Revising the Treaty of Guarantee for a Cyprus Settlement

On June 28^th, 2017, the UN-sponsored international conference in Crans-Montana, Switzerland, will attempt to comprehensively settle the Cyprus Issue. The Greek-Cypriot and Turkish-Cypriot delegations will be joined by the delegations of the three ‘Guarantor Powers’ (Greece, Turkey and the UK), and one from the EU as an observer, in order to discuss the issue of security and guarantees – an issue that appears to be the major stumbling block for an agreement. The existing Treaty of Guarantee (1960) has failed in so many respects. It has been violated by the Greek side, which suspended basic articles of the Constitution under the doctrine of necessity in the 1960s and sought to unite the island with Greece following the junta-led military coup in 1974. It has also been violated by the Turkish side, which used it to militarily intervene in 1974, without seeking to reestablish the state of affairs created in 1960 and instead opting to partition the island.

The current position of the Greek side is that guarantees should be abolished altogether, whereas the Turkish side considers that they have provided effective security and should be maintained in some form or another. In public discourse, both sides selectively interpret the notion of guarantee and what it is meant to serve so as to support their positions. If not treated as a political cover but in a legal sense, however, a guarantee refers to ‘any legally binding commitment to secure [an] object’ (Oppenheim’s International Law, vol. 1, 9^th edition, p. 1323). Creating binding commitments is the gist of the matter that should concern us.

The existing Treaty of Guarantee overplays hard guarantees, i.e. the neocolonial rights of intervention that the guarantors secured for themselves if there is a breach, and less the responsibilities that they (and Cypriots) undertook and what happens if they fail to fulfill them. This hardness is encapsulated in the threat of using force, as ambiguously implied in the Treaty of Guarantee, given that a guarantor ‘reserves the right to take action’ if key provisions of the Treaty are violated. Note, however that Hans Kelsen in a Legal Opinion commissioned by the UN in 1959, just before independence, for the purpose of assessing the eligibility of the future Republic of Cyprus to become a member, stated that ‘the right to take action’ does not mean ‘an unqualified right to intervene by the use of armed force’ (Kelsen’s Opinion is reproduced in S. Soulioti (ed.) Fettered Independence: Cyprus 1878-1964, vol. 2, The Documents, 2006, pp. 253-260). Irrespective of differences over hard security allowances, what is clearly downplayed in the 1960 Treaty of Guarantee are soft guarantees, i.e. a range of legally binding commitments that the Settlement will be fully implemented, including a legally binding obligation that all potential disputes will be peacefully resolved, if and where necessary through international adjudication.

At this final stage of the Cyprus negotiation, the UN and the different parties ought to work intensely to qualify hard guarantees and expand soft guarantees, especially with regard to the implementation of the comprehensive Settlement that they hope to reach in Switzerland this month. After all, problems in the implementation of the 1960 Settlement that established the Republic of Cyprus was one of the reasons that intercommunal troubles started soon after independence. Securing legally binding commitments and means of enforcing them is of the essence. Granting compulsory jurisdiction to the International Court of Justice (ICJ) with regard to the Cyprus Settlement and its implementation is one way of framing the resolution of potential disputes. That is to say, all sides should agree that in the event of international legal disputes, which cannot be resolved by negotiation and/or through UN or EU mediation within reasonable time, these can be referred to the ICJ by any State Party to the dispute.

Beyond the Cyprus Settlement, referral to the ICJ should include any maritime disputes between Cyprus and Greece and/or Turkey, particularly where they relate to delimitation, access, exploration and use of sea resources.. This is crucial given that maritime disputes have intensified and become a constant source of crisis in the Eastern Mediterranean. If such disputes remain unresolved they will create tensions between Cyprus and the two ‘motherlands’, Greece and Turkey, that can potentially destabilize the federal governance of reunified Cyprus and hinder the implementation of the Settlement. A procedure that ends up in adjudication, if a delimitation agreement of Exclusive Economic Zones or Continental Shelves cannot be achieved by negotiation within reasonable time, is the appropriate one under the 1982 UN Law of the Sea Convention (UNCLOS), and another reason why it should be accepted and included in the new Treaty of Implementation and Guarantee, at least with regard to maritime disputes concerning Cyprus. Although Turkey has not signed the UNCLOS, this Convention broadly reflects customary international law and, in addition, Greece and Turkey have already accepted to follow the procedure outlined in the 1999 Helsinki European Council (see par. 4 of the Conclusions) that any ‘outstanding border disputes’ should be resolved by negotiation and, if not, by bringing unresolved border disputes before the ICJ. This procedure can now be formalized with regard to the Cyprus Settlement to guarantee its implementation and durability.

Given how armed intervention was abused by both Greece and Turkey in the past, it is of the utmost importance not to leave use of force at the unilateral discretion of any ‘motherland’ or state ‘guarantor’. As explained by Kelsen and others, the guarantors do not retain unilateral rights of military force, which in any case violate peremptory norms of international law, i.e. Art 2(4) of the UN Charter. The modus operandi should be clear in the new Treaty of Implementation and Guarantee. A new Peacekeeping Force (UNIFICYP II), mandated under chapter VII of the UN Charter, can take up the role of hard guarantees. UNFICYP II could be authorized to take action, where necessary, to secure the implementation of the new state of affairs or in the event of a breach, with the sole aim of re-establishing the new state of affairs created by the Cyprus Settlement.

In this regard, it should be understood that Cypriots that suffered from violence and forceful displacement in the past (mostly Turkish-Cypriots during the 1963-74 period and mostly Greek-Cypriots from 1974 onwards), also expect hard security assurances for a transitional period so as to build confidence that bad times will not return following the new federal settlement. There will be spoilers and both Cypriots and the international community should be fully prepared for that eventuality. UNFICYP II could be mandated to operate for an initial period of 10 years, with the possibility of renewal if and for as long as the Security Council of the UN deems it necessary to ensure peace, security and stability on the island.

Wisely, all sides have agreed that the principle that should guide their deliberations is that ‘the security of one side should not create insecurity for the other’. This principle should guide both the scope and the reach of hard security. Greece and Turkey could maintain, if they wish, a limited number of their troops on the island to provide hard security for their ethnic compatriots (say, 950 Greek troops and 650 Turkish troops as already provided by the Treaty of Alliance 1960), but only under the authority of UNFICYP II and with a sunset clause for eventual withdrawal. If this is agreed, the Greek troops should only operate in the Greek-Cypriot constituent state and the Turkish troops only in the Turkish-Cypriot constituent state. Note that the existing Treaty of Alliance provides for the stationing of Greek and Turkish troops in perpetuity, so this clause should be revised.

Furthermore, it is pertinent to revisit the sovereign status of the UK Bases in Cyprus – the 99 square miles of Cypriot land that are not part of the Republic of Cyprus nor the EU. This colonial legacy has not been touched upon in the current negotiations, but it is now an opportunity to agree the conditions under which this ‘state of exception’ will be resolved in the future. A possible resolution may involve the sovereign status of the UK Bases to be reviewed by 2037 (not necessarily rejecting their long-term presence but reconsidering their claim to sovereignty a la Guantanamo and Diego Garcia). If no agreement is reached on the future status of these areas after two years of negotiations, i.e. by 2039, it can be agreed that the legality of UK sovereignty in the Base Areas and the conditions under which this sovereignty was granted in 1960 can be referred to the ICJ with its judgment being final and binding.

Finally, it will be helpful if the EU becomes a party to the new Treaty of Implementation and Guarantee as a new interested party. This will allow the EU to be actively engaged in providing security and assisting in the implementation of the agreement through its internal mechanisms, while taking into account that ICJ referral does not apply to the EU as it lacks locus standi.

In sum, we need security mechanisms which with regard to soft guarantees – legally binding commitments and adjudication processes – can be initiated unilaterally by any party that wishes to do so, but with regard to hard guarantees – i.e. threat or use of armed force – only collectively authorized and supervised by global institutions, like the UN Security Council, that in any case has assumed added responsibility under the emerging norm of Responsibility to Protect (R2P). Not that R2P is unproblematic, but, in my view, it creates less problems than a unilateral authorization to intervene and protect.

For what a revised system of guarantees for a Cyprus Settlement, based on the above discussion, may look like, click on the Treaty of Implementation and Guarantee (2017).