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ΣΦΗΝΑ 11
Ήρωες της Αντίστασης για την Πατρίδα και τη Δημοκρατία με την Τόλμη, την Αρετή και το Ήθος του Σάκη Καράγιωργα δε σβήνονται από τις πλατείες και τους δρόμους των πόλεων όπως δε σβήνονται από την Ιστορία. Ο Δήμος του Πύργου θέλει να χάσει τη μεγάλη τιμή που του χαρίζει το όνομα Σάκης Καράγιωργας;
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ΣΦΗΝΑ 10
Τα δάκρυα των Προκαθημένων της Χριστιανοσύνης στη Λέσβο για τους πρόσφυγες
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ΣΦΗΝΑ 9
ΣΦΗΝΑ 9 Σφετερισμός συνταγματικής αρμοδιότητας. Ο νόμος για τις άδειες καναλιών κατάφωρα αντισυνταγματικός. Η προκήρυξη θα είναι απολύτως άκυρη και οι άδειες θα είναι ανυπόστατες. Βλ. περισσότερα εδώ
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ΣΦΗΝΑ 8
Έχει ακούσει κανείς να έχει καταργήσει κάποια αστική δημοκρατία ανεξάρτητη επιτροπή ειδικών για διεξαγωγή επιστημονικής έρευνας; Αυτό έκανε στη «δημοκρατική» Ελλάδα «λαοπρόβλητη» κυβέρνηση «Αριστεράς» με την παύση της λειτουργίας της διεθνούς «Επιτροπής για την Αλήθεια του Δημόσιου Χρέους»!
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ΣΦΗΝΑ 7
«Το Βήμα» της 18.10.15 περιχαρές: «Ο Τσίπρας διέβη τον Ρουβίκωνα». Σωστά! αλλά και: Η «Αριστερά» του ΣΥΡΙΖΑ τον Αχέροντα. Ο λαός με το ΟΧΙ μένει όρθιος και αρνείται τον οβολόν του (την Ελλάδα) στο Χάροντα.
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A viable resolution of the Cyprus problem in light of international and European legal principles.

We say ‘no’ to any equivalent of the ‘Annan plan*’.

 

                                                          Giorgos Kassimatis
Emeritus Professor, University of Athens

         
In the past, the Cyprus problem has been genuinely downgraded in the context of Hellenic foreign policy. It is, currently, being handled as a minor topic of secondary importance. Despite this, we must underline the fact that providing a solution to the Cyprus dispute is the foremost foreign policy issue of our time and of national significance. The justification is not just historical or national in nature but very much substantive, relating to the continuing present and future existence of the Greek State as it is. It is, most importantly, a matter of national sovereignty for the Hellenic state. We must not forget, even for one minute that Greece and Cyprus not only form a unity of nations in a historical and cultural conception of the word; but also together constitute the most, politically aw well as financially, potent part of the Mediterranean region; a part whose geopolitical impact is of paramount importance to the imperialistic schemes of the great powers of our time. Thus, it is not the richness of their subsoil in hydrocarbons that provides the greatest argument for the geopolitical impact of these two States; it is their geographic placement which provides for two sizeable, consecutive Exclusive Economic Zones (EEZ). Any disruption, through the abolition of the sovereignty of the Republic of Cyprus, and the subsequent seizing of control of the said geographic area would pave the way for a major diminishment in the sovereignty of the Hellenic State as well. The events to follow would be even worse:  We must keep in mind at all times the geopolitical significance of the recent total encumbrance put upon the economies of both Greece and Cyprus which were chosen as the first European states to be put through this experiment of financial manipulation that reaches the point of complete subjugation. It is rather clear that the intervention of the international financial system in the economies of these two states in particular does not comply solely with priorities of an economic nature. For one who would attempt a correct interpretation of current international relations, the above would be made crystal clear by examining the respectively concluded Loan Agreements. Alas from experiencing the functioning of the above mechanism, we are currently aware, that this centre of economic power is strengthened both institutionally and financially by the major global powers; set up to serve their geopolitical, imperialistic designs.
The Downer Document and at the same time discussions about submitting a new proposal for the resolution of the Cyprus problem generates the fear that a renewed attempted “solution” in violation of fundamental legal principles equivalent to those of the ‘Annan plan’ will be put to the table. We should bear in mind that the notorious ‘plan’ constituted a historically unprecedented example of a document generated by an international body containing an immense amount of downright infringements of principles and legal provisions of international legality. Furthermore, it was particularly disappointing that the said document was signed by the UN Secretary General, the supreme guardian of the principles of international law, as well as State sovereignty and human rights. Another more contemporary example of unlawful documents of international law, drafted, much as the ‘Annan Plan’ by a London-based law firm and containing unprecedented violations of international and European legality are the Loan Agreements that the Hellenic Republic had to sign as a borrower State.
What one can fundamentally deduce about the intended resolution of the Cyprus problem by the historical events of, first of all, the imposed military juntas in both Greece and Cyprus, Turkey’s military intervention in Cyprus and the establishment of a UN Buffer Zone (‘Attila line’) as well as the attempted enforcement of the ‘Annan Plan’ is that a total abolition of the Republic of Cyprus as a sovereign State is the intended outcome through infringement of both international and European law.        Until the ‘Attila invasion’, all effort to resolve the Cyprus problem were focusing on a solution that would give precedence to the Cypriot people’s right to self-determination and –after abandoning the idea of a union between Cyprus and Greece- would result in a democratic, sovereign Cypriot State. At long last, in 1960 the Republic of Cyprus was officially established through international treaty and was internationally acknowledged as an independent State. We realise, thus, that up until that point, resolving the Cyprus problem was conducted inside the scope of international law principles with the United Nations (UN) as a custodian of international legality, which it sought to protect through its decisions whenever there was a violation. The UN decisions at the time point to the fact that despite the intensity of the Cold War –or perhaps exactly due to that- this supreme institution of international legality served its statutory purpose, sometimes to an extensively advanced degree. However, the international treaty that established Cyprus as an independent State had a loophole: the United Kingdom, Turkey and Greece were set as guarantors to its implementation. This was the loophole that was used to ‘legitimise’ the 1974 Turkish military invasion and the subsequent occupation of northern Cyprus. Part of the same scheme was the establishment of military juntas in both Greece (1967) and Cyprus (1974), in the latter case by overthrowing Archbishop Makarios’ legally appointed government. This was the exact point in time when systematic violations of international and European law started: the de facto continuing division of Cyprus by the ‘Attila line’ and the military occupation of the part of Cyprus north of the ‘line’, the ongoing, among other infingements of superior law, unlawful colonisation of the occupied northern Cyprus by Turkish populations, as well as the unlawful efforts to resolve the Cyprus problem of which efforts the ‘Annan plan’ a most prominent example.
Today, two supreme guardians of international law are in place, the UN and the European Union. Unfortunately, both these institutions have not only become unable to safeguard the international legal order as such; but rather they tend to cover up violations of its principles. This is most obvious today through the political manipulation of both the Greek and the Cypriot State by way of sovereign lending as well as through the, so far, proposed political solutions to the Cyprus problem. However, the fact that the legal basis behind the imperialistic designs of international power players is so unsound, serves to prove that sovereign states still possess a strong legal arsenal for their protection. And this legal arsenal is made up of no other than the principles of international legality.
With the above in mind, let’s remind ourselves of the Report of the International Panel of Eight Experts, which was drafted exactly in order to bring to light the said legal arsenal for a viable settlement of the Cyprus problem. The Eight Experts (international relations, constitutional law and policy experts) convened and collaborated in both Athens and Geneva for the drafting of a Report, an initiative prompted by the ‘Committee for a European Solution in Cyprus’ which in 2005 resulted in the publicizing and presenting before the European Parliament’s special NGO forum in Brussels. The said initiative and the ‘Report’ took place right after the historic ‘No’ of the Greek-Cypriot people on the 24th April 2004, which safeguarded the existence of the Republic of Cyprus itself, as a sovereign State. That ‘No’ of paramount historical significance led by the late Tassos Papadopoulos was followed, as we all recall, by the, equally politically fundamental for the resolution of the Cyprus problem, accession of the Republic of Cyprus to the European Union as an independent and sovereign State. The political significance of the accession has two legal pillars, the sole reference to which reflects the fundamental nature of its implications. The first pillar was and continues to be the fact that through its accession, Cyprus was integrated to the European Union regulatory framework, thus acquiring another supra-national legal arsenal for the lawful resolution of the Cyprus problem and the safeguard of its sovereignty , apart from that which international law already provides . The said arsenal included the EU Treaties, which served to further strengthen the, already in force, legal framework of the Council of Europe. The second politically fundamental pillar was and continues to be the fact that by acceding to the EU, Cyprus institutionally became a matter of geopolitical importance for the Union itself apart from being a contested object of geopolitical significance to the great powers of the international scene.  We will limit ourselves to a general outline of the first legal pillar, the one pertaining to European Union law, on which the Report of Eight was based upon and at the same time brought to light.
Before we proceed to the said outline, it is useful to have in mind the current situation of the relevant international legal order comparing it to the state of affairs at the time the Report was finalised. At that time, nine years ago, the UN’s weakened state and its inability to effectively enforce international law had become apparent as early as the carrying out of US military interventions in Asia at the time of the Gulf War and the enforcing of inhuman economic measures in developing countries by the International Monetary Fund (IMF) and, later on, by the World Trade Organisation (WTO). The weakening of international legality and its major custodian, due to USA global domination and to international capitalism based on free market principles, as an effect of the collapse of real-socialism, had not been felt in Europe until the onset of the global economic crisis. It was, however, clear to international relations experts and economists, the majority of which were affiliated, as per usual, with the current regime. Very few legal scholars had noticed the weakening of human rights protection by the Council of Europe. The relevant administrative and political departments that had in the past (concerning the Affaire Grecque of the 1967 military junta) been proven powerful and effective, seemed dwarfed and the ECHR proved weak in its relevant case-law concerning Cyprus and Greece. Despite all the above, the use of international legal provisions remains a strong weapon which can prove effective provided it is handled the best way from both a political and a legal perspective. On the same note, we should not forget some luminous intervals of international legality after the imposition of the ‘Attila line’, such as Resolutions 541 (1983) and 550 (1984) of the UN Security Council and the first jurisprudential reactions of the ECHR concerning rights’ violations in the occupied part of Cyprus.
Based on the historical data that we briefly highlighted, the fundamental principles of international law that also run through the EU have to be turned into pillars of the struggle for a lawful and sustainable resolution of the Cyprus problem. And there is no sustainable solution to a matter that concerns the international status of a people that is not a lawful solution. Those principles of international law are expressly mentioned in the attached Report of Eight. At this point we shall only reference information needed for the better understanding of the said Report.
The foremost principle of European Union law and international law is the principle of safeguarding the sovereignty of the Republic of Cyprus. The Republic of Cyprus has been, as noted above, a sovereign state since 1960, acceded to the EU as a sovereign state and remains one to this day. No one has the right to abolish its sovereignty or contribute to its abolition. The ‘Annan plan’ provided for the abolition of sovereignty and its substitution with a quasi-state, lacking actual sovereignty. Even the slightest, momentary abolition of sovereignty is absolutely dangerous, because it de facto makes the loss of sovereignty a potentiality. It opens the window for the application of provisions that diminish national sovereignty which may not be directly noticeable by the greater public. Such an intervention would violate not only international law and the UN Charter, but at the same time it would constitute a straightforward violation of EU Treaties since Cyprus is an EU member-state. The current situation in Cyprus and the colonisation of the northern part of the island by Turkish populations as well as the ‘sovereign rights’ conferred to the UK regarding its military bases in the island, until the Cyprus problem is resolved, are in absolute opposition to the principle of State sovereignty. As will be any future provision of an international treaty that would accord a third country the right to interfere independently as a guarantor. For fear of the possibility of the above, and many other violations being realised; the upholding of the abovementioned principle is the most sensitive issue surrounding the Cyprus problem and a crucial point of vigilance for the Cypriot people.
Secondary to the principle of respect and safeguarding of sovereignty -on which any resolution of the Cyprus problem should be based- is the application of all principles of democratic legitimacy, based on the supreme principle that legitimises modern states, namely the democratic principle. The democratic principle is guaranteed today by many international law sources. (UN Charter, the International Covenant on Civil and Political Rights, the ECHR, the EU Treaties etc). Together with the democratic principle, supreme international law, EU law and all democratic constitutions provide guarantees for: the respect and safeguarding of human dignity, protection of human rights, the rule of law, welfare state as well as the principles of liberty and equality. All the above principles constitute democratic lawfulness, without which there can be no notion of democracy. The ‘Annan plan’ as one can deduce from the attached Report, included straightforward and substantial violations of all the hereinabove principles, proposing a ‘State’ form, not only in violation of supreme law but also not sustainable in neither the international community or internally.
Following the experience of the ‘Annan Plan’ we should at this point highlight the following factors taken into account for a potential resolution of the Cyprus problem:
1.  Any resolution proposal or plan has to have the respect for the continuation and the indivisibility of the Republic of Cyprus as a sovereign state, as its main focus. The Constitution of the Republic of Cyprus is the constitution of a member-state of both the UN and the EU and its uninterrupted effect is valid for the totality of the Cypriot people and for the whole of the territory of the island of Cyprus which is considered Cypriot sovereign territory. The Constitution of the Republic of Cyprus signifies without doubt the beginning and the basis of organising a State without any interruption or division of sovereignty or democracy. Without doubt, the Republic of Cyprus is in need of a deep modernisation of its constitutional structure. That however does not imply a need for a new State but rather for a new constitution for the Republic of Cyprus.
2. The following question arises: What will be the source of power that will prompt the new constitution? There can be only one answer to that question: The source of constitutional power has to be the Cypriot people taken as a whole and unadulterated by colonisation. This is the starting point for the application of the democratic principle guaranteed by both the UN and the EU. The drafting of a new constitutional text has to be the product of a democratic process expressing the free and unadulterated will of the people of the Republic of Cyprus. To specifically address the plurality of different ways that the democratic constitutional drafting can be brought about does not form part of the present analysis. However, any resolution plan cannot lawfully come into effect without the consent of the Cypriot people. The ‘Annan plan’ in blatant violation of the democratic principle at its highest level, which is the constitutional and amending power, unlawfully took upon itself a legal function that belongs to the Cypriot people.
3. Furthermore, while in the context of the present analysis we do not aim to express an opinion on the form or the system of government of the Cypriot State (federal or unitary, presidential or parliamentary); we must, however, note that what is indispensable is a groundwork of state sovereignty, which means: territorial sovereignty extending to the whole of the island, sovereignty to what concerns international relations and, also, popular sovereignty. The above are only guaranteed by the continuation of the Republic of Cyprus, without an occupied territory and without unlawful colonisation. A democratic regime should be established with all the principles of democratic legality effective for both citizens and aliens.
4. A resolution of the Cyprus problem in violation of the UN and EU legal principles can be neither sustainable nor lawful. No doubt, these two major organizations and custodians of international legality carry an immense responsibility. However, the greater responsibility rests with the Cypriot and Greek governments due to the vital significance that the Cyprus problem and its resolution has not only for our own country but for the major Hellenic population. Any renewed effort to abolish the Republic of Cyprus, any new ‘Annan plan’ has to be confronted by the common opposition of both the Cypriot and the Greek State.


* I have the certainty that the short text that follows, forming part of a Volume in honour of Ilias Krispis, corresponds to the interest and the views of the late professor on the Cyprus problem.

See infra the attached Report of the International Panel of Eight Experts, Annex: Art. 6 of the TEU.

We should not forget that Archbishop Makarios was the one to integrate the Cyprus problem as a pressing matter and an integral part of the UN agenda.


INTERNATIONAL EXPERT PANEL
CONVENED BY
THE COMMITTEE FOR A EUROPEAN SOLUTION IN CYPRUS

A principled basis for a just and lasting Cyprus settlement in the light of International and European Law

 

Preamble

1.       The purpose of this Report, prepared by an International Expert Panel, is to seek a just Cyprus settlement providing for the peaceful and prosperous future of all the people of the island. In order to do this, one must apply the key principles drawn from international and European law which apply in the settlement of international disputes, including disputes concerning members of the European Union. Such principles lie at the heart of international and European law. Failure to respect such principles is likely not only to prejudice the success of any particular settlement plan by internalising contradictions with international law and thus weakening its sustainability, but also to constitute a destabilising element for the future. The precedent of a political settlement contrary to accepted international and European legal principles may well be resorted to in other dispute situations with serious consequences for the stability of the international order.

2.       The fundamental principles of international and European law offer a unique guide and methodology by which to initiate and successfully conclude a process leading to a Cyprus settlement within the framework of a new and genuinely Cypriot Constitution in accordance with the right of self-determination. This is at the very core of a European solution for Cyprus, consistent with international and European law.
3.       The solution of the Cyprus problem must be found by respecting and applying the fundamental principles on which international law and the European Union are founded: these are in brief, the peaceful settlement of disputes; the sovereignty, independence and equality of states; the prohibition of aggression and the non-recognition of its consequences; and respect for human rights, liberty, democracy and the rule of law. Both the present state of affairs in Cyprus and the terms of the current Annan Plan are inconsistent with these fundamental principles. It is also essential to arrive at a fair solution that fully respects the need for the reconciliation of, and cooperation between, the communities and all relevant parties.
4.         The European Union is called upon to seize this historic opportunity and to assume its special responsibility for actively helping to put in motion a process of constitution-making that will finally allow the Republic of Cyprus, as a member state, to recover full sovereignty and independence and to establish peacefully a constitutional order respecting the above mentioned principles, and based on full respect for diversity.

 

 

Basic facts
5.         The Republic of Cyprus came to independence in 1960 by virtue of a series of international agreements. However, unlike other decolonised territories, it was subject to Treaty of Guarantee provisions in favour of the United Kingdom, Turkey and Greece. In 1974, Turkey, invoking the coup by the Greek Junta against the legitimate Cypriot government of Archbishop Makarios, invaded and proceeded to occupy northern Cyprus. This initial action, however, hardened into a prolonged and continuing occupation which has now continued for over 30 years and which has involved a series of human rights violations as attested by the organs of the European Convention of Human Right. Since 1974, Cyprus has been divided into the Republic of Cyprus recognized by the international community and the “Turkish Republic of Northern Cyprus”, an entity declared invalid by UN Security Council resolutions 541 (1983) and 550 (1984) and recognized and sustained only by Turkey. While roughly half of the Turkish Cypriot community has emigrated since the 1974 events, mainly to the United Kingdom, more than 120,000 Turkish settlers are now living in northern Cyprus, transforming the Turkish Cypriots into a minority within their own constituency. The population of Cyprus at present (settlers apart) is 802,500 of whom some 80% are Greek Cypriots, 11% are Turkish Cypriots (this figure was 18% in 1974) and 9% are Armenians, Maronites, Latins and alien residents.

6.         The Annan Plan as presented in its final version by the Secretary General of the United Nations on 31 March 2004 provided for a federal state, the “United Republic of Cyprus”, replacing and abolishing the existing Republic of Cyprus and incorporating the occupied northern area. On 24 April 2004, two separate referendums were held. While 65% of the Turkish Cypriot and settler voters in the occupied north accepted the Annan plan, 76% of their Greek Cypriot counterparts in the Republic of Cyprus rejected it. On May 1st, 2004, the Republic of Cyprus as a whole became a member state of the European Union. An Additional Protocol to the Treaty of Accession provided for the temporary suspension of the acquis communautaire in the occupied areas. Negotiations on Turkey’s accession are about to start.
The Fundamental Principles

  • The Peaceful Settlement of Disputes

a) The Meaning of the Principle
7.         Article 2 (3) of the United Nations Charter provides that; “All members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered”. Accordingly, a settlement that does, or appears likely to, endanger international peace and stability and is inconsistent with accepted standards of justice cannot be consistent with the obligations upon all states laid down in the Charter.

b) Annan Plan Deficiencies
8.         The terms of the Annan Plan would in fact have embedded instability into the heart of a Cyprus settlement and would inevitably have led to increasing friction and destabilisation. This is underlined by the provisions concerning the position of foreign nationals with effective control over key areas of governmental activities in Cyprus. Examples where non-Cypriots would (in the event of disagreement between the equal numbers of Greek and Turkish Cypriots) have effective control appeared to include the Reconciliation Commission; the Supreme Court invested with legislative and executive powers; the Central Bank; the Relocation Board; the Property Court and the organs of the Property Board. Bearing in mind the experience of the period 1960-63, the need for stability in the ordering of governmental activities is critical. Further, the foreign nationals concerned would not be democratically accountable to the people of Cyprus.

9.         Any settlement of an international dispute must also be in accord with justice. This point is noted below (paragraph 15) in relation to the fundamental principle of respect for human rights.

  • The Sovereignty, Independence and Equality of States

a) The Meaning of the Principle
10.       International law, as well as EU law, is founded upon the recognition of independent and sovereign states. Consequential principles include the obligations of non-intervention in the internal affairs of states and respect for the territorial integrity of all states. In addition, the right of self-determination provides that while peoples within a state have the right to participate in the governance of that state, the free choice of the people of a state, conforming to fundamental international and European values must be respected on the international level.

b) Annan Plan Deficiencies
11.     The Annan Plan is founded upon the abolition of the legitimate and recognised Republic of Cyprus. Further, the right of intervention in the internal affairs of Cyprus, reserved to Greece, Turkey and Great Britain as the Guarantor Powers according to the Treaty of Establishment of 16 August 1960 and extended in the Annan Plan to cover the territorial integrity, security and constitutional order of both the federal “United Cyprus Republic” and the constituent states, constitutes a significant limitation on the sovereignty and independence of Cyprus and a challenge to the international and European legal orders. This was underlined by the proposed creation of a Monitoring Committee, composed of representatives of the guarantor powers, the constituent states and the UN, to monitor the implementation of the Annan Plan settlement and with the power to make recommendations. Furthermore, the Annan Plan provided for the permanent demilitarisation and disarmament of the new Cypriot state, thus raising questions as to the right to self-defence.

12.     In addition, one notes under the Annan Plan the right of the UK to complete and unimpeded access for any purpose whatsoever to the waters between the Sovereign Base Areas’ waters and the fact that international judicial or third party settlement procedure is expressly forbidden with regard to disputes concerning the Sovereign Base Areas. Such disputes were to be resolved by an arbitrator appointed by the authorities of the Sovereign Base Areas.

  • The Prohibition of the Act and Consequences of Aggression

a) The Meaning of the Principle
13.     The prohibition of aggression is at the heart of the international legal order. It is enshrined in international law in general terms, in international criminal law, and with regard to specific situations. Prohibiting the consequences of aggression means rejecting the benefits obtained as a result of illegal aggression and is enshrined, for example, in the jus cogens norm of the non-acquisition of title to territory as a result of aggression. In the context of Cyprus, the UN Security Council adopted resolutions 541 (1983) and 550 (1984) declaring the purported “Turkish Republic of Northern Cyprus” to be illegal and calling upon all states not to recognise it. Further, the implantation of settlers from Turkey in an attempt to manipulate the demography of the island of Cyprus runs counter to the principles of international law, especially those relating to self-determination and human rights. In particular, Article 49 of Geneva Convention IV on the Protection of Civilian Persons 1949 (ratified by both Cyprus and Turkey) prohibits the transfer by an occupying power of part of its own civilian population into the occupied territory. It should, of course, be noted that, having established the illegality of the position of the settlers, the question of the future of the settlers and their families is a separate matter to be determined by the parties concerned within the framework of an overall just and fair settlement and in a manner consistent with international and European law.
b) Annan Plan Deficiencies
14.     The Annan Plan provided for the legitimisation of acts of the “TRNC” and by extension of the “TRNC” itself. The Plan declared that all acts of any authority on the island of Cyprus (excluding the Sovereign Bases Areas) would be recognised as valid unless the particular act at issue was inconsistent with international law, irrespective of the question of the status of the authority in question. Equally seriously, the provisions of the Plan in relation to the settlers from Turkey were hardly consistent with international law. First, the Plan permitted the settlers to vote in the Turkish Cypriot referendum, even though the former now constitute a majority of inhabitants of the north and even though this recognised as a decisive constitutional force an illegal consequence of an illegal aggression. The UN has not envisaged settlers voting in internal self-determination elections in other situations, such as the West Bank and Gaza, Western Sahara and East Timor. Secondly, the status of the settlers is legitimised in addition by permitting large numbers of them to stay in the north. It goes without saying that in any solution to the dispute, the settlers must be treated in a humane manner and in a way which is consistent with international human rights law. As such the position of the settlers is different from that of the substantial number of Turkish troops in occupied northern Cyprus. The presence of such troops in the current situation clearly constitutes an affront to the principles of democracy and human rights and a symbol of aggression.

  • Respect for Human Rights

a) The Meaning of the Principle
15.     Respect for human rights requires the government to promote and fully to respect the fundamental rights and freedoms granted to the individuals by international conventions, the European legal order and national constitutions. Human rights play a critical role in international law and in European law. The European Convention on Human Rights binds Cyprus and Turkey. The European Court of Human Rights has held on several occasions that, since 1974, Turkey is directly responsible for continuing violations of basic fundamental rights by occupying the Northern part of Cyprus, by preventing displaced Greek Cypriot citizens from returning to their homes and property or from having access to and enjoyment of them, by not investigating the fate of thousands of still missing persons and by failure to protect freedom of religion and freedom of expression. These decisions, unprecedented in scope and gravity, have still not been fully implemented. Further, the rights enshrined in the European Convention constitute fundamental principles of the European Union, which itself is based upon the principles of liberty, democracy, respect for human rights and rule of law. The European legal order, therefore, both through the European Convention of Human Rights and the acquis communautaire, provides the most stringent and efficient system of protection of human and minority rights worldwide. Moreover, both Cyprus and Turkey are parties to the International Covenant on Civil and Political Rights, article 1 of which lays down the right of self-determination.
b) Annan Plan Deficiencies
16.     Under the Annan Plan, serious restrictions of political and civil rights, of freedom of residence, breaches of the prohibition of racial discrimination and severe violations of property rights and of the right to respect of one’s home would be maintained and even perpetuated for all Cypriot citizens during several decades and in certain cases permanently (eg. freedom to chose one’s residence). The question of settlers has been addressed above (paragraph 14). The Annan Plan would have prevented the right of all displaced Greek Cypriots from returning to their homes and would have significantly limited the right of Greek Cypriots who own property in the north from recovering their property. Further, the Annan Plan sought to deny the right of recourse to the European Court of Human Rights for property owners deprived of their rights (as determined by the Court) by the expedient of declaring the “United Republic of Cyprus” the appropriate respondent state, and thus absolving Turkey, and stating that existing applications should be struck out on the grounds that under the Plan adequate domestic remedies had been provided for. Parallel to this, the Plan provided that the Foundation Agreement was to be “primary EU law” in an attempt to prevent the EU’s Court of Justice from challenging it on the grounds of violating the fundamental principles of the EU.

  • Democracy

a) The Meaning of the Principle
17.     Democracy refers to the establishment and continued existence of a genuinely representative government responsive to the people. It requires that the basic rules establishing and organizing the state and its relationship with society be accepted by the citizens. It further requires full respect of the will of the people as expressed by the voters and/or their legitimate representatives. Democracy is founded on majority rule, in full recognition and application of individual, minority and group rights, as appropriate. The principle of democracy is an increasingly important part of international law, and at the very heart of European law. Article 3 of the Statute of the Council of Europe refers to pluralist democracy, respect for human rights and the rule of law as principles of the Council system, while article 6 of the Treaty on European Union declares the principles of liberty, democracy, respect for human rights and the rule of law as founding principles of the Union.
b) Annan Plan Deficiencies
18.     The Annan Plan process whereby agreements, constitutions and laws are sought to be imposed on an independent state without being the result of any democratic legislative process or dialogue cannot be consistent with the principle of democracy. Neither can strict reliance on arithmetic equality between two demographically unequal communities. A constitutional and institutional framework that requires mutual consent of the representatives of both ethnic communities on all levels of government and in each one of the three traditional powers (legislative, executive and judiciary) reserves a permanent right of veto to both, majority and minority. Leaving the final decision in case of stalemate to foreign citizens in such critical organs as the Supreme Court and others is in stark contradiction to the principle of democracy.
c) Call for a Constitutional Convention
19.     On April 24, 2004, 76% of the voters of the Republic of Cyprus in the government controlled area rejected the Annan Plan. This decision has to be accepted by both sides, as well by the international community, as a valid exercise of democracy and of the right to self-determination.
20.     Based on the 1960 Constitution, the Republic of Cyprus is the only internationally recognized and legal government of the island. Its accession to the European Union has put it under the protection of the latter, so that any solution of the Cyprus problem must commence with the existing institutions and legal order of the Republic of Cyprus as accepted by its people and internationally legitimised. From here, ways and means must be found to adapt the existing institutions and law adequately, taking into account the will of the people on both sides of the community divide, in order to recover democratic rule and full sovereignty in the internationally recognised territory of the Republic.
21.     The International Expert Panel believes that a democratic process of autonomous constitution-making consisting of several steps should enable all the people of Cyprus to overcome the present stalemate and to find means and measures that will eventually bring about re-unification and reconciliation consistent with the fundamental principles noted above.  To this end, it is noted that the concept of a Constitutional Convention as an instrument of democratic constitution-making has been successfully used particularly in the decolonisation process. Constitution drafting must be integrated in, and not separated from, the democratic political process.
22.     The Panel’s proposal is that a Constitutional Convention for Cyprus, democratically elected or designated so as to reflect appropriately the will of the voters and the aspirations of civil society of the different communities of the island, should have the sole responsibility for drafting and adopting a new Constitution for Cyprus, building on, and eventually amending or replacing, the existing 1960 Constitution of the Republic of Cyprus.
23.     The members of the Constitutional Convention should have complete liberty and responsibility for choosing whatever political system they may prefer, whether presidential, parliamentary or combinations thereof; for finding territorial arrangements by an appropriate decentralization scheme – in regions, districts, communes or whatever – and for shaping procedures that will be able to protect efficiently minority and human rights, in the interest of the people of all the communities in Cyprus. Experts both from within and from outside Cyprus may be asked to give advice and assistance to the Convention or its members. The only legal limits of the Convention’s sovereign constitutional power are strict compliance with European constitutional principles and the acquis communautaire, and international human rights and minority protection standards derived from international law and from the European Convention on Human Rights and other European instruments.
24.     The new Constitution as framed by the Convention should be submitted to separate and simultaneous referendums to be held on both parts of the island, according to the April 24, 2004 experience. Only the people of Cyprus can bring about the legitimacy essential for a new beginning. Any solution of the Cyprus problem must be legal and legitimate and must build on the only existing constitutional scheme that is recognized by the European Union and the international community, and that is the 1960 Constitution of the Republic of Cyprus. The procedures regulating the election or designation of the Constitutional Convention, its composition and functioning, as well as the holding of the constitutional referendums will have to be provided for by amendments to the 1960 Constitution. It is further proposed that the Constitutional Convention process take place under European Union auspices.

  • The Rule of Law

a) The Meaning of the Principle
25.     The rule of law in international law provides that all official activities must be undertaken in a way that is consistent with legal principles. It further means that legal processes must be established and respected in order for legal principles to operate effectively, so that, for example, the principle of due process is critical. As previously noted (paragraph 15), both the Council of Europe and the European Union are founded upon inter alia the principle of the rule of law.

26.     There can be no international rule of law in a territory illegally occupied by a foreign power. Indeed, the fact that a member state of the European Union is prevented from exercising its sovereignty over part of its internationally recognised territory challenges the reality of the European rule of law itself.
b) Annan Plan Deficiencies
27.     The Annan Plan proposed the replacement of the Republic of Cyprus by a new state that would with great difficulty have been able to provide for a stable government, since instability would have been embedded into it, as noted above. In addition, the restrictions on human rights and the ability to pursue them freely pursuant to the European Convention on Human Rights and under the European Union, and the general principles of international law including those norms derived from international treaties binding on Cyprus (e.g. the International Covenants on Human Rights) would have severely challenged notions of due process and the rule of law.
The Way Forward
28.     The International Expert Panel seeks a fair and equitable Cyprus settlement that allows the communities to achieve reconciliation and a peaceful and prosperous future. It therefore commends the Fundamental Principles of International and European Law as noted above to all relevant international institutions, including the United Nations, the Council of Europe, the Organisation for Security and Cooperation in Europe, but most particularly to the European Union in the light of the historic opportunity presented to it by the recent accession to membership of the Republic of Cyprus and the opening of accession negotiations with Turkey.
29.     The International Expert Panel recommends:
a) The acknowledgement of the aforesaid Fundamental Principles by those parties involved in seeking peace, justice and security in Cyprus.

b) The adoption of a Resolution in the European Parliament (and in other pertinent international institutions) reaffirming the Fundamental Principles.

c) The establishment in the European Parliament (and in other pertinent international institutions) of a monitoring mechanism by which the conformity of any proposed Cyprus settlement with the Fundamental Principles may be ensured.
d) The creation of a Constitutional Convention under European Union auspices and on the basis of the 1960 Cyprus Constitution to bring together the parties directly concerned in order to reach a settlement in conformity with the Fundamental Principles.
Conclusion
30.     The accession of the Republic of Cyprus to the European Union has fundamentally changed the internal as well as the external aspects of the Cyprus problem. Greek and Turkish Cypriots have now become citizens of the Union, enjoying the rights and subject to the duties provided for in the European legal order. The Republic of Cyprus is a member state and thus one of the “Masters of the Treaties”.
31.     Had the Annan Plan been accepted and implemented before accession, that very accession would have rested on shaky legal grounds, as the Union would have integrated a new member state which would not even have signed the accession treaty, while the Republic of Cyprus, which has signed the treaty, would have ceased to exist. Now that accession has become a reality, the abolition of the Republic of Cyprus through a revised Annan Plan is prevented by the very existence of the European Union.
32.     The European Union has the historic opportunity and the special responsibility for promoting a new process of democratic constitution-making in Cyprus and for convincing all communities to take part in such a process. In so doing, the European Union would ensure the application of its own principles and values, as well as those of international law generally, within the territory of one of its own member-states.

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APPENDIX: Article 6 of the Treaty on European Union

“1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

3. The Union shall respect the national identities of its Member States.

4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.”

 

 

* * *


International Expert Panel

Professor Andreas Auer, University of Geneva
Professor Marc Bossuyt,
Professor Thomas Bruha, University of Hamburg
Professor Thomas Fleiner, University of Fribourg
Professor Françoise Hampson, University of Essex
Judge Loukis Loucaides, European Court of Human Rights, Strasburg
Professor Silvio Marcus-Helmons, University of Louvain, Belgium
Professor Dieter Oberndörfer, University of Freiburg in Brsg.
Professor Malcolm Shaw QC, University of Leicester
Alfred de Zayas, Geneva
….

 

         

 

See the European Commission of Human Rights which referred to Turkish violations of the European Convention on Human Rights in the first two Cyprus v Turkey applications, 10 July 1976 and  the third  application, 4 October 1983 (published by the Committee of Ministers in 1992) and the European Court of Human Rights giving judgment in the fourth Cyprus v Turkey  application,  10 May 2001. See also below para. 15.

Referred to by the European Court of Human Rights as a “subordinate local administration” of Turkey, Loizidou v Turkey, decision of 23 February 1995, para. 62.

See also the 1970 Declaration on Principles of International Law Concerning Friendly Relations, resolution 2625 (XXV) and the Manila Declaration on the Peaceful Settlement of International Disputes, resolution 37/590.

See article 2 of the UN Charter and the 1970 Declaration on Principles of International Law Concerning Friendly Relations

See Article 2 (4) of the UN Charter, Chapter VII of the UN Charter and resolution 3314 (XXIX) on the Definition of Aggression.

See the Nuremberg Principles and the Statutes of the War Crimes Tribunals for the Former Yugoslavia and for Rwanda and the International Criminal Court.

See also resolution 83 (13) of the Committee of Ministers of the Council of Europe and the decision of the European Court of Human Rights in the Cyprus v Turkey case, 10 May 2001.

See the Advisory Opinion of the International Court of Justice on the Legal Consequences of the Construction of a Wall  in the Occupied Palestinian Territory, 9 July 2004,para. 119 and following.

Most significantly, the decision of the European Court of Human Rights, Cyprus v Turkey, 10 May 2001.

See the Rutili case, 1975, ECR 1219 and article 6 of the Treaty of European Union, 1999 (reproduced in the Appendix to this Report).

This situation would also have been incompatible with numerous UN resolutions on the right to return, see especially the study of the UN Sub-Commission on the Promotion and Protection of Human Rights by Special Rapporteur Awn Shawkat Al Kassawneh on the “Human Rights Dimensions of Population Transfers”, E/CN.4/Sub.2/1997/23.

See also the Charter of Paris, 1990.

Reproduced in the Appendix to this Report.  See also the European Community Declaration on the Recognition of New States, 1991.

See above para. 5.

See above para. 8.

For example the Framework Convention for the Protection of National Minorities, 1995, to which Cyprus is a party.

But conducted so as to exclude the competence of Turkish settlers, see above, para. 14.