1. This Opinion deals with two related questions. One is the status
of the two communities, Greek and Turkish, in Cyprus, in relation
to the settlement of the Cyprus question. The other is the interpretation
and significance of Security Council resolutions 541 (1983) and
550 (1984), both of which purported to pronounce unlawful and
invalid the 1983 declaration of independence of the Turkish Republic
of Northern Cyprus ("the TRNC") and called upon States
not to recognise the TRNC.
2. In summary, the Opinion reaches the following conclusions:
Part I (paras. 3-32)
On the basis of an examination of the treaties and other instruments,
including the Cyprus Constitution, concluded in 1959 and 1960,
and of the resolutions of the Security Council and General Assembly,
as well as of statements by the Secretary-General of the United
Nations, it can properly be said that the Turkish Cypriot Community
possesses the same political status as the Greek Cypriot Community,
that the two communities participate in the negotiations for the
settlement of the Cyprus question on an equal footing and that,
it follows, the Greek Cypriot Community should not enjoy any privileged
position in the negotiations, whether on matters of substance
or of procedure, by reason of the fact that it presents itself
as the Government of the Republic of Cyprus.
Part II (paras. 33-53)
(a) Resolutions 541 (1983) and 550 (1984) of the Security Council
in so far, in particular, as they purport to treat the 1983 declaration
by the TRNC of its independent statehood as incompatible with
the 1960 Treaties of Establishment and Guarantee and as being
legally invalid, and to call upon States not to recognise the
TRNC, are legally not soundly based.
(b) The Security Council itself defined its concern with the affairs
of the Republic of Cyprus in terms of the 1960 Constitution and
of the Treaties of Establishment and of Guarantee concluded at
the same time. The resolutions in effect purported to express
legal conclusions based upon what must presumably have appeared
to the Security Council at the time to be valid legal considerations.
But because, as a matter of fact, the action of the Turkish Cypriot
community clearly flowed from and was a reaction to the prior
conduct of the Greek Cypriot community, and because the Greek
Cypriot community owed duties to the Republic of Cyprus and to
the Turkish Cypriot community no less than the latter did to the
former, as a matter of law, no judgement could properly be passed
by the Security Council upon the conduct of one side without at
the same time passing judgement on the conduct of the other.
(c) The Security Council did not adopt this even-handed approach.
Instead it dealt with the action of the Turkish Cypriot community
in isolation. If it had assessed the situation as a whole, it
could not possibly have concluded that the conduct of the Turkish
Cypriot community violated the controlling legal instruments while
the conduct of the Greek Cypriot community did not. Nor could
it have reached any other conclusion than that the action of the
Greek Cypriot community justified the conduct of the Turkish Cypriot
community.
(d) The resolutions of the Security Council were, therefore, tainted
by such a degree of selectivity and incompleteness as to render
them arbitrary and discriminatory, and thus not well founded in
law. It follows that the call to States not to recognise the TRNC
was not legally justified. The action of the Security Council
in this case was quite different to its action in relation to
Rhodesia and the African bantustans where there were no controlling
treaties. Accordingly, pending the settlement of the Cyprus question
by negotiations between the two communities, the Security Council's
call for non-recognition of the TRNC should not be maintained.
(e) It is wrong for the Security Council to express legal opinions
more suited to a judicial than a political body. The Security
Council does not adhere to judicial forms and cannot in the course
of a debate on any situation probe the legal issues with the thoroughness
and fairness of a judicial body. Its decisions should not, therefore,
extend beyond the prescription of specific action aimed at maintaining
or restoring international peace.
PART I. THE STATUS OF THE CYPRIOT COMMUNITIES IN THE CONTEXT
OF THE SETTLEMENT OF THE CYPRUS QUESTION
3. The position of the Greek and Turkish parties in Cyprus in
relation to the settlement of the Cyprus question is really quite
straightforward. The two parties are separate communities of equal
standing in the negotiations, each exercising its right to determine
its own future and neither being subordinate to the other in any
material respect. The disparity in numbers between them does not
affect their equality of status in relation to the settlement
of the Cyprus problem.
4. The positions of the communities thus described derives from
a number of basic texts and is uniformly reflected in statements
of the guarantor Powers, Greece, Turkey and the United Kingdom
of Great Britain and Northern Ireland, and in acts of the United
Nations, whether in the form of resolutions of the Security Council
and the General Assembly or in statements of the Secretary-General.
The basic texts
1. Prior to the independence of Cyprus
5. An early acknowledgment of the status of the two communities
and a particularly significant one as emanating from the Colonial
Secretary of Britain, at that time the country responsible for
the governance of Cyprus-is to be found in the statement of Mr.
Lennox-Boyd made in the House of Commons on 19 December 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." This statement was confirmed by the Prime Minister,
Mr. Macmillan, on 26 June 1958, when he also described the Colonial
Secretary's assurances as "pledges".
6. This identification of the essential parties to the Cyprus
situation and of their basic parity was carried through into the
negotiations leading up to the independence of Cyprus. The Memorandum
setting out the Agreed Foundation for the Final Settlement of
the Problem of Cyprus, signed in London on 19 February 1959, took
note "of the Declaration by the Representative of the Greek
Cypriot community and the Representative of the Turkish Cypriot
community that they accept the documents annexed to this Memorandum
as the agreed foundation for the final settlement of the problem
of Cyprus".
7. The Zurich Accord, on which the London Agreement was based,
incorporated the concept of the two communities in the first paragraph
of the document setting out "Basic Structure of the Republic
of Cyprus". This provided that:
"The State of Cyprus shall be a Republic with a presidential
régime, the President being Greek and the Vice-President
Turkish elected by universal suffrage by the Greek and Turkish
communities of the Island respectively."
The attribution to the Greek Cypriot community of the Presidency
and to the Turkish Cypriot community of the Vice-Presidency was
an understandable reflection of the greater numerical size of
the Greek Cypriot community. But it contained no statement or
acknowledgment of any superior constitutional status for the Greek
Cypriot community. Indeed, the "Basic Structure" is
replete with provisions specifically assuring the respective rights
of each of the two communities and providing for checks and balances
to assure the rights of each. For example, it specifies a Council
of Ministers composed of seven Greek Ministers and three Turkish
Ministers, it vests executive authority in the President and Vice-President
and grants them each a right of veto over decisions of the Council
of Ministers and laws and decisions of the House of Representatives,
in laying down that the House of Representatives should be elected
in the proportion of 7 per cent for the Greek community and 30
per cent for the Turkish community, in the establishment of Communal
Chambers for each community, in the specification that the Civil
Service should also be composed as to 70 per cent of Greeks and
as to 30 per cent of Turks, and so on.
2. The Cyprus Constitution of 1960
8. All the features of the Basic Structure were immediately implemented
in many Articles of the Constitution of Cyprus, notably Articles
1, 2, 46-51, 57, 59, 60, 62, 67, 72, 73, 77, 86-111, 123, 125,
133, 153, 159,171 and 173. Moreover, Article 182 provided that
the Basic Articles of the Constitution (which were listed in Annex
III and by and large are those listed above) could not in any
way be amended. Article 185 provided that the territory of the
Republic is "one and indivisible". It also excluded
"the integral or partial union of Cyprus with any other State
or the separatist independence". This provision was intended
to prevent any Enosis or union with Greece by the Greek Cypriots
and any union with Turkey by the Turkish Cypriots.
3. The internationalisation of the Constitution: the Treaties
of Establishment and Guarantee
9. These fundamental elements of the Cyprus Constitution were
lifted onto the plane of international law by treaties contemporaneously
concluded between Cyprus, Greece, Turkey and the United Kingdom.
The Treaty of Establishment defined the territory of the Republic
of Cyprus and contained a Preamble expressing the commitment of
all the Parties to the maintenance of the status of the two communities
by declaring their desire "to make provision to give effect
to the Declarations" made by, inter alia, "the Representative
of the Greek Cypriot Community and by the Representative of the
Turkish Cypriot Community". It also contained-in a manner
binding all parties-acknowledgment of the entitlement of the United
Kingdom to retain the so-called "Sovereign Base Areas".
10. Even more direct and explicit in its terms was the Treaty
of Guarantee, the parties to which were the Republic of Cyprus
of the one part and Greece, Turkey and the United Kingdom of the
other part. In the Preamble they
- stated
"that the recognition and maintenance of the independence,
territorial integrity and security of the Republic of Cyprus,
as established and regulated by the Basic Articles of its Constitution,
are in their common interest" (emphasis supplied) and
- expressed their desire
"to cooperate to ensure respect for the state of affairs
created by that Constitution".
11. The operative part contained three articles of dominant importance.
12. In the first, the Republic of Cyprus undertook to ensure the
maintenance of "respect for its Constitution" as well
as not to participate in any political or economic union with
any State. (Art. 1)
13. In the second, Greece, Turkey and the United Kingdom, after
noting the undertakings of the Republic of Cyprus, recognised
and guaranteed "the state of affairs established by the Basic
Articles of its [of Cyprus] Constitution" (Art. 2)
14. In the third, Greece, Turkey and the United Kingdom undertook
that, in the event of a breach of the provisions of the Treaty,
they would consult together.
"In so far as common or concerted action may 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." (Art. 4)
15. In addition, Cyprus, Greece and Turkey undertook to respect
the integrity of the British Sovereign Base Areas and to guarantee
the use and enjoyment by the United Kingdom of its rights therein.
16. Thus, an essential and inescapable ingredient of the coming
into being of the Republic of Cyprus was the concept of the balanced
and guaranteed participation of both communities, Turkish no less
than Greek, in every basic aspect of the Government of Cyprus.
The exclusion from the governmental process of Cyprus of one or
the other of the communities would mean that the Government so
functioning would not be the Government of the Republic of Cyprus
as contemplated and established by the international settlement
and treaties concluded in 1960. Any such limping Government would
lack constitutional legitimacy and, in so far as it claimed to
represent the Republic of Cyprus, would as a matter of international
law be in breach of the fundamental undertakings on the international
plane given by the Republic in the 1960 Treaties regarding the
bi-communal character of the Republic and its Government.
4. Recognition by the United Nations of the equal status
of the Greek and Turkish Cypriot communities
17. With the one exception that will be examined more closely
in part II of this Opinion (para. 33 and following), the practice
of the United Nations has been strikingly uniform in its acknowledgment
that the Cyprus problem involves the two communities and that
in this involvement they stand on a footing of equality. This
practice takes the form of resolutions of the Security Council
and of the General Assembly, and of reports of the Secretary-General.
18. At the time of its first consideration of the problem in 1964
the Security Council noted the special position of the communities.
In its resolution of 4 March 1964, the Security Council called
upon "the communities in Cyprus and their leaders to act
with the utmost restraint" and recommended that the Secretary-General
should appoint a mediator who should use his best endeavours "with
the representatives of the communities" to promote a settlement
(S/5575).
19. The acceptance by the Security Council of the primacy of the
Constitution of Cyprus in the resolution of the problem and, therefore,
of the entitlement of the Turkish Cypriot community to full participation
in the government of Cyprus, is shown in the Security Council's
resolution 353 (1974) of 20 July 1974, following upon the Greek
coup 15 July 1974 and the intervention by Turkey in the exercise
of its rights as a guarantor of the 1960 settlement. There, the
preamble declared the concern of the Council "about the necessity
to restore the constitutional structure of the Republic of Cyprus,
established and guaranteed by international agreements".
It may be noted, parenthetically, that that concern, was reiterated
10 days later in the Geneva Declaration issued by the Foreign
Ministers of Greece, Turkey and the United Kingdom when they urged
that "negotiations should be carried on to secure the restoration
of peace in the area and the re-establishment of constitutional
government in Cyprus". The Foreign Ministers also acknowledged
the status of the communities by agreeing "that representatives
of the Greek Cypriot and Turkish Cypriot Communities should, at
an early stage, participate in the talks relating to the Constitution",
including the question "of an immediate return to constitutional
legitimacy". Lastly, they "noted the existence in practice
in the Republic of Cyprus of two autonomous administrations, that
of the Greek Cypriot community and that of the Turkish Cypriot
community".
20. On 30 August 1974, the Security Council again acknowledged
the role of the two communities by expressing its appreciation
to the Secretary-General for the part he played in bringing about
talks between the leaders of the two communities (resolution 361
(1974).
21. Later in the same year, the General Assembly entered the picture
by adopting a resolution that, among other things, stated that
it "considers that the constitutional system of the Republic
of Cyprus concerns the Greek Cypriot and Turkish Cypriot communities"
and "commends the contact and negotiations taking place on
an equal footing, with the good offices of the Secretary-General,
between the representatives of the two communities, and calls
for their continuation with a view to reaching freely a mutually
acceptable political settlement, based on their fundamental and
legitimate rights" (General Assembly resolution 3212 (XXIX)
of 1 November 1974). This resolution was endorsed by the Security
Council in resolution 365 (1974) of 13 December 1974.
22. On 13 February 1975, the Turkish Cypriot community proclaimed
the Turkish Federated State of Cyprus ("TFSC"). According
to the Introduction to the text of the Constitution of the TFSC
published on 1, July 1975 the Turkish Cypriots had by February
1975 found that, having regard to developments since 1963,
"It was absolutely necessary for the Turkish Cypriot Community
to make a fundamental re-organisation of its internal structure
in the light of the large region which it had to administer".
The Security Council expressed "regret" at this development
"as, inter alia, tending to compromise the continuation of
negotiations between the representatives of the two communities
on an equal footing" (resolution 367 (1975), para. 2).
There is, of course, an inherent contradiction in the resolution
in so far as, on the one hand, it stresses negotiations between
the communities "on an equal footing" and, on the other,
it regrets the assertion by the Turkish Cyriot community of the
quality of statehood that evinced the entitlement and need of
that community to possess equal standing as a State with the Greek
Cypriot community. But in any event, it is sufficient to note
the continuing identification by the Security Council of the role
of the two communities on an equal footing.
23. Throughout this period the approach of the Secretary-General
to the two sides in the dispute had consistently been on the basis
that the talks were between the two communities, not between the
Republic of Cyprus and some secessionist body. His approach is
reflected in his interim report on discussions regarding the powers
and functions of a federal government. This was expressed in terms
of his having "met.... with the representatives of the Greek
Cypriot and Turkish Cypriot communities" (United Nations
document S/11789 of 5 August 1975). Also, in his report of 8 December
1975 (S/11900 and Add.
1) the Secretary-General expressed the view that in the then circumstances
the best available means of making progress towards a settlement
"is through continued talks between the representatives of
the two communities".
24. This view was echoed in General Assembly resolution 3395 (XXX)
of 20 November 1975, when the Assembly called "for the immediate
resumption in a meaningful and constructive manner of the negotiations
between the representatives of the two communities, under the
auspices of the Secretary General, to be conducted freely on an
equal footing with a view to reaching a mutually acceptable agreement
based on their fundamental and legitimate rights".
For its part, the Security Council endorsed this wording by repeating
it in the preambles to resolutions 391 (1976), 401 (1976) and
410 (1977).
25. In the formal outcome of the ensuing discussions between the
two communities there was no departure from the concept of negotiation
on an equal footing. The "High-Level Agreement" of 12
February 1977 between President Makarios and President Denktas
declared that "we are seeking an independent, non-aligned,
bi-communal Federal Republic". Bi-zonality was also accepted:
"the territory under the administration of each community
should be discussed...."
26. Later in the same year the Security Council again called upon
"the representatives of the two communities" to resume
negotiations (resolution 414 (1977) of 15 September 1977), as
did the General Assembly in the by now well-hallowed phrase "negotiations
between the representatives of the two communities, to be conducted
freely on an equal footing" (resolution 32/15 of 9 November
1977).
27. The next High-Level Agreement (the so-called "10-Point
Agreement") of 19 May 1979 between President Denktas and
President Kyprianou in no way departed from this approach. Even
though the Agreement did not restate the approach expressly, it
accepted it impliedly. This Agreement was referred to in General
Assembly resolution 34/30 of 20 November 1979 when "the representatives
of the two communities" were called on to resume negotiations
"on an equal footing". Similar wording also appeared
in General Assembly resolution 37/253 of 13 May 1983.
28. There began in December 1981 series of Security Council resolutions
which, in renewing the mandate of UNFICYP (as many resolutions
had previously done) also noted that "the parties have resumed
their intercommunal talks". (See resolutions 495 (1981),
510 (1982), 526 (1982) and 534 (1983).)
29. In short, for the period ending in November 1983 (when the
Turkish Cypriot community declared the establishment of the TRNC),
there is a clear pattern of acknowledgment by the United Nations
of the separate status of the two communities in Cyprus, of the
requirement that they should negotiate on ` `an equal footing"
and that the eventual solution should take form of a unified state,
albeit bi-zonal in character.
30. As this exposition of the position of the United Nations regarding
the status of the Cypriot communities has so far been presented
in chronological order, it might be expected that the next item
for mention would be the developments in the United Nations following,
and related to, the declaration of the independence of the TRNC
on 15 November 1983. However, this event occasioned the adoption
of views in the United Nations which, upon closer scrutiny, appear
not to be fully consistent with the main trend of United Nations
emphasis upon the separate but equal status of the two communities.
For this reason, it will be convenient briefly to postpone the
treatment of that episode to part II of this Opinion.
31. The remainder of what needs to be said about the approach
of the United Nations to the status of the two communities is
brief. In general, not only has the United Nations not departed
from the pattern established before 1983; it has in fact reiterated
its emphasis upon the equal status of the two communities. Thus,
in the Secretary-General's "Talking points" as delivered
at his Vienna meeting with the representatives of the two sides
on 6 and 7 August 1984, he said (emphasis supplied):
"As regards the establishment of a central government for
the federal republic, it will be politically imperative to find
a proper balance between the equal political status of the
two communities, the unity of the country, and the functional
requirements of a government capable of fulfilling effectively
the powers assigned to it."
This approach has marked all the Secretary-General's contributions
since that date including, for example, the "Draft Framework
Agreement on Cyprus" presented by him on 29 March 1986. Again,
in his opening statement at the meeting held in New York in February
1990, he said:
"Cyprus is the common home of the Greek Cypriot community
and of the Turkish Cypriot community. Their relationship is not
one of majority and minority, but one of two communities in the
state of Cyprus. The mandate given to me by the Security Council
makes it clear that my mission of good offices is with the two
communities. My mandate is also explicit that the participation
of the two communities in this process is on an equal footing."
(S/21183, p. 7)
Later in the statement the Secretary-General also said:
"The political equality of the two communities in and the
bicommunal nature of the federation need to be acknowledged. While
political equality does not mean equal numerical participation
in all federal government branches and administration, it should
be reflected inter alia in various ways: ...and in the equality
and identical powers and functions of the two federated states."
(ibid.)
32. Most recently, the Security Council, in its resolution of
12 March 1990 (649 (1990) called upon
"the leaders of the two communities to pursue their efforts
to reach freely a mutually acceptable solution providing for the
establishment of a federation that will be bi-communal as regards
the constitutional aspects and bi-zonal as regards the
territorial aspects in line with the present resolution
and their 1977 and 1979 high-level agreements, and to cooperate,
on an equal footing, with the Secretary-General in completing,
in the first instance and on an urgent basis, an outline of an
overall agreement, as agreed in June 1989 ".
PART II. THE ESTABLISHMENT OF THE TRNC AND SECURITY COUNCIL
RESOLUTIONS 541 (1983) AND 550 (1986)
33. On 15 November 1983 the establishment of the TRNC as an independent
State was declared by the Turkish Cypriot people. This took a
step further the process of separate political identification
of the Turkish Cypriot community that had been initiated on 13
February 1975 by the proclamation of the TFSC. The difference
now was that, whereas the TFSC was essentially a restructuring
"of the autonomous Turkish Cypriot administration" (see
the statement of Mr. Denktas issued on 13 February 1975) that
had come into being in the period since the subversion of the
Constitution by the Greek Cypriots in December 1963, and made
no formal claim to independence, the TRNC was declared to be an
independent State.
34. The reaction of the Security Council was expressed on two
occasions. The first was in resolution 541 (1983) of 18 November
1983. The Security Council stated its "concern" at the
Declaration, "considered" that the Declaration was "incompatible
with the 1960 Treaty concerning the establishment of the Republic
of Cyprus and the 1960 Treaty of Guarantee", "deplored.....
the purported secession of part of the Republic of Cyprus"
and concluded that the Declaration was "legally invalid",
called for its withdrawal and called upon all states not to recognise
any Cypriot State other than the Republic of Cyprus.
35. The second Security Council resolution, adopted six months
later on 11 May 1984, was resolution 550 (1984). After declaring
in its preambular part the concern of the Security Council at
the "further secessionist acts" it
"condemns all secessionist actions, including the purported
exchange of ambassadors between Turkey and the Turkish Cypriot
leadership, declares them illegal and invalid and calls for their
immediate withdrawal".
The Security Council also reiterated its call to all States not
to recognise "the purported State" of the TRNC.
36. It is evident that the position of the Security Council in
relation to the TRNC is predicated upon the Council's assessment
of the legal position. This was declared in the resolutions in
two important legal findings which are essentially as follows;
1. The proposition that the establishment of the TRNC "is
incompatible with the 1960 Treaty concerning the establishment
of Cyprus and the 1960 Treaty of Guarantee"
(a) "The 1960 Treaty concerning the establishment of
Cyprus"
37. This is, presumably, to be taken as a reference to the treaty
that is generally known as "the Treaty of Establishment".
To the extent that this Treaty can be said to be binding upon
the Turkish Cypriot community (since, given the denial by the
Security Council of the existence of the TRNC, the Treaty clearly
cannot be binding on the latter entity), this must derive from
the preambular provision in which the stated parties (the United
Kingdom, Greece, Turkey and the Republic of Cyprus) express their
desire
"to make provisions to give effect to the.... Declarations
made at the [London] Conference... by the Representative of the
Greek Cypriot Community and by the Representative of the Turkish
Cypriot Community".4
The operative points of these declarations were that each representative
"accepts the documents and declarations as the agreed foundation
for the final settlement of the problem of Cyprus".
The principal item in the "documents and declarations"
there referred to included the "Basic Structure of the Republic
of Crus (already referred to, see above, para. 7), all the elements
of which were carried through into the Cyprus Constitution of
1960. The absolutely fundamental feature of this Structure was
the joint participation in the Government of Cyprus of both the
Greek and the Turkish Cypriot communities in the precise, detailed
and, above all, balanced manner set out in those documents. Now,
while it is obviously true that the 1983 proclamation of the existence
of the TRNC as an independent State is incompatible with that
structure, it is (and, equally, was at the time of the adoption
of the Security Council resolutions 541 (1983) and 550 (1984)
absurd to disregard the undoubted fact that the dominant and controlling
features of the Basic Structure and the Constitution had been
inoperative for a score of years, since the time (in 1963-1964)
when the Greek Cypriot community had effectively excluded the
Turkish Cypriot community from the scheme of power-sharing established
by the Basic Structure and the Constitution.
38. This is not to say that the 1960 Treaty of Establishment was
no longer in force in 1983. It is only to say that if the Security
Council attached importance to the idea of compatibility of the
conduct of the Turkish Cypriot community with the Treaty, it should
have attached the same importance to the compatibility with that
Treaty of the conduct of the Greek Cypriot community. By failing
to do so, the Security Council not only signally failed to apply
in an objective and even-handed manner the substantive legal requirements
to which it had itself made reference; it also failed to adhere
to the standard of equal treatment that it had repeatedly affirmed
in its use, in relation to the negotiations between the two sides,
of the words "on an equal footing".
39. In short, if the Security Council had taken a whole (as opposed
to an incomplete) view of the situation in 1983, it should not
have found that the TRNC Declaration was "incompatible"
with the 1960 Treaty of Establishment without also having found
that the conduct of the Greek Cypriot community had for the previous
20 years been "incompatible" with the 1960 settlement
and, moreover, that it was that conduct of the Greek Cypriot community
that had led directly to the reaction of the Turkish Cypriot community.
There can be no legal basis for holding one party to the terms
of an agreement without predicating the requirement of an equal
degree of compliance by the other. There should be recalled in
this connection the statement by the International Court of Justice
in the Namibia Advisory Opinion (ICJ Reports 1971, at p. 46) of
what it termed "one of the fundamental principles" governing
the international' relationship involved there:
"... a party which disowns or does not fulfil its
own obligations cannot be recognised as retaining the rights which
it claims to derive from the relationship".
That statement is equally applicable to the Cyprus situation.
40. The failure of the Security Council to conform to these basic
and controlling legal considerations undermines comprehensively
the rationality and persuasiveness of its resolutions and, hence,
the legal worth of those resolutions. The fact that seven years
have passed since the adoption of those resolutions cannot serve
to validate the unsound legal approach then adopted. There is
nothing to prevent the Security Council from now endeavouring
to put matters right by seeking to match the approach adopted
in these two resolutions to the undoubted historical facts; indeed
every legal consideration militates in favour of the adoption
by the Security Council of a more principled position that would
make a positive contribution to the settlement of the question,
namely, the retraction of its denial of the legality and validity
of the action of the Turkish Cypriot community and of its call
to refrain from recognition of the TRNC.s
(b) "The 1960 Treaty of Guarantee"
41. Security Council resolution 541 (1983) also refers to the
incompatibility of the Turkish Cypriot action with the 1960 Treaty
of Guarantee. All the observations made above regarding the 1960
Treaty of Establishment are equally applicable to this Treaty.
In addition, however, it is appropriate to note that this Treaty,
even more expressly than the Treaty of Establishment, gives international
standing to the Basic Structure and the Constitution of 1960.
Thus, in the Preamble, the Parties state the consideration.
"that the recognition and maintenance of the independence,
territorial integrity and security of the Republic of Cyprus,
as established and regulated by the Basic Articles of its Constitution,
are in their common interest ".
The reason for giving emphasis in the phrase just quoted to the
words "as established and regulated by the Basic Articles
of its Constitution" is that the effect of these words is
to define that "Republic of Cyprus" of which the independence
and territorial integrity is to be recognised and maintained.
In terms of the Treaty of Guarantee, a Cyprus that is not regulated
by the Basic Articles of its Constitution is not "the Republic
of Cyprus" at all and it follows that the assertion of the
independence of the TRNC cannot be an unlawful secession.
42. Reference must also be made to Article 1 of the same Treaty:
"The Republic of Cyprus undertakes to ensure the maintenance
of its independence, territorial integrity and security, as well
as respect for its Constitution.
It undertakes not to participate, in whole or in part, in any
political or economic union with any State whatsoever. It accordingly
declares prohibited any activity likely to promote, directly or
indirectly, either union with any other State or partition of
the Island."
43. The Security Council has evidently taken the view that this
Treaty is directly binding upon the Turkish Cypriot community,
otherwise the Security Council could not have deemed the 1983
Declaration of the TRNC to be "incompatible" with that
Treaty. But if that is the case and if the Treaty is binding on
the Turkish Cypriot community, it must be at least as binding
on the Greek Cypriot community, if not more so, because it is
that community which is holding itself out to be "the Republic
of Cyprus".
44. The Security Council was, therefore, in error in failing to
apply the terms of the Treaty of Guarantee equally to both communities.
It is, in the historical circumstances of the situation, impossible
to attribute a responsibility to the Turkish Cypriot community
for conduct said to be "incompatible" with the Treaty
of Guarantee without, at the same time, assessing the relevance
to the situation of the conduct of the Greek Cypriot community
and, in particular, its deliberate disregard of the terms of the
Cyprus Constitution throughout the period of 20 years preceding
the establishment of the TRNC.
2. The proposition that the 1983 Declaration of the TRNC is
"legally invalid"
45. The express statement by the Security, both in paragraph 2
of resolution 541 (1983) and in paragraph 2 of resolution 550
(1984) that the 1983 Declaration is "legally invalid"
requires consideration of the question: by reference to what law
is this legal invalidity to be determined? There are only two
possibilities: one is the constitutional law of Cyprus; the other
is international law.
46. As regards the constitutional law of Cyprus, it will be clear
that no assessment of the legal validity of the conduct of the
Turkish Cypriot community can be carried out without a comparable
consideration of the legal validity of the conduct of the Greek
Cypriot community. The two legal situations are necessarily interconnected.
Any assessment of the one without a corresponding assessment of
the other is, therefore, bound to be inherently flawed. But more
than that, as already stated, any consideration of the one without
consideration of the other contradicts the policy reflected in
the Security Council s own declared position that the parties
must negotiate "on an equal footing -an approach which logically
carries with it the principle, necessarily part of any lawyer's
approach to the consideration of an issue between two parties,
that both must be treated with perfect equality.
47. There may, of course, be some who attach special weight to
the fact that the Greek Cypriots are in a numerical majority in
Cyprus. That consideration may be relevant to the political act
of distributing power and positions within the Constitution. This
is shown by the fact that, for example, the 1960 Constitution
provides that the Council of Ministers shall be composed of seven
Greek Ministers and three Turkish Ministers (Art. 46) and that
70 per cent of the members of the House of Representatives shall
be elected by the Greek community and 30 per cent by the Turkish
community. But inequality of numbers cannot generate inequality
of obligation. The fact that one community may constitutionally
be entitled to more Ministers or more representatives than the
other does not mean there is some corresponding entitlement the
more freely to reject the duty of compliance with an agreed Constitution.
The numerical majority of the Greek community cannot be invoked
to justify fundamental departures from the Constitution by that
community while insistence is still placed on conformity by the
Turkish community with its obligations under the same instrument.
48. In so far as the "illegality" of the TRNC action
is thought to derive from international law, the consideration
already given above to the relevance and operation of the 1960
Treaties should be sufficient to dispose of that point.
49. The possibility remains, however, that some may see in the
references to national unity and territorial integrity in the
Declaration on the Granting of Independence to Colonial Countries
and Peoples (General Assembly resolution 1514 (XV) of 1960), and
the Declaration on Principles of International Law concerning
friendly relations and cooperation among states in accordance
with the charter of the United Nations (General Assembly resolution
2625 (XV) of 24 October 1970), a reason for characterising the
TRNC declaration as illegal. No doubt these prescriptions are
of general importance, but the fact of their generality must be
emphasised. In contrast, the present situation is very specific-especially
in the relevance to it of the 1960 Treaties and the Basic Structure
and 1960 Constitution which are endorsed and guaranteed in those
Treaties. It is axiomatic and beyond discussion that treaties
override customary international law. The general terms of the
Declarations on colonialism and on principles of international
law which at best are no more than customary international law-must
give way to the explicit and clear requirements of the relevant
treaties.
50. This same consideration bears with special weight on any supposed
similarity between the present case and the other episodes in
which the Security Council has called upon States not to recognise
certain secessionist or new entities. Such action was taken indirectly
over Katanga and expressly over Rhodesia and the African "bantustans".
But they are totally distinguishable from the present situation.
The principal point of distinction is that they were not affected
by any controlling treaty-in contrast with the role here of the
1960 Treaties of Establishment and of Guarantee. A second point
of distinction is that in the last two of those cases the inhibition
on recognition derived from the fact that the establishment of
the entity involved a continuance, in one or another form, of
the concept of colonialism. That certainly is not true of the
claim to independence by the Turkish Cypriot community.
51. The truth of the matter is that in determining that the establishment
of the TRNC was illegal and invalid, and in attaching to that
determination the sanction that States should not recognise the
TRNC, the Security Council was evidently purporting to act in
a judicial capacity. That is the only proper description of the
conduct of anyone or any body that claims the right to make findings
of "illegality" or "invalidity". Yet in so
acting the Security Council did not behave in the manner appropriate
to the performance of a judicial function. True, it heard both
sides, in the sense that it heard speeches from President Denktas
as well as from the representative of the Greek Cypriot community.
But having regard to the range and complexity of the issues upon
which it ventured directly or indirectly to make a finding, namely,
the conformity with the 1960 Constitution of the conduct of the
two communities, its scrutiny of the situation was at best superficial.
The judgement, in the form of a draft resolution, was prepared
and was in circulation before the debate even took place-an order
of proceeding that is in no way compatible with the judicial process
of ascertaining facts and weighing arguments before reaching a
reasoned conclusion.
52. It must, of course be acknowledged that the Security Council
is not organised or intended to act as a judicial body. But in
that case, it should be recognised that the conduct of the Security
Council should stop short of passing judgement upon legal issues.
Decisions of the Security Council should be limited to prescribing
a course of action directed towards eliminating the situation
that amounts to a threat to the peace, a breach of the peace or
an act of aggression. That prescription should be founded on the
primary responsibility of the Security Council to maintain international
peace and security. If threshold determinations of law are necessarily
involved, they should only be expressed if they can be subjected
to proper judicial review. Even though this view of the matter
is not one that has commended itself to the Security Council over
the years, the validity of these consideration is such that it
is proper to draw attention to them in the hope that, at least
in this case, the injustice that flows from this practice may
be remedied.
FOOTNOTE