Dr. Jur. Christian HEINZE
Former Assistant of the President of the Supreme Constitutional Court of Cyprus (1962-1963); Member of Munich Bar

The treaties and the constitution of Cyprus of 1960 are old ideas but when one goes into their details one will find arguments to develop new ideas about Cyprus, or relatively new ideas that have at least not been widely spread so far. In trying for a new approach it seems necessary to dwell a bit on the notion of a constitution.

What was drawn up in 1959 and 1960 was called a constitution, which implied that what was going to be created was to be a new state: the Republic of Cyprus. This shows us that the primary notion in the connection is the state and not the constitution. The constitution is an adjective to the state. The constitution tells us how the state is organised, how the government of the state is formed and executed and it tells us what the basic political values and decisions of the people or powers who formed the state are, but a constitution is not anything in itself without this connection with a state.

In order to evaluate the constitution of 1960, we must concern ourselves with this new state that was purported to have been created in 1960. I am saying purported to have been created because I would like to put a question mark to the fact or to the general opinion that it was really a state. The notion of the state has a long and well established tradition and it requires that there should be a superior power that is stronger than all other powers in a certain defined territory. This is not only a traditional definition but the idea behind it is very obvious if we look at the contemporary problems that exist in the world vis a vis this notion and idea of a state. This notion and idea contains the task for the state to provide inward and outward security. This is why the notion of state implies that there must be a superior power in the territory. This is what has been called sovereignty since the time when this idea was born, when in Mediaeval times there was civil strife between religious groups and the state became the instance and the sovereign power that was stronger than those competing factions and was able to provide peace. Of course, the notion of state requires not only peace in the sense of the absence of fighting but sort of a peace that provides welfare and justice. In any case this cannot be achieved without this superior power.

I am expounding these simple things because if we look at Cyprus, we will see that it is very questionable whether such a state really came into being in 1960 because it was imminent that strife between the two communities would come up. Not much different in principle from what has happened in Mediaeval times. There were population groups of different religion that were inclined to fight each other if not for religious reasons, then because one of them wanted to dominate the other. So, in order to solve this problem, what you needed was a state, with a power that was superior to both contesting parties and able to prevent them from fighting. In order to constitute a state, sovereignty must attain permanence and this is why one cannot immediately upon its creation distinguish whether a new body is a state or not. It takes some time to see whether it really can cope with imminent civil strife.

In the beginning in Cyprus after 1960 there was a certain period where things seemed to work but the competition between the two populations was still imminent and there were organisations that still formed the basis for strife, if it came about. And as you all know, this is actually what happened in 1963, where the strife became obvious and came out to the open again. And the events have proved that there was no power in Cyprus that was willing or strong enough to provide peace between these two fighting bodies. So, I would like to derive from this that actually there was no state, there never really came into being a Republic of Cyprus.

Of course this can be expounded by many facts and arguments. One important detail is that at least one of the parties concerned, namely the Greek side in Cyprus, has entered this Republic, the purported state, with a mental reservation. The mental reservation did not remain mental very long because, it, very soon, was expressed very clearly and very openly by the leading political figures of the Greek side at the time when they said that they did not want this constitution, they did not want this state, they did not want this form of the state, they wanted another organisation. They said the purported constitution was unworkable and that in any case they did not like it because they did not want the Turkish rights of co-determination. So, I think this reservation which was not only mental but which became outspoken very soon is a very strong argument for my point that no Cyprus Republic really ever came into being.

If this is correct, then many questions concerning the later development are more or less easy to answer. The events of 1964 onwards until 1974, very clearly demonstrate the formation and the coming into existence of true states because in this period there developed into finally two different parts of the island, powers that were truly capable of providing security within their territory. They also met the requirement that a state should be democratic, that it should be the realisation of self-government. Real self-government came about in the Greek south of Cyprus, when the Greeks formed their state and gave themselves the constitution which they really wanted, because it got rid of any Turkish rights of co-determination. They have abolished all important Turkish rights provided in the Constitution and guaranteed by the treaties. And likewise the Turks of Cyprus gave themselves the constitution they wanted, they really exercised their right of self-determination. So, what came into existence were two states in Cyprus: a Greek Republic of Southern Cyprus and a Turkish Republic of Northern Cyprus.
What happened in 1974 was, therefore, no partition because there was nothing to be partitioned in terms of the notion of a state. There was an attempt to form a state with one party really wanting it and the other not wanting it or only partially wanting it. But a legal entity that could have been partitioned did not really exist.
There are of course additional questions that should be discussed in the context, like the question of what is the importance of the role that Turkey played in this development? Is it an argument against my view that the facts of 1974 would not have been created without Turkish help? The traditional notion and the correct notion of the state does not refer to the question with whose help a state comes into existence, if the requirements of the notion of a state are met. The question is what remains today of the constitution of I960? There are some points that remain of some importance. One is a general teaching about the notion of a state, about the possibilities of a constitution, about the importance of a constitution and its implementation. It is the experience and the knowledge that we have today that the constitution, and now I mean the instrument that has been laid down on paper in 1960, could have served as a measurement for the existence of a co-determined state, because that is what was purported to be created.
For constitutional lawyers, it should have become clear as early as April, March, February 1963, that this Republic, if it ever existed, had come to the end or, putting it my way, that no Republic of Cyprus had existed. This was when the Greek part of the so-called government of the so-called Republic said "we will not obey the constitutional court's order" in the couple of cases which were of high political importance for the Greek side. This was the time for international uproar, for guarantees and guaranteeing interventions, in the early part of 1963 and not in 1974. It is another question whether this or that could have been possible or not. My topic is the constitution and the state of 1960 and the evaluation is independent from the political possibilities that may or may not have existed at the time. The evaluation relies on fact and law alone.
The second point that remains of the constitution of 1960 is that it may serve as an argument for those who continue to believe in the existence of a Republic of Cyprus because if there is such a thing as the Republic of Cyprus, the constitution of 1960 must be the constitution of this state because how can this constitution be changed without a legal procedure that is foreseen either in the constitution itself or under some superior principle? It cannot be changed simply by the fact that part of the population does not want it any more. This fact can lead to the creation of a new state, but it cannot change the constitution of the old state. This is important in arguing legal aspects of accession of a so-called Cyprus to the EU because in this context we have to refer to the constitution. The Treaty establishing the European Union says that only states may enter and that such accession must be ratified, which means of course ratified according to the constitution of that state, this meaning for Cyprus i.a. not without the consent of the vice-president. Being a lawyer, I am sorry to say that there are lawyers who argue that since there is no vice-president he cannot veto, which is of course a very weak argument, because the veto is not only a right of him who can veto but also it defines the right of the other organ, who is subject to the veto in making his decisions.

Another importance of the constitution of 1960 that remains is that it gives evidence for the true political wish and will and activity of the Greek official side, of the "Greek", as I call it, "Republic of Southern Cyprus". Since they insist oh their constitution and want nothing to do with the co-determination of the constitution of 1960, what chances remain for Turks and Greeks in Cyprus and outside to come together over the Cyprus question? This must be taken very seriously and very much to the point: will there be co-determination or won't there? Co-determination would pre-require two legal entities but we have the very strong opinion of the Greek side that this cannot be because they do not want co-determination but Greek superiority and the world more or less agrees with their view.

These teachings that Cyprus provides can be applied to many cases in the world where we have this problem of internal security and of the functioning of the state primarily to secure the lives and the well-being of their people. The question is the same: is there a state or isn't there, what state could exist, what would have to be brought about in order to have security?

I shall focus on the founding treaties that have been concluded between England (U.K.), Greece and Turkey in 1960 and of course this purported Republic of Cyprus was also a party. The elements, the main subject matter of these treaties were two material ones, namely the guarantee of co-determination in Cyprus, and the exclusion of union with another state. And there is a third element, which is a formal element, that is the right, and probably even the obligation, to guarantee this state of affairs.

With these international contracts between states, we have certain problems. The first problem is that the stipulation of co-determination is an agreement that cannot be enforced. You cannot force two people to agree. If they don't want to agree, they don't agree and you cannot force them to agree. You can force them to do something against their wishes, but you cannot force them to agree. So, the Greek side has argued "well that's all too bad, then this part of the treaty is null and void". But I think this is not the end of the argument because the idea of guaranteeing co-determination implies that there must be two entities because what could the word "co" mean otherwise? Then there were two parties that were supposed to determine together. If this is so, the sanction for not agreeing is partition, going apart, returning or realising again the status of two entities.
Another'problem concerns the prohibition of union with another state. A famous lawyer and professor of international law says what is forbidden is union with "another" state, that means you may not unite with one other state but you may unite with several other states, even including the one with which you are not supposed to unite. I do not know whether there are many lawyers among you, but I am of the opinion that a good lawyer is a lawyer who convinces everybody who has a clear sense of thinking; so in my view this is not a valid argument. Of course, if the treaties are to be binding they would rule out accession of any Cyprus or state of Cyprus into the EU unless there is a general agreement and a true agreement of all parties concerned.