THE UN Secretary General’s Special Representative on Cyprus, Espen Barth Eide, stated some time ago that by March or May 2016 there would be agreement on a Cyprus settlement. When that date started coming up, everyone started talking about an agreement by the end of 2016, only seven months away.
In the meantime the momentum in the talks has been lost and the political climate has changed for the worse. Turkish Cypriot leader Mustafa Akinci is facing increasing criticism from the nationalistic right wing parties in northern Cyprus, which have formed a coalition and taken over the administration.
So Mr Akinci is a leader without an administration supporting him. On the Greek Cypriot side Mr Anastasiades is facing a flood of criticism on the talks from the opposition parties campaigning in the parliamentary elections.
The UN and both the Greek and Turkish Cypriot leaderships recognise that change is necessary to regain the momentum in the talks but disagree on what type of changes are necessary. When the momentum falls, the UN tradition is to introduce more frequent meetings, forgetting that the two leaders have many responsibilities that they cannot ignore or delay. Nevertheless, Mr Akinci has already submitted proposals for a new procedure calling for constant meetings and the involvement of five parties, Greek and Turkish Cypriots, Turkey, Greece and the UK. The Greek Cypriot side wants changes so that all the issues are considered concurrently at this stage, including territorial adjustment, and at this stage wish to limit the process to the UN and the Cypriot leaders.
All these ideas of speeding up the process are unlikely to help get things moving towards a solution because the unsolved issues are complex and difficult to resolve, and time is needed for research and brainstorming to find solutions. After 42 years of division, more haste is likely to lead to greater frustration and less progress, simply because insufficient time and effort will be given to resolving the very difficult issues in a reasonable manner.
The traditional format for UN Cyprus talks is one based on each side presenting proposals which are in fact “positions”. For example the Greek Cypriot side proposes that the owners of property should have the first option for enjoyment of their property, and the Turkish Cypriot side counters to support the current user. This would be briefly discussed by the two leaders, then assigned to the two interlocutors, Messrs Mavroyiannis and Nami, who may involve experts to find some way out of the logjam.
Where one side submits a position for the experts to consider, the other side may take one to three weeks to respond. Time goes by, and one year after Akinci and Anastasiades began talks, the most difficult issues have not been resolved.
This is not due to a lack of will on the part of the leaders to proceed, but arises because the issues are so complex, and have serious implications the thousands of displaced people in Cyprus in both communities.
To explain the difficulties it must first be stated that there is no disagreement on who are the rightful owners of affected property. It has also been agreed that owners have the right of restitution, compensation, exchange, other property or a mix of these options. The key problem, however, is restitution of the property, because it returns occupancy to the owner, but displaces the current user. This is a problem for current users on both sides of the Green Line, but it is a massive problem for the Turkish Cypriot side.
To demonstrate the complexity of what appears to be a simple case, the following factors also have to be resolved:
(i) How is the property to be valued? On the basis of the lower prices in northern Cyprus, or the much higher prices south of the Green Line.
(ii) Has the user made a significant improvement, if so the user may have claim the property?
(iii) How will the value of the improvement be calculated?
(iv) How will the owner or the user be compensated? Who will pay and how will the funds be found?
(v) If the user has to move, how will the affected family be rehoused, and how will that be financed?
Both leaders have agreed that their aim is for win-win solutions so nobody loses. But how is that possible without bankrupting the reunited “Federal Republic of Cyprus”?
A more productive way of proceeding to find solutions to the complex issues is to adopt the Harvard Law School’s approach, as presented in the book “Getting to Yes”, and the associated “Programme on Negotiation”. The main idea is for the parties in the talks to work together to consider the legitimate concerns (described as “interests” in the book) to find solutions that are acceptable to both sides. The Harvard PON approach considers the presentation of “positions” as inefficient and inappropriate for reaching a “wise agreement”
For example, if a large number of Greek Cypriot displaced seek restitution of their property in the northern Turkish Cypriot administered federated state, and territorial adjustment also takes place, perhaps 50,000 to 60,000 Turkish Cypriots and Turkish citizens may have to move house. If there is no agreement on how this can be organised and funded in order to actually improve conditions for the affected persons, how can any leader agree since it would cause massive disruption in northern Cyprus?
This issue of how to accommodate the affected user has to be discussed first, and agreed upon and planned, before the Turkish Cypriot side can address the issue of who gets the property, the owner or the user. Mr Akinci has to be able to present a coherent and financially convincing plan that the users and their families will be able to benefit from the displacement.
In addition, the Harvard PON procedure requires that disputes should be resolved by reference to internationally accepted principles. In this respect it seems that there is an understanding to refer to the judgements of the European Court of Human Rights (ECHR) on property. Such objective criteria could be used to resolve the issue of who gets occupancy of the property. It would, therefore, facilitate agreement if the principles, as determined by the ECHR, are codified for ease of reference in order to provide guidelines for the talks.
The UN and the international community fear that this approach will slow things down, but in fact it will speed things up by encouraging cooperation in seeking solutions, and in arriving at solutions that are more likely to be accepted and sustainable (referred to as wise agreements).