Legal Aspects of the Cyprus Problem: Annan Plan and EU Accession (Nijhoff Law Specials, 67)

305 Pages·2006·1.27 MB·English

by  Frank Hoffmeister

Legal Aspects of the Cyprus Problem
Nijhoff Law Specials
Volume 67
The titles published in this series are listed at the end of this volume.
Legal Aspects of the Cyprus
Problem
Annan Plan and EU Accession
Frank Hoffmeister
Martinus Nijhoff Publishers
Leiden•Boston
AC.I.P. Catalogue record for this book is available from the Library of Congress.
Printed on acid-free paper.
ISBN 90 04 15223 7
© 2006 by Koninklijke Brill NV, Leiden, The Netherlands.
Koninklijke Brill NVincorporates the imprints Brill Academic Publishers,
Martinus Nijhoff Publishers and VSP.
http://www.brill.nl
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, microfilming, recording or otherwise, without written permission from the
Publisher. Authorization to photocopy items for internal or personal use is granted by
Brill Academic Publishers provided that the appropriate fees are paid directly to The
Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA01923, USA.
Fees are subject to change.
Printed and bound in The Netherlands.
Contents
Acknowledgments ix
Introduction xi
Chapter I – The Independence of Cyprus
A. The Facts
1. The UN General Assembly Resolutions on Independence 1
2. The Proposals of Lord Radcliffe 1956 3
3. The MacMillan Plan 1958 3
4. The Zurich and London Agreements 1959 4
B. Legal Evaluation
1. Self-Determination 6
2. Bi-Communalism 10
3. Summary 11
Chapter II – The Breakdown of the Bi-communal Republic
A. The Facts
1. The Political Confrontation 12
2. The Military Confrontation 14
3. The Hellenisation of the Republic and the Turkish Cypriot Enclaves 17
4. Hidden Agendas 21
v
vi Contents
B. Legal Evaluation
1. Partial Illegality of the Republic’s Hellenisation under
Constitutional Law 22
2. The Continuity of the Republic of Cyprus under International Law 31
3. The International Legitimacy of the Cyprus Government 32
4. Summary 33
Chapter III – The Turkish Intervention and Turkey’s Continued
Presence in the Northern Part of Cyprus
A. The Facts
1. The Turkish Intervention 34
2. Turkey’s Continued Presence in the Northern Part of Cyprus 37
B. Legal Evaluation
1. The Illegality of the Turkish Intervention 39
2. The Partial Irrelevance of the TRNC under International Law 47
3. Summary 58
Chapter IV – UN Efforts to Foster a Political Settlement 1975–1995
A. The Facts
1. The Good Offices of UN Secretary-Generals U Thant, Waldheim
and Perez de Cuèllar 60
2. The Good Offices of UN Secretary-General Boutros-Ghali 68
B. Legal Evaluation
1. The Legal Status of the Various Settlement Documents 70
2. The UN Formula on the Four Key Issues 74
3. Summary 82
Chapter V – Cyprus as Candidate for EU Membership
A. The Facts
1. EC-Cyprus Relations under the 1972 Association Agreement 83
2. The Application for Membership 1990 85
3. The Decision to Accept Cyprus as a Candidate Country 88
B. Legal Evaluation
1. The Legality of Cyprus’Application to the EU 90
2. The Power of Representation of the Cyprus Government 95
3. Summary 96
Contents vii
Part VI – EU Accession Negotiations and Annan Plan I–III
A. The Facts
1. The European Council of Helsinki and the Proximity Talks 97
2. The Seville Council and the Direct Talks 2002 107
3. Annan Plan I and II and the Copenhagen Council 115
4. Annan Plan III and the Athens Council 124
B. Legal Evaluation
1. Accommodation of the Annan Plan in the Legal Order of the
European Union 130
2. Principles on which the EU is Founded 132
3. Ability to Speak with One Voice 144
4. Ability to Implement and Enforce EU Law 149
5. Consistency with Relevant UN Security Council Resolutions 157
6. Summary 160
Chapter VII – EU Accession and Annan Plan IV–V
A. The Facts
1. The February 2004 New York Agreement 163
2. The Negotiations in Cyprus 164
3. The Negotiations in Bürgenstock on Annan IV 170
4. The Finalisation by the Secretary-General (Annan V) 176
5. The Referenda 180
B. Legal Evaluation
1. Legality of the Referenda 182
2. Adaptations to the Terms of Cyprus’Accession 185
3. Compatibility with the EU Requirements 189
4. Summary 194
Chapter VIII – Cyprus as EU Member State
A. The Facts
1. Rights and Obligations of the Republic of Cyprus 196
2. Suspension of the acquis communautaire in the Northern Part
of Cyprus 198
3. The Green Line Regulation 199
4. Relations with the Turkish Cypriot Community 201
5. The Sovereign Base Areas of the United Kingdom in Cyprus 204
viii Contents
B. Legal Evaluation
1. Rights and Obligations of the Republic of Cyprus 205
2. Suspension of the acquis in the Northern Part of Cyprus 207
3. The Green Line Regulation 215
4. Relations with the Turkish Cypriot Community 216
5. The Sovereign Base Areas of the United Kingdom in Cyprus 221
6. Summary 221
Chapter IX – Relations between Cyprus and Turkey
A. The Facts
1. The European Council of Brussels of December 2004 224
2. The Signature of the Protocol to the Ankara Agreement 224
3. Start of Turkey’s EU Accession Negotiations on 3 October 2005 227
B. Legal Evaluation
1. The Duty to Implement the Customs Union vis-à-vis Cyprus 228
2. The Duty to Recognize the Republic of Cyprus During the
Accession Negotiations 231
3. Summary 231
Chapter X – Conclusion
A. UN-EU Relations on Cyprus and Cyprus’ EU Accession without a
Prior Settlement 233
B. The Significance of International and European Law in the Cyprus
Problem 236
C. Closing Remark 239
Appendices
Appendix One 243
Appendix Two 246
Appendix Three 252
Appendix Four 260
Appendix Five 267
Bibliography 275
Table of Abbreviations 284
Index 286
Acknowledgements
From 1999–2001 I worked as academic assistant at the Chair for Public Law,
European Law and International Law from 1999–2001 for Prof. Dr. Ingolf Pernice
at the Humboldt University of Berlin. Participating in the activities of the Walter
Hallstein Insititute for European Constitutional Law, and learning how to conceive
the European public order as Verfassungsverbund deepened my interest for the fas-
cinating topic of comparative public law. He also stimulated me to combine my
theoretical interest with practical experience. Following his friendly advice, I accepted
a post at the European Commission, while being reassured that the door is kept
open for academic research at any given time. I cannot but thank him whole-
heartedly for this flexibility and his encouragement to write this book.
Expressing my thanks to Prof. Dr. Christian Tomuschat for valuable comments
on the draft only would be greatly understating my sincere attachment to him.
During these years at Humboldt, I used every opportunity to take part in the
courses and seminars of this eminent scholar of international law. With his dis-
tinguished support, I was accepted as the German participant in the International
Law Seminar of the International Law Commission in Geneva in summer 2000.
This touchdown with inner circle of international law-making proved to be very
fruitful for my following responsibilities in the European Commission. Facing
from time to time urgent, but not-easy-to-resolve international law questions in
practice there after I could always count on receiving valuable and timely advice
from him.
Certainly, this book is not the outcome of my academic years. Rather, I could
dwell on my theoretical formation when being confronted with the Cyprus prob-
lem in practice. Much of the material presented here was relevant during my time
as official at the Cyprus desk at DG Enlargement of the European Commission
ix