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V. Scenario 2: EU Membership of an Undivided Cyprus State

In this author's view, this would not adequately solve the Cyprus problem. Neither a unitary state nor a federation is able to offer the Turkish Cypriots the guarantees they require. The latter solution has been sought for years. It is now becoming less and less acceptable to both sides, with a growing part of the Greek Cypriots embracing Scenario 1 (denial of the need to act). For the Turkish Cypriots, the creation of a Cypriot (federal) state is not acceptable without strong international guarantees, and it is widely recognised that the EU is not at present in a position to guarantee the safety and security of the inhabitants of the island. A brief excursion will serve to elucidate the powers of the EU in matters of security and the protection of human rights.

The Treaty of Amsterdam has introduced new mechanisms by which voting and other rights can be denied to Member States who commit notorious breaches of liberty, democracy, human rights and fundamental freedoms or the Rule of Law (Article 7 (ex F.1) TEU). Yet, this is not necessarily a guarantee that individuals within Member States will effectively be able to enjoy human rights and fundamental freedoms. The procedure whereby Member States violating human rights within their borders are deprived of Community benefits and/or voting rights is an advance, but it is not a fully fledged mechanism for ensuring the respect for human rights. The procedure is to a large extent political, and it will not work if the Member State accused of violating human rights is able to enlist the support of another Member State, or if the attitudes of Member States are otherwise divided over the issue. Regarding Cyprus, the procedure is not likely to be put to use because of the support which the Greek Cypriot Government would most probably receive from Greece.

Furthermore, it is to be noted also that the EU's remit still generally excludes the internal security of a Member State. There are plenty of ECJ judgements dealing with that subject matter, and the notion of Citizenship of the European Union, laid down in Article 17 EC (ex Article 8) has so far received a restrictive meaning.¹⁷ The restricted sphere of the EU Treaty may well change some time in the future. After all, the introduction of the notion of European Citizenship in the Treaty of Maastricht already amounts to the insertion of a tiny element of political union in what was previously mainly an economic (EEC) treaty. Yet at the present state of integration, without a change of the law, the EC cannot guarantee the protection of minorities or constitutional structures internal Member States; nor can the EU.

Because the EU cannot adequately guarantee the Rule of Law, the observance and human rights or the protection of minorities, democracy or security within a single Cyprus state,¹⁸ another type of solution needs to be found.¹⁹

All this is in addition to the fact that a unitary or federal solution may be inappropriate for Cyprus in itself. History suggests that federated entities with markedly different features from the majority (cultural, religious, linguistic, and so on) tend to want to break loose, as is the case with Quebec in Canada.²⁰ Stable federations, let alone unitary states, presuppose a strong cohesion between people within the federation, and it is no understatement to say that this is currently absent in the case of Cyprus.²¹ A confederation is the only way forward.

Why?²² A confederal arrangement in Cyprus could provide for the satisfaction of the following needs and interests:

• 1. Both parties attach primary importance to their separate national identities, existence and democratic structures. Confederations do not affect territorial sovereignty, only some aspects of independence.
• 2. Given Cyprus' history of strife and war between peoples, political equality is the only conceivable basis for confidence building between the parties concerned. Neither the Turkish nor the Greek Cypriots would ever consent to being dominated or governed by the other. Whereas the threat of domination by the Greek Cypriots has made territorial sovereignty a vital pillar of Turkish Cypriot security, the numerical majority of the Greek Cypriots and their backing by international diplomacy reinforces the intransigence of the Republic of Cyprus. A confederation is a way out. It enables unity without submission.
• 3. Confederations apply best in a situation where populations are very heterogeneous, and a federation or unity would be much more difficult to achieve: loyalty in confederations is primarily oriented toward the constituent entities.
• 4. Turkish and Greek Cypriots are destined to share life on one island and therefore are bound by a common responsibility for a viable future, and this implies stability and quality of life. A confederation allows for the establishment of common objectives in relation to practical, political and security issues.
• 5. There is minimal trust and cooperation between the parties.²³ A confederation operates on a modest mandate, leaving most powers to be exercised by the constituent states. On the other hand, the purpose of a confederation is to generate the support of the constituent peoples for the common causes and to infuse them with a sense of shared interests and consequent willingness to cooperate. It also constitutes a laboratory of cooperation practice and a framework for cohesion.
• 6. The conflict in Cyprus threatens the strategic, security and economic interests of the population of the island as well as those of Turkey and Greece, the EU and even the larger world. A confederation is a means to substantially increase regional stability and security.
• 7. Both parties envisage becoming part of the EU. Cyprus is part of a world in which statehood is no longer an end in itself but one of the options available to deal with societal and international problems, and at most an element of a process moving towards the development of larger confederal structures like the EU.

A confederation is a means of accommodating the national aspirations of the two parties within the broader framework of inter-dependence and European integration.

17 See, in particular, Case C-168/91, Christos Konstantinidis v. Stadt Altensteig, [1993] ECR I-1191, Case C-85/96, Martinez Sala v. Bayern, [1998] ECR I-2691 and Cases C-64 and C-65/96, Uecker and Jacquet v. Land Nordrhein-Westfalen, [1997] ECR I-3171.

18 The Committee of the Regions similarly has no real powers in the field as it is an advisory body.

19 This is quite independent of the centralising effect of the EU, as experienced by the German federated states. See Verhoeven, Amaryllis, "How Democratic Need European Union Member States Be? Some Thoughts After Amsterdam", 23 European Law Review (1998), 217-34.

20 Dodd, Clement, "Constitutional Conundrums", in: Centre for the Study of International Relations and Strategic Studies (CERIS), ULB, The Need for New Perspectives on Cyprus, Brussels 2000, 9-17, at 13

21 See further Olgun, Ergün, "Turkish Cypriot View: A Confederation for "The Island of Cyprus" in: Centre for the Study of International Relations and Strategic Studies (CERIS), ULB, The need for New Perspectives on Cyprus, Brussels 2000, 27-40, at 35 and at 37, and Dodd, supra, note 21, at 13.

22 See also Olgun, Ergün, supra, note 22.

23 "Few Hands Reach Across Cyprus Divide", Financial Times, 17 Apr. 1997; Gumpert, Garry and Drucker, Susan, "The Question of Identity in a Divided Media Landscape: The Case of Cyprus", Res Publica, (1997 No. 2), 281-2.

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