Loose federation is flavour of the month. Apparently, President Nicos Anastasiades has been thinking the unthinkable for some time. He has now said the unsayable. A loose federation is doable without risk of partition. It is therefore preferable to a tight federation.
The label of confederation is also flavour of the month. It is attached to loose federation by its opponents in Cyprus who fear it is a stepping stone to partition. While understandable such fears are misconceived.
As a matter of language, the prefix con added to federation suggests a connection to federation but at a different level of abstraction. A confederation is more an association of independent states under a broad umbrella like the former Union of Soviet Socialist Republics rather than a system of distribution of power among ethnically and linguistically diverse regions within an established state.
The acid test for confederation is the right to secede. Absent such right, the labels federation and confederation are often used interchangeably. United States, Canada and Switzerland have at one time or another been labelled confederations but in fact, they are federations domestically and cohesive states internationally.
Often federal constitutions have elements that are typically confederal. For example, in Belgium, its federal regions can engage internationally – with the EU for example – in parallel with the king’s government.
The systems of government in Belgium and Switzerland had to have both federal and confederal elements to cater for their regional ethnic and linguistic diversity – a demography that since 1974 Cyprus shares with both – although it is fair to notice that regional diversity in Cyprus was caused by the irregular movement of its population owing to fear of ethnic persecution.
The important point, however, is that there little prospect that Wallonia, for example, will lawfully secede from Belgium or any of the cantons from Switzerland. Being a Belgian or Swiss nowadays transcends being a French-speaking Walloon or a German-speaking Swiss. If only being Cypriot transcended being Greek or Turkish!
In the case of member states of the EU, membership precludes secession in the sense that it is legally impossible for a constituent region to break away and remain within the EU.
Catalonia sought to break away from Spain and failed because it did not have the consent of the central government in Madrid. There was no legal basis for the EU to accept that a breakaway Catalonia remains a member.
The same happened at the time of the Scottish independence referendum. Alex Salmond, the first minister of Scotland, was advised by the EU that if Scotland broke from Britain she would have to reapply to join the EU and her re-entry could not be guaranteed because states such as Spain would object pour decourager les autres.
The EU itself is more federal than confederal despite the fact that it is a union of sovereign independent states. Britain is finding it difficult to leave the EU precisely because the ties that bind the union are not designed to enable states to break away.
The ties comprise a single market, a customs union, freedom of movement of persons, goods, services and capital. It has independent lawmaking institutions and a court of justice. It is designed to tie Europe so tight its breakup is virtually impossible and war unlikely to happen ever again.
So far as Cyprus is concerned, EU treaty law provides that the European legal order is suspended in northern Cyprus pending a comprehensive settlement of the Cyprus problem because the EU relies on states to implement its legal order; and northern Cyprus was not under the effective control of the Republic of Cyprus (RoC).
This was done by protocol 10 attached to Cyprus’ treaty of accession. But the disappearance of RoC in the event of a two-state solution with both entities remaining within the EU would not be legally possible. Under Cyprus’ treaty of accession only one state – the RoC – joined the EU in 2004. Any change in the treaty to let in two different states would require the agreement of all the member states.
In the event of the breakup of the RoC the Greek Cypriot state would probably be treated as the successor state and remain a member – although the Baltic states and Poland that are not too pleased with Cyprus’ subservience to Moscow may cause problems. So far as the Turkish Cypriot state is concerned it would have to apply and qualify in its own right which would be politically and economically very difficult.
The partition of Cyprus would not suit Britain either. The treaty of guarantee does not just guarantee that Cyprus would not be partitioned or unite with another state. It also guarantees Britain’s sovereignty and use of her military bases. If Cyprus breaks up into two states Britain would have to negotiate separate guarantees from the two states. Britain’s sovereignty over her bases would inevitably be called into question since Britain retained sovereignty on independence with the agreement and cooperation of RoC – that would disappear if Cyprus breaks up.
The conundrum for Greek Cypriots is that they do not want Turkish Cypriots involved in their governance, which ironically mirrors precisely the Turkish Cypriot position. Since neither community trusts or wants the other to rule over it, a loose federation would be ideal for both. Greek Cypriots may still have emotional objections for historical reasons because a loose federation would be seen to legitimise Turkey’s involvement and hurt their amour propre.
In 1950 the Greek Cypriots voted to unite with Greece. In 1955 they began a struggle to do this but in 1960 they agreed to independence. They also agreed to joint sovereignty with the Turkish Cypriots and guarantees by Turkey.
In 1963 the Greek Cypriot leadership assumed exclusive control of the government of Cyprus and the international community accepted it as legitimate – a prized possession that among other advantages enabled Cyprus to join the EU in 2004.
In 1974 rogue elements in the Greek Cypriot community overthrew the legitimate government of Cyprus in an irrational attempt to unite with Greece. Turkey intervened militarily and has remained in northern Cyprus since 1974 owing to the inability of all concerned to reach a settlement.
Most Turkish Cypriots sought refuge in the north of Cyprus and most Greek Cypriots in the south. We now have an extraordinary situation where there are two ethnically diverse regions in Cyprus when previously the two communities were interspersed throughout the island.
What President Anastasiades seems to be saying is that the two ethnically diverse parts of Cyprus have crystallised to such an extent that trying to share power within a bicommunal corset would not function; and the political leaders likely to succeed him agree. I sense an avuncular attitude towards his foreign minister, Nicos Christodoulides, as well as for his young rival, Nicolas Papadopoulos, whose clothes he stole to win a second term. Wittingly or unwittingly these three are responsible for the volte face from a tight to a loose federation. Yet Mustafa Akinci seemingly refused to entertain the idea of a loose federation when he last discussed it with the Turkish foreign minister. When the facts change, I would change with the facts.
Alper Ali Riza is a queen’s counsel in the UK and a part-time judge