IS THE CONSTITUTION ENOUGH FOR A FUNCTIONAL SETTLEMENT?

Tim Potier is an assistant Professor of International Law and Human Rights at the Department of Law, Intercollege, now Nicosia University.  He published his book in the summer of 2007 under the title “A Functional Cyprus Settlement: The Constitutional Dimension” in Germany by the Publishing House “Verlag Franz Philip Rutzen”. This is the 38^th book of the Peleus Series “Studien zur Archäologie und Geschichte Griechenland und Zypern” (Studies on Archeology and History of Greece and Cyprus).

The book is voluminous with its 764 pages and 16 chapters and its author writes the following in his foreword: “It was not anticipated that it would be so lengthy and take so long to complete. This has been the product of the need to ‘heavily revise’ a Plan that is deeply flawed, in the detail, for the both communities.”

As it is well known this Annan Plan was voted in two parallel referendums on 24 April 2004 and it was rejected by the majority of the Greek Cypriot community, while the majority of the Turkish Cypriot community accepted it. One has also to keep in mind that it was also written into the proposed plan that if any party rejected the Plan, it would be deemed as “null and void”.

This UN-solution plan to the long-standing Cyprus problem was prepared by a team of international constitutional experts and was named after the then Secretary General of the UN, Kofi Annan. Its first version had the date of 11 November 2002 on it and its final fifth version was presented on 31 March 2004. So nearly eighteen months had passed between the two versions and in the end the whole plan had nearly 10,000 pages, besides a new constitution of 80 pages.

The Annan Plan was put to the approval of the two main communities of Cyprus, who have been in disagreement since December 1963 on the constitution of the bi-communal Republic of Cyprus, which gained its independence from the UK in 1960. The Republic of Cyprus has three guarantor powers, who all failed to secure the independence, the sovereignty and the territorial integrity of this little island in the Eastern Mediterranean. Greece staged a coup d’Etat on 15 July 1974 against the legitimate government of the country. Turkey invaded the island five days later with the pretext of retaining the constitutional order before the coup. Turkey later established in February 1975 a separate statelet on the occupied 37 per cent territory of Cyprus, which in 1983 declared unilaterally its so-called independence. But the European Court of Human Rights defined this entity as a “subordinate administration of Turkey”. The UK had watched the partition of the island, only taking good care of its two Sovereign Base Areas on the island.

Tim Potier, who took on the task to revise the proposed constitution in the Annan Plan, writes in his forward to the book:

“There is a misperception that any changes to the current text will be at the expence of the Turkish Cypriots. This is very wrong. Rather, the volume (covering only a portion of the Plan) demonstrates the literally dozens of places where the rights of the Turkish Cypriots are compromised / prejudiced in the Plan’s provisions. Yet it is feared that they have simply stopped reading it.

“On many points during the last three years, the Greek Cypriot side has made its case well. The volume has been written with one eye constantly focussed on these concerns. If they can demonstrate willingness to improve the text for the other community also, any future negotiations should succeed with the vast majority of the Greek Cypriot demands satisfied.

“This volume attempts to do two things. First, identify the countless errors, gaps and inconsistences in the current Plan. Second, to present a compromise acceptable to both sides. The volume contains hundreds of textual amendmends, all fully explained. The end product offers, in the opinion of the author, a highly functional settlement.”

Tim Potier starts his book by giving a very short summary of the Cyprus problem and this is followed by the second chapter, where the structure of the Plan was dealt with. The remaining chapters have the following subjects with hundreds of text corrections: Cyprus and Constitution, Entry into force, State Succession, Reconciliation Commission, Human Rights, Separation of Competences, Citizenship and Citizenship Status, a Paranthesis, Presidential Council, Federal Parliament, Federal Elections, Civil Service, External Relations, European Union Relations and Central Bank.

As the author said in an interview to the Phileleftheros newspaper on 1 July 2007, there were some parts of the Annan Plan, which needed to be read more than once, in order to understand what was really meant. Therefore, Tim Potier gave himself the task to identify the errors, the legal gaps and the inconsistencies of the proposed constitution of the “United Cyprus Republic” and to present a revised version to the both communities, which could be acceptable as a compromise. He intends to give the reader the idea that this final version is functional and acceptable to both sides.

Tim Potier seems to forget that the root of the conflict in the Cyprus problem lies somewhere else. There exists two aspects, one internal and the other external. As long as Turkey keeps her occupying troops and transferred population on the island, there can be no expression of the free will of the Turkish Cypriots. The Turkish Cypriots have turned into a minority community in the Turkish-occupied area, where at the moment more than 200,000 Turkish settlers live. The status quo, which has developed since 1974 in the Turkish occupied northern part of the island, does not give a chance for a real change. Although there had been a change in the government, the separatist elements are still prevailing and there has been no change in the power structure. The Turkish Army is still the highest authority and the big branches of the economy are in the hands of the Turkish mafia and their local collaborators.

The author leaves the following controvertial points without any solution, which are also raised by Claire Palley in her book “An International Relations Debacle”(Oxford, 2005):

• The guarantees for the implementation of Turkey’s obligations
• Turkey’s claim to unilateral right of military intervention in Cyprus
• The permanent stationing of Turkish troops in Cyprus
• The functionality in the economic and fiscal sphere
• The restrictions on the right of return of the displaced Greek Cypriots

       and

       * limited restitution of Greek Cypriot-owned property
On the Turkish settler questions: most Turkish settlers could remain in Cyprus and many more could come in the future.

One has to accept that the Annan Plan wanted to bring under the guise of a federal formula a kind of confederal state, which was feared by Greek Cypriots because it could easily end up with the division of the island, in case the partners were not be able to cooperate in a friendly manner. That is why the majority preferred to reject the Annan Plan, only six days before joining the European Union as a unitary state.                   

On the other hand, even the best constitution cannot work internally, if there is no change of mentality in both communities. The Greek Cypriots should not seek a unitary state, where the Turkish Cypriots should have only personal rights, but no communal rights. And the Turkish Cypriots should abandon the idea of having a separate state, which has very loose relations with the other federal state and which, for example, could act on its own in economical and political matters, even could sign agreements with foreign states without the approval of the central federal government.

As a professor of International Law and Human Rights, Tim Potier should have given more respect to the principles of International Law and Human Rights in trying to offer a functional Cyprus settlement with a constitution. Nevertheless the author feels proud of his work and some readers may agree that his “ideas may prove lasting value / be adapted to other current and future conflicts”.

(Friends of Cyprus Report (London) No.50, Winter 2007/2008)