THE SURVIVAL OF THE REPUBLIC OF CYPRUS

A study in Law and Politics

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Κωδικός Προϊόντος: 18923
Polyviou P.
  • Έκδοση: 2024
  • Σχήμα: 17x24
  • Βιβλιοδεσία: Σκληρόδετη
  • Σελίδες: 608
  • ISBN: 978-618-08-0271-9
The central thesis of the book is the amazing story of the survival in International Law and practice of the Republic of Cyprus, which achieved its independence in 1960, despite the continuous crises, problems and convulsions experienced since then.

Indeed, despite the Turkish invasion of Cyprus in 1974, and the continuing occupation of a significant part of its territory, the Republic of Cyprus was admitted as a full member of the European Union in 2004.

As Polyviou points out, since 1963, Cyprus has experienced constitutional breakdown, political turmoil, every possible type of aggravation and threat, as well as invasion and continuing military occupation, but somehow its Government and legal and political system have not only survived but have also been considerably enriched by a variety of elements from other legal and political spheres, including the European Union and International Law and practice. In his book, the author investigates some of the reasons for the survival and durability of the Republic of Cyprus and its legal and political system.
 
The central issues explored in the book are the amazing and unexpected survival of the Republic of Cyprus through all the problems encountered since 1963, and the extent to which such survival was due to law or politics or both. This latest book of P.G. Polyviou is essential reading for all those interested in the Cyprus problem, International Law and contemporary politics.

PREFACE xi

TABLE OF CASES xiii

1. INTRODUCTION 1

2. THE ZURICH AND LONDON AGREEMENTS AND THE 1960 CONSTITUTION 7

Overview 7

Treaties 9

The 1960 Constitution 13

(i) The Executive 15

(ii) The Legislative Power 16

(iii) The Judiciary 16

(iv) The Public Service 18

(v) Independent Officers of the Republic 19

A Critical Appraisal 19

3. THE CONSTITUTIONAL CRISIS OF 1963 AND SUBSEQUENT DEVELOPMENTS 27

4. IBRAHIM – BACKGROUND, FACTS AND DECISION 39

5. IBRAHIM AND THE DOCTRINE OF NECESSITY –
THE JUDGMENTS, ANALYSIS AND CONCLUSIONS
47

6. IBRAHIM – THE AFTERMATH IN CYPRUS 83

Administrative Decisions 85

Establishment of Substitute or New Organs 86

Miscellaneous Legislation Contrary to the Provisions
of the 1960 Constitution
91

Offices and Positions That Could Only be Filled
by President and Vice-President Together
95

Fundamental Human Rights and the Doctrine
of Necessity
95

Amending the Constitution and the Doctrine
of Necessity
121

Transformation of Doctrine of Necessity 128

Continuing Limitations on Doctrine of Necessity 129

The Reform of the Judiciary 134

Final Comments on Necessity in Cyprus 139

7. IBRAHIM ABROAD 147

8. REVOLUTION, NECESSITY, LEGAL DISCONTINUITY 177

9. ECHOES FROM AMERICA 199

10. FUNDAMENTAL LAW AND INNER LAW, BASIC STRUCTURE
AND CONSTITUTIVE POWER
205

Fundamental Law and Inner Law 205

Constitutional Amendment and Basic Structure 212

Constitutive Power 226

11. COURTS, JUDGES AND ADJUDICATION, PARTICULARLY
IN SITUATIONS OF NECESSITY
233

12. IBRAHIM AND THE DOCTRINE OF NECESSITY –
AN OVERVIEW
253

13. THE TURKISH INVASION AND OCCUPATION OF CYPRUS 269

Greek Military Coup and Turkish Invasion 269

The Geneva Declaration of 30 July 1974 271

The Second Geneva Conference 283

14. LEGAL CASES 301

Introduction 301

The European Commission and the European Court
of Human Rights
301

(i) Early Cases 301

(ii) Loizidou 309

(iii) Cyprus v. Turkey 319

(iv) Subsequent Cases 337

(v) Turkey’s Strategic Moves Following Cyprus v. Turkey 342

(vi) Demopoulos 344

(vii) Political Context of Demopoulos 352

(viii) Cyprus v. Turkey – “Just Satisfaction” 362

(ix) Committee of Ministers, Cases Subsequent to Demopoulos
and Efforts to “Close” the Issue of Property 369

The European Court of Justice 376

(i) Anastasiou 377

(ii) Apostolides 380

European Court of Human Rights and Court of Justice
of the European Union –
Apostolides and Demopoulos 385

UK Courts and Tribunals 392

Namibia, as applied by English Courts and the US
Supreme Court
412

15. THE IMPORTANCE OF LAW AND LEGAL SCIENCE 427

Law and the Republic of Cyprus 427

Proceedings in the Context of the European
Convention on Human Rights
429

Application to Join the European Union 433

16. TERRITORY 457

Introduction 457

Invasion and Occupation 459

Buffer Zone 460

European Acquis 472

Occupied Area and the “TRNC” 480

The Sovereign British Bases in CyprUs 485

(i) UK Legal Order 485

(ii) International Law Framework 489

(iii) Facts and Realities on the Ground 494

17. The Judiciary and the Rule of Law 499

18. FEDERAL RECONSTRUCTION 507

Cyprus and Federation 507

Invasion, Occupation and Federation 509

The Joint Declaration of February 2014 and
Subsequent Negotiations 523

Τhe Turkish Side Chooses Partition 538

Statehood and Federation 543

19. TRIAL AND SURVIVAL 547

20. REFLECTIONS AND CONCLUDING COMMENTS 551

Law and Politics 551

Sword and Shield 563

Paradoxes and Dilemmas 569

Conclusion 579

INDEX 583

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1. INTRODUCTION

The basic facts about Cyprus – historical, geographic, political and demographic – are well known. The island, strategically located in the eastern Mediterranean, five hundred miles from Greece but only forty from Turkey, has traditionally been inhabited by around 80 per cent Greek Cypriots and by around 18 per cent Turkish Cypriots, the rest consisting of other minorities.

Owing to its privileged geographical position, Cyprus, since antiquity, has been coveted by the great powers of the day. As was observed by the German archaeologist Hirschfeld, “he who would become and remain a great power in the east must hold Cyprus in his hands”. For this reason, one conqueror succeeded another. Cyprus was overrun by the Turks in 1571. The present Turks of Cyprus are descendants of those who came and settled on the island during the Ottoman occupation; but, it must be emphasised, the overwhelming majority of the people of Cyprus have always been, and of course still are, Greeks. The last foreign rulers of the island were the British. Cyprus passed to the United Kingdom (UK) by treaty in 1878, though still continuing to be under the suzerainty of the Turkish Sultan. In 1914, when Turkey entered the First World War against the Allies, Cyprus was annexed by the UK. By the Treaty of Lausanne, signed in 1923, Turkey recognised internationally, without any reservation, that it had no right or claim to Cyprus. Throughout the years of colonialism, the Greek Cypriots persisted in their demand for freedom, self-determination and union with Greece. Finally, in April 1955, after all efforts to achieve these demands by peaceful means had failed, the Greek Cypriots rebelled against the British colonial regime, and after a four-year struggle, Cyprus was proclaimed an independent State.

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After three tense years, the complex constitutional machinery set up by the independence settlement of 1960 collapsed in the midst of continuing mistrust between the Greek Cypriot Community and the Turkish Cypriot Community. In December 1963, civil strife broke out on the island, and Greece and Turkey were inevitably drawn in, Turkey threatening to invade and Greece declaring that in the event of a Turkish attack she would assist Cyprus’ Government in resisting it. For the first time the United States (US) and the Soviet Union also became actively involved, the US attempting to mediate between its two NATO allies and avert a Graeco-Turkish war, while the Soviet Union, fearing the island’s incorporation within the Western Alliance, warned that she could not stand idly by and watch Cyprus being brought within the American sphere of influence. What had been a local ethnic conflict became a major international crisis.

As a result of the ethnic conflict in Cyprus and the antagonism between Greece and Turkey, there was a collapse in 1964 of the principle of bicommunality, which constituted the foundation stone of the 1960 constitutional arrangements. The Turkish Cypriots refused to continue their membership of the various organs of government, all of which were based on the joint participation of both Communities, and as a result, there being no other option, the bodies and processes of government came under the exclusive control of the Greek Cypriot Community, in direct contradiction both to the spirit and to the letter of the 1960 Constitution. The State had to operate without one of its component elements, the Turkish Cypriot Community. In this context, the Supreme Court, consisting only of its Greek Cypriot members, invoked the doctrine of necessity in justification of the constitutional deviations that had taken place (and which indeed would take place in future). This was done in the famous Ibrahim case, which indeed gained not only domestic but also international approval and acceptance. Furthermore, both the State, the Republic of Cyprus, and its Government continued to enjoy exclusive international acceptance and recognition by virtue of numerous Security Council Resolutions of the United Nations (UN), despite the non-participation of the Turkish Cypriot Community in the affairs of State and Government.

Between 1964 and 1974, there was an anomalous, if not paradoxical,

Σελ. 3

situation. At one level, there was the State, namely the Republic of Cyprus, internationally recognised but operating without the participation of the Turkish Cypriot Community, many members of which withdrew into a small number of areas within the island (known as “the enclaves”) with their own “administration”, which only handled certain local and communal matters. At the other level, the two Communities held intercommunal negotiations, under the auspices of the UN, with the objective of working out a new constitutional settlement based on the one hand on a simplification of the 1960 Constitution and on the other on a new “arrangement” for the Turkish Cypriot Community (which would enjoy added protection but within a unitary and integral State). Throughout this period, a UN Peacekeeping Force was stationed in Cyprus, pursuant to a decision of the UN Security Council and on the basis of a treaty between the UN and the Republic of Cyprus, with the consent of both Communities and of the three Guarantor Powers, namely Greece, Turkey and the UK.

By 1973 and 1974, the intercommunal discussions between the two Communities seemed to be reaching some significant convergences, amounting to the following arrangement: Cyprus would remain an independent sovereign and territorially integral Republic. The 1960 Constitution would remain in place subject to most of the modifications proposed by President Makarios in 1963 by means of his 13 Proposals to amend the Constitution. The Turkish Cypriot Community would be accorded not only communal powers over education, culture and similar subjects, but also extensive local/regional powers over clusters or groups of Turkish villages, which themselves would be subordinate to and subject to a Turkish Cypriot Authority consisting of the Turkish Cypriot members of the House of Representatives. In other words, the State would basically remain as it was on the basis of the 1960 Constitution as modified by most of the 13 Proposals advanced by President Makarios in 1963; Cyprus would continue as a unitary State and not become a federal one; but at the same time the communal political prerogatives of the Turkish Cypriot Community would be converted to communal/regional authorities and responsibilities, namely functions and powers at the local level. To put it very simply, the protections the 1960 Constitution had accorded to the Turkish Cypriot Community at central governmental level would be simplified, and many of them would be replaced by functions, authorities and responsibilities at the level of local government, deriving directly from the Constitution or from a specially entrenched law that would

Σελ. 4

be protected from repeal or amendment simply by Greek Cypriot majority. There would be no displacement of people and the unity of the State at all levels would be safeguarded. This seemed a much better political and governmental arrangement for Cyprus. It has been called elsewhere “the 1974 model”, and it is fair to say that full agreement regarding its component elements had been reached some time in 1974. Regrettably, owing to subsequent developments, “the 1974 model” was not implemented.

Equally well known are later and more recent developments. In July 1974, the junta then ruling Greece staged a coup against the Government of Archbishop Makarios, the then President of the Republic of Cyprus, and Turkey invaded and occupied a substantial part of the territory of the Republic. Two negotiating sessions were held in Geneva in July 1974 and August 1974. The first Geneva Conference was attended by the three Guarantor Powers, namely Turkey, Greece and the UK, and resulted in a joint announcement known as the Geneva Declaration. The main Geneva Conference, attended by the three Guarantors, the two Communities and observers from the UN, took place in August but was discontinued without result on 14 August 1974. Upon its collapse, Turkish troops embarked once again on their military operations, occupying a significant part of northern Cyprus and expelling from their villages and homes over 170,000 Greek Cypriots, who flooded into the Government-controlled area in need of housing, food and other basic amenities.

Despite UN Resolutions calling on all parties to withdraw their military forces from the island, to allow the refugees and displaced persons to return to their homes in conditions of safety, and to respect Cyprus’ independence and territorial integrity, the Greek Cypriots and the international community were presented with a series of Turkish faits accomplis. What has now quite generally been agreed to be illegal conquest and occupation of part of an independent and sovereign State was followed by the expulsion of over 170,000 Greek Cypriots from their homes, the proclamation of a Turkish-Cypriot federated state in the northern part of Cyprus and a large-scale and quite unconcealed Turkish colonisation of the occupied area with thousands of settlers from mainland Turkey.

It must be noted that following the Turkish invasion of Cyprus, both the Government of the Republic and individual Greek Cypriots raised legal claims for violation of human rights, principally under the European Convention

Σελ. 5

on Human Rights. The case law that emerged from the European Court of Human Rights and other tribunals is of special interest, and this rich jurisprudence, despite its ups and downs, has played a significant role in the international fortunes of the Republic of Cyprus.

The UN Security Council and other international organisations and institutions have continued to accord exclusive international recognition and legitimacy to the Republic of Cyprus, though the Turkish military occupation and the systematic violation of human rights continue unabated.

Despite all the above, including the continuation of the Turkish occupation of a significant part of Cyprus and the establishment in the occupied area of a de facto administration, the Republic of Cyprus and its Government have, in a way surprisingly, survived as the exclusively legitimate State and governmental entity in the island, and continue to be recognised as such by all States (except for Turkey) and international organisations. No international or other recognition has been extended to the regime in the occupied area, which has been universally viewed as the subordinate local administration of Turkey (itself regarded as the occupying power). In addition, the Republic of Cyprus, with sovereignty over the whole territory of the island (including the area under Turkish military occupation), has been admitted to full membership of the European Union (EU), a most important development with huge legal, constitutional and political implications.

Throughout the story of the Republic of Cyprus, established in 1960, law and politics have been instrumental in shaping events. Sometimes the one has dominated the other. More often they have operated or been invoked together, with mixed results. Of course, “law” here is not used in the sense of domestic law or positive law (though this dimension of law cannot be ignored, depending of course on its definition), and similarly “policy” is primarily used in the sense of international diplomacy, which needless to say is influenced very significantly by other countries and their strategic interests.

This is a book about “the survival of the Republic of Cyprus”. Here, of course, we must note that the notion of the “survival” of Cyprus and/or of the Republic of Cyprus is not always an easy concept. “Survival” usually means that something has endured and/or has remained unaltered, or basically unaltered. But this has not been the case in Cyprus.

The truth of the matter is that the Republic of Cyprus has survived as a legal entity in international law, not that it has survived as a society or as a united country. If one compares the situation in 1960 with the situation now, obviously the two are very different, at least in terms of fact and reality. The Republic of Cyprus may still enjoy international recognition and indeed be a full member of the EU, but the reality is that a significant part of the island is still under occupation, a functioning administration (though unlawful) has been set up in the occupied territory, the area under occupation has undergone dramatic transformation, and various features and processes set up in occupied Cyprus have achieved some kind of “international recognition”, the principal of them being the machinery of the Immovable Property Commission (IPC), which indeed is calculated to legitimise the massive violations of the property rights of displaced Greek Cypriots. Therefore, the island of Cyprus and Cyprus society have not remained unscathed through the difficult times and multiple crises experienced in the past (far from it), though somehow, juridically, the Republic of Cyprus has survived.

The distinction between the notions of de facto and de jure governments or entities is prominent in the case of Cyprus. How will this divergence be bridged? Which notion will be assimilated in the other?

Nonetheless, despite difficulties of definition and ambiguities, this book is a study of how the truly remarkable and unique story of the survival of the Republic of Cyprus has come about.

Σελ. 7

2. THE ZURICH AND LONDON AGREEMENTS AND THE 1960 CONSTITUTION

OVERVIEW

The 1960 Constitution of the Republic of Cyprus has its roots in the Zurich Agreement reached between the Greek and Turkish Governments on 11 February 1959, which in turn was incorporated in the agreements reached between these Governments and that of the UK in London on 19 February of the same year. On that date also, the representatives of the Greek and Turkish Communities of Cyprus “accepted” the accords reached, and eventually these agreements were embodied in three treaties and a Constitution, usually called the 1960 or Zurich Constitution, which were all duly signed at Nicosia on 16 August 1960 and thus became the legal framework of the Republic of Cyprus.

Was the Zurich and London settlement an imposed one, or was it freely accepted by the Greek and Turkish Cypriots? On this, traditionally one of the most furiously contested issues of the Cyprus problem, as on so many others, Greek and Turkish Cypriot spokesmen have disagreed. But the following points are not open to dispute. The Zurich Agreement was a compromise negotiated between the Greek and Turkish Governments in the absence of Greek and Turkish Cypriots. Meetings between the Greek and Turkish Foreign Ministers had begun in early December 1958 at the UN, and continued at the NATO meeting in Paris in late December 1958. The talks between the Greek and Turkish Governments continued throughout January 1958, and in early February 1959, the then Greek and Turkish Prime Ministers, C. Karamanlis and A. Menderes, met in Zurich, where they drew

Σελ. 8

up the outlines of a comprehensive settlement of the Cyprus dispute. The Agreement was announced in a joint Graeco-Turkish communiqué issued on 11 February 1959. The British Government, which had already made it clear that any agreement reached between Greece and Turkey would be acceptable to it, provided it could maintain sovereign British bases and a military presence on the island, was informed, and it was only then that Greek and Turkish Cypriot leaders were fully brought into the picture. The Greek Cypriot leader Archbishop Makarios, at a meeting in Athens with the Greek Government, accepted, with some reluctance, the principles of the Graeco-Turkish accord, since it was now clear that outright rejection of the plan and continuation of the armed conflict would mean partition of the island; but, as he himself said later, he expected further negotiations to take place at the London Conference, which had already been convened. At this Conference at Lancaster House in February 1959, Archbishop Makarios did indeed raise a number of objections and expressed strong misgivings with regard to certain provisions of the Zurich Agreement. He accepted the Graeco-Turkish accord as a basis for the solution of the Cyprus problem, he stated, but he could not accept without further discussion the details of the Zurich settlement into which he had had no input. But the Greek Prime Minister told him that further negotiation was not possible; that the Greek Government had committed itself in the eyes of its allies and could not go back on its word; and that if the Archbishop did not accept the Zurich settlement as it stood, Greece would abandon both him and Cyprus. The Turkish and British Foreign Ministers could not accept any further discussion or negotiation. They demanded that the Archbishop should either sign the Agreement or reject it, in which event, it was already clear, the British would withdraw from the island and Cyprus would be partitioned.

It does therefore appear that whatever the juridical validity of the overall settlement, and irrespective of whether subsequent Greek Cypriot attempts to amend the constitutional arrangements should have been embarked upon given international realities and domestic tensions, the Zurich and London Agreements were basically negotiated and concluded between Greece and Turkey, and not between the Greek and Turkish Cypriots. Hence, the Zurich Agreement was “essentially an imposed settlement”, imposed

Σελ. 9

by the Greek and Turkish Governments, and this fact must be borne in mind in attempted explanations of the constitutional and political breakdown of 1963. On the other hand, the settlement was accepted and implemented, elections were held in Cyprus for the offices of President and Vice-President, and the Republic of Cyprus came into operation, with numerous problems of adjustment and some intercommunal tension it is true, but with serious advantages and a relative state of normality nonetheless, with most of the organs of the Republic operating satisfactorily and with the people setting about their ordinary lives with a degree of optimism, relief and satisfaction.

TREATIES

In any case, the overall political and constitutional settlement that has its basis in the Zurich and London Agreements is set at two levels – the international, which is demarcated by three treaties, and the internal, which consists of the 1960 Constitution.

The three treaties, the Treaty of Establishment, the Treaty of Alliance and the Treaty of Guarantee, reflected the uneasy compromise negotiated at Zurich and London, and effectively shackled the newly born State. The Treaty of Establishment, between the UK, Greece, Turkey and Cyprus, sets up the Republic of Cyprus and provides that its territory “shall comprise the Island of Cyprus [...] with the exception of the two areas”, which remain “under the sovereignty of the United Kingdom”. This Treaty of course secures British military interests in the area, and in effect provides for the retention of British influence in the Middle East.

The Treaty of Alliance was concluded between Cyprus, Greece and Turkey. By this, the parties undertook to resist any attack or aggression directed against the independence or territorial integrity of Cyprus, and for this purpose it was further provided that a tripartite headquarters should be established and that Greek and Turkish military contingents, consisting of 950 and 650 officers and men respectively, should be stationed within Cyprus.

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Finally, by the Treaty of Guarantee, the most controversial of the three treaties, union of the island with Greece (enosis) and partition (taksim) were excluded and prohibited, Cyprus undertook the obligation to maintain its independence and the constitutional order created by the 1960 Constitution, and the three Guarantor Powers, namely the UK, Greece and Turkey, guaranteed the continuation and maintenance of “the state of affairs established by the Basic Articles of its [i.e. Cyprus’] Constitution” as well as the independence and territorial integrity of Cyprus, reserving to themselves the right to take steps for the restoration of Cyprus’ status in the event of any change or disturbance or breach of the provisions of the Treaty. The final clause of the Treaty of Guarantee, which was later to be invoked by Turkey in justification of its military intervention, provides that in the event of a breach, “Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance” of the Treaty’s provisions. In so far as common or concerted action does not prove possible, “each of the three guaranteeing powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty”.

Indeed, a question was raised about the validity of the Treaty of Guarantee, and particularly of the above provision, which grants the right to the guarantor powers “to take action with the sole aim of re-establishing the state of affairs created by the present Treaty”. The issue was whether the future Republic of Cyprus would be truly independent, and thus eligible to be admitted to membership of the UN, or whether there was such a fetter on the independence of the future Republic that it should not be admitted to membership to the UN. An Opinion was commissioned by the UN regarding the matter, and such an Opinion was duly given by the famous jurist Hans Kelsen on 12 May 1959. After his analysis, Kelsen expressed the following view:

“Individual action is envisaged where common or concerted action is impossible and, in this respect, it is to be noted that the guarantors ‘reserve’ a right to take such action. By use of the word ‘reserve’ it would appear that paragraph 2 of Article 3 of the Treaty is not intended to grant any new rights to the guarantors, but is merely a confirmation of such rights as they might be deemed to possess under other provisions of the Treaty and general international law.

Σελ. 11

[…]

On the basis of the foregoing it is submitted that the Treaty of Guarantee will be a valid international instrument when it comes fully into effect. However, in the present state of the development of international law, Article 3 of that Treaty cannot validly be interpreted as granting the guarantors an unqualified right to intervene by use of armed force in the event of a breach of the provisions of the Treaty. Such use of force is only justifiable on grounds of self-defence, or under the authority of the U.N., or on the invitation of the State of Cyprus at the relevant time. A right of armed intervention does not arise automatically from the terms of the Treaty and even if the extreme view were adopted that such a right did arise it would be limited by the need, first, for recourse to the means of pacific settlement available to the States concerned.”

The above matters are also discussed by Professor James Crawford in his seminal work The Creation of States in International Law:

“The 1960 Constitution itself had 199 articles, forty-eight of which were expressed to be unalterable. By Article 181 (itself unalterable), the Treaties of Alliance and Guarantee were given constitutional force. As a result Cyprus was bound, apparently in perpetuity, to accept tripartite military forces on its territory. The purpose of the force was stated to be ‘to resist any attack or aggression, direct or indirect [...] against the independence or the territorial integrity of the Republic of Cyprus.’ Considered in isolation the Treaty of Alliance appears unexceptional, but some provisions of the Treaty of Guarantee raise doubts. By Article IV of the latter, in the event of breach by Cyprus of certain undertakings, and in default of common action by the three guarantor powers, each of them ‘reserves the right to take action with the sole aim of reestablishing the state of affairs created by the present Treaty.’ Cyprus under­takes to ‘ensure’ respect for its Constitution, to maintain its independence and security, and to prohibit ‘any activity likely to promote, directly or indirectly, either union with any other State or partition of the Island.’ Interpreted liberally, the Treaty of Guarantee would appear to allow unilateral military intervention by each of the Powers in a wide variety of circumstances, and to demolish the domestic jurisdiction of Cyprus in the most important areas. Not surprisingly, the Government of Cyprus subsequently suggested that Article IV might be null and void as in breach of the Charter. The prior argument, which avoids invalidity, is that Article IV, which ‘reserves’ the right to take unspecified action, must be interpreted by reference to the Charter so as not to include any right of intervention except where consistent, in particular, with Articles 2(4) and 51. But Turkey has claimed the right to intervene in

Σελ. 12

Cyprus with armed force under certain circumstances, and has done so on a number of occasions, most significantly in 1974.”

We see that both the worries and apprehensions of Kelsen are shared by Crawford, both of whom, however, attempt a similar escape from the difficulty, namely to interpret the Treaty of Guarantee in conformity with public international law and the Charter of the UN.

In any event, the Treaty of Guarantee was to play a significant role in subsequent developments regarding the Republic of Cyprus, particularly in respect of the invasion of Cyprus by Turkey in 1974.

“Cyprus was admitted by unanimous vote to the United Nations on 20 September 1960. No question of its independent statehood has been raised by other States or in international organizations, and [...] the principle of territorial integrity and political independence of the State of Cyprus was the basis of international responses to the Turkish invasion of 1974 and the subsequent de facto division of the island. Given the intractable nature of the Cyprus situation, it is doubtful that any more formal arrangement for international control would have been more successful. But it could equally be said that the various limitations on Cypriot sovereignty in effect introduced a form of internationalization by the back door.”

Indeed, the same point is made by Crawford in respect not only of the Treaties concluded between the parties to the Cyprus problem in 1960 but also of the 1960 Constitution itself. As he put the matter:

“A more extreme case of constitutional limitations (extending far beyond the imposition of a name or a particular external policy) was the 1960 Constitution of the Republic of Cyprus: there a range of detailed requirements were incorporated in the constitution, which was subjected to a form of international guarantee and much of which was stated to be unamendable. [...] But provided no other State possesses discretionary authority to alter its constitution, the fact that a State has no power to do so itself does not derogate from formal independence.”

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THE 1960 CONSTITUTION

As far as internal constitutional and governmental arrangements are concerned, these are contained in the 1960 Constitution, which was drafted within the rigid and narrow framework of the Zurich and London Agreements. There have been a number of extensive commentaries on its complexity, overwhelming (bi)communal character and sui generis provisions. Its central principles were, first, that the State being set up was a bicommunal one and, secondly, that there had to be the most minute and detailed regulation of every issue or aspect in the relations between Greek and Turkish Cypriots that could ever become controversial and a possible bone of contention between the two Communities. Its very first Article provides that the State of Cyprus is an independent and sovereign Republic with a presidential regime, the President being a Greek and the Vice-President being a Turk elected by the Greek and Turkish Communities of Cyprus respectively; and there follow numerous provisions that establish the bicommunal character of the State. Thus, the two Communities are first defined, and an equal status is accorded to them with regard to a variety of matters, including the official languages of the Republic, the choice of its flag, the right to fly the national flag of Greece or Turkey as the case may be, the celebration of Greek and Turkish national holidays, and many others. Further provisions entrench the recognition of the two Communities’ separate existence, particularly in the political and cultural areas. As a consequence, to take but two examples, one very significant and the other almost comical, all elections take place on the basis of separate communal electoral lists and separate voting, and sound and vision broadcasting hours are allocated between the two Communities according to a complicated formula.

Additionally, the Constitution provides for an exclusively communal level of political and social activity. It does so by demarcating special communal competencies and jurisdictions, and by establishing organs and structures that are purely communal in representation and function. Because of this, provision is made for two Communal Chambers, elected separately by the two Communities and having exclusive legislative competence with regard to religious, educational, cultural and teaching matters, personal status, the

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composition of courts dealing with civil disputes relating to personal status and to religious matters, and matters “where the interests and institutions are of purely communal nature”. With regard to all these matters, the two Communal Chambers are declared to have power to impose direct taxation on the members of their respective Communities, and are also given competence both to direct policy within their communal domain and to exercise administrative powers in the manner that, and through such persons as, may be provided by a communal law, provided that no law or decision of a Communal Chamber would contain anything contrary to the interests of the security of the Republic or its constitutional order, or to the fundamental rights and liberties guaranteed by the Constitution. As is apparent, the Communal Chambers, entrusted with jurisdiction over communal matters, are special legislative assemblies, their range of competence being limited by reference to two general criteria, the subject matter of legislation and the communal status of the persons to whom their enactments are addressed.

In this connection one should also note the provision regarding the creation of separate municipalities in the five largest towns of the Republic. Whereas in all other matters what is established is a functional separation of powers, in respect of the municipalities the relevant provisions are based on a supposed territorial separation of the two Communities.

Finally, the two Communities are accorded rights of special relationship with Greece and Turkey respectively. It is thus provided that the two Communities have the right to receive subsidies from the Greek and Turkish Governments for institutions and purposes of education, culture, athletics and charity, and, where necessary, Greece and Turkey may also provide schoolmasters and clergymen for the functioning of the relevant communal institutions. Education and culture are therefore viewed as strictly communal concerns, which in turn mean that no state responsibility in this connection is recognised and no effort is made to integrate communal institutions and processes within the scope of state activity. Education in particular is obviously conceived of in a very narrow sense, as simply the transmission of communal cultural and religious values from which the State must strictly abstain.

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When one turns to an examination of the political system and its distribution of governmental powers, what becomes especially noticeable is that almost all state organs are designed to ensure the participation of the two Communities as such in both their composition and functioning. The basis and extent of this participation vary from organ to organ.

(i) The Executive

In the area of the Executive, there is both a Greek President and a Turkish Vice-President. The President and the Vice-President are elected separately by universal and secret ballot by the Greek and Turkish Communities respectively. In the event of the temporary absence or incapacity, or of any vacancy in the office of the President or of the Vice-President of the Republic, the President of the House of Representatives (who is a Greek Cypriot) and the Vice-President of the House of Representatives (who is a Turkish Cypriot) shall act for the President and the Vice-President respectively. There was never an arrangement whereby the Turkish Vice-President would deputise for, or act instead of, the Greek President. The President and the Vice-President of the Republic jointly exercise executive power in respect of a number of subjects set out in the Constitution, though in respect of certain other subjects they exercise the necessary power and competence separately, including the right of recourse to the Supreme Constitutional Court on a number of matters and occasions, addressing messages to the House of Representatives and the exercise of the prerogative of mercy in respect of members belonging to their own Community. More importantly, the President and the Vice-President of the Republic, either jointly or separately, have “the right of return” of any law or decision of the House of Representatives or of the Council of Ministers to the House of Representatives and the Council of Ministers “for reconsideration” as well as “the right of final veto” in respect of any law or decision of the House of Representatives or any decision of the Council of Ministers “relating to foreign affairs, defence or security”. It is further provided, in a rather obscure provision, that the President and the Vice-President jointly “ensure” executive power and have, for this purpose, a Council of Ministers composed of seven Greek Ministers and three Turkish Ministers. These Ministers should be designated separately by the President and the Vice-President, who shall then appoint them by instrument signed by them both, and may be dismissed at will by the relevant appointing authority, namely the President in the case

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of Greek Ministers and the Vice-President in the case of Turkish Ministers. It is further provided that the decisions of the Council of Ministers shall be taken by absolute majority and must, unless the right of veto or return is exercised by the President or the Vice-President, be promulgated immediately by them both. In brief, the Council of Ministers is the highest organ in the Republic for the formulation and exercise of executive power in all respects except for the specific subjects and authorities allotted to the President and the Vice-President of the Republic, to Ministers and to the Communal Chambers.

(ii) The Legislative Power

As regards legislative power, it is provided that this shall be exercised by the House of Representatives, consisting of 50 representatives, of whom 35 should be Greek and 15 Turkish. Legislative power shall be exercised “in all matters except those expressly reserved to the Communal Chambers”. Further, the President of the House is to be a Greek, to be elected by the Greek representatives, and the Vice-President must be a Turk, to be elected by the Turkish representatives. In the case of a vacancy in either office, an election shall take place with all due speed; and in the case of the temporary absence of the President or the Vice-President of the House, the relevant functions shall be performed by the eldest representative of the Community to which the specific office “belonged”. The House cannot be dissolved either by the President or the Vice-President of the Republic but only by its own decision. Finally, the laws and decisions of the House of Representatives shall be passed by a simple majority of the representatives present and voting. However, “any modification of the Electoral Law and the adoption of any Law relating to municipalities and of any Law imposing duties or taxes” require “a separate simple majority” of the representatives elected by the Greek and the Turkish Communities respectively taking part in the vote.

(iii) The Judiciary

In the area of the Judiciary, authority is vested under the 1960 Constitution in the Supreme Constitutional Court and the High Court.

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The Supreme Constitutional Court is to be composed of three judges, a Greek, a Turk and a neutral judge, the neutral judge to be the President. The main jurisdiction of the Supreme Constitutional Court relates to the determination whether a law or decision of the House of Representatives is, either in toto or in any part, contrary or repugnant to any provision of the Constitution. If the law or decision is declared by the Supreme Constitutional Court to be unconstitutional, the law or decision is annulled. There are various provisions in the Constitution enabling the President and the Vice-President, together or separately, to refer proposed laws and decisions to the Court for judicial examination prior to their promulgation. The Supreme Constitutional Court furthermore has exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, act or omission of any organ, authority or person exercising any executive or administrative authority is contrary to the Constitution or any law, or is made in excess or abuse of power, whereupon the Court may confirm or annul such decision or act, or declare that such omission ought not to have been made and that whatever has been omitted should have been performed. The jurisdiction thus given to the Supreme Constitutional Court is similar to the revisional jurisdiction of the Conseil d’Etat in France or the Council of State in Greece, the decisions of which have been guiding the Supreme Constitutional Court in the exercise of its administrative jurisdiction. Any decision of the Supreme Constitutional Court on any matter within its jurisdiction is binding on all courts, organs, authorities and persons in the Republic.

The High Court consists of two Greeks, one Turk and a neutral President, all appointed by the President and the Vice-President of the Republic acting together. They decide by majority, but in the case of an equality of votes the neutral President has a second vote. In the event of the temporary absence or incapacity of the President of the High Court, he shall be replaced by the President of the Supreme Constitutional Court and vice versa. The High Court is the highest appellate court in the Republic and also has original and revisional jurisdiction, as provided in the Constitution or may be provided by a law, and it also has power to issue orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Furthermore, the High Court has jurisdiction to determine the composition of a court which is to try civil or criminal cases in which the parties belong to different Communities.

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A remarkable arrangement was adopted and operated in the area of the administration of justice, in view of the intercommunal nature of Cypriot society. A civil or criminal case in which the parties or the accused and the complainant all belong to one Community shall be tried by a court the judge or judges of which shall belong to such Community; and in the event that the parties or the accused and the complainant belong to different Communities, the composition of the court shall be determined by the High Court. Moreover, the execution of any judgment of a court composed of judges belonging to one Community shall be carried out through officers belonging to such Community. The High Court also constitutes the Supreme Council of Judicature for the appointment, transfer and removal of, and disciplinary control over, judges of the subordinate courts. The disciplinary control over the judges of the High Court is exercised by the Supreme Constitutional Court and over the Judges of the Supreme Constitutional Court by the High Court.

(iv) The Public Service

The Public Service under the 1960 Constitution was to be composed of Greek and Turkish Cypriots according to a ratio of 7:3. This same ratio was also prescribed for the Security Forces of the Republic, these being divided into the Police and the Gendarmerie. In the armed forces the relevant ratio was 6:4. In charge of appointments to the Public Service was to be a Public Service Commission consisting of ten members (a Chairman and nine other members appointed for a term of six years by the President and the Vice-President of the Republic acting together). Of the ten members of the Commission, seven were to be Greek Cypriots and three Turkish Cypriots. In general, the decisions of the Commission were to be taken by simple majority, but this was qualified by other complex and detailed provisions, making it necessary that in matters of appointment, promotions and transfers, and with regard to the exercise of disciplinary control, this majority had to include a minimum number of Greek and Turkish votes, depending on whether the decision related to a Greek or a Turk. In short, a power of veto was given to the Greek or Turkish members of the Public Service Commission to frustrate majority decisions on the basis of communal considerations.

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(v) Independent Officers of the Republic

In the case of the “Independent Officers” of the Republic, namely the Attorney-General, the Auditor-General and the Governor of the Issuing Bank, as in the case of the Heads of the Army, the Police and the Gendarmerie, the relevant appointments could by and large be made from either Community. These appointments were to be made by both the President and the Vice-President of the Republic acting together, but what was significant was that the holder of the office had to have a Deputy belonging to the other Community. Accordingly, there was to be an Attorney-General and a Deputy Attorney-General, each from one Community, and the same applied to the other independent offices set up under the Constitution.

A CRITICAL APPRAISAL

The 1960 Constitution has unique features and striking characteristics that, without exaggeration, virtually put it in a class of its own amongst the Constitutions of the world.

Its principal feature is Communalism, and more particularly that the two Communities of Cyprus should retain their political separateness and participate as such in the processes of government and administration. As has already been seen, communal participation in governmental organs under the 1960 Constitution takes a number of forms. In some it is represented by numerical equality, as in the Supreme Constitutional Court; elsewhere it is based on a fixed ratio that, again, varies with the different organs and departments; and in areas such as the Executive or some of the other independent offices of the Republic, two positions are recognised and set up, and the relevant power is shared between them more or less on a basis of equality.

Another characteristic feature of the 1960 Constitution is that, through a multiplication of checks and balances, most of the major affairs of state are effectively subject to the agreement or concurrence of the representatives of both Communities. Thus, in the area of the Executive, both the President and the Vice-President have the right to delay decisions in many matters and

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to veto them in others, and these powers can be exercised either separately or jointly. So, as mentioned earlier, either the President or the Vice-President may veto a decision of the Council of Ministers concerning foreign affairs, defence or security, or return any other decision for reconsideration. The extraordinary executive right of final veto also extends to any law or decision of the House of Representatives or any part thereof concerning foreign affairs, defence or security. Further, the President and the Vice-President likewise have the right, either separately or jointly, to return or refer any law or decision or any part thereof of the House of Representatives back to the House for reconsideration. In such a case, the House of Representatives must pronounce on the matter so returned within fifteen days, and if the House persists in its decision the President and the Vice-President shall then promulgate the law or decision, as the case may be, unless in the meantime they exercise, separately or jointly, the right of veto or their right of reference to the Supreme Constitutional Court so that the question of constitutionality may finally be adjudicated upon. In addition, a number of decisions or acts within the authority of the President and the Vice-President, such as the choice of flag, the promulgation of legislation and of decisions of the Council of Ministers, the appointment of ministers and of many high public officials, and many others, require the agreement or joint action of both. Very significantly, in the legislative area, as we have already seen, three important classes of legislation, namely any attempted modification of the electoral arrangements, the adoption of any law relating to the municipalities and the enactment of any law imposing duties or taxes, require “a separate simple majority of the representatives elected by the Greek and Turkish Communities respectively taking part in the vote”; separate two-thirds majorities are required for the amendment of those relatively less important articles of the Constitution which are in fact capable of amendment; but a great number of the 1960 Constitution’s provisions are designated as “basic” and are declared to be unamendable.

Another obvious and important feature of the 1960 Constitution is the fragmentation of what might be thought to be integral functions and their dispersal among a number of governmental and communal bodies. Consequently, to take the most obvious and important example, in the area of the Executive there is a bewildering variety of powers allocated to the various executive organs.

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