The greatest challenge to concluding an agreement on the BBF model is political

I write in response to the article, “We must preserve the Republic of Cyprus” by Yiannakis Matsis (Sunday Mail, February 28 https://cyprus-mail.com/2021/02/28/we-must-preserve-republic-of-cyprus/). Mr Matsis quoted me in an effort to establish that a federal settlement in Cyprus would be at odds with EU law and human rights. Obviously, I can’t remember what I may or may not have said years ago, or whether I even misspoke at any point. Let me see if I can clarify my thinking on a bizonal, bicommunal federation (BBF). Below I explain that there is nothing problematic with such a federation in principle. Meanwhile, human rights issues are not insurmountable. Finally, the greatest challenge to concluding an agreement on the BBF model is political, not human rights.

The international community supports a federal settlement and is prepared to accommodate transitional features that may affect human rights. The most recent UNSC Resolution (2561) went so far as to reference the definition of the settlement sought, as outlined in UN Security Council Res 716 of 1991. This entails political equality and includes provisions for Turkish Cypriots enjoying a majority of population and property ownership in their constituent state, as defined by the then UN secretary-general in 1990. Meanwhile, the EU has vowed to accommodate any deal the sides agree to, meaning the implementation of the four freedoms in the context of bizonality. I believe that has been the stance since the Prodi Commission in 2000, with very general provisos. No doubt, EU foreign policy chief Josep Borrell reiterated this stance on his recent trip to Cyprus.

The Turkish side has argued that any settlement should be part of the EU’s primary law, but there is no appetite in the EU for a new accession treaty for a ‘new Cyprus’. There would be almost no grounds for challenging any of the transitional or permanent derogations if these were incorporated as EU primary law via treaty. As this is not on the cards, at present, we do not have a failsafe model to deal with legal challenges. The so-called Annan Plan entailed transitional elements, which were virtual derogations from the EU acquis. We should remember that the Annan Plan referendums occurred after the signing of the EU accession treaty. Had the UN blueprint been ratified through referendums, an Act of Adaptation would have come into effect. Given the way the European Court of Human Rights has been accommodating the Turkish Cypriot Immovable Property Commission, we can anticipate that any ratified agreement would survive legal challenges. That is my sanguine reading. It’s also the pragmatic view of the EU.

The accession of the (Greek Cypriot-led) Republic of Cyprus to the EU does complicate the way forward, politically speaking. After all, the relevant protocol gives Cyprus a veto through the principle of unanimity. Whatever constructive ambiguities on ‘state succession’ that existed prior to accession (i.e. former UN envoy to Cyprus Alvaro de Soto’s ‘virgin birth’ regarding state succession) have been negated, in my opinion. So, the ‘new state of affairs’, should we ever get there, would be based on devolution. This, in turn, makes legal challenges to the transitional features of a settlement more likely.

The greatest obstacle to federation is not legal but political. It has proven difficult to reaffirm commitments to convergences following the failed Crans-Montana summit. The view from the Turkish side is that President Anastasiades’ objections to power-sharing provisions were guided by political considerations and were not based on human rights concerns. Guterres’ special envoy, Jane Holl Lute, spent months trying to clarify the matter. We heard of various iterations, including the notion of ‘decentralised’ federation, but we never learned of the particulars.

These alternatives were shelved through UN Secretary-General Antonio Guterres’ intervention at the informal Berlin summit of 2019. With Ersin Tatar at the helm, the Turkish side has now rejected the Guterres framework in toto. It becomes more difficult to square the circle with the Turkish position overtly based on ‘two states’ and ‘sovereign equality’. The UN has downgraded its own framework to a tenuous ‘body of work’.

Yet, none of this has to do with human rights; none of this affects whether a federal settlement in Cyprus is in accordance with EU law and human rights.

Professor Dr Erol Kaymak, department of political science and international relations, Eastern Mediterranean University, Famagusta