1.I have been asked for my opinion in relation to the application by the Greek Cypriot authorities in Cyprus to join the European Union.

2.In summary, my opinion is that, on a proper construction of the relevant treaties and related instruments, the Greek Cypriot Administration is not entitled in international law to apply to join or, having applied, to join, the European Union whilst Turkey is not a member. Furthermore, as members of the EU and parties to the agreements in question, Greece and the United Kingdom are under an obligation to seek to prevent such accession. Moreover, as a matter of the law of the European Community, there are serious legal obstacles to such accession.

3.For reasons which will become apparent, it is desirable to set out the facts at some length.

4.On 5 February 1959, negotiations commenced in Zurich between the Greek and Turkish Governments regarding a solution to the Cyprus question (1). It seems that there was consultation with the leaders of the Greek and Turkish Cypriot communities (2) although this does not appear on the face of the documents which I have seen. Agreement was reached on 11 February 1959 on the establishment of an independent state. Prime Ministers Karamanlis and Menderes initialed a draft Basic Structure of the Republic of Cyprus; a draft Treaty of Guarantee between the Republic of Cyprus of the one part, and Turkey, Greece and the UK on the other; and a draft Treaty of Alliance between Cyprus, Turkey and Greece, These documents were drawn up in French and became known as the Zurich Agreement. The Zurich Agreement represented a compromise between the Greek Cypriot community which was pushing for union or “enosis” with Greece and the Turkish Cypriot community which was pressing for partition of the island (“taksim”). (3)

5.Also on 11 February 1959, the Greek and Turkish Foreign Ministers, Messrs Averoff and Zorlu flew to London to consult the United Kingdom Secretary of State for Foreign Affairs. It was agreed in those consultations that certain areas of Cyprus would remain under the sovereignty of the United Kingdom. I have consulted the minutes of the meeting held at the Foreign Office on 12 February 1959 attended by the Foreign Ministers of the United Kingdom, Turkey and Greece. According to these minutes, the United Kingdom Foreign Secretary stated that, if agreement could be reached between the Three Powers, then the Greek and Turkish Cypriot delegations could be invited to London for a conference. M. Averoff advised that his Prime Minister had explained the Zurich Agreement to Archbishop Makarios, whose response had been favourable and who would be seeing the actual documents that evening; the Greek Cypriot community would agree to anything the Archbishop himself agreed to.

6.The Foreign Secretary then asked a number of questions about the Zurich Agreement documents. The first concerned the second paragraph of Article 1 of the Treaty of Guarantee. Article 1 reads as follows:

The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution.

It undertakes not to participate, in whole or in part, in any political or economic union with any State whatsoever. With this intent it prohibits all activity tending to promote directly or indirectly either union or partition of the Island”.   (4)

7.The question was whether the second paragraph was intended to preclude Cypriot membership of all international associations, for example the (European) Free Trade Area (if it ever came into existence). Mr. Zorlu, explained that the paragraph was “intended to prohibit partition and Enosis (either with Greece or any other country)”. M. Averoff agreed -“the wording was specifically designed to exclude possible Greek devices in the direction of Enosis, such as a personal union of Cyprus and Greece under the Greek Crown.” “M. Zorlu and M. Averoff both made it clear that there would be no objection to Cypriot membership of international associations of which both Greece and Turkey were members e.g. the (Universal) Postal Union, and any Free Trade Area.

8.A question also arose in connection with paragraph 23 of the Basic Structure. This provided:

The Republic of Cyprus shall accord most-favoured-nation treatment to Great Britain, Greece and Turkey for all agreements whatever their nature.

This provision shall not apply to the Treaties between the Republic of Cyprus and the United Kingdom concerning the bases and military facilities accorded to the United Kingdom.

Lord Perth observed that, as drafted, this might do economic harm to Cyprus. To this, the Foreign Ministers of Turkey and Greece replied that the maintenance of Commonwealth preference would not be excluded: “The intention was to exclude more favourable bilateral agreements between Cyprus and countries other than the Three Powers, and also ta avoid the possibility of either Greece or Turkey securing a more favourable economic position in Cyprus than the other -of Greece, for example, establishing a kind of economic enosis” (my italics).

9.On 17 February 1959, the United Kingdom Government declared that it had examined the Zurich Agreement and that “taking into account the consultations in London from February 11 to 16, 1959, between the Foreign Ministers of Greece, Turkey and the United Kingdom”, it accepted those documents as the agreed foundation for the final settlement of the problem of Cyprus, subject to, in particular, the retention by the UK of two sovereign base areas, and provision being made by agreement for the “protection of the fundamental human rights of the various communities in Cyprus”. (5)

On 17 and 19 February 1959, a Memorandum was signed at Lancaster House in London by the Prime Ministers of the United Kingdom, Turkey and Greece. (6) In it, they (1) noted the declarations by the representatives of the Greek Cypriot and Turkish Cypriot communities accepting the documents annexed to the Memorandum as the “agreed foundation for the final settlement of the problem of Cyprus” and (2) adopted these documents accordingly as the agreed foundation. It should be noted that, in accordance with this, all of the documents discussed below were signed or initialled, not only by representatives of the Three Powers, but also by those of the Greek Cypriot and Turkish Cypriot communities, respectively.

11.The documents annexed to the memorandum are listed as:

A-Basic Structure of the Republic of Cyprus;

B-Treaty of Guarantee between the Republic of Cyprus and Greece, the United Kingdom and Turkey;

C-Treaty of Alliance between the Republic of Cyprus, Greece and Turkey;

-these three being the main Zurich Agreement documents.-

D-Declaration made by the Government of the United Kingdom on February 17, 1959 (described above, para.9);

E-Additional Article to be inserted in the Treaty of Guarantee;

F-Declaration made by the Greek and Turkish Foreign Ministers on February 17, 1959;

G-Declaration made by the Representative of the Greek-Cypriot Community on February 19, 1959;

H-Declaration made by the Representative of the Turkish-Cypriot Community on February 19, 1959;

I-Agreed Measures to prepare for the new arrangements in Cyprus.

12.All of these documents were signed or initialled, as the case may be, by representatives of the UK, Turkey and Greece, as well as by the representatives of the two communities, save for the Agreed Measures, which was initialled only by the representatives of the three Guarantor States. I analyse these documents more fully immediately below. (7)

13.This document provides the framework for the future constitution of the future Republic of Cyprus (“RC”). Article 1 provides that the President shall be Greek and the Vice-President shall be Turkish, elected by their respective communities by universal suffrage.

14.Article 8 provides that “The President and the Vice-President, separately and conjointly, shall have the right of final veto on any law or decision concerning foreign affairs, except the participation of the Republic of Cyprus in international organizations and pacts of alliance in which Greece and Turkey both participate, or concerning defence and security as defined in Annex I.” The grammatical structure of this provision is somewhat peculiar, and some clarification can be obtained by comparing it with the French text of the draft Basic Structure in the Zurich Agreement; “Le Président et le Vice-Président auront séparément et conjointement le droit de veto définitif sur toute loi ou décision se référant aux affaires étrangéres sauf la participation de la Républiquede Chypre à des organisations internationales et pactes d’alliance dont la Gréce et la Turquie font toutes deux parties, à la défense et à la sécurité telles que définies dans l’annexe I.” This confirms that the Vice-President (as well as the President) is to have a power of veto over all question of foreign affairs except the participation of Cyprus in international organizations in which both Turkey and Greece are members. In other words, he retains his veto over membership of organizations of which only one of the two States is a member-which, of course, includes the European Union.

15.Article 21 provides.

A Treaty guaranteeing the independence, territorial integrity of the constitution of the new State of Cyprus shall be concluded between the Republic of Cyprus, Greece, the United Kingdom and Turkey. A Treaty of military alliance shall also be concluded between the Republic of Cyprus, Greece and Turkey.

These two instruments shall have constitutional force. (This last paragraph shall be inserted in the Constitution as a basic article.)

16.Article 22 provides as follows: “It shall be recognized that the total or partial union of Cyprus with any other State, or a separatist independence for Cyprus (i.e. the partition of Cyprus into two independent states), shall be excluded.”

17.Article 23 provides that:

The Republic of Cyprus shall accord most-favoured nation treatment to Great Britain, Greece and Turkey for all agreements whatever their nature.

This provision shall not apply to the Treaties between the Republic of Cyprus and the United Kingdom concerning the bases and military facilities accorded to the United Kingdom.

18.Article 27 provides that all of the Articles in the Basic Structure “shall be basic articles of the Constitution of Cyprus”.

19.The second document whose terms were agreed at the 1959 London Conference was the Treaty of Guarantee between the Republic of Cyprus of the one part, and Greece, the United Kingdom and Turkey of the other. It should be noted, however, that the actual treaty itself was signed at Nicosia and came into force only on 16 August 1960, the date of independence. (8) The treaty was drawn up in English and French casts further light on the English, and in these cases I will quote both.

20.In Article I,

The Republic of Cyprus undertakes to ensure the maintenance of its independence, territorial integrity and security, as well as respect for its Constitution.

It undertakes not to participate, in whole or in part, in any political or economic union with any State whatsoever. It accordingly declares prohibited (9) all activity likely (10) to promote, directly or indirectly, either union with any other State (11) or partition of the Island. (Elle assume I’obligation de ne participer intégralement ou partiellement à aucune union politique ou économique avec quelque Etat que ce soit. Dans ce sens elle déclare interdite toute activité de nature à favoriser directement ou indirectement aussi bien l’union avec tout autre Etat que le partage de l’lle.)

21.In Article II,

Greece, Turkey and the United Kingdom, taking note of the undertakings of the Republic of Cyprus set out in Article I of the present Treaty, recognise and guarantee the independence, territorial integrity and security of the Republic of Cyprus, and also the state of affairs established by the Basic Articles of its Constitution. (12)

Greece, Turkey and the United Kingdom likewise undertake to prohibit, so far as concerns them, (13) any activity aimed at promoting, directly or indirectly, either union of Cyprus with any other State or partition of the Island.

22.Article III, which was not included in the original Zurich version of the Treaty of Guarantee but was included in the version finally adopted in 1960, contains an undertaking by the RC, Greece and Turkey to respect the British sovereigns base areas and a guarantee by them of the use and enjoyment by the United Kingdom of the rights secured by the Treaty of Establishment concluded on the same date between the UK on the one hand, and the RC, Greece and Turkey and the other. (14)

23.Article IV of the Treaty of Guarantee provides:

In the event of a breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance of those provisions.

In so far as common or concerted action may not prove possible, each of the three guaranteeing Powers reserves the right to take a action with the sole aim of re-establishing the state of affairs created by the present Treaty. (15)

24.This agreement, between the RC, Turkey and Greece, seems of small relevance to the present question. It may, however, be noted that, in Article 2, the Parties “undertake to resist any attack or aggression, direct or indirect, directed against the independence and territorial integrity of the Republic of Cyprus”.

25.This concerns in particular the retention of the British sovereign base areas and certain other matters, and has already been outlined in paragraph 9 above.

26.This concerns the retention by the UK of its two sovereign base areas and has already been discussed in connection with the Treaty of Guarantee.

27.This accepts the Declaration made by the United Kingdom Government (D above), and also the Zurich Agreement, which together provide “the agreed foundation for the final settlement of the problem of Cyprus”.

28.By this, Archbishop Makarios declares that he has examined the Zurich Agreement and the Declarations of 17 February 1959 made by the Three Powers, and accepts these documents as the agreed foundation for the final settlement of the problem of Cyprus. This document was initialled by the representatives of the Three Powers and by Dr. Küçük on behalf of the Turkish Cypriot community.

29.Mutatis mutandis, this is identical to G above.

30.These comprised certain transitional measures, as well as the establishment of a Joint Commission in Cyprus to complete a draft Constitution, incorporating the Basic Structure agreed at the Zurich Conference and “scrupulously observ(ing)” the Zurich Agreements generally. (This Commission was to be made up of one representative from each of the two Cypriot communities, plus one representative each from Greece and Turkey.)

31.In July 1960, the relevant United Kingdom Ministers reported to Parliament on the progress of the measures to implement the conclusions of the London Conference. (16) They stated that the Joint Commission had completed its work on 6 April 1960, when the draft Constitutions was signed in Nicosia, although the Government was not represented on the Commission, it had seen the draft and had no comments to make on it. They noted that the Government was a guarantor of the Basic Articles of the Constitution, the draft of which was attached. They added that elections had been held in December 1959 and that Archbishop Makarios and Dr. Küçük had been returned as President and Vice-President elect of the Republic. They further reported that a Joint Committee, following what appear to have been quite extensive negotiations in London and Cyprus, had reached agreement on the drafting of the relevant treaties on 1 July 1960. The agreed draft Treaties are annexed to the report.

32.The United Kingdom Parliament then passed the Cyprus Act, enabling independence to be granted to the Republic. Pursuant to the Act, the Republic of Cyprus Order in Council, 1960 came into operation on 10 August 1960. (17) This provided that the constitution set out in the documents in the Greek and Turkish languages, which were initialled at Ankara on 28 July 1960 by representatives from all five parties as the Greek and Turkish texts of the Constitution of the Republic of Cyprus, should come into force on 16 August 1960.

33.On 16 August 1960 in Nicosia, the Treaties of Guarantee, of Alliance and of Establishment were signed by the parties, and independence was declared. The first two Treaties have already been discussed. The Treaty of Establishment (18) was drawn up between the RC of the one part, and the Three Powers of the other, in implementation of the UK Declaration made at the London Conference and the consequential Declarations made by the representatives of the other four parties (D, F, G & H above). It mainly concerns the British sovereign base areas, state succession, and the like. (19)

1. Kyriakides, in Blaustein & Flanz, Constitutions of the Countries of the World; s.v. Cyprus (1972), 7.
2. Necatigil, The Cyprus question and the Turkish position in international law, (2nd ed., 1996) p.9. Although this outhor, as a high official in the Turkish Cypriot administration, may be thought to be parti pris, his account of the facts which I have cited here appears to be accurate. So far as the legal analysis is concerned, most of the authors whose writings I have examined are anxious to advance a particular point of view; for my part, I have attempted to reach my own independent conclusions.
3. Redmond, The Nex Mediterranean Enlargement of the European Community; Turkey, Cyprus & Malta? (1993), p 74.
4. Conference on Cyprus, Comnd. 679. As previously indicated, the authentic text of the Zurich Agreements is in French; but there is no material difference between this and the official English translation, though in some cases to which I refer below the French text helps to clarify the English. As will also be noted below, the formal Treaty of Guarantee was actually executed in English as well as French.
5. 164 British & Foreign State Papers (1959-60), 1.
6. Conference on Cyprus, Cmnd. 679.
7. On the same day, the Colonial Secretary (Mr. Alan Lennox-Boyd) confirmed (among other things) that the Turkish community should have an equal right with the Greek community to determine its future status; Parliamentary Debates, House of Commons (1956-7), vol. 562, col. 1268. On 26 June 1958, the Prime Minister (Harold Macmillan) described the Colonial Secretary’s statement as a “pledge”, Ibid. Vol. 590. Col. 729.
8. UK Treaty Series No.5 (1961), Cmnd. 1253.
9. The London Conference text said “With this intent it prohibits” -but nothing appears to turn on this change of wording.
10. The London Conference text said “tending”.
11. The London Conference text omits the words “with any other State”.
12. The London Conference text had, in place of the words following the final comma, “as well as respect for its Constitution”. The change is no doubt due to the fact that, in 1959, the Constitution had yet to be drafted.
13. The original London Conference text used the phrase “as far as lies within their power” here.
14. See blow, paragraph 33 for the Treaty of Establishment.
15. Again, there are small variations between this text and the one agreed at Zurich, but they do not seem material.
16. Cmnd. 1093.
17. Statutory Instrument No.1368 of 1960.
18. UK Treaty Series No.4 of 1961, Cmnd. 1252.
19. It should, however, perhaps be noted that, with regard to the requirement in the UK Declaration that Cyprus should guarantee human rights, the RC guaranteed human rights comparable to those set out in the European Convention on Human Rights and First Protocol; and that Article 1 stipulates in pertinent part that the territory of the Republic of Cyprus shall comprise the Island of Cyprus together with the islands lying off its coast, with the exception of the United Kingdom’s military bases. Article 10 provides for arbitration in case of disagreement.