Jean Monnet Chair
Professor J.H.H. Weiler
Harvard Jean Monnet Working Paper 4/00
Cyprus, Which Way? - In Pursuit of a
Confederal Solution in Europe
Harvard Law School Cambridge, MA 02138
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No part of this paper may be reproduced in any form
Without permission of the author.
© Nanette Neuwahl 2000
Harvard Law School
Cambridge, MA 02138
USA Cyprus, Which Way? - In Pursuit of a
Confederal Solution in Europe
Jean Monnet Professor of European Union Law
The University of Liverpool*
This paper seeks to chart the relations between the EU and Cyprus. Given the EU accession negotiations taking place with the Greek Cypriot Administration, the future is difficult to predict, but what is certain is that a number of legal and political issues will come up that in this author’s opinion will need urgent answers. Some of them are dealt with here. Does the current application for membership make sense without a solution to the Cyprus problem? Will accession of ‘Cyprus’ be possible before solving the question of the division of the island? Accession of the Republic of Cyprus is one possibility, stalemate another. The fact is, that the negotiations are being conducted without official representation of the Turkish Republic of Northern Cyprus (TRNC). If the Republic of Cyprus were to accede unilaterally, what form could this take, and what would be the consequences? Should we be more concerned about this than we are? What sort of solution would be realistic? What are the avenues whereby it could be obtained? Three scenarios are dealt with in this paper: the continuation of the present situation, namely the absence of a settlement with the entry of the Republic of Cyprus into the EU being imminent; EU membership of a federal, or unitary, Cyprus and finally, a Cyprus confederation within the EU. It will be argued that the latter option is the best. It will also be argued that it is not entirely unrealistic.
I. Use of Terminology
Confederations1 are associations of autonomous states that agree to the joint exercise of power and the limitation of their sovereignty in a number of defined areas of governmental activity, such as defence, trade, public health and environment, in order to ensure the achievement of a common purpose through the establishment of some joint machinery of deliberation and decision-making and a jointly manned central administration.
The EU can be seen as a confederal arrangement, as can, arguably, the Belgian state. The limitations on the freedom of action of the member states of a confederation may include the obligation, in limited fields, to be bound by majority decisions of the constituent states.2 A confederal state stresses the equality of its constituent members as well as their togetherness for certain common purposes.
The confederation is often distinguished from that other, related form of divided sovereignty, the federation, in that the range of areas to be entrusted to the central decision-making organs is more limited, there is more emphasis on decision-making by unanimity or consensus rather than by majority, there is less democracy in the sense that direct representation may be lacking, and the constituent states, at least theoretically, retain the option of terminating the bond. A confederation is further removed from being a unitary democracy than is a federation.
Whereas these forms of integration between political entities can be seen as extremes, in actual practice the dividing line between federations and confederations is not clear cut, as there is a spectrum of variations between them. A confederation can have federal traits and a federation confederal traits. Both the confederation and the federation can be emanations of consociationalism,3 a generic term used by some scholars to describe a relationship between political units in which sovereignty is diffused. There may be diplomatic merit in using a generic term like this when seeking a settlement for Cyprus, because, being more vague, it desensitizes issues and overcomes prejudice.4 For present purposes, however, - and for the sake of simplicity - it is preferable to adopt, with caution, the slightly ambiguous but more commonly used terminology.
According to some, the more lose type of a confederal arrangement seems, today, to be particularly attractive for entities seeking to accommodate themselves, like Cyprus or the EU, to the challenges and needs of present-day realities. In a world of growing interdependence and consequent desire for linkage among states and peoples, confederations allow closer cooperation without creating new nations. They safeguard individual identities and they respect ethnic and cultural diversity, while accommodating resulting tensions. For Cyprus, an improved, confederal arrangement within the framework of the EU could provide a politically secure structure and norms for a new cooperative relationship between the parties.
II. Background to the Accession Negotiations
The application for accession by the Greek Cypriot administration to the European Communities dates back to 1990. In 1993, the European Commission judged positively the feasibility of the accession of Cyprus to the EC but initially suggested that the questions of the division of the island was to be resolved first. It was felt at that stage that in the absence of a prior settlement, the application of Community law and the respect for human rights and fundamental freedoms could not be guaranteed on the whole of the island. Also, accession without settlement would lead to inequality. Although one part of the island would experience a beneficial economic effect, the economic disparity of the two parts would increase.
The European Council therefore initially agreed with the Commission that accession talks should be postponed. However, in February 1995 it changed its attitude and resolved that negotiations could begin six months after the conclusion of the 1996 Intergovernmental Conference. It is no secret that this change of heart was brought about by the Greek threat to veto EU enlargement towards Eastern Europe if Cyprus was not taken on board first.5 From then on, the European Council envisaged the speedy accession of the whole island, and started to press for the inclusion of representatives of the Turkish Cypriots in the negotiations in order to bring it about. This offer was not taken up by the latter, who could envisage participating in the negotiations only as the representatives of the TRNC, and who even had difficulty assuming that the Greek Cypriot side could legitimately claim to represent any part of the island at all. In spite of this the EU, in March 1998, opened accession negotiations with the (internationally recognised) government of the Republic of Cyprus. As a result, the Turkish Cypriots have until now very much remained on the sideline.
Was the opening of accession negotiations a mistake of judgement?6 It was obviously hoped that the prospective of entry into the EU would be an incentive to a political settlement.7 However, there is no sign whatsoever that this will come true. In fact, there is very little scope now for the Greek and the Turkish Cypriots to shift their positions. The start of accession talks hardly encourages the Greek Cypriot side to compromise in the search for a solution to the Cyprus dispute. The offer of entry negotiations enhances the economic and strategic outlook of the South as well as improving their diplomatic position. It suggests that what is called the Cyprus problem is about a Turkish minority challenging the authority of a legitimate Cypriot government under the protection of a neighbouring occupying force, Turkey.
In reality, the question is at least as much, if not more, about the Turkish islanders calling for the right of self-determination and freedom from the dictates of a Greek Cypriot community conveniently legitimising itself with reference to a 1960 constitution aiming at (but in itself incapable of) protecting both communities,8 and sanctioned by an international community apparently more committed to territorial integrity than to security and coexistence among nations. Witness the conflict in Kosovo, which international law is ill-equipped to settle. If Cyprus accedes to the EU without a settlement being reached, the international risks in the area will be increased.9 The EU, nor indeed anyone else should allow this to happen.
There is little doubt that accession to the EU is advantageous for the island. It is broadly in conformity with the basic philosophy underlying the EU, which proclaims the integration of Europe in the interest of peaceful coexistence and welfare. But the quality of the accession will be as important as its timing. A failure by policy-makers adequately to recognise the stakes or to act accordingly - whether for lack of interest, vision, or leadership - can lead to serious political errors, which may even cost lives.
Everybody will readily recognise that the matters are far from straightforward, however. The EU and the TRNC are both “irregulars” on the international plane; both are in search of their own identity and profile, although admittedly, not in the same way. The fact that both entities are relatively new on the international scene does not make things simpler. Their sometimes uneasy existence in the twilight of international law or, if one prefers, the dawn of a new area, makes the future difficult to predict. What is worse, is that most people seem to be little informed about the issues involved. Among policy makers, some seem to lack interest, while others seem too biased or too frustrated even to want to think up creative solutions. The general public in Europe seems to care little about EU Mediterranean policy; European political parties that consider the matter more seriously do not exist. And yet the current situation is unacceptable.
III. Why the Cyprus Problem Needs to be Solved
It is this author’s view that the EU - or rather its Member States - are under an international obligation to try and bring the Cyprus problem to an end.
This responsibility is not merely a legal one, i.e., one that flows from the commitment of some of the Member States under the Treaty of Guarantee or from the prohibition of the unilateral entry of Cyprus into any form of economic or political union with another State. Unfortunately, in the current international system treaties are often ignored and disapplied, if not with the agreement of all parties, then at the price of some degree of diplomatic discomfort. It often remains without any spectacular consequences. Public international law is seen by most states as an aid to bringing about a solution to a problem, but it is widely recognized that it is no guarantee of justice or stability. Breaches of international law are regrettable, but they are common.
Still, the responsibility of resolving the Cyprus problem is a real one, because it is a moral issue with far-reaching implications.
The humanitarian and security aspects of the Cyprus issue are all too well known to be in need of much detail here. Cyprus never had a workable constitution capable of suppressing inequality, hatred, violence and distrust, and this has allowed inhumane treatment that should be deemed unacceptable by any government today.10 While there are certain parallels between the crisis in Kosovo and the problem of North Cyprus, the two situations have been handled by the international community in quite different ways. Whereas the former was met with collective intervention, the latter mainly give rise to passive criticism.11 Both have disadvantages. In the case of Cyprus a situation of lawlessness is among the negative side effects.
The current situation whereby the TRNC, in spite of a good claim to statehood, is denied international recognition by all States except Turkey,12 results not merely in problematic situations on the international plane. It sometimes leads to the impossibility of law enforcement on the (trans) national level as well. This in turn may have serious consequences of its own, as is illustrated by the case of the Cyprus Mining Corporation (CMC). CMC, a Cypriot mining industry originally owned by Americans but subsequently sold on to German nationals, is alleged to have engaged in activities harmful to the environment. CMC is deemed to have caused pollution in violation of Turkish Cypriot environmental laws. In the event it proves practically impossible to enforce a penalty against the company, or to obtain reparation for damages against the shareholders who are residing abroad. Since liability for environmental damage in the TRNC cannot be enforced in foreign courts of countries that do not recognise that State, non-recognition is tantamount to extending a “licence to pollute” to private individuals and companies, and a licence to perpetrate other serious wrongs in the area as well.
Surely there is no need for policy-makers to await an irreversible environmental or other big disaster before something is done? The responsibility to prevent such things from happening is real and incumbent morally on all of us, irrespective of nationality or status. This is a Mediterranean and even a universal problem. For several reasons, therefore, the Cyprus problem is an ethical issue which needs to be tackled sooner rather than later. An active standpoint needs to be taken by all, including the EU. The following are the main options for the future.
IV. Scenario 1: Denial of the Need to Act (Cyprus Inside or Outside EU and No Settlement)
It might be thought that, whatever the future of the island, the Cyprus problem is not as urgent as the above analysis suggests, and that non-action might be an option. Thus, the EU might consider leaving the islanders to sort out their own future. Needless to say, this is the current attitude of many politicians in the EU. It is, however, not a realistic approach. Because accession negotiations trigger a dynamics of their own, non-action is not equal to stand-still. Part of Cyprus is now firmly on its way to accession as a result of the EU’s commitment towards enlargement to the East, which would be endangered by a Greek veto. Because of the difficulty of both Cypriot parties now to shift positions on the Cyprus issue, and in order not to prejudice the disputed question of territorial sovereignty, accession of the Republic of Cyprus might perhaps be realised by leaving unclarified the territory to which the Treaties would apply. Either way, this would result in the effective non-application of EU law (and of EC law) to the territory of North Cyprus, with all the consequential disadvantages of this situation.
Non-accession would mean the continuation of the present unsatisfactory situation with distinct risks flowing from the de facto lawlessness described above. Accession without settlement would trigger a situation of unpredictability and the prospect of guerrilla activity on the island. None of this is acceptable. The foregoing should be enough for the EU to take a more active interest in the solution of the issues.
But even if one were to dismiss these forecasts as overtly pessimistic, and if one were to believe that life could largely continue peacefully and without major incidents, then still, there would be another reason why the EU would have a special responsibility towards bringing about a settlement before accession can be envisaged. It is this. If Cyprus were ever to enter the EU without solving the problem between North and South, this might result in a lack of democracy which would reflect badly on the workings of the European Union. “Paper” European Parliament elections for the North organised by the South would be a sham,13 and because of the government of the Republic of Cyprus does not represent the North, the democratic content of Community law would be compromised, and the quality of Community legislation could only suffer as a result. Due to the practical inapplicability of Community law to the Northern part of the island, the paradigm of democracy through welfare would not work either. Any lack of democracy at grassroots level would immediately be transposed to central levels of decision-making. If the matter would be brought before the European Court of Human Rights - as in the Matthews case14 relating to the failure by the United Kingdom to organise European elections in Gibraltar -, the Loizidou cases15 would be authority for denying the responsibility of the Republic of Cyprus for this type of shortcoming. Yet no European politician should even consider entertaining the proposition that laws affecting Cyprus could be made under the exclusion of the Rule of Law. Accession under these terms is clearly contrary to the Copenhagen criteria.16
For all these reasons, it is believed that the Cyprus issue should not be downplayed. Rather, an institutional structure needs to be thought out which can serve as a legally adequate and a politically acceptable solution to the issue. The way in which EU membership can contribute to this is considered next.
V. Scenario 2: EU Membership of an Undivided Cyprus State
In this author’s view, this would not adequately solve the Cyprus problem. Neither a unitary state nor a federation is able to offer the Turkish Cypriots the guarantees they require. The latter solution has been sought for years. It is now becoming less and less acceptable to both sides, with a growing part of the Greek Cypriots embracing Scenario 1 (denial of the need to act). For the Turkish Cypriots, the creation of a Cypriot (federal) state is not acceptable without strong international guarantees, and it is widely recognised that the EU is not at present in a position to guarantee the safety and security of the inhabitants of the island. A brief excursion will serve to elucidate the powers of the EU in matters of security and the protection of human rights.
The Treaty of Amsterdam has introduced new mechanisms by which voting and other rights can be denied to Member States who commit notorious breaches of liberty, democracy, human rights and fundamental freedoms or the Rule of Law (Article 7 (ex F.1) TEU). Yet, this is not necessarily a guarantee that individuals within Member States will effectively be able to enjoy human rights and fundamental freedoms. The procedure whereby Member States violating human rights within their borders are deprived of Community benefits and/or voting rights is an advance, but it is not a fully fledged mechanism for ensuring the respect for human rights. The procedure is to a large extent political, and it will not work if the Member State accused of violating human rights is able to enlist the support of another Member State, or if the attitudes of Member States are otherwise divided over the issue. Regarding Cyprus, the procedure is not likely to be put to use because of the support which the Greek Cypriot Government would most probably receive from Greece.
Furthermore, it is to be noted also that the EU’s remit still generally excludes the internal security of a Member State. There are plenty of ECJ judgements dealing with that subject matter, and the notion of Citizenship of the European Union, laid down in Article 17 EC (ex Article 8) has so far received a restrictive meaning.17 The restricted sphere of the EU Treaty may well change some time in the future. After all, the introduction of the notion of European Citizenship in the Treaty of Maastricht already amounts to the insertion of a tiny element of political union in what was previously mainly an economic (EEC) treaty. Yet at the present state of integration, without a change of the law, the EC cannot guarantee the protection of minorities or constitutional structures internal Member States; nor can the EU.
Because the EU cannot adequately guarantee the Rule of Law, the observance and human rights or the protection of minorities, democracy or security within a single Cyprus state,18 another type of solution needs to be found.19
All this is in addition to the fact that a unitary or federal solution may be inappropriate for Cyprus in itself. History suggests that federated entities with markedly different features from the majority (cultural, religious, linguistic, and so on) tend to want to break loose, as is the case with Quebec in Canada.20 Stable federations, let alone unitary states, presuppose a strong cohesion between people within the federation, and it is no understatement to say that this is currently absent in the case of Cyprus.21 A confederation is the only way forward.
Why?22 A confederal arrangement in Cyprus could provide for the satisfaction of the following needs and interests:
1. Both parties attach primary importance to their separate national identities, existence and democratic structures. Confederations do not affect territorial sovereignty, only some aspects of independence.
2. Given Cyprus’ history of strife and war between peoples, political equality is the only conceivable basis for confidence building between the parties concerned. Neither the Turkish nor the Greek Cypriots would ever consent to being dominated or governed by the other. Whereas the threat of domination by the Greek Cypriots has made territorial sovereignty a vital pillar of Turkish Cypriot security, the numerical majority of the Greek Cypriots and their backing by international diplomacy reinforces the intransigence of the Republic of Cyprus. A confederation is a way out. It enables unity without submission.
3. Confederations apply best in a situation where populations are very heterogeneous, and a federation or unity would be much more difficult to achieve: loyalty in confederations is primarily oriented toward the constituent entities.
4. Turkish and Greek Cypriots are destined to share life on one island and therefore are bound by a common responsibility for a viable future, and this implies stability and quality of life. A confederation allows for the establishment of common objectives in relation to practical, political and security issues.
5. There is minimal trust and cooperation between the parties.23 A confederation operates on a modest mandate, leaving most powers to be exercised by the constituent states. On the other hand, the purpose of a confederation is to generate the support of the constituent peoples for the common causes and to infuse them with a sense of shared interests and consequent willingness to cooperate. It also constitutes a laboratory of cooperation practice and a framework for cohesion.
6. The conflict in Cyprus threatens the strategic, security and economic interests of the population of the island as well as those of Turkey and Greece, the EU and even the larger world. A confederation is a means to substantially increase regional stability and security.
7. Both parties envisage becoming part of the EU. Cyprus is part of a world in which statehood is no longer an end in itself but one of the options available to deal with societal and international problems, and at most an element of a process moving towards the development of larger confederal structures like the EU.
A confederation is a means of accommodating the national aspirations of the two parties within the broader framework of inter-dependence and European integration.
VI. Scenario 3: A Confederation in the Framework of the EU
Given the shortcomings of the alternative scenarios, the option of a confederal state, say the Cyprus Confederation (CC), within the European Union would seem an attractive option. The more loosely knit structure of the confederation adds to its strength, and combined with the supra-national framework of the EC it may just about appeal enough to make it attractive for all sides. If the structure did not work, the TRNC would have the option in law of obtaining the dissolution of the confederation, although within the integrated structure of the EU this might appeal less.24
Co-operation at supra-national level would provide practical experience of confidence-building. In a confederation, moreover, there is scope for the creation of a specific confederal court, with the power to make references to the ECJ.25 The creation of a supreme Cyprus confederal court with the power of reference to the ECJ could help enforce the law within the scope of the Treaties, as well as enforce a substantive body of confederal law in both parts of the island.
Given the international status of a confederation, the EC and EU institutions would have jurisdiction and legal authority to regulate issues arising in the relations between the TRNC and RC matters. By comparison, in a federation such as, for example, Germany, issues internal to the states are essentially matters outside the reach of EU institutions.
In the context of an accession by a confederated Cyprus, there would also be good reasons for negotiating the representation of the TRNC in the composition of the ECJ. By contrast, in the case of federated or unitary states acceding to the EC, there would only be one judge for each Member State, that is, if the current practice of choosing a judge from every Member State is continued in the future. In the circumstances it is difficult to see how in such a system the TRNC could ever be adequately represented. Given the specificity of the Turkish community it could be argued that they should be separately represented in the ECJ.
For the sake of clarity, it is useful to remember that the value of the ECJ is not merely based on the fact that it is a respected institution with considerable authority in the Member States whose courts accept the need to enforce its judgements. The ECJ’s powers have evolved beyond the notional and the declaratory. Disrespect of Community law can be punished and prevented by the attribution of liability for damages as well as by the imposition of financial sanctions. The European Commission as the guardian of the EC Treaty would play an important role in respect of the latter as well as private individuals.