Comments on the “c2d working paper, version 2” January 2008
Prof. S. Perrakis
co-signed by Prof. G. Kassimatis, Prof. P. Ifestos, Prof. L. Yiallourides
Having participated in the elaboration of the Report “A principled basis for a just and lasting Cyprus settlement in the light of International and European Law” (October 2005, henceforth “Report”), which we have either signed or endorsed, we would like to submit some observations and express certain concerns regarding the “c2d working paper, version 2” (January 2008, henceforth “Paper”), to be considered during the April ’08 conference.
1. A first point concerns the status of the basic legal principles of international and european law, as described in the “Report”. In fact, in the introduction of the “c2d working paper, version 2” we should refer to this Report, since the idea of the “Constitutional Convention” is present therein. Moreover, the legal principles developed in the “Report” constitute the conditio sine qua non that should govern every development concerning the international status of Cyprus, every solution proposed by the international community and, of course, the process of establishing a “Convention”. Furthermore, it is in this Report where they cross the – extremely sensible and precious – questions of territorial sovereignty, political independence and self-determination of people (demos).
The Panel II, regardless of its different composition from Panel I (“A Constitutional Convention for Cyprus: The Basic Principles”) and of course having a certain autonomy of thought and action, cannot ignore the fundamental status of the relevant basic legal principles as described in the “Report”. The latter should enlighten every movement in the legal and political construction aiming whether at the creation of an instrument like the Convention itself or – in the long run – at the emergence of a new state scheme.
2. International practice shows that, every time the international community intervenes in settling a dispute or in promoting credible compromises in identifying elements of the creation of a “state entity” (e.g. Kosovo), the persons – organs intervening enjoy political legitimacy and international authorisation (Ahtisaari Commission). Furthermore, in many cases the Secretary General of the United Nations has received a mandate according to the UN Charter and eventually a demand / resolution of the Security Council (see K. Annan concerning Cyprus). Therefore, bearing in mind that Panel II does not enjoy such legitimacy nor has it received – for the time being – a demand from the interested parties, it cannot envisage the drafting of a Charter governing the Convention and the relative process. Certainly, the Panel has prima facie the necessary expertise to conduct such a procedure and it can contribute positively, if it is required to do so.
3. The legal status of the Convention poses certain questions. What about the Republic of Cyprus as sovereign state with regard to the “Charter” and the “Convention”? The sovereignty of a state, expressed by its people, cannot be obliterated except under constitutional conditions that prove the will to constitute another state. It is necessary therefore that the status of the sovereign and independent Cypriot state is not infringed upon neither by the provisions of the “Charter” nor by the process of the “Constitutional Convention”.
4. The independence and sovereignty of the cypriot state (§ 18 of the “Paper”) is seriously threatened by the presence of a strong occupation army of 40.000 persons. We must not confuse (§ 19 of the “Paper”) this illegal presence with the stationing of Greek and Turkish military forces on the island by virtue of the Treaty of Guarantee. If a receiving state wishes to invite third states to send a military force, however regrettable, it is not illegal according to international law. Even though relics of the past, foreign intervention in the internal affairs of a state with the consent of its government does not pose questions in the light of international law but in one sole case: when the intervening state uses armed force prohibited by the UN Charter (art. 2 §4).
5. In quite a few paragraphs of the “Paper” the terminology used does not correspond to the juridical language, especially that of international law. For instance, there is no “legal and constitutional no-man’s-land” in Cyprus (§ 8) or a “divided country” (§ 16) and the view of all the international instances, especially the EU, the Council of Europe, the European Court of Human Rights, UN, is that in Cyprus there is a military occupation in part of the island that remains under the sovereignty of Cyprus, which temporarily cannot exercise its jurisdiction. In addition there is no “constitution” of 1983 of the “TRNC” and every participation of the cypriot state in the activities of the international community is governed by the Constitution of 1960.
6. In “step 3” of the “Paper” we should firmly reassert the democratic principles. We should also clarify in § 35 that the question of “settlers” cannot be seen and handled with an introduction that is not compatible with international and european law (“integrated and non-integrated settlers”). We cannot ignore the reality nor the way in which international law and consequently the international community should confront the situation.
Legally speaking the situation of occupation produces also legal effects to be taken into account in a positive or negative way. For instance, the situation of occupation cannot bring about any changes to property rights (see the relevant case-law of the European Court of Human Rights, Loïzidou, Xenides-Arestis, Cyprus / Turkey).
In the same paragraph we must correct the term “humanitarian law” with the appropriate “human rights law standards”.
7. We believe that “freedom” is better than “liberty” (§ 20 of the Paper). In the same paragraph, we’ll have to amend the references “human rights” of the TEU with the considerable reinforcement of the Lisbon Treaty of 2007, although the latter has not entered yet into force.
8. In § 21 “each of which denying the other’s right to existence” is an exaggeration, not corresponding to reality.
9. The reaffirmation in § 24 of the “Paper” that the “Charter” constitutes “a constitutional act of sovereignty” seems oversteping the legal and political reality beyond the rights of the sovereign people.
10. The drafting of § 25 of the “Paper” poses enormous legal questions (“divided, diverted and distorted” etc.). This is journalism and not law, also with certain political connotations and bias.
11. If the “Charter” is a political document that will end up to a “new constitutional order” we fail to see how the “bandits who changed the 1960 Constitution” would enjoy the sovereign legitimacy to abolish the cypriot state. And it is not serious to treat “the existing treaties” as a “deadlock”. This is a political judgement that ignores facts, history and the Cypriot people’s needs.
Time and again the question arises as to the status of the Republic of Cyprus with regard to the parellel process of the Convention.
12. In § 29 of the “Paper” the references “the existing political leaderships and administrations in Cyprus” and the negative connotation of their actions pose equally problems. There are no “administrations” in Cyprus. And when we speak of “political leaderships” I suppose that we refer to the communities and not to the state, the Republic of Cyprus, which has its own “leadership”.
13. The dissemination foreseen in § 31 of the “Paper” should also cover the President of the Council of the EU, the European Parliament, as well as the High Representative of the CFSP.
14. Thus, we content ourselves, without entering into details, with these few remarks which cover mainly some essential points and proposals regarding the creation of the “Convention” and can be resumed in two words: the necessity to respect, whatever the circumstances and towards all parties, the fundamental principles of international law and the EU acquis, as well as the sovereignty of the Cypriot state. So that we do not forget the necessary legitimacy of the “creator” of the “Charter”.
We must avoid at all costs committing the well-known mistakes of the past – i.e. deny or neglect principles and rules of international law – in order to arrive at certain “results” and not at political outcomes, which are deeply disfunctional and illegal. Observe Bosnia-Herzegovina, twelve years after Dayton, observe the “entity” that Ahtisaari and certain international instances wished to promote as “independant state of Kosovo” thus breaching totally the existing international law (unilateral secession without consent) and international legitimacy which insists in all cases on not recognizing de facto and illegal situations (“TRNC”, Abkhazia, Ossetia, Transnistria, Chechnya, Nagorno-Karabakh etc.). Democracy, republic and above all the emergence of a state or the evolutionary development of a state cannot be imposed as facts on Law.