I have been asked to give an opinion on the status in international
law of the Turkish Cypriot and Greek Cypriot communities in Cyprus.
Negotiations concerning the relationship between the two communities
in Cyprus have for some time been taking place under the auspices
of the Secretary-General of the United Nations. After a review
of the historical and legal situation of Cyprus, it is my opinion
that the Greek Cypriot and Turkish Cypriot regimes participating
in these negotiations, and the respective communities which they
represent, are presently entitled to exercise equal rights under
international law, including rights of self-determination.
Before considering in detail the legal position of the Greek and
Turkish Cypriots, I wish to make an important point about my use
of terminology in this opinion. I understand that there has been
much discussion between Mr. Denktas, President of the Turkish
Republic of Northern Cyprus, Mr. Vassiliou, President of the (Greek)
Republic of Cyprus, and the Secretary-General of the United Nations,
Mr. Pérez de Cuéllar, about how to refer to the
Greek Cypriots and the Turkish Cypriots, both during the course
of their negotiations and also in the new political order which
it is their aim to establish in Cyprus. In my opinion, whether
these entities are referred to as communities, peoples, constituent
parties, regimes, or by any other term, has no determinative or
conclusive effect on their present international legal status.
Any analysis of the position of the Greek Cypriot and Turkish
Cypriot peoples in international law must begin with the establishment
on the Island of Cyprus, in 1960, of the Republic of Cyprus. The
government of the Republic of Cyprus established in accordance
with the 1960 Constitution succeeded the British colonial administration
as the legitimate government of the territory comprising the island
of Cyprus on 16 August 1990.
The colony of Cyprus achieved its independence following the promulgation
of three multilateral treaties, which in turn evolved from an
earlier document known as the London Memorandum. Each treaty was
signed by representatives of Britain, Greece, Turkey, and, for
the Republic of Cyprus, by representatives of both the Greek Cypriot
community and the Turkish Cypriot community, in their separate
capacities. In the Treaty of Establishment it was contemplated
that the Republic of Cyprus would have sovereignty over the territory
of the former colony, with the exception of two British military
installations. In the Treaty of Guarantee, the signatories undertook
to recognise and guarantee the independence, territorial integrity
and security of the Republic of Cyprus, and "the state of
affairs established by the Basic Articles of its Constitution."
Finally, in the Treaty of Alliance, the signatories undertook
to resist any attack or aggression directed against the independence
or territorial integrity of the Republic of Cyprus.
The Constitution of Cyprus, which entered into force on the same
day as the three treaties, was the product of two prior international
agreements. The "Basic Articles" of the Constitution
were first set out in the Zurich Agreement of 11 February 1959,
between Greece and Turkey. These Basic Articles, which will be
discussed below, largely determined the structure of the Government
of the Republic of Cyprus, including the precise manner in which
power would be shared by the Greek Cypriot and Turkish Cypriot
communities. Representatives of the Greek Cypriot and Turkish
Cypriot communities initialled the Agreement. In the Agreed Measures
to Prepare for the New Arrangements in Cyprus, of 19 February
1959, Greece, Turkey and Britain agreed that a Joint Constitutional
Commission composed of representatives of the Greek Cypriot and
Turkish Cypriot peoples, Greece and Turkey would draw up a final
Constitution incorporating the Basic Articles.
The Constitution thus developed effectively incorporated all of
these international agreements. Article 181 of the Constitution
declares that the Treaties of Guarantee and Alliance "shall
have constitutional force." Article 182 of the Constitution
provides that the Basic Articles, derived from the Zurich Agreement,
"cannot, in any way, be amended, whether by way of variation,
addition or repeal." Article 185 states that "the territory
of the Republic is one and indivisible " and that total or
partial union with any other State or separatist independence
is excluded.
The international agreements by means of which the Republic of
Cyprus was established as a sovereign state and under which the
structure of its government was determined, as well as the Constitution
resulting from them, recognised as binding among the parties the
equal status of the Greek Cypriot and Turkish Cypriot communities,
and their equal rights to an effective role in the government
of their island and in determining their political futures. At
the outset of the negotiations leading to the independence of
Cyprus, the British Colonial Secretary, Mr. Lennox-Boyd, declared:
"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."4 Therefore, in all of these documents rights to
determine their political future were recognised in both the Greek
Cypriot community and the Turkish Cypriot community, and they
in turn pledged to exercise those rights jointly to create a single
state governing all the territory and peoples of Cyprus.
The Basic Articles of the Constitution were carefully drafted
to perpetuate both the recognised equality of the two communities
and their obligation to share the attributes of sovereignty. The
very first article provided that the President of the Republic
would be a Greek Cypriot and the Vice-President would be a Turkish
Cypriot. These officials were to be elected simultaneously but
separately by majority votes of their respective communities.
Unlike most presidents and vice presidents, these two officers
shared most essential executive powers. Most importantly, each
was empowered to veto in whole or in part any law concerning foreign
affairs, defence or security. Article 50. The Council of Ministers,
the House of Representatives, the judiciary, the military and
the civil service were likewise divided between the two communities
in agreed proportions, "independent of any statistical data."
Articles 46, 62, 123, 129, 153. In order to be enacted, most important
laws required concurrent majority votes in the delegations of
the two communities to the House of Representatives. Article 78.
Taken together, these articles assured that neither community
could take significant political action at the national level
without the other's concurrence.
Concomitantly, a second group of constitutional articles gave
the two communities extensive powers of self-government. All legislative
power concerning matters of religion, education, personal status,
municipal institutions and affairs was reserved to the exclusive
competence of a Greek Cypriot and a Turkish Cypriot Communal Chamber,
each elected by and ruling over its respective community. Each
Communal Chamber could appoint judges to hear disputes arising
out of matters under its competence and could raise taxes from
its own people to support its separate programmes. Articles 86
and 87. In addition, separately governed Greek Cypriot and Turkish
Cypriot municipalities were to be created in the five largest
towns in Cyprus. Article 174.
The Republic of Cyprus was duly declared on 16 August 1960, and
promptly recognised by the international community. The Republic
was admitted to the United Nations on 21 September 1960, became
an independent member of the British Commonwealth on 13 March
1961 and became the sixteenth member of the Council of Europe
on 24 May 1961.
Unfortunately, this carefully balanced and internationally sanctioned
regime lasted only a little over three years. On 30 November 1963,
Archbishop Makarios, the duly-elected Greek Cypriot President
of the Republic, proposed to the Guarantor powers thirteen amendments
to the Cypriot Constitution. s These proposed amendments - six
of them to Basic Articles which were declared immutable by treaty
and constitutional provision - had as their obvious purpose the
elimination of the carefully negotiated balance of power between
the two communities. 6 When adopted these thirteen amendments
would decisively shift the balance of power so as to favour the
numerical majority - and hence assure Greek Cypriot rule.
Civil disorder and armed violence broke out throughout the island.
As an element of this crisis, the Turkish Cypriot members of the
Government of the Republic of Cyprus either withdrew or more likely
were forced from their offices. s Shortly thereafter, the Greek
Cypriot members of the government, purporting to act in legitimate
exercise of their offices, enacted all thirteen amendments. They
contended that the Turkish Cypriots could now only be re-admitted
as partners in the administration if they accepted the amendments
passed in their absence. 9 Since the Turkish Cypriot members could
not accept these illegal amendments, they never resumed their
seats in the legislature.
The unilateral usurpation of authority by the Greek Cypriots was
an obvious violation of the Constitution, as well as the treaty
obligations accepted by the Greek Cypriot community. The Greek
Cypriot regime had violated Article 182 of the Constitution, which
stated that the Basic Articles "(could) not, in any way,
be amended, whether by way of variation, addition or repeal,"
and which required concurrent two-thirds votes of the Greek Cypriot
and Turkish Cypriot members of the House of Representatives for
all other amendments. Their actions simultaneously contravened
Article I of the Treaty of Guarantee, in which the Republic of
Cyprus undertook "to ensure ... respect for its Constitution."
Both Britain and Turkey issued diplomatic protests condemning
the amendments as "contrary to the Constitution of the Republic
of Cyprus, which is under the safeguard of international treaties."
o These 13 amendments, and the situation dependent upon them in
the area under Greek Cypriot control, cannot therefore be validly
accorded any international recognition.
From 1964 until the present, the Greek Cypriot regime has claimed
to be the legitimate government of the Republic of Cyprus, with
sovereign right over the whole Island and all of its inhabitants.
There is no legal basis in international law for such a claim.
The formation of a regime founded on the unilateral usurpation
of rights specifically reserved to the Turkish Cypriot people
contravenes the plain language and obvious intent of the Treaty
of Guarantee, the Zurich Agreement and the 1960 Constitution.
The Greek Cypriot regime is neither the government of the "Republic
of Cyprus" originally recognised by the community of nations
in 1960 nor the legitimate successor of that government. The Greek
Cypriot regime therefore had in 1964 and has today no right under
international law to claim that it speaks for the Turkish Cypriot
community or that it wields the sovereign powers that devolved
upon the Republic of Cyprus in 1960.
Whatever the pretensions of the Greek Cypriot regime, the practical
consequence of the events of 1963-1964 was the emergence of parallel
administrative, judicial and legislative organs for each of the
two peoples. Increasingly from 1964 onwards, the Greek Cypriot
regime which purports to be the government of the Republic of
Cyprus has not exercised over the Turkish Cypriot people any of
the significant incidents of sovereign control reserved to the
Government of the Republic of Cyprus in the 1960 Constitution.11
Instead, virtually all decisions governing the conduct of Turkish
Cypriots have been made by the governmental institutions of the
Turkish Cypriot community, and virtually all decisions concerning
the conduct of Greek Cypriots have been made by the governmental
institutions of the Greek Cypriot community. Physically, the two
communities have become increasingly separated.1z
This practice of parallel self-government and physical separation
of the two Cypriot communities continued after the coup of 15
July 1974, staged by elements of the Greek Cypriot National Guard
but foiled by the Turkish intervention, which began on 20 July.
In the Geneva Declaration of 30 July 1974, the Foreign Ministers
of Greece, Turkey and Britain 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." The Turkish interventionl3 could not and did
not alter the equal legal status of the two Cypriot communities,
which derived from the earlier treaties and Constitution; nor
was it the origin of the physical separation of the Greek and
Turkish Cypriot peoples, who had been living as separate, self-governing
communities since at least 1964.
The legal rights of the Turkish Cypriot community predate and
were manifested by the proclamation in 1975 of the Turkish Federated
State of Cyprus. The Turkish Cypriots considered it necessary
to "creat [e] in their own region the legal basis of an order
leading to the establishment of the future independent, Federal
Republic of Cyprus" and reaffirmed that "their final
objective is to unite with the Greek Cypriot community within
the framework of a biregional federation."14 This exactly
describes the form of the federal system toward which the leaders
of the two communities, meeting under the auspices of the Secretary
General of the United Nations, subsequently agreed to negotiate
in their Four Guidelines of 12 February 1977.
Similarly, the long-delayed decision of the Turkish Cypriot Community
in 1983 to declare itself the independent Republic of Northern
Cyprus cannot lessen the rights to self-determination that the
Turkish Cypriot people share equally with the Greek Cypriot people.
For more than 20 years the Turkish Cypriot community has negotiated
in good faith with representatives of the Greek Cypriot community
to come to a lasting political solution to their island's troubles.
The fact that the Turkish Cypriots restrained themselves for 20
years from proclaiming a separate Turkish Cypriot Republic was,
under the circumstances, an act of continuing forbearance, the
exhaustion of which can hardly be condemned, and stands in sharp
contrast to the actions of the Greek Cypriot community in forcibly
dismantling the constitutional Cypriot regime three years after
their specific commitment to preserve it.l6 The events of 1983
are not the source of the Turkish Cypriots' legal rights to determine
their political future and to play an effective role in the government
of the island, nor did they alter those pre-existing legal rights.
Much consequence has been drawn by some observers, and by the
Greek Cypriot community, from the fact that numerous States have
recognised the Greek Cypriot regime as the sole government of
Cyprus. Although certain minimal criteria of statehood are required
by customary international law, the recognition of governments
is, none the less, an act of an inherently political, rather than
legal, character.l7 The mere fact of international recognition,
no matter how widespread, cannot excuse or confer legitimacy upon
the violations of both domestic constitutional law and international
treaty law through which the Greek Cypriot regime usurped the
name as well as the government of the "Republic of Cyprus,"
particularly since it never exercised sovereignty over the whole
island.
In any event, the most that can be said is that the international
community has not withdrawn its recognition of the Republic of
Cyprus established in 1960. The recognition of a government cannot
automatically carry with it the recognition of all future governments
of that state.l9 The Greek Cypriot regime has assumed the title
"Republic of Cyprus" but abandoned the substance. Since
that time, no state has affirmatively recognised a "Greek
Republic of Cyprus" based on the amended constitution. All
they have done is continue to treat Cyprus as a single state.
When the subject of statehood, rather than recognition, is examined,
it is apparent that the territory controlled by the Turkish Cypriot
government is at present no less eligible for statehood than its
Greek Cypriot counterpart. The traditional indicia recognised
by custormay international law for the existence
of a state are: a permanent population, a reasonably well-defined
territory, an effective government, and independence from foreign
control of decision-making, particularly regarding relations with
other states.2o "An entity that satisfies [these] requirements...
is a state whether or not its statehood is formally recognised
by other states."21
Since the Turkish Republic of Northern Cyprus satisfies all the
formal legal prerequisites for statehood,22 it is clear that international
law does not forbid its recognition by other states.23
Even though resolutions of the Security Council of the United
Nations have condemned or regretted certain events that have taken
place on Cyprus, including the Turkish Cypriots' declaration of
independence, the resolutions of the Security Council and the
General Assembly have consistently recognised that, in the context
of negotiations between the two Cypriot communities, they should
and do bargain ` `on an equal footing."24 The Secretary-General
has for many years offered his good offices to the two Cypriot
communities to foster negotiations toward a mutually satisfactory
settlement. Under his auspices, Greek Cypriot and Turkish Cypriot
representatives have entered into several interim agreements indicating
that neither community enjoys any special status relative to the
other.2s In a recent resolution the Security Council reiterated
its call for the two communities to "reach freely a mutually
acceptable solution."26 Thus while the United Nations has
not recognised the Turkish Republic of Northern Cyprus by admitting
it to membership, it has always accepted the Turkish Cypriot community's
right to determine its political future not only in conjunction
with but also on an equal footing with the Greek Cypriot community.
Putting aside the talisman of recognition, it is clear that neither
of the governments existing on the Island is qualified to assert
that it is the government of the "Republic of Cyprus."
But while the treaties and agreements of 1959-1960 cannot legally
be disregarded by one party in its own interest, they can surely
be replaced by the assent of both parties to a new, mutually satisfactory
political order. Thus, sovereignty would devolve fully and legitimately
o any new Cypriot government if the successor state or states
were the product of a concurrent exercise of self-determination
by the two communities superseding the joint exercise through
which the 1960 Republic was established.27
In summary, the Turkish Cypriot community has a legal right to
negotiate from a status of equality with the Greek Cypriot community
in the current attempt, under the auspices of the Secretary-General,
to reach a workable political solution for the unfortunate situation
in Cyprus. The Greek Cypriot people has never had the right to
assert sovereignty over the Turkish Cypriot people without their
consent. Nor, from the moment the Greek Cypriots unilaterally
rejected the constitutional basis on which the legitimacy of the
Cypriot government rested in international law, has the Greek
Cypriot regime had any right to assert sovereignty over the island.
Since that time, practical necessity has created two governments
on Cyprus. The rights of the peoples of the two communities to
determine their own political futures have remained unchanged
and in all respects are equal. The nations of the world, through
resolutions of the Security Council and General Assembly of the
United Nations, have recognised and consistently reaffirmed these
rights, as have the two communities themselves in their interim
negotiated agreements. Under these circumstances, international
law does not sanction differential treatment of the two communities
in the current negotiations or in any resulting settlement. If
these efforts to establish a federal government of Cyprus-with
the equal participation and mutual acceptance of the two peoples
should fail, each regime the Turkish Cypriot no less than the
Greek Cypriot-would be eligible for recognition as an independent
state. Such recognition by other states would not then infringe
any principle of international law.