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 4 Summary And Conclusions

Summary And Conclusions

116.The Treaty of Guarantee of 1960, along with its associated instruments, strikes a carefully constructed balance between the interests of the two Cypriot communities, and also between the three States with a particular interest in Cyprus; Greece, Turkey and the United Kingdom. It is the basis of the independence of Cyprus, of the special rights and responsibilities of the Guarantor States, and of the continued military presence of the UK on he island. As has been shown above, (88) there are no convincing grounds for impugning either the initial validity or the continuance in force of the relevant provisions of the Treaty. The Guarantors -the United Kingdom, Turkey and -it seems -Greece indeed continue to recognize its validity, which is also the position of the UN Security Council.

117.Turning to the substance, we have seen (89) that, by Article I(2) of the Treaty of Guarantee, the Republic of Cyprus undertook “not to participate, in whole or in part, in any political or economic union with any State whatsoever”. Membership of the EU would constitute participation in whole or in part in an economic union, and at least in part in a political union. The conclusion must be, therefore, that this would be contrary to the Treaty of Guarantee. To try and escape this conclusion by arguing that the Treaty prohibits only union with a State, not States in the plural, would not only do violence to the ordinary meaning of the words, their context and their object and purpose; it would also run counter to the express intentions of the Governments who drafted this provision. For, as has been shown, (90) they considered membership of international economic and political organizations specifically in the context of these clauses in the Treaty. By definition, such organizations would comprise other State, in the plural. The drafters were only prepared to relax this ban if the organization was one in which both Greece and Turkey both participated; but such is not the case with the EU. Furthermore, Article I(2) goes on to prohibit, not just participation (in whole or in part) in an economic or political union, but even “all activity likely to promote, directly or indirectly... union with any other State...” It cannot be gainsaid that membership of Cyprus in the EU is likely to promote, directly or indirectly, union with other States, and most particularly with Greece.

118.Nor was this the only undertaking of Cyprus. By paragraph (1) of the same Article it also “undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its. Constitution”. And we have also seen (91) that Constitution not only included provisions expressly echoing the words of Article I of the Treaty, but also others directly in point. Article 170 guarantees most-favoured-naiton treatment to each of the Guarantors whereas, manifestly, if Cyprus became a member of the EU, Greece and the UK would have necessarily to receive more favoured treatment than Turkey. Moreover, Article 50 of the Constitution expressly gave the Turkish Vice-President, as the representative of his community, a veto over Cyprus membership in any international organization unless both Greece and Turkey were members. These were amongst the select group of unamendable “Basic Articles” in the Constitution which the Republic of Cyprus undertook in the Treaty of Guarantee to respect. (92) For all the above reasons it seems clear that Nicosia would violate its treaty obligations by seeking or accepting membership in the EU.

119.For their part, the Guarantor States also undertook important legal obligations. By Article II(1) of the same Treaty, these three States took “note of the undertakings of the Republic of Cyprus in Article I” and “recognise(d) and guarantee(d)”, inter alia, the state of affairs established by the Basic Articles of the Constitution. Furthermore, in paragraph (2), reflecting the corresponding undertaking by the RC in Article I(2), they “likewise undert(ook) to prohibit, so far as concerns them, any activity aimed at promoting, directly or indirectly... union of Cyprus with any other States...” Admittedly, this guarantee is not completely unqualified; it extends only “so far so concerns them” or, as the original version had it, (93) “so far as lies within their power”. But it certainly does lie within the power of the UK (and, indeed, of Greece) to prevent a violation of the Treaty by the simple exercise of their veto.

120.Furthermore, given that at least de facto (on any view) the writ of Nicosia does not run throughout Cyprus, if that country were to join the EU there would be considerable practical and legal obstacles in the way of Nicosia’s implementation of duties which would have to be undertaken towards other members in respect of the island as a whole. For their part, the other members would in practice find it extremely difficult, if not impossible, to carry out their legal obligations in respect of Cyprus as a whole. The EU Commission and Court, as well as the UK Government, have frankly recognized these difficulties; (94) but they have so far failed to draw the appropriate conclusions.

121.The undertakings of the RC and of three Guarantor States are not mere political statements. They are solemn legal promises embodied in a formal treaty. And what is given by this particular treaty is a guarantee, (95) the most solemn form of pledge known to law. All four of the States concerned obtained benefits under the Treaty of Guarantee; but with these benefits came obligations. International law, by which the United Kingdom and other members of the EU set great store, demands that these obligations be performed.

Maurice Mendelson, QC 2 Hare Court,

6 June 1997 Temple,

EC4Y 7BH London,


88. Paragraphs 78-99.

89. Above, paragraphs 105-9.

90. Above, paragraphs 7 & 108.

91. Above, paragraph 108.

92. Above, paragraphs 34-38.

93. Above, n. 13.

94. Above, paragraphs 112-5 Paragraphs 78-99

95. Or, more precisely, a series of guarantees.