Cyprus Mail
CM Regular ColumnistOpinion

Pancyprian children have Cypriot nationality at birth

comment alper christos theklia 1024x579
There are rights and obligations, and you can’t invoke rights but eschew obligations

 

If called upon to rule on the matter, no European institution would buy the argument that pancyprian children like Thekla and Christos are not natural-born citizens of the Republic of Cyprus (RoC). They were born in Cyprus to a natural-born Greek Cypriot mother but were refused because their father has Turkish ancestry though he too is a natural-born Turkish Cypriot.

What infuriated many people was the contrast between two lovely Cypriot kids denied citizenship and the grant of RoC citizenship to criminals and crooks from across the globe for which the government of RoC has been called to account by the European Commission. What infuriated Turkish Cypriots in particular was the race law pursuant to which the children were denied RoC citizenship; and what got to me as a pancyprian child myself was the humiliation inflicted not just on innocent children but also on their courageous parents who dared defy prejudice.

The interests of the children are paramount and the decision to naturalise them is welcome, but the wider question of whether children born in Cyprus to natural born Cypriot women are themselves natural born citizens of RoC was left hanging by the decision to naturalise them.

Citizenship is acquired by birth, descent or naturalisation. The first two do not involve the exercise of discretion because people belong to the country with which they are connected by birth and descent. The idea of belonging does not lend itself to control by government.

People who belong to a country are said to be natural-born citizens, which means they cannot be denied the incidents and benefits of nationality, whereas naturalisation is discretionary. If certain conditions such as good character, permanent residence and knowledge of the language and culture are satisfied, non-nationals are eligible to be granted citizenship.

I have little doubt that in its current mood following Poland’s gross infringement of the basic values of the Union, if the Court of Justice of the European Union (CJEU) were asked to decide the validity of Cyprus’ race law it would rule it repugnant to the EU’s basic values.  If proceedings for infringement were brought by the European Commission against Cyprus the court would rule that denying Cypriot-EU citizenship to children born to a Greek Cypriot mother in Cyprus because their paternal grandfather entered Cyprus unlawfully from Turkey infringes article 2 of the Treaty on European Union.

Article 2 of the Treaty on European Union identifies the values of the EU. It does not deal with citizenship expressly, but it obliges states to have laws in place that reflect the values on which the EU is founded. The bottom line is that you can’t have race laws in the union – period. The European values the denial of nationality at birth of these two children engages are; respect for human dignity, equality, the rule of law, human rights, non-discrimination, tolerance, and equality between women and men.

Any law in Cyprus that is repugnant to those values is invalidated by the amendments to the constitution made when Cyprus joined the EU in 2004. Thus, no law passed by the legislature and no executive or administrative decision repugnant or inconsistent with the values in article 2 of the Treaty on European Union can stand with the EU’s legal order.

But it is not just EU law that implies the obligation to grant citizenship to the children of natural-born Cypriot women. Obligations undertaken pursuant to other international conventions and treaties that have a superior force of law in Cyprus make specific provision relevant to nationality law such as the 1948 Universal Declaration of Human Rights that provides that everyone has the right to a nationality.

Beyond that there are two international conventions that enshrine every child’s right to nationality. The 1966 International Covenant on Civil and Political Rights and the 1989 UN Convention on the Rights of the Child provide that every child has a right from birth to acquire a nationality.

Finally, denial of citizenship to the children of natural-born citizen mothers engages three articles of the European Convention on Human Rights: the right to family life, the right to marry and found a family and the right not to be discriminated against in the enjoyment of each of those rights.

The status of EU law in northern Cyprus is that it was suspended pending a settlement of the Cyprus problem because the government of RoC was not in effective control there though the whole of the island of Cyprus and its citizens became part of the Union in 2004.

Protocol 10 that imposed the suspension states in its preamble that the suspension does not affect the application of EU law in areas under the control of RoC and as the government of the RoC is in control of the issue of RoC passports and ID cards, it has the duty to operate rights to Cypriot citizenship in accordance with EU values.

It is all very well to wax eloquent about seeking a solution to the Cyprus problem in line with EU and international law, but you can’t cherry-pick those laws. As always there are rights and obligations and you can’t invoke rights but eschew obligations under international law. If you do, no one takes you seriously.

 

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

 

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