Harvard Law School

Jean Monnet Chair
Professor J.H.H. Weiler

Harvard Jean Monnet Working Paper 4/00

Nanette Neuwahl

Cyprus, Which Way? - In Pursuit of a
Confederal Solution in Europe

Harvard Law School    Cambridge, MA 02138

All rights reserved.
No part of this paper may be reproduced in any form
Without permission of the author.

© Nanette Neuwahl 2000

Harvard Law School
Cambridge, MA 02138
USA 
Cyprus, Which Way? - In Pursuit of a 
Confederal Solution in Europe
By
Nanette Neuwahl,
Jean Monnet Professor of European Union Law
The University of Liverpool*

Introduction

This paper seeks to chart the relations between the EU and Cyprus. Given the EU accession negotiations taking place with the Greek Cypriot Administration, the future is difficult to predict, but what is certain is that a number of legal and political issues will come up that in this author’s opinion will need urgent answers. Some of them are dealt with here. Does the current application for membership make sense without a solution to the Cyprus problem? Will accession of ‘Cyprus’ be possible before solving the question of the division of the island? Accession of the Republic of Cyprus is one possibility, stalemate another. The fact is, that the negotiations are being conducted without official representation of the Turkish Republic of Northern Cyprus (TRNC). If the Republic of Cyprus were to accede unilaterally, what form could this take, and what would be the consequences? Should we be more concerned about this than we are? What sort of solution would be realistic? What are the avenues whereby it could be obtained? Three scenarios are dealt with in this paper: the continuation of the present situation, namely the absence of a settlement with the entry of the Republic of Cyprus into the EU being imminent; EU membership of a federal, or unitary, Cyprus and finally, a Cyprus confederation within the EU. It will be argued that the latter option is the best. It will also be argued that it is not entirely unrealistic.

I. Use of Terminology
 
Confederations are associations of autonomous states that agree to the joint exercise of power and the limitation of their sovereignty in a number of defined areas of governmental activity, such as defence, trade, public health and environment, in order to ensure the achievement of a common purpose through the establishment of some joint machinery of deliberation and decision-making and a jointly manned central administration. 

The EU can be seen as a confederal arrangement, as can, arguably, the Belgian state. The limitations on the freedom of action of the member states of a confederation may include the obligation, in limited fields, to be bound by majority decisions of the constituent states. A confederal state stresses the equality of its constituent members as well as their togetherness for certain common purposes.

The confederation is often distinguished from that other, related form of divided sovereignty, the federation, in that the range of areas to be entrusted to the central decision-making organs is more limited, there is more emphasis on decision-making by unanimity or consensus rather than by majority, there is less democracy in the sense that direct representation may be lacking, and the constituent states, at least theoretically, retain the option of terminating the bond. A confederation is further removed from being a unitary democracy than is a federation. 

Whereas these forms of integration between political entities can be seen as extremes, in actual practice the dividing line between federations and confederations is not clear cut, as there is a spectrum of variations between them. A confederation can have federal traits and a federation confederal traits. Both the confederation and the federation can be emanations of consociationalism, a generic term used by some scholars to describe a relationship between political units in which sovereignty is diffused. There may be diplomatic merit in using a generic term like this when seeking a settlement for Cyprus, because, being more vague, it desensitizes issues and overcomes prejudice. For present purposes, however, - and for the sake of simplicity - it is preferable to adopt, with caution, the slightly ambiguous but more commonly used terminology. 
 
According to some, the more lose type of a confederal arrangement seems, today, to be particularly attractive for entities seeking to accommodate themselves, like Cyprus or the EU, to the challenges and needs of present-day realities. In a world of growing interdependence and consequent desire for linkage among states and peoples, confederations allow closer cooperation without creating new nations. They safeguard individual identities and they respect ethnic and cultural diversity, while accommodating resulting tensions. For Cyprus, an improved, confederal arrangement within the framework of the EU could provide a politically secure structure and norms for a new cooperative relationship between the parties.

II. Background to the Accession Negotiations

The application for accession by the Greek Cypriot administration to the European Communities dates back to 1990. In 1993, the European Commission judged positively the feasibility of the accession of Cyprus to the EC but initially suggested that the questions of the division of the island was to be resolved first. It was felt at that stage that in the absence of a prior settlement, the application of Community law and the respect for human rights and fundamental freedoms could not be guaranteed on the whole of the island. Also, accession without settlement would lead to inequality. Although one part of the island would experience a beneficial economic effect, the economic disparity of the two parts would increase.

The European Council therefore initially agreed with the Commission that accession talks should be postponed. However, in February 1995 it changed its attitude and resolved that negotiations could begin six months after the conclusion of the 1996 Intergovernmental Conference. It is no secret that this change of heart was brought about by the Greek threat to veto EU enlargement towards Eastern Europe if Cyprus was not taken on board first. From then on, the European Council envisaged the speedy accession of the whole island, and started to press for the inclusion of representatives of the Turkish Cypriots in the negotiations in order to bring it about. This offer was not taken up by the latter, who could envisage participating in the negotiations only as the representatives of the TRNC, and who even had difficulty assuming that the Greek Cypriot side could legitimately claim to represent any part of the island at all. In spite of this the EU, in March 1998, opened accession negotiations with the (internationally recognised) government of the Republic of Cyprus. As a result, the Turkish Cypriots have until now very much remained on the sideline.

Was the opening of accession negotiations a mistake of judgement? It was obviously hoped that the prospective of entry into the EU would be an incentive to a political settlement. However, there is no sign whatsoever that this will come true. In fact, there is very little scope now for the Greek and the Turkish Cypriots to shift their positions. The start of accession talks hardly encourages the Greek Cypriot side to compromise in the search for a solution to the Cyprus dispute. The offer of entry negotiations enhances the economic and strategic outlook of the South as well as improving their diplomatic position. It suggests that what is called the Cyprus problem is about a Turkish minority challenging the authority of a legitimate Cypriot government under the protection of a neighbouring occupying force, Turkey.

In reality, the question is at least as much, if not more, about the Turkish islanders calling for the right of self-determination and freedom from the dictates of a Greek Cypriot community conveniently legitimising itself with reference to a 1960 constitution aiming at (but in itself incapable of) protecting both communities, and sanctioned by an international community apparently more committed to territorial integrity than to security and coexistence among nations. Witness the conflict in Kosovo, which international law is ill-equipped to settle. If Cyprus accedes to the EU without a settlement being reached, the international risks in the area will be increased. The EU, nor indeed anyone else should allow this to happen.

There is little doubt that accession to the EU is advantageous for the island. It is broadly in conformity with the basic philosophy underlying the EU, which proclaims the integration of Europe in the interest of peaceful coexistence and welfare. But the quality of the accession will be as important as its timing. A failure by policy-makers adequately to recognise the stakes or to act accordingly - whether for lack of interest, vision, or leadership - can lead to serious political errors, which may even cost lives.

Everybody will readily recognise that the matters are far from straightforward, however. The EU and the TRNC are both “irregulars” on the international plane; both are in search of their own identity and profile, although admittedly, not in the same way. The fact that both entities are relatively new on the international scene does not make things simpler. Their sometimes uneasy existence in the twilight of international law or, if one prefers, the dawn of a new area, makes the future difficult to predict. What is worse, is that most people seem to be little informed about the issues involved. Among policy makers, some seem to lack interest, while others seem too biased or too frustrated even to want to think up creative solutions. The general public in Europe seems to care little about EU Mediterranean policy; European political parties that consider the matter more seriously do not exist. And yet the current situation is unacceptable.

III. Why the Cyprus Problem Needs to be Solved

It is this author’s view that the EU - or rather its Member States - are under an international obligation to try and bring the Cyprus problem to an end.

This responsibility is not merely a legal one, i.e., one that flows from the commitment of some of the Member States under the Treaty of Guarantee or from the prohibition of the unilateral entry of Cyprus into any form of economic or political union with another State. Unfortunately, in the current international system treaties are often ignored and disapplied, if not with the agreement of all parties, then at the price of some degree of diplomatic discomfort. It often remains without any spectacular consequences. Public international law is seen by most states as an aid to bringing about a solution to a problem, but it is widely recognized that it is no guarantee of justice or stability. Breaches of international law are regrettable, but they are common.

Still, the responsibility of resolving the Cyprus problem is a real one, because it is a moral issue with far-reaching implications. 

The humanitarian and security aspects of the Cyprus issue are all too well known to be in need of much detail here. Cyprus never had a workable constitution capable of suppressing inequality, hatred, violence and distrust, and this has allowed inhumane treatment that should be deemed unacceptable by any government today. While there are certain parallels between the crisis in Kosovo and the problem of North Cyprus, the two situations have been handled by the international community in quite different ways. Whereas the former was met with collective intervention, the latter mainly give rise to passive criticism. Both have disadvantages. In the case of Cyprus a situation of lawlessness is among the negative side effects.

The current situation whereby the TRNC, in spite of a good claim to statehood, is denied international recognition by all States except Turkey, results not merely in problematic situations on the international plane. It sometimes leads to the impossibility of law enforcement on the (trans) national level as well. This in turn may have serious consequences of its own, as is illustrated by the case of the Cyprus Mining Corporation (CMC). CMC, a Cypriot mining industry originally owned by Americans but subsequently sold on to German nationals, is alleged to have engaged in activities harmful to the environment. CMC is deemed to have caused pollution in violation of Turkish Cypriot environmental laws. In the event it proves practically impossible to enforce a penalty against the company, or to obtain reparation for damages against the shareholders who are residing abroad. Since liability for environmental damage in the TRNC cannot be enforced in foreign courts of countries that do not recognise that State, non-recognition is tantamount to extending a “licence to pollute” to private individuals and companies, and a licence to perpetrate other serious wrongs in the area as well.

Surely there is no need for policy-makers to await an irreversible environmental or other big disaster before something is done? The responsibility to prevent such things from happening is real and incumbent morally on all of us, irrespective of nationality or status. This is a Mediterranean and even a universal problem. For several reasons, therefore, the Cyprus problem is an ethical issue which needs to be tackled sooner rather than later. An active standpoint needs to be taken by all, including the EU. The following are the main options for the future.

IV. Scenario 1: Denial of the Need to Act (Cyprus Inside or Outside EU and No Settlement) 

It might be thought that, whatever the future of the island, the Cyprus problem is not as urgent as the above analysis suggests, and that non-action might be an option. Thus, the EU might consider leaving the islanders to sort out their own future. Needless to say, this is the current attitude of many politicians in the EU. It is, however, not a realistic approach. Because accession negotiations trigger a dynamics of their own, non-action is not equal to stand-still. Part of Cyprus is now firmly on its way to accession as a result of the EU’s commitment towards enlargement to the East, which would be endangered by a Greek veto. Because of the difficulty of both Cypriot parties now to shift positions on the Cyprus issue, and in order not to prejudice the disputed question of territorial sovereignty, accession of the Republic of Cyprus might perhaps be realised by leaving unclarified the territory to which the Treaties would apply. Either way, this would result in the effective non-application of EU law (and of EC law) to the territory of North Cyprus, with all the consequential disadvantages of this situation. 

Non-accession would mean the continuation of the present unsatisfactory situation with distinct risks flowing from the de facto lawlessness described above. Accession without settlement would trigger a situation of unpredictability and the prospect of guerrilla activity on the island. None of this is acceptable. The foregoing should be enough for the EU to take a more active interest in the solution of the issues. 

But even if one were to dismiss these forecasts as overtly pessimistic, and if one were to believe that life could largely continue peacefully and without major incidents, then still, there would be another reason why the EU would have a special responsibility towards bringing about a settlement before accession can be envisaged. It is this. If Cyprus were ever to enter the EU without solving the problem between North and South, this might result in a lack of democracy which would reflect badly on the workings of the European Union. “Paper” European Parliament elections for the North organised by the South would be a sham, and because of the government of the Republic of Cyprus does not represent the North, the democratic content of Community law would be compromised, and the quality of Community legislation could only suffer as a result. Due to the practical inapplicability of Community law to the Northern part of the island, the paradigm of democracy through welfare would not work either. Any lack of democracy at grassroots level would immediately be transposed to central levels of decision-making. If the matter would be brought before the European Court of Human Rights - as in the Matthews case relating to the failure by the United Kingdom to organise European elections in Gibraltar -, the Loizidou cases would be authority for denying the responsibility of the Republic of Cyprus for this type of shortcoming. Yet no European politician should even consider entertaining the proposition that laws affecting Cyprus could be made under the exclusion of the Rule of Law. Accession under these terms is clearly contrary to the Copenhagen criteria.

For all these reasons, it is believed that the Cyprus issue should not be downplayed. Rather, an institutional structure needs to be thought out which can serve as a legally adequate and a politically acceptable solution to the issue. The way in which EU membership can contribute to this is considered next.

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. 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, another type of solution needs to be found.

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. 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. A confederation is the only way forward. 

Why? 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. 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.

VI. Scenario 3: A Confederation in the Framework of the EU

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.

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. 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. 

VII. Modalities of a Confederation

How a confederation is to be configured need to be worked out in much more detail than time and space permit in the framework of this article. This would require the careful elaboration of provisions governing the institutional set-up, democratic and judicial control, administrative structures, the division of powers between confederation and confederated states, and the granting of citizenship. Furthermore, agreement on principle regarding outstanding disputes like territorial and property settlements would be a prerequisite. It is good to see that recently, Bosworth and also Tocci, have started to venture into this area. When drawing up proposals, it would seem important to be relatively ambitious, and not to exercise too much restraint, for instance, when endowing the confederation with tasks. These could include such matters as tariffs and external trade, and other areas which generally would be decided at the level of the EU in case of Membership, environmental issues, public health, and combating organised crime. Also property adjustments could come within the competence of the Confederation. The importance of the creation of a confederal court rather than an advisory tribunal is furthermore to be underlined.  

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. 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. 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. 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 EU 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. 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. 

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. 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. 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. 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, neigbouring 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. 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. 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. 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.

IX. Channels of Influence

The Cyprus issue is a European problem and the lead in solving it should come, this time, from Europe. Especially in the “pre-accession” phase it is more and more important to approach European as well as world leaders on this issue. But, as is well known, the EU is a non-unitary actor and the centre of gravity there is not easily tractable. The question may therefore arise, whom best to target for a lobbying campaign. 

Within the EU, as distinct from the Member States, no less than three different institutional actors can be approached, because it is the European Commission who negotiates accession, and the Council who, together with the European Parliament decides on the conclusion of accession treaties. Importantly, however, a treaty of accession is concluded not between the candidate country and the EU or the EC (they are not constitutionally empowered to do this) but between the acceding country and the individual Member States. If one of the Member States does not accept the treaty, it cannot take effect. It therefore takes only one Member State, however small, to prevent a controversial treaty from entering into force, and 15 to accept it. In none of the institutions does the TRNC have official diplomatic contacts. As there are various ways to bring any valuable points home to the relevant policy makers, however there is a wide range of options. If the TRNC can afford it, it should conduct the widest possible lobbying campaign using all the channels, formal and informal, that are available.

The Council as a whole is not the easiest institution to try and influence, because in all important questions its decisions require the consensus of all the Member States, including Greece. Again, the opposition of one Member State representative in Council can prevent an accession proposal from being accepted. In comparison with the Commission, the Council is not easy to “catch”, as it is in more than one sense a composite organ, and its officials are possibly less, or at least less permanently involved with international negotiations than those of the Commission. The Commission, while being the institution who initiates and negotiates accession, is however dependent for its negotiating briefs on the views of the Member States within the Council.

By contrast, the country of Presidency may be a good starting point to concentrate one’s efforts on. The Presidency plays a leading role in EU external relations. The country of Presidency may have to be reminded of its responsibilities with respect to producing a positive contribution to enhancing the security in the region. Since the Presidency rotates, it requires some foresight on the part of interested lobbyists to make out which country would be willing and able to make an active contribution to the problem, and not everything can be foreseen because, as is seen by the Kosovo crisis, the agenda of a Presidency may suddenly be overtaken by imminent international crises. In addition, contact points will have to be used in all the other Member States. Perhaps the help of representatives of Turkey can be enlisted or its embassies used for support. Needless to say, this cannot be improvised but needs to be thoroughly prepared.

Under Article 18(3) TEU as amended by the Treaty of Amsterdam, the Presidency is now to be assisted by the Secretary General of the Council of the European Union, in his new function as the High Representative for Foreign and Security Policy. This function is still in development, but it is widely anticipated that in the foreseeable future, “Mr CFSP” will be able to provide a more permanent focus for the foreign policy of the Union, much more than the rotating Presidency, and bring some continuity in the formulation of EU standpoints. Arguably, this will also result in greater consistency of policies and coherence in the representation of the Union in matters of foreign affairs. In Article 26 TEU, his tasks are widely defined as assisting the Council in foreign policy matters, helping to draw up policy and deal with foreign partners. Article 26 TEU expressly allows “Mr CFSP” to engage in political dialogue with “third parties”: this therefore does not prejudice any questions of recognition of governments or States. 

The European Parliament is an equally important institution where informal lobbying could pay off. Although the EP as a whole has never been of any support to the TRNC, certain sections of the Parliament will have an open attitude towards the Turkish Cypriot problem, given their concern for human rights and the protection of (minorities and) peoples in general. According to Article 49 TEU, the EP needs to give its assent to any accession of new Member States to the EU. But lobbying the Parliament cannot wait until then. If for instance one had to lobby against an accession treaty with the Republic of Cyprus, that would rather be like “fishing behind the net”. As it would currently take 314 Members voting against Cyprus accession, recruiting those votes seems a daunting task. It may be easier to induce Parliamentarians to influence the Council or to try and prevent the Commission, via the normal channels of political debate and questioning, from tabling an unacceptable proposal in the first place. Again, this needs to be thoroughly prepared.

The help of Turkey in support of a successful lobby of the TRNC should be enlisted to reinforce the search for a solution. They too need to be convinced of the importance of the Cyprus problem and of the need to actively to contribute towards a solution. But it is natural that they insist on linking Cyprus and Turkish accession. 

If there is no solution, there is a risk in all this that the island itself falls between the cracks. Wishful thinking is no option and a constructive attitude imperative. 

X. Evaluation and Conclusions

In this author’s view, there is an international obligation incumbent on the EU, as well as on all parties to the dispute, to solve the problem of North Cyprus. The most promising way forward would appear to be the creation of a confederation together with the simultaneous accession to the European Union. This could provide the basis for the creation of specific legal and institutional guarantees for the maintenance of safety and security in the region.

A good starting point for negotiation would be the proposal made by President Denktas on 31 August 1998, according to which the establishment of a Cyprus confederation could be based on the following arrangements:

1. A special relationship between Turkey and the TRNC on the basis of agreements to be concluded.
2. A similar relationship between Greece and the Greek Cypriot administration (GCA) on the basis of a “symmetrical” agreement to be concluded.
3. Establishment of a Cyprus Confederation between the TRNC and the GCA.
4. Continuation of the 1960 Guarantee system.
5. If the parties jointly agree, pursuit of a policy of accession of the confederation to the EU.

The ultimate aim of Denktas’s proposal is a “partnership settlement” in form of a confederated structure composed of two peoples and two states of the Island and supported by parallel agreements of the two sides with the two guarantor States, Greece and Turkey. However, this could also be replaced by suitable structures to be created within the framework of the EU.

Nevertheless, any solution requires the full support from Turkey. The synchronisation of the two issues, Cyprus accession and relations with Turkey, and the avoidance of deadlock, may well be the greatest challenge in this policy area for the EU in the immediate future. A failure is of immediate detriment to the population of both North and South.

Of course the conditions and institutional aspects of an arrangement need to be worked out in much more detail. A viable Cyprus settlement takes a great deal of time. Instead of pressing for a “quick fix”, all parties would benefit from a preliminary agreement, including a solution to the question of borders, property, security and viability. 

A comprehensive lobbying campaign is necessary to enlist the support of the EU Member States and the relevant political bodies in the European Union as well as Turkey in order to arrive at an adequate solution.

Suggestions for Further Reading

Axt, Heinz-Jürgen, “The Island of Cyprus and the European Union”, in: Clement H. Dodd (ed.), Cyprus, the Need for New Perspective, Eothen Press, Huntingdon 1999, p. 148-73.

Bellaigue, Christopher de, “Conciliation in Cyprus?” 22 Washington Quarterly, (1999), 183-93.

Brewin, Christopher, “Turkey, Greece and the European Union”, in: Clement H. Dodd (ed.), Cyprus the Need for New Perspectives, Eothen Press, Huntingdon, 1999, p. 148-73.

Cem, Ismail, “So kann die Türkei zu einer besseren Zukunft für Europa beitragen”, in: Philip Morris Institute for Public Policy Research (ed.), Hat sich der EU-Erweiterungsprozeß  verirrt? PMI, Brussels 2000, 19-29.

Dodd, Clement, “Constitutional Conundrums”, conference paper in: Centre for the Study of International Relations and Strategic Studies (CERIS), ULB, The Need for New Perspectives on Cyprus, 15 February 2000, 9-17.

Duner, Bertil, “Cyprus: North is North, and South is South”, 30 Security Dialogue (1999), 485-96. 

European Commission, DG 1a, Cyprus: 1st Regular Report on Progress towards Accession. Internet resource at http://europa.eu.int/comm/dgla/enlarge/report_11_98.

European Commission, 1999 Regular Report on Cyprus' Progress Towards Accession. COM/99/502/fin. 

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.

Itzkowitz, Norman and Volkan, Vamik, Turks and Greeks: Neighbours in Conflict. Eothen Press, Huntingdon 1994.

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.

Kabaalioglu, Haluk, “Turkey and the European Union. Converging or Drifting Apart?”, 7 Marmara Journal of European Studies (1999), 109-65.

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), p. 385-427.

Kasoulides, Ioannis, Cyprus and its Accession to the European Union.  Zentrum für Europäische Integrationsforschung. Discussion Paper C47, 1999. 

Klerides, Glafkos, Cyprus: My Deposition, Alithia Publishing, Nicosia, 4 vols., 1989-92, passim.

Kramer, Heinz, “The Cyprus Problem and European Security”, 39 Survival (1997), 16-32. 

Larrabee, F. Stephen, “The EU Needs to Rethink its Cyprus Policy - In Response”, 40 Survival (1998), No.3, 25-9.

Mango, Andrew, “Cyprus and the European Union: The Relevant Factors”, in: Centre for the Study of International Relations and Strategic Studies (CERIS), ULB, The Need for New Perspectives on Cyprus, Brussels 2000, 22-26.

Mavratsas, Caesar, “Greek-Cypriot Political Culture and the Prospect of European Union Membership: a Worst-Case Scenario”, 10 The Cyprus Review, (1998), 67-76.

Moran, Michael, “Cyprus and the EU: A Proactive Strategy for the Turkish Side”, in: Michael Moran (ed.), Sovereignty Divided: Essays on the International Dimensions of the Cyprus Problem, CYREP, Nicosia 1998, p. 191-206.

Müftüler-Bac, Meltem, “The Cyprus Debacle: What the Future Holds”, 31 Futures (1999), 559-75.

Müftüzade, Hakki, “Cyprus - Two States or One - Prospects for Membership of the European Union”. Speech at Chatham House, London, 9 December 1998.

Neuwahl, Nanette, “The EU-Turkey Customs Union: A Balance But No Equilibrium”, 4 European Foreign Affairs Review (1999), 37-62.

Nugent, Neill, “EU Enlargement and the Cyprus Problem”, 38 Journal of Common Market Studies (2000), 131-50. 

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. 

Pace, Roderick, “The Domestic and International Politics of the Next Mediterranean Enlargement of the European Union”, 3 The European Union Review (1998), 78-101. 

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.

Prodromou, Elizabeth, “Reintegrating Cyprus: The Need for a New Approach”, 40 Survival (1998), No.3, 5-24. 

Redmond, John, “Security Implications of the Accession of Cyprus to the European Union”, 30 International Spectator (1995) No. 3, 27-38.

Reddaway, John, Burdened with Cyprus - The British Connection. Rustem and Weidenfeld & Nicholson, London 1986.

Taylor, Paul, “Consociationalism”, conference paper in: Centre for the Study of International Relations and Strategic Studies (CERIS), ULB, The Need for New Perspectives on Cyprus, Brussels 2000, 18-21.

Tocci, Nathalie, “The ‘Cyprus Question’: Reshaping Community Identities and Elite Interests Within a Wider European Framework”, Centre for European Policy Studies (CEPS), draft working paper, 2000. 

Verhoeven, Amaryllis, “How Democratic Need European Union Member States Be? Some Thoughts After Amsterdam”, 23 European Law Review (1998), 217-34.