Professor Casimatis, comments on the Working paper (also in Greek)


Prof. Georgios Kassimatis
University of Athens
I’m one of the members of the International Expert Panel who signed the document “A principled basis for a just and lasting Cyprus Settlement in the light of International and European Law”.

First of all I would like to apologize to the participants of the Conference for my absence. Due to unexpected hindrances I have not been able to attend the Conference and develop personally my views.

The present document, whereby I wish to contribute to the discussion, contains some comments regarding the platform (working document) of the Conference and my basic position as to the Conference itself. The comments are based on the working document of the Conference: “On the way to a constitutional convention for Cyprus”, A c2d working paper, Version 2, January 2008, of the Centre for Research on Direct Democracy (c2d), Zentrum für Demokratie Aarau (zda), University of Zurich.
1. I will begin with the basic problem that arises from the discussions that were based on the abovementioned working paper, forming the platform of the Conference. I believe that, according to the rules of scientific deontology, the platform of a purely scientific conference, organized by a university research center, where persons of high scientific quality participate, should be strictly scientific. In the present case we are dealing, scientifically, with a conference whose subject is clearly a matter of international and European law and which is related to a specific issue of a specific and lawful – according to international and European law – state and member of the European Union, the Republic of Cyprus. Consequently, the platform of the Conference should be confined to the examination of the issue on the basis of the law that governs the Conference, namely international and European law. However, in many aspects the platform deviates from the rules of the aforementioned legal regimes, relying on political choices that do not comply with these regimes. Such a platform of a scientific conference could be legitimate, only on the condition that it would be submitted as basis for a scientific discussion and particularly for legal assessment, conducted by – a legitimate-according to international and european law-international organ or cypriot institution. The potential answer that this platform consists of or is established upon facts, would not solve the problem, given that these facts have officially been declared illegal and are indeed contrary to international and european law. It is well -known that one cannot conduct a scientific discussion on an unlawful basis, unless it serves for scientific assessment and once more confirmation of the principles of international and european law. I hope at least that the choice of adding illegal political “facts” in the platform is only intended to serve as a “hypothetical discussion” that will be evaluated under the fundamental principles of international and european law.
2. The platform of the Conference sets as basis for discussion the position that sovereignty emanates from the “Constitutional Assembly” and is based upon the new constitutions that will derive thereof. Such basis is contrary to the document of the International Expert Panel (“A principled basis for a just and lasting Cyprus settlement in the light of International and European Law”), which establishes the respect of the sovereignty of the existing and legitimate Cypriot state, namely the Republic of Cyprus as the base for discussion and as the condition of a viable and lasting solution to the Cyprus problem. This is not an arbitrary standpoint but is based on international law, which does not recognize the catalysis of sovereign states.
The Eight propose in the text in question, as a potential for a democratic solution of the Cyprus problem, the constitution of a “Constitutional Assembly” under the condition however and on the basis of the principles of International and European law which prevail over any potential solution and process.

The main position of the platform of the Conference, obviously mixing the concept of the new constitution and the sovereignty of the state, does not even correspond to the historical reality. Apart from Switzerland where the Constitution allows for “total revision”, all other constitutions foresee strict fundamental and procedural restrictions for any revisions.
However, there are a number of new constitutions, which were adopted by a representative body (Parliament) (just like in Greece, Portugal, Spain, etc), without ever presupposing the interruption of the sovereignty of the state and its re- establishment by the body responsible for drafting the new constitution.

Even in the case of the occupied Germany, the initial Grundgesetz was drafted by a Committee of experts, the «Herrenchiemseer Verfassungskonvent», without a Constitutional Assembly, following the orders of the Prime Ministers of the “Länders”, of the western occupation sectors. The fact that the final text was drafted and adopted by a parliamentary assembly was not interpreted as parthenogenesis of a state. It is precisely on this concept of sovereignty, that the proposal of the Group of Eight is founded, whereby the state adopts a new constitution without the notions of catalysis or interruption, as it is explicitly stated in paragraph 23 of the text.

2. Furthermore, the platform of the Conference appears to attempt another, equally dangerous, inversion. It considers the “constitutional assembly” as the source and base of international, European and constitutional legitimacy, prioritising the elected representative body over the fundamental principles of International and European law.
This position of the platform, that the Centre for Research on Direct Democracy imports- of course unintentionally-, in the process of resolving the Cyprus problem leads to the possibility of violation of the fundamental principles of International and European Union law. I remind that this inversion, apart from conflicting with the international and supranational law, is also contradictory to the text of the Eight of the International Expert Panel.

3. Regarding the “constitutional assembly”, I would like to make three more brief comments:
– Firstly I am afraid that the concept of the “constitutional assembly” of a modern internationally recognised state, which is in the process of drafting a new constitution is mixed up with the historical notion of a “constitutional or national assembly”, product of a revolution to overpower an absolute monarch whose sovereignty was also identified, at least politically, as the state’s sovereignty. In those circumstances the rebels constituted a united body with indeed primary constitutional power. A classic example of such a national assembly is the Assemblée Constituante of the French revolution. Nevertheless, such an assembly is non-existent today. Nowadays, the constitutional assembly of an internationally recognised and sovereign state constitutes of a body of representatives with constitutional power instead of a reversionary one: a “syntactic Parliament”. The Cyprus democracy is an internationally recognised sovereign state and as such it became a member of the European Union. How can we ignore those facts, without violating International and European law? The platform of the Conference makes, unfortunately, this fundamental error
– Secondly, the Platform of the Conference reverses the order of priority of the international legitimacy and the syntactic power of the Assembly by placing the Assembly above the international law. The platforms’ apprehension of the Constitutional Assembly as the base and source of the sovereignty and legitimacy of a new state reminds us of the kelse reverse where the Grundnorm, albeit without any origin, power and content, constituted the source and base of any legality.

This position, which was applied by the authoritative regimes of the interwar period and cost a lot to humanity, is repelled today. Following this thought, we have to raise the question: how can we assure that this Constitutional Convention will not turn into a parody or into a sham of manipulation, outside the will of the people of Cyprus?

Thirdly, the hierarchical inversion of sovereignty and Constitutional Convention that is attempted with this platform, constitutes a very dangerous political choice for any attempt of a vital solution of the Cyprus problem, in grave breach of both International and European law. The basis of “parthenogenesis”, which is heard or proposed by several “anonymous” people, is exactly a fraudulent means of manipulation of the Cypriot problem’s solution.

5. I now move to the fundamental problem of the “Charter for a Constitutional Convention in Cyprus”. This “Charter” consists, without any doubt, of the most complex, difficult and crucial project of highly political choices, for a process of a “constitutional convention” aiming at the solution of the Cyprus problem. It is very clear that the context and the choices of the “Charter” will not only define the democratic legitimacy of this “convention” and its work, but will also identify the new “constitution” as a means of solving the Cyprus problem according to the fundamental principles of International and European law. I wonder whether from a scientific deontology point of view, it is possible to hold a scientific debate regarding such a crucial and deeply political matter without any political legitimacy or any lawful assignment by a competent organ of a qualified international organization or from a competent organ of the Republic of Cyprus. I also wonder under which capacity can such a political plan be submitted to the United Nations, to the European Union and to the Republic of Cyprus and how can the Conference or the Centre for Research on Direct Democracy claim the drafting of such a plan. Unless, of course, the organizer of the Conference has relevant information that he should share with the participants.

6. I wouldn’t like to bore the participants with detailed observations for the platform. Besides, I agree with all the remarks on the text that I countersign with my colleagues professors Perrakis and Ifaistos. In conclusion, allow me to express my view for the Conference:

I express my disappointment that the Centre for Research on Direct Democracy (c2d), Zentrum fur Demokratie Aarau (zda), University of Zurich, has not clearly based the Conference on the scientific text of the Eight of the International Expert Panel. However, with respect to all the colleagues that participate to the Conference and with appreciation to the great merit of their scientific contribution for a vital solution to the difficult and complex Cyprus problem; with respect and appreciation to the status and the important contribution for the maintenance of legality and the achievement of viability for a solution to the Cypriot problem of our colleagues of the International Expert Panel- participating or not to this Conference- ; and, especially, with respect and appreciation to the great work of our colleague and organizer of this Conference Mr. Andreas Auer on these causes, I could not but participate with this smallest contribution. My participation is profoundly connected to the hope and anticipation that the conclusions of the Conference are scientifically founded on the principles of the text of the International Expert Panel of 2005, without the prioritization of the political aspects on the detriment of International and European law.

Piraeus, March 2008

Prof. Georgios Kassimatis
University of Athens

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