1. I have been asked to advise as a matter of urgency on the legal
justification for the position taken on 28 February, 1990 by the
President of the Turkish Republic of Northern Cyprus, Mr. Denktas,
regarding the wording to be used to describe the participation
by the Turkish Cypriots in any settlement that may be reached
with the Greek Cypriots for the future government of Cyprus.
2. Mr. Denktas noted that whatever the words that may be used
whether communities, peoples, peoples and communities, national
communities, national groups, constituent parties, constituent
partners, or partners- they will not run counter to the view that
each of the parties, in participating in the hoped-for settlement,
is exercising its right of self-determination.
3. The reason for this concern lies in the objection of the Turkish
Cypriot community to any words that may give rise to such implications
as the following: that in these negotiations one group is legally
superior or inferior to the other; that the Greek Cypriot community,
although treated by the United Nations as "the Government
of Cyprus" would by agreeing to a federal-type settlement
be seen as in any way legally bestowing powers upon the Turkish
Cypriot community; or that by entering into a settlement along
the general lines contemplated the Turkish Cypriot community would
in any degree be renouncing its legal and national identity.
4. The Secretary-General of the United Nations responded that
"any change in terminology could alter the conceptual framework
to which all have thus far adhered" and concluded that "we
have an impasse of a substantive kind, which raises questions
regarding the essence of the mandate of good offices given to
me by the Security Council."
5. The question is, therefore, what is the correct interpretation
of the mandate conferred upon the Secretary-General? This is essentially
a matter of the interpretation of Security Council resolution
367 (1975) of 12 March 1975 which, in paragraph 6, requested the
Secretary-General "to undertake a new mission of good offices".
In particular, what is the legal position of those to whom the
Secretary-General was to address his mission?
6. The resolution describes those to whom the Secretary-General
is to render his good offices in three places: in paragraph 2,
the Council regrets certain conduct "as tending to compromise
the continuation of negotiations between the representatives of
the two communities on equal footing"; in paragraph 6, apparently
referring to the same persons, the resolution requires the Secretary-General"
to convene the parties under new agreed procedures"; and,
in paragraph 7, the Security Council called upon "the representatives
of the two communities to cooperate closely with the Secretary-General".
7. There appears to be nothing on the face of that language taken
by itself, to suggest that there is any inequality of status between
the parties or that either of them is doing anything other than
further exercising its right of self-determination by participating
in the settlement negotiations.
8. If, as is correct in the process of interpretation, one looks
to the background of the resolution and to the manner in which
it has subsequently been applied, one finds ample confirmation
for this view.
9. So far as the background is concerned, it must be recalled
that the emergence of Cyprus as an independent State in 1960 was
an act of self-determination. The British Colonial Secretary,
Mr. Lennox-Boyd, described the emerging situation in these terms
in 1956: "... it will be the purpose of Her Majesty's Government
to ensure that any exercise of self-determination should be effected
in such a manner that the Turkish Cypriot community, no less than
the Greek Cypriot community, shall, in the special circumstances
of Cyprus, be given freedom to decide for themselves their future
status. In other words, Her Majesty's Government recognise that
the exercise of self determination in such a mixed population
must include partition among the eventual options". (Statement
in the House of Commons,19 December,1956.) This statement was
confirmed by the Prime Minister, Mr. Macmillan, on 26 June,1958,
who also described the Colonial Secretary's assurances as "pledges".
10. The form taken by this act of self-determination was unique
in character. Neither before nor since has the ending of a colonial
situation been enshrined in a constitution that was guaranteed
in treaty form on the plane of international obligation by the
three members of the United Nations most closely concerned and
countersigned and adopted by the leaders of the two communities
directly affected. This was an evident and necessary reflection
of the uneasy relationship between two peoples divided deeply
by religion, language and culture, and of the apprehension that
each might seek a closer association with the country to which
each had an affinity.
11. Three years later the Greek Cypriot community used its power
to prevent the Turkish Cypriot community from playing its proper
role in the Government of Cyprus. There is also uncontroverted
and incontrovertible evidence that those who led this action had
in mind a further breach of the Treaty of Guarantee, namely, union
with Greece. Thus, not only did the Greek Cypriot community or,
as it claims to be, the Government of the Republic of Cyprus break
the Constitution and violate its pledged word in an absolutely
fundamental way; it also repudiated a solemnly assumed treaty
undertaking which formed an indispensable element in any legal
assessment of its position. Both the United Kingdom and Turkey
protested.
12. The fact that States have been prepared to recognise and to
accord a place in the United Nations to the constitutionally unlawful
Greek Cypriot regime is comparable to the recognition, many times
repeated in the history of international relations, of de facto
governments that have assumed power after a successful insurrection
and repudiation of constitutional norms. But that de facto acceptance
by the international community could not, and did not, in any
way expunge the international illegality or, even more to the
point, deprive the Turkish Cypriot community of its entitlement,
possessed uncommon with the Greek Cypriot community, to the enjoyment
of its right of self-determination.
13. The subsequent condemnation in Security Council resolution
541 (1983) of the exercise of this right by the establishment
of the Turkish Republic of Northern Cyprus as a statal entity
in Northern Cyprus responding to the factual division of the country
and parallel to the one existing in Southern Cyprus is legally
bewildering. If a balanced and proportionate reaction to the breach
of the undertakings given in the Treaty of Guarantee is condemned
by the United Nations, this sets at naught the value of any international
guarantee, no matter by whom given.
14. Be that as it may, events subsequent to resolution 367 confirm
that for the purposes of the ensuing series of negotiations the
two communities regarded themselves, and were regarded by the
United Nations, as being equal in status and that no special rights
were attributable to the Greek Cypriot regime by reason of its
de facto local and international status. It is sufficient to list
some of the most important texts that evidence this position:
the High-Level Agreement between the leaders of the two communities,
1977 and 1979; the Vienna Working Points of 1984; the Draft Framework
Agreement on Cyprus presented by the Secretary-General on 29 March,1986;
the Geneva Accord of 24 August, 1988; and the Opening Statement
by the Secretary-General at the most recent round of talks on
26 February,1990 when, in particular, he stressed that the relationship
between the Greek Cypriot community and the Turkish Cypriot community
"is not one of majority and minority, but one of two communities
in the State of Cyprus" and that "the participation
of the two communities is on an equal footing."
15. It need hardly be added that there is nothing in intervention
by Turkey in 1974 that changes the legal position. This was a
lawful exercise by Turkey of its rights as a guarantor under
Article IV of the Treaty of Guarantee. That lawfulness was expressly
acknowledged by the Standing Committee of the Consultative Assembly
of the Council of Europe in a resolution on 29 July, 1974 which
referred to the exercise by the Turkish Government of its "right
of intervention in accordance with Article 4 of the Guarantee
Treaty of 1960". The British Government, though not expressing
positive agreement with that view, has never despite repeated
opportunities- denied it; and the Foreign Affairs Committee of
the British House of Commons has said in relation to the British
Government's own position that "there can be no question
that the Treaty makes it perfectly clear that there is a legal
right to intervene". Clearly what Britain is entitled to
do, Turkey is equally entitled to do.
16. Nor is there anything in the situation that suggests that
either side in concluding new arrangements would thereby be exhausting
its inherent right of self-determination. The factor that must
maintain the unity of an internationally and constitutionally
re-established Republic of Cyprus must be the unwavering adherence
of both sides to their promises, not the denial to either side
of its right freely to dispose of its own future.
17. In the light of the above, it does not appear that there is
any legal basis for objecting to the assessment of the position
given by Mr. Denktas.
