CYPRUS AND ITS CONSTITUTIONAL
AND OTHER LEGAL
CRITON G. TORNARITIS, Q.C.,
Attorney-General of the Republic.
In this second edition of this book another Part was added, Part XII, dealing with the evolution of the Cyprus intercommunal talks.
To the already existing Appendices nine more were added, setting-out the various proposals made for the solution of the Cyprus problem and certain statements and observations in connection therewith.
The intercommunal talks which were recessed in June 1979 was not found possible to be reactivated until the time when these lines are being written in spite of the resolutions of the General Assembly and the Security Council of the United Nations in this respect and the persistent efforts of the Secretary-General Dr. Waldheim in this direction.
lt is hoped that wiser thoughts will prevail and that the intercommunal talks will be resumed in an effort to give a fair and viable solution to the Cyprus problem and relieve its most suffering people from all its afflictions.
Nicosia, 2nd of April, 1980.
CRITON G. TORNARITIS
A.C. Appeal Cases
A.J.I.L. American Journal International Law
B.Y.I.L. British Yearbook International Law
C.L.R. Cyprus Law Reports
K.B. Kings Bench
P.C.I.J. Publications of the Permanent Court of International
Q.B. Queens Bench
R.I.A.A. Reports of International Arbitral Awards
R.S.C.C. Reports of the Supreme Constitutional Court
S.I. Statutory Instrument
S.R.O. Rev. 1904 Statutory Rules and Orders Revised 1904
S.R.O. Rev. 1948 Statutory Rules and Orders Revised 1948
Short geographical, geological, demographic and historical survey...............................................................................................
Legal question arising out of the British Occupation.............
Constitutional proposals for Cyprus..........................................
The constitutional structure........................................................
The legal nature and the peculiarities of the Constitution....
The President's proposed amendments and the situation created thereafter...........................................................................
The Constitutional Developments owing to the abnormal situation created after 21 December 1963...............................
The Turkish invasion....................................................................
The legal nature of the Turkish invasion, the occupation of the territories of the Republic and the violations by Turkey of human rights and international law.....................................
The incidence and effect of the Turkish invasion on the existence of the Republic of Cyprus and its Government......
Federal Problems facing Cyprus.................................................
The evolution of the Cyprus talks..............................................
Appendix II.Proposals of the Greek-Cypriot side on the various aspects of the Cyprus problem .....................................
Appendix II.Proposals of the Turkish-Cypriot side ................
Appendix III.Letter of the Special Representative of the Secretary-General dated 26 May 1976 to the Greek-Cypriot Representative ................................................................................ Appendix IV. Greek-Cypriot Interlocutor Mr. Tassos Papadopoulos .................................................................................
Turkish-Cypriot Interlocutor Mr. Umit Suleyman Onan.......
Appendix V.Statement by the Greek-Cypriot Interlocutor on the territorial proposals by the Greek-Cypriot side on the 3/3/77 .............................................................................................
Principles subject to which the proposals of the Greek-Cypriot side for the solution of the Cyprus problem are made.................................................................................................
Appendix VI.Proposals of the Turkish-Cypriot side presented on 1/4/1977 ................................................................
Appendix VII.Comments made by the Greek-Cypriot Interlocutor at the meeting of the 2/4/1977 on the "proposals" presented by the Turkish .......................................
Appendix VIII.Basic principle which should govern the constitutional structure of the Federal Republic of Cyprus presented by the Greek-Cypriot side on the 6/4/1977 .........
Appendix IX.Turkish-Cypriot proposals, 1978 .........................
Appendix X.Observations on the documents entitled "Main aspects of the Turkish-Cypriot proposals" and "Explanatory Note of the Turkish-Cypriot proposals for the solution of the Cyprus problem" .............................................................................
The evolution of the Cyprus Talks.............................................
Appendix II.Proposals of the Greek-Cypriot side on the various aspects of the Cyprus problem .....................................
Appendix II.Proposals of the Turkish-Cypriot side ................
Appendix III.Letter of the Special Representative of the Secretary-General dated 26 May 1976 to the Greek-Cypriot Representative ................................................................................
Appendix IV.Greek-Cypriot Interlocutor Mr. Tassos Papadopoulos .................................................................................
Turkish-Cypriot Interlocutor Mr. Umit Suleyman Onan.......
Appendix V.Statement by the Greek-Cypriot Interlocutor on the territorial proposals by the Greek-Cypriot side on the 3/3/77 ......................................................................................
Principles subject to which the proposals of the Greek-Cypriot side for the solution of the Cypriot problem are made.................................................................................................
Appendix VI.Proposals of the Turkish-Cypriot side presented on 1/4/1977 ................................................................
Appendix VII.Comments made by the Greek-Cypriot Interlocutor at hte meeting of the 2/4/1977 on the "proposals" presented by the Turkish-Cypriot side ................
Appendix VIII.Basic principle which should govern the constitutional structure of the Federal Republic of Cyprus presented by the Greek-Cypriot side on the 6/4/1977 .........
Appendix IX.Turkish-Cypriot proposals, 1978 .........................
Appendix X.Observations on the documents on the documents entitled "Main aspects of the Turkish-Cypriot
proposals" and "Explanatory Note of the Turkish-Cypriot
proposals for the solution of the Cyprus problem"....................
Appendix XI.Framework for a Cyprus settlement prepared by the U.S.British and Canadian Governments ......................
Appendix XII.The 10 points settlement ....................................
CYPRUS AND ITS CONSTITUTIONAL AND OTHER LEGAL
Short geographical, geological, demographic and historical
Cyprus, the third largest island, after Sicily and Sardinia, in the Mediterranean, lies at its eastern basin between lat. 300. 34' and 350. 42'N. and long. 32o.16' and 34o.6E. at the cross-road of routes from east to west and from north to south. Its greatest length from the coast of Paphos in the west to the Cape St. Andreas in the east is about 150 miles, its greatest breadth from Cape Kormakitis in the north to Cape Gata in the south is 60 miles and its whole area is 3,572 square miles (9,251 square kilometres) and is similar in size to that of Lebanon or of Norfolk and Suffolk combined in the United Kingdom or of Puerto Rico.
Cyprus is in close proximity to three continents.
The distances from the neighbouring countries are 43 miles from Cape Anamur in Asia Minor to Cape Kormakitis, on the north of Cyprus, 76 miles from Cape St. Andreas in the east to Syria, 255 miles from Port Said to Limassol and 270 miles from Cape Acamas in the west to Rhodes .
Its shape has been described as oblong and parallel to the equator, like that of Crete, being the opposite of Rhodes, which is almost upright and vertical to the equatorz whilst another description represents Cyprus as having the shape of a wheel-barrow being pushed along, seen from the side. Its handles are represented by the long Karpass poninsula and the wheels by the Akrotiri peninsula3.
The shape of Cyprus is determined by two parallel mountain ranges stretching from the west to the east. The northern range, the Kyrenia or Pendadaktylos range, with its very impressive jagged outline runs at a distance of a few miles from the coast for about sixty miles from above Vassilia-Lapithos on the west to Kantara castle on the east wherefrom it falls away along the Karpass peninsula, its highest peak being about 3,357 ft. at Kyparissovouno. The other range is that of Troodos to the south, the massif of which consists of very old rock its highest point, Chionistra, having a height of 6,403 ft.4 These mountains are mostly covered with forest trees mainly of the Aleppo pine and blackpine and a variety of bushes. ln the spring wild flowers of a variety of colours render the scenery more beautiful.
Between these two ranges lies the Messaoria plain (that is to say between the mountains) which has a breadth of 12 to 15 miles and extends from Morphou Bay, in the west, to the Famagusta Bay, in the east. The Messaoria plain is very fertile producing in most seasons fine crops of grain. But its cultivation depends almost entirely on the rainfall which usually occurs between the months of October and March but in years of drought the plain appears very arid.
Apart from those two mountain ranges there exist also an isolated mountain far to the east, the Stavrovouni, having a height of 2,258 feet from which on clear days Lebanon may be discernible.
From a geological point of view Cyprus is comparatively young dating back to about 150 million years. The oldest rocks are attributed to the Cretaceous of early Eocene period. They probably underlie the whole island. The Troodos mountain-range consists of igneous rocks (mainly plutonic, dyke and volcanic rocks) on top of which there is series of sedimentary rocks ranging from the Upper Cretaceous to the Pleistocene period. Regarding the Kyrenia range on the other hand its core consists mainly of highly tectonised metamorphosed limestones and dolomite forming blocks on top of the other5 .
It is considered that the structures found in the northern Cypriot range are typical of the Alpine orogenic movements. The conclusion, therefore, of Professor Alagoz that "1'île de Chypre, est physiquement dependante de la Turquie"6 owing to the similarity of the structure of the Taurus mountain in Asia Minor with the northern range of mountains in Cyprus does not seem to be well founded as it appears that such range is the most external part of the external zones of the Hellenic Alps which extend from New Yugoslavia, western Albania, western Greece, Peloponnesos Crete, Rhodes, Taurus and Amanus 7 .
lt appear that geologically the island of Cyprus has been formed by the joining together of two small islands that of Troodos massif which appeared about 100 million years ago with that of Kyrenia which emerged later about 11 million years ago. These two islands became joined as the uplift continued thus forming the Messaoria plain8 .
lron and copper pyrites are the principal minerals but there exist also chrome and asbestos as coloured earth (terra-umbra).
The climate of Cyprus is mild in winter with plenty of sunshine and hot in the summer down in the plains though cool on the hills at about 40-50 miles away from the main towns. Its beautiful and variating scenery coupled with the temperance of its climate renders the island an ideal holiday centre and attracts great number of tourists all the year round, for whom now all modern. facilities are provided.
Cyprus is mainly an agricultural country and its wine and citrus fruit are exported to various countries. Its wine has been famous since ancient times and according to one version it was one of the reasons which contributed to rhe Turkish occupation of the island by Sultan Selim Il in 15719 . Among the other goods exported from Cyprus are other agricultural products, such as fresh grapes, potatoes, carrots and other fresh vegetables, carobs (including kibbled carobs) and various minerals and of late various industrial products.
Cyprus is predominantly inhabited by Greeks, who own the greatest extent of land and bear the greater part of expenditure.
According to the last census of 1960 the population of Cyprus was 573,566, out of whom 441,656 were Greeks, I04,942 were Turks and 26,968 of other races. Thus the percentage was 77.0 % Greeks, 18.3 % Turks and 4.7 % other races.
Statistical calculations, however, made in 1975 show that the population of Cyprus has increased to 638,900 out of whom 492,000 are Greeks but the aforementioned percentages do not appear to be materially affected.
The inhabitants were, until the compulsory removal of the Turkish-Cypriots to the part occupied by the Turkish troops on the north, spread over the island intermingled in the various towns and villages and, with the exception of the purely Turkish enclaves artificially voluntarily and temporarily created after the intercommunal troubles in 1963, there were very few purely Turkish villages.
The land owing by area in 1957 (excluding Government land, roads, forests etc.), was 80.6 % by Greeks, 16.6 % by Turks and 2.8 % by others and as far as assessed value of such immovable property is concerned 86.5% by Greeks,13.1 % by Turks and 0.4% by Maronites.
The contribution to public expenditure in the form of direct taxation in respect of the year 1962 was 91.9 % by Greeks and 8.1 % by Turks.
The history of Cyprus begins with the Neolithic times going back to the 6th millenium10 .
There is no concrete evidence about the first settlers of the Neolithic period. One view is in favour of a distinct group not related to any neighbouring region whilst another view suggests that the early settlers came from the Balkans, especially from Thessalia and Macedonia with another group from Cilicia11 .
It is not also clear to what extent Cyprus was connected commercially or otherwise with the culture of other neighbouring countries during this period and it may be simply argued that the Neolithic culture which lasted 3,500 years was developed locally with little influence from abroad12 .
With the discovery of copper in Cyprus early in the third millenium B.e. the history of Cyprus enters into a new period the Bronze period 2500-1500B.C.
During that period human settlements began to spread to the interior of the island and there was a change in the composition of the population by the arrival of foreigners from neighbouring countries of Aryan race. Commercial and other relations with neighbouring countries were maintained during the period.
The most important event during that period was the arrival of Achaean-Mycenaeans around the middle of the second millenium and the Achaean civilisation which earlier was ftourishing in Crete now was introduced into Cyprus.
The extent of the Mycenaean influence llas been shown by the archaeological findings since the last century-tombs, vases and other remains as well as the recent excavation of a complete Mycenaean city in eastern Cyprus13 .
Before the end of the second millenium more Greek colonists arrived to live in Cyprus while others settled on the east and west of Asia Minor. Homer speaks of Cinyras, the King of Paphos, who gave Agamemnon, the Commader-in-Chief of the Greek forces against Troy, a decorated suit of armour and king Cinyras is praised by the Greek poet Tyrtaeous (seventh century s.c.) and Pindar (fifth ceniury s.c.). Legends existed for the foundation of cities in Cyprus by the Greek heroes of the Trojan war such as Salamis by Teucer, brother of Ajax, Paphos by Agapenor from Arcadia, Idalium by Chalcanor, Lapithos by Praxandros of Laconia, Chytri (the present day Kythrea) by Chytrus, Aepeia, near Soli by Demophon and others14 .
The Greek colonisation was very extensive and this is supported by Herodotus who says that the inhabitants of Cyprus had come from Athens, Argos, Arcadia, Salamis, etc. Even Kition, traditionally a Phoenician city, became Mycenaean. Besides the Greeks Phoenicians from Syria also came to Cyprus not earlier than 1000 s.c. and settled in the coasts particularly in Kition and Lapithos15 .
But as Professor Gjerstad points out, there exists a fundamental difference between the Greek and the Phoenician settlements in that the former werw the result of mass migration aimed at political occupation and cultural penetration whilst the latter were of a strictly commercial character.
The Greek colonists brought with them not only the Greek civilisation, culture and way of living but also the Greek political ideas and manner of administration. The Phoenicians settlers on the other hand were not numerous and their influence was negligible.
With the establishment of the Achaeans in Cyprus the composition of the population was changed and the autochtonous inhabitants, the Eteocyprians, though survived until. the Hellenistic period, especially in certain places such as Amathus, were in the minority and accepted the Greek civilisation and culture.
The change in the life and cilaracter of Cypriots was rapid and was not limited to the coastal areas only but it spread to all regions of the island and the bonds with Greece were becoming closer and closer so as to be said that Cyprus became a Greek island.
A new era of wealth and prosperity began and the commercial and other relations of Cyprus with the neighbouring countries were increased.
On the model of the Greek city-state and following the Mycenaean system of government many kingdoms have been established and maintained in Cyprus since the first millenium having replaced the previous system of one king reigning over the whole island. Diodoros Siceliotis, the historian, refers to nine such kingdoms in the middle of the fourth centuryB.C.
The Cyprus kings following the Mycenaean precedent, were at the same time high priests, judges and generals and the institution of Kingship was hereditary.
Gradually the institution of the assembly of thc people, the ecclesia, was developed to which the king was referring matters of administration for consideration16 .
The Kings of Cyprus retained their internal autonomy during the Assyrian conquest of Cyprus about the eighth centuryB.C. and under the Egyptians and the Persians from the sixth century to the end of the fourth B.C. even after the heroic but unsuccessful revolt under king Onesilus in the fifth century s.c. who tried to unite thc Cypriots against the Persian domination.
Next important king who united the cities of Cyprus under the leadership of Salamis was its king Evagoras the First. Evagoras carried a ten years war against the Persian yoke and during this struggle he was greatly assisted by the Athenians who made him a citizen of Athens. But when after the Treaty of Antalkidas in 368 s.c. had to carry on alone, in spite of some temporary successes such as the capture of Tyre in Phoenicia in 382 s.c., was forced to yield and acknowledged by a treaty which he signed as king to king the Great King of Persia as overlord. Evagoras is the most important statesman in the history of Cyprus who not only maintained and spread the Greek culture throughout Cyprus but transmitted it to the neighbouring countries17 .
The kings of Cyprus retained their sovereignty over their own cities during the time of Alexander thc Great. When after his death in 323 s.c. a dispute arose over, the possession of Cyprus between his successors Ptolemy and Antigonus, the kings of Cyprus were divided, some of them supporting the former whilst others were assisting the latter, but eventually Cyprus came under Ptolemy who shortly afterwards was proclaimed as king Ptolemy I.
Cyprus remained under Ptolemies for two and half centuries and during that time achieved a great degree of culture and prosperity. The cities preserved a certain degree of autonomy.
During this period the institution of the " Koinon " (confederationj of the cities of Cypl-us was introduced the predecessol- of the Koinon Iater developed under the Roman emperors which played an important role in the religious and polit.ical life of the island.
Cyprus was occupied by Rome in 58 s.c., as Greece had been occupied earlier, and became part of the province of Cilicia governed by a procollsul. Amollg tlle early procollsuls was tlle famous orator Cicero, \vho showed great sympatlly to thc people of Cyprus. Under August Cyprus became an imperial provillce and tllen in 22 s.c. a senatorial province governed by a proconsul. Papllos contillued to be tlle capital of Cyprus and developed greatly as a result of its trade with neighbouring countries. Cyprus under the Romans preserved its Greek character.
The introduction of Christianity to Cyprus was the most important event during the early period of the Roman rule. On his first missionary journey it 45A.D. Paul accompanied by Barnabas, a Cypriot, and Mark landed at Salamis and preached there the new religion to the Jewish synagogue. After this they crossed Cyprus preaching the new religion and reached Paphos, the capital, where the most sensational event occurred, the conversion to Christianity of the proconsul Sergius Paulus, whereupon Saul was renamed Paul. For the first time a Roman noble occupying an important public position accepted the new religion 18 . The spreading of Christianity, however, was not an easy task as the Greek pagans and the Jews, who had been settled since the time of Ptolemy I, were attached to their old religion. The conversion to Christianity was completed by the beginning of thc fifth century through the great ecclesiastical figures of the time, St. Barnabas, Heracledius, Mnason, Lazarus, Spyridon of Tremithus, Trifillios of Ledra, Philon of Karpasia, Tychon of Amathus and Epiphanios of Constantia19 .
On the laying of the foundations of the Byzantine empire in 330A.D. Cyprus became a province of the Orient under the Comes Orientis, whose seat was at Antioch. Cyprus received. special attention and protection from the emperors of Byzantium and the mother of Constantine the Great, St. Helena, visited Cyprus and established christian churches including the monastery of Stavrovouni where according to tradition she left pieces of the cross upon which Christ was crucified20 .
When Cyprus was politically attached to Antioch an attempt was made by its Patriarch to put the Church of Cyprus under his control but this was successfully resisted by the Cypriot bishops at the Third Oecumenical Synod at Ephesus in 431A.D.21 . New claims were raised later by the Church of Antioch but when Archbishop Anthemios presented Emperor Zeno (498 A.D.) with a copy of St. Matthew's Gospel, which was found in the tomb of St. Barnabas and was believed to have been placed there by St. Mark, the Emperor, recognized the autocephaly of the Church of Cyprus and conferred on its Archbishop the imperial privileges: to hold a sceptre instead of a pastoral staff, to wear a purple mantle and to sign in red ink 22 . A final resolution settling the question of the autocephaly of the Greek -Orthodox Church of Cyprus was taken by the Quini-Sext or Trullan Oecumenical Synod at Constantinople in 692 A.D. 23 .
When Cyprus was a byzantine province, the Arabs, who had accepted the new religion of Islam, raided at intervals Cyprus from the seventh to the tenth centuries and caused great destruction.
But the Arabs never made an organised attempt to occupy Cyprus and their acti.vities were limited to looting and taking prisoners24 .
The last episode in the history of Cyprus as a province of the Byzantine empire occurred at the time of Isaac Comnenos, who usurped by deceit the oflice of ruler of Cyprus (1184A.D.). The king of England Richard Coeur de Lion was on his way to the Holy Land as one of the leaders of the Third Crusade, but his fleet was scattered by a storm and the ship carrying his fiance Berengaria and his sister Joanna, Queen of Sicily, was forced to take refuge in the bay of Limassol. Isaac tried to entice the two women to land in order to hold them for ransom but Richard arrived in time and eventually expelleJ Isaac Comnenos from his office 25 .
The period of the Byzantine rule in Cyprus came thus to an end.
Throughout the Byzantine period the Greek character of Cyprus was preserved in all its manifestations.
The rule of Richard Coeur de Lion lasted very shortly. He sold Cyprus to the Order of the Knight Templars against payment of 40,000 gold besants. But the Knight Templars, facing the resistance of the Cypriots, asked Richard Coeur de Lion to return the money and take back Cyprus. Richard was too pleased to sell Cyprus to Guy de Lusignan, King of Jerusalem, for 100,000 besants thus making a profit of 60,000 besants after returning thc 40,000 to the Knight Templars.
Cyprus became then a Frankish Kingdom. The Lusignans ruled Cyprus for about three hundred years (1192-1489) on the feudal system, all privileges belonging to the nobles whilst the people was oppressed without any participation in the administration of their own country. The history of Cyprus under the Lusignan rule is essentially the history of the royal court in Cyprus and not a history of the people of Cyprus.
The system of administration was foreign to the Greek population of Cyprus and all political power was vested and exercised by the ruling class of Franks.
The legislation during the Lusignan period was the one contained in the Assizes of Cyprus, written in the then spoken Cypriot language, which was based on the Assizes of Jerusalem and contained the feudal law though the influence of Byzantine and Greek law is manifest26 .
During the Frankish period the Greek Orthodox Church was in a state of persecution as the Latin Church was trying to subjugate it27 .
In the dynasty of Lusignans there were rulers such as Hugh Il I and Henry II in the thirteenth century and Hugh IV and Peter I in the fourteenth century who contributed to the stability and financial prosperity of the island. It is remarkable that Peter I foresaw the danger from the Turks and tried, though unsuccessfully, to unite the European countries against them.
The last Queen of the Lusignan dynasty28 Catherine Cornaro ceded Cyprus to Venice in 1489, when the Lusignan domination of Cyprus ended.
Three centuries of foreign rule failed to destroy the Greek language of the peaple, their religion and their cultural Greek beliefs.
The Venetian occupation of Cyprus (1489-1570) had a purely military, purpose that of defending the Venetian interests from any dangers that might come from Egypt and the Turks. All authority was now vested in the Council of Venice, who every two years were sending a Proveditor to govern the island. In governing Cyprus Venice was looking after her own interests and the well being of the inhabitants was utterly neglected29 .
The Turks, who had captured Constantinople in 1453, invaded Cyprus with a powerful army in 1570 and, in spite of the defence put up by the Venetians, they captured Nicosia in the same year and in 1571 Famagusta fell after an heroic resistance of the Venetian commander Marcantonio Bragadino. After the capture of Nicosia, but especially after the fall of Famagusta, unprecedented acts of atrocities followed, property was looted and most of the important Christian Churches, such as St. Sophia and St. Catherine in Nicosia and St. Nicholas in Famagusta, were converted to moslem mosques and remained as such to this date.
Hil1 in his History of Cyprus after referring to the capture of Nicosia, at which the massacre and looting went on for three days, writes that " the reader may be spared description of horrors which were such as usually occurred at the capture of any Christian city by the Turks "30 and after the fall of Famagusta observes that " the history of Cyprus is rich in episodes of horror, and this was an age inferior to no other in barbarity : but as an example of cold-blooded ferocity, in which the childishness of the savage combines with the refinements of the sadist, the martyrdom of the hero of Famagusta by Mustafa Pasha yietds the palm to none. It was inspired not by momentary fury, but by deliberate bloodlust. Some details may have been exaggerated by anti-Moslem sentiment, but the main facts are not open to doubt " 31
With the fall of Nicosia and Famagusta the rest of the island was occupied without opposition.
The Turkish conquest brought many radical changes to Cyprus In spite of atrocities the Turks supported the Greek-Orthodox Church, which replaced the Roman Catholic as the official Church of the island32 .
The Archbishop was allowed to return to his seat at Nicosia from Soli and the bishops also returned to their sees-Kyrenia, Larnaca and Paphos, from the villages to which they had been posted by the Franks. The island's first Archbishop after the conquest was Timotheos and a synod convened by him in Cyprus declared the subjugation of the Orthodox Church to the Roman Catholic Church invalid and resolved the restoration of its bonds with the Orthodox Church at Constantinople.
The Archbishop of Cyprus was given similar privileges as those conferred on the Patriarch at Constantinople33 .
In Cyprus the Archbishop, to whom a Berat was issued on his election outlining his secular powers,34 was considered as the Head of the " Rayas and their representative"35 and as such was responsible for imposing and collecting the taxes36 .
During the Turkish occupation a system of wide local government was existing and operating37.
The Turkish rule in Cyprus ended in 1878.
By the Convention of defensive alliance between Great Britain and Turkey with respect to the Asiatic provinces of Turkey signed at Constantinople on the 4th June 1878, Turkey consented "to assign the Island of Cyprus to be occupied and administered by England " for enabling her to make the necessary provision for executing her engagements under the Treaty. By an Annex to this Convention signed at Constantinople of the l st July 1878 between the same Contracting Parties the conditions under which England would occupy Cyprus are provided and a provision was made that " if Russia restores to Turkey Kars and other conquests made by her in Armenia during the last war, the Island of Cyprus will be evacuated by England and the Convention of the 4th June 1878 will be at an end ".
By an additional Article signed at Constantinople on tho l4th August 1878, it was agreed between the High Contracting Parties that for the term of the occupation and no longer, full powers were granted to the Great Britain for making Laws and Conventions for the Government of the Island and for the regulating of its Commercial and consular relations and affairs38 .
In July 1878 Cyprus was occupied by Great Britain.
During all the years of foreign occupation many conquerors passed through Cyprus and she came across many civilisations. Though they left their traces, which may be witnessed by the various silent monuments, nevertheless Cyprus never has lost its own character. As the modern Greek poet says : " You have changed many despots but you have never changed your heart "39 .
Stanley Casson rightly observes that " there is alsways perceptible an undercurrent of influence which, for good or bad, remains Cypriot. Nothing that Cyprus adopted remained unaffected. Instead it will be incorrect to say that Cyprus " has absorbed anything, she rather absorbed and then transformed "40 .
Legal questions arising out of the British occupation
There is no unanimity as to the legal position of Great Britain in respect of Cyprus during the period from its occupation in 1878 till the annexation in 1914.
A view was expressed that Great Britain acnuired a de facto though not a de jure sovereignty over Cyprus under the Convention41 .
The concept of sovereignty, as supreme authority which is independent of another authority, coincides with that of the political power and has difl'erent aspects. In so far as it excludes dependence upon any other form of authority of another state, sovereignty is independence. It is external independence with regard to the liberty of action outside the borders of a state in its intercourse with other states and internal independence with regard to the liberty of action inside the borders. As regards the power of the state to exercise supreme authority over all persons and things within its territory, sovereignty is territoria! supremacy (dominion, territorial sovereignty). As regards the power of the state to exercise supreme authority over all its citizens at home and abroad, sovereignty is personal supremacy (imperium, political sovereignty)42 .
lt is obvious that the aforesaid view contemplates sovereignty in connection with a specific territory, what is known as territorial sovereignty.
With respect to the territorial sovereignty three theories were expounded especially in international law.
The one theory supports that the territory is the object of the state power (theorie du territoire objet). According to the writers supporting such theory (Laband in Germany, Oppenheim, Lauterpacht, in England, Donat, Romano, Udina in Italy and Jean Dabin in 3elgium) the territory is an object over which the state exercises a true real right. Such right is not a subjective right but a rightfunction.
According to a second theory, which very extensively is accepted in Germany (by Jellineck, Preuss, Tricket) and is represented in France by Carre de Malberg and was introduced in Greece by tr e late Professor Saripolos, the territory is a constituent element of the concept of the state (theorie du territoire element constitut'f de 1'état-Eigenschaft theorie). The territory is not a part of the possessions of the state but a prerequisite of its existence.
A third theory inspired by Radnitsky and accepted by the Austrian school (Kelsen, Verdross) maintains that the territory should be free of any post juridic, naturalistic or geographical element and should be approached from the angle of the exercise of the competence of the state ratione loci. Under this theory the relations of the colonial territories to the metropolitan territory could be better explained43 .
The supreme authority which a state exercises over its territory would seem to suggest that on one and the same territory there can exist one full sovereign state only and that two or more sovereign states on one and the same territory are an impossibility. But the controversy over the non-divisibility of snvereignty, prevalent in the sixteenth, seventeenth and eighteenth centuries was dying out in the nineteenth century especially with the appearance of federalism and colonialism44 .
Among the examples of the divisibility of sovereignty is the case where one state actually exercises sovereignty which in law is vested elsewhere, as where a piece of territory is administered by a foreign Power with the consent of the state to which the territory belongs. ln this respect reference is made to the position of Cyprus from 1878 to 1914 under British administration and that of Bosnia and Herzegovina from 1878 to 1908 under the administration of Austria-Hungary45 where a cession of territory has for all practical purposes talcen place although in law the territory belongecf to the former owner state.
This is borne out by the provisions of the Convention itself under which Turkey " assigns " the administration of the Island of Cyprus to Great Britain, an expression which denotes transfer of title, whilst at the same time provision is made in the Annex for the eventual return of Cyprus on the fulfilment of certain conditions46 .
That sovereignty remained in Turkey was never disputed by Great Britain on taking up the administration of the island47 and for this reason she was estopped from claiming a prescriptive right to the territory48 .
Hall maintained that so long as Cyprus was under double or ambiguous sovereignty it was possible at the same time to posse.ss a belligerent and a neutral character49 whilst in the opinion of some other writer the true situation in Cyprus seems to have been one of divided sovereignty with the reversion and some of the incidents of the sovereignty in the Sultan50 .
In an opinion of the Lord Chancellor delivered to the British Government on the question whether Turkish sovereignty over Cyprus was nominal only, the view was taken that Great Britain had become invested with such rights as Turkey had enjoyed " the Porte retaining the reversion ". The British Foreign Secretary was also of the opinion that the transfer of the island to Great 8ritain " had all the incidents of cession for so long as the British occupation lasted "51 .
An analysis of the nature of the British administration under the Convention was made in the decision of the Anglo-Turkish Mixed Arbitral Tribunal in the case of Parounak & Bedros Parounakian v. The Turkish Governmenl (Annual Digest 1929-1930 Case No. 1 I). The Tribunal held in that case that the occupation of Cyprus lacked "juristic precision " but it was analogous to protectorate in the sense that it fell within the designation of a country " under protection " of Great Britain within the meaning of Article 64 of the Treaty of Lausanne. Great Britain " exercised all the regular prerogatives of government in such manner that the island must in fact be regarded as having been governed by Great Britain "52 .
The change in the administration of the island, however, was not so simple as it seemed. It presented a peculiar problem regarding the existing relations between Turkey and the third Powers especially with regard to the regime of Capitulations under which foreign nationals were subjected to the jurisdiction of their own consular courts53 .
The claim of the foreign consuls was not accepted by Britain whose case was that the further application of the Treaties between the Port and Foreign Powers to the island of Cyprus was ineompatible with the assumption of the Government of the island by Great Britain and the objects of the occupation. When the first Ordinance for the establishment of a High Court of Justice for Cyprus, which was of a temporary nature, was enacted, the Capitulations were abolished54 .
Great Britain communicated its decision for the abolition of the Capitulations to the Powers concerned and asked them to acquiesce thereto. The Powers concerned in their reply had not accepted the abolition of the Capitulations but only their suspension55 .
Special protection has been afforded to foreign subjects, however, by clause 30 of the Cyprus Courts of Justice Order in Council 188256 whereby all actions in which the defendant or any of the defendants was not an Ottoman subject was triable by the President of the District Court, who was not a Cypriot, sitting alone.
The Cyprus Courts of Justice Order in Council 1882 was revoked and replaced by the Cyprus Courts of Justice Order in Council 1927 by which the differentiation between " Cypriot Action " and " Foreign Action " was abolished.
With regard to the constitutional arrangements by an Order in Council of the l4th September I87857 a Legislative Council was established consisting of the High Commissioner and not less than four and not more than eight other members, one half being official and the other unofficial members nominated by Her Majesty or provisionally appointed by the High Commissioner subject to Her pleasure. The High Commissioner with the advice of the Council might make Ordinances for the peace, order and good government of the island subject to instructions from Her Majesty.
By the same Order in Council an Executive Council was established, constituted as might be directed by instructions addressed from time to time to the High Commissioner by Her Majesty. The High Commissioner was not bound to take the advice of the Executive Council.
This Constitution was generally similar to those granted to Crown Colonies in which the Crown has entire control of the legislation.
On representations being made by representatives of the people that Constitution was amended in 1882 by Order in Council 30 November 1882 altering the constitution of the Legislative Council and by Royal Instructions of the same date.
In this Constitution the Legislative Council was reconstructed to consist of six official members and twelve elected or unofFlcial members out of whom the nine would be non-Mahometan and the three Mahometan elected by the non-Ottoman and the Ottoman electors respectively. The Council would be presided by the High Commissioner or the senior official member who was to have a casting vote. Power was reserved to Her Majesty to legislate by Order in Council58 .
So Cyprus acduired its "toy parliament", as it was described, in which the combined vot.es of the Mahometan tnembers with the official members together with the casting vote of the High Commissioner could outvote the non-Mahometan members and the Government could carry on its intended measures.
It is, however, odd that the Turks were not pleased with that Constitution and by a petition to the Colonial Ofhce claimed inter alia that they should be equally represented in the Council with the Greeks. It is to be noted that the nutnber of elected members was fixed on the proportion of the G1-eek and Turkish inhabitants shown in the census of 188I59 .
Further provision for the exercise of the power and jurisdiction vested by the Convention in Her Majesty was made by the Order in Council of the 6th day of July 1907 " providing for the Government of the island of Cyprus "60 .
In that Order in Council the powers of the High Commissioner are outlined and also the composition and the powers of the Legislative Council. The composition of the Legislative Council was the same as before and its election is regulated by detailed provisions. By this Order in Council the previous ones are revoked. By the Royal Instructions the composition and the functions of the Executive Council are provided. For the Executive Council shall consist of not more than four official members and not more than three additional or unoflicial members appointed by lhe High Commissioner. The functions of the Executive Council were only consultative without binding the High Commissioner.
The Greek Cypriots were persistently asking for political liberties and for more extensive participation in the affairs of their island, but such demands were consistently resisted.
Great Britain immediately after the outbreak of war with Turkey in 1914, annexed Cyprus by Order in Council61 of the 5th November 1914 and as from that date Cyprus formed part of Her Majesty's dominions.
By that annexation the Constitution of Cyprus in force on that date was not affected.
By another Order in Council of the 27th November 191762 the nationality of the Cypriots who were Ottoman subjects and were in Cyprus on the date of the annexation was regulated.
Cyprus, when annexed, had been under British administration since 1878. Such annexation in time of peace without the consent of the state which in law owns the territory is unlawful and it is of doubtful legality in war63 . In any event the annexation was recognized by Turkey by article 20 of the Treaty of Lausanne 1923. Turkey, furthermore, by Article 16 of the same Treaty renounced a11 rights and titles whatsoever over or respecting inter alia " the islands other than those over which the sovereignty is recognised by the present Treaty" (and therefore, over Cyprus as well) and by Article 27 Turkey was precluded from exercising any jurisdiction in any political, legislative or administrative matter, outside the territory of Turkey, on any national of a territory put under the sovereignty of the other signatory Powers (as in the case of Ottoman subjects in Cyprus).
By Letters Patent of 10 March 192564 from that date the Island of Cyprus became a Crown Colony and the ofhce of the High Commissioner was substituted by that of the Governor.
An executive Council was constituted consisting of such members as may be directed by Royal Instructions.
The Executive Council in accordance with the Royal Instructions of the lOth March 192565 shall consist of ofhcial members ,not exceeding four, and of additional or unofficial members not exceeding three as the Governor may appoint.
The legislation was to be made by a Legislative Council provided by clause VIII of the Letters Patent 1925 but power of legislation by Order in Council was reserved to the Crown. The composition of the Legislative Council was provided by the Cyprus (Legislative Council) 192566 . The Legislative Council would consist of six nominated members (out of whom the three virtute officio that is to say, the Colonial Secretary, the Attorney-General and the Treasurer and other three officials appointed by the Governor) and fifteen elected members (out of whom three Mohammedans elected by the Mohammedan electors and twelve non Mohammedan elected by the non-Mohammedan electors).
In the result the composition of the Legislative Council differed in no way from the previous Legislative Council and the Council had no more powers than before.
The reaction of the Greek members was manifested in the motion by the then Bishop of Kitium to insert an expressicn of disappointment, in the Address, that the reasonable claim to be granted more and actual political rights have been overlooked and a prayer that the representatives might participate with responsibility and in an efl'ective way in the exercise of authority both legislative and executive.67
The demands for the amendment of the Constitution and the grant of more political rights continued and the discontent was spreading. It culminated in the serious disturbances of 1931 when as a result the Legislative Council was abolished68 and never reconstituted.
Responsible municipal government was also suspended and Cyprus was governed on a monocratic regime by the Governor. An advisory council was created consisting of the members of the executive council and four other members, three Greeks and one Turk, nominated by the Governor from the unofBcial community. The function of the Council, as its name indicates, was merely advisory, without any actual executive power. In spite of continuous demands by the Cypriots and their gallant services in the Second World War the British Government was declining to take up the constitutional question of Cyprus.
After the end of the war municipal Elections were restored and the Government propnsed to establish a similar system of elections for rural areas.
Constitutional proposals for Cyprus
On the assumption of the Government by the Labour Parxy in 1945 the Secretary of State for the Colonies stated that it was proposed to "seek opportunities to establish a more liberal progressive regime in the internal affairs of the island". For this purpose a Consultative Assembly was convened i.n 1947 but the response was discouraging, as apart from the Turkish delegates, only eight Greeks attended.
Under the constitutional proposals submitted to the Assembly there would be a Legislative Council consisting of four official members (the Colonial Secretary, the Attorney-General, the Treasurer and the Senior Commissioner) and twenty four elected members, eighteen to be elected on the general electoral list and six on the Turkish communal register. The Council was to be presided not by the Governor but by some person of distinction, not a member of the Legislature, to be nominated by him, who would not have a vote. The question whether he was to have a casting vote was (eft for discussion. Bills afTecting finance, defencc, external affairs, minorities or the Constitution were not to be introduced without the consent of the Governor who would have power to declare a Bill or motion as if it had been duly passed if he considered it expedient in the interests of public order, good faith or good Government even it it had been rejected by the Legislature. The Governor would have the usual power of reserving a Bill passed by the Legislature for the signification of Her Majesty's pleasure.
The status of Cyprus within the Commonwealth could not be subject to discussion by the Legislature.
There would be also an Executive Council consisting of the four officiaL members of the Legislative Council and of such other persons, being elected members of the Legislature or other officials, as Her Majesty may from time to timc direct but the Governor would not be bound to aecept its advice69 .
The aforesaid constitutional proposals ,though constituting a step towards self gevernment, were inspired by an imperial spirit and were inconsistent with the ideals for which the Second World War had been fought and the promises and policy declared during and after the war by the British Government.
The limitations imposed by the constitutional proposals and the powers reserved to the Governor had not left any room for their acceptance.
The Consultative Assembly was, therefore, dissolved by an announcement of the Governor on the l2th August, 194870 .
On the occasion of the Consultative Assembly the Greek Cypriots under the leadership of Archbishop Leonti.os had decided that their future aim should be Enosis and only Enosis, (Union with Greece) a policy followed by his successors Archbishops Makarios II and Makarios III.
The demand of Enosis was becoming more persistent and on the l5th January 1950 a plebiscite was held, under the aegis of the Ethnarchy Council, among Greek Cypriots at which 96o; of the persons taking part in it voted for L:nosis of Cyprus with Greece. In the ensuing years the political and diplomatic pressure on the Greek Government was increasing. At the end she decided to bring the matter in 1954 before the General Assembly of the United Nations by a recourse claiming that the principle af self determination, already applied to many African peoples, be applied to Cyprus as weli.
In the meantime the British. Government announced that she intended to introduce a constitution as a first step towards selfgovernment, an announcement which was met by the immediate reaction of the Greek Cypriots. For overcoming such reaction and winning their co-operation the British Government thought that the best way was to carry with her some goodwill from Greece and Turkey, and for this purpose she decided to invite Greece and Turkey to send representativcs to a conference to be held in London and work for an agreement there. The theme of the conference was not to be restricted to the constitutional question of Cyprus, but was to cover all the common interests of the three Powers on the Eastern Mediterranean71 .
The proposed conference had met without the approval of Archbishop Makarios. He publicly declared that the convening of such conference constitutes a trap and a means of delay for the purpose of undermining Greece's appeal to the United Nations. The Cyprus question does not constitute a political issue between Greece and Turkey but is purely a question of self determination and concerns the British Government and the Cyprus people only72 .
The Tripartite Conference on the Eastern Mediterranean and Cyprus was convened, however, and held in London from August 29 to September 7, 1955.
lt is significant that at that Conference Macmillan, the British Foreign Secretary, frankly admitted that
" ltis an undoubted anomaly-and it is in our view wrongthat while so many other parts of the world have made steady progress in the art and practice of self-government there has been no compatible advance in Cyprus. We intend to put this right. Internal self-government must be the first aim "73 .
The Greek Foreign Minister Stephanopoulos supported the application of self determination to Cyprus74 whilst the late Zorlu, the Turkish Foreign Minister, maintained that it was not right to consider the Cyprus question from the angle of the present day composition of its people and the guiding principle should not be the consideration of majorities and minorities " but rather the granting of full equality to the two groups ". Furthermore he maintained that the status quo should be maintained in Cyprus.
"If this were to be upset then the island should revert to Turkey"75
No detailed constitutional proposals were laid before the Conference but apart from the vague assertion " that the proposals are intended to set Cyprus upon the normal path to democratic dcvelopment and to this end it is proposed to introduce a new and liberal constitution leading to the full measure of self government compatible with the strategic requirements of the present international situation," it was described in broad lines that the constitution would provide for an Assembly with an elected majority, a proportionate quota being left to the Turkish community and for the progressive transfer of the departments to Cypriot Ministers responsible to the Assembly with the exception of foreign affairs, defence and security which will be left for the Governor. A proportion of ministerial posts would be reserved for the Turkish community. There would be a Chief Minister, heading the new administration chosen by the Assembly with the approval of the Governor76 .
There was no agreement regarding the future international status of Cyprus and confronted with this deadlock the Conference had to be suspended 77 .
With regard to the recourse of the Greek government to the United Nations, the request for the application of the principle of self determination to Cyprus had not been acceded to, mainly because it was considered as aiming at a change of sovereignty of Cyprus.
The Greek Cypriots undertook then an armed struggle for the satisfaction of their demands. The Governor was substituted by Field Marshal Sir John Harding, Chief of the Imperial General Staff, who on arriving to Cyprus started protracted talks with the Ethnarch Archbishop Makarios in an effort to find a solution to the problem. The proposals put forward by the British Govern- ment during the negotiations, as far as the constitutional problem is concerned, were to the following effect-
(a) though the British Government admits that the principle of self determination may be applicable to Cyprus nevertheless her position was that it was not a practical proposition on account of the situation then prevailirg in the Eastern Mediterranean.
The British Government would be prepared to discuss the future of the island with representatives of the people of Cyprus when self government has proved itself capable of safeguarding the interests of all sections of the community 78 .
(b) The details of a constitution would be a matter for discussion with representatives of all sections of the community. Nevertheless the following points were clarified by the British Government -
(i) that she offers a wide measure of democratic selfgovernment and to this end she proposed the drawingof a new and liberal constitution in consultation with all sections of the community;
(ii) the constitution would enable the people of Cyprus through responsible Cypriot Ministers to assume, by a suitably phased process, contro( over the departments of Government except those relating to foreign afFairs and defence which would be reserved to the Governor and the public security which would also be reserved to the Governor for as long as he deetns necessary ;
(iii) the constitution will provide for an Assembly with an elected majority
(iv) a Cypriot Premier would head the new administration who would be chosen by the Assembly with the approval of the Governor. Ministerial portfolios would be allocated by the Premier subject to a constitutional provision relating to participation of Turkish Ministers in the Council of Ministers ;
(v) there would be proper safeguards for the rights of the individual citizens 79 .
The Archbishop observed inter alia that the proposals did not clarify that all powers, legislative, executive (except those reserved for the Governor) and judicial emanate from the people and are exercised exclusively by them through their elected representatives and their other constitutional organs, that the representation in the Assembly will be proportionate to the composition of the population and that the Governor's approval as regards the person of the Prime Minister will be entirely formal 80 .
In a statement made by the Secretary of State, who came to Cyprus, to the Archbishop Makarios dated 28th February 1956 he says that it is proposed to send to Cyprus a Constitutional Commissioner who would draw up a liberal and democratic Constitution in consultation "with all sections of opinion in the island ". In that statement it does not appear that a clarification is given to the questions raised by the Archbishop, especially those relating to the constitutional matters81 .
Eventually no agreement could be reached, not only on the constitutional question but also on other matters such as the proposed amnesty and five months talks had abruptly come to an end 82 .
As a result the Archbishop, together with the Bishop of Kyrenia, Papastavros of Phaneromeni Church and the late Polykarpos loannides were deported to the Seychelles83 . The armed struggle, however, continued unabated.
The British Government concentrated on the action necessary to prepare a working plan for self government of Cyprus and for this purpose entrusted Lord Radcliffe to prepare and submit constitutional proposals for Cyprus.
Lord Radcliffe submitted such a report84 .
Lord Radcliffe emphasizes that his terms of reference were to submit constitutional proposals for a territory under the sovereignty of the Queen, and, therefore, he was not dealing with the future international status of Cyprus in as much as there is no power in the Legislature of a self governing dependency to change the status of the territory by union under a different sovereign85 .
By his constitutional proposals Lord Radcliffe recommends a diarchy for Cyprus consisting of the section of subjects reserved for the Governor, comprising foreign affairs, defence and internal security, and the self-governing section consisting of the Legislative Assembly, the Cabinet and the Judiciary and comprising all matters other than the reserved ones.
The Legislative Assembly would consist of a Speaker, a Deputy Speaker, appointed by the Legislative Assembly and 36 other members out of whom 6 would be nominated (preferably from among members of the minority communities) and 30 elected members (6 by voters on the Turkish communal roll and 24 elected by voters on the general roll).
The Legistlative Assembly would pass all the Bills dealing with self government matters that shall become Laws on being assented to by the Governor.
The executive power of the self governing section would be exercised by a cabinet consisting of the Chief Minister, appointed by the Governor from among the members of the Legislative Assembly and enjoying the largest measure of general support in the Assembly and five other Ministers appointed by the Governor on the recommendation of the Chief Minister from among members of the Legislative Assembly. There would be also a Minister of Turkish Cypriot Affairs, appointed by the Governor at his discretion from among the members of the Legislative Assembly elected by the voters on the Turkish Cypriot communal roll, who will be responsible for the ofhce dealing with Turkish Cypriot affairs.
Regarding the Judicature there would be a Supreme Court consisting of the Chief Justice, who is appointed by the Governor after consultation with the Chief Minister and two other Judges, or such increased number of members as may be provided by Law, being uneven, appointed by the Governor after consultation with the Chief Justice.
In the jurisdiction of the Supreme Court would be included a determination whether a Bill passed by the Legislative Assembly would be repugnant to the provisions of the Constitution guaranCe2ing certain individual rights. There would be also a Judicial Service Commission and a Public Service Commission.
A tribunal of Guarantees would be established, the members of which would be appointed by the Governor in consultation with the Chief Justice and the Chief Minister. The membership of Tribunal shall include an equal number of Greek Cypriots and Turkish Cypriots under the chairmanship of a person who would not be either Greek Cypriot or Turkish Cypriot. The Tribunal would deal with individual complaints against acts of the administration.
There would be also a Joint Council of Cyprus which would have as its primary purpose the consideration and discussion of matters of common concern to the reserved section and the selfgoverning section. That Council would consist of the Deputy Governor, the Chief Minister and another member of the Cabinet appointed on the recommendation of the Chief Minister, the Minister for the Turkish Cypriot Afl`airs, one of the service members of the Defence Committee designated by the Governor, the Attorney-General and the Legal Secretary.
The Attorney-General would be appointed by the Governor on the recommendation of the Chief Minister and his appointment would be revoked accordingly.
Lord Radcliffe had dealt with a claim put forward on behalf of Turkish Cypriot community for an equal political representation.
His conclusions are very pertinent, even today. For this reason the relevant paragraphs of his Report are quoted in full :
" 27. I have given my best consideration to the claim, put before me on behalf of the Turkish Cypriot community that they should be accorded political representation equal to that of the Greek Cypriot community. If I do not accept it I do not think that it is out of any lack of respect for the misgivings that lie behind it.. But this is a claim by 18 % of a population to share political power equally with 80% and, if it is to be given effect to, I think that it must be made on one of two possible grounds. Either it is eon.sistent with the principles of' a constitution based on liberal and democratic conceptions that political power should be balanced in this way, or no other means than thc creation of such political equilibrium will be eßective to protect the essenti.al interests of the community from oppression by the weight of the majority. 1 do not feel that I can stand firmly on either of these propositions.
28.The first embodies the idea of a federation rather a unitary Statc. It would be natural enough to accord to members of a federation equality or representation in the federal body, regardless of the numerical proportions of the populations of the territories they represent. But can Cyprus be organised as a federation in this way ? I do not think so. There is no pattern territorial separation between the two communities and, apart from other objections, federation of communities seems to me a very diflicult constitutional form. If it is said that what is proposed is in reality nothing more than a system of functional representation, the function in this case being the community life and organisation and nothing else. I find myself baHied in the attempt to visualise how an effective executive government for Cyprus is to be thrown up by a system in which political power is to remain permanently divided in equal shares between two opposed communities. Either there is stagnation in political life, with the frustration that accompanies it, or some small minority group acquires an artificial weight by being able to hold the balance between the two main parties. A third alternative, that the Governor should be given under the constitution some sort of arbitral position as between the two communities, I have already excluded by what I have said above. I do not think that it will be advantageous to embroil the Governor in the internal controversies of the self-governing side. My conclusion is that it cannot be in the interest of Cyprus as a whole that the constitution should be formed on the basis of equal political representation for the Greek and Turkish Cypriot communities.
29.Does the second ground lead to a different result ? I do not think so. To give an equal political strength in a unitary State to two communities which have such a marked inequality in numbers-an inequality which, so far as signs go is as likely to increase as decrease-is to deny to the majority of the population over the whole field of self-government the power to have its will reflected in effective action. Yet it might well be right to insist on this denial if the constitution could not be equipped with any other eiective means of securing the smaller communities in the possession of their essential special interests. Not only do I think that it can be equipped with such means by placing those interests under the protection of independent tribunals with appropriate powers and relying only to limited extent on direct political devices, but 1 think that the "legalist" solution which this depends on is in fact better suited to provide the protection that is required, and it does not have the effect of denying the validity of the majority principle over a field much wider than that with which special community interests are truly concerned ".
Irrespective of the merits or demerits of the Radclifl`e proposed Constitution from a self governing point of view, it was a constitution destined for a dependent British territory and Lord Radcliffe himself points out that it was impossible to provide for a machinery for a change in the future international status of Cyprus. In this respect it may be considered as more retrogressive than the one contemplated during the talks with Sir John Harding though in many respects it may be considered as more progressive towards self government.
The Radcliffe proposed constitution had not been accepted either by Archbishop Makarios or by the Greek Government and a new recourse was made to the United Nations86 .
The armed struggle in Cyprus continued. Further complications were caused by the Turkish-Cypriot demand for partition of Cyprus into Greek Turkish zones, allegedly engineered by the British, and by the Turkish-Cypriots, more aggressive attitude towards the Greek-Cypriots resulting in loss of lives.
The deterioration of conditions in Cyprus increased the efforts in the United Nations for the achievement of peace in the island and by resolution of the General Assembly in 1957 they recommended a democratic solution for the problem of Cyprus.
Sir John Harding was succeeded as Governor by Sir Hugh Foot (now Lord Caradon) whose links with the island date back to 1943 when he was Colonial Secretary.
It was the new Governor's ideas that mainly inspired the Macmillan Plan which was announced on the l9th of June 195887 .
Sir Hugh Foot summarised its aims in a broadcast to the troops of Cyprus on that night. He said-
" It may be summarised in three sentences. First we want to give the best possible deal to all the people of the island. Second we want to bring the three Governments of Great Britain, Greece and Turkey together in a joint effort to make sure they get it. Third, we believe that this can only be achieved by Great Britain given a definite and determined lead to break the vicious circle from Cyprus which she has suffered so long "88 .
Under the Macmillan Plan a partnership scheme was proposed for Cyprus-partnership between the two communities in the Island and also between the Governments of the United Kingdom, Greece and Turkey. For this purpose -
(a) the Greek and Turkish Governments will each be invited to appoint a representative to co-operate with the Governor in carrying out the Plan ;
(b) the Island will have a system of respresentative Government with each community exercising autonomy in its own communal affairs. To this end there would be a separate House of Representatives for each of the two communities, which will have final legislative authority in communal matters ;
(c) authority for internal administration other than communal matters and internal security will be undertaken by a Council presided over by the Governor and including the representatives of the Greek and Turkish Governments and si.x elected Ministers drawn from the Houses of Representatives, four being Greek Cypriots and two Turkish Cypriots ;
(d) the Governor, acting after consultation with the representatives of the two Governments will have reserve powers to ensure that the interests of both communities are protected ;
(e) external affairs, defence and internal security will be matters specifically reserved for the Governor acting after consultation with representatives of the two Governments ;
(f) such representatives will have the right to require any legislation which they consider discriminatory to be reserved for consideration by an impartial tribunal 89 .
By the proposed constitutional arrangements, not only the national aspirations of the Greek Cypriots, who constituted the great majority of the population (80%) were not satisfied, but on the contrary their feelings were affected by bringing Turkey, which had renounced any rights over Cyprus by the aforesaid provisions of the Treaty of Lausanne, to share the administration of Cyprus, the Turkish population of which did not exceed the 18%. On the other hand by the proposed administration undue importance was given to the communal element and the two communities, instead of being brought nearer, were being kept apart.
For these reasons on the 20th June 1958 Archbtshop Makarios declared that the Macmillan Plan was unacceptable90 .
So though the constitutional arrangements were intended to give a palliative remedy so as to afford time to the high spirits to cool down the intended purpose had not been achieved as the armed struggle continued with increased force and extended to armed conflict between the two communities culminating to acts of collective massacre 91 .
The turmoil, terror, killing and burning were increasing day by day, culminating in almost a civil war betwcen the Greek Cypriots and the Turkish Cypriots92 .
Early in 1959 negotiations were held in Zurich between the Greek and the Turkish Governments for the purpose of finding a solution acceptable to the British93 .
On the llth February 1959 an agrement was reached at Zurich between the Greek and the Turkish Prime Minister for the establishment of an independent state, the Republic of Cyprus, the basic structure of which was embodied in a document in French.
At a conference held in London in February 1959 attended by the Prime Ministers of Great Britain and Greece, the Prime Minister of Turkey being unable to attend owing to an air accident and represented by the 'Turkish Foreign Minister, the Foreign Ministers of Great Britain Greece and Turkey and the Representatives of the Greek Cypriot and the Turkish Cypriot communities, the aforesaid document.s with other documents annexed to the Memorandum setting out the agreed foundations of the tinal settlement of the problem of Cyprus signed by the Prime Ministers of Great Britain, Greece and Turkey were initialled and adopted on the l9th February 195994 .
The agreed measures to prepare for the new arrangetnents in Cyprus, aimed at bringing the constitution and the Treaties into full effect as soon as practicable and in anv case not later than twelve months from the 19th February 1959, consisted in the establishment of :
(a) a joint commission in Cyprus with the duty of completing a draft constitution for the independent Republic of Cyprus incorporating the structure at the Zurich conference;
(b) a transitional committee in Cyprus with responsibility for drawing up plans for adapting and reorganizing the, Government machinery in Cyprus in preparation for the transfer of the authority to the independent Republic of Cyprus ;
(c) a joint committee in London with the duty of preparing the final treaties giving effect to the conclusions of the London coference.
The joint constitutional commission prepared the Constitution of the Republic of Cyprus and completed its work on the 6th April 1960 when its draft was signed at Nicosia95 by the head of the delegations to the Commission. The London joint committees prepared the draft treaties giving effect to the conclusions of the London conference. Agreement was reached on all points on the 1st July 196096 .
The Constitution of the Republic of Cyprus was signed at Nicosia on the 16th August 1960 by the then Governor on behalf of the British Government, by representatives of the Governments of Greece and Turkey, by Archbishop Makarios, on behalf of the Greek Cypriot community, and by Dr. Fazil Kutchuk on behalf of the Turkish Cypriot community and was put into force on that date 97 .
At the same time three Treaties were signed by the same parties, the Treaty of Establishment of the Republic of Cyprus between Great Britain, Greece and Turkey and the Republic of Cyprus, the Treaty of Guarantee between the same parties and the Treaty of Alliance between Greece, Turkey and the Republic of Cyprus. A11 these Treaties were put into force on the same date.
Cyprus was declared as an independent sovereign republic on the l6th August 1960, when its Constitution came into force98 .
On the 21 st September 1960 Cyprus became a member of the United Nations and on the 24th May 1961 a member of the Council of Europe. lt was, however, the retention of its links with the Commonwealth which encountered the more difficulties. At a meeting of thc leaders of the two Communities on the 20th January 1960 wich the then British Foreign Secretary it was arranged ihat the matter should be left to be decided by the Cypriot House of Representatives after independence99.
On the l5th Februa.ry 1961 the House of Representatives by 41 votes against 9 decided that the Republic should become a member of the Commonwealth.
The constitutional structure
The constitutional structure of the Republic of Cyprus has not emanated from the free will of its people, who had no opportunity either directly or through their ad hoc elected representatives to express an opinion thereon, but has been imposed upon them by the Zurich Agreement, concluded in their absence.
By that Agreement its provisions had to be included in the Constitution of the Republic of Cyprus as fundamental Articles not subject to any revision or amendment (Paragraph 21 of the Agreement).
The structure provided by the Agreement was based on two main principles. The one consisted in the recognition of the existence of two communities-the Greek and the Turkish-who in spite of their numerical disparity were given equal treatment whilst the people of Cyprus as a whole and the other racial communities of which it consisted have been conspicuously ignored. The other principle was aiming at assuring the participation of each community in the exercise of the functions of government and at avoiding the supremacy of the larger community (the Greek Cypriot) assuring also a partial administrative autonomy of each Community.
Such principles permeated through the whole constitution structure. It is obvious that these separatist elements were inspired by the Macmillan Plan.
An equal status is accorded to the Greek Community, representing the 80% of the population with the Turkish community, representing the 18% in many respects.
Thus the offcial languages of the Republic are the Greek and the Turkish languages (Article 3.7) and the Greek and the Turkish texts of the Constitution shall be both originals and shall have the same authenticity and the same legal force (Article 108. I ).
Although the Republic shall have ita own flag (Article 4.1 ) citizens of the Republic and non-public corporate or unincorporate bodies shall have the right to fly the Greek or tlle Turkisll flag without any restriction (Article 4. 4) and the Greek and the Turkisll communities shall have the right to celebrate respectively the Greek and the Turkish national holidays (Article 5).
For each community a Communal Chamber is established exercising legislative and administrative power on certain restricted subjects 1elating to religious matters, educational, cultural and teaching matters, personal status, composition, and installces of courts dealing with civil di.sputes relatillg to religious matters and personal status, and on matters relating to interests and institutions of purely communal nature and having a right to impose taxes and fees on members of their respective community in order to provide for the respective needs of bodies and institutions under the control of the communal Chamber (Articles 86 to 90).
Sound and vision broadcasting programmes shall be both for the Greek and the Turkish Communities under the conditions and during the hours provided in Article I7I.
The communities are given right of special relationship with Greece and Turkey respectively including the right to receive subsidies for educational, cultural, athletic and charitable institutions belonging to the community and of obtaining and employing if necessary shoolmasters, professors or clergymen provided by the Greek or Turkish Government, as the case may be (Article 108).
With regard to the municipalities provisions is adapted for separate municipalities in the five main towns Nicosia, Limassol, Famagusta, Larnaca and Papllos subject to celtain conditions as laid down in Articles 173-177.
The same distriction between the two Communities is adopted with regard to the organs of the Republic exercising the political and other state powers.
The President of the Republic shall be a Greek Cypriot and the Vice-President of the Republic a Turkish Cypriot elected separately by universal and secret ballot by the Greek and the Turkish communities respectively (Article 1 and 39).
In the event of temporary absence or incapacity or of any vacancy of the President or the Vice-President of the Republic the President of the House of Representatives (who is a Greek Cypriot) or the Vice-President of the House of Representatives (who is a Turkish Cypriot) shall act for the President or the Vice-President of the Republic respectively.
The President and the Vice-President of the Republic conjointly exercise executive power in respect of subjects exclusively laid down in the Constitution except certain subjects which they cxercise separately such as the right of recourse to the Supreme Constitutional Court on certain occasions, addressing messages to the House of Representatives and the exercise of the prerogatives of mercy in respect of members belonging to their own Community.
The President and the Vice-President of the Republic either conjointly or separately have a right of return of any Law or decision of the House of Representatives or of the Council of Ministers, to the House of Representatives or the Council of Ministers, respectively, for reconsideration and of final veto against any Law or decision of the House of Representatives or any decision of the Council of Ministers relating to foreign affairs, defence or security as defined in Article 50 of the Constitution.
The main executive organ is the Council of Ministers in which the participation of the two communities is not proportionate to the ratio of the population. There shall be seven Greek Cypriot Ministers and three Turkish Cypriot Ministers nominated by the President and the Vice-President of the Republic respectively but appointed by them conjointly. The Council of Ministers is the highest organ in the Republlic for formulating policy and exercising the executive power in all respects except for the specific subjects allotted to the President and the Vice-President of the Republic, to Ministers and the Communal Chambers respectively.
The President and the Vice-President of the Republic, simply "ensure" the exercise of the executive power by the Council Ministers100 or the individual Ministers.
The President and the Vice-President of the Republic conjointly promulgate the laws or decisions of the House of Representatives and the decisions of the Council of Ministers and each one of them separately is doing the same in respect of the laws or decisions of the Communal Chamber of his own Community. Before such promulgation, however, the President and the Vice-President of the Republic in respect of any law or decision of the House of Representatives and each one of them in respect of any decision of the Communal Chamber to his own Community may refer to the Supreme Constitutional Court for its opinion any law or decision or any part thereof which appears to be repugnant to or inconsistent with any constitutional provision.
The House of Representatives, which is the legislative organ of the Republic, shall consist of 50 Representatives, out of whom 35 are elected by the Greek Community and 15 by the Turkish Community.
The President of the House of Representatives shall be a Greek Cypriot and the Vice-President a Turkish Cypriot and shall be elected separately by the Representatives elected by the Greek Community and the Turkish Community respectively.
In case of vacancy in either ofplce an election shall take place as aforesaid with all due speed and in the case of temporary absence of the President or the Vice-President of the House their functions shall be performed by the eldest Representative of the respective Community.
The House cannot be dissolved either by the President or the Vice-President of the Republic but only by its own decision.
The laws and decisions of the House of Representatives shall be passed by a single majority of the Representatives present and voting. Any modification of the Electoral Law, however, and the adoption of any Law relating to municipalities and of any Law imposing duties or taxes shall require a simple majority of the Representatives elected by the Greek and the Turkish Communities respectively taking part in the vote. (Article 78).
This last provision has been the stumbling block to the due operation of the Constitution, as one Turkish Representative (if two of them were present and voted) could by his negative vote wreck any of the aforementioned legislation and especially one imposing taxation. Actually, by a misuse of their right of separate voting, the Turkish Members voted against a Bill for prolongation of the taxation Laws which were due to expire on the 31 st March 1961 and the Republic had remained for a while without taxation legislation since that date. They also voted on the l8th December 1961 against the Income Tax Bill (on which the main direct taxation is based) and the country remained without a unitary income tax legislation since the I st January 1962 until 1966 when by Law 21 of 1966 the Income Tax (F'oreign Persons) Law 1961, which was passed on the 29th December 1961, was amended. The Turkish Members voted against such legislation not because they were holding any opposite view or because it contained any unfavourable discrimination against their Community but they used their right of separate voting in order to compel Government to yield to Turkish claims having no connection with any matter of taxation. It is to be noted that the Bills in question had been passed by the Council of Ministers with the concurrence of the Turkish Ministers and the Turkish Vice-President of the Republic101 .
The Estate Duty Bill was introduced to the House in May 1961, but had not been enacted until the 20th October 1962, after the Turks have secured for members of their Community exemption from such taxation amounting to £14,000.
Also the Turkish members refused at the end of 1962 (when the Municipalities Law expired) to vote either for its extension or for a new Municipalities Law with the result that the Republic was found without any legislation relating to municipalities from the 1st January 1963 to Ist December 1964 (when the Municipal Law was enacted) and had to meet the situation through other means102 .
The judicial power of the Republic is exercised by the Supreme Constitutional Court (Part IX) and by the High Court and its subordinate courts (Part X).
The Supreme Constitutional Court shall consist of a President and a Greek and a Turkish Judge, citizens of the Republic, all of them appointed by the President and Vice-President of the Republic103 .
The main jurisdiction104 of the Supreme Constitutional Court relates to the determination whether a law or decision of the House of Representatives is, either in toto or in any part thereof, contrary or repugnant to any constitutional provision.
If the law or decision is declared by the Supreme Constitutional Court as unconstitutional, the law or decision is annulled. In the case of any law or decision before promulgation such law or decision is not promulgated and in case of a reference by a trial Court on a point raised by a party to a judicial proceedings the law becomes inapplicable to such proceedings only105 .
The Supreme Constitutional Court furthermore has exclusive jurisdiction to adjudicate finally on a recourse made to it on a complaint that a decision, act or omission of any organ, authority or person exercising any executive or administrative authority is contrary to the Constitution or any law or is made in excess or abuse of power, whereupon the Court may confirm, or annul such decision or act or declare that such omission ought not to have been made and that whatever has been omitted should have been performed. (Article 146).
The jurisdiction thus given to the Supreme Constitutional Court is similar to the revisional jurisdiction of the Conseil d'Etat in France or the Council of State in Greece, the decisions of which have been guiding the Supreme Constitutional Court in the exercise of such administrative jurisdiction106 .
Any decision of the Supreme Constitutional Court on any matter within its jurisdiction shall be binding on all courts, organs, authorities and persons in the Republic (Article 148).
The High Court consists of two Greek Judges, one Turkish judge (citizens of Cyprus), and a neutral President, all appointed by the President and the Vice-President of the Republic. They decide by majority but in case of an equality of votes the neutral President has a second vote.
In case of temporary absence or incapacity of the President of the High Court he shall be replaced by the President of the Constitutional Court and vice versa.
The High Court is the highest appellate court in the Republic and has also original and revisional jurisdiction as provided in the Constitution or may be provided by a law and it has also power to issue orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Furthermore the High Court has jurisdiction to determine the composition of the court which is to try civil or criminal cases in which the parties belong to different Communities.
A civil or criminal case in which the parties or the accused and the complainant belong to one Community shall be tried by a court the judge or judges of which shall belong to such Community and in case the parties or the accused and the complainant belong to different Communities the composition of the court shall be determined by the High Court. Furthermore the execution of any judgment of a court composed of judges belonging to one Community shall be carried out through officers belonging to such Community (Article 159).
The High Court constitutes also the Supreme Council of Judicature for the appointment, transfer, removal and disciplinary control over judges of the subordinate courts (Article 157).
The disciplinary control over the judges of the High Court is exercised by the Supreme Constitutional Court and over the Judges of the Supreme Constitutional Court by the High Court.
The independent ofhcers of the Republic are the Attorney General of the Republic assisted by his Deputy, the Auditor-General assisted by his Deputy, and the Governor of the Issuing Bank of the Republic assisted by his Deputy, all of whom are appointed by the President and the Vice-President of the Republic. The first two are not removable from office except on the same grounds and through the same procedure as a Judge of the High Court (Articles 112,121).
The Accountant-General and his Deputy, though not independent officers, are appointed by the President and Vicc-President of the Republic.
With regard to all the aforementioned officers if the one belongs to one Community then his Deputy shall belong to the other Community (proviso to Articles 112. l, 115. 1, 118. 1 and 126. 1)
The public service of the Republic shall be composed as to seventy per centum of Greeks and as to thirty per centum of Turks. There shall be a Public Service Commission consisting of a Chairman and nine other members appointed for a term of six years by the President and the Vice-President of the Republic, seven of whom shall be Greeks and three shall be Turks. It shall be the duty of the Commission to make the allocation of public offices between the two communities and to appoint, promote, transfer, and exercise disciplinary control over, including dismissal or removal from office of, public officers (Articles 122-125).
The decisions of the Commission shall be taken by absolute majority vote. But if it relates to a filling of a vacant post whether by a Greek or Turk such absolute majority shall include the vote of at least two Turkish members of the Commission.
The majority shall, when the question relates only to a Turk, include the votes of at least two Turkish members and when it relates only to a Greek include the votes of at least four Greek members. In the case of the selection of a Greek the unanimous recommendation of five Greek members and of a Turk the unanimous recommendation of three Turkish members shall bind the Commission (Article 125.3).
The Head and Deputy Head of the army107 and the security forces108 shall be appointed jointly by the President and the Vice-President of the Republic and if the Head belongs to the one Community the Deputy Head shall belong to the other Community (Article 132).
The territory of the Republic is one and indivisible. The integral or partial union of Cyprus with any other State or separatist idependence are express by excluded (Article 185).
This Article was aimed at excluding especially union with Greece, which the Greek-Cypriots were persistenly claiming, as well as the partition of the Island, which the Turkish community of late was putting forward as a counterbalanee to the claim of " Enosis ".
The idea of partition has first been suggested by the British Colonial Secretary in 1956 when he announced the Radcliffe proposals to the House of Commons (See Hansard. House of Commons vol. 562 (5th sec.) (1956) cols. 1267-69) and then was adopted by the Turkish Cypriots.
The constitutional structure of the Zurich Agreement comprises also two draft international Treaties: the Treaty of Guarantee between the Republic of Cyprus and ths United Kingdom, Greece and Turkey (the text of which is set out in Annex I(b) of the Agreement) and also a draft Treaty of Alliance between the Republic of Cyprus, Greece and Turkey (the text of which is set out in Annex I(c)).
Under the draft Treaty of Guarantee the Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security as well as respect for its Constitution and it undertakes not to participate in whole or in part in any political or economic union with any State whatsoever or to promote the partition of the Island (Article I).
By the draft Treaty of Alliance the three Parties thereto undertake to co-operate for their common defence and resist any attack or aggression directed against the independenee and territorial integrity of the Republic of Cyprus. For this purpose a Tripartite Headquarters shall be established on the territory of the Republic in which Greece and Turkey shall paricipate by a military contingent of 950 Greeks and 650 Turkish ofbcers and men. In the Treaty of Alliance provision is made for the operation of the Tripartite Headquarters.
In accordance with the Zurich Agreement those two Treaties shall have constitutional force (Paragraph 21 and cp. Article 181 of the Constitution).
The constitutional structure created by the Zurich Agreement cannot in any way be amended by way of variation, addition or repeal and all its provisions have been incorporated in the Constitution as its Basic Articles which are not subject to any such amendment (Article 182.1 and Annex III of the Constitution).
The other Articles of the Constitution, however, may be amended by a law passed by a majority vote of at least two thirds of the total number of Representatives belonging to the Greek Community and two-thirds of the total number of Representatives belonging to the Turkish Community (Article 182. 2 and 3)109 .
Another treaty which is included in the constitutional structure is the Treaty of Establishment between the United Kingdom, Greece and Turkey and the Republic of Cyprus which provides for the establishment of the Republic of Cyprus.
The definition and protection of the fundamental human rights and liberties was not included in the structure of the Zurich Agreement but it was provided by the London Agreement as a prerequisite of the establishment of the new State110 and by Article 5 of the Treaty of Establishment.
Actually, Part II of the Constitution deals with that subject, mainly based on the European Convention of Human Rights111 .
The legal nature and the peculiarities of the Constitution
From the historical survey it is made clear thtt the Constitution of Cyprus was imposed upon its people by the Zurich Agreement. It is, therefore, of the nature of a " granted constitution-constitution octroyee " which in the monarchical times of the past centuries the monarch condescended to grant to his people112 but is not consistent with the new prevailing democratic principles under which the constituent power vests in, and is exercised by, the people113.
But it is not only the manner in which the Constitution was granted that offends against the principles and the prevailing practice in public law but also the contents of the Constitution itself offend against fundamental principles of international law.
The right of self-determination of peoples as developed from World War I and adopted by the Charter of the United Nations114 and the International Covenants115 consists in the liberty of the peoples116 to determine on the internal plane their own government without any foreign intervention-internal self determination- and on the external field their fate and international status- external self determination 117 .
The right of self-determination is denied to the people of Cyprus by the constitutional provisions whereby the constitutional structure created by the Zurich Agreement shall remain unalterable by any means and that the so called Basic Articles of the Constitution cannot be amended by way of variation, addition or repeal (Article 182. 1), no matter how unworkable and how obstructive and injurious to the normal functioning of the state were proved to be. Such provisions are contrary not only to the accepted principles of public law118 and to current constitutional practice119 but offend against the principles and purposes of the Charter of the United Nations and peremptory rules of public international law120 .
Same considerations apply to the obligation undertaken by the Republic of Cyprus by the Treaty of Guarantee to keep unalterable in perpetuity its constitutional structure and order (Article I and inferentially from Articles 11 and IV).
With regard to those Treaties it has been observed that they were signed at a time when the Republic of Cyprus, having not been yet in existence, it had no personality in internationaP law and the President and the Vice-President of the Republic, having not yet been invested under Article 42 of the Constitution, had no treaty making power under Article 169121 I am not embarking on the examination of this question, as it may be argued that by Article 195 of the Constitution the authority of the President and the Vice-President of the Republic to conclude these Treaties was ex-post-facto recognized and the Treaties were considered as validly concuded and as operative and binding on the Republic as from the date on which they have been signed.
Furthermore it may be put forward that, Cyprus being a Crown Colony, before independence the constituent power was vested in the Queen, who by the Republic of Cyprus Order in Council 1960 ordered that the Constitution of the Republic of Cyprus as therein described shall be the Constitution of the Republic. Such Constitution includes Article 195 as well.
But the Treaty of Guarantee as all the other treaties by which the Republic of Cyprus was established have to bc examined from the international law angle and especially how far they are consistent with principles of the Charter of the United Nations so long as the Republic of Cyprus has become a Member of the Organization since the 21 st September 1960.
It is not the first time when a State is established by international treaties. As observed by Guggenheim122 who gives also precedents of such creation, the difference between states created under the customary international law and states created by the conventional international law lies only in the source of their creation and there could be no difference between the latter and the former.
A state, however, cannot be considered as a subject of international law except from the time when the supreme state organs are established. For the effective validity of the new state order, it is not necessary, however, that its juridical ordcr should be established in conformity with the conditions laid down in the act of its creation123 .
There are some precedents of laying of certain obligations or restrictions on the proposed new state by its creating treaty or on states not parties to the Treaties124 , but there is no other similar case in which the form of government and the structure of the new state were imposed in every minute detail by the respective treaties and the exercise of the state powers restricted both on the internal and the international plane in such a way that they are in fact subjected to the will of the guaranteeing Powers.
On the other hand, from the Preamble of the Treaty of Guarantee as well as from the contents of the Treaties in question, it appears that the guaranteeing Powers were aiming at promoting and protecting their own interests rather than those of the Republic of Cyprus125 .
The Treaty of Guarantee and the Treaty of Alliance were not concluded for a specific period and, though they contain no provision about their termination, nevertheless it was not supposed that they have been concluded for ever. As any other international treaty or convention, they are liable to termination in any of the ways known to international law126 .
Both the aforesaid Treaties (the Treaty of Guarantee and the Treaty of Alliance) offend against peremptory rules of customary international law and as far as they so offend cannot be valid and enforceable.
By the obligation undertaken by the Treaty of Guarantee to keep unalterable in perpetuity the constitutional structure and order imposed upon it, the Republic of Cyprus is subjected to the will of the guaranteeing Powers and is deprived of one of the fundamental requirements of a state as an international person, that of internal independence and territorial supremacy127 .
That obligation and generally the provisions of the Treaty which practically reserve the constituent power to the guaranteeing States cannot be supported as reasonable restrictions of independencc usually undertaken by conventions truly entered into by, and not imposed on, a state128; as they not only restrict but practically destroy the independence of the state of Cyprus.
The Treaty of Guarantee, unlike similar treaties129 , laying as it does the aforesaid unprecedented obligation on the state of Cyprus, clashes also with the principle of equality of states prevailing in customary international law130 and adopted by the Charter of the United Nations in paragraph 2 of its Preamble (providing for the equal rights of nations large and small) Articles 1 paragraphs 2 and 55 (providing for the principle "of equal rights and self-determination") and Article 2 paragraphs 1 and 78 (providing for the principle of "sovereign equality").
The Treaty of Guarantee conflicts with. another principle of customary international law that of abstention from interference (principe d'absention) in the domestic affairs of a state131, a principle adopted by Article 2 in general and particularly by its paragraph 7 of the Charter which binds the Members of the United Nations and the Organization as well132 .
Article IV of the Treaty of Guarantee provides that in the event of any breach of the provisions of the Treaty, Greece, Turkey and the United Kingdom undertake to consult together, with respect to the representations or measures necessary to ensure observance of those provisions.
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 re-establishing the state of affairs established by the Treaty.
The intervention provided by Article IV cannot be supported in accordance with the principles of international law133 .
Such provisions of the Treaty of Guarantee, conflicting with customary international law which is jus cogens, cannot be valid. And, since the Republic has become subsequently a Member of the United Nations, such provisions conflicting with the obligations of Members under the Charter, a fortiori cannot be valid and enforceable (Charter Article 103).
The treaty of Alliance, on the other hand, as emphasized by Professor Ténékidès134, cannot have any validity, as, inter alia, it tends to establish an alliance between a dwarf and giants (foedus inequalis).
Be that as it may, after continuous violations of essential provisions of the Treaty of Alliance by Turkey, the Republic of Cyprus had no other alternative than to consider the Treaty as terminated and cancelled on the ground of such violations as from April I964135 . It is significant that, after such termination, there was, in August 1964, an unprovoked attack by the Turkish Air Force upon the territory of the Republic, in which rockets and napalm bombs caused loss of life and limb to the innocent civilian population as well as great damage to property.
Reference has already been made to certain peculiar features of the Constitution, which by their nature and especially their separatist tendency, prevent the smooth functioning and development of the country and foster conflict, frustration and bitterness.
The constitutional provision relating to separate majorities for enactment of certain laws in the House of Representatives caused serious adverse effects to the Republic, which was left without any taxation legislation for several months, and impeded the functioning of local government through the administration of municipalities.
Also, the constitutional provision relating to the taking of decisions of the Public Service Commission in case of the appointment, promotion, transfer and discipline of public officers belonging to one of the Communities by an absolute majority of the members of the Commission including a fixed number of votes of its members belonging to such Community, amounts to the exercise of a right of veto by the latter and communal criteria are superimposed on the universal criteria accepted by similar bodies elsewhere. Furthermore, the procedure for taking such decisions creates situations leading to a deadlock.
Regarding the constitutional provision relating to the proportion of the participation of the Greeks and Turks in the composition of thc public service, apart from its being in disparity t.o that of the population, the implementation of such provision creates serious problems for the Republic. The Public Service Commission in considering appointments and promotions, is obliged to use criteria other than those universally accepted such as the qualifications, efficiency and suitability of the candidate, because it has to take into consideration the Community to which the candidate belongs. Furthermore, for the implementation of such provision, new posts have to be created so as to satisfy the required percentage.
The rigid provision about the ratio of participation in the public service offends against the internationally accepted principle of the right of every one of equal access to the public service of his country136 .
The right of final veto accorded to the President and the VicePresident of the Republic against any law or decision of the House of Representatives or decision of the Council of Ministers relating t.o foreign affairs or certain matters of defence or security, quite different from that existing in other countries137 , is against the principle of separation of powers on which our Constitution is based138 and could bring the President and the Vice-President in direct conflict with the Legislature.
The constitutional provision relating to the replacement of the President of the Republic in case of his temporary absence or incapacity, not by the Vice-President of the Republic but by the President of the House of Representatives not only is by-passing the Vice-President but also is hindering the continuity of the smooth functioning of the executive power. The election, on the other hand, of the President of the Republic by the Greek Community and of the Vice-President by the Turkish Community and of the President of the House of Representatives by its Members belonging to the Greek Community and of the Vice-President of the House by its Members belonging to the Turkish Community and their respective replacement in case of their temporary absence or incapacity by the senior member of the respective Community are of the dividing features of the Constitution which, instead of uniting the people of Cyprus and allowing the Greeks and Turks to co-operate in a spirit of undestanding and friendship, they draw them further apart to the detriment of the people of Cyprus as a whole.
Similar considerations apply to the existence of two Communal Chambers exercising legislative power on matters which are not strictly communal, such as education, which is put outside the Government economic and social policies and as a result many financial problems and other difficulties are created139 .
If it is put forward that all such dividing elements were adopted for the purpose of safeguarding the minority rights of the Turkish Community, the answer would be that other safeguards could be resorted to, such as those that have actually been provided, especially by the constitutional provisions against discrimination and the remedies provided therefor140 .
But what is really unprecedented is the dichotomy of justice in the sense that a court trying a case of persons belonging to one Community shall consist only of judges belonging to that Community.
Such a division is not only detrimental to the course of justice, the very concept of which defies separation, but tends to render the judges communally minded and suspicious of one another. It tends also to shake the confidence of the public in the administration of justice.
Such a concept is a relic of the notion of Capitulations existing in the Ottoman Empire and in some Asian and African countries141 which were abolished in Turkey by Article 28 of the Treaty of Lausanne.
The complicated nature of the Constitution of Cyprus has been underlined by various writers142 . In this respect Professor S. A. de Smith 143 observes-
" The Constitution of Cyprus is probably the most rigid in the world. It is certainly the most detailed and (with the possible exception of Kenya's new Constitution)144 the most complicated. It is weighed down by checks and balances, procedural and substantive safeguards, guarantees and prohibitions. Constitutionalism has run riot in harness with Communalism. The Government of the Republic must be carried on, but never have the chosen respresentatives of a political majority been set so daunting an obstacle course by the constitution makers."
But, apart from the conflict between the constitutional provisions (including those of the treaties forming part of the constitutional structure) and international law, there is a conflict between the constitutional provisions themselves.
It has already mentioned that in the Zurich constitutional structure no reference was made to the state of Cyrus as being
"an independant and sovereign Republic " which is now provided by Article 1 of the Constitution. As emphasized by Professor Tsatsos145, who led the Greek Delegation at the Mixed Constitutional Commission, such provision was not inserted as a first provision in the Constitution at random but it was intended to draw attention to its primary significance. But irrespective of its position in the Constitution its contents are of such fundamental importance as to guide the approach to the whole constitutional structure. The character of the state of Cyprus as " an independent and sovereign"146 state was recognized by the United. Nations Organization when the Republic of Cyprus became a Member of the Organization, which is based on the principle of equal sovereignty of all its Members (Article 2. 1) and later on by various decisions of the Security Council147 .
The presidential regime adopted by the Constitution is neither of the classical type as that of the United States of America nor of the presidentialism of Latin America or of the semi-presidential regime of France since 1962, of Austria after the war, or of Germany under the constitution of Weimar, or of Finland148 .
The President and the Vice-President of the Republic are elected directly but not by the whole of the people but by their respective Community and the separation of powers exists. Neither the President may convene or dissolve the House of Representatives which alone has such rights149 nor the House of Representatives may express any lack of confidence towards the government and force any of its members to resign. On the other hand, there exists a Council of Ministers which is a collective organ of the Republic exercising the executive power of the Republic except on certain very limited matters in respect of which the President or the Vice-President or Communal Chambers exercise executive power150 . But, beyond that, neither the President nor the Vice-President exercise any executive power. They are vested, however, with the right of final veto against any law or decision of the House of Representatives or any decision of the Council of Ministers relating to foreign affairs, and certain matters of defence and security putting in this respect an absolute restraint on the exercise of the legislative or executive power and furthermore they have the right of return of any such law or decision to the respective organs for reconsideration. The appointment of members of the public service (except the appointment of certain high officials and the judges) is not made by the President and the Vice-President of the Republic but by the Public Service Commission, an independent body.
The judicial power is quite separate and is exercised by an absolutely independent Judiciary, which is vested with very wide powers, especially on constitutional matters, and is rightly described as "the vertebral column of the whole constitutional mechanism". Such mechanism is working under the " Rule of the Judiciary "151 .
Such are the peculiarities of the Constitution of Cyprus.
S. A. de Smith rightly writes152 that
"Unique in its tortuous complexity and in the multiplicity of the safeguards that it provides for the principal minority, the Constitution of Cyprus stands alone among the constitutions of the world. Two nations dwell together under its shadow in uneasy juxtaposition, unsure whether this precariously poised structure is about to fall crashing about their ears.".
The President's proposed amendments and the situation created thereafter
Faced with this situation, the President of the Republic, by his letter of thc 30th November 1963 to the Vice-President153 transmitted a thirteen-point memorandum, whereby he suggested certain measures to facilitate the smooth functioning of the State and remove certain causes of inter-communal friction.
These measures consisted in the proposed revision of certain Articles of the Constitution, which, owing to their negative and separatist nature, impeded the smooth functioning of the government, prevented the development of the country and tended to keep Greeks and Turks apart, instead of drawing them together in a spirit of co-operation, friendship and understanding for the well being of the people of Cyprus as a whole.
The President set forth the following thirteen points, which reflected deadlocks that actually occurred -
(i) the right of veto of the President and Vice-President to be abandoned ;
(ii) the Vice-President of the Republic to deputise for the President in case of his temporary absence or incapacity to perform his duties ;
(iii) The Greek President of the House of Representatives and its Turkish Vice-President to be elected by the House as a whole and not, as at present, the President by the Greek Members of the House and the Vice-President by the Turkish Members of the House ;
(iv) the Vice-President of the House of Representatives to deputise for the President of the House in case of his temporary absence or incapacity to perform his duties ;
(v) the constitutional provisions regarding separate majorities for enactment of certain laws by the House of Representatives to be abolished ;
(vi) unified municipalities to be established ;
(vii) the administration of justice to be unitied ;
(viii) the division of the Security Forces into Police and Gendarmery to be abolished ;
(ix) the numerical strength of the Security Forces and of the Defence Forces to be determined by a Law ;
(x) the proportion of the participation of Greek and Turkish Cypriots in the composition of the Public Service and the Forces of the Republic to be modified in proportion to the ratio of the population of Greek and Turkish Cypriots ;
(xi) the number of Members of the Public Service Commission to be reduced from ten to five ;
(xii) all decisions of the Public Service Commission to be taken by simple majority ;
(xiii) the Greek Communal Chambers to be abolished.
Copy of such memorandum was given to the three guaranteeing powers for their information.
It is significant, however, that the Turkish Government rejected them before the Turkish Cypriot Community had commented on such proposals. But, whatever possibility may have existed at that time-even a very remote one-of calm and rational discussion of these proposals between the two Communities, disappeared indefinitely with the violent disturbances between them a few days later on 21 st December 1963.
At the London Conference which followed in January 1964, between the Republic of Cyprus, Greece, Turkey and the United Kingdom, which representatives of the two Communities attended a new attempt was made to reach a settlement but it failed. The Conference was terminated on the 10th February I964154 .
Although it does not fall within the purview of the present study to describe in minute detail what transpired at that Conference, the speech of the Turkish Foreign Minister Erkin on the l6th January 1964 cannot remain without comment. After referring to the familiar argument of the strategic importance of Cyprus to Turkey and the geographical position of Cyprus as being a continuation of the Anatolian Peninsula, an echo of the speech of the Foreign Minister Zorlu in 1955, he concluded by remarking that-
"All these considerations clearly demonstrate that Cyprus has vital importance for Turkey, not merely because of the existence of the Turkish community in Cyprus, but also on account of its geo-strategic bearing ".
This unexpectedly candid statement by the Turkish Foreign Minister clearly demonstrates that Turkey's primary concern has all along been the strategic importance it attributed to Cyprus rather than the protection of the minority rights of the Turkish Cypriot community.
The Republic of Cyprus, under the pressure of Turkish threats about an imminent invasion of the Island, took the matter to the United Nations, since the Cyprus question is primarily a question of application of universally accepted principles of the United Nations Charter.
The United Nations dealt with the Cyprus issue both in thc Security Council and in the General Assembly. Especially the Security Council had, on more than one occasion, dealt with the various questions which would have endangered the international peace in the neighbourhood. Under its decision of the 4th March 1964, a Peace Keeping Force was created which commenced operational duties since the 27th March 1964155 and a Mediator was appointed " to use his best endeavours. . . . ... for the purpose of promoting a peaceful solution and an agreed settlement of the problem confronting Cyprus in accordance with the Charter of the United Nations having in mind the well-being of the people of Cvprus as a whole. . . . . . '". As first Media.tor was appointed the late Finnish diplomat Sakari S. Tuomioja, whose untimely death Cyprus mourned and lamented. and after his death Dr, Galo Plaza succeeded him.
Dr. Plaza submitted on the 26th March 1965 liis Report156 to the Secretary-General of the United Nations. After the submission of that Report the Turkish Government declared that she no longer recognises Dr. Galo Plaza as Mediator.
"The Turkish-Cypriot community holds firmly to its previous position" says Dr. Plaza in his Report "and in particular continues to insist on a solution based on geographical separation of the two communities under a federal system of Government" (paragraph 97 of the Report).
With regard to the Turkish Government Dr. Plaza says that its "proposal for geographical separation of the two communities under a federal system of government remains essentially the same as the plan previously submitted by it and the TurkishCypriot leadership" (paragraph 109 of the Report).
And on these points Dr. Plaza concludes -
"It is essential to be clear what this proposal implies. To refer to it simply as "federation" is to oversimplify the matter. What is involved is not merely a federal form of government but also to secure a geographical separation of the two communities. The establishment of a federal regime requires a territorial basis, and this basis does not exist. In an earlier part of this report I explained that island-wide intermingling in normal times of the Greek-Cypriot and Turkish-Cypriot populations. The events since December 1963 have not basically altered this characteristic; even the enclaves where number of Turkish-Cypriot concentrated following the troubles are widely scattered over the island, while thousands of other Turkish-Cypriots have remained in mixed villages". (Paragraph 150 nf the Report).
In an earlier part of the Report Dr. Plaza observes that by the appointment of a Mediator the Security Council recognized that the problem of Cyprus cannot be resolved by attempting to restore the solution which existed before December 1963 but that a new solution should be found and that such solution should be consistent with the principles of the Charter amongst which were the respect for the principle of equal rights and self determination respect of human rights and fundamental freedoms, recognition of the sovereign equality of the Member States, abstention from the threat or use of force against the territorial integrity or political independence of any state and respect for treaty obligations not in conflict with those of Member States under the Charter (paragraph 130 of the Report).
Regarding the State of the Republic of Cyprus the Mediator says that-
" The Republic of Cyprus is a sovereign, independent State; it was admitted as such into membership of the United Nations, it continues to be a Member State, and the Security Council Resolution of 4 March 1964 refers to it explicity as "the Sovereign Republic of Cyprus" (paragraph 132 of the Report).
And he concludes without making any precise formal recommendation by suggesting that the parties concerned should try, in the light of his observations in the Report, to meet together at a suitable place on the earliest possible occasion and discuss their case.
Whilst the Turkish side was claiming a federal form of government which was a disguised claim for partition (as it involved a geographical separation of the two Communities when according to the Mediator "the proposed Federated States would be separated by an uncertified line cutting through independent parts of homogeneous areas including, according to the Turkish-Cypriot proposals, the cities of Famagusta and Nicosia" such line of division constituting a cause of friction between two mutually suspicious populations) (paragraph 154 of the Report)) the Government of the Republic maintained that, since the Republic was a Member of the United Nations, the principles and purposes of its Charter should be applied to her for the well-being of the people of Cyprus as a whole and without bringing upon them hardship and misery by divisions and fragmentations.
With such diametrically opposite views the Republic of Cyprus had no other alternative but to bring the matter as soon as possible and for the avoidance of any other procrastination before thc General Assembly of the United Nations as "a town meeting of the world " and the "open conscience of humanity"157 .
The General Assembly of the United Nations on the 18 December, 1965 by 47 votes against 5 with 54 abstentions, after taking cognizance that the Republic of Cyprus, as an equal Member of the United Nations is, in accordance with the Charter, entitled and should enjoy full sovereignty and complete independence without any foreign intervention or interference, called upon all States, in conformity with their obligations under the Charter, and in particular with Article 2 paragraphs 1 and 4, to respect the sovereignty, unity, independence and territorial integrity of the Republic of Cyprus and to refrain from any intervention with it.
A great effort has been made in the meantime and all necessary steps have been taken to return to normality but the unfortunate events in November 1967 resulted in the renewal of Turkish threats of aggression and the repeated violations of the airspace of the Republic by Turkish planes.
The Security Council, in its efforts to find a peaceful solution to the problem of Cyprus, by its resolution 244 (1967) of the 22nd December 1967, adopted the provision of the good offices of the Secretary-General of the United Nations.
After intense diplomatic activities all the parties accepted the appeal of the Secretary-General of the United Nations for utmost restraint and the tension was eased. The Secretary-General also offered his good offices, an offer which was accepted. A better climate was thus created for a conciliatory approach to the problem and as a result intercommunal talks have started, as from the 3rd June 1968 in Beirut and from 24th June 1968 in Cyprus, between representatives of the Greek and the Turkish Community.
For the purpose of facilitating the successful achievement of the aims of such talks, the late Secretary-General of the United Nations, in the exercise of his good ofiices, proposed their enlargement by the participation of his personal representative in Cyprus and the presence, in an advisory capacity, of two constitutiorial experts, one from Greece and one from Turkey.
Such proposal has been accepted by the Government of Greece and that of Turkey as well so as to reach a peaceful solution based on true democratic principles consistent with the requirements of jastice and the reactivated talks have started since the 3 July 1972.
The intercolnmunal talks still had continued until the date of the Turkish invasion on 20th July 1974, the subject of local government continuing to be the most thorny one158 .
The Constitutional developments owing to the
abnormal situation created after 21 December I963
After the events of the 21 st December 1963 the Turkish Ministers, the Turkish Members of the House of Representatives and the Turkish officers failed to turn up and were persistently refusing to exercise the functions of their respective offices.
But the life of the State and its government could not be wrecked and had to be carried on, and the various organs of the Republic set up under its Constitution and vested expressly with certain competence had a duty to exercise such competence and to govern and no organs can abstain therefrom in as much as the functions and the status of the organ are conferred intuitu personae159 .
The House of Representatives and the Council of Ministers continued, therefore, to function in the absence of the Turkish Members, so long as the requisite quorum existed, and the decisions were taken in accordance with the constitutional provisions. The same applied to the Ministers, who had to perform the duties outlined in Article 58 in respect of their Ministry, having in mind that in case of doubt they had to refer the matter to the Council of Ministers160 .
Concerning the Judiciary, as far back as July 1963 the Supreme Constitutional Court had been incapable of sitting in view of a vacancy in the office of his President who had resigned. Since the end of May 1964 the High Court was condemned to inactivity through the resignation of its own President. Until June 1964 the Turkish District Judges did not attend to their duties but later they resumed attending though at a reduced rate. It was found, therefore, necessary to enact the Administration of Justice (Miscellaneous Provisions) Law 1964, as it was imperative that justice should continue to be administered unhampered by the situation created and it became necessary to make legislative provision in respect of the exercise of the judicial power hitherto exercised by the Supreme Constitutional Court and by the High Court until such time as the people of Cyprus may determine such matters.
By that Law, for the exercise of the jurisdiction of the aforesaid Courts, a new Court was established, the Supreme Court, consisting of five or more members not exceeding seven and including all the existing members of the Supreme Constitutional Court and the High Court under the chairmanship of their senior member, who at that time, happened to be a Turk.
In case of any future vacancy, that would be filled by a new appointment by the President of the Republic of a person having the necessary qualifications.
Regarding the functions of the High Court as a Supreme Council of Judicature in respect of the appointments, promotions, transfers and disciplinary control over the lower judiciary, a new Supreme Council of Judicature was established consisting of the Attorney-General of the Republic, the President and two Senior Judges of the Supreme Court, the senior President of a District Court and the senior District Judge and a practising advocate of at least twelve years practice elected ad hoc at a general meeting of the Cyprus Bar Association every six months161 .
The Law was, however, attacked as unconstitutional but the Supreme Court in the case of the Attorney-General of the Republic v. Mustafa Ibrahim (1964) C.L.R. p.195 decided that it was justified under the law of necessity viewing the abnormal situation prevailing in Cyprus162 .
After the enactment of that law the Turkish judges resumed duties and the administration of justice reverted to normal.
Unfortunately, since the 2nd June 1966, the Turkish Judges (including those of the Suprem.e Court) have refused to attend for the performance of their functions.
With regard to the Greek Communal. Chamber, as its functioning became impossible mainly due to financial difficulties and as a result it requested the House of Representatives to take care the sooner possible, so that its competences should be transferred, to make the required legislative provision therefor, by the Transfer of the Exercise of the Competence of the Greek Communal Chamber and the Establishment of a Ministry of Education Law 1965 all such competences were transferred as in that Law provided to the appropriate organs of the Republic and a Ministry of Education was created to be in charge of educational matters concerning the Greek Community until such time as the people of Cyprus will have the opportunity to express its opinion on such matters. By that Law the existing rights of the representatives of the religious groups who joined the Greek Community, that is to say the Armenians the Latins and the Maronites, have been reserved.
That Law was justified on the same doctrine of necessity explained above in respect of the Judiciary.
The same considerations applied with regard the Public Service Commission which, as a result of the refusal of the Turkish-Cypriots to co-operate, could not function as provided in the Constitution.
Based on the same doctrine, the Public Service Law, 1967, was enacted, whereby a new Commission was established, consisting of five members appointed by the President of the Republic to exercise the functions of the Public Service Commission as provided in the Constitution.
The government of the Republic thus continues to be carried out in spite of the created abnormal situation as explained above163 .
The Turkish invasion
1. During the process of the reactivated intercommunal talks and whilst the Greek and the Turkish constitutional experts were exploring the ground for an agreed solution on certain controversial points164, Turkey, through various statements of its leaders, was undermining such efforts by declaring that the only acceptable solution to the Cyprus problem was that based on federation165 .
By putting forward the claim for federalism, being well aware that under the conditions then existing in Cyprus such a form of government was not feasible166, Turkey was promoting its real aims to achieve a geographical separation of the island into two zones, the Greek-Cypriot and the Turkish-Cypriot.
The Turkish policy on this matter had been always consistent since the time of the tripartite conference in London. Reference has already been made to the statements of Zorlu, the then Turkish foreign minister, at that conference, which have been repeated by Erkin, the Turkish foreign minister, at the five partite conference in London in 1964.
The same views were submitted by the Turkish Cypriots, obviously at the instigation of Ankara, to Lord Radcliffe, the Constitutional Commissioner in 1965, and to the Mediator Dr. Galo Plaza in 1964.
The then Prime Minister, the late Ismet Inonu, in his address to the Turkish National Assembly on the 8th September 1964, made no secret that-
" officially, we promoted the federation concept, rather than the partition thesis sn, as to remain within the provisions of the Treaty of Guarantee ".
That partition has always been Turkey's real aim with the object of having the Turkish-Cypriot sector eventually united with Turkey, clearly emerges, not only from the whole attitude of Turkey, but also from the statements of her statesmen on various occasions.
Apart from the statements of Zorlu and Erkin at the two aforementioned conferences, reference also may be made to a newspaper interview given in Athens in June 1964 by Erkin, when he said that-
" the radical solution. . . . . . would be to cede one part of Cyprus to Greece and the other, closest to the Turkish Asiatic coast, to Turkey "
Also, in 1964, Kemal Sakir, a former vice President of Turkey said that-
" Cyprus would be divided in two sectors one of which will join Turkey "
From such statements it becomes clear that the concept of federation has long been used by Turkey as a tactical means to camouflage her hidden aim of partition.
If any doubt existed about Turkey's real intentions, that doubt has been removed by the unprovoked attack and military invasion of the Republic and the occupation by the Turkish armed forces of territory of the Republic even more extensive than that claimed by the Turkish-Cypriot side for its purpose.
2. Early in the morning of the 20th July 1974, Turkey, availing itself of the coup d'état of the l5th July 1974 against Archbishop Makarios, proceeded to an unprovoked attack by sea and air against the Sovereign Republic of Cyprus, the independence and territorial integrity of which she had guaranteed by the Treaty of Guarantee.
Various justifications and contradictory excuses were given by the Turkish leadership for of such invasion.
At one time Ecevit, the then Prime Minister, stated that the armed intervention was made by Turkey in its capacity as coguarantor of the independence and constitutional order of Cyprus, whilst in another statement he said that the object of the operation was to overthrow the regime which toppled Archbishop Makarios, avoiding, however, to reply to the question whether his intention was to restore Archbishop Makarios. To other journalists he stated that, at the end of the "operation", Turkey would consider the possibility of negotiating with those "who only understood the language of brute force", in as much as "Greece in the past refused to accept the offer for negotiations to settle all bilateral problems".
Olcay, the Permanent Turkish Representative at the United Nations, on the other hand, in his address to the Security Council at its meeting of the 20th September 1974167 , tended to support the view that the Turkish operation was aimed at the liberation of the oppressed Turkish community of the island and to restore their rights.
Turkey seeks support of her right for such invasion in Article 1V of the Treaty of Guarantee which is as follows :-
"In the event of the breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult together, with a view to making representations or taking the necessary steps to ensure observance of those provisions.
In so far as common concerted action may prove impossible each of the three guaranteeing powers reserves the right to take action with the sole aim of re-establishing the state of affairs established by the present Treaty ".
Irrespective of the validity of such Article168 and thoueh from the preamble and the provisions of the Treary it appears that the guaranteeing powers were aiming at the protection of their own interests rather than the interests of the Republic of Cyprus169 yet that Article does not grant any right of armed intervention to the guaranteeing powers170 .
The Treaty of Guarantee, in accordance with the second paragraph of Article V, was deposited with the Secretariat of the United Nations by virtue of Article 102 of the Charter and it is governed by its provisions. Even if we assume that the Treaty constitutes a regional arrangement within the meaning of Chapter V of the Charter171 it is impossible for the provision of Article 53 to be overlooked, in accordance with which no enforcement measures can be taken without the authorization of the Security Council. And even if Article IV grants to one of the guaranteeing Powers the right of taking military measures, in the present case the prerequisites of its application do not exist. It is doubtful whether the coup d'état could be considered as "a breach of the provisions of the Treaty" within the meaning of Article IV and in any event the procedure provided therein for the application of its second paragraph for a unilateral action, that is to say the common consultation for "a common concrete action", had not taken place. As stated by the British Foreign Secretary Mr. Callaghan at the meeting of the l3th August 1974 at the Geneva Conference, Greece was invited to such consultation in London on the 23rd July 1974, whilst the invasion had started since the 20th July 1974.
But on a true construction of Article 1V172 , it may be maintained that "the necessary steps" provided in paragraph 1 of that Article refer to measures of the same nature as "the representations" on the ejusdem generis rule and they do not include the use of force. The aim of the armed intervention by Turkey had not been the one provided by the aforesaid Article ofthe Treat that is to say "the restoration of the state of affairs created by the Treaty" as such restoration had already taken place since the 23rd July 1974 when the appropriate constitutional organs of the Republic assumed their constitutional functions, but, as proved by subsequent events, the purpose of the invasion was to compel the Greek side to accept the federal solution proposed by Turkey.
Though on the 22nd July 1974 at 16.00 hour (the agreed time for the cease fire in pursuance to the Security Council resolution No. 353 of the 20.7.74) the invading forces had occupied 1.70% of the territory of the Republic, Turkey continued expanding its occupation. On the 30th July 1974 (the date of the Geneva Declaration signed by the Foreign Ministers of Greece, Turkey and the United Kingdom providing inter alia for the cease fire)173 the occupation was extended, by further expansion of the Turkish invasion Forces, to 3.74 % of the territory of the Republic174 and on the 8 August 1974 (prior to the second phase of the Geneva Conference) it was further extended to 3.96 %175 .
But Turkey had made abundantly clear what her intentions were by the attitude of the Turkish Foreign Minister at the evening meeting of the conference at Geneva on the l3th August 1974, when he demanded, by way of ultimatum, an immediate answer to his and Mr. Denktash' proposals for territorial separation and the grant of 34 % of the territory of the Republic to the so called "Turkish-Cypriot autonomous administration" for the establishment of a federation. His refusal to accept the grant of thirty six hours time for the examination of such proposals could only be motivated by the desire to prove that the Geneva conference should be considered as having failed.
A few hours later, a heavy bombing of Nicosia started and the Turkish invasion forces advanced towards the town of Famagusta which they occupied, completing in this way the occupation of the northern part of the island, starting from Limnitis, passing through the Turkish-controlled part of Nicosia and then through the line of Mora-Moussoulita-Prastio-Gaidhoura and ending at the Turkish part of Famagusta (including its newly constructed harbour as well) thus covering the extent of the territory they were claiming in their proposals (which was described in Turkish as "Attila line")176 . The area so occupied amounted to the 34.10% of the territory of the Republic177 .
The area so occupied is of an extent of 1075,20 sq. miles (out of 3572 square miles of the whole area of Cyprus) with a total population of 183,859 inhabitants (out of 573,566 of the whole population of Cyprus on the census of 1960). Out of the 183,859 inhabitants of the area 128,563 were Greek-Cypriots and 55,296 were Turkish-Cypriots the percentage of the Greek-Cypriot being thus 69.92 % and of the Turkish-Cypriots 30.08 %. In that area there are 94 purely Greek villages wlth a population of 72,546, 44 purely Turkish villages with a population of 15,740 and 44 mixed villages (including the whole town of Kyrenia and part of the town of Famagusta) with a population of 56,017 Greek-Cypriots and 40,125 Turkish-Cypriots. The total number of villages in Cyprus is 625 out of which 392 are Greek-Cypriot, 120 Turkish-Cypriot and 113 mixed villages.
The occupied area is the richest part of Cyprus in natural and productive resources, containing the main port of Famagusta and the ports of Kyrenia and Karavostassi, the best coasts of the island, main mines quarries, the main water resources, archaelogical sites and the most important tourist centres.
But even after the agreed time for cease-fire, at 18.00 hours of the l6th August 1974, and in spite of all the resolutions of the Security Council178 , the Turkish armed invading forces continued their advance and as on the 28.00 hours of the 29th May 1975 had occupied 36,43 % of the territory of the Republic (including the village of Aphania, Ashia, Vatyli and others together with the Tymbou airport, south of "Attila line" and the village of Pyroi further south).
Apart from the extensive looting179, the various atrocities and the serious violations of human rights committed by the invading Turkish forces180 for which recourses were made to the European Commission of Human Rights, the Greek population of island, in the face of the invading forces and under the fear that they would be the victims of violence and rape, had they stayed on, were compelled to flee from their towns or villages, abandoning their homes and all their belongings, and to take refuge in the areas controlled by the Republic.
As is described by the Study Mission
" . . . the People moved the instant they saw or thought the Turkish army was advancing towards their town or village. And they moved instantly-dropping everything taking very little with them, and by foot, car, tractor, truck, bus or wagon moved to safety in government controlled areas ".
In this way more than 200,000 Greek-Cypriots were displaced and most of them had to live, under inhuman conditions, in the open air182 .
The Security Council by its repeated resolutions, starting from that under number 353 (1974), demanded the immediate termination of the foreign intervention in the Republic of Cyprus whereby its sovereignty, independence and territorial integrity were affected and requested that the foreign military personnel found in Cyprus otherwise than in accordance with international agreements be withdrawn without delay. Also the General Assembly of the United Nations by its unanimous resolution No. 3212 (XXIX) of the 1 st November 1974 (endorsed by the Security Council by its resolution 365 (1974) ) called upon all states to respect the sovereignty, independence, territorial integrity and non alignement of the Republic of Cyprus and to refrain from any acts or interventions directly against it, urged the speedy withdrawal of all foreign armed forces and considered that all refugees should return to their homes in safety calling upon the parties concerned to take urgent measures to that end. Furthermore it resolved that the constitutional system of the Republic concerns the Greek-Cypriot and the Turkish-Cypriot communities and recommended the continuation of the intercommunal talks within the framework of the United Nations.
By the resolution passed on the 20th November 1975 (3395) the General Assembly reaffirmed the urgent need for continued efforts for the effective implementation for all parts of resolution 3212 (XXIX) endorsed by the Security Council by its resolution 365 (1974), and called once again upon all states to respect the sovereignty, independence, territorial integrity and non alignement of the Republic of Cyprus and to refrain from all acts and interventions and repeated its former resolutions.
To the same effect is the recent resolution of the General Assembly of the l3th November 1976.
Turkey, in utter disregard of the aforesaid resolutions and of all other previous resolutions of the Security Council, not only had not withdrawn her forces and did not allow the return of the refugees to their homes, but, on the contrary, she is still expelling the Greek-Cypriots from the territories under her control and is promoting the settlement therein, and in the homes of the refugees of Turkish-Cypriots and of Turks brought from Turkey.
As a result of the Turkish invasion a number of Greek-Cypriots are missing and persistent efforts to find their whereabouts have been proved futile. The number of such missing persons to day amounts to about two thousand.
The Greek-Cypriots who remained in the Turkish occupied territories on the l6th August 1974 were about 20,000, a number which was progressively diminishing owing to the oppressing measures taken by the Turks in order to compel all the enclaved persons to leave such territories so as to settle therein Turkish-Cypriots and Turks brought from Turkey, the number of whom was increasing day by day. The number of such enclaved persons on the date of the third Vienna round on the 2nd August 1975, at which it was decided that such persons would be allowed to stay in their homes (and that persons separated from their families and living in the Government controlled areas would be allowed to return and join their families), amounted to 8,920. But the Turks in contravention of the agreement reached at Vienna as aforesaid were turning out day by day such enclaved persons. From 2 August 1975 to the l5th January 1977, 6,383 such persons were expelled from their homes and properties and sent away to the areas controlled by the Republic.
The legal nature of the Turkish invasion, the occupation of the territories of the Republic and violations by Turkey of human rights and international law during such invasion and oecupation.
l. The unprovoked armed attack by Turkey against the Republic of Cyprus and the invasion by the Turkish armed forces amount not only to waging war against the Republic183 but also to an aggression within the meaning of this expression in international law184 .
The aggressive war is considered as a crime in international law, especially as a crime against peace185 .
2. The ensuing occupation of about 40% of the territory of the Republic and its continuation until to day constitutes a continuous aggression in flagrant violation of international law.
During such unlawful occupation Turkey was not only usurping powers of the lawful government of the Republic and preventing her from exercising her functions over of the occupied territory186 but in contravention of customary international law187 and in flagrant violation of her undertaken obligations under conventional international law (such as the FIague Rules, the Geneva Convention for the Protection of Civilian Population in Time of War 1949, and of the European Convention of Human Rights and Fundamental Freedom), she had, on reliable information received, committed and is committing various crimes and atrocities188 .
With regard to the violations of the European Convention of Human Rights and Fundamental Freedoms as already said, the Republic of Cyprus by her two aforesaid applications against Turkey, brought the matter before the European Commission of Human Rights. The Commission, on the 22nd and 23rd May 1975, heard the parties on the preliminary objections of Turkey against the admissibility of the applications and the Commission, without prejudging the merits of the case, declared the applications admissible189 .
The Commission then appointed a Delegation consisting of its President and four other members of the Commission for the purpose of ascertaining the facts and carrying out the investigation under Article 28. The Delegation visited Cyprus from the 2nd to 7th September 1975 and carried out an investigation of the allegations, including the hearing of witnesses.
The Commission drew up a Report under Article 31 of the Convention and transmitted it to the Committee of Ministers on the 20th August 1976.
The incidence and effect of the Turkish invasion on the existence of the Republic of Cyprus and its Government.
1. The existence of the Republic of Cyprus had not been seriously challenged even after the well-known incidents of the the 21st December 1963, in spite of statements of the Turkish-Cypriot leadership that its Constitution is dead190.
The continuing existence of the Republic of Cyprus has been recognized by a series of resolutions of the Security Council starting from that of 4th March 1964 (No. 186) and ending with that of l5th June 1976 (No. 391) and the resolutions of the General Assembly of the l8th December 1965 of the 1st November 1974 (3212 (XXIX) ) of 20th November 1975 (No. 3395) and of the 12th November 1976.
2. The Republic of Cyprus continues to exist in spite of all efforts to have it extinguished.
Once a state has come into existence, it continues to exist until it is extiguished. A state is extinguished, and therefore ceases to be all international person, when it is annexed after conquest in war (debellatio and incorporation), when it is merged into another state, and when it is broken up into several states191
By the Turkish invasion, although a considerable part of the territory of the Republic has been unlawfully occupied by Turkey, nevertheless such belligerent occupation (occupatio bellica) does not affect the sovereignty of the Republic over the territory occupied, notwithstanding that she may be temporarily prevented from exercising its powers.
In accordance with the principle of international law which has been adopted since the last century, by belligerent occupation of its territory, a state is not deprived of its sovereignty over such territory which is not transferred to the occupant. The occupant may exercise military power on such territory but does not acquire sovereignty over it192 .
The existence of the Republic of Cyprus has not so far been disputed by anybody. Even Turkey continues to recognize such existence193 .
3. International law distinguishes between the Government and the state it governs194. For a statc to function it is necessary to have a government. A government, through the instrumentality of which a state functions, may change from time to time both as to form-as from monarchy to a republic-and as to the head of the government without affecting the continuity or identity of the state as an international person195 .
In the Republic of Cyprus, neither the form nor the structure of government has changed, in spite of the heavy attacks on its existence made from time to time by Turkey. The government of the Republic continues to be based on the presidential regime with the President of the Republic as the Head of the state and the Vice-President as the Vice-Head of the state. The President of the Republic has been elected by the majority of the people. There exists also and operates a Council of Ministers as the main executive organ.
The diplomatic representatives continue to be accredited to the President of the Republic and the diplomatic representatives of the Republic are accredited to foreign states on credentials signed by the President of the Republic. There exists a House of Representatives, the members of which were elected in accordance with the constitutional provisions, which functions in spite of the persistent failure of the Turkish Cypriots to take part. All the constitutional organs exist and function under the Constitution.
The present Government of the Republic has no unlawful origin as it is based on the constitutional provisions adapted to the circumstances as evolved in Cyprus196 . The wilful absention of the Turkish-Cypriots from the administration of the Republic cannot wreck its proper functioning, which has to be carried out on the application of the principle "salus rei publicae suprema lex" with the unavoidable deviation from the strict letter of the Constitution, under the law of necessity. Such law was considered by the Supreme Court to be engrafted on the Constitution of the Republic197 .
Especially with regard to the functioning of thc collective organs of the Republic, under the prevailing principle in public law, such organs may lawfully take their decisions at a meeting lawfully convened, attended to by the required quorum and supported by the required majority198 . The more so, when such decisions have to be taken for the maintenance of the essential services of the state.
So, from an international law point of view, there can be no doubt that the present government of the Republic, controlling its public services, performing effectively the usual functions of political power and enjoying the confidence of the vast majority of the people of the Republic, is the government of the Republic of Cyprus199 and is recognised as such by all the other states, except Turkey, and by all international organizations200 .
Federal problems facing Cyprus
1. On the eve of the closing of the Geneva conference and on its last day, both the Turkish Cypriot and Turkish side submitted proposals for the form of government of the Republic of Cyprus201 .
By such proposals, the existing unitary state of the Republic of Cyprus would be transformed to a binational or bicommunal independent state consisting of two federated states, the TurkishCypriot and the Greek-Cypriot federated states, in accordance with the Turkish Cypriot proposals, or of two autonomous zones the Turkish-Cypriot and the Greek-Cypriot autonomous zones, in the submission of the Turkish side. The federated states or autonomous zones shall have full control and autonomy within their respective geographical area.
In accordance with the Turkish-Cypriot proposals the area of the Turkish-Cypriot federal state or autonomous zone would cover the 34% of the territory of the Republic and would comprise, all the areas on the north of the A.ttila line, starting from Limnitis-Lefka in the west and running towards the east, passing through the Turkish sector of Nicosia, and ending at the Turkish sector of Famagusta including its new harbour; in accordance with the Turkish proposals, such area would include a main Turkish-Cypriot district (more or less coinciding with that of the Attila line but excluding certain areas on the west and in Karpasia on the east) and six other smaller districts in the region of Lefka, Polis, Paphos, Larnaca and Karpasia.
The Turkish proposals envisaged that the main district proposed for the Turkish-Cypriot autonomous zone would be evacuated by units of the Greek-Cypriot armed forces within 48 hours and its administration and security would be taken over immediately by the Turkish-Cypriot administration.
In determining the competence to be left to the federal or central government, the bi-national or bi-communal nature of thc state should be taken into account and the federal competence would be exercised accordingly.
It was of these proposals that the Turkish Foreign Minister Gunes, at the night meeting of the l3th August 1974, had demanded an unconditional acceptance in principle and refused to grant 36 hours' time for their consideration.
2. But why had a change become necessary ? The only argument put forward is the one which, since 1964, has been repeatedly and persisently advanced by the Turkish side, that a geographical separation is necessary for the better protection of the life and property of the Turkish-Cypriots.
Why should the Turkish-Cypriots, representing 18 % of the population, want for their security 34% of the territory of the Republic, (the best and richest) and especially that situated on the north nearest to Turkey, leaving the remaining area, mountainous, nonfertile, poor in natural and productive resources, to the Greek-Cyptiots, representing the 80% of the population? And how is this safety to be secured so long as the dividing line between the two zones would be only an administrative and not a fortified one and the population which was to be included in that line was predominantly Greek whilst a substantial part of the Turkish population would be left in the Greek zone ?
3. Turkey, in order to overcome this unsurmountable obstacle through her armed forces and other authorized agents in Cyprus and using the Turkish-Cypriots as a pretext, not only prevents the 200,000 Greek-Cypriot refugees from returning to their homes and properties, but, by a well thought out and systematically applied plan, expels gradually, and at an increasing scale of late, the remaining Greek-Cypriots who were left behind in the territories under her control202 . Furthermore, in order to give an ostensible demographic appearance of the composition of the population living in such territories, she forced all Turkish-Cypriots, wherever residing throughout the island, to leave their homes and go to live to such territories and is increasing the number of such colonists by bringing Turks from Turkey to join them under the guise of "Turkish-Cypriots who had emigrated to Turkey" or "workers brought over for temporary employment" in tourism, agriculture and industry203 .
It is under such circumstances that Turkey supports the creation of a separate "Turkish Federated State" to form a federation with the remaining part of Cyprus which they want to present as " the Greek Federated State ".
Turkey makes no secret that, by the afore-mentioned unlawful activities, a de facto exchange of population has taken place.
But an exchange of populations, particularly on a compulsory basis, as in the present case, entails many financial and more important, serious humanitarian remote retrograde consequences, bly in public law204 .
4. The federal system is a social phenomenon in evolution and widely spread out especially during the 20th century205 .
This system is encountered not only within the sphere of the public law but also within that of private law206 and aims at the regulation of the exercise of the power within the various organisations in such a way that the apparent antinomy between the principles of the autonomy of the whole and of the participation of its constituent member may be removed and the harmonious administration of the common affairs may be achieved207 .
This system, however, operates on the state field and governs the state relations.
The federal states today are numerous. North America has three-the United States of America, Canada and Mexico-South America four-Brazil, Venezuela, Colombia and the Republic of Argentina, Africa until 1970 five-Cameroon, Nigeria, Tanzania, Uganda, South Africa (and now Kenya) Asia two, India and Malaysia to which Australia should be added in the Pacific Ocean and Europe six-Austria, Czechoslovakia, the Federal Republic of Germany, Soviet Russia and Switzerland.
As already said208 ,an essential prerequisite of a federal state is the prior existence of two or more states or other independent units which for different reasons desire to be under a strong central government, for some purposes at any rate, whilst at the same time they will continue to preserve their independent status in other respects.
There is no case of establishment of a federal state without the pre-existence of separate independent states or regions.
In Cyprus such prerequisites do not exist. There are no separate states or geographical zones and the attempt of Turkey to create such a situation by establishing a so called "Turkish Federated state", through the aforesaid unlawful means of eviction and expulsion of the Greek-Cypriots from their homes and the compulsory uprooting of the Turkish-Cypriots from their places and their removal to the areas occupied by them, does not create the prerequisites of a statehood.
The constituent elements of a state, on the prevailing theory in public law, are a permanent people within a specified territory organised as a juridical person having original political power and exercising it eo jure209 .
The reconstruction of the so called "autonomous Turkish-Cypriot administration "210 on the l3th February 1975 and its change to a so called "Turkish-Cypriot Federated State"211 does not create such a state in public law, as all the four aforesaid constituent elements of statehood are missing.
The compulsory agglomeration of heterogeneous Turks within the Turkish controlled area does not constitute a "permanent people" within the concept of public law, and the element of "territory" is missing as the territory of the Republic under the Turkish occupation bellica does not bring it within the sovereignty either of Turkey or Turkish-Cypriots. After all, the extent of that territory is the subject of discussion between the parties at the intercommunal talks.
The aforesaid so called state does not exercise any political power, as such power is exercised by the invading forces under the control and on the instructions of Turkey. It cannot be maintained either that the Turkish controlled areas are organised as a juridical person.
As emphasized by Delbez : (op. cit p. 157) "ou bien 1'Etat naît de la réunion d'élements qui n'avaient pas encore revétu la forme étatique ou bien 1'Etat se forme d'éléments étatiques préexistents. Il y a donc selon la formule de M. Genêt, un processus primaire de formation de 1'Etat et un processus secondaire...... La verité est que 1'Etat existe a partir du moment ou sont reunis ses trois elements constitutifs, une population, une territoire, une autorité commune, stable et obéie, et qui existe independament de tout acte juridique quelquongue. . ."
The Security Council, by paragraph 2 of its decision 367 of the 12 March 1975, regretted the unilateral decision of the 13th February 1975 declaring that a part of the Republic of Cyprus would become a federated Turkish state as, inter alia, tending "to compromise the continuation of negotiations between the representatives of the two communities on an equal footing".
But if the prerequisites for the secondary process for the formation of a new state referred to by Genet had already existed it was quite unnecessary for the announcement of the creation of the "Turkish-Cypriot Federated State".
In the absence of a geographical separation of the two communities, federalism in a country of the size of Cyprus, of the number of its population and of the conditions under which they were living, would be a very difficult task.
It has already been explained that the aim of a federation is to unite pre-existing states or other regions under a central government for the purposes, among others, of their common defence and security and not to divide the territory of a unitary state and to create an artificial geographical area, as in the circumstances of Cyprus, for the ostensible reason of securing the physical safety of the Turkish-Cypriots, who in their vast majority have never been inhabitants of that area, and of protecting their property, which mostly they have not got in that area.
It is to be noted that the Republic of Cyprus, a unitary state, is being sought to be transformed into a federal state at a time when federalism is declining and the trend in federal states is towards centralisation by strengthening the central government so as to enable her to carry out her social programme and meet the requirements of the modern welfare state212 .
5. The United Nations General Assembly by its resolution 3212 (XXIX) of the lst November 1974 (endorsed by the the Security Council by its resolution 365/1974) commended the contacts and negotiations taking place on an equal footing, with the good offices of the Secretary-General between the representatives of the two communities and called for their continuation with a view to reaching freely a mutually acceptable political settlement based on their fundamental and legitimate rights.
In spite of such resolutions, Turkey failed to comply therewith. She failed to withdraw her armed forces and according to a recent statement of her Foreign Secretary, such forces will be withdrawn only after a solution of the problem is achieved.
It would, therefore, be questionable whether negotiations could be carried out "on an equal footing" between the two communities and whether a political settlement could be achieved " freely " under such circumstances when the Turkish forces in the island are in occupation of more than 40% of the territory of the Republic and are controlling not only such territory but also the Turkish-Cypriot community, which Turkey caused to be brought and live therein. Practically such negotiations will be carried out between the representatives of the Greek-Cypriot community, on the one hand, and respresentatives, ostensibly of the Turkish-Cypriot community, but in fact the mouthpiece of Turkey, on the other hand.
The Security Council, by another resolution 367, ( 1975) of the 17th. March 1975, after recalling its previous resolutions and particularly resolution 365 ( 1974), whereby it endorsed General Assembly resolution 3212 (XXIX), regretting the unilateral decision of the Turkish-Cypriots that a part of Cyprus would become a Federated Turkish-Cypriot State and affirming that such decision could in no way prejudice the final political settlement of the problem of Cyprus, requested the Secretary-General to undertake a new mission of good offices and to that end to convene the parties under new agreed procedures for the resumption, the intensification and progress of comprehensive negotiations under his personal auspices and called upon the representatives of the two communities to co-operate closely with the Secretary-General in the discharge of this new mission of good offices.
The Secretary-General, on the adoption of that resolution, came into contact with the parties concerned and, on the 8th April 1975, agreement was reached for the beginning in Vienna, on the 28th April 1975, of the negotiations, as required by the aforesaid resolution of the Security Counci213 .
The first round of the talks took place at Vienna from 28th April to 3rd May and was followed by two other rounds at Vienna from the 5th to the 7th June 1975 and from the 3lst July to the 2nd August 1975214. At the third round of the talks at Vienna it was agreed, inter alia, to allow free movement of the Turkish-Cypriots to the north and of the Greek-Cypriots who would like to return to the north215 .
Nevertheless no progress has been made towards a final settlement of the political issue, though the Greek-Cypriot representatives had made clear in the document given to the Turkish-Cypriot side, containing the proposed principles on the constitutional aspect, dated 10th February 1975, that the Greek-Cypriot side accepts that the constitution of Cyprus, an independent sovereign republic, shall be that of a bi-communal multi-regional federal state216 .
The same fate was to have the fourth round of talks, held at New York from 8th to 10th September, 1975217 .
For this reason the General Assembly of the United Nations by another resolution, 3395 of the 20th November 1975, "noting with concern that four rounds of talks between the representatives of the two communities in pursuance of Security Council resolution 367 (1975) have not yet led to a mutually acceptable settlement" and "deeply concerned at the continuation of the crisis in Cyprus", reaffirmed the urgent need for the effective implementation of the former resolution, called upon on all states once again to respect the sovereignty, independence, territorial integrity and nonalignment of the Republic of Cyprus, demanded the withdrawal without further delay of all foreign troops, called upon the parties concerned to undertake urgent measures to facilitate the voluntary return of refugees to their homes in safety and called for the immediate resumption in a meaningful and constructive manner of the negotiations between the representatives of the two communities under the auspices of the Secretary-General.
In spite of this resolution, the invading Turkish forces have not retreated one inch from the territory of the Republic and all refugees are still kept away from their homes.
It remains, therefore, doubtful whether negotiations could be carried out under such circumstances " in a meaningful and constructive way " as required by the aforesaid resolution of the General Assembly of the United Nations.
Be that as it may, the fifth round of the talks had started, under the auspices of the Secretary-General in Vienna from the l7th February and concluded on the 2lst February 1976.
According to the official communique, the representatives of the two communities held substantive discussions on the territorial and constitutional issues and it has been agreed that an exchange of written proposals through the Special Representative in Cyprus of the Secretary-General will take place in Cyprus within the next six weeks.
It was further agreed that the representatives of the two communities will meet under the auspices of the Secretary-General in Vienna in May with a view of establishing a common basis prior to referring the matter to mixed committees in Cyprus.
The Greek-Cypriot side submitted its proposals and, by a letter of its then representative dated 6th April 1976 to the Special Representative of the Secretary-General in Cyprus, requested him to transmit them to the Turkish-Cypriot representative in accordance with the agreement made at the 5th round of talks at Vienna.
The proposals are set out in Appendix I.
By its proposals the Greek-Cypriot side has dealt with all the aspects of the Cyprus problem and put them forward for the purpose of being taken together with a view to reaching a solution of the problem on a " package deal " basis.
The proposals were made on the fundamental assumption that the territory of the Republic of Cyprus shall be one and indivisible, that the integral or partial union of Cyprus with any other state or any separatist independence or partition are excluded and that any solution shall be within the framework of the Charter of the United Nations without any derogation from the resolution of the General Assembly and the Security Council. Particularly the solution will ensure the well-being of the people of Cyprus as a whole, will preserve the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus, unilateral actions in contravention of the United Nations resolutions, including the colonization of Cyprus and changes in its demographic structure, will cease, all f'oreign armed forces will be withdrawn without any further delay and all the refugees will return to their homes under conditions of safety.
Certain constitutional principles are formulated with regard to the Constitution of the Republic of Cyprus. The Constitution shall provide for the establishment of a federal state, the Federal Republic of Cyprus, which shall be a federation and not a confederation and shall preserve the sovereignty, independence and territorial integrity of the Republic, shall ensure that the Republic shall be the sole subject of international law to the exclusion of its constituent members and shall preserve the economic unity of the Republic.
The fundamental human rights, as set-out in international conventions, shall be safeguarded in the Federal Republic of Cyprus and its constituent members and particularly the right of free movement and residence throughout the territory of the
Republic, the right to security and Iiberty of person, the right to property and the right to work, to practice any profession, or carry on business in any part of the Republic.
The participation of the two communities in the federal organs shall be proportionate to the ratio of the population. Constitutional arrangements, however, should be made providing for equitable safeguards on certain specific matters. Every citizen of the Republic shall enjoy and exercise his political rights in respect of federal government, irrespective of his place of residence. The exercise of such rights within the constituent part of the federation where he resides shall be regulated by constitutional provisions.
As far as the territorial aspect is concerned the Greek-Cypriot side accepts that the three areas (now under Turkish control) discussed at the first and second rounds of the Vienna talks for the return of the refugees may be used as a starting point for the discussion of the territorial aspect and these areas and other areas, as shall be agreed through negotiations, shall not be under the Turkish-Cypriot administration which shall, within the framework of the Federal Republic of Cyprus, extend to 20 % of the territory of the Republic.
Regarding the division of the political power in the federal state the Greek-Cypriot side proposes two lists, the federal list and the regional list, by which detailed provisions are made regarding the powers to be exercised by the federal government and the regional government respectively. In determing such division, tile Greek-Cypriot side starts from the premise that there are not now in existence separate geographical entitites lawfully exercising state powers, but that there exists only one unitary state, the Republic of Cyprus, in which all the state powers are now vested and by which they are exercised and that, out of that unitary state, certain powers are to be carved and entrusted to the constitutent members of the proposed federal state. For this reason it is proposed that the enumeration of the subjects in the regional list be exclusive whilst the residue of the powers is vested in the federal government218 .
The Turkish-Cypriot proposals, as they appear in Appendix II, were delivered on the l7th April 1976 to the Special Representative of the Secretary-General.
The letter accompanying the proposals is signed by the "President of the Turkish Federated State" on paper so headed in flagrant contravention of the resolutions of the Security Council, under which the intercommunal talks are being held. Under such resolutions, as already said, the abortive attempt to create a " Turkish-Cypriot Federated State" by unilateral action is regretted and in any event such state has not been recognised either by the United Nations or by any other state.
But that is not the only indication that the proposals of the Turkish-Cypriot side were submitted in utter disregard of the resolutions of the Security Council. The proposed division of the political power in the Federal Republic is based on the assumption of the existence now in Cyprus of two separate and distinct Turkish and Greek-Cypriot Administrations " irrespective of what name they be known by, with effective control over two separate and distinct regions in the Republic of Cyprus " and on this basis it is proposed that consideration may be given to " what powers and functions the already existing separate and distinct Administrations i.e. the States of the proposed Federal Republic, should yield to the Federal Government ".
In this way the Turkish-Cypriot side, by invokin the existence of the so called "Turkish-Cypriot Federal Republic", arbitrarily and artificially created by unilateral action, as a factor to be considered during the negotiations, is acting in an obvious disregard of the requirement of the resolution of the Security Council that such fait accompli, created by unilateral action, should not prejudge the issue and prejudice the negotiations for finding a peaceful solution to the problem of Cyprus.
But the Turkish-Cypriot side, by acting in this way, is not only disregarding the resolutions of the Security Council, but misleadingly is putting forward propositions which are untenable under public law and are against the accepted constitutional practice.
In all the federations, as already said, their constituent members had been in existence and were functioning long before they were united in a federation.
Thus in Switzerland the existence of the cantons dates back to A.D.1291, long before the establishment of the federation in 1848219 , in the United States of America the 13 colonies were in existence before becoming states and united in a federation under the constitution of 1787220 and in the Federal Republic of Germany the Lander had been long in existence before the establishment of a federation221 .
The same occurred in all other federations as in Cunada222 , Australia 223 , and all the post Second War federations 224 .
It cannot be seriously maintained that same conditions exist in Cyprus. The Republic of Cyprus is an independent, sovereign, unitary state and the unilateral action of trying to create a separate Turkish-Cypriot Federated State, as recently as the l3th February 1975, cannot achieve, for the reasons already explained, the desired purpose. There wculd be, therefore, no question of the so called Turkish-Cypriot Federated State yielding any state or other powers to the proposed Federal Republic of Cyprus so long as no such state exists that is vested with any such powers.
Another false assumption of the Turkish-Cypriot proposals is that of the equality, in all respects and in all manifestations, of the two proposed members of the Federal Republic, irrespective of size and population, which wrongly is put forward as occurring in the existing federations225 and as being one of the prevailing
" fundamental and democratic principles observed by the Charter of the United Nations"226 .
The Turkish-Cypriot proposals consist of three parts.
The first part contains principles concerning the establishment of a Federal Republic of Cyprus.
As every principle, such principles are vague generalities and bare declarations without constituting concrete proposals regarding the constitutional structure of the Federal Republic and the means whereby such principles are to be brought into effect. One principle, however, that referring to the non-secular nature of the Federal Republic, echoing Article 2 of the constitution of Turkey, cannot be passed unnoticed.
A.s a whole, these principles are permeated by the concept of equality of the members of the proposed new federation in every respect and without any regard being had to the size of such members and the number of their populations.
The second part relates to the power and functions of the central government of the Federal Republic of Cyprus.
After expounding the principles on which such proposals are being made and especially that of equality in the participation and the exercise of authority by the two national communities and of the restricted powers of the central government, all the residual power being saved for the two members of the proposed federation, ten subjects are mentioned for which the central government may exercise authority. Most of these subjects are of a secondary importance in relation to which no real authority may be exercised within the member-states of the federation (such as weights and measures, patents, trade marks and copyrights. meteorological services, medical services (with the right of every state to have its own medical and health services) communications (with the right of each state of having its own communications services). On the three subjects traditionally falling within the federal competence, that is to say external affairs, defence and security, the proposed powers uf the federation are so substantially curtailed as to be shadowy only. In this way, the federal government will have no say in internal secutrity, with regard to foreign affairs its competence will be so restricted as to be almost non-existent and in matters of defence the question will be left for the guaranteeing Powers.
Under such circumstances, the assertion that the Turksih-Cypriot proposals aim at the creation of an "independent, sovereign and territorially integral Federal Republic of Cyprus" is really a travesty of the concept of federation.
In the federal state there exists unity of territory, which consists of the whole territory of the member states. On the whole territory of the federal state it exercises sovereign state power on all persons therein227 . This is certainly not what is aimed at by the Turkish-Cypriot proposals.
This becomes more obvious from the letter of the 26th May, 1976, of the Turkish-Cypriot Representativ to the Special Representative in Cyprus of the Secretary-General and contained in his letter of the same date to the Greek-Cypriot Representative (set out in Appendix III). From that letter it becomes absolutely clear that the intention of the Turkish-Cypriot side is to abolish the existing independent, sovereign and territorially integral Republic of Cyprus and substitute for it two independent and sovereign states the Turkish-Cypriot and the Greek-Cypriot states-linked together with very shadowy bonds which the Turkish - Cypriot side is pleased to call federation.
In that letter the Turkish-Cypriot side clarifies that, regarding the territorial aspect, for which no concrete proposals are being made in the third part of the proposals, the negotiations shall be restricted to an adaption and determination of the boundary line between the two regions " which will form the two wings of the framework of the Federal Republic of Cyprus ". Such regions shall be "homogeneous both demographically and geographically and each region shall be responsible for the defence of its own coasts and shall have exclusive rights over its territorial waters and continental shelf ".
By such proposals, not only any concept of a federal state is negatived, but also the resolutions of the Security Council speaking about the sovereignty, independence and territorial integrity of the Republic of Cyprus and about fundamental rights are conspicuously ignored.
By its proposals, the so-called "Turkish Federated State" (and, for that matter, the Turkish government, whose mouthpiece it obviously is), does not seem to support the establishment of a federal state, not even of a confederation, as even the loose bonds linking together the states in a confederation for the achievement of the common purposes, mainly relating to the common defence, security, foreign affairs and economic relations, are missing228 .
The proposed weakening of the central government will result in the parcellation of the Republic of Cyprus into two separate independent states. As Waline says in respect of France regarding the central government in a decentralised state "a state in which there would be no central government would cease to be a state and would be parcellated in small entities of secondary importance each one of which would be a state" 229 .
So long as the Turkish-Cypriot side has not submitted concrete written proposals, in accordance with the agreed arrangement at the fifth round of talks at Vienna, the negotiations have been suspended until today.
6. The Secretary-General, with a view of reviving the negotiations, held at New York consultations with the Greek-Cypriot and the Turkish-Cypriot Representatives, from the 16th to the 20th September 1976, but without any tangible result.
In view, however, of the recent resolution of the General Assembly of the United Nations of the l2th November 1976, by which, after the re-affirmation of all its previous resolutions and the demand for their implementation, the Secretary-General is requested to continue to provide his good offices for the negotiations between representatives of the two communities, we may be justified in hoping that such negotiations will be resumed "in a meaningful and constructive manner" and will enter into examination of tlie substance of the matter and will not, as hitherto, be restricted to procedural questions only.
The evolntion of the Cyprus intercommunal talks
A. The Guidelines Makarios-Denktaż
I.The late President Makarios had a meeting with the Turkish-Cypriot leader Mr. Rauf Denktas on the 27th January 1977 at the UNFlCYP Headquartes in the presence of the United Nations Secretary-General's Special Representative in Cyprus Mr. Perez de Cuellar at which views were exchanged on the question of the resumption of the talks.
As a result a new meeting took place betwee President Makarios and Mr. Denktas in Nicosia on the l2th February 1977 in the presence of the Secretary-General of the United Nations Dr. Kurt Waldheim at which it was decided that the intercommunal talks, which had been at a standstill for about a year, should be resumed at Vienna towards the end of March on the basis of the following four guidelines-
1. We are seeking an independent, non-aligned, bi-communal Federal Republic.
2. The territory under the administration of each community should be discussed in the light of economic viability and productivity and land ownership.
3. Questions of principle like freedom of movement, freedom of settlement, the right of property and other specific matters are open for discussion taking into consideration the fundamental basis for a bi-communal federal system and certain practical difficulties which may arise for the Turkish-Cypriot community.
4. The powers and functions of the Central Federal Government will be such as to safeguard the unity of the country, having regard to the bi-communal character of the State230 .
2. It is to be observed that the expression "bi-communal" in guidelines 1, 3 and 4 should bear the same meaning 231 .
It is not a word of art having a special meaning in public law or in any way tending to describe the form of the state or its government but it is only used to denote the factual composition of the people of a particular state.
Thus in Canada there exist two national communities without the character of the federal state of Canada being affected. Also in Belgium we come across two different linguistic communities but Belgium does not cease to be a unitary state232.
In U.S.S.R. and Yugoslavia though there are many mationalities and racial communities nevertheless the integrity of the stste in retained233 .
Bi-communalism is the permeating principle of the Constitution of 1960, now in force. The bi-communal character of the Republic of Cyprus is emphasized by Articles 1, 2 and 5 and the whole constitutional structure is based on this general notion (cp. inter alia Articles 62.2, 63.1, 72.1 and 3, 73.4, 77, 78.2, 86, 112.1, I I5.1, 118.1, 120.1, 133(2), 159, 171, 186 (1).
So there is nothing magic in the use of the expression "bicommunal". Guidelines 1 and 4 contemplate the participation of the two communities in the structure of the State and its functioning.
3. Emphasis, however, with regard to guideline 1 should be based on the phrase "independent Federal Republic" which will succeed the existing unitary Republic of Cyprus.
The concept of the federal state is well defined in the public law and there could be no doubt about the new form of the government of the State. A federal state, unlike a confederation of states, constitutes an integral political entity quite separate from its constituent members234 . So the Federal Republic of Cyprus, like all the other federal states, throughout the world, will be an integral state which shall be the only subject of international law and as such shall succeed on the international field the now existing Republic of Cyprus.
Furthermore the expression bi-communal does not imply that the participation of the two Communities in the administration of the state shall be throughout on an equal basis. The now existing unitary state of the Republic of Cyprus is a bi-communal state but the two communities do not participate equally in the various state functions.
4. With regard to guideline 3 the expression "bi-communal federal system" could not be given any other meaning than that it bears in guideline I and 4. What are described in that guideline "as principles like freedom of movement, freedom of settlement, the right to property and other specific matters" they are fundamental human rights and freedoms which are guaranteed by international conventions, to which the Republic of Cyprus is a party235, by the Constitution of the Republic of 1960236 and by the constitution of various countries237 .
The only reasonable construction to be put on guideline (3) is that in the application of such fundamental rights and liberties to the Federal Republic of Cyprus due regard should be had to the "bi-communal basis of the federal system" that is to say that the Federal Republic of Cyprus shall be based on the existence of the two communities. But such a factor has already been taken into consideration in the provisions with regard to the fundamental human rights and liberties guaranteed under Part II ofthe Constitution of the Republic of Cyprus.
Article 6 expressly provides that no discrimination shall take place "against any of the two Communities or any person as a person or by virtue of being a member of a Community".
Furthermore, the existence of the two Communities constitutes a factor to be taken into consideration in approaching the operation of certain human rights.
Thus under Article 20.2, 3 and 4 regarding education, Article 22.2 and 3 regarding the right to marry, Article 23.9 and 10 with regard to the right of property belonging to religious Christian institutions and the Evcaf, Article 34 with regard to aetivities by a community to undermine any of the human rights.
It follows that the word "bi-communal" in guideline (3) could not be given any other meaning different to that it bears in guidelines ( I ) and (4) and it cannot be invoked in support of the restriction of safeguards of internationally recognized and guaranteed human rights to a narrow circle of persons belonging to one community238 .
That guideline 3 was not aiming at the undermining of those fundamental human rights but only at regulating their application under certain peculiar circumstances of Cyprus became apparent from the last provision of such guideline that "certain difficulties which may arise for the Turkish-Cypriot community" in the enforcement and application of such human rights should not be overlooked. In case of such dificulties it is presumed that temporary arrangements have to be made so as to meet the case.
5. Guideline 4 relates to the powers and functions of the central government which in a federal state is a matter of cardinal importance. The now prevailing trends towards centralization and strengthening of the central government so as to enable her to carry out her social program and meet the requirements of the modern welfare state 239 .
With regard to the powers and functions of the central government guideline 4 provides that they shall be such "as to safeguard the unity of the country, having regard to the bi-communal character of the state". Though the guidelines cannot be considered as a carefully drafted legal document nevertheless from the wording of that guideline 4 it becomes apparent that in determining the nature and extent of the powers of the central government the predominent consideration should be the safeguard of the unity of the country in a bi-communal state. The vesting, therefore, of any power in its constituent members tending to undermine such unity has to be avoided.
6. The question of the territory to be administered by the constituent members of the proposed Federal Republic is not settled by the guidelines but under guideline 2 it was left for discussion between the two Communities.
But again from the wording of that guideline it emerges that the territory to be allotted to each Community is a part of the territory of the Federal Republic and only its administration will be entrusted to the respective Community. This strengthens the view that throughout the guidelines the idea of unity of the country is contemplated. That becomes clearer from the criteria provided in guideline 2 for the determination of the territory to be allotted "to the administration of each Community". Those consisting among others in the "economic viability, productivity and !and owning". "Economic viability" cannot be considered in isolation without reference to the inhabitants of a particular part of the territory nor without relation with the whole economy of the country and its sectors. "Land owning" on the other hand is closely connected with the question of the population.
7. Following the formulation of the guidelines it was agreed to hold talks in Vienna under the auspices of the Secretary-General of the United Nations and the two sides undertook to submit concrete proposals on the two basic issues of the Cyprus problem, the territorial and the constitutional, and to comment in a substantive manner on each other's proposals so as to ensure a meaningful discussion conducive to a settlement.
Since on all previous occasions efforts for serious talks have failed it was agreed this time that the two sides would undertake certain very specific commitments as regards the resumption and conduct of the talks so that their right be rendered meaningful and substantive.
The commitments undertaken by the two sides were :
(a) The Greek-Cypriot side would during the talks take the initiative on the territorial aspect by submitting proposals on this subject accompanied by a map, within the framework of the four guidelines ; and
(b) The Turkish-Cypriot side would take the initiative on the constitutional aspect by submitting proposals on this aspect within the framework of the four guidelines.
Also both sides solemny undertook to discuss in a really meaningful substantive way such proposals.240
B. First round of intercommunal talks at Vienna 3lst March7th April 1977
l. The talks were held in Vienna from the 31 st March 1977 to 7th April 1977.
In opening the talks Dr. Waldheim, emphasized that the guidelines "provide us with a sound basis for a new and determined effort" and that which we expected was "to launch a process of meaningful and substantive negotiation which will enable us to establish the framework of an agreement within a reasonable time". He foresaw, however, that the talks could not be concluded at Vienna on the 7th April when those meetings will come to an end, and that they will continue at Nicosia to make up the various points in a greater detail prior to another round at Vienna.
The Greek-Cypriot Interlocutor Mr. Tassos Papadopoulos after explaining the position of the Greek-Cypriot side towards the Cyprus problem pointed out that such problem has many aspects, apart from the question of the withdrawal of the Turkish forces from the Island and of securing effective international guarantees. One of the main issues is the territorial issue which is inseparable from certain basic principles among which are the freedom of movement, the freedom of settlement and the right to property which are provided by the guidelines. Another issue relates to the powers and functions of the federal government but no difficulties could be encountered in connection therewith as the guidelines provide expressly that they shall be such as to safeguard the unity of the country having regard to the bi-communal character of state. After emphasizing the importance of the extent of the territory to be administered by each community, within the framework of the federal state, he proceeded to put forward the Greek-Cypriot proposals with regard to the territorial aspect accompanied by a map241 with the general principles pertaining to the proposals as set out in Appendix V.
Mr. Papadopoulos stressed that the proposals were made in a desire to facilitate a settlement of the common problem and that in the case of a small country like Cyprus the economy of which is integrated and homogeneous the structure of the federation should be such as to ensure cohesion and unity of the country and prevent the segregation of the people242 .
M r. Suleyman Onan, the Turkish-Cypriot Interlocutor, on the other hand stated that despite the complexity of the problem which involves not only political, legal and constitutional factors but also human, economic and security ones and which need a thorough examination so that this can be looked at and tackled as a whole, his community's approach to them is and will be in good faith in order to have a meaningful and substantive negotiation on all points243 .
The Turkish-Cypriot Interlocutor apparently made no constructive comments on the Greek-Cypriot proposals on the territorial aspect but limited himself in explaining the reasons why such propflsals were unacceptable to the Turkish-Cypriot community244 . He submitted, however, on the 1st April 1977, the proposals of the Turkish-Cypriot side on the constitutional aspect of the problem.
Such proposals are set-out in Appendix VI.
By such proposals it is not clearly indicated what form of federation is proposed for Cyprus. It appears that at the meeting it was contended by them that their proposals aimed at the setting up of two separate states connected in a way which in future it might lead to what they termed " federation by evolution," a a term so far unknown in public law245 .
Detailed comments on such proposals were made by the Greek-Cypriot side at the meeting of the 2nd April 1977 and are contained in Appendix VII. The Greek-Cypriot side, furthermore, at the meeting of the 6th April 1977 submitted in addition to the proposals on the territorial issue, certain basic principles which should govern the constitutional structure of the Federal Republic of Cyprus.
Such basic principles are set-out in Appendix Vlll and are to read together with the proposals set-out in Appendix I.
The first round of the Vienna talks ended on the 7th April 1977 and in accordance with the official communiqué issued " it has not been possible to bridge the considerable gap between the views of the two sides. Efforts will be continued to overcome the differences."246 For this purpose it was agreed that the talks will resume in Nicosia about the middle of May 1977 under the auspices of the Special Representative of the Secretary-General in preparation of a further round at Vienna247 .
C. The Turkish-Cypriot proposals of April 1978
I. The contemplated meetings at Nicosia were fixed in May and in early June 1977 under the auspices of the United Nations Secretary-General's Special Representative in Cyprus. At those meetings the existing gap has not been bridged. The Secretary-General in his report on the 25th October 1977 to the General Assembly248 reported that "in his report to the Security Council, he mentioned that, despite the efforts and those of his Special Representative it had not proved possible at Vienna to reach a stage where an effective negotiating process could evolve out of the interlocutors' statements of conflicting positions. Following the resumption of the talks at Nicosia in May the situation in this regard remained unchanged for the time being. lt was evident, however, that certain political developments were being awaited before the next step was taken (S/123 para. 57)".
2. The political developments referred to in the aforesaid extract from the report of the United Nations Secretary-General followed. The United Nations Secretary-General, in compliance with the resolution of the General Assembly 22/15249 requesting the resumption of the talks in a meaningful and constructive way undertook an intense political activity with the Governments of Greece and Turkey, and in Cyprus with the leaders of the two communities. In Ankara, where there has been a new Government under Mr. Ecevit, the Secretary-General obtained assurance from oim that the Turkish side would submit shortly concrete proposals hn the territorial aspect as well as revised constitutional proposals. In Nicosia President Kyprianou and Mr. Denktaż agreed that the Turkish proposals should be submitted to the Secretary-General so that he may study them and consult with the parties of the best methods of preparing for and resuming of the talks. And in Athens Mr. Karamanlis assured the Secretary-General of his support for the talks250
The Turkish-Cypriot proposals were handed to the Secreary-General in Vienna on the l3th April 1978 by Professor Muntaz Soyzal, who was advising the Turkish-Cypriot Community on constitutional matters and Mr. Necati Munir Ertekun, Legal adviser of the Turkish-Cypriot representative at the intercommunal talks. On the l9th April the Secretary-General transmitted the proposals in Nicosia to President Kyprianou who informed him that the proposals were not acceptable as a basis for the resumption of the intercommunal negotiations251 .
The Turkish Cypriot proposals are set out in Appendix IX.
3. As it appears from the introductory observations accompanying these proposals, the proposals were made on the following false legal assumptions-
(a) it is wrongly assumed that " the federal principle implies
aimost by definition an equality of partner states."
That that is not so has been explained above at pp. 106-107 and in notes 325-326. Even in the only sector in which usualiy as equality exists between the constituent members of a federation, that is to say in one of the two Chambers of the legislature, as a rule in the upper one, there exist exceptions. Thus in Canada and in the Federal Republic of Germany the representation in the upper Chamber is not equal and in the U.S.S.R. under article 110 of the constitution of 1977 the representation in the Soviet of Nationalities is as stated in that Article and in the Soviet of the Union the representatives are elected by constituencies of equal populations ;
(b) the members of proposed federation are wrongly described as " partners " and the proposed federation is described as one based on partnership. But the notion of partnership is a concept of private law and never in public law we speak about partnerhip regarding the relations between states or legal entities sttch as the constituent members of a federation.
Even in the case where two or more states have a joint sovereignty over a certain territory their relations is not described as a partnership but as a condominium
(c) purporting to adopt the guideline relating to the establishment of " an independent, non-aligned, bi-communal federal Republic " it is proposed to establish not one independent federal Republic but two independent states to be linked together with very loose bonds not in a federal state but in what is called as a " federalism by evolution " a form of federal state so far unknown and not recognized by public law ;
(d) the necessary prerequisite of the pre-existence of at least two states or other legal territorial entities is tried to be explained as existing by the wrong equation of the sovereign Republic of Cyprus with the legally inexistent so called " Provisional Turkish-Cypriot Administration " ;253
(e) a new element is introduced regarding the attributes of the proposed Federal Republic of Cyprus, non-provided in the guidelines that of "bizonal "
It is not explained what is meant thereby but if intended to bear similarity with the zones established in the post-war Germany then that was not within the contemplation of the guidelines and an effort is disclosed to achieve partition under the guise of federation254 .
The Greek-Cypriot Interlocutor Mr. Papadopoulos handed to the United Nations Representative in Cyprus the observations of the Greek-Cypriot side on the Turkish proposals which are set-out in Appendix IX.
4. During this period the Prime Minister of Turkey and Turkish-Cypriot officials were stating publicly that the Turkish-Cypriot proposals contained a basis for negotiations at a new round of talks. President Kyprianou on the other hand suggested that an effective negotiating process could only be envisaged if the Turkish-Cypriot proposals of last April were set aside. He has also called for a high level meetirg with Mr. Ecevit in order to facilitate further steps. On the 24th May Mr. Kyprianou addressing the special session of the General Assembly on disarmament suggested the total disarmament and the adoption of a system of measures for enforcing the decisions of the United Nations in compliance with its Charter.
The Secretary-General on the 3lst May 1977 pointed out to the Security Council that another round of talks could only be convened in consultation with both parties and with their consent255 . In this connection he suggested that the time might be ripe for a concrete attempt to deal with some important aspects of the existing state such as the status of Varosha and the re-opening of Nicosia Airport256 .
On the 9th November 1977 the General Assembly adopted resolution 32(15.
D. The Western Framework for a Cyprus Settlement.
1.In November 1978 the United States submitted to the Cyprus Government and the Turkish-Cypriot leadership a plan for the resumption of the intercommunal talks prepared jointly by the United States, the United Kingdom and Canada.
This plan was entitled " Framework for a Cyprus settlement " and is set-out in Appendix XI.
2. The Cyprus Government had not accepted that this conceptual framework of the Western Powers should form the basis of the negotiations during the intercommunal talks. Such talks ought to be carried out on the basis of the aforementioned guidelines and of the United Nations resolutions. Furthermnre the Cyprus Government had not excluded consideration of such conceptual framework during the discussion at the intecommunai talks though there were certain misgivings with regard to its content257 .
E. Kyprianou-Denktas Agreement.
1. In spite of intense activities of the Secretary-General and contacts with the interested parties the reactivation of the talks has not been found feasible.
In the meantime the General Assembly of the United Nations by its resolution 33/15 of the 9th November 1978 paragraph 6 repeated paragraph 3 of its previous resolution. The Security Council by its resolution 440 (1978) adopted inter alia that paragraph.
In consequence of such resolution the Secretary-General submitted certain suggestions intended to provide a framework for a settlement of the Cyprus problem258 .
Consecutive consultations were held by the Secretary-General with the persons concerned and intensive efI'orts were exerted to bridge the substantial differences, between the parties and to produce a working paper that would command the support of all concerned.
In April 1979 the Minister of Foreign Affairs of the Republic visited the Secretary-General at New York and indicated that the Greek-Cypriot community would welcome an effort by the Secretary-General to convene a high level meeting for the purpose of devising an agreed basis for the resumption of the talks. This suggestion was communicated to the interested parties who agreed259 .
2. The high level meeting was held at UNFICYP Headquarters at Nicosia between the President of the Republic Mr. Kyprianou and the Turkish-Cypriot leader Mr. Denktaż under the auspices of the Secretary-General on the 18th and 19th May 1979.
On the latter day a communique was agreed and is set-out in Appendix XII260 .
Mr. Denktaż announced on the 2lst May 1979 that Mr. Umit Suleyman Onan would remain as the Turkish-Cypriot interlocutor for the talks and on the 31st May 1979 Mr. Kyprianou appointed Mr. George loannides as the Greek-Cypriot interlocutor for the talks261 .
3. Out of the 10 points of the agreement the six relate to the intercommunal talks (Points 1, 2, 4, 5, 9 and 10).
Points 1 and 2 refer to the time of the talks, point 10 to the p(ace where the talks will be carried whilst points 2 and 4 refer to the basis for the talks and their subject matters respectively.
With regard to the procedure to be followed at the intercommunal talks point 5 is of cardinal importance. By that point the question of the settlement of Varosha under United Nations auspices is considered as one of priority to be considered "simultaneously with the beginning of the consideration by the interlocutors of the constitutional and territorial aspects of a comprehensive settlement;" after reaching agreement on Varosha such agreement will be implemented without " awaiting the outcome of the discussion on other aspects of the Cyprus problem."
lt is apparent from the wording of that point read together with the various other points and the agreement as a whole that the question of Varosha is one of priority to be dealt with as expeditiously as possible and independently of any outcome on the discussion on the territorial and constitutional aspect.
Particularly it cannot either be linked with or made dependent on the contents of point 6 which tends to safeguard the intercommunal talks by avoiding any action which may jeopardize their outcome and by taking initial practical measures for the promotion of a sphere of goodwill, mutual confidence and return to normality.
4. As provided in the agreement of the 19th May 1979 the intercommunal talks were resumed in Nicosia on the 15th June 1979 under the auspices of Mr. Perez de Cuellar, Under-Secretary General for Political Affairs. The Greek-Cypriot Interlocutor Mr. George loannides took the position that in accordance with point 5 of the agreement the talks should give priority to the reaching agreement on the resettlement of Varosha under United Nations auspices. The Turkish-Cypriot Interlocutor Mr. Umit Suleyman Onan considered that before taking up point 5 the interlocutors could engage in a comprehensive discussion of point 2 with a view to reaching agreement on the principles of Makarios-Denktaż lines of 12th February 1977 and of the United Nations resolutions relevant to Cyprus. In this connection the Turkish-Cypriot Interlocutor asked the Greek-Cypriot Interlocutor to acknowledge that the agreement on the 1977 guidelines in addition to their published text comprised also the concept of " bi-zonality " and of " security of the Turkish-Cypriot Community." On 22nd June 1979 after consulting the two Interlocutors Mr. Perez de Cuellar announced that the talks are being recessed and that, following an assessment of the situation by the Secretary-General, the Special Representative could announce the date of the next meeting262 .
5. During the recess, which still continues, the Secretary-General and his representative both at the United Nations Headquarters and at Nicosia have engaged in intensive consultations with the parties, with a view to resolving the difficulties that had arisen in the talks263 .
In the meantime on the 20th November 1979 the General Assembly of the United Nations adopted resolution 34/30 on Cyprus in which after reiterating "its full support for the sovereignty, independence, territorial integrity, unity, non-alignment of the Republic of Cyprus " inter alia called for the urgent resumption in a meaningful, result-oriented and constructive manner of the negotiations under the auspices of the Secretary-General between the representatives of the two communities, to be conducted freely on an equal footing on the basis of the Agreement of l9th May 1979, with a view to reaching as early as possible, a mutually acceptable agreement based on their fundamental and legitimate rights.
The Secretary-General on the other hand after examining the agreement of the 19th May 1979 arrived at the conclusion that the document plainly indicated the matters with which the talks were to deal mainly :-
(a) reaching agreement of the resettlement at Varosha under the United Nations auspices, in accordance with the provision of point 5 ;
(b) initial practical measures by both sides to promote goodwill, mutual confidence and the return to normal conditions, in accordance with the provisions of point 6, which states that special importance should be given to this matter ;
(c) constitutional aspects ;
(d) territorial aspects.
The Secretary-General, conerning procedure, considered that the two sides might reasonably agree that the four items above should be dealt with concurrently, subject to priority mentioned in the agreement of the 19th May 1979. At an appropriate early stage committees or working groups could be set-up by locutors264
6. The Secretary-General availing of the presence of the foreign ministers of Greece, Turkey and Cyprus and the spokesman for the Turkish-Cypriot community at New York for the General Assembly had consultations with them regarding the resumption of the talks but no concrete decision has been taken265 . Though apparently the consultations continue even after December 1979, till now when these lines are written, there is no indication that it has been agreed that the talks should be resumed at an agreed time.
PROPOSALS OF THE GREEK CYPRlOT SIDE ON THE
VARlOUS ASPECTS OF THE CYPRUS PROBLEM
At the fifth round of the Cyprus talks held in Vienna, from the l7th to the 21 st February 1976, under the auspices and personal direction of the Secretary-General of the United Nations, the representatives of the Greek Cypriot and Turkish Cypriot communities agreed to exchange written proposals through the Special Representative in Cyprus of the Secretary-General, within six weeks from the 21 st February,1976.
For the purpose of this exchange, and in fulfilment of this undertaking, the Greek Cypriot side presents its proposals on the various aspects of the Cyprus problem. The proposals are interrelated and inter-dependent and should be taken together as a whole, with a view to reaching a solution to the Cyprus problem on a "package deal" basis.
These proposals are made -
(1) on the fundamental assumption that the territory of the Republic of Cyprus shall be one and indivisible and that the integral or partial union of Cyprus with any other state or any separatist independcnce or partition are excluded;
(2) within the framework of the Charter of the United Nations and without derogating from the Resolutions of the Gcneral Assembly and the Security Council concerning Cyprus ;
(a) the solution of the Cyprus problem should ensure the well-being of the peopie of Cyprus as a whole and should preserve the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus ;
(b) all foreign armed forces and foreign military presence and personnel should be withdrawn without further delay from the Republic of Cyprus and all foreign interference in its affairs should cease ;
(c) urgent measures should be undertaken for the voluntary return of all refugees to their homes in safety and the settlement of all other aspects of the refugee problem ;
(d) unilateral actions in contravention of the United Nations Resolutions, including the colonization of Cyprus and changes in its demographic structure should cease ;
any situation already created, which is inconsistent with any of the above, should be rectified ;
(3) subject to agreement on the question of international guarantees, which shall be wide and effective.
l. The Constitution of the Republic of Cyprus shall provide for the establishment of a federal State, the Federal Republic of Cyrprus, which shall be a federation, and not a confederation, and shall -
(a) preserve the sovereignty, independence and territorial integrity of the Republic of Cyprus ;
(b) ensure that the Federal Republic of Cyprus shall be the sole subject of international law, to the exclusion of its constituent parts ;
(c) preserve the economic unity of the Republic of Cyprus.
2. In the Federal Republic of Cyprus and its constituent parts the fimdametnal human rights and liberties, as set out in International Conventions ratified by the Republic, shall be safeguarded.
3. Particularly, and without prejudice to the generality of the above, for every citizen of the Republic -
(a) there shall be a right of free movement throughout the territory of the Republic and freedom of residence in any place in which he may choose to reside ;
(b) his life, security and liberty shall be safeguarded and private and family life shall be respected and his home shall be inviolable ;
(c) his right to property shall be respected and safeguarded ;
(d) his right to work, practise his profession or carry on his business in any place
he chooses shall be assured.
4. The participation of the two communities in the federal organs should be proportionate to the ratio of the population. Constitutional arrangements, however, should be made providing for equitable safeguards on certain specific matters to be agreed upon.
5. Every citizen shall enjoy and exercise his political rights, in sofar as the federal government is concerned, irrespective of his place of residence in the Republic. The exercise by a citizen of political rights with respect to the administration of the constituent part of the Republic in which he resides shall be regulated by constitutional arrangements.
At the first and second rounds of the Cyprus talks in Vienna the representatives of the Greek-Cypriot and Turkish-Cypriot communities discussed three areas with regard to the commencement of the return of Greek-Cypriot refugees to their homes.
The Secretary-General of the United Nations, at the fifth round of the Cyprus talks in Vienna, in an effort to find a starting point for the discussion of the territorial aspect of the Cyrprus problem, suggested to refer for this purpose to the areas discussed as above by the representatives of the two communities.
The Greek-Cypriot side accepts the suggestion of the Secretary-General that these three areas could be used as the starting point for the discussion of the territorial aspect of the Cyprus problem.
The said three areas (at present under the military occupation of Turkey) and such other areas as shall be agreed through negotiations shall not be under Turkish Cypriot administration which shall, within the framework of the Federal Republic of Cyprus, extend to 20% of the territory of the Republic.
POWERS OF THE FEDERAL GOVERNMENT
AND OF REGIONAL ADMINISTRATION
The powers of the federal government and of regional administration in the Federal Republic of Cyprus are enumerated in thc Lists set out hereinbelow.
A. FEDERAL LIST
The Republic (Federal Government) shall exercise power on all matters other than those specifically and expressly assigned to its constituent members (Regions).
Such power comprises all subjects hereinafter enumerated for the purpose of illustration only and not exhaustively.
l. Foreign Affairs.
Foreign Affairs includes all matters which bring the Republic or its citizens into relation with any foreign state or any other subject of international law.
There shall be deemed to be included therein, inter alia, the recognition of states, diplomatic, consular, commercial and other relations, the conclusion and implementation of treaties and of any other international obligations, the declaration of war and the conclusion of peace, and the participation in any international organization and conference.
Defence includes all matters relating to the protection and defence of the Republic and any part thereof against any threat either from outside or from within or against any calamity.
There shall be deemed to be included therein, inter alia, the rais:ng, training and maintaining of the necessary armed or other forces, the establishment and maintenance of bases and any defence works, the control of weapons, explosives, munitions and war materials, the taking of all measures necessary for the prosecution of war, the restoration of peace, the meeting of any calamity, and the securing of the essentials for the wellbeing of the community and the re-adjustment ot its economic life.
It should be noted, however, that the Greek Cypriot side supports the full demilitarization of Cyprus.
Security includes all matters relating to peace, order and good government throughout the Republic.
There shall be deemed to be included therein, inter alia, the raising, maintenance and distribution of the necessary security forces, any matters pertaining to weapons, ammunitions and explosives, the declaration of a state of emergency throughout the Republic or in any part thereof, and the regulation of any matter relating thereto.
4. Criminal, public and civil law and procedure.
This heading includes, inter alia, all matters relating to the determination of the scope and content of the criminal, public and civil law of the Republic, and the rules of evidence and of practice and procedure applicable in criminal, public and civil law proceedings.
5. Administration of Justice.
This heading includes, inter alia, all matters relating to the administration of justice, the constitution, organization and jurisdiction of the Supreme Court (which shall include original jurisdiction to hear disputes between the regions themselves and between the regions and the federal government and appellate jurisdiction from the federal and regional courts) and of such other federal courts and tribunals as may be necessary for the administration of justice, the persons entitled to practise before the courts, and the composition and mode of enforcement of the judgements and decisions of courts and tribunals.
6. Citizenship, Aliens, Immigration, Emigration and Extradition (including passports and visas).
This heading includes, inter alia, all matters relating to citizenship of the Republic (and the acquisition of any foreign citizenship), to aliens, their naturalisation and their control, such as the entry and stay in the Republic and the acquisition of property by them, the movement of persons in and out of the Republic and the conditions of such movement, passports and v:sas, and extradition.
7. Trade, commerce and industry.
This heading includes, inter alia, all matters relating to the regulation of trade and commerce in their international or inter-regional aspects or insofar as they concern or affect the interests of the Republic as a whole, the formation, registration, regulation and winding up of companies, partnerships and economic associations, the regulation of industry, including tourism and industrial undertakings.
8. Shipping, navigation (including air navigation) ports and transport.
This heading includes, inter alia, all matters relating to shipping, navigation (including air navigation and air traffic), the delimitation of territorial Waters, ports, airports and transport.
Transport also includes the construction, maintenance and control of highways, mechanically propelled vehicles, regulation of trafhc, carriage of passengers and goods by land, sea and air, except carriage of passengers and goods by land solely within the limits of a Region.
9. Federal works and power (including public works, electricity, water and other public utility undertakings).
This heading includes, inter alia, all matters relating to any works, even though situated wholly within the limits of a Region, which are aimed at serving the interests of the inhabitants of the Republic as a whole, and any works relatirrg to nuclear energy and atomic power plants.
l0. Mines, forests, fisheries and other natural resources and environment.
This heading includes, inter alia, all matters relating to mines, quarries, mineral and quarry materials, gas and oil, water (whether surface water or not) and generally all kinds of natural resources (including the resources of the continental shelf), forests and forest materials, fishing and fisheries, and the protection and preservation of the environment.
12. Currency, legal tender and coinage, weights and measures, as well as computation of time, money, bailign, exchange control and stock exchanges.
13. Postal and telecommunication services.
This heading includes, inter alia, all matters relating to posts and telecommunications and to wireless, broadcasting and television.
14. Customs (iacluding customs and excise duties).
This heading includes, inter alia, all matters relating to customs, and customs and excise duties, the unity of the customs and commercial territory, the freedom of movement of goods, the exchange of goods and payments with foreign countries.
15. Industrial property (including patents, trade marks, business names, copyrights).
16. Bankruptcy and Insurance.
This heading includes, inter alia, all matters relative to bankruptcy and insolvency and insurance of any kind.
This heading includes, inter alia, all matters relating to the economic policy and the administration of the finance of the Republic, to the preparation and administration of the federal budget, to the raising of money by any mode or system of taxation direct (such as income tax, estate duty, corporations, tax, capital tax, property tax) or indirect (such as customs and excise duties already referred to under heading 14, and stamp duties), the regulation of taxation for the whole of the Republic a.nd the regulation of the raising of money by borrowing, the making of grants and loans to the regions, and the taking of all measures to ensure the uniformity of taxation throughout the Republic.
18. Labour and Social Welfare.
This heading includes, inter alia, all matters relating to the registration, operation and dissolution of trade unions, the promotion of employment, wage, trade and productivity standards and the advancement of good labour relations ; and machinery for the solution of labour disputes in the federal service or in fields affecting the supply of services and the wellbeing of the inhabitants of the Republic as a whole, the establishment of institutions for, and the regulation of, training of labour, the safety of employees, the establishment, operation, regulation and nnancing of federal schemes of social insurance, pension schemes and the setting of standards, and control of prnvident fund schemes.
19. Professions and professional associations.
This heading includes, inter alia, all matters concerning formalities, conditions or restrictions relating to the qualififications required for the exercise of any profession or the participation in any professional associations, and standards required for the obtaining of qualifications from institutions of higher learning in the Republic.
20. Movable and immovable property (including non-privately owned properties).
This heading includes, inter alia, all matters relating to ownership, tenure, registration and valuation, town and country planning, as well as compulsory acquisition and requisition of property.
This includes, inter alia, all matters relating to the establishment, maintenance and regulation of penitentiaries, prisons and other correctional institutions.
22. Establishment of federal authorities and other federal agencies.
This heading includes, inter alia, all matters relating to the establishment and maintenance of such federal authorities and agencies as may be necessary, including the establishment and regulation of the federal public service and the qualifications and duties of persons to be admitted to such service.
23. Public Health.
This heading includes, inter alia, all matters relating to the protection of public health in the Republic, exclusive of local sanitation and first aid services, to the regulation of standards for hospitals, nursing homes and other similar institutions, to drugs and poisons, foodstuffs, diseases and quarantine.
This heading includes, inter alia, agricultural policy in the interests of the Republic as a whole, agricultural research, protection against pests and prevention of plant and animal diseases.
25. Matters incidental or supplemental to the execution of any power vested in the Federation.
26. Any other matter not explicitly assigned to the Regions.
The abstinence of the Federal Government from legislating to the full limits of its powers shall not have the effect of transferring to any regional legislature any power which has been assigned to the Federal Government by the Federal List.
B. REGIONAL LIST
The powers of a regional administration shall extend to all matters expressly and speeifically provided hereinafter.
l. Organization and Administration.
This heading relates to all matters concerning the structure and organization of the government of the Region and the administration therein.
2. Implementation of federal legislation.
This heading relates to the implementation of all federal legislation in sofar as it applies to the Region, where such implementation is expressly entrusted to the Region by such federal Iegislation.
3. Local Government.
This heading relates to the structure and organization of local government and its functioning within the Region.
4. Public Order.
This heading relates to such matters concerning the maintenance of public order and security as are of a purely local and regional nature.
5. Offences under regional laws.
This heading relates to the making of provision for the creation of offences for contraventions of regional laws and the imposition of punishment therefor.
This heading relates to the organization and maintenance of local police for the enforcemeent of regional laws in the Region.
7. Administration of Justice.
This heading relates to the constitution, organization and jurisdiction of all regional courts of criminal and civil jurisdiction, including the practice and procedure in proceedings before such courts, provided that a final appeal shall always lie from the judgments or decisions of such courts to the Federal Supreme Court.
8. Trade, Commerce and Industry.
This heading relates to all matters concerning the regulation of trade, commerce and industry within the Region, of a purely local and regional nature.
This heading relates to the carriage of passengers and goods by land solely within the limits of the Region, the construction of regional roads within the Region and the control of traffic therein.
10. Regional Works.
This heading relates to all matters concerning any works of a purely local and regional nature other than works which, though situated within the Region, are carried out by the Federal Government.
This heading relates to matters concerning forests assigned to the Region, and their control, conservation, protection and development.
12. Producers' and Consumers' Co-operatives and Credit Establishments.
This heading relates to the structure and organization of co-operatives and credit establishment their fucntioning and supervision.
13. Charitable and Sporting Organizations.
This heading relates to the structure and organization of
charitable and sporting organization, their functioning and supervision within the Region, .
14. Cultural and Educational Affairs.
This heading relates to all matters concerning cultural, teaching and educational affairs in the Region, provided that the minority community within the Region shall be at liberty to establish and operate its own schools, which shall be of a standard not below the minimum standard required for public schools in the Region.
This heading relates to matters concerning the raising of money by way of rates, tolls, licensing fees, loans locally contracted and lotteries, and the receiving of grants and loans from the Federal Government. Such mode of receiving money should not be of a destructive or prohibitive nature and should not exceed a ceiling which may be fixed by a federal law.
16. Labour and Social Welfare.
This heading relates to the inspection of places of work and to regional programmes of public and social welfare.
17. Professions and Trades.
This heading relates to matters concerning the raising of revenue by licensing of persons possessing the qualifications required under federal law for carrying on, exercising and practising any business, trade, calling or profession within the Region other than the licensing of a corporate body incorporated under federal law.
18. Correctional Institutions.
This heading relates to reform schools and other quasieducational correctional institutions for young persons.
19. Public Health.
This heading relates to all matters concerning the protection of public health and sanitation within the Region and the running of hospitals and nursing homes and other similar institutions.
This heading relates to all matters concerning agriculture within the Region of a purely local and regional nature
21. Compulsory acquisition and requisition of property.
This heading relates to all matters concerning the compulsory acquisition and requisition of property within the Region, for such purpose of public benefit of a purely local and regional nature and on such terms and in accordance with such provisions, as shall provided by federal law.
22. Services of a local character.
This heading relates to services of a purely local and regional nature, such as fire brigades, except in the capital of the Republic, inspection of boarding houses and lodging houses, burial and cremation grounds, pounds and cattle trespases, markets and fairs, and licensing of theatres, cinemas and other places of public entertainment.
23. Matters incidental or supplemental to the execution of any power vested in the Region.
24. Matters assigned by the Federal Governments to the Region.
This heading relates to matters which may be assigned specifically by federal law to the Region though not expressly enumerated in this List.
If a Region purports to exercise competence on a matter not specifically and expressly vested in the Region the exercise of such competence shall be void.
PROPOSALS OF THE TURKISH - CYPRIOT SIDE
A. GENERAL PRINCIPLES CONCERNING THE ESTABLISHMENT OF A FEDERAL REPUBLIC IN CYPRUS.
l. Cyprus shall be a federal Republic composed of two Federated States one in the North for the Turkish national community and one in the South for the Greek national community.
2. The Federal Republic shall be independent, sovereign and territorial integral.
3. The sovereignty shall continue to be shared equally by the two national communities as co-founders of the Republic.
4. The Federal Republic shall be secular. Religion shall be kept strictly out of politics in Federal and Federated affairs.
5. Equality of power and status of and non-discrimination between the two Federated States shall be ensured. Any of the States can in no way overpower, dominate, overrun or interfere with the other in political, juridical, military, economic or other fields.
The Federal Government can in no case abolish, engage in any warlike activity against, or otherwise interfere with, any of the Federated States.
6. Each Federated State shall be free to maintain and regulate its own Constitutional structure and take all such measures relating to its administration as may be necessary.
7. Under no circumstances shall Cyprus, in whole or in part, be united with any other State. Unilateral declaration of independence by any of the Federated States shall be prohibited.
8. The Federal Republic of Cyprus shall henceforth follow a policy of friendship with Turkey and Greece in addition to promoting good neighbourly relations with countries in the region and shall pursue a policy of non-alignment.
9. All necessary measures shall be taken to prevent the Island of Cyprus from becoming involved, directly or indirectly, in any activity endangering the peace and security of the region,
10. Each Federated State shall ensure respect for Human Rights within its respective territory.
11. Laws and all other measures, such as administrative, economic, social, etc., of the Federal Government shall not discriminate against either of the two Federated States or of the two national communities.
12. All kinds of hostile activities of the two States against each other in both the internal and international spheres shall be excluded, while every effort shall be made to enhance peaceful co-existence, reconciliation and co-operation between the two national communities. Likewise any activity tending to foment enmity, hatred and ill-feelings between the two national communites shall be prohibited.
13. Concurrently with the building up of mutual confidence and trust and subject to security needs of the Federated States, the overall effort of the two States shall be directed towards normalization of the relations between the two national communities in all respects.
14. The question of proprietary rights and claims arising therefrom or relating thereto, as well as any other claims, shall be settled by mutual agreement between the parties concerned, in conjunction with the question of compensation and other related matter, in such a manner as not to obstruct the setting up of the proposed Federal Republic.
B. POWERS AND FUNCTIONS OF THE CENTRAL GOVERNMENT
OF THE FEDERAL REPUBLIC OF CYPRUS.
l. The Turkish Cypriot proposals under this heading are made with the understanding that equality in participation and exercise of authority of the two national communities in the Federal Government shall constitute the fundamental basis thereof.
2. All powers and functions other than those expressly and specifically entrusted to the Federal Government shall remain vested with the Federated States which shall enjoy full powers and authority in their respective territories.
3. It will be recalled that the Turkish Cypriot members of the Expert Committee set up by the First Round of Vienna Talks on the 28th April, 1975, submitted their proposals, of a preliminary nature on the powers and functions of the Federal Government to the Greek Cypriot side through the then Special Representative of the United Nations Secretary-General Mr. Louis Weckmann-Munoz on 21 st July 1975. The Turkish Cypriot side considers that those proposals in so far as they relate to the powers and functions of the proposed Federal Government and subject to the General Principles set out in A above and to the accord reached in Brussels can be used as a starting point for discussion.
A copy of the said proposals drafted by the Turkish members of the Expert Committee is enclosed herewith for easy reference.
C. TERRITORIAL ASPECT.
It was agreed in Brussels and confirmed in the Fifth Round of Vienna Talks that the proposals on the territorial aspect of the problem, which is part of the problems to be taken up on the basis of a "package deal", was to be presented by the Greek Side first and that these proposals would be reasonable.
Subject to the above, the Turkish Side is willing to begin negotiations on this issue on the criteria already outlined to the Greek Cypriot side in Vienna, and, if necessary, to further elaborate on these when the aforesaid Greek Cypriot proposals are duly received, with a view to adjusting the line between the two Federated States.
PROPOSALS ON THE POWERS AND FUNCTIONS
OF THE FEDERAL GOVERNMENT OF THE FEDERAL REPUBLIC OF CYPRUS
MADE BY THE TURKISh CYPRIOT MEMBERS OF THE EXPERT COMMITTEE SET UP BY THE FIRST VIENNA CONFERENCE ON THE 28TH APRIL, 1975.
1. The Turkish Cypriot members of the Expert Committee, having examined this important subject in consultation with their legal expert Professor Orhan Aldikasti, are of the opinion that the limited and specified powers and functions (enumerated in paragraph 2 below) which it is proposed should be given to the Federal Government of the Federal Republic of Cyprus (hereinafter referred to as "the Federal Government"), should be determined by, and should be exercised in the light of, and subject to, the following principles and conditions : -
(1) There exist at present two separate and distinct Turkish Cypriot and Greek Cypriot Administrations, irrespective of what name they may be known by, with effective control over two separate and distinct regions of the Republic of Cyprus. These two separate, distinct and equal Administrations exercise in Cyprus today, in their respective regions, the full authorities of the Republic. This fact must be the starting point in considering what powers and functions should be yielded by the existing Administrations to the Federal Government. That is to say, we are not starting off with one Central Government exercising full powers and functions and considering which of these powers and functions should be given to the States, but on the contrary, we are starting off with two separate and distinct Administrations exercising full powers and functions in their respective regions. We must, therefore, consider what powers and functions the already existing separate and distinct Administrations, i.e. the States of the proposed Federal Republic, should yield to the Federal Government.
The Turkish Cypriot members of the Committee, therefore, propose the establishment of a Federation composed of two Federated States (hereinafter referred to as "the States") with all residual powers and functions being left to the States and only such limited powers and functions being yielded to the Federal Government which are absolutely necessary for the carrying out of common services of a Federal State without detriment to the security of life and property in the respective regions.
(2) In view of the fact that the proposed Federal Republic will be composed of two equal units, namely the two member States which will make up the Federation it is essential that, as is the case in most Federations the member States of the Federation, irrespective of the size of its geographical area and irrespective of the size of its population, should in all respects be equal members of the Federation. This principle of equality of member units is not only observed in most federations but is also a fundamental and democratic principle observed by the Charter of the United Nations itself. This principle of equality between the two member units of the Federation may be referred to as the principle of
(3) In view of past experience, it is considered imperative that the officials of the Federal Government exercising federal powers and functions in a member State should belong to the same Community as the State concerned. For example, a Federal Ofhcer exercising federal powers in the Turkish Federated State of Cyprus, must be a member of the Turkish Community and vice-versa. (In this connection please see the principle embodied in Article 132 of the 1960 Cyprus Constitution).
2. The Federal Government shall, subject to the above principles and conditions, exercise powers and functions only with regard to the following matters :
(1) Foreign Affairs:
(a) The field of foreign afl'airs, which should be clearly defined to embrace the normal and accepted sense of the term, is one which may properly be given to the Federal Government.
(b) Each State shall be entitled to enter into any agreement with its respective mother country, Turkey or Greece.
(c) The Federal Republic of Cyprus shall accord mostfavoured-nation treatment to Turkey and Greece.
(d) In the light of past experience, the princi le of equality or "Condominium" referred to above assumes an even. greater degree of importance in the field of foreign affairs It is for this reason that it is proposed that the more important posts in the Foreign Service, such as Heads and Deputy-Heads of Missions, should be equally allocated between the two Communities.
(2) External Defence (excluding internal security of States) :
(a) In the opinion of the Turkish Cypriot side only external defence is a subject which may properly be given to the Federal Government. In the light of past experience, it is considered that internal security should be the responsibility of the respective member States.
(b) The defence force of the Federal Republic could be composed of separate and equal Turkish Cypriot and Greek Cypriot units, the Turkish Cypriot unit being based within the territory of the Turkish Cypriot State and the Greek Cypriot unit within the territory of the Greek Cypriot State. The Tripartite Headquarters established under the Treaty of Alliance shall resume its functions.
(c) In view of the existence of the Treaty of Guarantee and the Treaty of Alliance, which will efl'ectively guarantee the independence, sovereignty and territorial integrity of the Federal Republic, it would not be necessary for the Federal Government to employ a large force for the purpose of external defence.
(3) Federal Banking, Stock Exchanges and Monetary Affairs:
It is considered that the object of Federal Banking, stock
exchanges and monetary affairs are matters which could well be given to the Federal Government.
(4) Federal Budget :
(a) The Federal Government shall have its own Federal Budget for the purpose of meeting the expenditure necessary for carrying out the powers and functions of the Federal Government.
(b) The Federal Budget shall be financed from the charges and fees derived from services rendered by organs of the Federal Government or from any said or grant given to the Federal Government from outside.
(c) Any deficit in the Federal Budget in any particular year may be met by such Federal taxation or by such other means as may be agreed between the States.
(d) Each State shall also have its own Budget and will be responsible for its own financial arrangements, with the right to receive aid or grants from outside, and shall be responsible for the general economic development of its State.
(e) Financial and economic matters are, of course, spheres in which the two States could co-operate with each other for their mutual benefit.
(5) Federal Courts :
It is proposed that Federal Courts should be established for the purpose of dealing with matters arising under the Federal Constitution and violations of, or matters falling under, Federal laws. The establishment of a Federal Constitutional Court to interpret the Federal Constitution is envisaged.
(6) Federal Communications (including Federal Postal and Telecommunication Services) :
(a) Federal Communications, such as external postal and telecommunication services and such services between the two States, the operation and maintenance of the Nicosia International Airport subject to mutually agreed arrangements, are matters which could properly and conveniently be given to the Federal Government.
(b) This should not preclude each State from having its own air and sea communications with its respective mother country or internal postal and telecommunication services.
(7) Federal Medical Services :
(a) Policy matters relating to medical and health services would come within the sphere of the Federal Government.
(b) Each State shall have, and be responsible for, its own medical and health services.
(8) Standards of Weights and Measures (as well as computation of time) :
The subject of standardization of weights and measures and computation of time are matters which could well be given to the Federal Government.
(9) Patents, Trade Msrks and Copyrights:
Regulation of matters relating to patents, trade marks and copyrights would also come within the sphere of the Federal Government.
(10) Federal Meteorological Services :
Subject to the rights of each State to have its own meteorological services, the Federal Government would be responsible for meteorological services at Federal level.
3. In the light of the observations made in sub-paragraph (1) of paragraph 1 above, it is proposed that all residual powers and functions of the Federal Republic, which are not included in those expressly given to, and vested in, the Federal Government, as enumerated in paragraph 2 above, shall be vested in, and exercised by, the States.
4. Although it is proposed that the powers and functions to be given to the Federal Government shall be confined to the 10 specific heads enumerated in paragraph 2 above, this would not mean that the two members states of the Federation would not be able to cooperate, in a spirit of reciprocity, very closely in those fields which, though coming within the powers and functions of the States are such (e.g. town planning, etc. of border towns like Nicosia, antiquities, trade and industry, labour and social welfare, etc) that co-operation in those fields would be to the mutual benefit of the two States of the Federation and of their respective Communities.
5. It will be seen from what has been stated that the above proposals with regard to the powers and functions of the Federal Government have been made in the light of the existing realities and of the lessons learned as the result of past experience and it is, therefore, proposed that the two existing separate Administrations should give up to the Federal Government only those limited powers and functions which are considered necessary and feasible for the purpose of maintaining common services and without security risks to the life and property of the inhabitants of the member States. If, in the course of time, it is proved, by the conduct of all concerned, that mutual trust and confidence can be built upon the limited links existing between the Federal Government and the two member States, then it is to be hoped that, with the growth of such confidence and with the elimination of mistrust and suspicion, it will be possible to strengthen such links by building upon them by the gradual giving up by member States of additional powers and functions to the Federal Government. It is the sincere belief of the Turkish Cypriot members of the Committee that the proposed Federation can only work and hope to survive, in the present circumstances, by starting cautiously from the bottom and then to build upon, and strengthen, the existing links with the growth of mutual confidence.
26 May 1976
Mr. Tassos Papadopoulos
Greek Cypriot Representative
I have received a letter dated 25 May 1976 from the Turkish Cypriot Representative, Mr. Umit S. Onan, which he indicated should be brought to your attention in extenso. I am accordingly quoting the text hereunder :
" In view of the recent attempts of the Greek Cypriot side to shift the blame to the Turkish side for the lack of meaningful negotiations on the territorial aspect of the Cyprus problem, and with reference to your letter of the 21 st May 1976 conveying the text of Mr. Papadopoulos's letter of the 18th May, on the same subject, I would like to state once again that the Turkish side has always been willing to hold negotiations on all aspects of the Cyprus problem, including the territorial aspect, subject to the observations repeated in my letter No. 45/76 of the 5th May 1976 concerning our inalienable status of equality in rights in the Government of Cyprus as well as in the independence, sovereignty, territorial integrity and non-alignment of the Republic of Cyprus.
Regarding the territorial aspect, 1 wish to reiterate the following : -
l. The Turkish side is prepared to start talks for the determination of the boundary line between the two regions which will form the two wings of the Federal Republic of Cyprus, within the framework of the Brussels Accord.
2. In view of the delicacy of the matter and as agreed at. Brussels Talks, the Turkish side deems it necessary that at this stage the territorial aspect of the problem be discussed confidentially and free of propaganda considerations if the two sides are to arrive at a mutually desired satisfactory solution. Therefore, with regard to the definition of the boundary line, the Turkish side is of the opinion that it would not be advisable to mention in the open proposals any fixed percentage or area, before the committees envisaged by the Brussels Accord are established.
In fact, the said percentage or the areas of the two regions will come to light as a result of the negotiations to be held within the framework of a package deal, inclusive of the three aspects of the problem mentioned in the Brussels Accord ; and in the light of the undermentioned considerations.
3. Subject to the above and within the framework of the following principles the Turkish side is prepared to have talks on the territorial aspect of the problem:
(a) The Turkish and Greek regions of Cyprus shall be homogeneous both demographically and geographically.
(b) ln view of past experiences, the boundary line of the Turkish region shall be of such a nature as to enable the two communities to co-exist peacefully side by side and to meet the security requirements of the Turkish community.
(c) The area of the Turkish region shall be so determined as to adequately provide for the social and economic welfare and development of the Turkish community both at present and in the future.
(d) Each region shall be responsible for the defence of its own coasts and shall have exclusive rights over its territorial waters and continental shelf.
(e) In the negotiations concerning the determination of the boundary line between the two regions, the humanitarian problems will be taken. up with due regards to the peaceful co-existence, side by side, of the two communities and in a spirit of understanding condusive to co-operation between the two ".
Please accept, Your Excellency, the assurance of my highest consideration.
J. Perez de Cuellar
Special Representative of the Secretary General.
Mr. Tassos Papadopoulos
Greek Cypriot Representative.
Greek Cypriot Interlocutor, Mr. Tassos Papadopoulos
After the lapse of almost a year of stalemate in the intercommunal talks for the solution of the Cyprus problem we enter today upon this new phase of the talks under the auspices and personal direction of the Secretary-General of the United Nations in accordance with the Resolutions of the General Assembly and of the Security Council.
I take this opportunity of expressing deep gratitude to Dr. Waldheim for his untiring efforts to bring about the resumption of the talks and for being here once again in order personally to guide their course. I, also, feel that I should stress my sincere appreciation for all that Ambassador Perez de Guellar has done in order to pave the way for breaking the impasse that existed over the past months and to ensure the smooth conduct of the negotiations which we are about to commence.
The Greek Cypriot side has come to the negotiating table in good faith and with all good will. It is our sincere and earnest wish to find a solution which will make it possible for the Greek Cypriot and Turkish Cypriot Communities to live and work together in harmony, thus promoting the proper interests of both of them.
Unfortunately certain statements recently made on behalf of the Turkish side, both in Ankara and in Nicosia, cast a shadow over this meeting. They create the impression that our side is here to legalize a situation created by force of arms rather than to search for a freely negotiated and just settlement. It is my sincere hope that these statements do not correctly represent the attitude of the Turkish side.
I firmly believe that an honourable and viable solution can be achieved through really meaningful and substantive negotiations within the context of the four guidelines of 12.2.1977.
The Greek Cypriot side is ready and willing for a compromise safeguarding the sovereignty, independence and territorial integrity of our country within the framework of a federal bi-communal arrangement ensuring the unity of the State.
It is a hopeful sign that such considerations, being the universally accepted attributes of the concept of a State constitute now, through the four guidelines, common ground for these negotiations.
The Cyprus problem has, of course, many aspects, and an overall agreement is subject to a package deal arrangement and is dependent upon the fulfilment of certain basic prerequisites. Apart from the question of the withdrawal of the Turkish forces from the Island, and of securing effective international guarantees, one of the main issues is the territorial issue. This aspect, as well as all other aspects, are definitely inseparable from, and inextricably Iinked with, certain basic principles, among which are freedom of movement, freedom of settlement and the right to property, which have been referred to us, under the third of the four guidelines, for consideration of ways and means to overcome any practical difficulties which their implementation might entail.
Another issue is the powers and functions of the central federal government and its structure. No great difficulty should be encountered in this respect since under the four guidelines they should be such as to safeguard the unity of the country, having regard to the bi-communal character of the State.
It is our view that the extent of the territory to be administered by each Community, within the framework of a federal State, is of great importance. If agreement in principle is reached on this issue, on the basis of the universal application throughout the territory of the Republic, without any discrimination, of the fundamental principles to which I have just referred, then 1 think that the way will be open for a settlement.
The territory to be under Greek Cypriot and Turkish Cypriot administration respectively is to be determined by reference to the factors of land-ownership and economic viability or productivity. Needless to say, the population ratio should also be taken into consideration. According to ofhcial and indisputable records, both under British rule as well as after Independence, the landownership ratio and the population ratio do not differ much.
In the light of all I have already said, I renew the proposal that the extent of the territory to be administered by the Turkish Cypriot Community shall be 20 %.
In its desire to facilitate a settlement of our common problem, the Greek Cypriot side has already accepted that the Republic of Cyprus will be a bi-communal federation. This is, indeed, the first instance where a unitary State, like Cyprus, is to be broken up and be reconstituted into separate Regions so that a federal system may be applied. We cannot, however, accept, under the guise of a federation, the partition of our country through the establishment of two separate states loosely linked together. In the case of Cyprus, where the size of the country is so small and its economy integrated and homogeneous and all aspects of life interdependent, the structure of the federation should be such as to ensure cohesion and unity of the country and prevent the segregation of the people. Neither of a man, nor of a people nor of a country can a change be demanded which breaks the unity or continuity of its entity.
The basic characteristics of a federal solution, ensuring the unity of the State, bi-communal or otherwise, and the elements which are incompatible with a federal solution can clearly be established on the basis of universal practice and internationally accepted precedents.
A package deal approach to the Cyprus problem presupposes the making of clear and comprehensive proposals. All aspects of the problem are inter-related and there can, therefore, be no final agreement on any one point unless there is also agreement on the other points. That is why we should follow the course that each side will make its proposals conditionally, subject to an overall agreement on all issues.
Having said that, I can state from now that the Greek Cypriot side is ready to put forward concrete proposals on the territorial aspect, accompanied by a map, as well as on constitutional matters and all other issues.
Since the solution of the problem will be sought on the basis of a package deal approach, we consider that the Turkish Cypriot side should respond in a like manner making proposals or counterproposals on all aspects. Mere comments of either side on the proposals of the other or even detailed argumentation why any proposals are unacceptable do not contribute to meaningful and substantive negotiation. Progress can only be expected if each side has a complete and clear picture of the proposals of the other side on all issues.
The Greek Cypriot side has come to Vienna prepared to discuss in adequate depth all aspects of the Cyprus problem. It will not be helpful and would in our view be premature to enter upon a prolonged discussion of the consitutional aspect before real progress has been made on the territorial issue, which we consider to be vitally linked to all aspects of the Cyprus problem. That is why it is essential that there should emerge during these negotiations a clear and concrete picture of what the Turkish side proposes on the territorial aspect.
The creation of false impressions that progress is being made, if none is in fact being made on the substantive issues, would not in the long term serve the best interests of the people of Cyprus, as a whole, or the cause of peace. It might, also, be detrimental to the prestige of the United Nations and of the Secretary-General under whose auspices we are negotiating; and we regard the preservation of such prestige as vital for the success of the present talks.
I have come to the end of my opening statement, but before I conclude I feel that I should stress that any progress in dealing with humanitarian problems will most certainly give more impetus to the negotiating process as a whole. One such problem to which I would refer specifically is that of missing persons. I am sure that a satisfactory agreement regarding the procedure for ascertaining their fate, as envisaged at the first of the two recent meetings between His Beatitude President Makarios and Mr. Denktash, will be tangible proof that better days are about to dawn in our long Duffering island.
Let us, therefore, hope that both sides, fully conscious of their responsibilities, will do everything possible to make these talks a success so as to lay solid foundations for a just and lasting solution of the problem of our common country.
Our side solemnly pledges to do that.
Turkish Cypriot Interlocutor, Mr. Umit Suleyman Onan :
On behalf of the Turkish Community I would like to express our pleasure that after an interruption of 14 months it has been found possible to convene this 6th round of the Vienna talks so that the representatives of the two communities can have a new look at the problem of Cyprus on a basis of equality with a view to finding a solution.
The initiative taken by the President of the Turkish Federated State of Cyprus Mr. Denktash which broke the deadlock and led to the two meetings of the leaders of the two communities in Cyprus one of which was in the presence of H.E. the Secretary General Dr. Waldheim culminating in the agreement on 4 basic principles within the framework of which we are instructed to explore the possibilities of a settlement, will, I hope produce successful results.
Despite the complexity of the problem which involves not only political, legal and constitutional factors but also human, economic and security ones and which need a thorough examination so that this can be looked at and tackled as a whole, my community's approach to them is and will be in good faith and constructive in order to have meaningful and substantive negotiations on all points referred to us by the leaders of the two communities always bearing in mind the realities that exist in Cyprus and the bitter experience through which we passed since December 1963. I would not be doing my duty towards my community if I were not to state from the outset that during our deliberations it will be my paramount consideration and duty to seek to ensure the security, economic viability and political equality of my community.
It certainly is in the vital interests of both communities that a settlement should be reached.
But we may not be able to find a solution to this complex problem at this single meeting, perhaps it would be unrealistic if one were to expect conclusive results on all issues within a few meetings. But without despair, by patience, preseverance and understanding shown to one another's views and with continued talks I believe that productive results will be achieved.
During the continuation of our discussions I believe it to be in the interests of us all if acrimonious statements that tend to undermine the talks and the propaganda war at all levels by either side are put to an end. Such acts are not only unhelpful but create ill-feeling and prevent progress that we all hope to achieve I also have to state that the continued attempt to put the Turkish Federated State under a boycott and deny the Turkish Cypriots the right to exist will not be conducive to the peace talks. These attacks on us must cease if we are to follow the talks with good will.
I am glad that the Secretary-General of the United Nations has been able to bring the two sides together and I hope that in these talks Mr. Papadopoulos and I will be able to find the avenue which will lead in the right direction towards a just solution. If we can achieve this, I think the Secretary-General's Mission and ours will be crowned with success.
I should like to take this opportunity to thank the authorities of the host country for giving us all these facilities, for having the talks in Vienna and for the generous support of the peace-keeping operations in Cyprus since 1964.
I would also like to express our deep gratitude and thanks to H.E. the Secretary-General of the U.N. Dr. Kurt Waldheim for having been able to commence this meeting despite his very tight schedule of work.
Our thanks are also due to the Secretary General's Special Representative in Cyprus Mr. Perez de Guellar, for his untiring efforts.
STATEMENT BY THE GREEK CYPRIOT INTERLOCUTOR
ON THE TERRITORIAL PROPOSALS OF THE GREEK
CYPRIOT SIDE ON 3l/3/77.
We are about to commence discussing the territorial aspect of the Cyprus problem. Before 1 present the concrete proposals of the Greek Cypriot side in this respect I should state that both these proposals, as well as any proposals on other issues, are put forward subject to certain basic principles which are contained in a document (marked Appendix A)* that I wish now to put formally on record, so that they should be constantly borne in mind without my having to repeat them all the time.
In presenting the map (marked Appendix B)** indicating the Region which we propose to be under Turkish Cypriot Administration I should like first of all to stress that this is not by any means a surveyor's map.
The following points form the basis on which this map was prepared :
(1) The area of the territory to be under Turkish Cypriot administration is 20 % of the area of the Republic. This is not an idle figure but a figure proposed in a desire to facilitate a settlement of the territorial aspect of the problem and which we believe meets all the criteria of the guidelines recorded on the 12th February,1977.
(2) A factor which was also taken into account is the population ratio, which, in any event, does not differ much from the ratio of land ownership.
(3) According to data that cannot be disputed, prepared both under British rule and since Independence, the percentages of land ownership in Cyprus are as follows :
"State Land" includes : communal properties (such as grazing areas), roads, rivers, lakes, forests and other state owned lands.
The percentages of privately owned land are as follows :
It is worthy of note that a comparative study of official records covering a period of more than forty years shows that the above percentages have remained stable with negligible variations.
(4) In an island as small as Cyprus, the economy of whieh is integrated and the various areas and economic sectors interrelated and interdependent, its economic viability or productivity can only be effectively assured for the country and the people as a whole, as well as for each community separately, if it is not divided into two separate economic entities, but, on the contrary, if the unity of the country is safeguarded, as stated in the guidelines.
(5) The economic viability or productivity of Cyprus should be considered by reference to the economy as a whole, including all forms of economic activity and production, and not by reference to any isolated sector, such as agriculture and land utilisation.
(6) Our proposal on the territorial aspect of the Cyprus problem, accompanied by this map, cannot be separated from the three fundamental principles referred to in the guidelines, namely the right to property, the freedom of movement and the freedom of settlement, which, naturally, includes the right of the refugees to return to their homes and the right of the Turkish Cypriots to reside in the Turkish Cypriot Region, if they so choose. These principles are indispensable prerequisites for any federul State. ln fact the term "federal" would be rendered meaningless if such principles were not respected and safeguarded for all the citizens of the Republic throughout its territory, without discrimination.
(7) According to our proposals on the territorial aspect about 120,000 Greek Cypriots will be returning to their homes in the Region under Greek Cypriot administration. Another 50,000 Greek Cypriots will have the option to return to their homes in the Region under Turkish Cypriot administration. Some of them might not wish to return; but, even if they all decided to return, the effective majority of the Turkish Cypriots in the Region under their administration would still be maintained.
Our side is ready, and in fact this is one of the main tasks entrusted to the Interlocutors, to identify any practical difficulties that might result from the implementation of the aforementioned principles and to divise ways and means to overcome them.
PRINCIPLES SUBJECT TO WHICH THE PROPOSALS OF
THE GREEK CYPRIOT SIDE FOR THE SOLUTION OF
THE CYPRUS PROBLEM ARE MADE.
In presenting its proposals on the various aspects of the Cyprus problem the Greek Cypriot side wishes to state that such proposals -
(a) are inter-related and inter-dependent and should be taken together as a whole with a view to reaching a solution to the Cyprus problem on a
"package deal" basis, and
(b) are subject to the following general principles.
1. The Constitution of the Republic of Cyprus shall provide for the establishment of a bi-communal federal State, the Federal Republic of Cyprus, which shall be a federation, and not a confederation, and shall -
(a) preserve the sovereignty, independence and territorial integrity of the Republic of Cyprus ;
(b) ensure that the Federal Republic of Cyprus shall be the sole subject of international law, to the exclusion of its constituent parts :
(c) preserve the unity of the country.
2. In the Federal Republic of Cyprus and its constituent parts the fundamental human rights and liberties, as set out in International Conventions ratified by the Republic, shall be safeguarded.
3. Particularly, and without prejudice to the generality of the above, for every citizen of the Republic -
(a) there shall be a right of free movement throughout the territory of the Republic and freedom of residence in any place in which he may choose to reside;
(b) his life, security and liberty shall be safeguarded and his private and family life shall be respected and his home shall be inviolable ;
(c) his right to property shall be respected and safeguarded ;
(d) his right to work, practise his profession or carry on his business in any place he chooses shall bc assured.
31 st March, 1977.
PROPOSALS OF THE TURKISH CYPRIOT SIDE
PRESENTED ON 1/4/77.
The Turkish Federated State of Cyprus, representing the Turkish Cypriot Community, which is fully conscious and proud of its achievement in preserving the independence of the Republic of Cyprus, is desirous to establish with the Greek Cypriot Admnistration an independent, bi-zonal, federal, non-aligned Republic ;
Do ordain to propose in good faith the founding of a partnership based on equality between the two existing Administrations;
With the object of serving the welfare of the two Communities enabling them to live in peace and security side by side, enjoying the benefits and blessings of a democratic system of Government and to enhance their social and econoznic development ;
The Turkish Federated State therefore submits the outlines of the Constitution of such a federal Republic which should be examined in the true spirit of federalism that has guided its authors.
When the human experience in the system of federal government is objectively examined we see that such a system is established among various political entities either for defence, economic welfare or for social and political considerations. Furthermore, such experiences show us that the success of a federal system of government depends to a very large extent on maintaining an equilibrium between its component political entities and creating a common sense of values.
The Turkish Federated State of Cyprus, bearing in mind the experiences and total inadequacy and failure of' the 1960 Constitution does hereby propose a system of federalism which, it sincerely believes is not only suitable to the existing realities of the Island, but is also flexible enough to generate its own national growth, free from cumbersome legalistic barriers. No legal system, however perfect, can ensure the success of a system of government unless its citizens sincerely believe in the system. This belief and determination of the two Communities can only be enhanced by a system of equality which will engender not fear of domination, but a spirit of cooperation for the common interest. In this sense federalism is more than a system of government embodied in legalistic formulas, but a way of life open to trial and error.
As it will be understood from the above explanations, under the federal system proposed by the Turkish Federated State of Cyprus, this partnership in power can only be envisaged between two equal political entities joining their resources in a central federal administration on a basis of equality working together at first in a comparatively limited field, but at the same time cooperating in many spheres of administration. Thus, those functions of the Federal Government Proposed to be of a purely advisory nature initially, may grow into exclusive federal powers as confidence and spirit of co-operation between the two Communities are established.
III. - GENERAL PRINCIPLES CONCERNING THE ESTABLISHMENT OF A FEDERAL REPUBLIC IN CYPRUS.
1. Cyprus shall be an independent, non-aligned, sovereign, bi-zonal Greco-Turkish (Cypriot) Federal Republic composed of two Federated States one in the North for the Turkish national community and one in the South for the Greek national community.
2. The sovereignty shall continue to be shared equally by the two national communities as co-founders of the Republic.
3. The powers and functions of the Federal Government shall be those conferred by the Turkish Cypriot Federated State and the Greek Cypriot Administration by agreement between them.
4. The Federal Republic shall be secular. Religion shall be kept strictly out of politics in Federal and Federated affairs.
5. Each Federated State shall have its own Constitution and shall have the right to take all such measures relating to its administration as may be necessary.
6. Under no circumstances shall Cyprus, in whole or in part, be united with any other State. Unilateral declaration of independence by any of the Federated States shall be prohibited.
7. The Federal Republic of Cyprus shall henceforth follow a policy of friendship with Turkey and Greece in addition to promoting good neighbourly relations with countries in the region and shall pursue a policy of non-alignment.
8. All necessary measures shall be taken to prevent the Island of Cyprus from becoming involved, directly or indirectly, in any activity endangering the peace and security of the region.
9. Each Federated State shall ensure respect for Human Rights within its respective territory subject to the fundamental requirement of a bi-zonal federation and the viability and security of each Federated State.
10. Laws and all other measures, such as administrative, economic, social etc., of the Federal Government shall not discriminate against either of the two Federated States of the two national communities.
11. All kinds of hostile activities of the two States against each other in both the internal and lnternational spheres shall be excluded, while every effort shall be made to enhance peaceful coexistence, reconciliation and cooperation between the two national communities. Likewise, any activity tending to foment enmity, hatred and ill-feelings between the two national communities shall be prohibited.
12. Concurrently with the building up of mutual confidence and trust and subject to security needs of the Federated States, the overall effort of the two States shall be directed towards normalization of the relations between the two national communities in all respects.
13. The question of proprietary rights and claims arising therefrom or relating thereto, as weil as any other claims, shall be settled by mutual agreement between the Federated States, in conjunction with the question of compensation and other related matter, in such a manner as not to obstruct the setting up of the proposed bi-zonal Federal Repuhlic.
IV. - POWERS AND FUNCTIONS OF THE FEDERAL
GOVERNMENT OF THE FEDERAL REPUBLIC OF CYPRUS.
The Federal Government shall exercise powers and functions with regard to the following matters : -
( I ) Foreign Affairs :
The field of Foreign Affairs in the normal and accepted sense of the term shall, subject to certain requirements, be given to the Federal Government.
(2) External Defence :
The external defence force of the Federal Republic shall be composed of separate land forces of each Federated State.
(3) Banking, Foreign Exchange and Monetary Affairs:
Each Federated State shall have a Bank performing the functions of a Reserve Bank. The Federal Republic shall have a uniform currency. Coordination shall be ensured by a Federal Reserve Board composed of an equal number of respresentatives from each Federated State.
(4) Federal Budget :
(a) The Federal Government shall have its own Federal Budget for the purpose of meeting the expenditure necessary for carrying out its powers and functions.
(b) The charges and fees derived from services rendered by organs of the Federal Government shall accrue to the Federal Budget.
(c) Deficits in the Federal Budget shall be met by contributions from the budgets of the Federated States.
(5) Customs :
Customs duties to be levied on imports and Customs tariffs shall be determined after taking fully into account the economic structure of each Federated State and the principle of balanced economic development of the two Federated States.
(6) Federal Communications :
The coordination of external postal and telecommunications services as well as the joint operation and maintenance of the Nicosia International Airport by the two communities on the basis of equality shall be ensured by the Federal Government.
(7) Passport and Citizenship :
Legislation concerning citizeship shall be made at the Federal level, and issuing of passports shall be the responsibility of the Federated States.
(8) Federal Medical Services :
The Federal Government may take measures relating to public health and general sanitary protection. The coordination of such measures between the Federated States shall be ensured by a Coordination Committee to be set up on the basis of equality.
(9) Standards of Weights and Measures, Patents, Trade Marks and Copyrights and Meteorological Services :
There shall be effective coordination on these matters carried out by federal institutions in which the two communities shall participate on the basis of equality.
(10) Federal Advisory Organizations :
Federal organizations of an advisory nature may be established in various fields in which the cooperation of the two communities may be useful, such as :
(a) Stock Exchange
(b) Water, Energy and Road Planning
(c) Natural Resources
(d) Environmental Protection
(e) Plant Protection (Agriculture)
(f) Tourism and Information
(h) Natural Disasters
V. - CIVIL SERVANTS AND EMPLOYEES
OF THE FEDERAL GOVERNMENT
The civil servants and employees of the Federal Republic performing federal functions in the Federated States shall belong to the same Community as that of the State concerned. Civil servants and employees working at the central administration of the Federal Government shall have equal rights.
VI. - STRUCT'lURE OF THE FEDERAL REPUBLIC AND THE
(1) Federal Presidency :
The Federal President shall have solely representational powers and the Presidency shall rotate between the two Communities.
(2) The EXecutive, Legislative and Judicial Organs of the Federal Republic :
(a) Executive Organ of the Federal Republic :
The executive powers of the Federal Republic shall vest jointly in the two Presidents of the Federated States. In carrying out these functions Executive Secretaries shall assist the two Presidents. Executive Secretaries shall not have decision making authority of their own.
(b) Legislative Organ of the Federal Republic :
Residual legislative power vest in the Federated States. The legislative organ of the Federal Republic can only legislate on those limited and well-defined matters enumerated in these proposals. The Federal Legislature shall consist of members elected separately by the two communities. On important matters such as : Foreign Affairs including the ratification of lnternational agreements and External defence, separate absolute majorities of the Turkish and Greek members of Federal legislature shall be required.
(c) Judicial Organ of the Federal Republic :
(i) Judicial organ of the Federal Republic shall be composed of 3 Turkish and 3 Greek judges.
(ii) The Presidency of the judicial organ shall be by rotation between the two communities.
(iii) The judicial organ of the Federal Republic shall deal with matters arising under the Federal Constitution and violations of, or matters falling under, Federal Laws.
(3) Federated States:
The Turkish and Greek Communities establish their Federated States within their respective zones.
VII. - IMPLEMENTATION OF FUNDAMENTAL RIGHTS AND LIBERTIES WITHIN
THE FEDERATED STATES.
COMMENTS MADE BY THE GREEK CYPRIOT INTERLOCUTOR
AT THE MEETING ON 2.4.77,
ON THE "PROPOSALS" PRESENTED BY THE TURKISH CYPRIOT
SIDE ON THE lst APRIL 1977, ON THE CONSTITUTIONAL ASPECT.
We have studied the proposals made by the Turkish Cypriot side on the constitutional structure and the powers and functions of the federal government.
In my intervention I will refer to the "constitutional aspect" as covering all these.
My first reaction is that these are not substantive "constitutional proposals".
Furthermore, they are contrary to, and incompatible with, the guidelines of 12.2.1977, especially those which require the unity of the country.
Much as I have searched these proposals, I have not been able to find the Federal State except only in name, I have only been able to find two federated states.
All the attributes of a Federal State are either missing or are denied to the Federation. I shall cite some points by way of examples :
There are no clear proposals of what the constitution will contain about the rights or obligations of citizens. There are no provisions at all as to the relationship between the citizens and the Federal State.
There is no provision with regard to safeguarding the human rights by the federal government.
There are no provisions as to how any of the organs of the Federal State will be elected or appointed.
There is only reference to two Presidents ; the relevant provision simply envisage a "dictatorship" by two persons who are responsible only to the component parts of the Federal State and not to its citizens.
This lack of relationship of the citizens with the Federal State runs throughout the whole proposals.
Nowhere is there any effective provision for the existence of a central government of the Federal State. Even passports are issued by the federated states, though it is stated (by a handwritten note on the proposals) that the legislation concerning citizenship shall be made at the federal level.
This implies a separate international legal personality for each of the federated states and, therefore, the creation of two separate states.
I consider the proposals as being contrary to the guidelines, not only because they do not provide for setting up a federation, not only because they fail to ensure unity, but, also, because there is an express endeavour to destroy the unity of the country.
One of the indispensable attributes of a State, federal, bi-communal or otherwise, is sovereignty and, yet, in the proposals (at page 14, part III, paragraph 2) it is stated that "the sovereignty shall continue to be shared equally by the two national communities as co-founders of the Republic." The sovereignty is one and indivisible and sovereignty must be vested in the Federal State. This is an illustration of what I mean when 1 say that a Federal State does not exist in the proposals.
The proposals contain a number of headings as to the powers and functions of the central federal government, which headings correspond, more or less, to the powers and functions which a normal central federal government should have, but in the Turkish Cypriot proposals these powers and functions are there only in name. The only powers and functions which are given to the federal government are foreign affairs and external defence (page 15, part IV, paragraphs 1 and 2). But even these are nullified by the provisions as to separate legislative majorities (page 17, part VI, paragraph 2 (b) ), and the fact that the two Presidents must always act jointly (page 17, part VI, paragraph 2 (a)).
Furthermore, provision is made for two separate land forces of the two federated states.
There is no provision as to how any impasse, which may occur in cases where there exists participation on the basis of equality of the two communities, is to be resolved, even in relation to urgent matters; and equality of participation runs throughout the proposals. It applies to the two Presidents and, as no indication is given as to how their inability to agree is to be resolved, it will lead to no action whatsoever.
The destruction of unity and a pronounced attitude to set up two really separate states, is, also, strikingly illustrated by the lack of unity on economic matters. There is no provision as to economic planning or economic activity. This division may be catastrophic.
One instance of the detrimental consequences of such division relates to the fiscal and monetary policy, which, if divided, might lead to the result that the fiscal policy may run contrary to the monetary policy, and vice versa ; one being inflationary and the other being anti-inflationary and so mutually destructive.
The proposals provide for two separate Issuing Banks, termed "Reserve Banks" (page 15, part IV, paragraph 3). A uniform currency is provided for, "co-ordination" being ensured by a Federal Reserve Board composed on an equality basis. Though this may, at first sight, appear to be co-ordination, yet, it may operate in a catastrophic manner, because the stability of the State, depends on rescrves, and, under the proposals, either of the two federated states might over-expend itself at the expense of the other and if there is competition between the two as to which is going to spend more in financing development the result will be catastrophe. It is impossible to divorce the fiscal policy from the monetary policy.
The division is, therefore, not only very pronounced, but is both unorthodox and calamitous.
There is no provision in the proposals with regard to normal sources of revenue of the Federal State. It is only provided that "charges and fees" derived from services rendered by organs of the central federal government shall accrue to the federal budget (page 16, part IV, paragraph 4 (b) ). Since no services will be rendered by the Federal Government, even this source of revenue is only theoretical. The federal government will, therefore, have no sufiicient revenue with which to make provision for the welfare of the citizens. Yet in every Federal State the central federal government has power to levy direct and indirect taxes. This is one further indication of the non-existence of the Federal State.
Provision is made that deficits in the federal budget shall be met by contributions from the budgets of the federated states (page 16, part IV, paragraph 4 (c) ). This is another indication that the Turkish Cypriot proposals envisage two really separate states. In normal federal constitutions it is the opposite that happens, that is to say it is the central federal government that covers deficits in the budgets of the component parts.
A provision which demonstrates in a striking manner the existence of two separate states is the one relating to customs (page 16, part IV, paragraph 5). The proposals provide that there will be separate levels of customs duties. This means that each federated state can provide different retes of customs tariffs with the result that Cyprus will become a smugglers' paradise, with people trying to smuggle from one federated state into the other those articles which are more lightly taxed in one state than in the other. To prevent such smuggling it will become necessary to establish borders and that, of course, means total division of the two separate states ; and co-ordination cannot remedy this.
There are many other instances where basic attributes of Federal State are lacking. For instance, postal and telecommunication services (page 16, part IV, paragraph 6). Each federated state will be responsible for its own external postal and telecommunication services. This would, probably, even mean the issue of different stamps by each state and control of its own external telecommunication services, contrary to the basic need for an international legal personality of the Federal State, and, also, contrary to all known systems of federalism.
Whereas in matters such as public health and general sanitary protection (page 16, part IV, paragraph 8) there is provision for co-ordination, yet in matters such as natural disasters there is provision merely for organizations of an advisory nature (page 16, part IV, paragraph 10). There will be no authority in the Federal State to take immediate and effective measures with regard to catastrophies, even though neither natural disasters, nor epidemics know much about borders.
Furthermore, such disasters must be dealt with urgently and advisory procedures would be totally ineffective.
Even minor matters, such as standards of weights and measures, patents, trade marks, copy-rights, and meteorological services (page 16, part IV, paragraph 9) are to be regulated by co-ordination and there is no provision as to what is to happen if there is a deadlock. It is possible that completely different standards might eventually be adopted by the federated states-another instance of the creation of two distinctly separate states.
The above examples are cited as an illustration of my argument that all the functions of the central federal government are only enumerated in name under the heading "Powers and Functions" of the Federal Government whereas, in substance, such powers and functions are given to, and are at the mercy of, the separate states.
A matter which I cannot fail but highlight is the field of human rights. There is no provision for the uniform protection by the Federal Constitution of human rights throughout the Republic. There is no modern constitution of any kind of State which does not provide protection by the federal government of the human rights of the individual. Yet, the proposals of the Turkish Cypriot side contain a provision that the federated states are, ineffect, entitled to regulate human rights within their respective regions, subject to the expediencies of the viability and security of each region (page 15, part III, paragraph 9). This would lead to different levels of protection. It would, furthermore, be contrary to Conventions on Human Rights ratified by the Republic of Cyprus. This matter is not a theoretical danger because already in the " Constitution " of the " Turkish federated state of Cyprus " there are different provisions for the protection of human rights of Turkish citizens and of other persons living there.
Another point illustrating regulation of rights on a separatist basis is the provision for proprietary rights and claims (page I5, part III, paragraph 13). This would allow different treatment by the federated states of such claims, thus possibly permitting arbitrary confiscation of property.
What is a really astounding proposition, and one which is totally unprecedented, is the provision relating to the implemen- tation of fundamental rights and liberties within the federated states (page 17, part VII) which reads as follows :
" All fundamental rights and liberties shall be observed in principle with the condition that such observance shall be subject to the Laws and regulations of the Federated State concerned and shall not upset the territorial integrity and population homogenity of the Turkish Federated State of Cyprus."
Under this provision the protection of the fundamental rights and liberties is made subject to the protection of the territorial integrity and population homogenity of the Turkish Federated State of Cyprus. This is an ab initio denial of the three basic principles enunciated under " guideline three."
In fact there is generally a total division, a form of bifurcation in all respects, without any elements of unity of the country as provided in the guidelines.
The overriding consideration is that there does not exist a Federal State which has any real role to play or any substance at all. The proposal is simply for two separate states which will only come together in two fields-foreign affairs and external defence-where, as I have already mentioned, the relevant powers are nullified by special provisions.
The Turkish Cypriot proposals as a whole are based on the erroneous premise that two independent states now exist in Cyprus which will yield powers to the Federation, whereas there exists in fact one unitary Republic of Cyprus which is to be transformed into a Federation. From this wrong premise there also flows the proposal of the Turkish Cypriot side that the residue of powers shall vest in the federated states.
I shall not at this stage elaborate on the obvious disadvantages of the provisions for equal participation of the two communities in every single function.
This is in contradistinction to the population ratio and although one could envisage certain areas where the desires of the two federated states should be taken into consideration, this cannot be so in all matters.
As I have tried to demonstrate, the proposals are contrary to the guidelines, unfair and contrary to the setting up of a Federal State on the basis of democratic principles.
BASIC PRINCIPLES WHICH SHOULD GOVERN THE
CONSTITUTIONAL STRUCTURE OF THE FEDERAL REPUBLIC OF CYPRUS, PRESENTED BY THE GREEK CYPRIOT SIDE ON 6.4.1977.
1. The Federal Republic of Cyprus (hereinafter referred to as "the Federal Republic") shall be an independent, sovereign, non-aligned, bi-communal federal republic consisting of the Greek Cypriot Region and the Turkish Cypriot Region (hereinafter referred to as "the Regions").
2. The territory of the Federal Republic constitutes a single and indivisible whole and shall consist of the territories of the Regions. The state power of the Federal Republic shall be exercised throughout this territory on all persons therein.
3. - (I) The people of the Federal Republic shall comprise the people of the Regions. There shall be one sole citizenship for the whole of the Federal Republic.
(2) Every citizen shall enjoy and exercise his political rights, insofar as the federal government is concerned, irrespective of his place of residence in the Republic. The exercise by citizen of political rights with respect to the administration of the Region in which he resides shall be regulated by constitutional arrangements.
4. The Federal Republic shall be the sole subject of international law, to the exclusion of the Regions.
5. The Federal Republic shall form a single economic unity.
6. The constitutional order in the Regions shall conform with the Federal Constitution and the principles of republican and democratic government based on the rule of law.
7. In the Federal Republic, and throughout its territory, the fundamental rights and liberties safeguarded by Part II of the Constitution of the Republic of Cyprus of 1960, by the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, and by the United Nations International Covenants on Human Rights shall continue to apply, including freedom of movement, freedom of settlement, and right of property.
8. The general rules of public international law are an integral part of the federal Law. They shall take precedence over the domestic law and shall directly create rights and duties for the inhabitants of the territory of the Federal Republic.
9. The form of government of the Federal Republic shall be presidential with a President and a Vice-President, elected by universal suffrage in such a way as may be proviced in the Constitution or in a Law made thereunder. If a Greek Cypriot is elected as President then the Vice-President shall be a Turkish Cypriot and vice versa.
10. - (I) The President of the Federal Republic shall be the Head, and the Vice-President of the Republic the Deputy Head, of the Federal Republic.
(2) In case of absence or inability of the President his powers snall be exercised by the Vice-President.
11. - (I) The legislative power of the Federal Republic shall be exercised by two legislative bodies, the one called "the Federal Council," representing the Regions, and the other called " the House of Representatives," representing the people.
(2) The members of the Federal Council shall be elected in each Region by universal suffrage and the members of the House of Representatives shall be elected by universal suffrage by the people as a whole.
(3) The representation of the Regions in the Federal Council and the representation of the people in the House of Representatives shall, subject to paragraph 18, be regulated by the Constitution.
(4) The fundamental principles of parliamentary procedure and especially the delaying powers of the Federal Council, of the Electoral Law and of any Law relating to the federal courts shall be provided in the Constitution.
(5) Any amendment of the Federal Constitution shall require a special majority of the members representing the two Regions in the Federal Council.
12. - (I) The legislative power of the Federal Republic shall be contained in the Federal List and that of the Regions in the Regional List.
(2) The residual power shall be in the Federal Republic.
(3) In case of any conflict between a federal law and a regional law the federal law shall prevail.
13. - (1) The executive power of the Federal Republic shall be exercised by the President of the Republic, who for this purpose shall have a council of ministers.
(2) The composition of the council of ministers and its funtions shall be provided by the Constitution.
14. - (1) The judicial power of the Federal Republic shall be exercised by the Federal Supreme Court and the federal couts subordinate thereto.
(2) The Federal Supreme Court shall be the Constitutional Court of the Republic and the final appellate court in the Republic.
(3) The composition and jurisdiction of the Federal Courts shall be regulated by the Constitution and by a Law made thereunder.
15. The Federal Independent Ofhcers of the Republic, namely the Federal Attorney-General, the Federal Auditor-General, the Governor of the Issuing Bank and the Federal Accountant-General, and their deputies, as well as their respective functions, shall be provided for in the Constitution.
16. Every citizen of the Republic shall be equally eligible to be appointed to any federal public office.
17. There shall be a Federal Public Service Commission the composition and functions of which shall be regulated by the Constitution.
18. The participation of the two Communities in the Federal Council, in the House of Representatives, in the Council of Ministers, in the Federal Supreme Court, in the Public Service Commission, in the highest federal organs and in the public service shall be proportionate to the ratio of the population, subject to equitable safeguards on certain specific matters. (* .6th April, 1977.)
TURKISH-CYPRIOT PROPOSALS, 1978.
I. THE FEDERAL CONSTITUTION
This part includes the fallowing essential aspects of the constitutional proposals:
A. The common starting points of the constitutional solution.
B. Difficulties of the constitutional solution
C. General observation on the Turkish Cypriot Constitutional proposals for the establishing of the Federal Republic of Cyprus.
EXPLANATORY NOTE OF THE TURKISH CYPRIOT
PROPOSALS FOR THE SOLUTION OF THE CYPRUS
This document has been prepared for the purpose of explaining the Turkish-Cypriot proposals, in a condensed form, on the fallowing essential aspects of the Cyprus problem.
I. The Federal Constitution
II The Territories of the Federated States and Proposal for a Joint Water
III. Maraż (Varosha)
A. The common starting points of the constitutional solution.
A federal system of government for Cyprus is a solution which has been advocated by the Turkish Cypriot side from the very begining of the inter-communal talks and has also been accepted by the Greek Cypriot side at the second summit meeting between President Denktaż and Archbishop Makarios on the l2th February 1977 in the presence of the United Nations Secretary-General Dr. Kurt Waldheim.
The first point of the agreed instructions (guidelines) referred to in the communique issue at the end of this meeting stated that the two sides were "seeking an independent, non-aligned, bi-communal Federal Republic."
The first point of the proposals of the Greek Cypriot side submitted at the 6th round of Vienna talks (3lst March-7th April 1977) on the "Basic Principles Which Should Govern the Constitutional Structure of the Federal Republic of Cyprus" also referred to a "federal republic consisting of the Greek Cypriot Region and the Turkish Cypriot Region" and thus recognized the "bi-zonal" character of the Federation.
This means that the founding of an "independent, sovereign, bi-communal and bi-zonal federal state" in Cyprus is a common starting point accepted by both sides. Furthermore, the text of the agreed instructions (guidelines) referred to in the communique issued at the end of the second summit meeting on the l2th February 1977 embodies an agreement on the "non-aligned" character of the Federal Republic.
Consequently, there should be no difficulty in incorporating these agreed attributes in a basic definition of the new Federal Republic.
It is in this context that the Turkish Cypriot proposals contain provisions embodying these basic attributes and a Preamble expressing the common will of the two communities "to Iive side by side in peace and security, to enjoy the benefits and blessings of a democratic system of government based on the rule of Iaw and social justice and to enhance their social and economic development" and their determination to ensure the non-recurrence of the sufferings of the past.
B. Difficulties of the constitutional solution.
In addition to obvious and well-known difficulties inherent in the formation of any federal system, such as reaching a compromise between the equality of partners, on the one hand, and the necessity of establishing a workable central government machinery, on the other, or striking a balance between the rights of the individuals and the interests of their respective communities, the "federal question" in Cyprus involves many other crucial and deep-rooted problems.
I. POLITICAL DIFFICULTIES.
a) This is not a simple exercise of devolution of powers from an existing central government to its component parts, as is the case, for instance, in the devolution bill for Scotland, administrative regionalism in France or "political decentralization" of central powers to the Wallons and the Flemish in Belgium.
On the contrary, this is an effort to bring together two different Communities who lived through two decades of inter-communal violence and bloodshed (from 1955 when EOKA launched its terrorist campaign for Enosis until 1974 when Turkey intervened under the 1960 Treaty of Guarantee) and who now have their own distinct administrations, with their own legislative, executive and judicial organs, having exclusive control and authority over two distinct areas of the island.
b) This is not a search for a solution to a domestic "national" problem, but a conrpromise between two conflicting "national" demands of two different national Communities. Throughout recent history, Greek Cypriots had looked upon Cyprus as a Greek land destined to be united with Greece while the Turkish Cypriots looked upon the island as an old Turkish land and adamantly refused to be colonized by Greece. To the Greek Cypriots union of Cyprus with Greece (Enocis) was " liberation and freedom," to the Turkish Cypriots such a union was "colonization," loss of all human rights and physical elimination from Cyprus. Thus, the Greek Cypriot action for achieving Enosis always brought immediate reaction from the Turkish Cypriot side. Greece which coveted Enosis, helped the Greek Cypriots by giving them arms and personnel while Turkish Cypriots sought help from Turkey in self defence.
Through the centuries the two national Communities had jealously guarded their national identity while each cherished its own "national aspiration." The Greek Orthodox Church preached Enosis and anti-Turkish sentiments while Greek Cypriot schools gave this "national policy" further "cultural" backing. The Turkish Cypriots took counter measures in order not to be eliminated or absorbed by the Greek Cypriot side.
It was inevitable, therefore, that the two Communities would come into violent collision when the Greek Cypriots, under the leadership of the Greek Orthodox Church, launched their terroristic campaign for achieving Enosis in 1955. Contrary to the present Greek Cypriot propaganda, this campaign, which lasted until the end of 1958, was not for independence but for Enosis.
Then, in 1960 the two Communities accepted a compromise and worked out a Constitution after continuous deliberations which lasted for eighteen months. In short, the two national Communities, which had fought for opposing political aims, agreed by the texts signed in Zurich and London, to forego these aims in lieu of a "partnership Republic" based on the existence of the two national Communities and on their inalienable rights and partnership status. These two Communities together brought about the "bi-national" State of Cyprus. They together, under agreed terms of co-operation and partnership, shared the legislative, executive, judicial and other functions. Matters which the two Communities had managed on communal basis over the centuries - like education, religion, family law, etc.- were left to the autonomy of the Communal administrations which had legislative, executive, and judicial authority over such matters. In effect a "functional federative system" had been established by the two co-founder Communities of the Republic.
This functional federative character of the former Republic of Cyprus is often forgotten by those who are apt to see the present search for a federal solution as an attempt to dismantle a completely "unitary" system of government, which was not created or even envisaged by the 1960 Constitution.
2. SOCIO-ECONOMIC DIFFICULTIES
a) The memories of the past events are still vivid in the minds of the people from both Communities. An element of mistrust and even of hostile suspicion exists on both sides.
The Greek Cypriot leadership in the past did not accept the 1960 Agreements as satisfying their "national aspirations".
Soon after independence, the Greek Cypriot side, knowing that the Turkish Cypriot Community would not abandon its rights and status, proposed amendments to the Constitution (November 1963) and when the Turkish Cypriot Community refused to agree to the proposed amendments they launched their attack in order to implement a well-prepared scheme which came to be known as
" the Akritas Plan."
The Turkish Cypriot houses and properties in 103 villages were destroyed.
Nearly 30,000 Turkish Cypriots became refugees. In all areas where the Turkish Cypriot resistance continued an inhuman blockade was mounted. All Turkish Cypriots were physically barred from taking part in the administration of the island. All constitutionality was overboard. Turks of Cyprus lived at the mercy of Greek Cypriot and Greek mainland armed elements.
Turkish Cypriots lived on, resisting Greek Cypriot aggression from 1963 to 1974, never accepting the illegal Greek Cypriot rulewhich claimed to be "the Government of Cyprus "- as the legitimate government of the island.
Legitimacy could only be re-established when the two Communities came together under agreed terms of partnership. Greek Cypriots had, by resorting to violence, ousted the Turkish Cypriot partner from the administration.
On the 26th June 1967 the Greek Cypriot House of Representatives unanimously passed a resolution declaring that "... It would not suspend the struggle. . . until this struggle ends in success through the union of the whole and undivided Cyprus witlz the motherland, without any intermediary stage"and by the end of 1967 the Greek Cypriot armed elements who had combined to form one single task force with 20,000 Greek army personnel clandestinely brought to Cyprus attempted to finish off the Turkish Cypriot resistance by attacking the Turkish Cypriot inhabitants of Geçitkale (Kophinou) and Bogaziçi (Ayios Theodoros). This activated Turkey to come to the aid of the Turkish Cypriots. In order to avert Turkey's intervention the attack on Turkish Cypriots was stopped and Greek Cypriot leaders agreed to have inter-communal talks which began in June 1968. These talks lasted - on and off - until the coup of July 1974, but although near-agreements were reached, several times the Greek Cypriot leadership refused to settle the problem on the basis of "inter-communal partnership Republic guaranteed against Enosis."
The events which preceded the coup of July 1974 again meant further distress for the beleaguered Turkish Cypriot Community who was used as political hostages by both sides of the inter-Greek conflict. In the end, the coup materialized. No one doubted that the coup was a final attempt for the take-over of the island by Greece and the destruction of the independence of Cyprus. Thousands of Greeks were killed by the coupists, but as usual, Turkish Cypriots were inflicted sufi'erings at the hands of the Greeks. More Turkish Cypriot villages had to be abandoned, thousands of more Turkish Cypriots became refugees. Had Turkey failed to move under and by virtue of the Treaty of Guarantee then Cyprus as an independent State would no longer be. The coup in Nicosia would consolidate the position of the Junta in Athens and extend its hegemony to Cyprus.
Turkey was left with no alternative but to move under the Treaty of Guarantee.
Inevitably the Turkish intervention of 1974, with the unavoidable consequences of any such military action, brought also sufferings to the Greek Cypriot Community who had to abandon their homes and emigrate. This was mainly due to the second phase of the operation on the l4th-l6th August 1974 which, contrary to what the Greek Cypriot side would have the world public opinion wrongly to believe, became imperative upon the massacre of Turkish Cypriot civilians and the Greek Cypriots' refusal to fulfil the conditions of the Geneva Declaration of the 30th July 1974-
- to establish a security zone at the limit of the areas under the control of the Turkish Armed Forces ;
- to immediately evacuate all the Turkish enciaves occupied by the Greek or Greek Cypriot forces ;
- to exchange or release the detained military personnel and civilians.
Subsequently, contacts and negotiations betwoen the two sides continued from 1974 to 1977. It was agreed that the partics should work forabi-communal, bi-zonal solution.
At the Third Vienna talks in the summer of 1975 the parties agreed to exchange their population o:n a voluntary basis. UNFICYP undertook to help in this exchange programme and in the end half of the Turkish Cypriot population which had lived under most inhuman conditions in Greek Cypriot areas for eleven years moved North while the majority of the Greek Cypriots in the North movcd into Turkish villages and properties in the South.
A constitutional solution for Cyprus has to be evolved in thc spectre of such a dramatic recent history and the main preoccupation in the minds of the people directly involved is to find ways of preventing the recurrence of tlte sufferings of the past.
b) The two Communities caming together to establish a new form of government with the hope of preventing the recurrence of the past sufferings have not yet reached the same Ievel of economic and social development.
The Turkish Cypriot Community, having first lived under a Greek Cypriot dominated government and then in isolated enclaves and forced today to cope with international restrictions imposed on its exteinal communications, is economically weak and in need of creating its own viable economy and promoting its human potentialities. Starting with the events of 1963, all the economic resources of the island were utilized for the development of the Greek Cypriot Community, while governmental policies of customs, taxation, credit and investment were deviced and implemented without any consideration of the economic development needs of the Turkish Cypriot Community. By a "Government" Decree, sale of land to the Turkish Cypriots was prohibited while licences for building factories etc., were arbitrarily denied to them. The Turkish Cypriots were deprived of their freedom of movement and communication and lived in an economy of consumption in their enclaves at the mercy of the Greek Cypriot producers and importers.
The Greek Cypriot Community, on the other hand, although having undergone the adverse affects of a recent armed conflict lives in a stronger economy, having enjoyed for at least a decade all the benefits of an administration with wide international recognition and trade relations. In this context it is worth recording that the Greek Cypriot administration having deprived the Turkish Cypriot population of its rightful share from the budget, forced the Turkish Cypriot population who was left destitute to import hard currency as aid from Turkey to the tune of 13 million pounds sterling per year all of which enriched the Greek Cypriot Central Bank for 11 years.
Today, as a consequence of the past situations and the usurpation of the governmental machinery by force of arms, external trade is still mainly in the hands of the Greek Cypriot Community who continue to retain the monopoly of representing foreign firms and enterprises on the island ; the Greek Cypriot Community benefits from the privilege of signing bi-lateral trade agreements, financial and technological co-operation and extensive foreign aid at the international level ; it maintains regular commercial relations with the EEC, the Commonwealth, the Socialist bloc and the nonaligned countries and is in a position to attract the capital and the know-how of foreign investors. Most of the foreign aid, in terms of grants, credits and goods provided for the island goes to the Greek Cypriot Community.
In addition, the economic blockade imposed by the Greek Cypriots, as a deliberate instrument of policy whith the unwitting backing of the international community has further aggravated the economic plight of the Turkish Cypriot Community.
These discrepancies and inequalities in econoinic and social conditions, coupled with the mistrust resulting from the vivid memories of the past, are perhaps the most impoc-tant difhculties on the way to establishing a federation in Cyprus.
3. LEGA.L DIFFICULTIES
a) The federal principle implies, almost by definition, an eguality of partner states. This is the main guarantee under which different political entities agree to enter into a political partnership. Yet, this principle of equality carries the risk of creating deadlocks in the efIective operation of the governmental machinery established to meet the administrative needs of the people at federal or federated levels.
In decision making, this difficulty is normally overcome by subjecting the will of a smaller number of states to the will of the greater number of states, regardless of their size and population (e.g. simple majority of states, two-third of states, nine out of thirteen, etc.).
Tlie difficulty in Cyprus is that the number of states to be federated is only two and the principle of equality of partners is therefore an absolute necessity inmposed both by the prirrciples of federalism and the duality of partners.
b) In this given situation, the only way to reduce the risk of deadlock in the eff'ective operation of the governmental machinery established to meet the administrative needs of the people is to reduce the number of functions to be carried out by the federal organs where this risk exists. Therefore, there is an evident logical contradiction in the acceptance of the federal principle, on the one hand, and the insistence on creating a strong federal central administration on the other hand, in a " bi-communal" situation. Since it is clearly desirable for each equal partner to be able to run as much of its own afl'airs as possible without the blocking of the other, there is an obvious advantage in retaining essentially common functions as federal and leaving the residual powers to the federated states.
C. General observations on the Turkish Cypriot Constitutional Proposals
for the Establishment of a Federal Republic of Cyprus.
The Turkish Cypriot Constitutional proposals for the establishment in Cyprus of an independent, sovereign, bi-communal, bi-zonal and non-aligned Federal Republic take into account the background to the Cyprus problem and the events which have taken place in Cyprus, particularly the period of violence and bloodshed during the past quarter of a century, and are designed to find a remedy for the past difficulties and to remove the obstacles in the way of a peaceful co-existence of the two national communities, side by side, in a spirit of mutual trust and cooperation.
l. Basic Guidelines.
(a) The constitutional proposals take into account the four guidelines which were agreed at the summit meeting of the l2th February 1977, between President Denktaż and the late Archbishop Makarios, when the two leaders declared that they were "seeking an independent, non-aligned, bi-communal, Federal Republic." The following is the full-text of the above-metnioned four guidelines :-
" l. We are seeking an independent, non-aligned, bicommunal, Federal Republic.
2. The territory under the administration of each community should be discussed in the light of economic viability or productivity and land ownership.
3. Questions of principles like freedom of movement, freedom of settlement, the right of property and other specific matters, are open for discussion taking into consideration the fundamental basis of a bi-communal federal system and certain practical difficulties which may arise for the Turkish Cypriot Community.
4. The powers and functions of the cental Federal Government will be such as to safeguard the unity of the country, having regard to the bi-communal character of the State."
b) As explained above, there has existed in Cyprus since 1963, and, in the absence of a settlement, there still continues to exist, two separate and distinct Administrations representing the two national Communities, the co-founders of the Republic, respectively. This fact has been recognised by the three States guaranteeing the independence of the Republic of Cyprus, namely, Turkey, Greece and Britain, by their Declaration at Geneva on the 30th July 1974, which stated that-
" The Ministers 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. Without any prejudice to the conclusions to be drawn from this situation the Ministers agreed to consider at their next meeting the problems raised by their existence"
In fact the inter-communal character of the conflict since 1955 and the bi-communality of the Republic which has reigned since 1960 is the underlying reality and foundation of all U.N. Resolutions since 1963.
The two separate, distinct and equal administrations which exist in Cyprus today, exercise, in their respective areas, the full powers of the Republic. It follows therefore that in the establishment of the Federation, the Turkish Cypriot side is rot starting of with an existing legitirnate central government exercising full powers and functions over the whole Republic. The question is not which of these powers and funetions should be devolved to the member states of the Federation, but, on the contrary, which of the powers and functions now being exercised by the already existing separate and distinct Administrations should be transferred to the central government.
(c) It is also an indisputable fact that when the powers and functions of a strong centrat government have been in the hands of a Greek Cypriot dominated government, the Turkish Cypriots have been treated as second class citizens and their human rights have been gravely and unjustly violated. It is, therefore, imperative that in order to give the proposed new Federation a chance to survive, the constitutional arrangements must be such as to ensure that the tragic events of 1963-1974 should not, and cannot, be repeated again. This logical, realistic and basic precautionary element has also been borne in mind in the preparation of the Turkish Cypriot constitutional proposals.
The Turkish Cypriot side sincerely wishes to unite the existing separate Administrations in a Federation, whereby the two communities can co-exist, side by side, and cooperate with each other in a spirit of mutual trust and confidence.
The Turkish Cypriot proposals endeavour to achieve a political compromise between the conflicting interests and demands of the politicat units which comprise the federation.
Above all, they aim to strike a balance, as in all democratic forms of govenrment, between the rights and liberites of individuals on the one hand, and the necessities of the governmental structure created for their administrative needs on the other hand. The essence of the approach being the protection of the individual, the rclationship between the founding communities is so regulated as to prevent the individual from becoming the victim of any settlement based on the supremacy of one community. The equality of the Communities which is the salient feature of the Turkish Cypriot proposals is based on no other consideration than that of protecting the individual from the consequences of an uneven intercommunal situation.
2. Fundamental Prerequisites.
Any workable solution for the constitutional order in Cyprus should, therefore, meet the following conditions :
(a) Deterrent guarantees against the recurrence of the past bloodshed, in order to secure, for each individual, the freedom from fear ;
(b) Effective guarantees and machinery for the protection of human rights and liberties of all the individuals ;
(c) The protection of each individual from political, economic and social discrimination and oppression resulting from membership of one community ;
(d) The right of the members of each community to benefit equally from the opportunities, potentialities and protection of a state ;
(e) The right of the members of each community to economic and social development and to prosperity on the territory of their own community ;
(f) The protection of each community as such against the domination of the other community ;
(g) The right of each community to preserve and develop its cultural, economic and commercial connections with the whole family of nations and particularly with its own motherland.
The ultimate aim of any democratic system of government being to ensure the safety of its citizens and to protect their inalienable rights of life, liberty and the pursuit of happiness, any attempt for a constitutional solution for Cyprus can only be meaningful if it takes into account all the above considerations together and establishes a harmony between them. It is, therefore, wrong to say, for instance, that the freedom of movement, freedom of residence, the right to property and free exercise of profession are essentail for the acceptance of any solution by one side if the immediate and unconditional exercise of the same freedoms and rights are detrimental to the other fundamental prereduisites which are as essential and vital, if not more so, for the other side.
That is why, the four guidelines which were agreed at the summit meeting of the l2th February 1977 between President Denktaż and the late Archbishop Makarios, while referring to "questions of principles like freedom of movement, freedom of settlement, the right of property and other specific matters" also stated that any discussion of these should take into consideration "the fundamental basis of a bi-communal federal system and certain practical difficulties which may arise for the Turkish Cypriot Community." The four guidelines also envisage the taking into account of "economic viability or productivity and land ownership" when discussing territory.
The merit of any federal solution lies exactly in the variety of the ways in which different "fundamentals" can be combined and compromised. It is equally wrong to insist upon the recognition of certain abstract principles and rules of government vvhen such principles and rules lead to situations which create more deadlock and conflict rather than bring about practical and acceptable solutions for the welfare of the individual, from whichever community he may be.
3. Basis of the Federal Structure.
The equality of the founding communities, however important, is not by itself a sufficient guarantee for the protection of the individual. That is why the Turkish Cypriot proposals put great emphasis on the judicial protection of the fundamental rights and liberties. Not only are these enumerated in an even more detailed way than in the 1960 Constitution, but a federal system ofjudicial review is established as a guarantee against their infringement by federal legislation. Moreover, the Federated States shall bear the domestic and international responsibility resulting from the violations of fundamental rights and liberties within their respective jurisdictions.
In a federative system, the protection of the individual in any com:nunity should also be envisaged in terms of his entitlement to benefit equally from the opportunities, potentialities and protection of a state which should be capable of providing him with essential services without interference from other communities who are partners in the union. This is especially important in a federation of only two communities who, by virtue of the federal principle, have come together on a basis of equality. In a situation of mutual mistrust where each community has reservations about the goodwill of the other side, to start with the creation of a federal system with strong central powers covering a wide range of common functions is in fact asking for frequent tensions and interminable deadlocks. These would resiilt in the deprivation of the individuals from the benefits of governmental activities even in the stronger and more self confident community, because such activities may continuously be subject to disruption or interference from the other partner.
Thus, the constitutional proposals of the Turkish Cypriot side have been made having regard to the existing realities and in the light of past experience. It is, therefore, proposed that the two existing separate Administrations should give up to the Federal Government only those basic powers and functions which are considered necessary and feasible for the purpose of maintaining common services and without security risks to the life and property of the inhabizants of the member states. If, in the course of time, it is proved, by the conduct of all concerned that mutual trust and confidence can be built upon the initial links existing between the Federal Government and the two member States, then it is to be hoped that with the elimination of mistrust and suspicion, it will be possible to strengthen such links by building upon them by the gradual transfer of additional powers and functions to the Federal Government. It is the sincere belief of the Turkish Cypriot side that the proposed Federation can only work and hope to survive, in the present circumstances, by starting cautiously and then build upon and strengthen, the existing links and structures with the growth of mutual confidence.
In fact, in the case of some federations, the partners have set off on the federative venture even more cautiously and instead of starting off with a federal structure at the beginning they have started with a confederation. Two typical examples of this natural trend may be found in the case of the United States of America and the Swiss Federation which evolved from a confederal structure into a federation.
These two examples clearly show that when there is no confidence between the parties concerned - and this confidence is not something which can be imposed but must develop naturally and progressively between the partners - less power is given to the central authority. However, as confidence between the parties grows, the powers of the central or federal government are increased by stages. This principle of "growth of ,federation by evolution" is one of the basic principles of the Turkish Cypriot constitutional proposals.
Another example which proves the same point from a different angle is the case of Yugoslavia : The strong control that the Federal Government had over the Federated Republics, a characteristic feature of the 1946 Constitution, proved inadequate and subsequent constitutions and amendments gave much greater rights and powers to the Federated Republics which provided a much sounder basis for the edification of the successful federative experience in Yugoslavia.
In the light of its own experience and the experiences of others, the Turkish Cypriot side, in its desire to commence the new partnership venture with a federation which will eventually evolve into a stronger partnership, cannot ignore the tragic events of the past and risk the breaking down of the federation by not proceeding cautiously or by imposing too much of a strain on the central government.
4. The Federal Structure.
For the fulfilment of federal functions enumerated in detail in the constitutional proposals as to their content and progressive implementation, the Turkish Cypriot side proposes the following structure :
(a) The Federal Executive.
For reasons of equality, lack of confidence between the two Communities and the bitter experiences of the past which have been explained above, the joint direction of the Federal Executive by the two Presidents of the Federated States has been considered to be the fundamental basis of the smooth functioning of the
executive organ. Undoubtedly the understanding, cooperation, collaboration and progressive creation of mutual trust and confidence between the two Communities has been shown to be best secured when the consensus of their leaders has been possible. The continuous joint participation of the two leaders on the basis of equality in the basic decision-making process for federal functions will greately enhance the chances of obtaining the desired consensus.
Any other conception or approach that would place the two leaders on an unequal footing or force them to perform completely separate functions for federal matters would undermine the type of federation proposed and tend to create further polarization between the two Communities.
It should be noted that the equal representation of two numerically unequal communities in a joint federal executive is not a completely novel solution. Czechoslovakia gave the example where the Prime Ministers of the Czech and Slovak Federated States took part in the Federal Executive as Vice-Premiers on an equal basis, although their communities represented approximately 65 % and 29 % respectively of the total population.
However, even in the case of such a dual executive, there will be certain ceremonial and formal functions for which a single representation of the Federal State by the President of the Federal Republic is necessitated by the circumstances, in which case the Turkish proposals foresee a two-yearly rotation between the two Presidents of the Federated States. A distinction should be made, however, between the proposals made here and the concept of alternation of a strong presidential ofhce. The alternation of purely ceremonial and formal fimctions would not entail any substantial inconvenience in the functioning of the federal machinery.
(b) Federal Legislation.
The type of federation proposed by the Turkish Cypriot side envisages separate Legislative Assemblies in the respective Federated States which shall deal with most of the legislative matters concerning life on the Island. These Assemblies being the elected representative organs of the two Communities, will also be enrolled in federal legislation covering common specific functions essential for a federal system of government, which are :
- Foreign Affairs ;
- External Defence ;
- Banking, Foreign Exchange and Monetary affairs ;
- Federal Budget ;
- Customs Duties and Tariffs ;
- External Communications ;
- Federal Health Services ;
- Standards of VJeights and Measures, Patents, Trade Marks, Copyrights, and
Meteorological Services ;
- Tourism and Information.
In case of conflict in matters of federal legislation between the two Legislative Assemblies, provision has been made for the creation of a Federal Assembly composed of twenty members, ten from each Legislative Assembly. The system is so devised as to prevent the domination of one community by the other and to eliminate the possibility of a complete deadlock. In addition to recourse to the Federal Constitutional Court on grounds of constitutionality, provision is also made, as a last resort, for submission to a referendum to be held separately in each Federated State.
(c) The Federal Constitutional Court.
As pointed out above, in view of the importance attached to the protection of the rights and liberties of the individual in each Community, the Federal Constitutional Court is a basic feature of the Turkish Cypriot proposals. It shall be composed of six judges in equal numbers from each Federated State. The Federal Constitutional Court, in addition to its jurisdiction in constitutional matters, shall also act as the highest administrative court in federal matters.
5. - Other Basic Features of the Constitutional Proposals
The Turkish Cypriot side feels it imperative to include in the Federal Constitution provisions on the following mattersas -
a) Reference to the 1960 Treaty of Guarantee and the Treaty of Alliance, as amended, thus giving them constitutional force ;
b) Entrenchment of the basic articles guaranteeing the independence, sovereignty, non-alignment of the bi-communal and bi-zonal federal state and the unity of the country ;
c) Reservations on amendments for a period of seven years in order to give a fair chance to the new constitutional order ;
d) Establishment of a machinery for progressive implementation of federal functions on economic and social matters in accordance with the concept of "federation by evolution"
e) Claims arising out of rights of ownership acquired prior to the Constitution shall be settled, together with all other claims between the two Communities in the form of debts, dues and compensation, by agreement between the parties concerned.
f) Rotation of certain basic federal functions between the members of the two Communities in accordance with the principle of equality and in order to reduce the risks of deadlock.
II. The Territories of the Federated States and a Proposal for a
Joint Water Project.
It has to be recognized that the question of territory is closely related to the economic viability of both communities and to the question of security. This problem was talcen up between President Denktaż and Archbishop Makarios at their meeting on l2th February 1977 and it was decided that the question of territory should be discussed "in the light of economic viability or productivity and land ownership." "Security" was the underlying principle on which these four guidelines were based.
Therefore, it would be unrealistic to regard this problem from the viewpoint of percentages of population alone. Half of the whole Turkish Cypriot population has moved from South to North. Greek Cypriots have moved from North to South and an agreement for a voluntary exchange of population was reached in the Third Round of the inter-communal talks, whereby the two parties recognized that such an exchange was inevitable for the peaceful co-existence of the two communities in Cyprus. The approach to the territorial problem., therefore, should be humanitarian and pragmatic having regard to this accepted necessity so that people who have been re-settled after so many years of suffering should not be uprooted again. Where this is not fully possible one should settle the problem in such a way that a minimum number of people should be uprooted once again. Otherwise the movement of Turkish Cypriots from South to North would have been meaningless and their security needs would be totally ignored.
The Turkish Cypriot side is prepared to discuss the question of territory taking into consideration the above mentioned facts and within the context of the aforesaid guidelines agreed upon by President Denktaż and Archbishop Makarios.
Furthermore, while considering the territorial aspeet of the problem it would be appropriate to bear in mind the following :
a) The Turkish Cypriot Community is predominantly an agricultural society.
Hence, the proportion of Turkish Cypriots depending on land is far greater than that of Greek Cypriots.
b) Almost all direct or indirect foreign economic assistance given to Cyprus by international organizations since 1963 and more particularly since 1974 has almost exclusively been channelled to the Greek Cypriot Community.
c) As a result of the systematic policy of economic oppression pursued by the Greek Cypriot Administration against the Turkish Cypriot Community since 1963, the economic development level of the Turkish Cypriot Community has remained far below that of the Greek Cypriot Community. While re-adjusting the existing line, caution should be exercised so that the transfer of economic resources from the economically poorer to the richer Community would not further widen the economic gap and increase the tension between the two communities.
When considering the proposals for the re-adjustment of the existing line between the Turkish Cypriot and Greek Cypriot zones, the following relevant economic facts should also be taken into account :
1. Of forests only 22.6 % fall within the Turkish Cypriot territory and the remaining 77.4 % fall within the Greek Cypriot territory. The forests in the Greek Cypriot territory have been about 95 % more productive than the forests of the Turkish Cypriot territory.
2. Of about 40 existing streams only a quarter are situated in the Turkish Cypriot territory. There are only 8 active dams and reservoirs in the Turkish Cypriot area with a total storage capacity of 8 million cubic meters of water compared with 45 on the Greek Cypriot side with a total storage capacity of nearly six times as great.
3. The annual average rainfall is approximately three times higher on the Greek Cypriot side than on the Turkish Cypriot side.
4. As for the aquifers, two of the three main ones in the Turkish Cypriot area are already depleted and faced with destruction. Sea water has penetrated and salinized most of the Gazi Magusa (Famagusta) aquifer and the important part of the land in the area was dried up some years ago. The Guzelyurt (Morphou) aquifer faces the prospects of total loss in the immediate future unless serious precautions at the expense of millions of pounds are taken. On the contrary the aquifers on the Greek side offer excellent prospects for utilization and development.
5. Approximately 90 % of the principal mines and quarries of economic value are situated in the Greek Cypriot region.
6. The only petroleum refinery is situated in the Greek Cypriot area.
7. The Mesarya (Mesaoria) plain is dry-land giving one yield of crop on alternate basis a year so that half of the area is not cultivated each year whereas in the South land is irrigated and yields crop at least twicc a year.
8. With more water made available land in both sectors can be made more productive so that the prosperity of the island as a whole is increased. A project costing about 150-200 million dollars for bringing water from Turkey to Cyprus is proposed by the Turkish Cypriot side as a matter for serious consideration.
With the above considerations in mind the Turkish Cypriot side is ready to enter into negotiations with the Greek Cypriot side for re-adjusting the line existing between the Turkish Cypriot , and Greek Cypriot zones in Cyprus.
III. Maraż (Varosha)
Due to the fact that Greek Cypriot armed elements chose to use Maraż (Varosha) and the high buildings within it as attack posts against the Turkish Cypriot population of Gazi Magusa (Famagusta) where 14,000 Turkish Cypriots, including women and children were trapped and sufI'ered extensive casualties within the walled City from 20th July to l4th August, 1974 it became necessary for security reasons to extend the forward lines south of Maraż (Varosha).
Ever since Maraż (Varosha) has remained uninhabited Turkish Cypriot endeavours to bring back some or all of the hoteliers and other businessmen in order to activate the town and save the properties from destruction by the elements were fruitless because Greek Cypriot leaders, for political reasons, prevented these people from returning to their properties.
The Turkish Cypriot side approaches the problem in ways which will enable a great number of Greek Cypriot owners to return to their properties, subject to certain conditions, which taking care of the security requirements of the Turkish Cypriotsparticularly those living in Gazi Magusa (Famagusta), both within and outside the City Walls, as well as the security requirements of the Harbour, being the main commercial port of the Turkish Cypriot Community - and at the same time settling the problem, within the four guidelines agreed upon by the two leaders on l2th February 1977.
Main Aspects of the Turkish Cypriot Proposals
This part comprise the main aspects of the -
I. Constitutional Proposals
II. Proposals on the Territories of the Federated States and a Joint Water
III. Proposals on Marż (Varosha).
I. Constitutional Proposals
A. Basic Provisions
I. The Turkish Cypriot side proposes that the basic Article of the Federal Constitution should provide for an independent, non-aligned, bi-communal and bi-zonal federal state created by the free will and agreement of the Turkish Cypriot and Greek Cypriot Communities and composed of the Turkish Cypriot Federated State and the Greek Cypriot Federated State.
2. The preamble reads as follows :
"The Turkish Cypriot and Greek Cypriot Communities, co-founders of the Republic of Cyprus ;
Bearing in mind the experiences and sufferings of the past and in order to ensure their non-recurrence ;
Determined to establish an independent, bi-zonal Federal Republic composed of two Federated States and to preserve the territorial integrity of Cyprus ;
Agreeing in good faith to the founding of a partnership based on equality between the two Communities ;
Aiming to serve the welfare of their members, enabling them to live side by side in peace and security, to enjoy the benefits and blessings of a democratic system of Governmemnt based on the rule of law and social justice and to enhance their social and economic development ;
Being conscious of the fact that a democratic constitutional order based on the equal partnership of the two Communities is the most effective way of guaranteeing the protection of the human rights and fundamental liberties as embodied in the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights and its Optional Protocol ;
Convinced of the historic necessity of following a policy of friendship and cooperation with their motherlands and of promoting good relations with all countries in conformity with the principle of non-alignment and with a sincere desire of preserving peace and security in the Region ;
Solemnly, by their own free will and agreement, adopt this Constitution."
3. The Federal Republic of Cyprus is to be a sovereign, democratic and secular federation based on the equality of the Federated States, the rule of law and social justice. The sovereignty should continue to be shared equally by the two national Communities, as co-founders of the Republic, through their respective Federated States.
4. The integral or partial union of Cyprus with any other State is to be excluded, the bi-communal and bizonal character of the Federation and the unity of the country being the foundations of the independent Republic.
5. The ofhcial languages, flag and national anthem shall be arranged generally along the lines of the 1960 Constitution.
6. There is to be one eitizenship of the Federal Republic to be regulated by Federal law.
7. Subject to and in accordanee with Federal laws and regulations, the Federated States shall be responsible for issuing passports and citizenship certificates.
B. Fundamental Rights and Liberties.
8. The Federal Constitution shall comprise extensive provisions relating to Fundamental Rights and Liberties and an effective system of judicial protection of these Rights and Liberties in conformity with the international instruments mentioned in the Preamble.
Some examples are :
- Non-discrimination against any of the two Communities or any member thereof ;
- The right to life and corporal integrity ;
- Prohibition of torture, and cruel, inhuman or degrading punishment or treatment ;
- The right to a decent existence and to social security ;
- Prohibition of slavery or servitude, forced or compulsory labour ;
- The right to liberty and security of person ;
- Prosecution and punishment for any offence according to law and the right to
legal defence ;
- Prohibition of banishment of citizens ;
- The right to respect for private and family life ;
- The inviolability of dwelling house ;
- The right to respect for, and to the secrecy of, correspondence and other communication;
- The right to freedom of thought, conscience and religion ;
- The right to freedom of speech and expression ;
- The right to education ;
- The right to freedom of peaceful assembly ;
- Freedom of marriage ;
- The right to freely enter into any contract ;
- The right to strike ;
- Equality before the law ;
- The right to petition ;
- The right to vote ;
9. An even more liberal approach to the protection of Fundamental Rights and Liberties than in the 1960 Constitution will be noticed as in the following examples :
(a) The death penalty will be abolished.
(b) There shall be additional guarantees for the protection of freedom of speech and expression in line with the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights and its Optional Protocol on the following points in particular :
(i) Any advocacy of national, communal, racial or religious hatred that constitutes incitement to descrimination, hostility or violence or to the intergal union of Cyprus with any other State or is prejudicial to the bi-communal and bi-zonal character of the Federation and the unity of the country is to be prohibited.
(ii) The press shall not be subjected to censorship. Newspapers and periodicals may be seized only by an order of a judge in the case of the commission of an offence under the law and by an order of the authority expressly empowered by law in cases where a delay is considered undesirable from the point of view of safeguarding the security of the Federal Republic or of the Federated States, public order or public morals. The competent authority giving the order for the seizure shall inform the court of the decision within three hours in the case of daily newspapers and within twentyfour hours in the case of other periodicals. If the court does not confirm the decision within three hours in the case of daily newspapers and within twentyfour hours in the case of other periodicals the order for the seizure shall be considered null and void.
(iii) Sound and vision broadcasting shall also benefit from added safeguards and both at the federal and federated states level these shall be run by autonomous public corporations. The administration of any federal public corporation created for this purpose shall be based on the equality of the two communities.
(iv) The same safeguards shall also apply to cinematographic films and these shall enjoy equal protection with the press. The production, distribution and public showing of cinematographic films may be subject to the same restrictions as those applying to the press.
(c) The right to strike is to be recognized for all, except for the members of the security forces and armed forces. Prohibition may be extended to the members of the Federal Public Service by a federal law only for the purposes of safeguarding the security of the Federal Republic or the constitutional order or the public safety or the maintenance of supplies and services essential to the life of the inhabitants or the protection of the rights and liberties guaranteed by this Constitution to any person.
10. (a) Freedom of movement throughout the territory of the Federal Republic shall be respected. The progressive stages for the implementation of this freedom shall be determined by the respective legislation or administrative acts of the Federated States through mutually agreed provisions and measures as may be deemed necessary to protect public health or morals or the rights and freedoms of others, the security of any one of the communities or any member thereof and the public order based on the maintenance and protection of the Federated States and the bi-communality and bi-zonality of the Federal Republic.
(b) Every person has the right to leave permanently or temporarily the territory of the Federal Republic subject to reasonable restrictions imposed by law for public good or order.
11. Freedom of residence throughout the territory of the Federal Republic shall be recognized pri.marily for humanitarian and professional purposes. The progressive stages for the implementation of this freedom in clearly defined areas shall be determined by the respective legislation or administrative acts of the Federated States through mutually agreed provisions and measures as may be deemed necessary for the solution of practical defhculties, the protection of public health or morals or the rights and freedoms of others, the security of any one of the communities or any member thereof and the public order based on the maintenance and protection of the Federated States and the bi-communality and bizonality of the Federal Republic.
12. (a) Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such right subject to such restrictions as may be imposed thereon by the Constitutions or the laws of the Federated States respectively for the maintenance or protection of the bi-zonality of the Federal Republic or for the maintenance or development of the economy of the respective Federated States having regard to the viability and productivity thereof, or for the maintenance of public order and security.
(b) The Federated States shall undertake to protect the environment and preserve antiquities and nature while exploiting the forests and forest materials, fishing and fisheries, mines, quarries, mineral and quarry materials, gas and oil, water and generally all kinds of natural resources including the resources of the sea-bed and the continental shelf.
(c) Claims arising out of rights of ownership acquired prior to the Constitution shall be settled, together with all other claims between the two Communities in the form of debts, dues and compensation, by agreement between the parties concerned.
(d) Provision shall be made by Federal legislation for the establishment of a Compensation Tribunal or Tribunals, on which each Community shall be equally represented, for dealing with all claims for compensation in connection with proprietory rights, debts, dues or any other matter which have arisen since December 1963.
13. Every person has the right to practise any profession or to carry on any occupation, trade or business in every part of the Federal Republic, subject to compliance with the legislation of the Federated State concerned.
14. The legislative, executive and judicial authorities of the Federated States shall be bound to secure the efficient application of the provisions relating to fundamental Rights and Liberties within their respective States in accordance with the provisions of the Federated State laws.
Furthermore the Federated States shall bear not only the domestic, but at the same time full international responsibility for the implementation of the Fundamental Rights and Liberties guaranteed by the Federal Constitution within their respective States.
C. The Federal Executive.
I5. The Federal Executive, as proposed by the Turkish Cypriot side, shall be regulated as follows :
(a) The executive power of the Federal Republic shall be vested in the Federal Executive under the joint direction of the two Presidents of the Federated States assisted by Federal Secretaries.
(b) The Presidents of the Federated States shall be elected in each Federated State by direct, universal suffrage and secret ballot in accordance with the Constitution of the respective Federated State and serve in the Federal Executive for the duration of their term of ofhce prescribed by that Constitution.
(c) The Federal Constitution shall incorporate detailed provisions as to the liabilities of the Presidents of the Federated States for the acts of the Federal Executive and as to their prosecution.
(d) The administration of the Federal Executive shall comprise a Federal Executive Secretariat servicing the Presidents of the Federated States in their work for the Federal Executive, and Federal Departments headed by Federal Secretaries in equal number from both communities as may be determined by agreement between the two Presidents.
(e) Each Federal Secretary shall be designated by the President of his own Federated State and the appointment shall be made by an instrument signed jointly by the said two Presidents.
(f) The Under-Secretaries of the Federal Secretaries shall not be of the same Community as the Federal Secretary. The Under-Secretaries are to be designated by the President of their own Federated State and the appointments shall be made by an instrument signed jointly by the said two Presidents.
(g) However, there are certain ceremonial and formal functions of the Federal Republic, enumerated below for which a single representation is necessitated by the circumstances, namely :
(i) representing the Federal Republic in all ceremonial duties ;
(ii) signing the credentials of diplomatic envoys appointed in accordance with the Constitution and receiving the credentials of foreign diplomatic envoys accredited to the Federal Republic ;
- the credentials of delegates appointed in accordance with the Constitution for the negotiation of international treaties, conventions or agreements already negotiated, in accordance with, and subject to, the
provisions of the Constitution ;
- the letter relating to the transmission of the instru- ments of ratification of any international treaties, conventions or agreements approved as provided in this Constitution ;
(iv) conferring the honours of the Federal Republic, For the fulfillment of these functions, as President of the Federal Republic, a two-yearly rotation between the Presidents of the two Federated States is envisaged.
(h) The Federal Secretary for Foreign Affairs shall assist the President of the Federal Republic in the fulfilment of the above functions. The Federal Secretary for Foreign Affairs shall in any event not be of the same Community as the Community to which the President of the Republic for the time being belongs.
(i) Similarly, the Federal Secretary for Finance and the Federal Secretary for Economic Coordination shall not be both of the same Community.
D. Federal Matters
16. The executive power of the Federal Republic shall be in respect of the following specific matters : -
(1) Foreign Affairs :
(a) The recognition of States, the establishment of diplomatic and consular relations with other countries and the interruption of such relations ; the grant of acceptance to diplomatic representatives ; and of exequatur to consular representatives ; the assignment of diplomatic and of consular representatives, already in the diplomatic service, to posts abroad and the entrusting of functions abroad to special envoys already in the diplomatic service ; the appointment and the assignment of persons, who are not already in the diplomatic service, to any posts abroad as diplomatic or consular representatives and the contrusting of functions abroad to persons, who are not already in the diplomatic service, as special envoys ; without prejudice to the right of the Federated States to entertain the
necessary contacts with diplomatic and consular representatives for the purposes of sub-paragraph (b) of this paragraph.
(b) the conclusion of international treaties, conventions and agreements ; without prejudice to the right of the two Federated States to enter into any agreement with any country particularly, their respective motherlands, including the accordance of the most favoured nation treatment to the said motherlands. Educational, echnical and cultural cooperation of any kind are execluded from "foreign affairs" ;
(c) the declaration of war and the conclusion of peace ;
(d) the protection abroad of the citizens of the Federal Republic and of their interests ;
(e) the acquisition of foreign nationality by citizens of the Federal Republic and their acceptance of employment by, or their entering the service of, a foreign government.
(2) External Defence shall be secured by the land forces of each Federated State conjointly. For this purpose all measures for co-ordinated action shall be taken.
(3) Banking, Foreign Exchange and Monetary Affairs : The Federal Republic shall have a single currency. Each Federated State shall have a Bank to perform the functions of a Cetral Bank. Co-ordination shall be ensured by a Federal Reserve Board.
(4) Federal Budget : The Federal Republic shall have its own Federal Budget for the purposes of meeting the expenditure necessary for carrying out its powers, functions and services. The charges and fees derived from such services shall accrue to the Federal Budget.
(5) Customs Duties and Tariffs : Customs duties to be levied on imports and customs tariffs shall be determined after taking fully into account the economic structure of each Federated State and the principle of balanced economic development of the two Federated States.
(6) External Communications : The co-ordination of postal and telecommunication services shall be ensured by the Federal Executive. The joint operation and maintenance of the Nicosia International Airport by the two Communities for strictly non-military purposes shall be ensured on the basis of equality.
(7) Federal Health Services : The co-ordination of general health measures carried out by the Health Services of each Federated State shall be the responsibility of the Federal Executive.
(8) Standards of Weights and Measures, Patents, Trade Marks, Copyrights, and Meteorological Services : On these matters there shall be effective co-ordination by Federal institutions in which the two communities shall participate on the basis of equality.
(9) Tourism and Inf'ormation : The Federal Executive shall provide co-ordination between the Ministries of the two Federated States responsible for tourism and shall assist in the propaganda and marketing of tourism for the benefit of Cyprus as a whole.
17. The Federal Executive in carrying out its powers and functions in the above fields may benefit from the services of the organs of the Federated States in the same fields.
18. All powers and functions not specifically given to the Federal Executive by this Constitution shall vest in the Federated States.
E. Federal Legislation.
19. The Federal Legislative power is exercised by the Legislative Assemblies of the two Federated States and the Federal Assembly.
20. The members of the Legislative Assemblies of the Federated States shall be elected by direct, universal suffrage and secret ballot in accordance with the Constitution of the respective Federated State.
21. The Federal Assembly shall be composed of twenty members, ten from each Legislative Assembly of the Federated States, elected from amongst their respective members for the duration of the period of the Legislative Assembly concerned. Each Legislative Assembly shall also elect five alternates to serve in the temporary absence or temporary incapacity of members from the same Legislative Assembly.
22. The President of the Federal Assembly shal( not be of the same community as that of the President of the Federal Republic for the time being.
23. Federal laws are passed upon receiving a simple majority vote in each of the Legislative Assemblies of the Federated States.
(1) Federal bills may be introduced in either of the Legislative Assemblies of the Federated States by any of their respective members. Such bills are first debated in the Legislative Assembly in which they are introduced.
(2) The Presidents of the Federated States, as members of the Federal Executive, after deliberation with the Federal Secretaries, may also jointly introduce Federal bills simultaneously in each Legislative Assembly. Such bills are separately and concurrently debated in each Legislative Assembly.
(3) Federal bills adopted with or without amendment by one of the Legislative Assemblies shall be referred to the other.
(4) A Federal bill rejected by one of the Legislative Assemblies will be deemed to be withdrawn.
(5) If a Federal bill, adopted by one Legislative Assembly, is also adopted by the other without amendment, it shall be transmitted to the Presidents of trre Federated States for joint promulgation within a period of fifteen days commencing from the third day of its transmission.
(6) The Presidents of the Federated States, before promulgation, may either separately or conjointly,
(a) return the law or any part thereof to the Legislative Assemblies for reconsideration which shall pronounce on the matter so returned within fifteen days of such return. If both Legislative Assemblies persist in their decision, the Presidents of the Federated States shall promulgate within the period referred to in Paragraph (5) above. If either of the Legislative Assemblies persists in its decision or if the bill is re-adopted with differring amendments, it shall then be submitted to the Federal Assembly.
(b) exercise the right of reference on grounds of constitutionality to the Federal Constitutional Court which shall pronounce its judgement on the matter within a period of forty-five days from the date of such reference. In case the Federal Constitutional Court is of the opinion that or inconsistent with any provision of this Constitution, such law shall not be promulgated.
(7) If a federal bill adopted by one of the Legislative Assemblies is adopted with amendments by the other Legislative Assembly or if a bill introduced jointly by the Presidents of the Federated States is adopted by both Legislative Assemblies with differring amendments, it shall then be submitted to the Federal Assembly where bills are adopted
(8) If a Federal bill is adopted by the casting vote of the President of the Federal Assembly, the President of each Federated State shall submit such bill to a separate referendum in each Federated State in accordance with the provisions relating to referendum in their respective Constitutions. If such bill is accepted by the referendum in both Federated States it shall be jointly promulgated by the Presidents of the Federated States.
(9) A Federal bill adopted by the Federal Assembly without a casting vote shall be transmitted to tlze Presidents of the Federated States forjoint promulgation within a period of fifteen days commencing from the third day of its transmission. The provisions of paragraph (6) shall apply in respect of the right of return of the bill to the Federal Assembly.
F. Independent Offices of the Federal Republic.
24. The Federal Constitution shall create three independent offices of the Federal Republic, these being the Office of the Federal Attorney-General, the Office of the Federal Auditor-General, and the Federal Reserve Board, the latter being vested with the authority to administer, inter alia, the Federal Consolidated Fund which will be made up of revenues and moneys raised in accordance with the powers given to the Federal Executive.
G. The Federal Public Service.
25. The Federal Constitution shall make provision for the appointment of a Public Service Commission by each Federated State for the purpose of selecting for appointment to the Federal Public Service the best candidate belonging to their respective communities and possessing the qualifications provided by Federal Law. The appointment of the candidates so selected is formulated upon the recommendation of the Federal Secretary concerned, the approval of the two Presidents and is published in the ofhcial Gazette.
H. Defence and Security.
26. The external defence of the Federal Republic shall be conjointly secured by the land forces of the Federated States stationed in their respective territories. For purposes of coordination the two commanders of the respective land forces of the Federated States and their headquarters shall meet and work together as they may deem necessary.
27. The internal security of the Federated States shall be ensured by their respective Security Forces regulated by the Federated State Law. The Security Forces shall not be equipped with heavy arms.
28. Provision shall be made for coordination between the respective Federated States' organizations established fox the purposes of guarding the coasts, preventing smuggling and imple- menting customs control.
I. Economic Coordidation.
29. There shall be established an Economic Coordination Board composed of an equal number of representatives from each Federated State with the purpose of coordinating the functions and services of the Federated States in economic matters and also advising the appropriate organs with a view to ensuring progressive integration of economic and financial functions of banking, foreign exchange, monetary affairs, imposition of Federal charges and fees, customs duties and tarifis, etc.
The Economic Coordination Board shall also serve to secure, with the growth of mutual trust, cooperation and confidence, the progressive transfer to the Federal Republic of the above powers and functions.
J. The Federal Constitutional Court.
30. Under the Federal Constitution the Federal Constitutional Court shall be composed of six judges and two alternate judges elected in equal numbers by the highest court of each Federated State from amongst its own members for period of six years.
31. The judges so elected shall elect a judge from amongst themselves as President of the Court. The President of the Federal Constitutional Court shall not belong to the same Community as that of the President of the Federal Assembly and shall hold ofhce as President of the Federal Constitutional Court for the duration of the term of the said President.
32. Any decision of the Federal Constitutional Court shall be taken by a simple majority.
33. The Federal Constitutional Court shall have exclusive jurisdiction :
(a) to adjudicate on a recourse made in connection with any conflict or contest of power or competence arising between the organs of the Federated States ;
(b) to adjudicate finally on a recourse made to it on a complaint that a decision, an act or omission of any organ, authority or person, exercising any Federal executive or Federal administrative authority is contrary to any of the provisions of the Federal Constitution or of any law or is made in excess or in abuse of powers vested in such organ or authority or person.
34. Recourse to the Federal Constitutional Court may be made :
(a) by the Presidents of the Federated States, separately or conjointly ;
(b) by one or both of the Legislative Assemblies of the Federated States, by majority vote, through their Presidents ;
(c) by any person whose existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely affected by the act or omission of any organ, authority or person, exercising any Federal executive or Federal administrative authority.
K. Amendment of the Constitution.
35. Except for the two basic articles, relating to the fundamental bi-communal, bi-zonal structure of the Federal Republic, and the Guarantee thereof, provisions will be made for the amendment of the Federal Constitution :
(a) Any provision of this Constitution can only be amended, whether by way of variation, addition or repeal, upon a proposal separately made in each of the two Legislative Assemblies of the Federated States by at least one-third of the respective members thereof and approved separately by at least a two-third majority of the total number of the respective members thereof.
(b) If an amendment to the Constitution of the Federal Republic adopted by one Legislative Assembly is adopted with differring amendments by the other Legislative Assembly, it is then submitted to the Federal Assembly where it shall be adopted only by a three-fourth majority of the members.
(c) Any amendment approved as provided above shall be submitted to the free-will of each Community as expressed by a public referendum held separately in each Federated State according to the provisions of its respective Constitution and laws made thereunder relating to the holding of a public referendum.
L. The Guarantee of the Independence and Territorial Integrity and Non-Alignment of the Federal Republic.
The 1960 Treaty of Guarantee and the Treaty of Alliance, as amended, shall be annexed to the Federal Constitution and shall have constitutional force in order to safeguard the independence, territorial integrity and non-alignment of the Federal Republic of Cyprus and any other international agreement that the Federated States may have concluded before coming into force of the Federal Constitution shall not be implemented in a way that may infringe upon the independence, territorial integrity and the non-alignment of the Federal Republic of Cyprus.
II. Proposals on the Territories of the Federated States and a Joint Water Project.
l. The line existing between the Turkish Cypriot and Greek Cypriot zones shall be re-adjusted.
2. The areas of
(a) Erenköy (Kokkina) ;
(b) Gaziler (Avlona) ;
(c) Akincilar (Louroujina) ;
(d) Tugrullu (Turilli) ;
(e) Düzce (Akhna) ;
(f) The Area between the South of Maraż (Varosha) aMd Dherinia ;
shall be included in these re-adjustments.
3. Most of the areas presently falling between the Forward Defence Lines are aslo to be included in these re-adjustments.
4. Greek Cypriots will be enabled to make use of land, factories, etc., in the Greek Cypriot side of the re-adjusted line including the area presently falling between the Forward Defence Lines and a substantial number of Greek Cypriots will be rehabilitated in a number of villages in these areas.
5. A separate paper has been submitted on Maraż (Varosha).
6. Subject to a settlement being reached the proprietory rights of the Turkish Cypriots in respect of immovable property within the boundaries of the Sovereign Base Areas will be relinquished.
7. A project for bringing water from Turkey at a cost of 150-200 million dollars which will increase the productivity of land for both communities will be submitted for discussion as a joint project and as part of the territorial settlement.
III. Proposals on Maras (Varosha).
Greek Cypriots and others who will return to Maraż (Varosha) will be subject to the laws and regulations of the Turkish Federated State of Cyprus.
Special care shall be taken to re-promote the area as a tourist resort and for this purpose in order to enable the owners to re-start their businesses the Turkish Federated State of Cyprus will consider tax and other facilities.
The Greek Cypriot owners shall settle to the South of Demokratia and Asteroskopiou Avenues and East of Dherinia Avenue.
The Greck Cypriot Representative in the intercommunal talks, Mr. Tassos Papadopoulos, sent on April 22 a document to the U.N. formally announcing rejection of the Turkish proposals.
Mr. Papadopoulos handed the document to the U.N. Secretary-General's Representative in Cyprus. Mr. Gorge, to be forwarded to Mr. Kurt Waldheim.
The document contains the Greek Cypriot side's observations on the Turkish proposals and states that they cannot form the basis for a resumption of meaningful and constructive negotiations between the two sides and are therefore rejected.
OBSERVATIONS ON THE DOCUMENTS ENTITLED "MAIN ASPECTS OF
THE TURKISH CYPRIOT PROPOSALS" AND "EXPLANATORY NOTE OF
THE TURKISH CYPRIOT PROPOSALS FOR THE SOLUTION
OF THE CYPRUS PROBLEM."
The Turkish side has failed in its undertaking, formally given to the U.N. Secretary-General in January, 1978, and announced by him, to present exact and complete proposals both on the constitutional and on the territorial aspects for the solution of the Cyprus problem.
The documents presented do not afford any basis for meaningful and substantive negotiations for the solution of the Cyprus problem, as envisaged by the relative U.N. Resolutions on Cyprus.
On the Constitutional aspect, the provisions of the document, presented are contrary to the obligation to submit proposals for the establishment of a Federal State. The documents provide not for the creation of a Federal Republic, but for the partitioning of the existing State of Cyprus into two separate entities. In fact, the whole aim of the Turkish provisions is, under the guise of the word " federal," to invest the illegal Turkish Cypriot administration with legal powers.
On the Territorial aspect, the Turkish documents contain no commitment for giving up any area now occupied by the Turkish forces.
Constitutitonal Aspect :
The Turkish documents do not provide for the establishment of a Federal State. The provisions in the documents contain none of the attributes of federation, nor do they propose the creation of a Federal State exercising, through its own organs, independent state power. As the very centre of the Federal State, where one expects to find the fountain of federal power and functions, there is a total and complete vacuum. Furthermore, the relation ship of the Federal Government to the citizen, an essential element of federation, is non-existent. What the Turkish documents clearly provide is the creation of two separate States.
This is evidenced by the following examples which are by no means exhaustive :
(1) Sovereignty :
Though the Turkish documents contain a statement that "the Federal Republic of Cyprus is to be a sovereign" federation, yet no sovereignty is allotted to the Federal State, but, on the contrary, it is expressly provided that "the sovereignty should continue to be shared equally by the two national communities through their respective Federal States."
Thus, a most basic, fundamental attribute and prerequisite of federation is lacking.
(2) Unity of Territory :
The whole eiect of the provisions throughout the Turkish documents is to destroy and deny the unity of the territory of the Federal State. At the same time, numerous provisions aim at promoting and perpetuating the division and partition of the territory and the people in a consistent and glaring manner. The effect of these provisions is the establishment of two distinct and separate States, which is the obvious objective of the Turkish side.
That this is so, suffice it to give a few, but telling, examples.
(a) The individual will not be able to enjoy, irrespective of the community to which he belongs, his basic human rights throughout the territory of the Republic, and the Federal Government is not vested with any legislative, executive or judicial power for safeguarding such enjoyment.
(b) The funamental principles of freedeom of movement, freedom of settlement, right to property and right to work throughout the Federal State are ominously singled out for such special treatment as to be denied to the individual as a citizen of the Federation.
They are left to be legislated on separately by each Federated State "as its own whim, at some distant, unspecified time in the future. In addition, the rights of freedom of movement and freedom of settlement are made subject to mutual agreement (which, because of the "deadlock" provisions, either side will for every be at liberty to withhold) and to such conditions and restrictions as to render their enjoyment impossible in perpetuity, whilst the right to property is stultified.
(c) The aims of economic and social development and the prosperity of the people are envisaged on the basis of two water-tight, separate States.
(d) The suggestions regarding Famagusta are an apt illustration of the divisive concept of the provisions in the Turkish documents.
And yet, unity of territory is an indispensable attribute of federation and a test whether a federation or two States are to be established.
(3) Federal Powers and Federal Organs :
No federal powers are conferred on the Federal State and no specific federal organs are provided to exercise such powers :
(a) Federal Legislative Power :
(i) Although certain federal legislative powers are listed by their headlines in the Turkish documents to create the false impression that the Federal Government will be invested with them, in fact such powers are to be exercised by the separate Assemblies of the " Federated States " and not by a federal Legislature. It is only " in case of conflict in matters of federal legislation by the two Legislative Assemblies " that legislation is referred to a Federal Assembly made up of an equal number of Greek and Turkish members (ten members from each communtiy) deciding by simple majority, inevitably resulting in deadlocks.
The deceptive provision for resolving such deadlock through the casting vote of the President of the Assembly is nullified by the provision that whenever a casting vote is used the decision shall invariably be submitted " to a separate referendum in each Federated State ".
This is another glaring manifestation of the separatism which pervades the Turkish documents, in furtherance of the Turkish intention to create, not a federation, but two separate States.
(ii) The same concept and divisive attitude permeate the provisions that for any federal law to come into force, even in the rare cases where a federal law is voted by both Assemblies of the two " Federated States ", there must be joint promulgation by the two Presidents of the " Federated States ". This gives to either of the two Presidents of the " Federated States " the right effectively to block all federal legislation even when enacted.
This is another indication of the lack of any intention to create a Federal State.
The effect of these provisions is to create deadlocks, ensuring that no legislation enabling the exercise of federal functions will ever be enacted. Conversely, each " Federated State " is given by itself absolute power effectively to block the operation of the Federal State and to deny to the Federal Government powers and functions which in all federal systems belong to it.
So long as no Federal Legislative Assembly exercising independent legislative powers is created, the purported "Federate State" will be subject to the legislature of the "Federated States".
This is against all fundamental principles of a Federal State.
(b) Federal Executive Power :
The Turkish documents do not provide for the creation of specific federal executive organs vested with efl'ective executive powers.
As in the case of legislative powers, certain matters are listed as "federal executive matters", but when the substance of the relative provisions is examined, it is established that they exist only in name. As explained in the Turikish documents, the Federal Government will have "only those basic powers and functions which are considered necessary and feasible for the purpose of maintaining common services and without security risks to the life and property of the inhabitants of the member states ".
As to the Federal Executive Organs, the Turkish documents provide for "joint direction of the Federal Executive by the two Presidents of the Federated States " and for their continuous joint participation on a basis of equality in the "basic decision-makin process for federal functions". The illusion of the existence of a "federal executive" exists only in the ceremonial functions to be performed on a "rotating" basis by one of the Presidents of the " Federated States ".
As in the case of the provisions relating to the federal legis lative power, the inevitable creation of deadlocks will prevent the exercise of federal executive power.
All the above unprecedented provisions are incompatible with the concept of a Federal State and are only compatible with the creation of two separate States.
(c) Federal Judiciary :
The Turkish documents do not contain any concrete proposals for the establishement, composition and operation of Federal Courts, not even Federal Criminal Courts, except for a proposed Federal Constitutional Court, which would again be composed of an equal number of Greek Cypriots and Turkish Cypriots taking decisions by majority without a casting vote, thus extending the deadlock arising from the artificial equa`isation of the communities even to the administration of justice.
The election of a President of the Court, which the Turkish documents provide should be made by its own members, will be virtually impossible since it is subject to the same deadlock rovisions.
This is another serious departure from accepted federal principles.
(d) Protection of Human Rights and
Fundamental Freedoms :
Although the Turkish documents purport to contain "extensive provisions relating to fundamental rights and liberties" and an eflective system for their judicial protection, this is nullified by the fact that " domestic and international " responsibility in this field is given, not to the Federal Government as in all federations, but to the " Federated States " within their respective jurisdictions. This provision is a two-fold violation of the federal concept : the vesting of the "Federated States"with international personality, a manifestation of the Turkish intention to create two separate States, and the denial of protection of the human rights of the citizen by the Federal State.
As already stated, the fundamental principles and basic human rights of freedom of movements, freedom of settlement the right to property and the right to work, far from being entrenched in the Federal Constitution, are mentioned in the Turkish documents only to be annihilated. In particular, the right to property and its enjoyment is substituted by provisions for compensation tantamount to confiscation.
The reference in the Turkish documents to all thc basic International Conventions, Covenants and Declarations for the protection of human rights are thus exposed to be nothing but empty words.
(e) Position of the Federal State in International Law :
Thr Turkish documents do not provide for the creation of a Federal Republic of Cyprus as a separate subject of International Law.
On the contrary, the Turkish documents state that the " Federated States" shall also bear " international responsibility " and that the conclusion of international treaties, conventions and agreements by the Federal Executive shall be " without prejudice to the right of the two Federated States to enter into any agreement with any country " Even the issue of passports and citizenship certificates is allotted to the " Federated States ".
This gives a separate international legal personality to each "Federated State" and provides another incontrovertible proof of the objective of the Turkish side to create two separate States.
(f) Defence and Security :
Contrary to all concepts of federation, no provision is made for federal defence and security. Even for external defence, the Turkish documents provide "separate land forces of the Federated States stationed in their respective territories".
Similarly the function of guarding the coasts, preventing smuggling and customs control is allotted to the " Federated States ".
This is another striking proof of the creation of two States.
(g) Sources of Revenue of the Federal State.
Federal Finance, Economic and Town
and Country Planning :
There is no provision in the Turkish documents for any sources of revenue of the Federal State, except that these will consist of the charges and fees derived from services rendered by the federation. Since the Federal State and the services to be so rendered are really non-existent, this source of revenue is only theoretical.
The subjects of federal revenues, federal finance, economic and town and country planning are conspicuously absent from the enumeration of " federal matters " set out in the documents. This is one more proof of the substantiality of the Federal State.
Provision is made for a separate Central Bank for each " Federated State ". This would enable either " Federated State " to draw on the reserves of the Federation to finance its own separate and unco-ordinated private and public expenditure leading to certain collapse of the "joint currency" which no amount of
" co-ordination " can remedy.
Thus each " Federated State " will be a separate economic entity with different taxation, standards and services, making economic planning impossible. It will therefore, inevitably necessitate tl:e establishment of guarded borders between the two " Federated States " so as to prevent illegal trafficking and smuggling.
This is another clear proof of the intention to create two separate States.
(h) External Communications :
Other instances illustrating the lack of basic attributes of a Federal State are the provisions relating to postal and telecommunication services which will obviously be the responsibility of the " Federated States ", only co-ordination being ensured by the Federal Executive. Thus, each "Federated State" will have control of its own external telecommunication services, the "Federated States" being thus invested with interantional legal personality, in yet one more field.
This is contrary to all known systems of federalism and only consonant with the creation of two separate States.
The provision for the joint operation and maintenance of the Nicosia International Airport "by the two Communities", on the basis of equality, is so unworkable and absurd as to need no elaboration.
(i) Miscellaneous Matters :
Even matters such as standards of weights and measures, patents, trade marks, copyrights and meteorological services are to be the resposibility of the "Federated States", thus rendering it possible for different standards to be adopted by each. Only co-ordination is to be ensured by the Federal Executive.
This is another illustration of the denial of federal personality even in such insignificant matters as these.
(j) Composition and Effectiveness of the proposed Federal Organs :
The Turkish documents envisage, throughout, participation of Greek Cypriots and Turkish Cypriots in thc federal organs taking decisions on a basis of equality. . . Such provisions are the surest recipe for bringing about continuous and iasurmountable deadlocks at all levels of the Federal State leading to perpetuate intercommunal friction, culminating, inevitably, in partition.
This is yet another manifestation of the negative attitude of the Turkish side towards federation in the true sense.
Moreover, the proposed equalisation of the Greek Cypriot community, comprising 82 % of the total population, with the 18 % Turkish Cypriot community, now extended to all federal functions, is a negation of all democratic principles to which lipservice is paid in the preamble proposed for the Constitution of the new Federal Republic of Cyprus, set out in the Turkish documents. It is also inconsistent with the universally accepted federal concept.
TERRITORIAL ASPECT :
The Turkish side makes no proposal on the Territorial aspect beyond what it proposed in April 1976, namely a "readjustment of the line", which it now further limits by expressing its re " to enter into negotiations for readjusting the line ".
Such "readjustments" as are shown on the map attached to the Turkish documents are a mockery ; the areas proposed to be given up are areas situated in the neutral zone which is not under the occupation of the Turkish forces. The Turks are in fact offering back what is not under their occupation. On the other hand, the areas in respect of which they have indicated readiness "to enter into negotiations" for readjusting the line are isolated insignificant areas, such as Kokkina, with the obvious aim of straightening and shortening and thus strengthening the Attila line. The extent of these areas represents about 1 %.
It is worthy of note that thc Turkish documents studiously avoid and reference to one concrete and most important criterion for the settlement of the territorial aspect, namely, land-ownership. This significant omission is no doubt due to the fact that the Turkish Cypriot land-ownership is only 12.3 % of the land of Cyprus.
The provisions of the Turkish documents with regard to Famagusta are so vague and incomprehensible and so hedged in by unspecified conditions that they do not amount to any kind of proposal whatsoever. In any event the Turkish documents speak only about the possible return of some " Greek Cypriot owners" to their properties in only a specified limited part of Famagusta, subject to certain conditions, not about the return of Famagusta to its rightful owners. This is adding insult to injury when one remembers that the new town of Famagusta is an exclusively Greek inhabited town and all property in this town is owned exclusively by Greeks.
Even presuming that some Greek Cypriot " owners " were allowed to return to that specified limited part of Famagusta, the aim would be to exploit them and their know-how, converting them to hostages, subjecting them to the humiliations and vicissitudes suffered by the Greek Cypriot population in the Turkish occupied area, and expelling them when they were no longer needed.
This is not an imaginary fear. The terrible reality is the forcible, calculated expulsion, long after the cessation of hostilities, of the Greek Cypriots who were not driven out during or immediately after the invasion. Of the 20,000 who had so remained, only 1,770 are now left in theTurkish occupied area, living in conditions of deprivation of all basic fundamental human rights and liberties.
The provision in the Turkish documents that freedom of residence will be recognized primarily for "professional purposes" and the other conditions to which the exercise of this right will be subjected, affords further insight into the true aims of the Turkish side in respect of Famagusta. Furthermore, the danger of subjecting oneself to " the laws of the Turkish Federated State of Cyprus " is nor a theoretical danger because already in the " Constitution " of the " Turkish Federated State of Cyprus " the protection of human rights extends only to "Turkish citizens". Foreigners, a term which includes Greek Cypriots are not accorded such protection.
The provisions relating to Famagusta, if they prove anything prove the Turkish intention not to create a Federal Republic, because the provisions offend against the principle of the unity of the territory of the federation and of its people. The division is extended, not only as between Greek Cypriots and Turkish Cypriots, but also as between categories of citizens-some "owners" of property and others.
This paper mentions only some of the most glaring examples of the failure of the Turkish side to honour its solemn and express undertakings to submit concrete and comprehensive proposals for the creation of a Federal Republic.
The Turkish documents themselves reiterate that the provisions are for "federation by evolution". Even this " evolutionary process ", however, in addition to its unacceptability, is illusory, since it is arrested for at least seven years, during which there will be "reservations on amendments" to the constitution. After the lapse of seven years, the proposed "deadlock" provisions would again preclude any form of evolution. But it must again be stressed that "federation by evolution " is for obvious reasons totally unacceptable at its basis.
From the few examples given, it beco:nes evident that the Turkish approach to the solution of the Cyprus problem bears no relation to the concept of federation, and that therefore no number or extent of amendments can bring it into line with the agreed basis of establishing a Federal Republic. Thus, the "proposals" contained in the Turkish documents cannot, by any stretch of the imagination, be considered as providing any basis for negotiation and the resumption of intercommunal talks.
With regard to the most important aspect of territory, the Turks have again failed to suggest anything which could be described as proposals.
In fact, the provisions in the documents now presented (some of which are couched in identical language as the proposals presented in Vienna in April, 1977) reveal even more clearly than ever before the Turkish intention to create two separate States. Therefore, if the proposals presented in Vienna last year proved in practice not to form a basis for negotiation and led to the breakdown of the talks, the proposals presented now are a fortiori not a basis for negotiation and the resumption of intercommunal talks.
It must also be pointed out that all the provisions in the Turkish documents are coupled with deviously phrased escape clauses allowing the Turkish side, during the actual negotiating process, to become even more intransigent than its "proposals" show it to be, and to renege even from the ostensible commitments contained in the documents.
It is obvious that the sole objective of the Turkish documents was to create the false impression that the Turkish side was honouring its obligation to submit concrete and comprehensive proposals, and thus to improve the international image of Turkey, and for other purposes, not the solution of the Cyprys problem in the interest of the people of Cyprus and of peace and security in the area. It is equally obvious that, once this objective was achieved, the Turkish side, relying on the many escape clauses contained in the documents, would, far from entering into negotiations with a view to improving its "proposals", recede from them even further.
In conclusion, the Greek Cypriot side considers the so-called Turkish proposals as totally unacceptable and wishes to state once again that they cannot under any circumstances justify the resumption of the intercommunal talks.
FRAMEWORK FOR A CYPRUS SETTLEMENT
PREPARED BY U.S., BRITISH AND
The parties to the intercommunal talks will negotiate in good faith and in a sustained manner, under the auspices of the United Nations Secretary-General, towards a comprehensive Cyprus settlement on the basis of the following conceptual framework :
(1) The Republic of Cyprus shall be a bicommunal federal state with two constituent regions, one of which will be inhabited predominantly by Greek Cypriots, the other predominantly by Turkish Cypriots. The independence, sovereignty, and territirial integrity of the Republic of Cyprus shall be assured, as shall its right to conduct a policy of nonalignment should it so choose. The incorporation of all or part of the Republic into any other state shall be expressly prohibited.
(2) A new constitutional structure for the Republic of Cyprus, incorporating an operative federal system of government, shall be negotiated on the basis of the provisions set forth herein. The negotiators shall be guided by the Makarios-Denktash instructions of February, 1977, shall draw upon pertinent elements of the Constitution of 1960, and shall bear in mind United Nations resolutions. Substantial powers and responsibilities will be reserved to the two constituent regions in such a manner as to protect the rights and to meet the concerns of members of both communities.
(3) Fundamental rights and liberties, to include freedom of movement, freedom of settlement, and the right to property ownership, shall be embodied in the federal constitution subject only to such modifications as are required to preserve the character of each region.
(4) The following powers and functions shall reside in the federal government of Cyprus : foreign affairs, external defence, currency and central banking, inter-regional and foreign commerce, communications, federal finance, customs, immigration, and civil aviation. Powers and functions not explicitly granted to the federal government shall be reserved to the two constituent regions. Powers and functions initially exercised by the regions may be assumed by the federal government upon joint agreement of the two regions.
(5) The federal government shall be structure along the following lines :
(A) Legislative authority shall be vested in a bicameral legislature, the upper chamber to represent the two communities on a basis of equality and the lower chamber to be elected in proportion to population.
(B) In the event that a majority in the upper chamber fails to concur in a bill passed by the lower chamber, a subsequent affirmative two-thirds vote in the lower chamber shall be sufficient to enact, provided that at least three-eighths of the representatives from each community concur therein.
(C) There shall be a president and a vice president, elected through democratic processes, one of whom shall be from one community and the other from the other community. In the event of the incapacity or temporary absence of the president, the vice president shall act in his stead. The president and vice president shall jointly appoint a council of ministers. Neither community shall have less than 30 per cent of the ministerial portfolios. The president and the vice president may jointly veto federal legislative acts, although their veto may be overridden by a two-thirds vote in each chamber.
D) A federal supreme court shall be established, to consist of one Greek Cypriot, one Turkish Cypriot, and one non Cypriot appointed jointly by the president and the vicepresident. The court shall have the function of interpreting the constitution and shall n ct as the highest court of appeal where federal legislation is concerned.
(E) Provision shall be made for the fair participation of members of both communities in the federal civil service.
Senior appointments shall be subject to approval by the upper chamber of the legislature.
(6) The two regions shall establish regional government institutions for the purpose of carrying out the powers and functions reserved or assigned to them under the constitution. The executive and legislature of each region shall be democratically elected. The parties to the intercommunal talks shall discuss ways of ensuring the necessary degree of congruity between the governmental institutions of the two regions.
(7) An agency for regional cooperation and coordination shall be established, jointly headed by a Greek Cypriot and a Turkish Cypriot and staffed by an equal number of representatives of each constituent region. The agency will foster practical coopetion between the two regions, especially in the economic and commercial fields ; will seek the maximum possible compatibility between the two regions ; and will promote the unity of the nation.
(8) The specific territory under the administration of each region shall be negotiated on the basis of criteria such as economic viability and productivity, land ownership, security, population patterns, and historical factors. In this regard, it is understood that the Turkish Cypriot side will agree to significant geographical adjustments in favor of the Greek Cypriot side.
(9) The parties shall make provision, to the extent feasible and consistent with the bicommunal character of the Republic, for the return of displaced persons to their properties and for the settlement of claims that may be made by those who are unable or do not choose so to return.
(10) An integral part of a final settlement shall be the withdrawal of non-Cypriot armed forces (except for those specifically agreed to) from the territory of the Republic. Consideration may be given to a possible phased demilitarization of the Republic of Cyprus in a manner that will best assure the security of the Republic and its citizens under a final settlement. It would be understood that demilitarization would not preclude lightly-armed regional police forces with the function of maintaining law and order within each region.
(11) There shall be established a Cyprus reconciliation fund, financed primarily by the federal government and administered jointly by the two regions, that will provide fundsfor development projects designed to assist in the process of readjustment subsequent to a settlement and to assist those sectors of the Republic that have the greatest economic and social need. Other governments and international organizations would be invited to contribute to the fund.
(12) In order to promote an atmosphere of goodwill and to resolve pressing humanitarian problems, the Varosha area shall be resettled under U.N. auspices in accordance with the attached arrangements. Such resettlement shall be initiated in phase with the resumption of full intercommunal negotiations on a comprehensive agreement.
THE VAROSHA AREA
The parties to the intercommunal talks shall cooperate with the secretary-General of the United Nations and with his representatives in arranging the modalities for an early resettlement of the Varosha area. The following guidelines will obtain :
(A) The area for resettlement shall encompass territory lying to the east of the village of Ayios Nikolaos and to the south of the old Nicosia-Famagusta Road. In defining the precise area for resettlement, the concerns of the Turkish Cypriot party for the security of old Famagusta and Famagusta Harbor shall be taken into account.
(B) The area for resettlement shall be administered under the supervision of the United Nations, and shall be considered as an extension of the present United Nations buffer zone. There shall be a Greek Cypriot and a Turkish Cypriot liaison officer to the United Nations authorities for this purpose. Cypriot laws and regulations shall be in force in the area of resettlement.
(C) It is understood that as many former residents of the area of resettlement may return as they choose. There shall be no fixed numerical limitation.
(D) Those who return to the area for resettlement shall not be subject to further involuntary displacement.
THE 10-POINT AGREEMENT
1. It was agreed to resume the intercommunal talks on 15 June, 1979.
2.The basis for the talks will be the Makarios/Denktash guidelines of 12
February 1977 and the U.N. resolutions to the Cyprus question.
3. There should be respect for human rights and fundamental freedoms of all citizens of the Republic.
4. The talks will deal with all territorial and constitutional aspects.
5. Priority will be given to reaching agreement on the resettlement of Varosha under U.N. auspices simultaneously with the beginning of the consideration by the interlocutors of the constitutional and territorial aspects of a comprehensive settlement. After agreement on Varosha has been reached it will be implemented without awaiting the outcome of the discussion on other aspects of the Cyprus problem.
6. It was agreed to abstain from any action which might jeopardize the outcome of the talks, and special importance will be given to initial practical measures by both sides to promote goodwill, mutual confidence and the return to normal conditions.
7. The demilitarization of the Republic of Cyprus is envisaged, and matters relating thereto will be discussed.
8. The independence, sovereignty, territorial integrity and nonalignment of the Republic should be adeyuately guaranteed against union in whole or in part with any other country and against any form of partition or secession.
9. The intercommunal talks will be carried out in a continuing and sustained manner, avoiding any delay.
10. The intercommunal talks will take place in Nicosia.
19 May 1979
Appendix " E "
to Sinai p.16 note 33.
to Patriarch of Jerusalem p.16 note 33.
settlements by, and inftuence of, p. 8.
see Treaty of Alliance.
claims by Patriarch of, p. 12
invasion of, p. 12.
during Frankish period p.14 and note.
-Ottoman occupation pp.15-17 and note 33. privileges granted to, by Emperor Zeno p.12.
policy of Enosis p. 29 ; disapproval of London Conference p. 30 ; talks with Sir John Harding pp. 31-33 ; deportation to the Seychelles p. 33; non-acceptance of Radcliffe proposals p. 38 ; and of Macmillan Plan p. 40 ; the Zurich Agreement in the London Conference pp. 41-42; proposed amendments of the Constitution by, pp. 67-68 ; coup against p. 79.
p. 51 note.
of the Treaty of Guarantee pp. 59, 60, 80, 81.
Assizes of Cyprus
p.13 and note.
conquest by p.10.
pp. 28, 35, 50.
patron of Cyprus Church p.12 and note.
during Frankish period p.14 and note.
during Turkish occupation p.15.
of Kyrenia deported p. 33.
p.16 and note.
Foreign Secretary at the Geneva Conference p. 81
-attitude at the London five partite Conference p. 69 note.
Government's relinquishment of sovereignty of Cyprus p.41 note.
High Commission p. 67 n.
occupation of Cyprus pp.17 to 42.
-legal questions arising out of,18-25.
pp. 7 to 9.
p. 14 and note.
Church of Cyprus
autocephalous p. 12.
establishment of, p. 11.
privileges of, p. 12 and notes
Saints of, p. 11.
subordination of, to Latin Church p.14.
Turkish occupation, during pp. 15 to 17.
union of, by Evagoras p. IO
confederation of, p. 10.
Civil and criminal cases
composition of the Courts in p. 50
of Cyprus pp. 5-6.
pp. 44, 62
Greek, abolition of, pp. 68,76.
last Queen of Cyprus under the Lusignans, p.14.
Council of Europe
Cyprus as member of, 42.
European Commission of Human Rights ; see Human Rights.
Council of Ministers
composition and powers of, p. 46.
tripartite, of 1955 in London, p. 30.
at Zurich p. 40.
in London in 1959 p. 41.
fivepartite, in London in 1964 p. 69.
at Geneva in 1974 pp. 82, 83, 93.
during British occupation pp. 23 to 27.
proposed, in 1948 p. 28.
-at the London conference in 1955 pp. 34-31.
-during the talks with Sir John Harding in 1955-1956 pp. 31-33.
-by Radcliffe proposals pp. 34-37
-by Macmillan Plan pp. 38-39.
under the Zurich Agreement pp. 43.
of defensive alliance between Great Britain and Turkey p. 17.
Hague, p. 88.
Euiropean, of Human Rights p.p 88, 89.
historical survey pp. 7-18.
as a British colony pp. 26, 27, 56.
Republic of, p. 42.
member of U.N.O., Council of Europe and Commonwealth p. 42.
responsibility of guaranteeing Powers for, pp. 51, 52, 58, 59.
under Greek-Cypriot proposals pp. 114, 115.
-Turkish-Cypriot proposals p. 129.
veto in matters of, pp. 61, 62.
Memoirs of, pp. ?9, 30, 31, 33.
conquest by, p. 10.
policy of, 29.
excluded by Constitution p. 51.
by the Greek-Cypriot proposals p. 11:.
and by the Turkish-Cypriot proposals p.124.
plebiscite for, p. 29.
see Treaty of Establishment.
pp. I6,17, 30, 33, 40, 41, 42.
King of Salamis p.10.
during British occupation pp. 24, 25, 26.
proposed in 1947 p. 29.
federal states to-day pp. 96,106.
inapplicable under the conditions of Cyprus, pp. 36, 37, 94 to 98.
system of, proposed by-
Turkey and Turkish-Cypriots at Geneva 93, 94.
comments on, p. 94.
-by Greek-Cypriot side p.103 and Appendix I 106,107,108,109.
by Turkish-Cypriot side p.105, and Appendix II.
systems of, p. 95 to 99,
Foot, Sir Hugh
see Army, Police and Gendarmerie.
use of, under Article IV of Treaty of Guarantee pp. 59, 60, 80, 81.
legislation of, p. 13 and note 26.
see Human Rights.
appointed Mediator p. 70.
report of, pp. 70, 71, 78
of the United Nations,
pp. 38, 72, 86, 92 note 200, 99,110.
pp. 4, 5.
p.p. 3, 4.
constitutional proposals by, pp. 28 to 40.
guaranteeing Power pp. 51,52.
occupation of Cyprus by, pp. 17 to 42.
guaranteeing Power pp.51-52.
the triparite Conference in London (1955) p. 30,
the fivepartite Conference in London in 1964 p. 69,
Conference at Zurich and London in 1959, pp. 40-41,
at Geneva in 1974 pp. 82, 83.
recourse to United Nations on behalf of Greek-Cypriots pp. 30, 31.
colonists in Cyprus pp. 8, 9.
heroes in Cyprus p. 9.
support of Cyprus see under Greece.
majority of the population p. 6.
opposition to British constitutional proposals pp. 29, 30.
and by armed struggle p. 31, 38, 40.
position in constitutional structure of the Republic pp. 43-47.
proposals for constitutional solution pp.103 ,105 and Appendix I.
Changed proposals p. 116 Appendix V
observations on Turkish proposals 119
Appendix VII, and p. 123 Appendix X
see Treaty of Guarantee.
House of Representatives
composition of, p. 46.
decisions, how taken pp. 46, 47.
functions of, pp. 46, 47.
constitutional provisions for, p. 53.
European Commission of,
recourse to, by the Republic of Cyprus pp. 84, 88, 89,
European Convention of,
adopted by the Constitution p. 53.
violations of, by Turkey p. 88, 89,
principles of, pp. 56, 59, 60, 90, 92.
violations of, pp. 87, gg.
before the Turkish invasion pp. 72, 73, 77.
after the invasion pp. 99 to 101, 110.
evolution of, since p, 117-128
Makarios-Denktash guideline p. 111-112
Kyprianou-Denktash 10-points p. 124-125 and
Western framework p. 123-124 and
see Turkish invasion.
of Cyprus pp. 8, 9,10.
in Cyprus, p. 13.
K o i n o nK u p w
of the Republic p. 43.
Treaty of, p. 26.
pp. 23, 24, 26, to 28, 34, 39.
courts during British occupation p. 23.
proposed by Radcliffe p. 35.
under the Constitution pp. 48, 49, 50.
Independent judiciary p. 65.
Supreme Court reconstituted by amalgamation of Supreme Constitutional Court and High Court pp. 74, 75, 76.
rule of, pp. 65, 66.
Conferences of, see Conference.
Kingdom of, pp.13,14.
Kings, p.14 and note.
Plan pp. 38, 39, 40.
see Council of.
elections for, restored after War II p. 27.
separate, p. 44.
Republic without any p. 47-48.
period p. 7.
conquest and occupation pp. 14 to 37.
" toy ", for Cyprus p. 24.
adopted by Turkish-Cypriots as a counter balance to claim for Enosis pp. 51,52 excluded by -
Constitution p. 51.
the Greek-Cypriot proposals p.111.
the Turkish-Cypriot proposals p.124.
achieved however if Turkish-Cypriot proposals adopted p. 109.
support by Turkey for, p.p 78, 79
introduction of Christianity by, p. 11.
conquest by, p. 10.
in Cyprus p. 8, 9.
Cyprus under, p. 10.
and Gendarmerie, the security forces p. 51.
composition of, p. 51 note.
proposals of President as to, p. 68,
President of the Republic
election of, p. 44.
powers of, pp. 45, 46, 48, 50, 51.
proposals of President as to pp. 67, 68.
Proposals for the constitutional problem of Cyprus,
by Greek-Cypriot side pp.103,104 and
Appendix I pp.11-123.
by Turkish-Cypriot side pp.105-110 and
Appendix II pp.124-132, supplemented by,
Appendix III pp.133-134.
participation in, pp. 51, 61
proposals of President as to participation in p. 68.
Public Service Commission,
composition and functions, p. 51.
proposals of President as to, p. 68.
substituted by a new, after 1963 pp. 76, 77.
constitutional proposal; for Cyprus pp. 34-38.
Republic of Cyprus
established as a sovereign state p. 42.
member of U.N.O., Council of Europe and Commonwealth p. 42
still recognised as a sovereign state pp. 89, 90.
and its Government too pp. 77, 90-92.
Richard Coeur de Lion rule of, pp.12,13.
in Cyprus pp.10, I 1.
regarding Treaty of Guarantee p. 81 and note.
in Cyprus p.11.
establishment of by Teucer p. 8.
Evagoras King of, p. 10.
Secretary-Gcneral of the Uoited Nations
good offices of, pp. 72, 73, 99,100,110.
reports of, pp. 82 ,83.
resolutions of, pp. 69, 70, 72, 82-85, 89, 92 notes 200,100.
claim for its application to Cyprus pp. 29, 31, 39.
excluded by the Constitution pp. 5l, 54, 55 and
by both the Greek-Cypriot p.111 and the
Turkish-Cypriot proposals p.124.
over Cyprus during British occupation until 1925 pp.18 to 22.
of the Republic of Cyprus p. 64.
-under both the Greek-Cypriot p. I11 and the
Turkish-Cypriot proposals p.124.
of the Republic one and indivisible p. 51,
- Greek-Cypriot proposals pp. 111, 112,
Turkish- Cypriot proposals p. 124.
see Treaty of Alliance, Treaty of Guarantee, Treaty of Establishment.
Treaty of Alliance
abrogation of p. 60.
agreed at Zurich and included in the Constitution pp. 51, 52, 56.
validity of, p. 58.
Treaty of Guarantee
agreed at Zurich and included in the Constitution pp. 51, 52.
legal considerations in respect of, pp. 56 to 60, 80 to 82.
Treaty of Establishment
aims of, regarding Cyprus pp. 69, 78-79.
expulsion of Greek-Cypriots pp. 86, 87.
federal proposals by, p. 93.
prevention of refugees to return p. 54.
renunciation of any right by, over Cyprus pp. 26, 39.
support of Turkish-Cypriots pp. 30, 78-80, 82-83.
minority of the pupulation p. 30.
claiming equal participation in the administration pp. 25, 30, 36, 37.
- and even now under their constitutional proposals pp.105,108,124,125. position in constitutional structure of the Republic pp. 43-47.
proposals for constitutional solution pp.105-110 and
Appendix II pp.124 nad 1932.
supplemented by Appendix III pp.133,134.
subsequent p. ll8 and Appendix VI p. I20 and Appendix IX
pp. 77, 79, 80, 83, 86-98.
incidence of, on existence of the Republic and its Government pp. 89-90.
legal nature of, pp. 87-89.
violation of human rights by pp. 88-89.
conduct of during the capture of Cyprus p.15.
occupation by p.14.
final, of President and Vice-President of the Republic p. 45.
Vice-President of the House of Representatives
election of p. 46.
proposals regarding p. 67.
Vice-President of the Republic
election p. 44.
powers of 45, 46, 48, 50, 51.
privileges of Cyprus Church granted by Emperor, p.12.
Agreement p. 40.