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Home EJIL Analysis Revising the Treaty of Guarantee for a Cyprus Settlement

Revising the Treaty of Guarantee for a Cyprus Settlement

Published on June 21, 2017        Author: 

On June 28th, 2017, the UN-sponsored international conference in Crans-Montana, Switzerland, will attempt to comprehensively settle the Cyprus Issue. The Greek-Cypriot and Turkish-Cypriot delegations will be joined by the delegations of the three ‘Guarantor Powers’ (Greece, Turkey and the UK), and one from the EU as an observer, in order to discuss the issue of security and guarantees – an issue that appears to be the major stumbling block for an agreement. The existing Treaty of Guarantee (1960) has failed in so many respects. It has been violated by the Greek side, which suspended basic articles of the Constitution under the doctrine of necessity in the 1960s and sought to unite the island with Greece following the junta-led military coup in 1974. It has also been violated by the Turkish side, which used it to militarily intervene in 1974, without seeking to reestablish the state of affairs created in 1960 and instead opting to partition the island.

The current position of the Greek side is that guarantees should be abolished altogether, whereas the Turkish side considers that they have provided effective security and should be maintained in some form or another. In public discourse, both sides selectively interpret the notion of guarantee and what it is meant to serve so as to support their positions. If not treated as a political cover but in a legal sense, however, a guarantee refers to ‘any legally binding commitment to secure [an] object’ (Oppenheim’s International Law, vol. 1, 9th edition, p. 1323). Creating binding commitments is the gist of the matter that should concern us.

The existing Treaty of Guarantee overplays hard guarantees, i.e. the neocolonial rights of intervention that the guarantors secured for themselves if there is a breach, and less the responsibilities that they (and Cypriots) undertook and what happens if they fail to fulfill them. This hardness is encapsulated in the threat of using force, as ambiguously implied in the Treaty of Guarantee, given that a guarantor ‘reserves the right to take action’ if key provisions of the Treaty are violated. Note, however that Hans Kelsen in a Legal Opinion commissioned by the UN in 1959, just before independence, for the purpose of assessing the eligibility of the future Republic of Cyprus to become a member, stated that ‘the right to take action’ does not mean ‘an unqualified right to intervene by the use of armed force’ (Kelsen’s Opinion is reproduced in S. Soulioti (ed.) Fettered Independence: Cyprus 1878-1964, vol. 2, The Documents, 2006, pp. 253-260). Irrespective of differences over hard security allowances, what is clearly downplayed in the 1960 Treaty of Guarantee are soft guarantees, i.e. a range of legally binding commitments that the Settlement will be fully implemented, including a legally binding obligation that all potential disputes will be peacefully resolved, if and where necessary through international adjudication.

At this final stage of the Cyprus negotiation, the UN and the different parties ought to work intensely to qualify hard guarantees and expand soft guarantees, especially with regard to the implementation of the comprehensive Settlement that they hope to reach in Switzerland this month. After all, problems in the implementation of the 1960 Settlement that established the Republic of Cyprus was one of the reasons that intercommunal troubles started soon after independence. Securing legally binding commitments and means of enforcing them is of the essence. Granting compulsory jurisdiction to the International Court of Justice (ICJ) with regard to the Cyprus Settlement and its implementation is one way of framing the resolution of potential disputes. That is to say, all sides should agree that in the event of international legal disputes, which cannot be resolved by negotiation and/or through UN or EU mediation within reasonable time, these can be referred to the ICJ by any State Party to the dispute.

Beyond the Cyprus Settlement, referral to the ICJ should include any maritime disputes between Cyprus and Greece and/or Turkey, particularly where they relate to delimitation, access, exploration and use of sea resources.. This is crucial given that maritime disputes have intensified and become a constant source of crisis in the Eastern Mediterranean. If such disputes remain unresolved they will create tensions between Cyprus and the two ‘motherlands’, Greece and Turkey, that can potentially destabilize the federal governance of reunified Cyprus and hinder the implementation of the Settlement. A procedure that ends up in adjudication, if a delimitation agreement of Exclusive Economic Zones or Continental Shelves cannot be achieved by negotiation within reasonable time, is the appropriate one under the 1982 UN Law of the Sea Convention (UNCLOS), and another reason why it should be accepted and included in the new Treaty of Implementation and Guarantee, at least with regard to maritime disputes concerning Cyprus. Although Turkey has not signed the UNCLOS, this Convention broadly reflects customary international law and, in addition, Greece and Turkey have already accepted to follow the procedure outlined in the 1999 Helsinki European Council (see par. 4 of the Conclusions) that any ‘outstanding border disputes’ should be resolved by negotiation and, if not, by bringing unresolved border disputes before the ICJ. This procedure can now be formalized with regard to the Cyprus Settlement to guarantee its implementation and durability.

Given how armed intervention was abused by both Greece and Turkey in the past, it is of the utmost importance not to leave use of force at the unilateral discretion of any ‘motherland’ or state ‘guarantor’. As explained by Kelsen and others, the guarantors do not retain unilateral rights of military force, which in any case violate peremptory norms of international law, i.e. Art 2(4) of the UN Charter. The modus operandi should be clear in the new Treaty of Implementation and Guarantee. A new Peacekeeping Force (UNIFICYP II), mandated under chapter VII of the UN Charter, can take up the role of hard guarantees. UNFICYP II could be authorized to take action, where necessary, to secure the implementation of the new state of affairs or in the event of a breach, with the sole aim of re-establishing the new state of affairs created by the Cyprus Settlement.

In this regard, it should be understood that Cypriots that suffered from violence and forceful displacement in the past (mostly Turkish-Cypriots during the 1963-74 period and mostly Greek-Cypriots from 1974 onwards), also expect hard security assurances for a transitional period so as to build confidence that bad times will not return following the new federal settlement. There will be spoilers and both Cypriots and the international community should be fully prepared for that eventuality. UNFICYP II could be mandated to operate for an initial period of 10 years, with the possibility of renewal if and for as long as the Security Council of the UN deems it necessary to ensure peace, security and stability on the island.

Wisely, all sides have agreed that the principle that should guide their deliberations is that ‘the security of one side should not create insecurity for the other’. This principle should guide both the scope and the reach of hard security. Greece and Turkey could maintain, if they wish, a limited number of their troops on the island to provide hard security for their ethnic compatriots (say, 950 Greek troops and 650 Turkish troops as already provided by the Treaty of Alliance 1960), but only under the authority of UNFICYP II and with a sunset clause for eventual withdrawal. If this is agreed, the Greek troops should only operate in the Greek-Cypriot constituent state and the Turkish troops only in the Turkish-Cypriot constituent state. Note that the existing Treaty of Alliance provides for the stationing of Greek and Turkish troops in perpetuity, so this clause should be revised.

Furthermore, it is pertinent to revisit the sovereign status of the UK Bases in Cyprus – the 99 square miles of Cypriot land that are not part of the Republic of Cyprus nor the EU. This colonial legacy has not been touched upon in the current negotiations, but it is now an opportunity to agree the conditions under which this ‘state of exception’ will be resolved in the future. A possible resolution may involve the sovereign status of the UK Bases to be reviewed by 2037 (not necessarily rejecting their long-term presence but reconsidering their claim to sovereignty a la Guantanamo and Diego Garcia). If no agreement is reached on the future status of these areas after two years of negotiations, i.e. by 2039, it can be agreed that the legality of UK sovereignty in the Base Areas and the conditions under which this sovereignty was granted in 1960 can be referred to the ICJ with its judgment being final and binding.

Finally, it will be helpful if the EU becomes a party to the new Treaty of Implementation and Guarantee as a new interested party. This will allow the EU to be actively engaged in providing security and assisting in the implementation of the agreement through its internal mechanisms, while taking into account that ICJ referral does not apply to the EU as it lacks locus standi.

In sum, we need security mechanisms which with regard to soft guarantees – legally binding commitments and adjudication processes – can be initiated unilaterally by any party that wishes to do so, but with regard to hard guarantees – i.e. threat or use of armed force – only collectively authorized and supervised by global institutions, like the UN Security Council, that in any case has assumed added responsibility under the emerging norm of Responsibility to Protect (R2P). Not that R2P is unproblematic, but, in my view, it creates less problems than a unilateral authorization to intervene and protect.

For what a revised system of guarantees for a Cyprus Settlement, based on the above discussion, may look like, click on the Treaty of Implementation and Guarantee (2017).

 

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12 Responses

  1. This is a logical suggestion that must be carefully and positively be considered by all parties concerned. The European Union has since 2004 become probably more important to all CYPRIOTS than any previous “motherlands”! And this must be seriously be considered as gradually the EU becomes “de jure” the “mother-land” of both G/Cs and T/Cs.

  2. Nicholas A. Ioannides

    To start with, it is quite regrettable that there are still people condoning/supporting the retention of foreign guarantees over a sovereign, EU member state.

    Apart from that, I’d like to point out that Turkey has been reluctant to accept dispute resolution before a third-party mechanism and that is why it has not recognised (and it is not likely to recognise) the compulsory jurisdiction of the ICJ.

    Furthermore, the UK has excluded disputes with former or current members of the Commonwealth, such as the Republic of Cyprus, from the ICJ jurisdiction (http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3&code=GB.

  3. Thank you for this; very interesting read, and sound recommendations. I will email you a paper I co-authored on the East Mediterranean Basin and the sensitivities that surround the delimitation of maritime boundaries as I feel you will find it interesting.

  4. Costas M. Constantinou

    Thanks to Cariolou, Filis and Ioannides for their comments. With regard to Ioannides’s comments:

    1. What is regrettable is not the idea of guarantees per se (and that “there are still people condoning/supporting” them) but unilateral rights of intervention as a form of guarantee. Legally binding commitments that can be taken before international courts is the only leverage that small states have vis-à-vis the coercive diplomacy/interventionist policy/hegemonic power of bigger states, organizations or “motherlands”. For example, “legal guarantees” is what Ireland asked and got from the EU in order to put the Lisbon Treaty to a second referendum.

    2. Yes – Turkey has not recognized the compulsory jurisdiction of the ICJ. Yes – the UK has recognized it with the exceptions you mention (i.e. no way to get redress for colonial and postcolonial injustices). You do not mention Greece – it has accepted it but not with regard to disputes over its “military activities and measures” (i.e. the militarization of the Dodecanese islands) or “its territorial sea and airspace” – http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3&code=GR . That is why it is important to insist compulsory referral to the ICJ to check breaches and ensure the implementation of the Cyprus Settlement by Turkey, Greece and the UK (but also by Cypriots). These are the kind of guarantees that we need, and it will be “regrettable” not to get them, or at least not to demand them.

    p.s. If of interest I have developed these ideas further in an article written in Greek: Προς Μια Βιώσιμη Λύση στο Κυπριακό (Foreign Affairs – Hellenic Edition) https://www.researchgate.net/publication/312084228_Pros_mia_Biosime_Lyse_sto_Kypriako

  5. 1. Costa, I am glad you have put down some constructive thinking behind this thorny issue. The easiest thing to do for G/Cs is either tho say: (a) We state with a misguided ‘patriotism’ that must accept nothing of the sort, repeating the self-evident slogan for G/Cs ‘No Guarantees’ (ignoring the T/Cs) OR (b) We simply accept as ‘a fact of life’ that we we can do nothing about the so-called ‘Treaty of guarantee’. In either case the net result as a a matter of fact is that we leave this dangerous and anachronistic system in place and in tact! This is why what Costas is doing is crucial.

    2. We may have a few issues that we may disagree, e.g. why have given such a long time (i.e. 2039) for revisiting the issue of the bases and why not a proper (earlier) sunset clause? But this is really a matter for negotiation and argument. So Costa this is a great service.

    3. In response the argument that ‘quite regrettable that there are still people condoning/supporting the retention of foreign guarantees over a sovereign, EU member state’, it seems that Mr Ioannides above has not read what Costas Constantinou has actually proposed. As for Ankara’s non-recognition of the jurisdiction of the ICJ, let’s wait and let’s test Ankara’s CURRENT limits.

  6. Costas M. Constantinou

    Thanks, Nico, for your comments. You are right that there is no proper sunset clause for withdrawal of the SBAs, only a sunset clause for the time their sovereign status is to be reviewed and referred to the ICJ, if there is no agreement.

    The SBAs are the elephant in the room that nobody is talking about. So I thought getting an agreement on how the issue of the SBAs will be resolved in the future would be a positive development, registering the issue and a timeline for its resolution, without complicating the current negotiations too much – not just geopolitically by upsetting the way they SBAs figure in the strategic calculations of “western/nato” alliance but also legally because as you know they have been artfully granted as sovereign areas as part of the Treaty of Establishment of the Republic of Cyprus

  7. John R Morss

    Excellent post thankyou. Minor quibbles: always wonder about appeal to ’emerging norms’ (R2P in this case) … and especially when also refer to Kelsen, wondering why we are still recycling the tired post-post Schmittian ‘state of exception’, …nb the norm/exception cliche rightly described recently by Koskenniemi as ‘trite’ (in Kadelbach, Kleinlein and Roth-Isigkeit eds) (– might one add ‘kitsch’?)

  8. Costas M. Constantinou

    Thank you, John. Point taken about R2P, i’ve noted a misgiving above but it definitely merits elaboration. I’m certainly not seduced by it, but i find it more appealing than the existing Treaty of Guarantee (1960) with unilateral rights of intervention or other alternatives that have been floated (e.g. NATO force or that EU membership suffices, etc.)

    About the ‘state of exception’, i do see the point that you and Koskiennemi raise. There is a lot to be said about overloading concepts or conceptual fashion or fetishism (indeed even kitsch). But i use the term deliberately and specifically. Actually, i would argue that the “Cypriot states of exception” (the SBA regime is not the only one!) are interesting precisely because they help us to think beyond the “trite” critical orthodoxy of Schmitt and Agamben. This is how i use the term with regard to Cyprus

    https://www.researchgate.net/publication/227624414_On_the_Cypriot_States_of_Exception

  9. Nicholas A. Ioannides

    Thanks for the reply, Professor Constantinou.

    I did not mention Greece in respect of the ICJ jurisdiction given that it is neither the Occupying Power in northern Cyprus nor it possesses military bases on the island. Furthermore, both Greece and Cyprus have been consistently championing the equidistance/median line method concerning maritime delimitation. Therefore, it is not likely for a dispute between Greece and Cyprus to arise.

    Regarding the comments made by Mr Trimikliniotis,I disagree with the usage of the term “guarantees”, as it alludes to some kind of stewardship. An obligation to have recourse to the ICJ should not be labelled as a “guarantee”. If enshrined in the agreement, it would simply be a conventional clause that the contracting parties should observe in any case.

    Lastly, I find it hard to perceive how Turkey can be trusted, especially under the current administration, which shows no respect to the rule of law whatsoever.

  10. Costas M. Constantinou

    Thank you, Nicholas Ioannides, for your last response. You are raising issues that are intensely discussed in Cyprus, so I’ll try to respond as fully and clearly as possible.

    You are making a point with which I agree and a few that I don’t.

    I do agree, as I explain in this short article and elsewhere, that there is a dark, colonial side to Treaties of Guarantee that give rights of intervention to powerful states (like those of the US in Cuba, Haiti and Panama in the past, and like the one we inherited in Cyprus in 1960). This aspect taints them, to be sure. Yet even Treaties of Friendship can have such a dark interventionist side (e.g. the old and more recent Treaty of Friendship between India with Bhutan, among others). It’s important not to stay with the cover, and simply substitute symbolic offence with euphemism. We need to look at the provisions of each specific treaty, and that is why I tried not just to talk broadly but to actually try to improve and redraft it.

    My overall intention has been not to throw away the baby (i.e. strong binding obligations and commitment to peaceful resolution through adjudication) with the dirty bathwater (i.e. nasty guarantors, acting unilaterally).

    Consider Articles 1 and 2 of the 1960 Treaty of Guarantee – don’t we still want a clear guarantee from all parties involved that enosis or partition is prohibited (i.e. guarantees from Greece, Turkey but also Cyprus and even the EU)? I certainly do! And if there is again a violation (attempt for enosis, secession or partition), or non-implementation, unlike the 1960 Treaty, we want to be able to take the violator before the ICJ? That is the crux of the matter and why we need to insist on guarantees.

    Consider the wording of Art 3 of the 1960 Treaty of Guarantee. Why is it that Britain has asked the Republic of Cyprus (and Greece and Turkey) to ‘guarantee’ its SBAs? It seems that Britain did not have the ‘stewardship’ doubts you are worried about in asking for ‘guarantees’ from little Cyprus? It used the word ‘guarantee’ because, as we know, it is a stronger legal term when it comes to creating binding obligations, than ‘assurance’ ‘undertaking’ etc.

    The problematic side of guarantees (and it is not just stewardship, as you say, but neocolonialist privilege for some to unilaterally act in a postcolonial world) are to be found in Article 4 of the 1960 Treaty – where the ‘guarantors’ reserve ‘the right to take action’ in Cyprus, whilst no one can ‘take action’ against them for any violations in Cyprus – not even legal action! And this is because we don’t currently have any such clause in the 1960 Treaty of Guarantee!

    A couple of other points: You say that ‘both Greece and Cyprus have been consistently championing the equidistance/median line method concerning maritime delimitation’. Well, that’s true, but i’m sure you are aware that the 1982 UNCLOS refers to achieving an ‘equitable solution’ in delimiting EEZ and Cont. Shelf (articles 74 and 83). It is different than the delimitation of the territorial sea where the equidistance/median line is specifically referred to (article 15). So whether in EEZ/CS delimitation the end result will mean equidistance/median line i don’t know and wouldn’t like to bet any money either way. What I know is that if the sides don’t agree, as it seems likely, referral to the ICJ or another tribunal is the only appropriate procedure. And this is what I proposed with regard to Cyprus, for otherwise the ‘motherlands’ might like to stick to their sea claims forever or even fight it out, and Cypriots will be caught in the middle of it.

    Finally, it is said that trust is built with much effort yet destroyed easily. There is a lot of mistrust around and conditions are far from ideal. So, even more reason in order to build trust in Cyprus for all parties that have been involved in the conflict in the past to strongly and unequivocally commit to specific obligations with regard to Cyprus in the future and to allow their actions or inactions to be checked before the ICJ.

    I hope all the sides gathering in Switzerland will negotiate security and guarantees with creativity and innovation for a durable settlement in Cyprus

  11. Nicholas A. Ioannides

    Thank you, Professor.

    Well, I agree that we need to safeguard the Republic of Cyprus from any efforts aiming at undermining its sovereignty.

    Nevertheless, a purported attempt for enosis or secession would most probably be advanced by the respective communities, not by Greece or Turkey themselves. For instance, if the Greek Cypriots pursue enosis or the Turkish Cypriots decide that they want to secede and form their own state, which entity is going to file a case to the ICJ? Since only states have locus standi before the ICJ, it is the government of Cyprus that has to file a case in order to protect its territorial integrity. But against whom? Unless either Greece or Turkey invade the island, would it be possible for the government of Cyprus to lodge a case against a constituent state of the federal Republic of Cyprus governed by one of the communities? That would be absurd.

    Therefore, we should avoid divisive policies and consider the Cypriot people as a whole. That is important because only a “people” is entitled to exercise the right of self-determination and choose either enosis or secession. By separating the Turkish Cypriot citizens of the Republic from the rest of the population would entail the risk of practically treating them as a separate people and of paving the way to secessionist aspirations. Consequently, in order to avert that kind of risks, we should maintain the unity of the Cypriot people, which should be able to decide upon its future as a whole.

    As regards maritime delimitation, it is a fundamental axiom in international law (and law in general) that the parties may choose freely the content of their treaty as long as it does not contradict the UN Charter and/or ius cogens rules. Thus, if Greece and Cyprus agree to delimit their maritime boundaries based on the median line, they are absolutely free to do so. Besides, Cyprus has delimited its EEZ with Egypt, Lebanon and Israel according the median line. Additionally, the ICJ has repeatedly set forth (since the 1993 Jan Mayen case) that the use of the median line in continental shelf/EEZ delimitation could lead to an equitable result as well, while international courts and tribunals have been using the median line as a starting point in CS/EEZ delimitation cases.

    In any case, let’s hope that everything goes well and the occupation of the northern part of Cyprus by the Turkish Armed Forces will soon be ceased.

  12. Seniha Birand

    I have read the article with great interest. I would first of all like to congratulate the author for acknowledging the security concerns of both sides which I believe should be the starting point for all attempts to find alternative proposals in the context of all dispute resolution. In this connection, I would like to contribute by reminding that the role of the UN in peace keeping, peace maintaining operations may unfortunately remain highly limited. This can be so, especially where immediate UN intervention is required. Bitter experiences from past conflict situations bear whiteness to this fact. When I say this, I have in mind, the Rwanda genocide, the Serebrenica genocide and also those committed in the period between 1963-1974 in Cyprus. In all those instances , the UN could not act immediately to stop atrocities. This has been so because in order to intervene the UN need the authorisation of the Security Council which does not and cannot take place within a short span of time. And that short span of time is the time when atrocities are committed. Therefore, I am not of the opinion that the proposal for UN force under chapter VII provides for an efficient response with regard to Turkish Cypriot preoccupations.

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