The 1960 Treaty of Guarantee between Cyprus, Britain and the motherlands – Greece and Turkey to the uninitiated – is going to dominate the news when the interminable negotiations on Cyprus resume after the summer break. The choice of the word ‘guarantee’ to describe an aspect of the relationship between sovereign states was unfortunate. It is not even used in its normal dictionary definition to mean something that gives certainty of outcome, although that is how it is understood by many Turkish Cypriots.
The legal concept of guarantee was imported from private law. If A guarantees an undertaking by B in private law, A is liable to perform the obligation if B fails to do so, which is the sense in which it is used in the 1960 Treaty. Concepts from private law do not always transplant well into public international law and their use is best avoided by the choice of more appropriate terminology.
The Treaty of Guarantee is very short and its structure very simple. According to its provisions Cyprus undertook to maintain the security of her people, her independence and her constitution. In particular Cyprus undertook not to promote any activities that favoured union with Greece or partition with Turkey. Britain and the motherlands for their part guaranteed that Cyprus would keep these undertakings.
If Cyprus failed to keep them, however, then Britain and the motherlands undertook first to make representations to Cyprus and to consult and take concerted action if possible to rectify the position, failing which each of the guarantors reserved the right to take action individually with the sole aim of reestablishing the state of affairs established by the treaty.
The mischief the Treaty was directed at derives from the circumstances obtaining in Cyprus at the time of its inception. The two communities on the island were at daggers drawn in 1958-59 following the armed struggle by the Greek Cypriots against the British for union with Greece and Turkish Cypriot demands for partition. The compromise was that of power sharing in an independent Cyprus rather than union or partition. But this was not what the Greek Cypriots wanted at the time. Therefore Britain and the motherlands first pressured them to agree and then arrogated to themselves the power to intervene to ensure that the Cypriots did not stray from the narrow path of independence or started killing each other again, as indeed they promptly did in 1963 and intermittently afterwards until 1974.
Given that the Republic of Cyprus was not what the Cypriots really wanted, the Treaty of Guarantee was both necessary and proportionate to begin with, even though the Greek Cypriots psyched themselves to resent it instead of ensuring it could not be activated. Indeed, in light of subsequent events the Treaty was prescient, albeit with a twist at the end which turned the whole idea of guarantees on its head when Greece tried to unite Cyprus with Greece in 1974 and Turkey to partition her. Quis custodiet ipsos custodies? (Who will guard the guards themselves?) is a question Turkish Cypriots in particular should ponder over the summer.
As with most international treaties there is provision in article 5 for the treaty to be registered at the UN which was done in December 1960. This is not just a meaningless formality. Registration with the UN has legal consequences. By article 103 of the UN Charter, if there is a conflict between the obligations under the UN Charter and those under a registered treaty, the obligations under the charter prevail. Thus any action by the individual guarantor involving the use of force is confined to necessary and proportionate force to assist in the right of self defence of another, or in furtherance of humanitarian protection, or if authorised by the UN Security Council. The use of force for any other purpose is in conflict with the UN Charter and therefore unlawful.
In 1974 President Makarios called for assistance following a coup d’etat against him and his government by Greek army officers and local armed rebels, and Turkey’s response was initially consistent both with the Treaty of Guarantee and the UN Charter because it involved the use of force ostensibly to defend the lawful government of Cyprus and to assist in the self defence of the Turkish Cypriots.
The question in the context of the Cyprus negotiations is whether it is worth arguing that the rights to assistance in self defence and the right to humanitarian protection need to be included in a separate treaty, given the Turkish Cypriots have these rights under the UN Charter anyway. If this can be confirmed formally by the UN, a treaty saying so is otiose, and the talks can move on to other matters and hopefully to fruition.
Obviously the Turkish troops stationed in north Cyprus will begin to withdraw immediately with the advent of a solution, but in light of the bitter experiences of the past there will be a transition period to make sure the black shirts and grey wolves of this world who have recently resurfaced among us do not spoil the launch of the Federal Republic of Cyprus. Last time the power sharing arrangements disintegrated in three years, so learning from the past it would be wise to keep the Treaty of Guarantee as is for a transition period of say five years and thereafter terminate it by consent.
I strongly believe that the question of guarantees is no longer as important to the Turkish Cypriots as it used to be since the Greek Cypriots accept in principle that most Turkish Cypriots will remain in north Cyprus where they will have the benefit of both state and federal security. That in itself provides much better protection than Turkey ever provided in the past. Indeed, I am still not clear how the Turkish Cypriots living in Larnaca, Limassol and Paphos districts were protected when Turkey intervened by landing troops in north Cyprus in 1974.
I am also not clear why the Treaty of Guarantee has not been invoked by Britain and Greece to call Turkey to account for her actions in north Cyprus and to consider whether they are contrary to her obligations under article 2 not to promote partition. Who guarantees the guarantors?
Speaking for myself I am as dead against partition as I am dead against the departure from Kemal Ataturk’s legacy which seems to be the policy of the present Turkish government. Staying loyal to Ataturk’s legacy is very important to most Turkish Cypriots and it is best maintained by reuniting Cyprus and becoming fully integrated into the European Union.
The British can Brexit if they want to, but for our perennial problem in Cyprus, membership of the European Union in an ever closer union is the stuff that dreams are made on.
Alper Ali Riza is a queen’s counsel in the UK and a part time judge