The UN’s man in Cyprus, Mr Espen Barth Eide, is a diplomat. Diplomats are too tactful to lie. It is said of them that they are so tactful they invariably remember a woman’s birthday but never her age! For this reason it is inconceivable that Mr Eide remembered the limits of the Turkish position on guarantees and troop withdrawals but forgot the Greek side’s riposte.
We now know, thanks to Mr Eide, that in the event of an overall settlement, Turkey would have been prepared to forego guarantor status and reduce her troops to 650 soldiers, subject to review in 15 years.
I am not clear why this was not accepted by Anastasiades – although I have some idea that partly exonerates him. Was it because it was not strictly in line with the new zero guarantees and zero troops dogma? Was it because Anastasiades wanted a sunset clause rather than a review in 15 years? Was it that the Turks were not prepared to commit their position in writing until the overall settlement was ready for signing? Was it because there had built up such a head of steam against a federal solution on the Greek Cypriot side domestically that Anastasiades would not have been able to sell it? Or was it all the above?
I have said before that the zero slogan was fine as an aim but not as a policy set in stone. Any agreement needs to be sustainable and guarantees are necessary to that end. No guarantees means no Turkish guarantees, not no guarantee mechanisms per se. It seems the Turkish side now accepts that the 1960 guarantees are not as necessary in 2017 as they were in 1960. The 1960 guarantees were there to preserve Cyprus as an independent state because the Greek Cypriots wanted to hand over sovereignty to Greece. They no longer wish to do so. Indeed, the political class enjoy Cyprus’ sovereignty so much they do not wish to share it with anyone else, least of all the Turkish Cypriots. Besides people now realise that it is not necessary to be a province of Greece to be Greek. It is a matter of language, religion and culture, not political union.
In 2017 the problem is different. The Greek Cypriots prefer a unitary state rather than the federation that was on the table in the talks at Crans-Montana. Therefore there had to be some sort of implementation guarantee mechanism. It seems the Turkish Cypriot side now accepts that an EU treaty guarantee would be much more effective than the 1960 Treaty of Guarantee. So zero guarantees is a one-sided misnomer because EU guarantees have always been the preferred guarantee mechanism offered by Anastasiades, which the Turkish side was prepared to accept as part of an overall packet.
As for the wretched sunset clause, those not well versed with the eccentricities of English law do not understand that this is a statutory mechanism that has limitations peculiar to the British constitution which is famously unwritten – not in one document that is.
A sunset clause is not legally a very precise concept because there is no such thing as an absolute sunset clause in English law. In Roman law all laws were finite in the sense that they were not indefinite. Not so in English law. Hence the need sometimes to have a clause whereby a law ends automatically unless renewed. The governing principle, however, is that one parliament cannot bind another, which means that if a future parliament wants the sun not to set on a particular statute it doesn’t. In other words, taking the metaphor no further than strictly necessary it is not the Sun that sets but the Earth that turns. If the concept was properly understood in its pragmatic English setting it would have been possible to have a sunset clause, as demanded by the Greek side, subject to review, as demanded by the Turkish side.
The refusal of the Turkish foreign minister to put his country’s position on guarantees in writing is unsurprising. Greek Cypriot negotiator Andreas Mavroyannis, who was advising the president, knows this because he is a seasoned diplomat. He must be aware that one of the reasons for secrecy in diplomacy is the need to protect governments from political embarrassment back home.
If a government has publicly proclaimed different policies it is now prepared to abandon, it is unlikely to put in writing a position that might cause embarrassment, unless presented in the context of an overall settlement that can be sold as a triumph back home. Owing to a misunderstanding about the effect of the Treaty of Guarantee, the Turkish side presented it to its domestic audience as of huge importance to security. On more mature reflection, they realised that it did not actually add much to Turkish Cypriot security under the UN Charter.
In the event and in the context of an overall settlement, Turkey was prepared to forego guarantor status but not without a deal the government could sell back in Turkey and north Cyprus. Ambassador Mavroyiannis must have realised this and must have advised accordingly. Whether Anastasiades was receptive to such advice is the seven billion euro question.
The other side of the same coin faced Anastasiades. Whether we federalists like it or not there has been a sea change in Greek Cypriot thinking the last few years. I have some idea about the reasons for this but that is for another day. The issue here is that the zeitgeist is different to the time when the Greek Cypriots were content with a federal solution. Rightly or wrongly the mood now is in favour of a unitary state or the status quo.
Anastasiades is nothing if not a consummate politician. Like most politicians he has no strong beliefs other than the acquisition and retention of power. For example in 2004 he supported the Annan plan under which the Treaty of Guarantee was accepted by default of opposition – not even the super rejectionists of the time opposed the retention of the 1960 Treaty of Guarantee.
Yet in 2017 we are left bereft of a solution because of a zero guarantees policy. So 100,000 refugees will not return to their land and properties owing to a stance that was forsaken in 2004 by the same person who is now milking the zero guarantees slogan for all it is worth to retain power.
That said what could he have done given that a federal solution would not have been approved by the Greek Cypriots in their current mood?
But more importantly what is to be done given the impossibility of our predicament? The answer is as democratic as it is pragmatic. As the prophet said ‘if the mountain will not come to Mohammad, Mohammad will go to the mountain.’ If the Greek Cypriots cannot politically reach an agreement to enable the refugees to return, the Turkish Cypriots will agree for them to return as agreed in the talks. Why not? The present state of affairs cannot be allowed to fester much longer.
In the absence of a comprehensive settlement the Turkish Cypriots should act unilaterally and hand over land and properties they agreed under the convergences achieved in the talks.
How they do so and under what conditions can be agreed fairly quickly. This will have to be done at a review of Cyprus’ treaty of accession into the EU in light of the impossibility of a comprehensive settlement envisaged by Protocol 10 of the treaty.
If a comprehensive settlement is impossible a piecemeal gradual one is inevitable.
Alper Ali Riza is a queen’s counsel in the UK and a part time judge