(REVISED 1968)
What is the question of Cyprus


1.The question of Cyprus though perplexed by foreign interventions and made to appear as very involved and complicated nevertheless continues to remain very simple and crystal clear. The question is - do the purposes and principles of the Charter of the United Nations apply to the Republic of Cyprus as to any other member of the United Nations or not? If they do then a peaceful, democratic and just solution of the problem now facing Cyprus nac easily be found.

2.Cyprus the third largest island in the Mediterranean of an extent of 3,584 square miles continues to be inhabited predominantly by Greeks1) who own the greatest extent of land2) and bear the greater burden of public expenditure.3)

Cyprus through its long history was subjected to many conquerors (Assytians, Egyptians, Persians, Romans, Franks, Venetians, Turks and British) but she never lost and since the second millennium B.C., whem the first Greek colonist came to the island, has maintained throughout her Greek character.

As Palamas, the modern Greek, poet, says -

"though she changed many despots she has never changed her heart". This was frankly admitted by Mr. Harold Macmillan, when, as British Foreign Minister, in addressing on the 29th August, 1955, the Tripartite Conference on the Eastern Mediterranean and Cyprus in London stated that - "centuries of Hellenic culture, and they by inclusion in the East Roman and Byzantine Empires, have created undeniable links, which no one will deny, between Cyprus and the Greek world".4) By the Treaty of Defensive Alliance between Great Britain and Turkey of 1878 the latter assigned the island of Cyprus to be occupied nad administered by England. What was the then status of Cyprus in international law is a doubtful matter1) but that position was changed on the 5th November, 1914, when Great Britain annexed Cyprus and such annexation was recognized by Turkey in Article 20 of the Treaty of lausanne of 1923, under which - "Turkey hereby recognizes the annexation of Cyprus proclaimed by the British on the 5th November, 1914" without any reservation whatsoever.

Turkey by Article 16 of the same Treaty of Lausanne has renounced any right or title over Cyprus and by Article 27 of the same Treaty diversed itself of the exercise of any power or jurisdiction in political, legislative or administrative matter over the nationals of Cyprus.

In 1925 by Letters Patent of that year Cyprus became a Crown Colony and remained as such until the 16th August, 1960, when she was declared an independent state.

During the years Cyprus was a Crown Colony but mainly since 1931, when the then. Constitution was suspended following the disturbances in that year, she was administered on a monocratic system without any participation of representatives of the people in the government at a time when, especially after the Second World War, almost every dependent country either achieved independence or reached self government. This was admitted by Mr. Harold Macmillian in his aforesaid addredd when he said that -

"Nevertheless it is undoubted anomaly-and it is in our view wrong - that while so many other parts of the world have made steady progress in that act and practice of self-government, there has been no comparable advance in Cyprus."2) Against this lamentable state of affairs the Greek-Cypriots revolted in 1955 claiming the application to the people of Cyprus of the internationally recognized principle of self-determination which the British Government stubbornly resisted.3)

After four years of hard armed struggle an agreement was reached on the 11th February, 1959, at Zurich between the Greek and the Turkish Governments (in the absence on the Cypriots) laying down the basic structure of a new state, that of the Republic of Cyprus.




The Zurich and London Agreements, the Constitution
and the Treaties.

3.The Agreement reached at Zurich was subsequently on the 19th February, 1959, oncorporated in the London Agreement1) signed by the Foreign Ministers of Great Britain Greece and Turkey and Archbishop Makarios on behalf of the Greek-Cypriot Community and Dr. Kuchuk on behalf of the Turkish-Cypriot Community.

As rightly observed by Archbishop Makarios -

"These Agreements, however, have not been the result of the free expresion of the will of the people of Cyprus. They were imposed upon them from outside. rejection of the Agreements would have mean denial of independence and increased bloodshed".2) The Constitution of the Republic was based on those two Agreements. The Joint Constitutional Commission established under the London Agreement for completing a draft of such constitution had strict terms of reference in its work to "have regard to and scrupulously observe the points contained in the documents of the Zurich Conference and fulfil its task in accordance with the principles tehre laid down".3)

The Constitution so drafted was signed on the 16th August, 1960 by the then Governor of Cyprus on behalf of the British Government, by representatives of the Governments of Greece and Turkey, by Archbishop Makarios on behalf of the Greek Community and Dr. Kuchuk on behalf of the Turkish Community and was put into force on that date.4)

At the same time three Treaties were signed by the same parties the Treaty of Establishment of the Republic of Cyprus Bteween Great Britain, Greece, 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. All these Treaties were put into force on the same date.

Cyprus was declared as an independent sovereign republic on the 16th August, 1960, when its Constitution came into force.5)


Neture of the Constitution



4.It follows from the above that the Constitution has not emanated from the free will of the people of Cyprus who had no opportunity either directly or through their ad hoc elected representatives to express an opinion thereon but it has been imposed upon them.

Such a course could be followed in the monarchical practice of past centuries when the monarch was granting a constitution to his people1) but cannot be adopted in the middle of the twentieth century when it is universally accepted that the constituent power vests in the people.2)


Constitution offends against democratic principles and principles and purposes of Charter of United Nations.

5.But what is worst is that the constitutional structure so imposed was declared to be unalterable by any means3) no matter how unworkable and how obstructive and inhurious to the normal functioning and development on the state were proved to be.

This is contrary to the accepted doctrines of public law and to current constitutional practice and flagrantly offends against the principles and purposes of the Charter of the United Nations.

Since the time of the French Revolution the right of the people to revise and alter their constitution has not been challenged.

Article 28 of the Second French Declaration expressly provided that "the people has always the right to revise, from and alter their constitution. One generation cannot subject to their laws subsequent generations".

And though special constitutional procedure may be provided for a revision or amendment of the Constitution4) nevertheless an absolute immutability thereof from a political point of view is an absurdity5) and it cannot be reconciled with the movement of life.6)

The right of the people to determine their own political status and form of government1) and purpose their economic, social and cultural development without any foreign interference or restrictions is recognized as a fundamental right by the Charter and the various resolutions of the General Assembly of the United Nations.

Thus under Article 1.2. of the Charter one of the purpose of the United Nations is -

"to develop friendly relations among nations based on respect for the principle of equal right and self-determination of the peoples ...". Also under Article 55 of the Charter "which a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples ..." the United Nations shall promote the purposes therein set out.

Self-determination has been recognized from the outset as one of the a fundamental right at various sessions2) and had defined it when approving article 1 of the draft international covenant of human rights.3)

The General Assembly had already recognized self-determination as a fundamental right at various sessions and had defined it when approving article 1 of the draft international covenant of human rights.

As pointed out by Kelsen4) though-self determination usually designates a principle of internal policy-the principle of democratic government-nevertheless in the context of paragraph 2 of Article 1, where it is linked with the relations of states, it connotes sovereignty.

Finally it has been adopted by Article 1 of the International Covenant on Economic, Social and Cultural Rights of the United Nations of the 16th December, 1967.5)

This fundamental right of self-determination is denied both to the people1) and the Republic of Cyprus by Article 182.1 of the Constitution (based on point 27 of the Zurich Agreement) whereby the constitutional order and structure created thereby being declared to be immutable for ever the people of Cyprus is deprived of this right to determine their own political status and future and Republic of Cyprus is precluded from exercising its sovereign rights within its own territory.

Independence and territorial supremacy are recognized and protected qualities of every state as an international person.2)


Treaty of Guarantee offends against principles and
purposes of the Charter.

6.Though the Republic of Cyprus was established by section 1 of the Cyprus Act, 1960, as an independent sovereign state and in spite of the provisions of Article 1 of its Constitution that "the state of Cyprus is an independent and sovereign Republic" nevertheless its independence is materially impaired and almost destroyed not only by the aforecited provision of Article 182.13) of the Constitution but also by the provisions of the Treaty of Guarantee and especially by its Article 1 whereby the Republic undertook to ensure respect for its Constitution and the state of affairs created thereby and by Article IV of the same Treaty by which the Guaranteeing Powers reserved the right to take action in case of disturbance of such state of affairs for the purpose of its restoration.

That Treaty was given constitutional force by Article 181 of the Constitution (based on point 21 of the Zurich Agreement) which was declared to be basic Article and therefore unalterable.

By the obligation of the Treaty to keep unalterable in perpetuity the constitutional structure and order imposed upon her the Republic of Cyprus is subjected to the will of the Guaranteeing Powers and is deprived of one of the prerequisite qualities of a state as an international person that of the internal independence and territorial supremacy.

"In consequence of its internal independence and territorial integrity" says Oppenheim-Lauterpacht (op. cit. p. 87) "a State can adopt any constitution it likes, arrange its administration in any way it thinks fit, enact such laws as it pleases, organize its forces on land and sea, build and pull down fortresses and opt for any commercial policy it like and so on".

By the provision of that Treaty the constituent power in the Republic instead of being vested in her people is practically removed to the Guaranteeing Powers.

"So long as in principle" says the late Professor Svolos "the Constitution cannot emanate otherwise than from the will of the bearer of the constituent power - and this is in every state its people - whenever by an international treaty the Constitution of any country is determined either wholly or basically by such treaty or the Constitution is submitted to the prior approval of organs of a foreign state acting in the performance of international treaties then there is a dependence of such state, to a greater or lesser extent, on a foreign power or generally there is a restriction of its independence."1)

The provisions of that Treaty cannot be supported as reasonable restrictions of independence usually undertaken by international conventions freely entered into by, and not imposed on, a state2) as rhey not only restrict but practically destroy the independence of the state of Cyprus.

The Treaty of Guarantee unlike similar treaties3) laying as it does the unprecedented obligation on the state of Cyprus to keep unaltered and immutable the constitutional structure imposed upon her clashes with the principle of equality of states prevailing in customary international law4) 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 paragraph 2 and 55 (providing for the principle "of equal rights and self-determination") and Article 2, paragraph 1 and 78 (providing for the principle of "sovereign equality").

It also conflicts with another principle of customary international law that of absention (principle d'absention) in the domestic affairs of a state5) 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 well.6)

Such provisions of the Treaty of Guarantee conflicting with customary international law which is jus cogens cannot be valid. And since the Republic of Cyprus 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.1) A State cannot contract out of her obligations under customary international law or under the Charter or in a manner derogatory from them.2)


Constitutional structure against democratic principles and thwarting running and development of the State.

7.The constitutional structure created by the Zurich Agreement is not only contrary to the prevailing democratic principles and the purposes of the United Nations but owing to its dividing and negative elements thwarts the running and development of the State.

In spite of its small numerical strength, its law percentage of landowning and its very small contribution to the public expenditure and contrary to tje prevailing democratic principles the Turkish minority apart from having its minority rights fully safeguarded by the Constitution3) was put on the same level with regard to the exercise of the political power in the state with the Greek majority and in many respects even in a better position as it was given the means to override the will of the majority.

That was the thesis supported by the late Zorlu at the aforesaid London Tripartite Conference:

"... it must be borne in mind" he said "that on such panel of land where live two different communities who vary in so many ways the guiding principle should not be the consideration of majorities and minorities but rather the granting of full equality to the two groups"4) Same claims were put forward by the representatives of the Turkish community (apparently at the instigation of Ankara) to Lord Radcliffe, when as Constitutional Commissioner in 1956 was dealing with the Cyprus Question.

Lord Radcliffe dealt with such claims in paragraph 27 to 29 of his Constitutional Proposals for Cyprus5) and it would be very interesting to set them out 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 any lack of respect for the misgivings that lie behind it. But this is a claim by 18 per cent of a population to share political power equality with 80 per cent, 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 consistent 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 the creation of such political equilibrium will be effective to protect the essential interests of the community from oppression by the weight of the majority. I do not feel that I can stand firmly on either of these propositions.

28. The first embodies the idea of a federation rather than a unitary State. If would be natural enough to accord to members of a federation equality of 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 of territorial separation between the two communities and, apart from pther objections, federation of communities which does not involve also federation of territories seems to me a very difficult 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 organization and nothing else, I dind myself baffled 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, which the frustation 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 positions as between the two communities, I have already excluded by what I have said above. I do not think that ot 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 interests 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 effective means of securing the smaller communities in the possession of their essential special interests. Not only do I think that it can be equipped which such means by placing those interests under the protection of independent tribunals with appropiate powers and relying only to limited extent on direct political devices, but I 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."

Nevertheless by the Agreement of Zurich the Turkish view prevailed and under the Constitution based thereon the people of Cyprus is deemed to consist of only two communities, the Greek and the Turkish, standing on an equal level and on this division of the people the whole constitutional structure is based and the constitutional machinery is working.

The Greek Community elects the President of the Republic and 35 out of the 50 members of the House of Representatives and the Turkish Community elects the Vice-President of the Republic and 15 members of the House of Representatives.

No regard is being had to the other minorities, (the Armenians, the Maronites, the British and others constituting the 4.2% of the population) which are not even recognized as minorities but only as religious groups having to be amalgamated, for the purpose of the exercise of their political rights which one of two Communities. This creates an unfavourable discrimination against such minorities and is contrary to the principles and purposes of the United Nations.1)

In the Constitution of all the other organs of the State the Turkish Community participates quite disproportionately to the numerical strength of its population.

The Constitutional Court which had power, to nullify laws and decisions of the legislature and of the executive consisted of one Greek and one Turkish member with a neutral President. The High Court consisted of two Greek and one Turkish judge with a neutral President having two votes. Now both Courts were amalgamated into one, the senior member thereof, who was then a Turk, being its President.2) In all high offices of the State (such as the Attorney-General of the Republic, the Auditor-General, the Accountant-General, the Governor of the Issuing Bank the Commanders of the Army and of the Security Forces) if the head belong to the one Community the deputy should belong to the other Community.

In the public service and the security forces of the Republic 30% and in the Army 40% had to be reserved for the Turkish Community.3)

The Public Service Commission consisted of seven Greeks and three Turks but could not take any decision relating to a Turk (even if voted by the majority of the Commission that is so say eight members thereof) without the consent of at least two out of the three of its Turkish members.

Now by the Public Service Law 1967 the Public Service Commission consists of five members who should be citizens of the Republic irrespective of whether they are Greeks or Turks.

The separatist element prevails also with the administration of justice. Though the system of capitulations1) became absolete even in Turkey, the country of its origin, it had been re-introduced in the Republic of Cyprus. No court can try a Greek or a Turk unless it consists of members of his own Community. This dichotomy of justice, apart from all its other drawbacks, undermines the very conception of justice which should not only be administered but appear as being administered impartially without fear or favour and free from any communal considerations.

The Council of Ministers, the highest executive organ in the state consisted of seven Greek and three Turkish Ministers, one of the key Ministries, i.e. those of Foreign Affairs, Defence or Finance, having to be held by a Turk.

This privileged treatment of the Turkish minority regarding its participation in the exercise of the political power affords it the means not only of overriding the will of the majority but also of hampering the smooth government of the country.

In as much as under Article 78.2 of the Constitution any modification of the Electoral Law and the adoption of any Law relating to municipalities or of any Law imposing duties or taxes require a separate simple majority of the members of the House of Representatives elected by the Greek and the Turkish communities respectively taking part in the vote, 8 Turkish members only may defeat a Law voted by 42 members (that is to say 35 Greeks and 7 Turkish members) or even only 2 Turkish members (out of the present and voting) may defeat a Law voted by 36 members (that is to say 35 Greeks and 1 Turks).2)

The Turkish Vice-President has the same political powers as the President of the Republic which he exercises either jointly with him (such as the promulgation of Laws, appointments of high officials, etc.) or separately such as the right of final or absolute veto1) against Laws or decisions of the House of Representatives or decisions of the Council of Ministers relating to foreigh affairs, security or defence.

Instead of uniting the Constitution separate. The institution of the municipalities has been in existence since 1882 and the functioned very satisfactorily. Nevertheless provision was made in the Constitution that in the five out of the six main town in Cyprus separate municipalities shall be created.

Another separatist feature of the Constitution is the existence of two Communal Chambers, one for the Greek2) and another for the Turkish Community having legislative and executive competence on matters of religion, education, cultural affairs and personal status of members of their respective community and power to impose taxation on them in the form of personal taxes.3)

The constitutional order thus created not only adopts a minority rule and promotes an unprecedented4) discrimination in favour of the Turkish minority but contains the seeds of intercommunal friction. The various organs of the State became rather communal minded and they were under the erroneous belif that in the exercise of their state functions they had to look primarily to the interest of their. Community than the interest of the State and of the people as a whole. Hence a spirit of suspicion was created and the spirit of goodwill and co-operation was destroyed.

As a result the smooth running of the State has been afttered and its administration in some sectors has come to a standstill.5)


Constitutional arrangements threat to international
peace and security


8.The constitutional arrangements thus imposed on the Republic of Cyprus are not only unworkable in many respects rendering the functioning of state services almost impossible but they are apt to create situations endangering the peace and security in the area.

As already stated part and parcel of such arrangements were the two Treaties, that of Guarantee and that of Alliance, which were imposed on the Republic bu point 21 of the Zurich Agreement and given constitutional force by Article 181 of the Constitution which is one its Basic Articles and therefore unalterable.

I have already dealt with the Treaty of Guarantee. By the Treaty of Alliance the Republic was compelled to accept the stationing on its territory of Greek and Turkish forces for the ostensible purpose of assisting in the resistance of any "attack or aggression, direct or indirect, directed against the independence or the territorial integrity of the Republic" (Article II) which includes also "any internal subversive activities directed against the independence and the territolial integrity of the Republic of Cyprus" (Article III of the Agreement for the Application of the Treaty of Alliance).

The Turkish forces, however, instead of fulfilling the purpose for which they were allowed to come to Cyprus they have been the instrument of aggressive acts against the Republic and of encouragement of subversive activities against its independence and territorial integrity.1)

The President of the Republic by his letter of the 4th April, 1964, informed the Turkish Prime Minister that the Government of the Republic was compelled to consider the Treaty of Alliance as terminated in consequence of violation by Turks of the Treaty in its esseence.2)

In spite of such abrogation Turkey continued the aggressive acts which led to the termination of the Treaty and particularly she still continues to have her contingent on the territory of the Republic against the provisions of the Treaty giving aid and encouragement of the republic and its terrirorial integrity.

The treaty of Guarantee, on the other hand, gave the opportunity to Turkey not only to put forward unfounded1) claims of right of armed intervention in Cyprus but of committing actual acts of aggression against the Republic2) which culminated in the collous, and murderous bombing of hospitals, schools and innocent unarmed civilian population in August, 1964, especially with various sort of illegal weapons in contravention of Article 16, 18, 20 and 21 of the Geneva Convention Relative to the Protection of Civilian Persons in time of War of the 12th August, 1949 to which Turkey is a party.3)




1.The events after the 21st December 1963, which followed certain proposals of Archbishop Makarios for a revision of the Constitution so as to render it workable, are so well known as not need reiteration.

As a result of those events the Security Council has on more than one occasion dealt with various questions arising thereftom which would have endangered international peace in the neighbourhood. Under its decision of the 4th March 1964, a Peacekeeping Force was created which has commenced operational duties since the 27th March, 1964 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 Cyprus as a whole ..." As first Mediator was appointed the late Finnish diplomat Sakari S. Tuomioja, whose untimely death Cyprus has moutned and lamented, and after his death Dr. Galo Plaza was designated, wirh the concurrence of the Governments of the Republic of Cyprus, greece and Turkey as Mediator in succession of the late Sakari Tuomioja.

Dr. Plaza submitted on the 26th March, 19651) his report to be Secretary-General of the United Nations. After the submission of that Report the Turkish Government declared that she is not considering Dr. Plaza as Mediator aby more.


Partition the only aim of Turkey and Turkish
Cypriot leadership


2.The aim of the Turkish Government and of the Turkish Cupriot leadership has been from the very beginning the partition of the island.2)

"The Turkish-Cypriot community holds firmly to its previous position" says Dr. Plaza "and in particular continues to insist on a solution based on geographical separation of the two communities under a federal system of Government".3)

With regard to the Turkish Government Dr. Plaza says "that the proposal for geographical separation of the two communities under a federal system of fovernment remains essentially the same as the plan previously submitted by it and the Turkish-Cypriot leadership".4)

I had the opportunity in my article on the Constitutional problem of Cyprus to explain why the solution of partition is either feasible non beneficial to the people of Cyprus as a whole. Without reiterating all the arguments therein set out I may point out that the Turkish region claimed by Turkey and Turkish Cypriot leadership comprised the northern part of the island starting from somewhere near the Chrysochou bay, passing through what is called the Turkish sector of Nicosia and ending to what is called the Turkish sector of Famagusta.

In this way they claim an area of 1.292 square miles in extent that is to say 32.6% of the total area of the island. Within that area land, (to the exclusion of Government-owned land such as forests and unoccupied land) is owned 80.4% by Greeks, 18.9% by Turks and 0.7% by others. It should be noted that the whole land owning throught the island by Turks amount to only 16.6% and within that area are included the fertile Mesaoria plain, the Morphou, Lefka and Lapithos orchards, the olive groves of Kvrenia and Famagusta districts, the Kythrea and Lapithos springs, the Famagusta harbour, the Skouriotissa and Mavrovouni mines, many sites of archeological interest and most of the existing or potential sea-resorts all of which contribute substantially to the economy of said island.

Within that area there are 114 Greek villages with a population of 86.944 (out of the 392 Greek villages of the whole island), 53 Turkish villages with a population of 18,028 (out of 120 Turkish villages of the whole island) and 49 mixed villages with a population of 46,524 Greeks and 41,314 Turks) put of 113 mixed villages of the whole island). Thus 69.21% of Greeks will be included in that area as against 30.8% Turks.

The total arable land of Cyprus is 595,200 donums, out of which 359,500 donmus will be in the Turkish region that is to say 60.4 and only 39.6% will be left for the Greeks.1)

Turkey was looking on Cyprus for its own interests and not only for the protection on Turkish Cypriots. Mr. Erkin, the then Turkish Foreign Minister declared at the London Conference on the 16th January, 1964, after reffering to the geographical position of Cyprus, that -

"All these considerations clearly demonstrate that Cyprus has a vital importance for Turkey not merely because of the existence of a Turkish community in the island, but also on account of its geo-strategic bearing." In an island having intermixed population for such a scheme it would be necessary to have compulsory movement and resettlement of Greek and Turkish population and exchange or compulsory acquisition of their properties. It would be necessary to resettle 133,000 Greeks who in effect would be compulsorily displaced whilst only 45,000 would be removed. Many of the Greek villages in the region claimed by the Turks such as Morphou, Kythrea, Lapithos, Karavas, Lefkoniko, Tricomo, Yialousa, Rizokarpasso are in effect small towns both in population and development. No comparable Turkish villages are in the region that would be evacuated by the Turks.

A scheme of removal and resettlement of population on such a scale is not an easy matter and will encounter unsurmontable physical, financial and other difficulties.2) Thousands of new houses will have to be built with new schools, new places of worship, new cemeteries, new roads, new or additional water supplies and with all facilities and conveniences which a rising standatd of modern living nowadays requires.

The result could be that the proposed scheme would lead tounnecessary expenditure and the uprooting of people from their homes would result in immense hardship and human misery.3)




3.Closey linked with the question of partition is the claim now put forward by the Rurks for federation.

The term "federation" is used in relation to states or other comprehensive political organizations of a territorial character. No political power can be exercised except on people within a certain territory.1) Usually we speak about "federation" from the point in internal law and federation from the point of international law2) but in either case the territorial character should exist.

In modern times, however, another from of federation has been developed which may be termed as functional federalism in contraction to the classical political federalism.3)

It is obvious that the Turkish proposal could not refer to any such functional federalism4) but only to a political federalism. But so long as there are no contact purely Turkish regions in the Island (in spite of the efforts of the Turkish leadership to create ones by the compulsory movement of populations) it follows that no such political federation couls be created without a particion of the island and compulsory movement of population.

As. Dr. Plaza quite rightly observes in his Report "what is involved is not merely to establish a federal form of Government but also to secure the geographical separation of the two communities. The establishment of a federal regime requires a territorial basis and this basis does not exist".5)

So the claim for federation is disguised claim for partition and instead of being a unifying factor6) it will undoubtedly breed divisions.

But in such a case and apart all other drawbacks there will be constant friction between the two regions. An economic nationalism will develop with consequent wasteful duplication of economic activities and administrative services, narrawing of the market and gradual decline. "The proposed federated States" says Dr. Plaza in his Report. "would be separated by an artificial line cutting through independent parts of homogeneous areas including, according to the Turkish Cypriot proposals, the cities of Famagusta and Nicosia. Would not such a line of division constitute a constant cause of friction between two mutually suspicious populations?".1)

But apart from the fact that partition is not feasible it is also against the principles and the purposes of the United Nations.2) It is also against the resolution of the Security Council of the 4th March, 1964, and subsequent resolutions as it totally destroys not only the sovereignty but the very existence of the state of Cyprus and does not service the well-being of its people as a whole.

The Mediator of the United Nations arrived at the same conclusion.

"... if the purpose of a settlement of the Cyprus question is to be the preservation rather than the destruction of the State," says Dr. Plaza, "and if it is to foster rather than to militate against the development of a peacefull united people, I cannot help wondering whether the physical division of the minority from the majority should not be considered a desperate step in the wrong direction".3)

4. The position maintened by the Government of the Republic of Cyprus on the other hand is clear and straicht-forward. The Republic of Cyprus since the 20th September, 1960 has been admitted as a Member of the United Nations. She claims, therefore, that the principles and purposes of the Charter of the United nations be applied to thr as to any other Member.

She claims to have sovereign equality as any Member (under Articles 2.1. and 78 of the Charter). Any fetter to her socereign independence should, therefore, be considered as non-existent. She claims the right of equality and self-obstacle for the exercise of that right.

Such claims are not only consistent and in line with the principles and purposed of the Charter but are also in conformity with the Security Council's aforementioned resolutions. They do not aim at the obliteration of the present state by partition or federation but on the country they tend to have its proper status recognized. The well-being of the people of Cyprus as a whole is promoted and no hardship and misery is to be brought upon them by divisions and fragmentations.


Recourse to General Assembly
1.With such diametrically opposite views the Republic of Cyprus had no other alternative but to bring the matter, as soon as possible for the avoidance of any further procrastination, before the General Assembly of the United nations, as "a town meeting of the world" the "open conscience of Humanity" that is to say as a deliberative and criticising organ.4) The combined effect of Articles 10, 11.2, 14 and 33 of the Charter is that the United Nations General Assembly has competence to discuss and make recommendations on any question or any matters within the scope of the Charter or relating to the maintenance of international peace and security or which it deems likely to impair the general welfare or friendly relations amongs nations, including situations resulting from a violation of the Charter setting forth the purposes and principles of the United Nations. As Kelsen observes1) -

"Since the Charter determines a purpose of the United Nations to maintain and restore international peace and security by preventive and representive measures (preamble Articles 1 and 2) there is hardly any international matter which the Assembly is not competent to discuss and on which it is not competent to make recommandations."

The only restriction to making any such recommendation2) is the pendancy of the same question or matter before the Security Council.

The question or matter with which the General Assembly was invoked to deal with related to the situation created in Cyprus as a result of the flagrant contravention of the principles and purposes of the Charter of the United Nations and of the constitutional structure and other imposed on the sovereign Republic of Cyprus which threatened international peace and security and was likely to impair the general welfare or friendly relations amongst nations. It was with respect to this situation that the General Assembly was invoked to make recommendations.

The question or matter before the Security Council was quite different. It related to the ceasefire, the avoidance of any action tending to worsen the already bad situation in Cyprus and the creation of a United Nations Peace-keeping Force for the purpose of preventing a recurrence of fighting and contributing to the restoration of order and return to normality.

By the recommendation of the Security Council for the appointment of a Mediator for the purpose of finding an agreed political solution of the problem of Cyprus is proved that the Security Council was not dealing with the political aspect of the matter which was later brought before the General Assembly of the United Nations.

As point out by Kelsen (ubi supra) the competence of the General Assembly is of a political and not legal nature. As rightly maintened before the General Assembly at its Twelfth Session.3)

"The General Assembly should avoid the danger of attributing primary importance to the juridical elements of the problem. The suggestion that the question should be referred to the International Court of Justice was unacceptable because the problem of independence of preples, their sovereignty and their right to self-determination could not be settled in the courts." Furthremore it cannot ne maintained that the recourse to the United Nations General Assembly was premature in view of Article 33 of the Charter as all the means for seeking a peaceful solution provided therein had been exhausted and proved nugatory. On the contrary deferring to bring the matter before the General Assembly would have disastrous effects.


Alleged treaty obligations no bar


2.An argument is often put forward, especially by Turkey, that the constitutional structure and order of Cyprus has been the outcome of international treaties and cannot be interfered with without offending against the principle of respect for the obligations arising from treaties proclaimed by paragraph 3 of the Preamble to the Charter.

No one dispute that a valid treaty obligation should always be respected until revised or abrogated through the lawful means. But what about a treaty obligation which offends either against international law which is jus cogens or against the provisions and purposes of the Charter? Such an obligation is invalid.

"Thus a treaty is not binding" has said Hall since 1924 before the establishment of the United Nations (International Law 8th p. 383) "which has fot its object the subjugation of partition of a country, unless the existence of the latter is wholly incompatible with the general security."

The Second Report on the Law of Treaties by Sir Hamphrey Waldock (A/CN4 156 of the 20th March, 1963) in Article 13 deals with Treaties Void for illegality as follows: -

"1. A treaty is contrary to international law and void if its object or its execution involves the infringement of a general rule or principle of international law having the character of jus cogens.

2. In particular a treaty is contrary to international law and void if its or execution involves -

a)the use or threat of force in contravention of the principles of the Charter of the United Nations;


a)any act or omission characterised by international law as an international crime;

b)any act or omission in the suppression or punishment of which every State is required by international law to co-operate."

Furthmore Aricle 50 of the Draft of the report of the International Law Commission on its 18th Session 4 May - 19 July, 1966 provides that "A treaty is void if it conflicts with a peremtory norm of international law from which no derogation is permitted and which can be modified only by subsequent norm of general international law having the same effect" and cf. the comments thereon at pages 76-77.

So long as an obligation purported to be undertaken under a treaty is either contrary to international law which is jus cogens or inconsistent with an obligation under the Charter of the United Nations (cf. Article 103) it is not a valid obligation with regard to which respect is due under the aforecited paragraph of the Preamble.

The treaties contemplated in that paragraph are treaties of such a nature as to be a source of international law.1)

As already explained the obligations referred to above of the treaties in question are invalid as they are contrary to international law which is jus cogens and are also inconsistent with the obligations under the Charter of the United Nations.2)


General Assembly not precluded from considering
revision of treaties
2.Even if we assume that the obligations under the treaties in question are valid and binding on the parties there is nothing precluding the general Assembly from considering them fot the purpose of making recommendations for their revision.

The phrase "peaceful adjustment of any situation regardless of origin" occurring in Article 14 should not be taken to mean that the subject of treaty revision was foreclosed to the Assembly.

"If treaties give rise to a situation which the Assembly deemed likely to impair the general welfare or friendly relations of the nations" said the delegate of the United States at the 17th meeting of Committee II, 2 "it could make recommendations in respect of those situations".3) As observed by Kelsen4) "such recommendations may be made by the General Assembly not only under Article 14 but also under Article 10, since recommendations to revise a treaty which give rise to a situation which is likely to impaie the general welfare or friendly relations amongst nations amounts to the adjustment of a situation which - in the first instance - might lead to a breach of the peace. This is a "Purpose" of the United Nations. Hence a recommendation to revise the treaty refers to a matter within the scope of the United nations."

And then after observing that the revision of the treaties is not oncompatible with the principle of respect for treaties expressly stipulated in the preamble of the Charter he concludes that -

"If is fully compatible with the principle of respect for treaties even if it confers upon an international agency the legal power to abrogate a treaty without the consent of all the contracting parties that is to say a genuine legislative function".5)


Republic of Cyprus's claims


The republic of Cyprus resorted to the General Assembly as the proper forum to consider its problem and make recommendations for its proper solution. She claimed that the principles and purposes of the United Nations be applied to her in the same manner as they apply to any other Member of the United Nations. She claimed sovereign equality which all other Members and that the principle of equal rights and self-determination be applied to her and people all sections interventions and influences calculated to promote alien interests succeeded to instill discord and division. She claimed a democratic solution of her problem whereby the majority would govern and the rights of the minorities1) shall be fully safeguarded and protected and by which the well-being of her people as a whole and not divided into communities shall be served and that any foreigh intervention which her domestic affairs be stayed. She claimed that all causes creating friction and discontent and constituting a danger to international peace and security be removed and that the Members of the United Nations, who in defiance of their obligations under the Charter proceed to actions tending to worsen the situation in the sovereign Republic of Cyprus, desist from any such action. She finally claimed that she may be enabled to exercise her sovereign rights within her own territory unrestricted by any fetters imposed upon her and that her people may be free to determine their own political status, cultural, economic and other relations and generally their own future.


Resolution of the General Assembly of the United Nations


The General Assembly of the United nations on the 18th December 1965 by 47 votes against 5 with 54 absentions 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 paragraph 1 and 4, to respect the sovereignty, unity, independence and territorial integrity of the Republic of Cyprus and to refrain from any intervention against it.


Present Prospects


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 violation of the airspace of the Republic by Turkish planes.

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 it is hoped that the parties will avail of this climate so as to reach a peaceful solution based on true democratic principles consistent with the requirements of justice.




An analyst of the Treaty and the reasons that led to its termination in the right of International law.

The treaty of Alliance together with its two Protocols was made between the Republic of Cyprus, the Kingdom of Greece and the Republic of Turkey and signed in the early hours of the 16th August, 1960, at the same time when the Constitution of the Republic of Cyprus was signed and the Republic came into being as an independent sovereign state.

By its Article II -

"The High Contracting Parties undertake to resist any attack or aggression, direct of indirect, directed against the independence for the territorial integrity of the Republic of Cyprus." For the purpose of this alliance and in order to achieve the object mentioned above, a Tripartite Headquarters was to be established on the territory of the Republic (Article III) to which greece will participate by a contingent of 950 officers, non-commissioned officers and men and Turkey will participate by a contingent of 650 officers, non-commissioned officers and men (cf. Article IV and paragraph I of Additional Protocol I). The said contingents shall provide for the training of the Army of the republic of Cyprus (cf. Article IV second paragraph).

The command of the Tripartite Headquarters shall assumed in rotation for a period of one year each by a Cypriot, a Greek and Turkish General Officer appointed by the Governments of Cyprus, Greece and Turkey.

On the same date and almost simultaneously an Agreement between the Republic of Cyprus, the Kingdom of Greeke and the Republic of Turkey for the Application of the Treaty of Alliance was signed and came into force (as contemplated by paragraph III of its Additional protocol No. 1) for the purpose of defining the participating in the Tripartite Headquarters, their juridical status, facilities and exemptions in respect of customs and taxes as well as other immunities and privileges and exemptions in respect of customs and taxes as well as other immunities and privileges and other military and technical questions concerning the organization and operation of the Headerquarters.

It is obvious, from the above provisions of the Treaty of Alliance coupled with the relevant provisions of the Agreement for the Application that the purpose of the Greek and the Turkish forces on the territory of the Republic was twofold, that is to say, to repel, subject to the conditions laid down in the Agreement, an attack1) against the Republic and to train its Army.

For dealing with any subversive activities the authorities of the Republic shall be primarly responsable1) and intervention of any of the Greek and the Turkish Forces can be made only under the Operational Command2) of the Tripartite Headquartets and upon a decision of the Committee of Ministers of the Republic, Greece and Turkey3) and always in consultation with the appropiate authorities of the Republic.4) Similar provisions apply in the case of an external attack.5)

The Turkish forces shall be garrisoned in ther designated site which should be within the Nicosia town area6) as near to the Greek forces stationed in the Republic as possible and within a radius of five miles.7) They cannot be redeployed therefrom except where the intervention of the Tripartite Headquarters would be necessary in the event of a direct or indirect attack, as explained above,8) whereupon they will be under the Operational Command of and Tripartite Headquarters and subject to the conditions laid down in Article V as explained above (one of which is that in all cases of intervention there would be consultations with the appropiate Authorities of the Republic).

The detailed conditions under which the training of the Army of the Republic is to be made are laid down in Annex D to the Agreement but they have no bearing on the matter we are now dealing with as the deployment of the Turkish contingent was not made in a purposed exercise of its powers for this purpose.

From the combined effect of the provisions of Article V.2 and 4,9) Article VI.2 (d)10) Article VIII.1 (h),11) and Annex C Article VII.10 and Article IX.3 it follows that no movement of the Greek or Turkish troops could be made, without the authority of the Operational Command, subject to the authorization of the Committee of Ministers and the concurrence of the appropiate authorities of the Republic.


Doubts as to the validity of the Treaty


Though there may be arguments in support of the proposition that the Treaty of Alliance was not validy made on behalf of the Republic as at the time of the making and the singing of the Treaty the Republic of Cyprus was not yet in existence and the President and the Vice-President of the Republic (who signed the Treaty and the Agreement on behalf of the Republic) had not yet been invested in accordance with Article 42 of the Constitution, not the treaty making power was vested in them under Article 169 of the Constitution, nevertheless it will be assumed for the purpose of this article, and especially in view of Article 195 of the Constitution, that such Treaty and Agreement were properly made and are binding on the Republic.

Also for the same purpose the question of how far that Treaty, as part of the whole scheme which was imposed on the people of Cyprus without giving them the opportunity of expressing their view thereon is not canvassed.

Furthmore, the form and context of the Treaty, the circumstances under which it was made and signed and its inclusion in the Constitution itself to which is annexed as Annex II may suggest that the requirement of ratification was intended to be dispensed with.1)


Duration of the Treaty

No provision is made in the Treaty of Alliance and Consequentially in its ancillary Agreement about their duration.

It may be put forward that in the absence of any express provision as to its duration and so long as it is not subject to denunciation or withdrawal the Treaty of Alliance shall be presumed to be of perpetual duration and incapable of unilateral termination. In support of that view reference could be made to the fact that Treaty was part and parcel of the whole scheme on which the Constitution of Cyprus was based and for this purpose it has been included as a part thereof2) and was given constitutional force.3)

But in the rapidly changing conditions of our time and viewing expecially the circumstances under which the Treaty of Alliance was made and its very nature it could ne argued that it was not intended to last for ever.

And in this respect it may be pertinent to refer to what the Turkish Foreign Office wrote in the course of correspondence concerning the Turkish attempt in 1914 to abrogate by unilateral decree the extraterritorial rights enjoyed by foreign nations under treaty and custom.

"The Sublime Porte", wrote the Turkish Foreign Office "has, like every state the right to denounce, at any time, international acts concluded without stipulations of duration.

In effect, no treaty can contain provision which should perpetuate themselves to eternity when they deal with matters of commerce, or organization, and of juridical procedure or administration, which evidently should be submitted to the evolution of time.

The Imperial Government has all the more undeniable the right to avail itself on the faculty of denouncing which belongs to it, since the regime of Capitulations, obsolete and no longer responding to modern needs ... threatens its own existence and renders very difficult the conduct of Ottoman public affairs."1)

Of course such a principle is not accepted in international law. But according to the prevailing international practice in certain types of treaties it would be unsafe to draw the conclusion from the mere silence of the parties on the point that they necessarly intended to exclude any possibility of denunciation or withdrawal (cf. Comment (2) on Article 39 of the Report of the International Law Commission, Fifteenth Session 1963). A number of authorities on international law take the position that a right of denunciation or withdrawal may properly be implied under certain conditions in some types of treaties and more especially in commercial treaties and in treaties of alliance (cf. Report ubi supra loc, cit).

Thus according to Oppenheim-Lauterpacht International Law 8th vol. I at p. 938 -

"But there are other treaties which, altrough they do not expressly provide for the possibility of withdrawal, can nevertheless be dissolved after notice by one of the contracting parties. To that class belong all such treaties as are either not expressly concluded for ever or are apparently not intended to set up an everlasting condition of things. Thus, for instance a commercial treaty or a treaty of alliance not concluded for a fixed period only, can always be dissolved after notice altgough such notice be not expressly provided for". Similarly Lord McNair: The Law of Treaties p. 513 observes - "But there are other political treaties in the case of which the intention of perpetual obligations is not always so clear, for instance treaties of alliance or non-aggresion or neutrality ... It is a question of interpretation, each treaty requiring independent examination; and it is belived to be no difficult, in the case of those latter types of treaties, to establish that the parties do not intend a perpetual duration and therefore that the treaties contain an implied power to denounce for good cause and upon reasonable notice."


Redeployment of the Turkish contingent

On the evening of the 25th December, 1963, the Turkish contingent without any Operational Command, authorization of the Committe of Ministers or concurrence of the appropiate authorities of the Republic, arbitrarily moved out of its designated camp and redeployed and took up positions outside therefrom on the territory of the Republic on the Nicosia - Kenia road where it remains stationed till now.

As, however, on the following day the Government of the republic accepted an offer that the forces of the United Kingsom, Greece and Turkey, stationed in Cyprus and placed under British Command, should assist it in its effort to secure the preservation of cease-fire and the restoration of peace the matter was not pursued at the time.


Turkey contradicts herself over the reasons for which the Turkey ccontingent left barracks


It is significant that Turkey gave different reasons at various times for such an arbitrary and in violation of the Treaty of Alliance movement and deployment of its troops on the territory of the Republic.

Mr. Menemecioglu, the Turkish Representative to the Security Council, at its meeting of the 18th February, 1964, left the impression that the continuation of the keeping of such posts was pursuant to orders given by General Young, the them Commander of the Joint Peace-keeping Force.

"General Young", said Mr. Menemencioglu, "Commander of the British-Turkish-Greece peace-keeping force in Cyprus has given a written statement to the effect that the Turkish units have acted and continue to ac entirely under his orders as agreed by the three guarantor powers" (S/P.V. 1095, p. 77).

It was, therefore, imperative that, when the aforesaid arrangements made on the 26th December, 1963, came to an end be the assumption of duties by the United Nations Peace-keeping Force established by the Secretary-General in conformity with the resolution of the Security Council of the 4th March, 1964, the Turkish troops should return to their designed camps.

For this reason the President of the Republic by his letter of the 29th March, 1964, to Mr. Inonu, the Turkish Prime Minister, requested that the Turkish forces should return to their camp not later than the evening of the 1st April, 1964.

Mr. Inonu, however, by a telegraphic message to the President of the Republic of the 31th March, 1964, refused to do so and for the first time he put forward the allegation that the movement and deployment of the Turkish forces was made for security reasons of themselves. "The present position of the Turkish contingent", said Mr. Inonu in his aforesaid message, "is an absolute necessity imposed by the threats directed against the security of the Turkish unit. Furthermore, the Turkish contingent has not been deployed in its present position in conformity with the arrangements made on December 26, 1963."

This is in direct contradiction of the position taken by Turkey during the debate before the Security Council.

And Mr. Inonu concluded -

"in the light of these considerations, the withdrawal of the Turkish contingent from its present secure position can be taken up only after security and constitutional order are completely restored throughout the island."


Further stay of the Turkish contingent in Cyprus illegal

It now become obvious that the Turkish forces are now on the territory of the Republic without any authority and without the consent of the lawful government of the Republic.

It is a principle of international law that apart from forces od occupation during war or warlike operations no foreign forces can be on the territory of a sovereign state except with its consent or its unsolicited invitation.1)

Any other unauthorized interference with the territory of a sovereign state constitutes an act of "aggression" in the accepted meaning of that expression international law,1) and offends against the conception of sovereignty under which a sovereign state may preclude any foreign activity on its own territory.2)

The Republic of Cyprus is a sovereign state and has been recognised as such by the resolution of the Security Council of the 4th and the 13th March, 1964 and following resolutions.

This serious act of aggression is only a link in the chain of the fundamental violations of the Treaty of Alliance by Turkey.

The following are the main ones -

a)though by Article II of the Treaty of Alliance Turkey undertook to resist any attak or aggression direct or indirect, directed against the independence or the territorial integrity of the Republic of Cyprus, she has committed acts of aggression against the political independence and territorial integrity of the Republic by repeated threats by its Government of armed intervention nad by action which has become increasingly menacing towards the end of December, 1963, and in January and February 1964, and which culminated in the ultimatum delivered on the early morning of the 13th january, 1964, by violating the airspace of the Republic for the purpose of intimidation and by massing of forces on the opposite mainland and Turkish naval forces in adjoining waters in a manner menacing armed intervention.

That threat of force constitutes an aggressive action is recognized in international law3) especially when coupled with actual violation of the airspace or other acts in preparation for an aggression.4)

Particular instances of the use of the treat of force have been castigated in diplomatic practice as "indirect aggression".5)

b)she had violated her undertaken treaty obligation by permitting suffering encouraging or abetting both in Turkey and in Cyprus a policy aiming at partition of the territory of the Republic the territorial integrity of which she undertook under the Treaty to defend;

c)her repeated declaration to the effect that particion or federation is the solution that the Turkish Government is seeting, her stand and whole demeanour not only are not those of an ally but they are derogatory of the basic structure of the Treaty;1)

d)if any doubt existed about the aggressive policy of Turkey that doubt has been removed by the unprovoked and callous air attack of the Turkish air force in August, 1964, which resulted in the loss of life and limb of innocent civilian population and the serious demage to property.


Treaty of Alliance terminated


It is recognized in public international law that a party to a treaty may consider the treaty as cancelled on the ground that the other party has violated essential provisions of the treaty.2)

The President of the Repunlic, Archbishop Makarios, as Head of the State, by his letter to Mr. Inonu, the Turkish Prime Minister, of the 4th April, 1964, informed him the Government of the Republic was compelled to consider the Trreaty od Alliance as terminated in consequence of the violation by Turkey of the Treaty in its essence.

As has been observed by Mr. Justice Iredell, since 1796, in the case of Ware v. Hylton (3 dallas 261) -

"It is a part of the law of nations, that if a treaty be violated by one party, it is at the option of the other party if, innocent, to declare, in consequence of the breach, that the treaty is void". The Government of the Republic was, therefore, fully justified in considering that the Treaty of Alliance was terminated by the violations of its essential part by Turkey.

An alliance presupposes utmost trust and confidence. You cannot have as an ally someone who, instead of exhibiting friendliness, grasps every opportunity to manifest his most hostile and inimical intentions both in words and in action.

















Is it a de facto or a de jure Government?

It appears that among certain circles1) the wtong impression prevails that the present Government of the Republic of Cyprus is a de facto Government and not a de jure one.

But that Government has been established under the law then is force and in accordance with the then existing constitutional procedures. It has performed and continues to perform its functions within the framework of the law in force the time being and in conformity with its provisions. It has the effective control of almost the totality of the territory of the Republic and enjoys the habitual obedience of the bulk of the population of Cyprus2) to the exclusion of any other Government. It constitutes, therefore, the only lawful government of the Republic of Cyprus.

It has been pointed out3) that for the existence of a lawful government three prerequisites are required to exist -

a) regular establishment (regularite).

In this respect Professor Burdeau observes4) that-

"L'essence du government de fait consiste donc en ce que les chefs exercent l'autorite governmentale en l'absence de tout fondement constitutionnel, ils'oppose au gouvernement de jure qui est celui ou le pouvvoir se trouve exerce conformement a un statut preexistant ..."

and further on, when he draws attention between the regular government and the Government of Vichy: - "Rappelons qu'un government regulier c'est un gouvernment qui est a la foi legal, parce qu'etabli selon des procedures constitutionnelles preetablies et legitime c'est a dire conforme a l'idee du droit national".5)

In the same respect Sir Frederick Pollock mphasized that -

"a de facto government is also de jure or in English lawful when it derives its power under the Constitution or custom of the land, which is the most normal case ..."6)

b) effective administrative control (effective).

As observed by Lord Atkin -7)

"By exercising "de facto administrative control" or "exercising effective administrative control" I understand exercising all the functions of a sovereign government, in maintaining law and ordet, instituting and maintaining courts of justice, adopting or imposing laws, relugating the relations of the inhabitants of the territory to one another and to the Government ... In those circumstances it seems to me that the recognition of a Government as possessing all those attributes in a territory while not subordinate to any other Government in that territory is to recognize it as sovereign and for purpose of international law as a foreign sovereign State. It does not appear to be material whether the territory over which it exercises sovereign powers is from time to time increased or diminished ..."

The operation of the principle of effectiveness is usually evidenced by the degree and extent of the popular support to the government.1)

c) exclusivety (exclusivite).2)

The present Government of Cyprus fulfils all the above three prerequisites. It has a lawful origin and exercises effective administrative control over almost the totality of the territory of the Republic to the exclusion of any other Government.

The fact that certain citizen of the Republic took the arms against her and managed to control a tiny piece of her territory does not change the situation.3)

Even if we assume that such rebels were aggressively resisting for the purpose of coercing government to proceed to a certain course of action4) so long as they did not succeed to overthrow the Government and become a de facto government recognized as such by the people as legal government of the Republic continues to exist and dunction as such.

As very pertinently observed by the late Professor Svolos-5)

"... The acts of the rebels do not constitute a legal function and canot therefore be governed by the law". Furthermore, the present Government of Cyprus is recognized as the lawful government of the Republic by the overwhelming majority of its people.6)

But also from an international law7) point of view the present government is recognized as the lawful government of the Republic.

All the diplomatic representatives are accredited and continue to be accredited to the President of the Republic and in all her public relations the Republic continues to be represented by the present Government.

Finally the Security Council of the United Nations by a sequence of resolutions has recognized the present Government as the lawful Government of the Republic.1)




Owing to the prevailing abnormal situation in Cyprus it was found impossible to hold elections, within the procedure time limits and in accordance with the constitutional election procedure, for the offices of the President of the Republic, and Members of the House of Representatives whose term of office expired on the 16th August, in 1965.2)

The question arose what would happen after that date? Would the present Government3) continue to function, and if yes in what capacity as Government de facto or as Government de jure, or would the State be left without any government at all?

Our state political structure contemplates the continuous functioning of the President of the Republic and of the House of Representatives without any intervals.4)

Thus the President of the Republic and the House of Representatives continue to hold office until the next President of the Republic is invested and the next House assumes office.5)

So the answer to the above question is given by the Constitution itself. The State shall not be left without any Government but the existing Government shall continue in office and function as such until the new President and House of Representatives are elected.

Even in countries whose Constitutions have no such express provision it is considered as self-implied that the Government in office should continue to function until a new Government is established so that the State may not be left without any Government at all.1)

So the continuation of the functioning of the Government of the Republic even after the expiration of its term of office is a feature of our constitutional system and it is within the framework of our present legal system.

But even in the absence of any express or reasonably implied provision in this respect I would be prepared to argue that the continuation of functioning of the present government imposed by the force of events cannot be considered as contra legem rendering the present Government into a de facto one but praeter legem reserving its lawful character. The continuation of such functioning is imposed by the law of necessity and it is absolutely necessary for the normal dunctioning of the life of the State.

As observed by the Paolo Barile, Professor of Constitutional Law in the University of Siena, the necessity in such a case constitutes an independent and direct source of creation of law:

"Questa necessita, che si presenta come fonte diretta, puo essere: o del tutto non prevista dall' ordinamento, oppure prevista a regolata nella sola orma, ma libera nella causa e nel contenuto. E chiaro come nel primo caso l'interprete e constretto o a constatare che si e di fronte all' espressione della funzione constituente, oppure, quando la necessita tenda solo a sospendere l'efficacia di una o piu norma constituzionali, a trovare una soluzione fuori della constituzione, anche se il piu possibile aderente ai principi ispiratori di essa; nel secondo caso, la necessita tendera, in modo del tutto inaccettabile, ad aggirate la constitutione, vanificandone le norme, esposte ad essere modificate o sospeze senza il rispetto delle forme previste per l'esercizio della funzione di revisione."2) The law of necessity has been recognized as a feature of the Cyprus legal system recently by the decision of the Sypreme Court in the case of the Attorney-General of the Republic v. Ibrahim 3 S.C.S.I.

So ling as the law of necessity exists and operates the present Government of the republic has a lawful origin and continues to function as a Government de jure and ir cannot be transmuted into a Government de facto-

"Il ne peut pas y avoir de solution de continuite" says Odent: Contentieux Administatif, III p. 282 "en fait de competence administrative et le fonctionnaire desinvesti doit continuer a exercer ses fonctions jusqu'a ce que son successeur soit a meme de le replacer, au moins si aucun interim ou aucume suppleance n'a ete organise. L'hypothese la plus caracteristique ou la vie meme de l'Etat imposait un assouplissement du principe qui veut qu'un agent public desinvesti perde sur le-champ sa competence est celle sed governments demissionares." It is in accordance with the same principle that a Government which has resigned continues to deal with the "current affairs" of the state, that is to say continues to perform lawfully its functions until the assumption of duties by the new government. This is considered as a "traditional principle of republic law".1)

On this principle and in order to secure the "continuity of the national life" the present de jure Government of the republic continues to function as such until time as normal conditions will permit its succession by another elected government.

But irrespective of that principle and altrough not strictly necessary the House of representatives acting again on the requirements of the law of necessity enacted the President of the Republic and Membres of the House of representatives (Extension of Term of Office) Law, 1965 whereby the term of office of the President of the Republic and of the Members of the House of Representatives has been extended until such time as the newly elected President of the Republic and members of the House of representatives assume office and in any event not beyound one year from the 16th August, 1965.

It is explained in the preamble of that Law that owing to the prevailing circumstances it was found impossible to hold elections and that for the continuation of the normal functioning of the state it became necessary to prolong the term of office of the President of the Republic and of the House of Representatives,

In those circumstances and viewing the similar course followed in other countries2) it is really surprising how in some quarters this Law was found to be objectionable.

In any event by that Law the lawfulness of the present Government has been put beyond any doubt.3)


The term of Office of the Ministers


I have been asked to devise whether the term of office of the present Ministers comes to an end on the 16th August, 1965 when the term of office of the President of the Republic expires, and whether a new appointment would be required for the continuation of the performance of their functions by the present Ministers.

I am inclined to the view that the answer should be in the negative.

On the prevailing opinion in public law "the ministers are the supreme public functionaires who individually are the heads of the various branches of the public administration and collectively, forming the Government, direct the general affairs and the policy of the State" (cf. 1965 vol. II. p. 393 seq.).

Our Constitution though adopting the presidential regime (Article 1) nevertheless, as far as the organization and the functions of the council of ministers are concerned, does not depart from that principle which constitutes the amin feature of the parliamentary government (cf. especially Article 58 and 54(a) of the Constitution).

The intention, however, of our constitutional legislator was that the Council of Ministers should constitute the organ of the State through which the executive power is ensured by the President and the Vice-President of the Republic (cf. Article 46 paragraph 1)-

"The President and the Vice-President of the Republic in order to ensure the executive power shall have a Council of Ministers composed of" says Article 46 paragraph 2 of the Constitution and proceeds" ... The Ministers shall be designated by the President and the Vice-President of the Republic respectively who shall appoint them by an instrument signed by them both". It become obvious that the Council of Ministers should enjoy the confidence of the President and the Vive-President of the Republic and the Ministers shall continue to exist so long as the president and the Vice-President of the Republic are exercising their functions.

No time limit for the term of office of a Minister is fixed in the Constitution as in the case of other organs of the State (as for instance of the President and the Vive-President of the Republic (Article 43.1), of the House of representatives (Article 65.1) and the Members of the Public Service Commission (Article 124,3)). These organs as their term of office is limited in time cease at its expiration unless this is extended (cf. p. 103 and Decisions of the Greek Council of State 497, 1128(57)).

It has been decided in greece, however, the even in these cases in order to ensure the continuity on the administration of the State, and in order that it may not remain without basic organs and its functioning may not thus be obstructed, these organs should continue to exercise their functions until such time as new organs are elected or appointed, the relevant provisions being interpreted as meaning that the termination of the term of office does not come ipso jure, but upon the appointment or the election of new organs (vide 1771(56) of the State Council and Article 43.1 and 65.2 of the Constitution, which establish the principle of the permanent President of the Republic and the permanent Parliament (vide op. cit. p. 179, and in England Blackstone Comm. 14th edition, p. 148).

In the case of Ministers, however, our Constitution expressly adopts the principle that they preserve their office until such time as they are dismissed by the President or the Vice-President of the Republic who appointed them (vide Article 59.3).

2. In a previous Note of mine (A.G. 17/64 of the 27th of march, 1964), I have pointed out in connection with the Turkish Ministers that it is a principle of public law that the exercise of its function by an organ of the State is peremtory nad that no such organ may desit form the exercise of such a function (cf. Svolos: Constitutional Law vol. I, p. 233, Kyriakopoullos: Administrative Law4 vol.II, p. 28, and Waline: Droit Administratif8 p. 422).

In a view of the above the President of the Republic was justified in entrusting to greek Ministers the exercise of the functions of the Turkish ministers who were systematically abstaining from the execution of their duties.

3. I had also pointed out in an earlier Note (cf. my Note "Is the present Government of the Republic of Cyprus de facto or de jure) that the continuance of the exercise of the function of the President of the Republic had become necessary by force of reality and that, irrespective of the recently enacted Law of 1965 providing for the extension of the term of office of the President and the House of Representatives, he continues to remain the lawful President of the Republic and to continue the exercise of his functions.

In such a case his Ministers also continue to remain the Ministers who alwfully exercise their functions, since thay have not been dismissed by the President of the republic. There is no need at all for tjeir reappointment. (cf. especially Les Grand Arrets de la Jurisprudence Administrative, 1962 p. 764, where it is noted that, irrespective of the constitutional provisions, "il est indispensable qu'il y ait autorite chargee d'assurer la continuite de la ie nationale ...").


Constitutional position of the Council of Ministers


Is the following statements contained in a letter of the Under-Secretary to the Vice-President of the republic of the 22nd February, 1964, correct in law -

"a) Having in mind the conduct of the Greek elements of the Government since the 21st December, 1963 and especially of the Greek members of the security forces, it is doubtful whether the Greek members of the Council can validly exercise the functions of the Council of Ministers as envisaged by the letter and spirit of the Constitution. In any even the Vice-President is advised that they cannot do so". 2. I am not aware who was tha legal adviser of the Vice-President of the Republic on this matter but in my view the advice rendered to him was wrong in law.

I had the opportunity in my Note of the 31st December, 1963, to explain that the present government of the Republic, having been established under its Constitution and functioning thereunder is the only legal government so long as it has not been overthrown and substituted by another de facto government recognized by the people as its government.

3. The Council of Ministers is a constitutional collective organ of the republic entrusted by its Constitution mainly with the exercise of the executive power (cf. Articles 46 and 54).

Under the principles of public law for a collective organ to function the following prerequisites should exist-

a) the lawful existence and composition of the organ (cf. Kyriakopoulos: Administrative Law 4th p. 20 seq);

b) its decisions to be taken at a meeting lawfully convened, with prior communication of its agenda to all its members and attended by the required quorum (cf. Stasinopoulos: The Law of administrative acts p. 203 seq.; Cameo: Corso di diritto amministrativo p. 418);

c) the decision taken at such meeting to be supported by the required majority (Stasinopoulos: op. cit. p. 205).

4. So long as all the Ministries have been filled by proper appointments thereto and no vacancy occurred by death, resignation or otherwise in any of the Ministries the Council of Ministers continues lawfully to exist as an organ of the state (cf. Stasinopoulos: op. cit. p. 199 seq. Decisions of the Greek Council of State 1957(54), 2247(51), 681(56).

The fact that certain Ministers wilfully and presentently abstain from the meeting of the Council of Ministers does not render unalwful its constitution and existence.

5. On the assumption that proper summonses of a meeting are issued and are communicated together with its agenda to all concerned prior to the meeting (cf. Article 56 of the Constitution if Decisions of the greek Council of State cited at the Conclusions of its decided cases p. 110) the meeting may be held if the necessary quorum exists at the meeting.

Our Constitution does not speak about a quorum of the Council of Ministers (as it does for instance with regard to the House of Representatives cf. Article 77.1) but from its provision that all decisions are taken by the absolute majority of its members (cf. Article 46 last paragraph) and from the prevailing principles in public law that where no express provision is made about a quorum of a collective organ of the state one half of its members plus one constitute such a quorum (cf. Sandulli: Dirit to Amministrativo, 1962 p. 140: Greek Council of State 1934 (373, 788, 1378), 1936 (1106), 1958 (1071); Decision of Italian Council of State no. 179 of the 12th February, 1958) I am inclined to the view that the quorum required for the meetings of the Council of Ministers is the number of members described for taking a valid decision.

Of course there are instances in public law there the quorum required is an integral quorum that is to say of all the members (as in cases of collective organs exercising juridicial functions cf. Galateria: Gli organi collegiati amministrativi vol. II p. 52 seq.) but from the wording and the whole tenor of article 46 of the Constitution it may be validly maintained that the quorum required for the meetings of the Council of Ministers is one half of its members plus one. After all that is the prevailing principle in the common law also under which in the absence of an express provision to the contrary the quorum required for the meetings of a corporation is the majority of the corporators (cf. The Laws of England vol. 9 p. 48; Merchants of the Staple of England v. Bank of England (1887) 21 Q.B.D. 160; Shaw and Smith: The Law of Meetings p. 57).

6. For all the above reasons I am of opinion that the persistent absention of the Turkish side from the meetings of the Council of Ministers, irrespective of whether that constitutes a breach of their constitutional duty, cannot invalidate the existence of the Council of Ministers nor prevent its legal functioning.

As observed by Professor Fortshoff (The Administrative Act p.35)-

"If an administrative act is made by an authority composed of a council or board then its validity depends on whether it was duly decided upon by such council or board. As a rule particulars of the composition of the council or board have no influence on the validity of the act; faults made in this connection are generally irrelevant as long as the remaining number of correctly appointed members can still be considered as representing the council or the board".


Functioning of the Council of Ministers in the
absence of Turkish Ministers


Is it feasible, in view of the persistent refusal of the Turkish Ministers to turn up for the performance of the powers and duties of their respective Ministry and to participate in the operation of the governamental machinery, as a temporary measure and to facilitate the normal functioning of the state during the time the present abnormal situation continues, to entrust one of the Greek Ministers with the charge and administration of the affairs of a Ministry of which hithero a Turkish minister was the head?

After very anxious and careful consideration of this difficult and tricky question, I arrived at the conclusion that the answer should be in the affirmative.

2. I had the opportunity in my advice of the 31st December, 1963, to explain that the Republic as a state, in spite of the recent rebellion, continues to exist and function both in international law and in our municipal law.

Though as Burdeau, Droit Constitutionnel 1963, p. 45 observes -

"... il y a des revolutions a ce point profondes qu'elles alterent, non seulement la forme du gouvernement, mais aussi la substance meme del'Etat".

nevertheless that is not the case with regard to the Republic of Cyprus.

And in spite of the view xpressed by the Vice-President of the Republic in his interview to the press published in the News Bulletin of the Turkish Communal Chamber no. 61 of the 25th February, 1964, to the effect that "it is doubtful whether the Republic of Cyprus, as envisaged by the Constitution promulgated in 1960, is in existance or not" the Securiry Council by paragraph 1 of ots resolution of the 3rd March, 1964, (repeated in its resolution of the 14th March, 1964 and subsequent resolutions) solemnly recognized the existence of the "sovereign republic of Cyprus".

Also in my Note A.G. 8/64 of the 9th March, I gave the reasons in support of the view I took that the present Council of Ministers (even if functioning only with its Greek members) constitutes the legal government of the republic and that it can alwfully operate under the Constitution and to perform the function of the Council of Ministers thereunder subject to the prerequisites set out therein.

If I may refer again to Burdeau op. cit. p. 343 -

"L'essence du gouvernement de fait consiste donc en ce que les chefs exercent l'autorite gouvernmentale en l'absence de tout fondement constitutionnel. ils' oppose au gouvernement de jure qui est celui ou le pouvoir se trouve exerce conforment a un statut preevistant".

and further ap page 63- "Il faut un titre pour gouverner at ce titre c'est la constitution qui definit les conditions". Finally at pages 382 Burdeau observes- "Rappelons qu'un gouvernement regulier c'est un gouvernement qui est a la foi legal, parce qu'etabli selon des procedures constitutionelles preetablies ..." In spite of doubts expressed in this respect by the Vice-President of the republic (cf. the letter of his Under-Secretary of the 22nd February, 1964), and the establishment of Turkish public services parallel and competitive to the legal public services of the Republic (cf. the interviews to the Press of the Vice-President of the Republic in New Bulletins already cited no. 45 of the 9th February, 1964, No. 69 of 4th March, 1964, No. 74 of the 9th March, 1964, and No. 79 of the 14th March, 1964), no other legal government exists and functions now in the Republic than the one referred to in this paragraph.

And the Security Council by paragraph 2, 4, 6 and 7 of the aforecited resolution of the 3rd March, recognized that Government.

3. It is a fundamental principle of public law that the performance of a public function by an organ of the state is compulsory and that no organ can abstain therefrom (cf. Svolos: Constitutional law vol. I p. 233; Kyriakopoulos: Administrative Law 4th vol. II p. 28). As Waline: (Droit Administratif 8th p. 422) say "Les competences sont d'ordre public".

Such functions and the status of an organ of the state are conferred intuitu personae and cannot be transferred by such organ at its discretion to any other organ or person (cf. Stasinopoulos: Report to the Greek Council of State in case 13 of 1945 Themis vol. 56 p. 134). And in cases where it is expressly provided that certain statutory functions may be performed by some other organ or person - as for instance under the provision of the Statutory Functions (Conferment of Exercise) Law 1962 - strictly speaking that not a question of "transfer of competence" but a "conferment of additional competence" (cf. Kyriakopoulos op. cit. p. 29).

4. The Vice-President of the Republic and the Turkish Ministers deliberately and persistently have failed to attend at the meetings of the Council of Ministers, to turn up for the performance of the functions of their government machinery, in a manner calculated to dismantle its whole constitutional structure.

For the purpose of this Note I will not embark upon the consideration of the legal consequences of such a conduct calculated to undermine the very existence of the state and the normal and smooth functioning of its government and I will assume that their public office has not been vacated thereby (cf. mu advice to the Minister of Justice A.G. 10/64 of the 20th february, 1964).

But the fact remains that this state of affairs will continue and that the three Ministries hitherto in charge of Turkish Ministers will remain without any Head.

The Vice-President of the republic in an interview granted to Messrs. Alberto Ronchley and Dino Fresco Baldi correspondents of "La Stampa" and the "Corriere della Sera" on the 19th February, 1964 (News Bulletin no. 58 of the 22nd February, 1964) said -

"The heatred and anmity are so great between the two communities as a result of the recent attrocities committed by the Greeks against the Turks that they can no longer be expected to co-operate together as envisaged by the present Constitution". It is significant what the Vice-President of the Republic since the 30th December, 1963 has stated to journalists that the "Constitution is dead" (cf. reuter of 31st December, 1963).

At another interview (published in the News Bulletin no. 57 of the 21st February, 1964) he repeated the same that "it is no longer possible to co-operate with the Greek within he framework of the Constitution".

All these statements coupled with the actual absention from duty since the 3rd December 1963 of all the Turkish Ministers leave no room for doubt that their Ministries will continue to remain without any Head.

The question, therefore, remains how to temedy this situation.

Under normal conditions the appointing authority could make a temporary or acting appointment (cf. Kyriakopoulos op. cit. p. 15) but so long as the Vice-President of the Republic will not co-operate in this respect it follows that no appointment can be made in accordance with the Constitution (cf. Article 46).


The Life of the state, however, cannot stop and it is the duty of its government to take all steps shich are absolutely necessary for the maintenance of its normal and unobstructed functioning.


"Beyond the subject in respect of which a specific provision is made in the Cnstitution" said the then President of the Greek Council of State the late Panaylotis Poulitsas in case 2 of 1945 (reported in Themis vol. 56 at p. 100) "it could be accepted that, if that was indispensably and imperatively necessary and unvoidable, the governments could even in deviation from the constitution regulate subjects relating to the achievement of their main object".

In the same case Counsellor Kyriakopoulos said (ubi supra at p. 97)-

"Otherwise and in case of doubt I also am in favour of the principle of legality which underlies and forms the basis of every state, accepting in deviation therefrom only one instance of expediency that which is required for the salvation of the State".

The same principle was adopted by the Greek Council of State in a series of subsequent cases (such as 13 of 1945, 12 of 1947 and 1032 of 1950). In the last case it is said - "Taking into consideration the circumstances under which these governments" that is to say the first governments after the liberation of Greece from the Germans after 1944 "took office, it has been recognised to them the right to regulate, in deviation from the Constitution, certain exceptional subjects, relating to their political purposes, so long as that was indispensably necessary and unavoidable and it did not concern fundamental institutions of the from of government". Similar policy was followed in Germany in the extraordinary circumstances occurred after 1945 (cf. Fortshoff: The Administrative Act. p. 30 note (90)).

As Professor Alessi (Diritto Amministrativo3 p. 218 seq.) observes-

"Ma nella vita dello Stato cosi come nella vita del singolo individuo, si possono talora presentare circostanze eccezionali ed emprecedibili, tali che posso porne a repentaglio l'esistenza, la potenza politica, militare od economica, scuoterne l'autorita, minacciare la vita od i beni dei sudditi. Circostanze eccezionali nelle quali si presentano necessita supreme ed urgenti di difesa per la conservazione dello Stato e della societa, non prevedute dall' ordinamento vigente, le quali impongono che la Stato a mezzo dei suoi organi amministrativi, prenda provvedimenti eccezionali, straordinari, anche al di fuori di quella che e la normale sfera di attivita consentita all' amministrazione, senza che l'urgenza consenta che un siffatto ampliamento possa venire autorizzato dal potere legislativo a mezzo delle forme ordinaire. In tali casi eccezionali non si puo valutare la leggittimita dei provvedimenti resi necessari dalle circostanze in base al metro ed ai criteri che valgono per le circostanze ordinarie, che allora, ove i mezzi ordinari non siano sufficienti, Io Stato dovrebbe incrociare le braccia ed assistere inerte alla rovina sua e della societa, il che sembra assurbo pretendere in nome di un eccessivo formalismo in tal case veramente letale". For the purpose, therefore, of preserving the normal functioning of the republic and as an extraordinary measure so long as the exceptional circumstances mentioned above continue, the President of the Republic, who under the Constitution has the duty to ensure the exercise of the executive power (cf. Article 46), may entrust the charge of a Ministry of which a Turkish Minister is the head, to a Greek Minister.

The Greek Minister thus entrusted has to perform in respect of that Ministry, the duties outlined in Article 58 of the Constitution, having in mind that in case of doubt he has to refer the matter to the Council of Ministers (cf. Article 54 of the Constitution).
















Legal Status of the Airport


The aerodromes in Cyprus may be either Government (establishmed and operating under Article 19 of the Civil Avition Act, 1949 adapted and extended to Cyprus by virtue of Article 7 of the First Schedule to the Civil Aviation (Application of Act 7 Order in Council, 1952) or licensed (operating under a licence granted under Article 51 of the Colonial Air Navigation Order, 1955 (continued to be in force in the Republic by virtue of Article 188.1 of the Constitution and section 29(1) (e) of the Courts of Justice law, 1960.

The distinction between government and licensed aerodrome is adopted by the Aerodromes Law (Cap. 300) (cf. especially its section 2).

2. The Nicosia airport was established as a government aerodrome (cf. notice published under Notification no. 398 in Supplement no. 3 to the Gazette of 30th June, 1955). This aerodrome was declared as an airport (cf. notice published under Notification no. 76 in Supplement no. 3 to the Gazette of the 24th february, 1949) and as Customs aerodrome to which the Customs laws apply (cf. The Aerodromes (Customs) Regulations 1949 published under Notification no. 79 in the aforecited issue of the Gazette clause 2).

The Nicosia airport is operated as a government aerodrome in accordance with the provisions of the afroecited. Colonial Air Navigation Order, 1955 as subsequently amended.


Rights of the British Authorities on the Airport


1. By virtue of the Treaty of Establishment a certain area contiguous o the airport now in operation (as it appears on the map attached to the Treaty and marked thereon as A.10/1 together with its will continue to use as before in accordance with the provisions of Part II of Annex B to the Treaty. The British authorities will have a complete control of that Site, will guard it ans will take all the necessary measures for its security.

2. On the part of the area of the present airport (cf. part V of Annex B to the Treaty) we have to distinguish three zones-

a) the zone which will be under he absolute control of the republic (and which is the present terminal area coloured red and hatched in blue on the map) which wwill be included in the Site as soon as the new terminal area is constructed;

b) the zone in which the new terminal area will be constructed (coloured blue on the map) and which on its construction will be under the control of the republic but until then shall from part of the joint user area;

c) the joint user area which will be used jointly by the British authorities and the authorities of the Republic and which ccompriss-

i) the runways for landing and taking off coloured yellow on the map;

ii) the access roads coloured broun on the map;

iii) the taxiways coloured red and hatched in yellow on the map.

On the construction of the new air terminal as provided in paragraph (b) above the access roads and the taxiways (as in sub-paragraphs (ii) and (iii) will ne included within the area of the Site which shall be under the absolute control of the British authorities.

3. Apart from the aforesaid zones (even after the construction of the new air terminal) there shall continue to be the following joint services, to be run jointly by the British authorities and the suthorities of the Republic-

(a) the flight information centre;

(b) the aerial mast farm;

(c) the ccontrol tower.

4. The British authorities shall have the right to use the Nicosia airport together with all its facilities to wathever extent is considered necessary for he operation of the United Kingdom military aircraft in peace and in war including the exercise of any necessary operational control of the air traffic (cf. Article 3 of Part V of Annex B). The British Kingdom military aircraft at the Nicosia airfield to the extent they consider necessary (cf. Article 6 ibid).

Rights of the Republic on Nicosia Airport
in case of war or emergency


1. Irrespective of the theories prevailing in international law regarding the rights of a state on the airspace over its territory (cf. Oppenheim-Lauterpacht International Law8 Vol. I p. 157 seq.) the Republic of Cyprus has the right in case of war actual or imminent or for the security or defence of Cyprus to prohibit the navigation of aircraft over the territory or parts thereof and to put the possession and use of the airport in its armed forces (cf. Section 9 of the Civil Aviation Act, 1949 as adapted by Article 2 of Schedule I to the Colonial Civil Aviation (Aplication of Act) Order 1952 and section 2 of the Aerial Navigation law (Cap. 299).

2. The question arises as to the rights of the British authorities on the Nicosia airport in such a case in other words whether the provisions of the treaty of establishment relating to the rights of the British authorities to the use of the airport in peace and war should prevail over the provisions of the aforecited Order and Law whereby the use of the airport may be prohibited or restricted.

3. Although under the English law which is applicable in Cyprus the dualist theory (under which the provisions of a treaty are binding in municipal law only if approved by internal legislation) prevails (cf Morgenstern: Juridical practice and the Supremacy of International Law in B.Y.I.L. (1950) p. 55 nevertheless it appears from Article 169(3) of the Constitution that it adopts the monistic theory under which the international law and the municipal law forming part of a single legal system equally bind the state and the individuals therein; moreover treaties concluded in accordance with that Article and published in the official gazette of the Republic have superior force to the municipal law (cp. Article VI of the American Constitution, Article 26 of the French Constitution of 1946 and Article 55 of the Constitution of 1958 wherefrom our Article 169 has been taken).

And although the Treaty of Establishment was not concluded under Article 169 nevertheless in accordance with the monistic theory adopted thereby its provisions are vlid and binding in municipal law. In such a case so long as its provisions are subsequent in time to those of the aforecited Order and Law, they prevail. (cp. the same solution given in france by the Courts under the Constitution of 1946 in Rousseau: Traite de droit international public p. 47 seq.).

Furthermore by Article 195 of the Constitution it was provided that the Treaty of Establishment was validly concluded, and as being operative and bibding from tha date which it was signed.

4. So long as the Treaty of Establishment continues to be in force the use of the airport by the Bitish authorities in accordance with the provisions thereof cannot be prohibited or restricted.


The meaning of "emergency"


A question arose as to the meaning of the expresion "emergency" occuring in paragraph 1(b) of Article 7 of Part V of Annex B to the Treaty of Establishment and under what circumstances the british authorities shall have the right of absolute control of air traffic in the Nicosia airport.

2. The exclusive aerodrome control of air traffic at Nicosia Airfield vests in the authorities of the Republic (cf. Article 7.1(a) ibid).

Exceptionally, however, in case of "emergency" the United Kingdom shall have the right to exclusive control as may be determinated by the United Kingdom (Article 7.(1) (b) ibid).

The relevant provision of the Treaty is as follows:-

"Notwithstanding the above, the United Kingdom shall, in accordance with Section 3 of this Part of this Annex, have the right to exercise exclusive control in emergency as may be determinated by the United Kingdom." It is obvious that the right of exclusive control recognized by this paragraph in case of emergency in the conferred by Article 3 of the same Part.

But under Article 3 the United Kingsom authorities shall have such a right "for the operation of United Kingdom military aircraft in peace and in war, including the exercise of any necessary operational control of air traffic".

3. It follows from the above that-

a) the emergency mentioned in Article 7.(1)(b) tefers to the United Kingdom the military aircraft of which are to use the airfied;

b) the extent of control though left to United Kingsom (cf. Article 7.1(b) nevertheless its nature should be connected with and be necessary for the operation of the United Kingsom military aircraft in the airfield.

After all the right confered on the United Kingdom by Article 7 should be exercised in such a manner as not to impair the rights and obligations of the Republic over the airfield and its operation as a civil airport (Article 7.4).





















A question has arisen as to the constitutional position of the Auditor-General.

2. It has been put forward that the Auditor-General has a dusl function under the Consitution the function of Control, on behalf of the Legislature, over all disbursements and receipts and the function of audit, on behalf of the Legislature and the Executive, of all public accounts and inspection of stores and other assets.

The view was expressed that the function of control is comparable to that of the Comptroller and Auditor-general in ireland and consists in a preventive control over disbursements that is to say a control before any withdrawals of money are made from the Consolidated Fund and before any payments to meet expenditure are effected and a subsequent control over receipts that is to say a control of the manner any revenue collected on behalf of the republic has been dealt with,

3. In support of that view the English text of paragraph 1 of Article 116 of the Constitution is invoked. It is as followes:-

"The Auditor-General ... shall, on behalf of the republic, control all disbursements and receipts and audit and inspects all accounts of money and other assets administered, and of liabilities incurred, by or under the authority of the Republic and for this purpose he shall have the right of access to all books, records and returns relating to such accounts and to places where such assets are kept". But no such distinction is made either in the Greek or in the Turkish text of that Article which ate the originals (cf. Article 180.1 of the Constitution). In both original texts only one expression is used (that is to say in Greek, "murakabe" in Turkish) with regard to the Auditor-General's function in respect of both the disbursements and receipts on the one hand and the accounts and money and other assets administered and all liabilities incurred by or under the authority of the Republic, on the other hand.

This is an ansewerable argument in support of the opposite view.

4. Various systems of control of public expenditure have been adopted by various countries. Such systems may be classified as follows:-

a) the system of prior prohibitive control (controle prealable prohibitif) under which no payment of any public money can be made unless the necessary warrant therefor is checked and insorsed by the controlling authority. Such authority if it opinion that the warrant relates to payment not provided by law or not inserted in the budget may feruse to authorize such payment.

This is the system which is now in force in Italy. The controlling authority in this respect is the Court of Accounts (Corte dei Conti) which is a juridical authority exercising control over public expenditure. No payment to meet any such expenditure can be made unless the relevant warrant is indorsed by such court (visto). The Corte dei Conti in exercising its preventice control (controllo preventivo) may as a rule refuse the indorsement (viso) of the warrant but in exceptional cases and under certain conditions it may indorse the warrant under reservation ("visto con riserva") (cf. Sandulli: Diritto Amministrativo, 1962 p. 209 seq.).

The Corte dei Conti, however, in Italy exercises also the subsequent control (controllo succesivo o postumo) the character of which is exclusively an accounting one and is exercised with respect to the administrative accountancy and by the accounting officers (cf. Chiesa: manuele di Contabilita Generale dello Stato p. 144).

It would be very pertinent if the next of the Article 100 of the Italian Constitution is cited-

"... The Court of Accounts exercises its preventive control over the legality of the acts of the Government and also its posterior (successivo) control on the administration of the Budget of the State.


The Court of Accounts communicates directly to the legislative Chambers the result of its control".

In England such controlling authority is the Comptroller and Auditor-General who equally exercises a preventive control.

The Comptroller and Auditor-General is the head of the Exechequer and Audit Departments, is appointed by Letters Patent ans is not removed from office except by the Crown on an functions he is independent of the executive government and his salary and pension is a charge on the Consolidated Fund. In his capacity as an officer of the House of Commons assists the Public Accounts Committee of the House in its function of ascertaining that parliamentary grants for each financial year have been applied to the prescribed objects (cf. Erskine-May: Parliamentary Practice 14th p. 644).

He has a double function to perform, the control of issue of public money from the Consolidated Fund and the examination, on behalf of Parliament, of public accounts and especially the accounts of all Supply Services, for the purpose of reporting on them to the House of Commons (cf. Exchequer and Audit Departments Act, 1866 sections 21 and 22; Exechquer and Audit Departments Act, 1921 s 1-5).

With regard to his function the Comptroller and Auditor-General grants to the Treasury, upon requisition, credits which the Treasury makes available to meet the public expenditure (cf. Exchequer and Audit Departments Act, 1866 s. 13; Finance Act, 1954 s. 35(9) Sch. 6). The English system has been followed by Ireland and India (cf. Constitution of India, Articles 148-151).

Under Article 33.1 of the Constitution of Ireland-

"There shall be a Comptroller and Auditor-General to control on behalf of the State all disbursements and to audit all accounts of moneys administered by or under the authority of the Oireachtas." The difference between the provision of the Constitution of Ireland in this respect and the provision in our Constitution is obvious. First of all this officer in Ireland is not only Auditor-General but Comptroller and Auditor-General which implies that the framers of the Constitution of ireland intended to create this office on the English pattern. Secondly his power of control is restricted only to disbursements in respect of which a preventive control would be exercised and was not extended to receipt as well in respect of which a preventive control is untenable;

b) the system of the prior consultative control ("controle prealable simplement consultatif") (cf. Saripolos: Constitutional law vol. II p. 461 note 2) under which the controlling authority checks all the warrants for payment of public money and indorses them but in case of its refusal to indorse a warrant if the appropiate Minister insists to make the payment the controlling authority is bound to indorse the warrant and report the matter to the Legislature for its decision.

Such system with certain variations is adopted by Belgium and Greece (cf. Stasinopoulos: The Law of Public Finance p. 203 seq.);

c) The system of Subsequent or posterior control (controle apres coup" cf. Saripolos ubi supra p. 460 note 3) under which the control is exercised ex post facto for the purpose of the verification that revenue receipt and expenditure payments have been effected in accordance with the law and within the margin of the Budget, of accounting audit and of inspection of stores and other tangible assets.

This is the system adopted in France (cf. Duez et Debeyre: Droit administratif p. 313).

I am of opinion that our Constitution adopted the third system of subsequent or posterior control as in force in other countries like France.

5. had our constitutional legislator intended to vest powers of preventive control in the Auditor-General he would have expressly said so as in every case where such powers are conferred (cf. for instance the provisions of the aforecited English Acts, and Article 100 of the Constitution of Italy).

On the contrary express constitutional provisions negative such a view.

First of all the Auditor-General is not named as Comptroller and Auditor-General as in England, ireland and India but simply as Auditor-general (as in other constitutions of countries under British administration which attained independence cf. for instance Articles 105-107 of the Constitution of Malaya of 1957 and cp. section 92 of the Constitution of Sierra leone of 1961; Articles 38 and 39 of the Constitution of Ghana of 1960).

He is not an officer of the Legislature (as in England of the House of Commons) but he is a permanent member of the public service of the Republic (cf. Article 115.3 of the Constitution).

How withdrawals from the Consolidated Fund are made and expenditure is mer therefrom is expressly provided by Article 168.1 of the Constitution which is as follows:-

"1. No expenditure shall be met from the Consolidated Fund or other public Funds except upon the authority of a warrant under the hand of the Minister of Finance:

Provided that the Minister of Finance shall not refuse to sign any such warrant for an expenditure provided for in the Budget."

Had the view that the Auditor-General has power to have prior control of withdrawals from the Consolidated Fund been correct (as in England where there is express statutory provisition for this purpose) then there would be express provision to this effect in the aforecited Article or at least its provisions would have been subjected to the provision of Article 116.1.

6. A I stated before emphasis is laid in the use of the word "control" occurring in the English text of Article 116.1.

But even if we accept that that is the governing text (which is not as explained in paragraph 3 hereof) there is nothing magic in the word "control" not such an expression implies a prior preentive control. It has already been explained in paragraph 4(c) that there is also subsequent or ex post facto control in this respect.

After all in every audit a power of control is always involved (cf. R v. Tyrwhitt (1853) 2 E & B 77).

With regard to the duties of an auditor Lord Russell Chief Justice observed in Thomas v. Devonport Corporation (1900) 1 Q.B. at. p. 21 as follows:-

"I do not subscribe to the doctrine that his sole duty is to see whether there are vouchers, apparently formal and regular, justifying each of the items in respect of which the authority seeks to get credit upon the accounts put before the auditors for audit. I think that is an incomplete and imperfect view of the duties of the auditors. I think an auditor is not only entitled, but justified and bound to go further than that, and by fair and reasonable examinstion of the vouchers to see that there are not amongst the payments so made payments which are not authorized by the duty of the authority, or contrary to the duty of the authority, or in any other way illegal or improper. If he divcovers that any such improper or illegal payments appear to have been made, his duty will certainly be to make it public by report to the authority itself, and the burgesses who create that authority". The word "control" in the English text of Article 116.1 must bear the same meaning both with regard to disbursements and with regard to receipts. It cannot be taken to mean a preventive control with regard to the former and a subsequent or ex post facto control with regard to the latter. But the Auditor-General concedes (see paragraph 11 of his Annual Report for 1960) that with to the latter it would be only a subsequent or ex post facto control.

7. Finally there is some further misapprehension as to the powers and duties of the Auditor-General under our Constitution.

There exists an impression, again derived from the English pattern, that the Auditor-General is going to exercise control over the disbursements and receipts on behalf of the Legislature and to exercise his powers or audit on behalf of the Legislature and Executive.

No such distinction is made in our Constitution under which his functions are performed "on behalf of the Republic".

Furthermore he is not to report directly to the Legislature, as it is one elsewhere on express constitutional or statutory provision (cp. the position in Italy and in England as explained above) but to the President and the Vice-President of the Republic who have a constitutional duty to see that the executive power is ensured (cp. Articles 116.4 and 46.1).

It is the duty of the President and the Vice-President of the Republic in their turn to lay before the House of representatives the annual report of the Auditor-General submitted to them.

8. For all the above reason I am of opinion that the view that the Auditor-General can exercise a preventive control is not correct.

Apart from the powers of audit (and the control involved therein) he has no further powers of any preventive or prior control under our Constitution.

9. I quite agree that there are many matters for which legislative provision to implement the constitutional provisions would be required. I have pointed out time and again that we have to provide, as elsewhere, for the manner of keeping public accounts and carrying out the financial administration (such as provided for instance in the Law of Public Accountancy in Greece - or in other countries of the Continent).