In a letter sent to members of the UN Security Council, the Turkish Cypriot leader Mustafa Akinci has called for the reassessment of the mandate of the peacekeeping force Unficyp.
In the letter, dated July 2, Akinci puts forward several arguments of a legal and political nature to support his demand. My comments concern two legal points. The first is that Unficyp continues to cooperate with the Turkish Cypriot authorities without a legal basis. The second is the expressed readiness of his community to prepare a document with the UN dealing with all the aspects of their relations.
As far as the legal argument is concerned, it should be noted that the consent of the host state is the most important legal basis for the admission and operation of a UN force. In the case of Cyprus, this consent has been given by the government of the Republic of Cyprus.
The then Turkish Cypriot vice-president did not protest against the arrival of Unficyp back in 1964, but argued that his constitutional rights were violated when consent from him was not sought (see UN documents S/5583, S/5608, S/5613 and S/5629).
The necessity of placing relations between the UN and the host state on a clear legal basis led to the conclusion of an agreement, on March 31, 1964, between the Republic of Cyprus and the UN, concerning the status of Unficyp.
It is quite obvious that the UN itself viewed the government of the Republic of Cyprus, following the voluntary defection of its Turkish Cypriot members in December 1963, as having the full constitutional competence to sign the agreement with the UN.
Concerning the purposes of Unficyp’s operation, its mandate, as enunciated by the Security Council in its resolution of March 4, 1964 was in the interest of preserving international peace and security, to use its best efforts to prevent a recurrence of fighting and to help maintain and restore law and order and return to normal conditions.
It is of the utmost importance to mention that operative paragraph 2 recognises that the responsibility for the maintenance and restoration of law and order belongs to the government of Cyprus.
There is, therefore, no need for any additional legal basis for cooperation between the Turkish Cypriots and Unficyp, since the legal basis of the force rests equally upon Security Council Resolution 186 of March 4, 1964, taken in accordance with the provisions of the UN Charter and the consent of the government of the Republic of Cyprus, which requested the presence of a UN peacekeeping force on the island.
Coming now to Akinci’s expressed readiness to prepare a document with the UN to deal with all aspects of their relations, one wonders whether the UN can ignore their own Resolution 541 (1983) of November 18, 1983 which: “Deplores the Declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus and considers the Declaration referred to above as legally invalid and calls for its withdrawal”.
Moreover, the resolution “calls upon all states not to recognise any Cypriot state other than the Republic of Cyprus”.
There is, however, another legal argument against preparing such a document which is obviously aimed at giving the Turkish Cypriot side a say in matters concerning Unficyp. For 54 years the Turkish Cypriot side cooperated with Unficyp in the performance of its peacekeeping mission. This has created customary international law according to eminent international lawyers. The two necessary elements implying the existence of customary law are there. “Consuetudo”, prolonged repetition of the same action and “opinio juris sive necessitatis”, belief in the obligatory character of its usage. This is the opinion of Professor Paul Guggenheim (“Traite de Droit International Public” Tome 1, p.46), as well as that of Professor Oppenheim (International Law, Vol. I, p.26) who confirms that “international jurists speak of a custom when a clear and continuous habit of doing certain actions has grown up under the aegis of the conviction that these actions are, according to International Law, obligatory or right”.
What is, therefore, needed is respect for the norms of international law and the political will to reach an agreement for the solution of the Cyprus problem, which will benefit both communities. Any other argument only serves political expediencies.
Andrestinos Papadopoulos is a former ambassador of Cyprus
