Jean Monnet Center at NYU School of Law


VIII. Acceptability of the EU framework

If Scenario 3, - a confederation within the European Union - is not to be dismissed as wishful thinking, attention must now be paid to the main objections which could be raised against it. A solution combining the elements of accession and the establishment of a confederation in Cyprus may run into several difficulties. Some of these are clearly of a political nature. In the following, the political feasibility of a confederal solution will be dealt with last, after clarifying some important legal issues which are likely to be raised at the outset.

The first question follows on from what has been said before about the nature of the EU and its powers. What would the substantive scope of EU law add to the management of relations affecting the Cyprus problem?

The hard core of the EU is concerned with economic freedoms, many of which are likely to be restricted in Cyprus for the foreseeable future. Understandably, TRNC citizens will be wary, for instance, of the right of Greeks and Greek Cypriots to own property and businesses in North Cyprus, so that very long transition periods will need to be built in to allow for the necessary safeguards during a prolonged period of becoming accustomed to intercommunity dealings. During a transition period as long as is needed to re-establish confidence, the wealthier Greek Cypriots will have to be prevented from buying up Turkish Cypriot territory and businesses.28 The free movement of persons is anyhow subject to derogations under the current treaties, but the conditions could be rendered more precise and customised by way of appropriate clauses in the act of accession.29 In the beginning, therefore, the benefits of membership for Cyprus would mainly consist of the free movement of goods and the structural policies accompanying EU membership, including the Common Agricultural Policy, tourism, structural policy. In a confederal setting these sectors would bring material benefits both to the TRNC and to the Republic of Cyprus.30 In addition, there would be a legalisation of relationships and the restoration of the enforceability of the law which would take away some serious, imminent dangers of the current situation. Security would be increased and gradually economic welfare would be enhanced in the whole area. The supra-national structure of the EC would ensure that economic freedoms are realised and structural aid would arrive at its destination.

Eventually, restrictions on Greeks buying TRNC property will have to go. Possibly by that time, however, animosity will have disappeared and there will be a level playing field for all, including Turks and Greeks and other Europeans. The proximity to Turkey should of course make it an attractive place for Turkish nationals to invest. To preventing this is not immediately in the island's interest.

In Scenario 3, the above-mentioned defects of the EU31 concerning the protection of the fundamental rights of citizens of the TRNC would continue to exist. Would not the same arguments of lack of competence with regard to human rights and internal security mentioned above militate against the creation of a Cyprus confederated member of the EU? This author believes not. First of all, the confederal solution would allow the TRNC more freedom, allowing sanction mechanisms to be built into the agreement itself. A suitable court system would be one example of this, an explicit right of secession possibly another. Of course, arrangements would have to be made for the guarantee of "internal security", but with a basic commitment towards peaceful coexistence in place - in the form of EU membership - and with the legalisation of relationships, it may be easier to put the necessary surveillance structures in place. Given the special circumstances of the case, it might perhaps be feasible to create a tailor-made EU solution, or else an international treaty of guarantee. It is therefore believed that the restricted character of the EC is much less of a problem in relation to a Cyprus confederation than it would be in relation to a unitary state or a federation.

The creation of a confederation within a larger European context are elements of a solution which mutually reinforce each other. A similar consideration holds good for the issue of human rights protection - or rather its absence - in cases before Community courts. In EC law, it is sometimes thought, minority rights and human rights frequently succumb to ideals of free movement. Therefore, there is a need to create complementary legal structures, which can provide a powerful centre and a powerful basis. An added feature of legalising relations with the TRNC would be that individuals would qualify for protection under the European Convention on Human Rights. Acceptance by the confederation of the necessary instruments should be a co-requisite of membership.

Whatever the legal merits of Scenario 3, there are, however, diplomatic difficulties in the way of the proposed confederation within the EU. Although it may be the most realistic solution as a whole, it could be difficult to accept in certain quarters. Particularly politicians in the Republic of Cyprus, or in Greece, who have always favoured a unitary state or perhaps a federation, and many of whom now seem to prefer to downplay the issue altogether, may be hard to convince. In a situation where both parties have dug in their heels, it will take some skill to persuade everyone to desist from their position of self-righteousness and adopt a constructive attitude and to the realization that both parties might be equally right or wrong. A lack of international leadership from European politicians will not help to convince the parties involved of this, and will not bring home to them the advantages of the solution presented here.

A comparatively minor obstacle (although one frequently mentioned) is that the present international arrangements do not allow Cyprus to enter the EU without Turkey also becoming a member.32 Given the political will, this can be overcome with the agreement of all the interested parties.

Negotiation of a settlement is only conceivable if everyone clearly perceives that there is something to be won by adjustment. So how would Scenario 3 look from the Greek Cypriot side? Even disregarding the security aspects of the problem, and looking only at economic considerations, the Greek side too would stand to gain, through the improvement in the relations with Turkey and the elimination of all the distortions of economic relations concomitant to the dispute. The lifting of sanctions and other obstacles to North-South trade, and also the improvement of relations with Turkey imply new business opportunities for the whole of Cypriot shipping industry, tourism and other enterprise.33
Of course a "European" confederation may not be without difficulty for some parties within the TRNC either. The Turkish Cypriots fear that EU membership without Turkey being a Member of the EU would be an empty shell, or even a deterioration of their current situation, given that the protection and support from Turkey would then in all probability fall away. There are several aspects to this, but obviously a central point here turns on the guarantees that can be given that the interests of TRNC citizens would not be compromised. There is an argument that the TRNC would need Turkey inside the EU in order to protect them.

Admittedly, there are many reasons why it would be good if Turkey became a member of the EU.34 The contribution it would make to the solution of the Cyprus problem is but one of them. However, Turkish accession is perhaps some fifteen years away, whereas Cyprus accession is getting more certain every day. The question therefore arises, whether the decision-making structure of the EU is adequate for safeguarding the interest of the TRNC, that is, within a confederation as is being proposed here, and if it is not, what to do about it.

First of all one must ask, is there any real risk that the "Greek lobby" would veto any measures benefiting the TRNC, or that it could make the EC act in a way that would damage its interests? This question is rhetorical in light of the Greek "blackmail" surrounding EU enlargement. The answer is plainly yes.35 Nevertheless, this is not a problem which can be solved by Turkish membership, as that would not take away the possibility of a Member States exercising a right of veto.

It may be comforting to know that in the future, the power of individual Member States in day-to-day EU business can only decrease, especially that of small countries, such as the new democracies in Eastern Europe, Luxembourg, Portugal, Greece and a Cyprus confederation. An enlarged Union would quickly become unmanageable if it would have to bow to the whim of every tiny Member State. There should therefore in the future be less room for purely national concerns, and recourse to veto will become ever more restricted. In all likelihood it will no longer be feasible to allow all Member States to be continually represented in the Council of the EU. New decision-making structures will therefore have to be designed. In a more supra-national and less intergovernmental structure, there should of course be a greater concern for the protection of individuals against violations of human rights, the observance of equality and the Rule of Law by the Community. Although the precise nature of any reforms is not yet known it is widely agreed that institutional changes of this type are necessary. If accession of Cyprus cannot be postponed until then, interim arrangements may have to be made for the protection of this eventuality.
It would seem that insisting on simultaneous Turkish membership merely with reference to the need of counterbalancing the "Greek lobby" is fruitless. On this account, accession of Turkey does not appear to be a conditio sine qua non for entry of a Cyprus confederation. In Turkey itself, public opinion is divided on the issue of membership of the EU, which is not surprising given the latter's wavering attitude and its use, in the past, of different standards for Turkey than for other countries. It may well be possible that Turkey would be able (temporarily) to accept the sole entry of a Cyprus confederation into the EC, while continuing to "muddle through" in the framework of the Customs Union until the EU comes to realise that it is their own interest to include Turkey sooner rather than later. It would be much more difficult for Turkey to accept the unilateral entry into the EU of the Greek Cypriot administration (Scenario 1) as this would precipitate an escalation of the conflict.36 In the light of this, it is imperative for the EU to defer any decision on accession until a solution for the Cyprus problem has been reached.

No solution of the Cyprus problem is conceivable without the co-operation of Turkey. There are a variety of reasons why this is so. On the one hand, international law endows Turkey with a role in the region and entitles it to exercise its influence there. Turkey would strive, where possible, to avoid an increase of tension on this southern border where this is only one aspect of its overall foreign policy which comprises so many different, neighbouring countries. It is therefore interested in finding a workable solution. On the other hand, the existence of the Cyprus problem indirectly gives Turkey leverage in its relations with the EU. If Cyprus enters the EU without the problem being solved, then as a consequence of a perceived or real threat to security and lives, tourism will drop, the island's economy will dry out and the European dream of peace and prosperity will become an illusion. In order to achieve it Turkey's help will then become indispensable. Turkey knows that the more likely that scenario, the stronger its position becomes.

It would therefore be understandable if the acceptance by Turkey of the creation of a confederation within the EU would be made conditional, not only on appropriate guarantees as to the security on the island, but also on reassurances as regards Turkey's own relationship to the EU.37 Now, since any watertight promises can never be made in respect of enlargement, the only way forward would therefore seem to be to attempt to synchronise the entry of Turkey and the Cypriot confederation. This may entail some delay of the latter, but nobody should really be too sorry for that, as without Turkey's approval, Cyprus accession may not be "worth" a lot.
With all of this, it may still happen that Turkey will not become an EU member at the same time as a Cyprus confederation, but the relations between them would be bound to improve in the process of approximation. The current improvement in EU-Turkey relations is an encouraging sign.

Some further observations need to be made regarding the solution of a Cyprus confederation within the EU. In order to become part of the EC, the north of the island, just like the south, would need to meet the economic criteria for accession.38 Currently, although the EU in its report on Cyprus glosses over this issue, it is plain to see that it does not do so. In order to meet the criteria, a solid pre-accession strategy would have to be put in place and sustained over a prolonged period of time. The unilateral pre-accession strategy benefiting only the South is entirely inadequate and ineffective.

Finally, it might be thought that the TRNC would use any right to determine their own destiny in such a way as to declare themselves an integral part of the Turkish Republic.39 This author believes there is not much support for this assumption. For a start, if amalgamation with Turkey was the intention, they might have done so long ago. Any hint in this direction would upset the delicate relations between the EU and Turkey. This is not a commendable development at a stage where integration of that big country is a distinct possibility. Obviously, within the context of the EU, the merger option may no longer be relevant at all for Turkish Cyprus.

In conclusion, therefore, the creation of a confederation within the framework of the EU stands a reasonable chance of success when used as the basis for a solution to the Cyprus issue. The final question arising in this connection is, how to proceed to help bringing it about.

28 One possibility would be, to give authority to municipalities/TRNC to veto sales of businesses and land or to restrict licences to non-residents on account of citizenship. Although this is not compatible with the principle of free movement, this temporary derogation may be necessary at least for a (longish) initial period in the interest of the security of the region.

29 This would have to be concluded on behalf of the Confederation, which would therefore have to be established either prior to, or simultaneously with the accession to the EU.

30 See further below.

31 See supra, under Scenario 2.

32 See, e.g., Heinze, Christian, "On the Question of the Compatibility of the Admission of `Cyprus' into the European Union with International Law, the Law of the EU and the Cyprus Treaties of 1959/60", in Necati Münir Ertekün (ed.), The Status of the Two People in Cyprus. TRNC Ministry of Foreign Affairs, Lefkosa 1997, p. 181-229. Kabaalioglu, Haluk, "Completion of the Customs Union and the Accession of Turkey to the European Union", in: ECSA, The European Union in a Changing World, a Selection of Conference Papers (European Commission, Luxembourg 1998), 385-427.

33 Whereas the theory of economic integration would suggest a positive impact on the economy, this is not easy to quantify. In the case of Cyprus, moreover, a comprehensive quantification of benefits would take account also of the effects of a settlement on such aspects of the economy as the off-shore banking industry and the peace-keeping forces on the island.

34 See Kabaalioglu, Haluk, "The Relations Between Turkey and the European Union", in: Bagci, Hüseyin, Janes, Jackson, and Kuhnhardt, Ludger, Parameters of Partnership: the US - Turkey - Europe. Nomos Verlagsgesellschaft, Baden Baden 1999, 19-67; Id., "Turkey and the European Union. Converging or Drifting Apart?", 7 Marmara Journal of European Studies (1999), 109-65; Id, supra, note 33; Neuwahl, Nanette, "The EU-Turkey Customs Union: A Balance But No Equilibrium", 4 European Foreign Affairs Review (1999), 37-62.

35 See further Papahadjopolos, Daphne, "Greek Foreign Policy in the Post-Cold War Era: Implications for the European Union", Centre for European Policy Studies (CEPS) Paper No 71.

36 The logical consequence of this is, of course, that should a confederation not be achievable in good time, the next-best thing would be for the EU to accept only the South in their midst and to recognise the TRNC. Further assessments of the entry of Cyprus to the EU are provided i.a., by Bellaigue, Christopher de, "Conciliation in Cyprus?" 22 Washington Quarterly, (1999) 183-93; Müftüler-Bac, Meltem, "The Cyprus Debacle: What the Future Holds", 31 Futures (1999), 559-75; Pace, Roderick, "The Domestic and International Politics of the Next Mediterranean Enlargement of the European Union", 3 The European Union Review (1998), 78-101; Redmond, John, "Security Implications of the Accession of Cyprus to the European Union", 30 International Spectator (1995) No. 3, 27-38.

37 Confirming this view, Nugent, supra, note 5, at 142. Kabaalioglu makes a forceful case for linking the issues of Cyprus and Turkish accession. See Kabaalioglu, supra, note 35.

38 See supra, footnote 16.

39 See further Nugent, supra, note 5, at 143.



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