By Alper Ali Riza
The collapse of the talks on Cyprus at the last chance saloon in Mont Pelerin just when a deal seemed within touching distance a week ago shows the rejectionists still hold the whip hand.
Last week I poked fun at the rejectionist camp, likening them to the stupid dog in Aesop’s fable. This week I have to deal with a dog without his bone and egg on my face. What better way to deal with such a reversal of fortune than to indulge one of Aesop’s best-known fables – the fox and the sour grapes?
Cyprus would indeed have left a sour taste as a reunited federation. The federal idea was daft. Only a unitary state or confederation could ever work. Not a single Turkish soldier remains. Not an inch of land back. The iron fist approach is best.
Far from not wishing to play the blame game, there is nothing I would rather do than say to all rejectionists across the divide: you are totally to blame, you finally broke the iron will of two Cypriot patriots, now show us ‘of what metal’ you are made.
Yusuf Kanli, a Turkish Cypriot journalist wrote an article on Cyprus in Hurriyet on November 7 2016 suggesting a velvet divorce between the two communities. I must confess that for a pro solution federalist like myself, the failure of the talks in Switzerland felt like being taken up the top of a very steep mountain and then down again and I am very tired.
After forty years of separation I too am reluctantly – kicking and screaming actually – driven to the conclusion that the relationship between the two communities at the political level at least has broken down irretrievably.
Now, all passion spent, there is nothing left except bitterness and acrimony. The marriage is an empty shell and divorce is inevitable; a welcome release even. As the old song goes ‘Please release me let me go. To live a lie would be a sin. Release me and let me live again.’
Bearing in mind the two communities in Cyprus have been brainwashed for so many years to fear and distrust each other – loathe one another in some individual cases – it is now necessary to start a conversation on what a velvet divorce might actually look like.
It goes without saying that the annexation of north Cyprus by Turkey is out of the question as it would be in breach of the Treaty of Lausanne of 1923, the Treaty of Guarantee of 1960 and the UN Charter.
Under the 1945 UN Charter the territory of states is inviolate and cannot be changed by military action, which, with one exception, has not happened anywhere since World War II. The annexation of Crimea by Russia in 2014 is the proverbial exception that proves the rule.
President Edrogan makes occasional revanchist noises questioning the concessions Kemal Ataturk made in the Treaty of Lausanne renouncing Turkish claims to the Aegean islands close to Turkey, but he has not questioned the recognition of the annexation of Cyprus by Britain, the colonial power from which Cyprus became independent in 1960.
In any case, Turkish Cypriots are staunch supporters of Ataturk’s pro European orientation and his legacy of peace at home and peace in the world within the borders agreed at Lausanne in 1923: pacta sunt servanda (treaties must be complied with in good faith).
Any attempt to annex the territory of a member state of the EU is unthinkable in the context of an ever-closer union that is getting closer.
Among other penalties, it would provoke sanctions many times tougher than those imposed by the EU on Russia after her annexation of Crimea.
At the same time membership of the EU means that the values of security, peace, and equality and freedom from discrimination hold true for all Cypriots across the whole of Cyprus.
When the Republic of Cyprus joined in 2004, it was never intended by the EU that the Turkish Cypriot community would be permanently excluded from the incidents and benefits of membership but rather, as the preamble to Protocol 10 of the Treaty of Accession makes clear, ‘the suspension of the application of the acquis,’ would last as long as a comprehensive settlement was being sought in good faith.
The failure to reach a comprehensive settlement therefore may constitute a fundamental change of circumstances capable in international law of terminating the suspension of the acquis in north Cyprus under Protocol 10.
The possibility of a comprehensive settlement was a condition precedent for the operation of Protocol 10 but if such a settlement is now not going to happen the EU’s duty to treat the Turkish Cypriots in accordance with the acquis including the equality laws contained in the Treaty on European Union and the Charter of Fundamental Rights will have to be addressed.
The charter specifically binds all institutions of the EU to act in compliance with EU law, that includes the anti discrimination laws whether or not they are acting inside or outside the EU legal framework.
In other words, if a settlement is no longer attainable, EU institutions including the European Commission and the European Council have an obligation to revisit the position of the Turkish Cypriot community either because Protocol 10 has become obsolete or on the basis that Protocol 10 cannot preclude the EU from affording the same incidents and benefits of EU memebership to Turkish Cypriots as it does to Greek Cypriots.
Moreover once the necessary harmonisation took place and north Cyprus was sufficiently harmonised, the implementation of EU law would carry with it some sort of regional association between the EU and the Turkish Cypriot community. Obviously such association would fall short of recognition, but it may be similar to the one Scotland and some German states have with the EU independently of their national governments.
In the end however the EU would only be able to lift the suspension of EU law if the Turkish Cypriot community unilaterally returned the land they voted to return in the 2004 referendum – which the EU treats as part of its acquis – and allowed freedom of movement and residence in accordance with EU law.
The whole of Cyprus joined in 2004 with her problem. The EU may now have to address the impossible question of how to treat Cyprus as one whole country without a comprehensive settlement.
The Greek and Turkish Cypriot ruling elites would not have to share power – something we all know they did not want to do anyway. The Turkish Cypriots would have some sort of regional status within the EU short of statehood, provided they returned territory they voted to return in 2004 and provided there was compliance with all EU laws on property, freedom of movement and residence.
No ifs, no buts, no referendums.
Alper Ali Riza is a queen’s counsel and part time judge in the UK