- Britain’s Constitutional Responsibilities to the Republic of Cyprus: Past, Present and Future
- Introduction. The Basic Documents
(a) The Lancaster House Agreements
The Prime Ministers of the UK, the Kingdom of Greece and the Turkish /Republic, Harold Macmillan, C. Karamanlis, A. Menteres, on 19 February 1959 signed a Memorandum in London setting out the Agreed Foundation for the Final Settlement of the Problem of Cyprus.
The representatives of the Greek Cypriot community and the Turkish Cypriot community declared that they accepted the documents annexed to the Memorandum as they Agreed Foundation for the Final Settlement of the problem of Cyprus.
The documents annexed to the Memorandum included amongst others the Basic Structure of the Republic of Cyprus which was agreed by the Greek and Turkish Prime Minister at Zurich on February 11th 1959 and signed by the Foreign Ministers and the representatives of the two communities and include 27 points.
- (click here for another analysis by Anna Theologou )
These points were more or less incorporated in the Constitution of Cyprus under Article 182 as the basic articles of the Constitution. They could not be amended. They are Annex III of the Constitution.
In the “Basic Structure of the Republic of Cyprus” document, Paragraph 21 provides for a Treaty Guaranteeing the independence, territorial integrity and Constitution of the new state of Cyprus between the three guarantor powers.
It also provides for a Treaty of Military Alliance. The two-treaties had Constitutional force as part of the Basic Articles of the constitution.
Paragraph 22, prohibits the total or partial union of Cyprus with any other state or a separatist independence to Cyprus i.e. the partition of Cyprus into two independent states. In fact, pursuant to these agreements of Zurich and London, Article 181 of the Constitution provides for the Treaty of Guarantee guaranteeing the independence territorial integrity and constitution of the Republic of Cyprus and for the Treaty of Military Alliance.
(b) The Treaty of Guarantee
The Treaty of Guarantee itself is set out as part of the documents annexed to the aforesaid Memorandum. So is the Treaty of Alliance under Article 1, of which “the Republic of Cyprus, Greece and Turkey shall cooperate for their common defence and undertake by this Treaty to consult together on the problems raised by this defence”.
Under the Treaty of Guarantee attached to the Memorandum, Article 2, the United Kingdom, Greece and Turkey “Recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the provisions of the Basic Articles of its Constitution. They likewise undertake to prohibit, as far as lies within their power, all activity having the object of promoting directly or indirectly either the union of the Republic of Cyprus with any other State, or the partition of the Island”.
Article 3 provides as follows:
“In the event of any breach of the provisions of the present Treaty, Greece, the United Kingdom, and Turkey undertake to consult together, with a view no making representations, or taking the necessary steps to ensure observance of those provisions.
In so far as common or concerted action may prove impossible, each of the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs established by the present Treaty.
For purposes of completeness I should mention that Article 1 provides that the Republic of Cyprus undertakes to ensure the maintenance of its independence territorial integrity and security, as well as respect for tis Constitution. It further undertook not to participate, in whole or in part in any political or economic union with any State whatsoever. With this intent it prohibits all activity tending to promote directly or indirectly either union or partition of the Island.
On the basis of these founding documents which are to be found in Cmnd paper 679 headed “Conference of Cyprus, Documents signed and initialled at Lancaster House on February 19 1959”, implementing measures were taken to be found in “Cyprus” Cmnd paper 1093, of July 1960.
(c) Documents Presented to Parliament: The Treaty of Establishment
In the document “Cyprus” presented to Parliament by the Secretary of State for the Colonies, the Secretary of State for Foreign Affairs and the Minister of Defence in July 1960, Appendix A includes the Draft Treaty of Establishment with its Annexes, Appendix B the Draft Treaty of Guarantee, Appendix C the Draft Treaty of Alliance, Appendix D the Draft Constitution of Cyprus and Appendices E to V regarding incidental matters, agreements declarations etc. Most well known of these incidental Appendices is Appendix O which provides for the Administration of the Sovereign Base Areas.
The Treaty of Establishment is set out in this bundle of Documents at page 13. Under Article 3 the Republic of Cyprus, Greece, Turkey and the UK undertake to consult and cooperate in the common defence of Cyprus. Under Article 5 the Republic of Cyprus shall secure to everyone within its jurisdiction human rights and fundamental freedoms comparable to those set out in Section I of EC for the Protection of HR and its Protocol. Worth noting is the fact that the Treaty of Establishment is between the UK, Greece, Turkey on the one hand and the Republic of Cyprus on the other. In the preamble the contacting parties take note of the Treaty of Guarantee already signed and proceed to the Terms of the Treaty of Establishment. Under Article 1 the Territory of the Republic of Cyprus shall comprise the Island of Cyprus with the islands lying of its coast with the exception of the two Sovereign Bases which remain under the sovereignty of the UK.
- The Responsibilities of the UK
The UK Government on the basis of the above signed agreements undertook a number of responsibilities which in my opinion failed to carry out and is in breach of its obligations.
- The UK Government guarantees the territorial integrity and security of the Republic of Cyprus underArticle IIof the Treaty of Guarantee (my references in this section are to the Greek Text Appendix 1to the Constitution which is the official text). The territorial integrity and security of the Republic of Cyprus has been violated by the invasion of Turkey in July 1974 and the continuing presence of Turkish Troops in Cyprus. The UK guaranteed the territorial integrity and security of the Republic. (See Denis MacShane ekathemerini.com, Greek Newspaper Comment of 21.7.2018. See also Perry Anderson: The Divisions of Cyprus 2008. London Review of Books “It is Britain that bears the overwhelming responsibility for the dismemberment of Cyprus”See also Συνήγορος στο Έγκλημα εις βάρος της Κύπρου για το ρόλο του ΗΒ στην εισβολή 1974 – Φανούλλα Αργυρού 5.8.16. Επίσης Κλέαρχος Κυριακίδης «Οι συνήγοροι του Τουρκικού δόγματος της διαίρεσης» Agora Dialogue 28.4.2017)
This obligation is a continuing obligation under Article 60 of the Vienna Convention on the Law of Treaties. Further the UK Government is obliged to co-operate in the common defence of Cyprus underArticle 3 of the Treaty of Establishment.
- The UK Government guarantees the state of affairs created by the basic articles the Constitution. Turkey continues to treat the Republic of Cyprus as “defunct” and hence the basic articles of the Constitution have been and are being negated and violated by Turkey which does not recognise them. The UK Government under its guarantee failed to take action and/or effective steps against Turkey in this respect and in general to ensure respect for the state of affairs created by the Basic Articles for the Constitution of the Republic of Cyprus.
III. Under Article II the UK undertook to prohibit as far as lies within its power all activity having the object of promoting directly or indirectly the partition of the Island. Hence the UK Government is obliged not to allow the promotion of any partitionist solution of the Cyprus problem. The partition by a two-state solution in Cyprus or even a BB Federation based in essence on such a notion must be prohibited by the UK Government. The promotion of any solution to the Cyprus problem under any name and umbrella which in essence is partitionist if not directly, Indirectly, is banned by the Treaty of Guarantee and the UK is obliged to prohibit the promotion of such a solution. Under the Treaty of Guarantee the UK Government cannot shut its eyes to the promotion of plans of a partitionist nature. The creation of two constituent states under a confederation umbrella is nothing more than a cover up of a separatist plan which the UK Government undertook towards the Republic of Cyprus and its people to avoid and actively prohibit.
- Under Article II of the Treaty of Guarantee the UK Government undertook and Guaranteed to ensure the independence of Cyprus. This necessarily implies that the Republic of Cyprus can not be considered as “defunct”. It further implies that the UK Government will never promote any solution to the Cyprus problem which either necessitates or is based on a notion that the Republic of Cyprus will cease to exist even for a second or that a new state of affairs will emerge out of a so called “Virgin birth”. Plans such as the Annan Plan with separatist features and a “virgin birth” notion are against the wording and the spirit of the Treaty of Guarantee as well as the obligations of the UK Government which undertakes to ensure the maintenance of the independence of Cyprus. The activities of Lord Hannay in the early part of this Century culminating in the Annan Plan 2004 actively supported by the UK. Government are not consonant with the spirit and wording of the Treaty of Guarantee and the obligations of the UK thereunder.
- The continuous threats against the Republic of Cyprus by Turkey and its illegal activity in the Exclusive Economic Zone of Cyprus, North East West and South of the Republic, the prevention of oil and gas exploration are all acts directed against the security of the Republic of Cyprus. The UK Government under Article II of the Treaty of Guarantee is bound to guarantee the security of the Republic and hence not to remain apathetic to such acts or confine itself only to statements of a kind “that the UK Government recognises the rights of the Republic of Cyprus to explore its Economic Zone. But that some sort of a sharing between the two communities must be found in the context of a solution”. As a Guarantor power the UK Government should take more active steps against such acts of aggression or against the exercise of the Republics sovereign rights.
- Since the UK Government has guaranteed under Article II of the Constitution the state of affairs created by the Basic Articles of the Constitution any active support for any solution of the Cyprus problem beyond what is provided in the basic Articles of the Constitution is contrary to the obligations of the UK undertaken by the Treaty of Guarantee. The proportion of participation in Government has been agreed to a 70% 30%, Greek and Turkish Cypriots respectively with a President and Vice President (not rotating Presidency) and with a Council of Ministers taking absolute majority decisions and certainly not with a right of veto on all matters but in matters of foreign affairs, defence and security only. Proposals for a solution of the Cyprus Problem promoted by the UK Kingdom seem to be completely outside the wording and the spirit of the basic structure of the Republic of Cyprus guaranteed by the UK Government. (See to the Contrary Memorandum of Understanding between the Republic of Cyprus and the UK 5 June 2008 Gordon Brown and Demetris Christofias in Britain)
VII. Under Article IV of the Treaty of Guarantee in case of breach of the Treaty the UK Government undertakes the obligation to consult with the other co-guarantors with regard to the representations or necessary measures to ensure the observance of the Treaty provisions. In case common or concerted action is proven not possible, each of the co- guarantors reserves the right to act with the only intention the reinstatement of the state of affairs created under the Treaty of Guarantee.
A few remarks on this provision are necessary by way of introduction. (See in General the Illegal Treaties on Cyprus by William Mallinson, 22.6.2017 Contrary and more correct view Dr Iakovos Kareklas International Law & Diplomacy on the Turkish Military Intervention of Cyprus 2011 ΕΛΙΑΜΕΠ No 18/2011)
(1) The provision does not and cannot be interpreted as giving the right to any co-guarantor power of unilateral military action such as invasion and occupation or military intervention of any kind. No such thing is expressly mentioned in the Treaty of Guarantee and certainly any interpretation given should be such so as not the bring the Treaty provisions contrary to International Law and Practice (Jus Cogens), or customary International Law or the UN Charter. Any unilateral military action against a member state of the UN by another such member state would require a decision of the Security Council except perhaps in certain strictly limited situations not applicable in the case of Cyprus in 1974. Therefore, the Treaty of Guarantee gave no express right of unilateral military action and further no such implied right can be considered to exist under International Law. To the extent that it purported to give such a right it is clearly null and void as contrary to International Law.
(2) In any event any action should be confined to the reinstatement of the state of affairs guaranteed by the Treaty of Guarantee. Namely the Independence, Territorial Integrity and Security of the Republic of Cyprus and the state of affairs created by the basic articles of its Constitution agreed between all parties in the Memorandum at Lancaster House 19 February 1959. Any action with a different mens rea as proven by subsequent events by a co-guarantor power. Turkey with the objective of occupying a large part of the Republic of Cyprus, set up a subordinate administration as observed by the European Court of Human Rights in the four interstate-applications. It maintains a large army and control of the occupied areas and promotes illegal settlement and is acting in violation of the Treaty of Guarantee and International Law.
Bearing in mind the above and reverting to the obligations of the co- guarantor Power, namely the UK there is a continuing obligation on the UK to consult with Greece relating to the representations and necessary steps to ensure the provisions of the Treaty i.e. the Independence, Territorial, Integrity and Security of the Republic of Cyprus as well as the basic Constitutional structure agreed. Further there is a continuing obligation on the UK Government to act in all respects with the sole objective the reinstatement of the state of affairs and basic Constitutional order as agreed in the Lancaster House, and prior to that the Zurich agreements seen above.
Unfortunately, all proposals for the solution of the Cyprus problem seem to fall outside this scope and apparently the UK Government has failed to take steps for the reinstatement of the status quo ante.
There is I am afraid a failure to co-ordinate with Greece the other co- guarantor power, to adopt a united stand in international fora or develop a policy on the Cyprus issue consonant with the UKs obligation to guarantee the Independence, territorial integrity, security and 1960 basic constitutional structure.
Yet once again we see legal rights and obligations being sacrificed on the altar of political expediency.
- Head of the Frederick University Law Department, Advocate
1st October 2018