Given the shortcomings of the alternative scenarios, the option of a confederal state, say the Cyprus Confederation (CC), within the European Union would seem an attractive option. The more loosely knit structure of the confederation adds to its strength, and combined with the supra-national framework of the EC it may just about appeal enough to make it attractive for all sides. If the structure did not work, the TRNC would have the option in law of obtaining the dissolution of the confederation, although within the integrated structure of the EU this might appeal less.24
Co-operation at supra-national level would provide practical experience of confidence-building. In a confederation, moreover, there is scope for the creation of a specific confederal court, with the power to make references to the ECJ.25 The creation of a supreme Cyprus confederal court with the power of reference to the ECJ could help enforce the law within the scope of the Treaties, as well as enforce a substantive body of confederal law in both parts of the island.
Given the international status of a confederation, the EC and EU institutions would have jurisdiction and legal authority to regulate issues arising in the relations between the TRNC and RC matters. By comparison, in a federation such as, for example, Germany, issues internal to the states are essentially matters outside the reach of EU institutions.
In the context of an accession by a confederated Cyprus, there would also be good reasons for negotiating the representation of the TRNC in the composition of the ECJ. By contrast, in the case of federated or unitary states acceding to the EC, there would only be one judge for each Member State, that is, if the current practice of choosing a judge from every Member State is continued in the future. In the circumstances it is difficult to see how in such a system the TRNC could ever be adequately represented. Given the specificity of the Turkish community it could be argued that they should be separately represented in the ECJ.
For the sake of clarity, it is useful to remember that the value of the ECJ is not merely based on the fact that it is a respected institution with considerable authority in the Member States whose courts accept the need to enforce its judgements. The ECJ's powers have evolved beyond the notional and the declaratory. Disrespect of Community law can be punished and prevented by the attribution of liability for damages as well as by the imposition of financial sanctions. The European Commission as the guardian of the EC Treaty would play an important role in respect of the latter as well as private individuals.
24 As the example of the Czech Republic shows, it does not matter much for the EU if an applicant country splits up in several smaller candidates. As the ultimate goal of the EU is integration and confidence building, however, EU membership should ultimately foster transnational interdependence and enhance mutual bonds.
25 The power to refer questions to the ECJ is not exclusively reserved to sub-national courts. Some international courts, like the Benelux Court have this power due to their special position in the legal systems of the Member States. Being the highest court in the Benelux countries for matters within its remit, this court not only has the authority but also the obligation to refer to the ECJ questions of interpretation of Community law.