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 Page2 The Constitution

The Constitution (20)

34.The Constitution which was drawn up reflects and expands on the Zurich and London Agreements, especially the Basic Structure. Article 1, in providing for a Greek Cypriot President and a Turkish Cypriot Vice-President, mirrors the corresponding Article in the Basic Structure, whilst Article 50 implements Article 8, in providing (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 organisations and pacts of alliance in which the Kingdom of Greece and the Republic of Turkey both participate. (21) This is complemented by Art. 169, which provides that the Council of Ministers shall be responsible (subject, in most cases, to the agreement of the House of Representatives) for the conclusion of international agreements, but makes a saving in Art, 57(3) by providing that if any decision made by he Council of Ministers is of the type referred to in Art. 50, the President and/or Vice-President have a right of veto, which they are to exercise within four days of the date when the decision was transmitted to their respective offices.

35.Article 170 implements Article 23 of the Basic Structure. It reads in pertinent part: “(1) The 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.”

36.Article 179 provides that the Constitution shall be the supreme law of the Republic and that no law or decision of the House of Representatives, the Communal Chambers, or any other authority shall be repugnant to, or inconsistent with, any of its provisions, whilst Art. 180 provides for adjudication of constitutional questions by the Supreme Constitutional Court. The latter article, as well as providing for the reconciliation of conflicts between the texts in the two official languages, goes on to say that “In case of ambiguity any interpretation of the Constitution shall be made by the Supreme Constitutional Court due regard being had to the letter and spirit of the Zurich Agreement... and of the London Agreement...”

37.Article 181 implements Article 21 of the Basic Structure by providing that the Treaties of Guarantee and Alliance shall have constitutional force.

38.Although, under Article 182(2) & (3), most provisions of the Constitution can be amended or repealed by a majority vote comprising at least two-thirds of the total number of the Representatives belonging to the Greek Community and a like number of Representatives from the Turkish Community -itself a formidable barrier to amendment- there is an important exception in para (1). This implements Article 7 of the Basic Structure, and provides that the Basic Articles (set out in Annex III of the Constitution) “which have been incorporated from the Zurich Agreement... are the basic Articles of this Constitutional and cannot, in any way, be amended, whether by way of variation, addition or repeal”. All of the articles mentioned in the present survey of the Constitution are included in this Annex, save for Articles 169 and 179.

39.Article 185 provides that the territory of the Republic “is one and indivisible” and goes on to state in paragraph (2) that “The integral or partial union of Cyprus with any other State or the separatist independence (sic) is excluded.” This implements Article 22 of the Basic Structure, which defines “separatist independence” as “the partition of Cyprus into two independent States.”

40.Although the Turkish Cypriot community approved of the Constitution, which provided in a detailed way for power- sharing in every aspect of the life of the Republic, the Greek Cypriots soon objected to the Constitution they had agreed to, precisely because they objected to this sort of power-sharing. Major constitutional differences arose between the two communities. No agreement could be reached on the establishment of an army, the Greeks wanting a mixed army and the Turks wanting separate units. Nor could agreement be reached on the setting up of separate municipalities. The Turks also complained that the constitutional requirement that 30 Per cent of the public service be made up of Turkish Cypriots had not been complied with. By December 1961, the Turkish Cypriots in the House of Representatives were refusing to support the enactment of tax laws in protest at the Government’s failure to implement the Constitution.(22)

41.The Supreme Constitutional Court was composed of an independent President, Professor Ernst Forsthoff of Heidelberg University, and two judges from the Turkish and Greek Cypriot communities. The President resigned with effect from 15 July 1963 as a result of Archbishop Makarios’ statement that he would not comply with the decision of the Supreme Constitutional Court regarding municipalities. (23)

42.On 12 September 1963, Turkey and the European Communities signed an association agreement, effective on 1 December 1964.

43.On 3 December 1963, Archbishop Makarios, who had frequently expressed his dissatisfaction with the constitutional arrangements (even though he was party, to them) publicly announced his thirteen point proposal for amendment of the Constitution and informed the Guarantor powers of the proposal. Several of these proposals, such as the abolition of the right of veto, would have amended unamendable articles of the Constitution. Turkey and the Turkish Cypriots rejected the Archbishop’s proposal on 16 December 1963. On 21 December 1963, inter-communal violence began. (24)

44.The Foreign Affairs Committee of the British House of Commons held in their 1987 Report that “There is little doubt that much of the violence-which the Turkish Cypriots claim led to the total or partial destruction of 103 villages and the displacement of about a quarter of the total Turkish Cypriot population- was either directly inspired by, or certainly connived at, by the Greek Cypriot leadership.” (25) The Committee also commented:

In brief, the outcome of the 1963 crisis was the collapse of the system of government established under the 1960 settlement. Although the Cyprus Government now claims to have been seeking to “operate the 1960 Constitution, modified to the extent dictated by the necessities of the situation”, this claim ignores the fact that both before and after the events of December 1963 the Government of President Makarios continued to advocate the cause of Enosis and actively pursued the amendment of the Constitution and be related Treaties to facilitate his ultimate objective. (26)

45.On 25 December 1963, Turkish jet fighters overflew the island. This enabled the Turkish army contingent, stationed pursuant to the Treaty of Alliance, to move away from the Greek contingent to a camp on the Nicosia-Kyrenia road. It seems that, on 1 January 1964, Archbishop Makarios announced his decision to abrogate the Treaties of Guarantee and Alliance, but that, after discussions with British representatives, he issued a new statement that his Government merely sought “to secure the termination of these treaties by appropriate means”. (27)

46.In March 1964, the United Nations Security Council decided to send a peacekeeping force to the Island. (28) (The Republic had joined the UN in September 1960).

47.After the outbreak of the inter-communal violence, the Turkish Cypriot Vice-President and ministers and the Turkish Cypriot Members of the House of Representative were prevented from attending their ministries or meetings. The Greek Cypriot government announced that it no longer recognized Dr. Küçük in his capacity as Vice-President. The UN peacekeeping force conveyed the request by the Turkish Cypriot Members to return to the House, and was told that they would only be allowed to return if they accepted constitutional changes enacted in their absence by the Greek Cypriot constitutional changes enacted in their absence by the Greek Cypriot members. (29) It appears that Turkish Cypriot judges attended the courts in Greek Cypriot controlled areas until 2 June 1966, on which date they were stopped at checkpoints near the law courts and prevented from further attending. (30)

48.A number of Status were enacted to amend the Constitution including Basic Articles of the Constitution. For instance, the Electoral (Transitional Provisions) Law 1965 abolished separate Greek and Turkish Cypriot electoral rolls in breach of Articles 1 (a Basic Article) and Article 63. Amongst other consequences, this prevented the Turkish community from electing a Turkish Vice-President. This was the subject of protest notes from two of the Guarantor powers, the United Kingdom and Turkey. (31)

49.From December 1963 onwards, there emerged two administrations: a Greek Cypriot administration operating under name of the Government of the RC, and a Turkish Cypriot administration which in due course took the title of “Provisional Cyprus Turkish Administration”.

50.Between 1968 and 1974, inter-communal talks were held, without a resolution of the conflict.

51.On 21 May 1973, the European Communities and the Republic of Cyprus signed an association agreement.

52.On 2 July 1974, Archbishop Makarios wrote to the President of Greece asking him to withdraw the military junta’s officers from Cyprus after he had discovered evidence that they were plotting to kill him and were seeking to achieve enosis by abolishing the Republic. (32)

53.On 15 July 1974, Greek officers of the National Guard, with the connivance of the mainland Greek junta, led a coup d’état against the government of Archbishop Makarios with the intention of overthrowing him and setting up a government to unite Cyprus with Greece, ceding some of the territory of the Island to Turkey. Mr. Nicos Sampson, a former EOKA member, was purportedly installed as president. However, the Archbishop escaped and broadcast the need for resistance. The Presidential Palace was in ruins, a curfew was imposed, and massacres were being reported. The Archbishop was flown to London and reported that both communities were suffering as a result of the coup. (33) On 18 July, in the Security Council, he again complained about a Greek invasion and about the aggressive violation of the sovereignty and independence of the RC. (34)

54.On 17 July 1974, the Turkish Premier flew to London to discuss joint action with the United Kingdom pursuant to the Treaty of Guarantee. The United Kingdom declined to act.(35)

55.On 20 July 1974, Turkey intervened militarily in Cyprus by sea and air with the declared intention, as co-guarantor, of restoring the independence and constitutional order of Cyprus and ending the aggression. (36)

56.On the same day, the UN Security Council adopted Resolution 353, which stated that it was “concerned about the necessity to restore the constitutional structure of the Republic of Cyprus, established and guaranteed by international agreement”, called for all military personnel other than those present under the authority of international agreements to be withdrawn, and for the Guarantor powers to “enter into negotiations without delay for the restoration of peace in the area an constitutional government in Cyprus...”

57.On 23 July 1974, the Greek military junta called a cease-fire and the following day handed over power to a civilian government. (37)

58.Meanwhile, foreign newspapers carried reports of destruction of Turkish villages, massacres of Turkish Cypriots and killings on both sides. The Herald Tribune reported that 1,750 Turkish men were being kept behind barbed wire in an open-air football stadium. Famagusta was under siege from mortar attack. (38)

59.On 30 July 1974, The Foreign Ministers of the Guarantor powers issued the Geneva Declaration (39) and agreed that there should be reestablishment of constitutional government in Cyprus. Among the matters to be discussed should be the “immediate return to constitutional legitimacy, the Vice-President assuming the functions provided for under the 1960 Constitution” -an acknowledgement that the situation obtaining since 1963 had not been constitutional. The Ministers further noted “the existence in practice in the Republic of Cyprus of two autonomous administrations, that of the Greek Cypriot community and that of the Turkish Cypriot community”. They also signed a “Brief Statement” in which they made it clear that their adherence to that declaration “in no way prejudiced their respective views on the interpretation or application of the 1960 Treaty of Guarantee or their rights and obligations under that Treaty”. They agreed that further talks should begin on 8 August 1974. However, those talks broke down on 14 August 1974.

60.Further military action following the breakdown of the talks resulted in the securing of territory in the north of the Island under the administration of the Turkish Cypriots.

61.In December 1974, the Archbishop returned the Cyprus and resumed the Presidency.

62.On 12 January 1975, Greece applied for full membership of the European Community.(40)

63.On 13 February 1975, the Turkish Federated State of Cyprus was proclaimed. The Security Council passed resolution 367 on 12 March, which inter alia called on all States and the parties concerned “to refrain from any action which might prejudice the sovereignty, independence, territorial integrity and non-alignment of the RC, as well as from any attempt at partition of the island or its unification with any other country”, regretted the proclamation; but also affirmed that it did not prejudice the final political settlement of the problem of Cyprus and took note of the declaration that this was not the intention.

64.In August 1975, both sides agreed at inter-communal talks in Vienna to voluntary regrouping of populations, the Turkish Cypriots in the North of the Island and the Greek Cypriots in the South. (41)

65.On 3 August 1977, Archbishop Makarios died.

66.In 1981 Greece joined the European Community, Previously, on 5 February 1980, the European Community had assured Turkey that Greek accession would not affect its relations with Turkey. (42) In fact, however, Greece has blocked Turkey’s attempts to obtain admission to the Community-now the EU. (43)

67.On 15 November 1983, the independent Turkish Republic of Northern Cyprus (“TRNC”) was proclaimed by the Legislative Assembly of the Turkish Federated State of Cyprus. Turkey recognised the TRNC the same day. No other state has so far done so.

68.On 18 November 1983, the UN Security Council adopted Resolution 541, in which it “deplored” the proclamation of the TRNC, which it considered to be “incompatible with the 1960 Treaty concerning the establishment of the Republic of Cyprus and the 1960 Treaty of Guarantee” and invalid. It went on to call upon all states “not to recognise any Cypriot state other than the Republic of Cyprus”.

69.On 7 May 1985, the Constitution of the TRNC came into force.

70.On 4 July 1990, the administration in Nicosia applied for the RC’s accession to the European Communities pursuant to Article 237 of the EEC Treaty, Article 205 of the Euratom Treaty and Article 98 of the ECSC Treaty.

71.On 12 July 1990, the President of the TRNC sent a Memorandum to the Council of Ministers setting out its objections to the application for accession made by the authorities in Nicosia and advising that it would welcome membership for both communities on settlement of their dispute. A Supplementary Note was added to this, dated 3 September 1990.

72.On 30 June 1993, the EU Commission handed down a favourable opinion on Nicosia’s application. (44) It is clear that the Commission was motivated in part by a belief that accelerating this process would help bring about a political resolution of the Cyprus dispute. On 4 October 1993, the Council of the European Union concluded that it supported the Commission’s approach.

73.On 19 December 1994, Greece vetoed a customs union with Turkey. (45)

74.On 6 March 1995, the General Affairs Council of the European Union agreed on the general policy framework for the development of relations with Cyprus. On 16 June 1995, the Association Council of European Union met for talks which centred on Cyprus’s prospective accession to the European Union. On 12 July 1995, the European Parliament adopted a resolution endorsing the Commission’s opinion and the Council’s conclusions. On 17 July 1995, the Council decided on structured dialogue to bring Cyprus closer to the European Union; and on 21 November 1995, the Council and the authorities in Nicosia concluded a Protocol on financial and technical co-operation. Detailed discussions about accession are due to begin after the conclusion of the EU Inter-Governmental Conference.

75.On 13 December 1995, the European Parliament approved Turkey’s accession to the Customs Union with the European Union. (46)

76.On 26 November 1996, the UK Foreign Secretary, Mr. Malcolm Rifkind, announced in the House of Commons that it would be “extremely difficult” for a divided Cyprus to be admitted to the EU. (47) The official position of the new Labour Government is still unknown.


                                                                                         20. The Constitution of the RP was drawn up in Greek and Turkish (Art.180), but I must rely on the translation in Blaustein & Flanz (eds.), Constitutions of the Countries of the World (1972).

21. For this purpose, the Article goes on to define “foreign affairs” to include (inter alia) “the conclusion of international treaties, conventions and agreements”. See also Art. 47(m).

22. See e.g. Kyriakides, op. Cit., n. 1 above.

23. Necatigil, op. Cit., n. 2 above, p. 21.

24. Ibid., p. 24.

25. House of Commons Papers, 1986-87, Nos. 21-24; No.21 at paragraph 27.

26. Ibid., paragraph 31. Indeed, on 26 June 1967 the Greek Cypriot House of Representatives unanimously passed a resolution affirming its intention to continue to struggle for enosis.

27. Necatigil, p. 46.

28. SC res. 186 (1964).

29. UN Secretary General’s Report S/6569 of 29 July 1965, paras 7-11, cited in the Foreign Affairs Committee 1987 Report (above, n. 25) paragraph 31, I note that it is Greece’s position that the Vice President publicly declared that the Republic of Cyprus had ceased to exist and, “along with the three Turkish Cypriot ministers, the Turkish Cypriot members of the House and the Turkish Cypriot civil servants withdrew from the Government”. Greece’s International Position, 3. The Cyprus Issue (no date), p.3.

30. Necatigil, pp. 62-3.

31. Hansard, vol. 709, col. 466f, cited in Necatigil, op. Cit., p. 57.

32. ‘The Times’, 21 July 1974, cited in Necatigil, p. 88.

33. Necatigil, p. 89.

34. SC Official Records, 1780th mtg., p.3.

35. Necatigil, p. 94. The reasons were not stated expressly, but seem to have been political rather than legal.

36. Ibid. It will be recalled that, under the second paragraph of Article 3 of the Treaty of Guarantee, “In so far as common or concerted action may prove impossible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of reestablishing the state of affairs established by the present Treaty”.

37. Ibid., p.96.

38. Ibid., p.99.

39. Ibid., p. 424.

40. EC Bulletin 1975, No.6, points 1201-12.

41. Ibid., pp.106, 154-5.

42. Redmond, op.cit., n. 3 above, p.40.

43. Ibid, pp. 30, 39.

44. Doc. COM/93/313 final.

45. Necatigil, p. 411.

46. Press Release by the Republic of Turkey on Internet home page, Relations with EU, Washington DC, 13 Dec. 1995.

47. From 87 Cyprus News (1996), p.3.