally with 80% and, if it is to be given effect to, I think that it must be made on one of the two possible grounds. Either it is consistent with the principles of a constitution based on liberal and democratic conceptions that political power should be balanced in this way, or no other means than the creation of such political equilibrium will be effective to protect the
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essential interests of the community from oppression by the weight of the majority. I do not feel that I can stand firmly on either of these propositions.
28. The first of embodies the idea of a federation rather than unitary state. It would be enough to accord to members of a federation equality of representation in the federal body, regardless of the numerical proportions of the populations of the territories they represent. But can Cyprus be organised in this way? I do not think so. There is no pattern territorial separation between the two communities, and apart from other objections, federation of communities seems to be a very difficult constitutional form. If it is said that what is proposed is in reality nothing more than a system of functional representation, the function of in this case being the community life and organization and nothing else. I find myself baffled in the attempt to visualise how an effective executive government for Cyprus is to be thrown up by a system in which political power is to remain permanently divided in equal shares between the two opposed communities. Either there is stagnation in political life, with the result frustration which accompanies it, or some small minority group acquires an artificial weight by being able to hold the balance between the two main parties. My conclusion is that it cannot be in the interest of Cyprus as a whole that the constitution should be formed on the basis of equal political representation for the Greek Cypriots and Turkish Cypriot communities.
29. Does the second ground lead to a different result? I do not think so. To give an equal political strength in a unitary state to two communities which have such a marked inequality in numbers- an inequality which, so far as signs go is likely to increase as decrease- is to deny to the majority of the population over the whole of the field of self-government the power to have its will reflected in effective action. Yet it might be well right to insist on this denial if the constitution could not be equipped with any other means effective of securing the smaller communities in the possession of their essential special interests. Not only do I think that it can be equipped with such means by placing those interests under the protection independent tribunals with appropriate powers and relying only to a limited extent on direct political devices, but I think that the legalist solution which this depends on is in fact better suited to provide the protection that is required, and it does not have the effect of denying the validity of the majority principle over a field much wider than that with which special community interests are truly concerned”.
The Radcliffe constitution was not accepted either by Archbishop Makarios or by the Greek Government. The armed struggle in Cyprus continued.
Sir John Harding was succeeded as Governor by Sir Hugh Foot whose links with the island date back to 1943 when he was Colonial Secretary. It was the Governor’s ideas that mainly inspired the Macmillan Plan which was announced on the 19th of June 1958. Sir Hugh Foot
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summarised its aims in a broadcast to the troops of Cyprus: “It may be summarised in three sentences. First, we want to give the best possible deal to all the people of the island. Second we want to bring the three Governments of Great Britain, Greece and Turkey together in a joint effort to make sure that they get it. Third, we believe that this can only be achieved by Great Britain given a definite and determined lead to break the vicious circle from Cyprus which has suffered so long”.
Under the Macmillan Plan a partnership scheme was proposed for Cyprus-partnership between the two communities in the Island and also between the Governments of the United Kingdom, Greece and Turkey. For this purpose:
(a) the Greek and Turkish Governments will each be invited to appoint a representative to cooperate with the Governor in carrying out the Plan.
(b) the Island will have a system of representative Government with each community exercising autonomy in its own communal affairs. To this end there would be a separate House of Representatives for each of the two communities, which will have the final legislative authority in communal matters.
(c) authority for internal administration other than communal matters and internal security will be undertaken by a Council presided over by the Governor and including representatives of the Greek and the Turkish Governments and six elected members drawn from the Houses of Representatives , four being Greek Cypriots and two Turkish Cypriots.
(d) The Governor, acting after consultation with the representatives of the two Governments will have the reserve powers to ensure that the interests of both communities are protected;
(e) External affairs, defence and internal security will be matters specifically reserved for the Governor acting after consultation with representatives of the two Governments;
(f) Such representatives will have the right to require legislation which they consider discriminatory to be reserved for consideration by an impartial tribunal.
It is to be noted that the proposed constitutional arrangements not only did not satisfy the national aspirations of the Greek Cypriots, but brought Turkey to share the administration of Cyprus. It should be recalled that by the aforementioned provisions of the Treaty of Lausanne Turkey renounced any rights of Sovereignty over Cyprus.
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Early in 1959 negotiations were held in Zurich between the Greek and the Turkish Governments for the purpose of finding a solution. On the 11th February 1959 an agreement was reached at Zurich between the Greek and the Turkish Minister for the establishment of an independent state, the Republic of Cyprus. At a Conference held in London in February 1959 attended by the Prime Ministers of Great Britain and Greece, the Turkish Foreign Minister, the Foreign Ministers of Great Britain and Greece and the representatives of the Greek Cypriot communities the a Memorandum with documents annexed to it setting out the foundations of the final settlement of the problem of Cyprus were signed and adopted on the 19th February 1959. A joint constitutional commission prepared the Constitution of the Republic of Cyprus and London joint committees prepared the draft treaties giving effect to the conclusions of the London conference. Agreement was reached on all points on 1st July 1960. The Constitution of the Republic of Cyprus was signed at Nicosia on the 16th of August 1960 by the then Governor on behalf of the British Government, by representatives of the Governments of Greece and Turkey, by Archbishop Makarios, on behalf of the Greek Cypriot community, and Dr. Fazil Kutch on behalf of the Turkish Cypriot community and was put into force on that date.
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1.4. The Structure and legal peculiarities of the Constitution
The structure provided by the Agreement was based on the recognition of the existence of two communities, the Greek and the Turkish- who in spite of their numerical disparity were given equal treatment. The aim was to ensure that each community participates in the exercise of the functions of government. The official languages of the Republic are the Greek and the Turkish ones. For each community a Communal chamber is established exercising legislative and administrative power on certain restricted subjects relating to religious matters, educational, cultural and teaching matters, and instances of courts dealing with civil disputes relating to religious matters and personal status and on matters relating to institutions of purely communal character and having a right to oppose taxes and fees on members of their respective communities in order to provide for the respective need of bodied and institutions under the control of the communal chamber.
The President of the Republic shall be a Greek Cypriot and the Vice-President of the Republic a Turkish Cypriot elected separately by universal and secret ballot by the people. The President and the Vice-President of the Republic jointly exercise executive power in respect of subjects exclusively laid down in the Constitution except on certain occasions, addressing messages to the House of Representatives and the exercise of the prerogatives of mercy in respect of members belonging to their own community.
The President and Vice-President of the Republic either jointly or separately have a right of return of any law or decision of the House of Representatives or of the Council of Ministers, respectively, for consideration and of final veto against any Law or decision of the House of Representatives or any decision of the Council of Ministers relating to foreign affairs, defence or security as defined in Article 50 of the Constitution.
The main executive organ is the Council of Ministers. There shall be seven Greek Cypriot Ministers and Turkish Cypriot Ministers nominated by the President and the Vice –President of the republic respectively but appointed by them jointly. The Council of Ministers is the highest organ in the Republic for formulating policy and exercising the executive power in all respects except for the specific subjects allotted to the President and the Vice-President of the Republic, to Ministers and the Communal Chambers respectively.
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The President and the Vice-President jointly promulgate the laws or decisions of the House of Representatives and the decisions of the Council of Ministers and each one of them separately is doing the same in respect of the laws or decisions of the Communal Chamber of his own community. Before such promulgation the President and the Vice-President in respect of any law or decision of the Communal Chamber to his own community may refer to the Supreme Constitutional Court for its opinion any law or decision or any part thereof, which appears to be inconsistent with constitutional provisions.
The President of the House of Representatives shall be a Greek Cypriot and the Vice-President a Turkish Cypriot and shall be elected separately by the representatives of the Greek community and the Turkish Community respectively. In case of vacancy in either office an election shall take place and the functions performed by the eldest Representative of the respective Community.
The House cannot be dissolved either by the President or the Vice-President but only by its own decision. The laws and decisions of the House of Representatives shall be passed by as single majority of the Representatives present and voting. Any modification of the Electoral Law and the adoption of Law relating to the municipalities and imposing taxes shall require a simple majority of the Representatives elected by the Greek and the Turkish community respectively taking part in the vote.
The judicial power of the Republic is exercised by the Supreme Constitutional Court and by the High Court and its subordinate Courts.
The Supreme Court shall consist of a President and a Greek and Turkish Judge, citizens of the Republic, all of them appointed by the President and Vice-President of the Republic The main Jurisdiction of the Supreme Court relates to whether a law or decision of the House of Representatives is either totally or partly contrary to constitutional provisions. If a law or decision is declared by the Supreme Constitutional Court as unconstitutional, the law or decision is annulled. In the case of any law before promulgation such law or decision is not promulgated and in case of a reference by a trial Court on a point raised by a party to a judicial proceedings the law becomes inapplicable to such proceedings only. The Supreme Constitutional Court
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has exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision or omission of any organ, authority or person exercising any executive or administrative power is contrary to the Constitution or any law or is made in abuse of power, in which case the Court, may annul or confirm such act. Any decision of the Supreme Constitutional Court on any matter within its competence shall be binding on all courts, organs, authorities and persons.
The High Court, on the other hand, is the highest appellate court and has also power to issue of habeas corpus, mandamus, prohibition and certiorari.
The independent officers of the Republic are the Attorney-General assisted by his Deputy, the Auditor-General assisted by his deputy and the Governor of the Issuing Bank assisted by his deputy, all of whom are appointed by the President of the Republic. The first two are not removable from office except on the same grounds and through the same procedure as a Judge of the High Court.
The public service shall be composed as to seventy per centum of Greeks and as to thirty per centum of Turks. There shall be a Public Service Commission consisting of a Chairman and nine other members appointed for a term of six years by the President and the Vice-President seven of whom shall be Greeks and three shall be Turks. It shall be the duty of the Commission to make the allocation of public offices between the two communities and to appoint, promote, transfer and exercise disciplinary control over, including dismissal or removal from office, public officers.
Under the Treaty of Guarantee the Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security as well as respect for its constitution and it undertakes not to participate in whole or in part in any political or economic union with any State whatsoever or to promote the partition of the Island (Article 1). Part II of the Constitution deals with human rights and mainly based on the European Convention.