Cyprus Mail
CM Regular Columnist Opinion

Leaders should remember their allegiance to the constitution

Perhaps the secretary-general is talking to the wrong arm of government

By Alper Ali Riza

Last week it was the bond of nationality that exercised this column. This week it had to be the related concept of allegiance, which is what Monday’s meeting in Berlin between the leaders of the two communities ought to be about.

At the risk of becoming a Cyprus problem bore, I am driven to remind readers that the terms of reference in negotiations on the Cyprus problem need to be based on a presumed allegiance to the Republic of Cyprus (RoC) and its constitution. The RoC constitution was a template that was barely tried before it was nipped in the bud, yet is hugely important to any settlement since the theoretical possibilities unleashed by the establishment of the RoC in 1960 under its constitution is the primary motivation for putting Cyprus back together again as a bicommunal state.

After all Cyprus’ constitution is the only historical compromise underscored by international treaties that has ever been agreed on Cyprus. Turkey and the Turkish Cypriots still invoke the treaties and the constitution in support of their case when it suits, and the constitution is the edifice upon which RoC has successfully claimed recognition as a state since 1960. So it is unhistorical to look for new terms of reference.

Historically, the 1960 treaties that established the RoC were part of a continuum that began with the 1923 treaty of Lausanne under which Turkey ceded sovereignty over the islands in the Eastern Aegean to Greece, the Dodecanese to Italy and Cyprus to Britain.

Italy ceded sovereignty of the Dodecanese to Greece at the end of World War II in the treaty of Paris of 1947 under which the defeated Axis powers agreed territorial adjustments with the victorious allies. It was inevitable that the Dodecanese would go to Greece as she fought and repulsed Italy in the war.

Cyprus was different. It was an island too far for Greece – literally because it is tucked far away under Turkey in the Eastern Mediterranean, and because it was a British colony which meant that Cyprus was not on the table at the conference in Paris in 1947.

However, the sun began to set on the British Empire. Britain was demob happy but exhausted, in debt and displaced as top dog by the USA. In August 1947 British India became independent, which sparked off a clamour for self-determination that spread like wildfire to all colonial peoples including the Greek Cypriots.

Initially the British were reluctant to let go of Cyprus. For their part Turkey and the Turkish Cypriots baulked at the prospect of self-determination for Cyprus, since the Greek Cypriots were the majority and their leaders made it clear that for them self-determination meant union with Greece

Britain’s policy on Cyprus moved a mild step forward when Turkey and Greece agreed guaranteed independence for Cyprus in exchange for the retention of British sovereignty over two bases there. This was enshrined in the 1960 treaties of establishment, guarantee and alliance that accompanied the constitution of Cyprus that ushered in RoC as an independent state.

The British got bases in Cyprus in exchange for granting her independence. The Greek Cypriots got self-determination short of union and majority control of the government of RoC, which has  stood them in good stead ever since. The Turkish Cypriots got joint sovereignty plus commensurate participation in the government of RoC, which they could not keep and which they would like back in one form or another. And Greece and Turkey got a foothold on the island ostensibly as part of the treaty of alliance but in truth to keep each other in check.

Most things that could have gone wrong went wrong after 1960. In terms of finding a way out of the current impasse, however, it is interesting to notice that whatever went wrong was anticipated in the treaties and the constitution.

At a legalistic level of abstraction what happened in 1974 was that there was an attempt to disturb the constitution. The emergency mechanism in the treaties kicked in and following demographic changes the question is what constitutional and treaty adjustments are now necessary to preserve the RoC with a constitution similar to the one established in 1960.

As matters stand today the government of the RoC is exclusively Greek Cypriot, the demographic distribution of the two communities changed to two areas, and since 1974 there has been a deployment of a lot more Turkish troops than is permitted under the 1960 treaties.

Yet the 1960 constitution and its treaties must be the starting point to deal with each of those issues. They constitute the terms of reference and the UN secretary-general needs to digest this stark reality. The constitution and its treaties are the only international documents Greeks and Turks have ever agreed on Cyprus and how far, if at all, they can be used or be adjusted to accommodate the new state of affairs is what the two sides and their leaders need to address.

As citizens of RoC they are presumed to owe allegiance to the RoC and its constitution.

The constitution of Cyprus has basic provisions that cannot be changed and other provisions that can be changed. They are set out in Annex III of the constitution.

As is well known the constitution is bicommunal. What is less well known is that article 185, which provides that the territory of the Republic is one and indivisible, can be changed into two zones. It can be varied, amended or repealed by a two thirds majority of members of the House of Representatives of each community. Separatist independence, however, is strictly verboten.

So under Cyprus’ constitution any bizonal solution requires parliamentary approval rather than a people’s vote in a referendum. Perhaps the UN secretary-general is talking to the wrong arm of government!

Also under the 1960 Cyprus constitution the treaty of guarantee is a basic provision with constitutional force, which cannot be changed. But since it was registered with the UN pursuant to an obligation for that to be done contained in the treaty itself, it can be explained in an explanatory note to make it clear that the treaty of guarantee accords with the UN Charter, which prohibits the use of force other than that permitted by the UN Charter – in self defence or when authorised by the UN Security Council.

So what is required of the leaders is to agree adjustments to the law of the constitution to which they are both deemed to owe allegiance.

Alper Ali Riza is a queen’s counsel in the UK and a part-time judge.

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