By Alper Ali Riza
Despite rumours to the contrary Nicos Anastasiades is not secretly negotiating the partition of Cyprus. Dealing with Turkey directly even in secret may be leapfrogging the Turkish Cypriot leadership but it is not negotiating partition.
My conclusion is analytical – it cannot be based on evidence as the content of the president’s dialogue with the Turkish foreign minister in New York is secret. Nevertheless, it is well grounded as no president of the Republic of Cyprus can lawfully embark on acts leading to partition. Quite apart from being anathema to most Greek Cypriots, it would also be in breach of a basic law of the constitution; and as a lawyer Nicos Anastasiades must know that a president can be interdicted in the courts on the ground that such activities would constitute an abuse of the office of president.
The constitution of Cyprus could not be clearer: the integral or partial union with another state or separatist independence is excluded. This is a basic law of the constitution – one that cannot be varied, amended or repealed – so that a president who takes any step leading to partition lays himself open to challenge in the courts by any person with a legitimate interest.
The RoC is also bound by international treaty to respect its constitution including the prohibition on activities that directly or indirectly promote partition. The prohibition is contained in the much-maligned treaty of guarantee which has constitutional force as a basic law of the RoC.
I say much maligned because the reason it was called the treaty of guarantee was not because it enabled the use of force as an instrument of guarantee but because the RoC gave an undertaking to prohibit the Greek Cypriot community from seeking union with Greece and the Turkish Cypriot community from seeking partition, and their undertakings were guaranteed by their motherlands.
For reasons to do with an irrational attachment to the motherlands harboured by many nationalists in Cyprus at the time, an undertaking by their leaders was not thought adequate or trustworthy.
Basically, it was thought likely that the passion for the motherlands could get the better of Cypriot leaders after independence and that the most effective way to secure the independence and indivisibility of the RoC was to get the object of their desire to guarantee they did not stray from independence. If their passion for the motherlands became an irresistible urge, Greece would intervene with the Greek Cypriots to dissuade them from promoting union with Greece and Turkey with the Turkish Cypriots to dissuade them from promoting partition.
So like parents guarantee undertakings given by their under-age children, Greece and Turkey guaranteed that the Greek and Turkish Cypriot communities would carry out their obligations under the constitution to stay independent and undivided.
The way the guarantee system was supposed to work was as a kind of insurance arrangement. If either community caused the RoC to breach its undertaking to respect its constitution the motherland whose community was responsible for the breach was supposed to step in to ensure the RoC kept its treaty undertakings.
As for Britain, she was as much guarantor as guaranteed. She got a guarantee from the RoC and the motherlands about the status of her sovereign base areas. In the event, this came in handy in terms of her other role as a guarantor when the troubles broke out in 1963 and British troops were deployed to contain the security situation until the UN arrived in 1964.
The idea of a colonial power handing over sovereignty to a government comprising two communities at loggerheads guaranteed by their motherlands had too many imponderables to ensure independence. So it was felt necessary for a contingency provision in the event of failure. So provision for unilateral action was included if a motherland lost control of her community or was otherwise unable to act.
But the article in the treaty authorising unilateral action is not part of the guarantee system as such. On the contrary, it was concerned with what would happen if the guarantees to get the Cypriots to keep to their undertakings did not work or if a guarantor power went rogue – which is what happened in 1974 when the Greek military dictatorship mounted a coup d’etat against the government of Archbishop Makarios.
Unilateral action was very much a step of last resort where concerted action by the guarantors was impossible, and then only if the sole aim were to restore the state of affairs created by the treaty. In other words to restore independence, territorial integrity, security and respect for the constitution of the RoC if any of them were violated.
The use of force is not mentioned in terms. Furthermore, as the treaty was deposited with the UN the only force permitted had to be consistent with the UN Charter which means necessary and proportionate force in self-defence in the context of restoring security.
On a close study of the constitution of Cyprus and the treaties it is legitimate – desirable even – for the president of the RoC to negotiate with Turkey for the reestablishment of the state of affairs created by the treaties but not separatist independence or partition. You rarely go wrong if you play by the rules.
There is a provision in the constitution of Cyprus for repeal, variation or amendment of provisions that are not basic laws provided the necessary parliamentary approval is obtained from both communities.
On my reading of the basic laws of the constitution, the situation on the ground as it has developed after 1974 can be accommodated within the confines of the constitutional restrictions imposed by the basic laws of the 1960 constitution.
As time passes I am more and more convinced that the 1960 agreements are of huge constitutional and historical importance. They were not perfect but very experienced leaders in Britain, Greece and Turkey managed to agree a way forward that it is better to build on rather than throwing the baby out with the bathwater.
Alper Ali Riza is a queen’s counsel in the UK and a part-time judge
