EU and Cyprus: An Expert View Opinion of Professor M.H. Mendelson Q.C on the Application of “the Republic of Cyprus” to Join the European Union Page 3 The Law


The relevant International and National Law

77.The duties of the RC and the Guarantor States turn on the proper construction of the London Agreements (in which term I include the Treaties subsequently formally concluded at Nicosia on the basis of what was agreed in London in February 1959 -itself largely on the basis of the Zurich Agreements), together with the (original) Constitution of Cyprus. Before addressing their substantive provisions, it is necessary to consider a series of preliminary questions, relating to the initial validity and possible subsequent cessation of effect of the treaties.

Are the treaties valid in international law?

78.Some commentators sympathetic to the Greek Cypriot view have suggested that the Zurich-London Agreements and the 1960 Treaties may not be valid in international law because they were imposed on the inhabitants of Cyprus, whose representatives did not have the opportunity of negotiating them. (48)

79.However, the facts outlined above demonstrated that the Greek Cypriot community was advised at an early stage of the details of the Zurich Agreement, and more importantly that they were actually involved in the negotiation of the London Agreement and the 1960 Treaties. For example, in the minutes of the Foreign Office meeting, the Greek Foreign Minister is recorded as advising that Archbishop Makarios had been informed of the Zurich Agreement on, inferentially, either the day of the signing of the Zurich Agreement or the following day; also, that the Archbishop would have the opportunity of reviewing the Zurich Agreement on the evening of 12 February.

80.The London Conference commenced on 17 February 1959 and this was attended by Archbishop Makarios for the Greek Cypriots and Dr.Fazıl Küçük for the Turkish Cypriots. Further, the London Agreement comprises a number of documents including a “Declaration made by the Representative of the Greek-Cypriot Community on February 19, 1959”. As stated above, Archbishop Makarios declared in this that he had examined the Zurich Agreement and the Declarations of 17 February 1959 and accepted these as the agreed foundation for the final settlement of the problem of Cyprus. In addition, Archbishop Makarios signed or initialled all the documents comprising the London Agreement, including the Treaties of Alliance and Guarantee, with the exception of the Memorandum of the Conference (which was signed by the Premiers of the Guarantor Powers only) and the Agreed Measures (which was initialled by the Foreign Ministers of the Guarantor Powers only).

81.According to the Agreed Measures, a Joint Committee in London was to prepare the final treaties “giving effect to the conclusion of the London Conference”. This was to consist of a representative from each of the Parties including one from the Greek Cypriot community (as well as one from the Turkish Cypriot community). The Joint Committee took fifteen months to complete negotiations, which took place in both London and Cyprus. This strongly suggests that the Greek Cypriots had the opportunity of thoroughly negotiating these Treaties. As a result, the wording of the Treaties of Guarantee and Alliance were slightly amended. (There was non pre-existing draft of the Treaty of Establishment.)

82.On 16 August 1960, the Treaties of Guarantee and Alliance and Establishment were signed in Nicosia; amongst the parties to sign it was Archbishop Makarios, who was by now President-elect.

83.From the above, it does not seem to me to be arguable that the Treaties were imposed on the Greek Cypriot community without their consent. Admittedly, this consent may have been grudging: Archbishop Makarios was at the time strongly in favour of enosis. According to the Greek Cypriot Press and Information Office, “the only reason the Cypriot people’s representatives signed them was because the sole alternative would have been the continued denial of independence and freedom, continued bloodshed and, possibly, the forced partition of Cyprus”. (49) But just because the Greek community had to settle for something less than its ideal does not mean that it or its representatives were coerced within the narrow meaning of coercion to be found in for instance, Articles 51 and 52 of the Vienna Convention of the Law of Treaties 1969. So far as I am aware, it has not been suggested that there were any acts or threats directed against the person of the Archbishop, nor the threat of force against the RC itself. Mere inequality of bargaining power does not constitute coercion.

84.It has also been argued that the Treaty of Guarantee is void because Article IV, in allowing for the unilateral use of force to maintain the status quo in Cyprus, conflicts with a rule of ius cogens (a peremptory norm of general international law) -that is, a norm accepted and recognized by the international community of States as a whole as a principle from which no derogation is permitted. Pausing here, it should be noted that there is considerable disagreement in the international community as to exactly what norms are comprised in this category. It has to be conceded, however, that the prohibition of the use of force against the territorial integrity or political independence of a State is a rule which definitely does fall into this category. (50)

85.But the Vienna Convention is not retrospective, (51) and before 1969 the very existence of ius cogens in international law was very much contested. Therefore, even if -for the sake or argument- the provisions permitting intervention would contravene a norm of ius cogens under present-day law, it by no means necessarily follows that Article IV of the Treaty of Guarantee -still less the Treaty as a whole- would have been avoid ab initio. It is true that Art. 64 of the Vienna Convention provides that “If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”. But firs, this does not retrospectively invalidate the treaty; and secondly, even if Art. IV of the Treaty of Guarantee became invalid as the result of an new rule of ius cogens, that Article could very possibly be severed from the rest of the Treaty, and it is Arts. I & II which are in issue here. (52)

86.Furthermore, and very importantly, the Vienna Convention (53) lays down a formal procedure to be followed in the event that a party to a treaty invokes a ground for impeaching its validity of that treaty. This procedure involves a formal notification in writing to the other parties to the treaty. Although the Greek Cypriot administration has from time to time made imputations about the London Agreements, and in particular the Treaty of Guarantee, so far as I am aware, no party has invoked this procedure or taken other formal steps. Indeed, in the case of Cyprus v. Turkey before the European Commission of Human Rights, the Greek Cypriot administration, whilst arguing that the Turkish intervention of 1974 violated the Treaty of Guarantee, appears to have accepted the validity of the Treaty as such. (54) This is corroborated by its argument that the establishment of the Turkish Federated State of Cyprus “was incompatible with the constitutional structure of the Republic of Cyprus as envisaged by the Cyprus Constitution and contrary to the Treaties of Establishment and Guarantee...”. (55) The Declaration adopted by the Turkish Cypriot Parliament on 15 November 1983 unequivocally states that the TRNC “shall continue to adhere to the Treaties of Establishment, Guarantee and Alliance”. (56)

87.In any event, the three Guarantor States themselves do not appear to regard the London agreements as invalid. Turkey certainly does not, and indeed relied on the Treaty of Guarantee to justify its 1974 intervention. So far as Greece is concerned, although it maintains that the Constitution became unworkable, it has not, I am advised and so far as I know, taken the position that the London Agreements are invalid or not otherwise in force. Indeed, by arguing that the establishment of the TRNC is a violation of the 1960 agreements, and by emphasizing its special position as a “guarantor power with special legal responsibility regarding the Republic of Cyprus” it evidently relies upon them. (57)

88.The United Kingdom apparently does not question the validity of the treaties either. In 1979 the Government spokesman, in explaining why they recognized only one Government in Cyprus, relied expressly on the 1960 agreements. (58) In 1987 Baroness Young, Minister of State at the Foreign and Commonwealth Office, confirmed to the Foreign Affairs Committee of the House of Commons that “We believe that the 1960 Treaty of Guarantee still applies in which we are a guarantor and continue to play that role...”. (59) More recently, the acting head of the Southern European Department of the Foreign and Commonwealth Office swore an affidavit on 25 April 1994 in the case of R. V. The Commissioner for the Inland Revenue, ex parte Resat Caglar, in which he asked the Court to take into account “the obligations of the United Kingdom under the Treaty of Guarantee.” (60)

89.The Security Council, too, has apparently recognized the validity of these agreements more than once. For instance, in Resolution 353 (1974) it pronounced itself “concerned about the necessity to restore the constitutional structure of the Republic of Cyprus, established and guaranteed by international agreement”, and in Resolution 541 (1983), it asserted that the declaration of independence by the TRNC was “incompatible with the 1960 Treaty concerning the establishment of the Republic of Cyprus and the 1960 Treaty of Guarantee”. (61) In Resolution 774 of 26 August 1992, it endorsed, as “the basis for reaching on overall framework agreement”, the Secretary-General’s “Set of Ideas on an Overall Framework Agreement on Cyprus” which, amongst other things, confirms the continuation in force of the 1960 Treaties of Guarantee and Alliance. (62)

90.In conclusion, it appears therefore that an argument based on the invalidity of the London Agreements and the Treaties which resulted from them is unfounded.

Have these Agreements been terminated?

91.Treaties may be terminated by either consent of the parties, or by virtue of a rule of law authorizing their termination. (63) Since there has been no agreement of all the parties to the termination of the Agreements, the only possible question is whether there is a rule of law authorizing such termination.

92.There grounds of termination could theoretically require consideration: (1) material breach by one of the parties; (2) supervening impossibility of performance; and (3) fundamental change of circumstances. (64) But in the circumstances of the present case it seems unnecessary to inquire further into whether any of these grounds are present here. The reason is that, as just indicated in relation to the alleged initial invalidity of the Treaties, none of the parties seems to have formally sought to terminate the treaties or withdraw from them on any of these grounds -not even the Greek Cypriot administration. (65) And even if I were wrong about the position of the latter, the three Guarantor Powers have not taken this position but, as we have already seen, in fact continue to rely on the Agreements for various purposes. The same is true of the Security Council.

93.So far as the United Kingdom is concerned, to date the official position remains as I have described it above. Indeed, apart from legal considerations, it would be surprising if, even as a matter of policy, the British Government were to perceive it to be in its interest to change that approach, not least for the reason given by the House of Commons Foreign Affairs Committee in 1987.

The interlocking nature of the founding treaties of the Republic of Cyprus effectively compels the United Kingdom Government to continue to subscribe to the Treaty of Guarantee if the whole edifice (including British sovereignty over the (Sovereign Base Areas) (66) is not to collapse. As the Greek Cypriot Foreign Minister so eloquently put it to us in evidence, ‘one thing Britain cannot do is to have à la carte application of parts of the Treaties only’.” (67)

The 1960 Constitution

94.The main points of the future constitution of Cyprus were contained in the Basic Structure agreed at Zurich which was supplemented at the London Conference in 1959. (68) As already indicated, that Conference also adopted “Agreed Measures” providing (amongst other things) for a Joint Commission in Cyprus to complete a draft Constitution incorporating these articles and the relevant provisions of the other agreements reached in Zurich and London. The Joint Commission was to be made up of one representative from each of the parties to the London Agreement (except the UK). The Joint Commission took fourteen months to negotiate the draft Constitution and made some amendments to what was agreed at the London Conference. The draft was signed on 6 April 1960 in Nicosia.

95.The Constitution was given international standing by the Zurich-London Agreements, which the Greek Cypriot representative, Archbishop Makarios, declared he accepted as the agreed foundation for the final settlement of the problem of Cyprus” -and in particular by the Treaty of Guarantee. I analyse the relevant treaty provisions in the next section; but first, I consider the Constitution itself, for the regime which it establishes is what was guaranteed.

96.The Constitution provides for political equality between the two communities notwithstanding the numerical superiority of the Greek Cypriots. Accordingly, it contains many checks and balances to maintain this status quo, and is more complex and detailed than most constitutions of newly independent states. As we have seen, in 1963, Archbishop Makarios sought to amend the Constitution, including some unamendable provisions; and when the Turkish community withheld its (requisite) approval, he anyway purported to enact laws which were clearly incompatible with the Constitution, including its unamendable provisions.

97.National constitutions are often not only amended in accordance with their terms, but also overturned by bloodless or bloody coups. If they are overturned, whatever the legality under the “old” constitution, in practice, if the coup is successful, the new constitution comes to prevail. And international law does not in general prohibit such acts. (69) However, the case of Cyprus is different. As we have seen, the basic structure of the constitution is guaranteed (and not just by the Guarantor Powers, but by the RC itself) in the Treaty of Guarantee and the Agreed Measures in particular. Furthermore, Article 182 and Annex III made certain articles, including those enshrining the bi-communal arrangements and that giving constitutional force to the Treaties of Guarantee and Alliance, (70) unamendable “Basic Articles” (71) In short, the bi-communal structure of Cyprus was sanctified by “particular” international law, binding on the various parties. But it is arguable that these arrangements also became part of general international law. There may also be similarities here to the status of Switzerland, whose permanent neutrality has long been recognized as part of the general “public law of Europe”. (72) Indeed, the similarity is not just due to the fact that this status was initially guaranteed by treaty a limited number of European powers; it extends to the reason for that permanent neutrality, which was in large part that, due to the different ethnic composition of the various cantons, if the Swiss Confederation did not maintain its neutrality in wars between or involving France, Italy or Germany, it risked being torn apart.

98.The official position of the Greek Cypriot authorities with regard to the constitutional crisis of 1963 is that the Constitution “proved unworkable in many of its provisions and this made impossible its smooth implementation.” (73) “They apparently maintain that they are continuing to operate the 1960 Constitution, subject to the doctrine of necessity. This is how they put it in the case of Cyprus -v- Turkey. (74) The Constitution of the Republic remains in force and is applied by the Government of Cyprus subject to the well established doctrine of necessity, i.e. to the extent that it is impossible to comply with some of its provisions that require the participation of the Turkish Cypriots, the Government has to take exceptional measures which, though not in conformity with the strict letter of the Constitution, are necessary to save the essential services of the State temporarily until the return to normal conditions so that the whole state might not crumble down.”

99.This statement is, however, open to question. In the first place, the state of necessity seems to have been largely self-induced. Secondly, as a matter of constitutional law in common law countries, it is very controversial whether necessity is in fact a justification for violating the provisions of the constitution. Moreover, it is not just a question of domestic law; as we have seen, the constitutional settlement in this case was underpinned by valid and subsisting international commitments.

Application of the relevant provisions of the Treaties and Constitution

100.On 4 July 1990, the authorities in Nicosia applied for accession to the (then) European Communities. The TRNC responded by sending to the Council of Ministers a Memorandum dated 12 July 1990, and a Supplementary Note dated 3 September 1990, setting out its objections to the application.

101.The European Commission handed down a favourable opinion on 30 June 1993,. In its opinion, the Commission referred to the challenge to the application by the “de facto authorities of the northern part of the island.” It went on:

these authorities rejected the right of the Government of the Republic of Cyprus to speak for the whole of Cyprus in such an approach. They based their position on the Guarantee Treaty and the wording of the 1960 Constitution, which grants the President and Vice President (a Turkish Cypriot) a veto over any foreign policy decision, particularly any decision on joining an international organisation or alliance that does not count both Greece and Turkey among its members. They consider, accordingly, that in the prevailing circumstances the Community should not take any action on the application.

The Commission dismissed these arguments by stating that; “The Community, however, following the logic of its established position, which is consistent with that of the United Nations where the legitimacy of the government of the Republic of Cyprus and non-recognition of the ‘Turkish Republic of Northern Cyprus’ are concerned, felt that the application was admissible.” (75)

102.There is no proper analysis of the TRNC’s argument, so it is unclear what exactly is the “logic of the Community’s established position”. What the Commission seems to have meant was that, having adopted a policy of non-recognition of the TRNC, it had to recognize the Nicosia authorities as alone entitled to represent the RC. Be that as it may, it appears, however, that the Commission’s main concern at this time was whether Cyprus met the European Community’s own requirements for membership, not whether there were any impediments to membership under the Treaties establishing the Republic, or the Republic’s own Constitution.

103.No further reference was made to these legal arguments in either the Council’s conclusion that it supported the commission’s opinion on 4 October 1994, nor in the European Parliament’s resolution of 12 July 1995 endorsing the Commission’s opinion and the Council’s conclusions.

104.There are valid objections, however, to the application to join the European Union, based on the London, Zurich and Nicosia agreements, which I shall now discuss.

105.A very important provision in this regard is Article I(2) of the Treaty of Guarantee, by which “(The Republic of Cyprus) undertakes not to participate, in whole or in part, in any political or economic union with any State whatsoever. It accordingly declares prohibited all activity likely to promote, directly or indirectly, either union with any other States or partition of the Island.” This language is certainly wide enough to cover the accession of the RC to the EU.

*Membership would amount to participation in whole, let alone in part, in an economic union. (76)

*To the extent that the EU also constitutes a political union, this part of the undertaking would also be infringed.

*Membership would also be “likely to promote, directly or indirectly, union with” Greece The very name of the organization, the European Union, bears out the fact that it is about union between the members.

106.It might perhaps be objected that the text uses the singular “any State” in two places, whereas the union in question would be with States. However, such an objection would be unfounded. Admittedly, what the framers were particularly concerned about was union with either Greece or Turkey -single States. Nevertheless, as a matter of drafting and the ordinary use of the English (and French) language, the singular usually includes the plural and “any State (whatsoever)” (77) This interpretation also accords with common-sense. Suppose, for example, that Cyprus had joined an economic or political union whose only other members were Greece and, say, Malta. It is hard to believe that this would not have come very close to enosis, and sufficiently close for the draftsmen, if asked by the proverbial “officious bystander”, to have replied that they certainly intended to prohibit such a thing. It would be no answer to this point to observe that we are here dealing with a union involving fifteen other States, not two. Cyprus is far more closely connected to Greece politically, militarily, economically, ethnically, and geographically, than it is to any other member State, and this situation would no doubt continue after accession. Furthermore, it should be noted that in Article I(2) the Republic not only undertook to refrain from participating in any political or economic union; it even promised to refrain from “any activity aimed at promoting, directly or indirectly... union of Cyprus with any other State”.

107.It is not just the RC who gave undertakings in this regard. The counterpart of its undertaking in Art. I(2) is that of the three Guarantors, in Art. II(2). Having noted the RC’s undertakings, they “likewise undertake to prohibit, so far as concerns them (pour ce qui relève de’eux), any activity aimed at promoting, directly or indirectly, ...union of Cyprus with any other State”. If follows, in my view, that the two Guarantors concerned, the UK and Greece, are under an obligation of their own to refrain from promoting Cyprus’ membership of the EU and, indeed, to use their veto to prevent it.

108.Various provisions of the Cyprus Constitution bear out this interpretation. (78) It will be recalled that in Art. I of the Treaty of Guarantee, the RC undertook to ensure “respect for its Constitution”, whilst in Art. II, the three other parties guaranteed “the state of affairs established by the Basic Articles of its Constitution”. These Articles derive to a considerable degree from the Basic Structure agreed at Zurich and London, to which the RC, the three Guarantors, and the two Cypriot communities agreed.

*Art. 185(2) provides that “The integral or partial union of Cyprus with any other State... is excluded”.

*Art. 170 provides in pertinent part that “That Republic shall, by agreement on appropriate terms, accord most-favoured-nation treatment to the Kingdom of Greece, the Republic of Turkey and the United Kingdom of Great Britain and Northern Ireland for all agreements whatever their nature might be.” This implements Art.23 of the Basic Structure. It will be recalled that, at the London meeting of 12 February 1959 of the three Foreign Ministers, the question of its meaning was discussed. (79) In reply to a question from Lord Perth, the Foreign Ministers of Turkey and Greece indicated that “The intention was to exclude more favourable bilateral agreements between Cyprus and countries other than the Three Powers, and also to avoid the possibility of either Greece or Turkey securing a more favourable position in Cyprus than the other -of Greece, for example, establishing a kind of economic enosis.” The proposed entry of the RC into the EU would doubly violate the letter and spirit of this provision. In the first place, it would tend to encourage the kind of economic enosis with Greece which the drafters of the Zurich and London agreements plainly intended to prohibit. Secondly, there can be no doubt that, if Cyprus joined the EU, this would result in Greece and the UK receiving considerably more favourable treatment than Turkey, which is not a member.

*Article 50 implements Article 8 of the Basic Structure, in proving (in pertinent part) that “The President and the Vice-President of the Republic, separately or conjointly, shall have the right of final veto on any law or decision of the House of Representatives or any part thereof concerning -(a) foreign affairs, except the participation of the Republic in international organizations and pacts of alliance in which the United Kingdom of Greece and the Republic of Turkey both participate. “ (80) This question, too, came up at the Foreign Office meeting on 12 February 1959, albeit at that stage in connection with the proposed Art. I(2) of the Treaty of Guarantee. (81) In response to the British Foreign Secretary’s question whether this provisions would preclude membership in international associations -that is, intergovernmental organizations- such as a possible European Free Trade Area, “M.Zorlu and M. Averoff both made it clear that there would be no objection to Cypriot membership of international associations of which both Greece and Turkey were members, e.g. the (Universal) Postal Union, and any Free Trade Area”. The corollary is that there could well be objection to membership of an organization of which only one of these two was a member.

*It might perhaps be objected that the mechanism chosen to further this goal was the vice-presidential veto, but since there is no longer a (Turkish) Vice-President to wield the veto, the provisions is a dead letter. But in my view, such an objection would not be valid. It seems that the main reason why there has not been such an official for sometime is that, from 1963/4 onwards, he was prevented by the Greek Cypriots from acting. In any case, the Vice-President’s veto was but the mechanism by which the Turkish community could be assured that the Republic would not join an organization of which Greece alone was a member (and vice-versa). In other words, it was clearly the intention to prohibit membership of organizations with this sort of partial membership, unless both communities agreed. It is quite clear from the above-mentioned TRNC Memorandum and supplementary Note to the EU that the Turkish community does indeed object.

*The interchange at the Foreign Office meeting also provides the clearest proof that the drafters of the Treaty of Guarantee understood the references in it to “union with any State” to include States (in the plural), and specifically to include international organizations of States, of which the EU is, of course, a specimen. It will be noted that it was specifically in the context of proposed Article I(2) of the Treaty of Guarantee that the exchange took place.

109.I therefore conclude that the application by the Greek Cypriot administration to join the EU is in breach of its treaty obligations, not to mention its purely domestic legal obligations; and, further, that any encouragement of such an application by Greece or the UK, or a failure use their veto or any other necessary means to prevent its succeeding, would be a breach of the treaty obligations of those two States towards each other, towards Turkey, and towards the inhabitants of Cyprus as a whole.

Does the constitution of the European Union permit or envisage applications such as the present one?

110.Article 0 of the Treaty on European Union reads:

Any European state may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.

The conditions of admission and the adjustments to the Treaties on which the Union is founded which such admission entails shall be the subject of an agreement between the member States and the applicant State. This agreement shall be submitted for ratification by all Contracting States in accordance with their respective constitutional requirements.

111.”European” is deliberately not defined, so as not to limit the frontiers of the European Union. (82) The Commission in its opinion said that Cyprus had “beyond all doubt” a European identity and character. It is less convincing about whether or not the Nicosia authorities can claim to represent all the people of Cyprus and indeed the State of Cyprus, and undertake obligations on their behalf which it is able to perform. On the one hand the Commission advises that the member States of the European Union recognise the Nicosia Government as the only legitimate government representing the Cypriot people; but on the other, the Commission acknowledges the de facto partition of the island and separation of the communities, and the consequence that; the fundamental freedoms laid down by the Treaty, and in particular freedom of movement of goods, people, services and capital, right of establishment and the universally recognized political, economic, social and cultural rights could not today be exercised over the entirety of the island’s territory. These freedoms would have to be guaranteed as part of a comprehensive settlement restoring constitutional arrangements covering the whole of the Republic of Cyprus. (83)

112.The European Court of Justice has itself highlighted the practical difficulties which stand in the way of effect being given to the principles to which the Commission referred. R.v. Minister of Agriculture, Fisheries & Food, ex parte S.P. Anastassiou (Pissouri) Ltd. (84) arose on a request from the English High Court of Justice for a preliminary ruling. It concerned the question of the certification of agricultural products originating in Cyprus, under the EEC-Cyprus Association Agreement. The goods in question originated in the TRNC, and the UK and the Commission argued that, in the circumstances obtaining in Northern Cyprus, Member States were obliged to accept movement and phytosanitary certificates emanating from the de facto authorities there, in order to prevent discrimination between nationals or companies of Cyprus. The Court recognized the practical difficulties, but in its Judgement (85) held that this did not warrant a departure from the clear terms of the 1977 Protocol on the origin of products and administrative co-operation, when the Community and its members, and of course the Nicosia authorities themselves, did not recognize the TRNC.

113.The TRNC has argued that the Greek Cypriot Government has no authority to represent the whole of the country, or the Northern part of it. But aside from that, there can be little doubt that the Anastassiou case is symptomatic of the practical and legal problems that can arise if the RC is admitted to the EU. The Nicosia Government will in many respects not be in a position to fulfil its undertakings towards the other Members; and the other Members may well experience practical difficulties in fulfilling their obligations towards Cyprus as a whole. Moreover, the EU is not only the about reciprocal rights and duties of States; it is also about individual rights of the citizens of the Union, and in that regard, too, there could well be very serious difficulties. (86)

114.No member has yet been admitted to the EU whose writ did not run over virtually the whole of its territory. (87) But the Greek Cypriot administration it is unable to exercise its authority over about one-third of the territory which it claims to represent. The difficulties to which this could give rise would be unprecedented in the history of the Union.

115.In its Opinion, the Commission frankly recognized these difficulties. But its solution was to press on regardless. It seems to hope that, by agreeing that the Greek Cypriot administration is eligible for admission, it will assist the Security Council or otherwise contribute to the political solution of the Cyprus problem. Opinions may differ as to whether the EU’s action will prove a positive contribution; the opposite could turn out to be the case. But confining ourselves to the more strictly legal domain, what can be said with confidence is that, if the EU went so far as to admit the RC before a political solution had been reached, the technical difficulties are likely to be very great indeed.


48. See e.g. Palmer, “The TRNC: Should the United States Recognise it as an Independent State?”, 4 Boston Univ. Int. Law Jl. (1986), p. 425, esp. At pp. 431-3. Cf. Press & Information Office, RC, The Cyprus Problem (1959), pp. 6-8.

49. The Cyprus Problem (n. 48 above), p.6.

50. Cf. The International Law Commission’s Commentary to Art. 50 of its draft articles on the Law of Treaties, Report of the ILC on the 2nd part of its 17th session and on its 18th Session. GA Off. Records, 21st Sess., Supp. No.9, p. 76: Military & Paramilitary Activities in & against Nicaragua, ICJ Rep. 1986, pp. 100-1.

51. Article 4.

52. Art. 44 of the Vienna Convention prohibits separation in respect to treaties which contravene Art. 53, but no 64. Cf. Also Art. 71(2) (b).

53. Articles 65-68.

54. ECHR, 13 Decisions & Reports (1978), p. 116.

55. Ibid., pp. 119-20.

56. Paragraph 23 (e).

57. See e.g. Greece’s International Position. 3: The Cyprus Issue, pp. 7 & 11. See also the Geneva Declaration by the three Guarantors of 30 July 1974, above, para. 60. For the sake of completeness, I should also deal with the suggestion that the RC’s consent to the Treaties of Guarantee and Alliance was not valid, because the House of Representatives did not approve ratification (see e.g. The Cyprus Problem. N. 48 above, p. 8). But this argument does not seem applicable to a State in statu nascendi; and in any case, so far as I know it has not been formally invoked by the Greek Cypriot administration as a ground of invalidity.

58. Parliamentary Debates (Lords), vol. 401, col. 2024 (25 July 1979).

59. 1968-87 Session, 3rd Report, Minutes of Evidence, question 100.

60. “UK Materials on International Law 1994”, 65 BYIL (1994) 590.

61. There is a possible view that the Security Council and General Assembly have doubts about the validity of the Treaty of Alliance; of. GA Resolution 33/15 of 1978 and SC Res. 927 (1994), calling for, respectively, a total withdrawal, or a reduction of, foreign troops in Cyprus. However, the Treaty of Alliance does not seem to be in issue in the context of the present Opinion.

62. UN doc. S/24472 (21 Aug. 1992), paragraph 54.

63. Cf. Vienna Convention on the Law of Treaties, Arts. 54-72. Suspension of the treaties does not seem to be an issue here.

64. Ibid., Arts. 60-62. Emergence of a new rule of ius cogens has already been discussed.

65. There May be a suggestion to the contrary so far as concerns the latter’s position regarding the Treaty of Alliance; of. Tornaritis (Attorney-General of theGreek Cypriot administration), Cyprus and its Constitutional and other Legal Problems (2nd ed., 1980), p. 60; but the Treaty of Alliance is not in issue here.

66. Emphasis added.

67. 3rd Report, 1987-87 Session, paragraph 10.

68. Above, paragraphs 4-30.

69. Though human rights conventions and customary law may impose some limitations.

70. Article 181.

71. See above, paragraph 38.

72. See e.g. Rousseau, II Droit international public (1974), 308.

73. “RC”, Cyprus: The Way to Full EU Membership (3rd ed., 1995), p.5.

74. European Commission on Human Rights; 13 Decision & Reports (1978), p.116.

75. Doc. COM/93/313 final, 30 June 1993, p.4.

76. There are some interesting parallels here with the Austria-German Customs Union case (1931), PCIJ Ser. A/B, no.41, p.37. in which the Permanent Court of International Justice held that Austria’s entry into a customs union with Germany would constitute an alienation of its economic independence, contrary to Geneva Protocol I of 4 October 1922.

77. The UK’s Interpretation Act. 1978 (c.30), s.6 provides, for instance: “In any Act, unless the contrary intention appears... (c ) words in the singular include the plural and words in the plural include the singular”. Similarly section “of the Code of the Laws of the United States of America: 1 USC, sect. 1, (1982).

78. See above, paragraphs 34-39.

79. Above, paragraph 8.

80. See also paragraph 34 above.

81. Above, paragraph 7.

82. Boss & Forman, “Enlargement: Legal & Procedural Aspects”, 32 CML Rev. (1995), pp. 95, 98.

83. Opinion of the Commission, doc. COM/93/193 final, paras 8-10.

84. (1994) 1 ECR 3087.

85. Esp. At paragraph 37 ff.

86. Cf. Booss & Forman, op. Cit., p. 101.

87. The case of the Federal Republic of Germany before unification with East Germany is not, as it might at first sight appear, a precedent. The Federal Republic did not claim to have, and did not possess, the power to conclude treaties on behalf of East Germany, and it did not purport to exercise sovereignty there. Cf. Mann, “Germany, and it did not purport to exercise sovereignty there. Cf. Mann, “Germany’s Present Legal Status Revisited”, 1967 ICLOQ, 760, reprinted in his Studies in International Law (1973), p. 660, esp. At p. 702; O’Keefe, “The Legal Implications of East Germany’s Membership of the European Community”, 1990-91 Legal Issues of European Integration, p.1.