CONTENTS

Abstract
I-The Circumstances of the Case
II-The Political Dimension
III-Failure of the Court to Examine Actual Exercise of Authority in
North Cyprus
IV-Incorrect Attribution of Responsibility to Turkey
V-Failure of the Court to Conduct a Judicial Examination of the
Existence of the TRNC
VI-The Minority Issue
VII-The Scenario of "Subordinate Administration"
VIII-Erosion of the Principle of Bi-zonality 37
IX-Failure to Take Into Consideration the Status of the UN Buffer-Zone
X-The Question of "Just Satisfaction" 41
XI-Comments and Conclusions
About the Author

JUDGEMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS IN THE LOIZIDOU CASE: A CRITICAL EXAMINATION

ABSTRACT

This article is a critical examination of the judgement of the European Court of Human Rights in the Loizidou case, delivered on 18 December 1996, relating to complaints of violation of applicant's rights to her possessions in Kyrenia (Girne) in North Cyprus. The Court found that the prevention of the applicant, a Greek Cypriot living in South Cyprus, from having access to her property in North Cyprus amounted to a violation of her right to possessions. The incident happened during a demonstration by a Greek Cypriot women's group. The applicant was arrested by the Turkish Cypriot police after she violated the United Nations (UN)-controlled buffer-zone and the borders of the Turkish Republic of Northern Cyprus (TRNC). The applicant complained to the European Commission of Human Rights against her arrest and argued that her right to possessions was violated as she was not allowed access to her property. The Commission did not accept her complaints. However, the European Court of Human Rights reversed the finding of the Commission relating to allegation of violation of the right to possessions. The Court wrongly attributed responsibility to Turkey, having failed to take into consideration the political and legal status of the Turkish Cypriot people and the exercise of substantial jurisdiction by the authorities of the TRNC. Moreover, the Court dealt with the right to possessions in isolation of the political situation in the Island. In doing so the Court ignored completely the status of the UN-controlled buffer-zone, and decided the case in isolation of the talks between the Turkish Cypriots and Greek Cypriots and the principles agreed upon in that context. The judgement undermines the principle of "bi-zonality" and therefore, constitutes a set-back to efforts to reach an agreed and peaceful settlement in the Island.

I. THE CIRCUMSTANCES OF THE CASE

The applicant, Mrs. Titina Loizidou, is a Greek Cypriot, presently living in South Cyprus. She owned certain plots of land in Kyrenia (Girne).

On 19 March 1989 a Greek Cypriot women's group, "Women Walk Home", organised a march with the announced intention of crossing the Turkish forces' cease-fire line. From Nicosia the demonstrators drove to the village of Lymbia, where a group managed to cross the buffer-zone and the Turkish forces' line. Some of the women, including Mrs. Loizidou, were arrested by Turkish Cypriot policemen. Later the same day, they were released to United Nations officials (UNFICYP) in Nicosia and taken over to the Greek Cypriot area.

The UN Secretary General referred to the demonstration in his report of 31 May 1989. He said that "considerable tension occurred over the well-publicised plans of a Greek Cypriot women's group to organise a large demonstration with the announced intention of crossing the Turkish forces cease-fire lines". He also said that the incident happened despite the fact that the Greek Cypriot Government "had given assurances" that it would do whatever was necessary to ensure respect for the buffer-zone.1

In July 1989, the applicant introduced an application with the European Commission of Human Rights, concerning her deprivation of liberty on 19 March 1989, and refusal of access to her property in North Cyprus. She alleged violations of Articles 3 and 5, and a continuing violation of Article 8 of the Convention and Article 1 of Protocol No. 1. She claimed that all acts complained of were carried out by Turkish military forces stationed in the northern part of Cyprus or by forces acting under their authority.

On 4 March 1991 the Commission declared inadmissible the applicant's complaints of continuing violations of Article 8 of the Convention and Article 1 of Protocol No.1 alleged to have occurred before 29 January 1987, the date of acceptance by Turkey of the right of individual application. The remainder of the application was declared admissible.

A hearing on the merits was held before the Commission on 4 December 1992. The Commission adopted its report on 8 July 1993, pursuant to Article 31 of the Convention. In its report the Commission concluded that there had been no violation of Article 3 (ill-treatment) of the Convention. As regards the allegation relating to applicant's arrest and detention, the Commission found that "the demonstration constituted a serious threat to peace and public order on the demarcation line in Cyprus".2 Having noted that the applicant was arrested by Turkish Cypriot policemen after she crossed the UN-controlled buffer-zone, the Commission concluded that the arrest took place "in accordance with a procedure prescribed by law" as required by Article 5(1) of the Convention.3 The Commission also found that the provisions under which the applicant was arrested and detained, that is, provisions of laws applicable in the Turkish Republic of Northern Cyprus (TRNC), served to protect this very area and could not be "considered as arbitrary".4

As for the right to respect for home, the Commission found that the applicant had left Kyrenia and moved to Nicosia in 1972. In view of this the prevention of the applicant from returning to her home in Kyrenia, could not affect her right to respect for her home and therefore, her allegation of violation of Article 8 of the Convention could not be sustained.5

As for the right to possessions under Article 1 of Protocol No.1, the Commission found that the prevention of the applicant from having access to her property in North Cyprus was imputable to Turkey, due to the presence of Turkish forces in Cyprus who exercise an overall control in the border area.6 The Commission considered, however, "that a distinction must be made between claims concerning the peaceful enjoyment of one's possessions and claims of freedom of movement."7 The Commission then acknowledged

"that limitations of the freedom of movement - whether resulting from a persons's deprivation of liberty or from the status of a particular area - may indirectly affect other matters, such as access to property. But this does not mean that a deprivation of liberty, or restriction of access to a certain area, interferes directly with the right protected by Article 1 of Protocol No.1. In other words, the right to the peaceful enjoyment of one's possession does not include, as a corollary, the right to freedom of movement".8

The Commission, therefore, found that the applicant's claim of free access to the north of Cyprus, cannot be based on her alleged ownership of property in North Cyprus, and, in view of this, there could be no question of violation of Article 1 of Protocol No. 1.9

The case was then referred to the European Court of Human Rights by the Greek Cypriot Administration on 9 November 1993, under Articles 32(1) and 47 of the European Convention. The object of the application to the Court was said to be, to obtain a decision as to whether the facts of the case concerning the applicant's property disclosed a breach by Turkey of its obligations under Article 1 of Protocol No.1 and Article 8 of the Convention.10

The main objections of the Turkish Government to the claims of the applicant were:

(a) that the Court lacked competence to consider the merits of the case on the ground that the matters complained of did not fall within Turkish jurisdiction, but within that of the TRNC, in view of the restriction (reservation) in Turkey's declaration of acceptance of the compulsory jurisdiction of the Court dated 22 January 1990, to the effect that such acceptance was in respect of matters "performed within the boundaries of the Republic of Turkey" (ratione loci objection);
and
(b) that the case fell outside the jurisdiction of the Court on the ground that it related to events which occurred prior to Turkey's declaration of acceptance of the compulsory jurisdiction of the Court, dated 22 January 1990 (ratione temporis objection).11

In its judgement of 23 March 1995, on the above preliminary objections, the Court found that Turkey's restriction ratione loci was invalid, but ruled that the invalid clause could be severed from the rest of the declaration so that the declaration itself was valid.12 As for the ratione temporis objection, the Court decided that temporal restrictions limiting acceptance of jurisdiction of the Court to matters which occurred subsequent to the time of deposit of the instrument of acceptance can be validly made.13

However, the correct interpretation and application of the restrictions ratione temporis in the Turkish declarations under Article 25 and 46 of the Convention, and the notion of continuing violations of the Convention, would, in the opinion of the Court, rise difficult legal and factual questions. The Court, therefore, decided to join these issues to the merits of the case.14

During the hearing on the merits which was held on 25 September 1995 the above points were developed and argued before the Court. Turkey contended that the application fell outside the jurisdiction of the Court, as the complaints occurred before Turkey's acceptance of jurisdiction of the Court. Turkey argued that the expropriation of the property of the applicant had been effected and completed in virtue of the provisions of Article 159 of the TRNC Constitution and legislation in force in North Cyprus at the relevant time, relating to property abandoned in North Cyprus since 13 February 1975. The expropriation, therefore, was a fact that had occurred prior to Turkey's acceptance and was beyond the jurisdiction of the Court.15 The Court held, with a majority of eleven votes to six, that, as the TRNC was not regarded by the international community as a state under international law, it could not attribute legal validity for the proposes of the Convention to the TRNC Constitution. In consequence, the expropriation could not be considered as having been completed in that year, the applicant was still to be regarded as the legal owner of the property in question, and the situation had, therefore, to be reviewed as a continuing act of interference with the applicant's property subsisting subsequent to Turkey's declaration.16

On the question of imputability, the Court said that it was not necessary to determine whether Turkey exercised detailed control over the policies and actions of the TRNC authorities, but it was "obvious from the large number of troops engaged in active duties in Northern Cyprus", that the Turkish army exercised effective overall control there.17

The Court observed that although Mrs. Loizidou had remained the legal owner of the land since 1974, she had effectively lost all control over it and all possibility to use and enjoy it. The continuous denial of access amounted, therefore, to an interference with her rights under Article 1 of Protocol No.1.18

This paper intends to examine the various aspects of the above views and conclusions of the Court and their impact on the political situation subsisting in the Island.

II. THE POLITICAL DIMENSION

The political dimension of the Loizidou case is illustrated by the fact that it was one of the many cases instituted against Turkey since 1975, arising from developments in Cyprus, the aim being to accuse Turkey before the organs of the Council of Europe, in spite of the fact that, as stated by the Committee of Ministers of the Council of Europe in its Resolution DH (79) 1, full respect for human rights in Cyprus could

"only be brought about through the re-establishment of peace and confidence between the two communities; and that intercommunal talks constitute the appropriate framework for reaching a solution of the dispute".

Another political aspect of the case lies in the endeavour of the moving party, the applicant Greek Cypriot Administration, to disregard the exercise of substantial jurisdiction in North Cyprus by Turkish Cypriot authorities, with the purpose of imputing responsibility to Turkey. However, as stated by Judges R. Bernhardt and Lopes Rocha in their common Dissenting Opinion, the position of the applicant and of the Government which supports her cannot be separated from a "complex historical development and a no less complex current situation".

One may also recall the important observation of Judge Pettiti in his Dissenting Opinion:

"... the whole problem of the two communities... has more to do with politics and diplomacy than with European judicial scrutiny based on the isolated case of Mrs Loizidou and her rights under Protocol No. 1. It is noteworthy that since 1980 there has been no multiple inter-state application bringing the whole situation in Cyprus before the Court. That is eloquent evidence that the Member States of the Council of Europe have sought to exercise diplomatic caution in the face of chaotic historical events which the wisdom of nations may steer in a positive direction."

Another political dimension of the case is shown by the attitude of the Court in dealing with TRNC statehood, thus side-stepping the issue of exercise of substantial jurisdiction by the authorities of North Cyprus, in relation to matters under the Court's examination. On the question of imputability and/or responsibility the true test would have been as to whether there is a de facto administration in North Cyprus exercising effective and exclusive executive, legislative and judicial authority, and not whether the "TRNC" is regarded as a "state" or not. Moreover, the question of recognition could not have been of crucial significance in determining responsibility and/or imputability. An unrecognised state can have duties and responsibilities in international law.

The de facto regime is an important notion in international law. It has not been an infrequent phenomenon that entities have existed for long periods, claiming to be states or governments, which without being recognised, controlled more or less clearly defined territories. Some examples are the Confederation in the American Civil War, the National Government in the Spanish Civil War, the German Democratic Republic before 1972, North Vietnam before the reunification of Vietnam, and Taiwan after the recognition of the Peking Government as the sole representative of the whole of China. The status of de facto regimes have been examined by various learned authors.19
Since the American Civil War it is recognised by international law that physical control over a territory, and not sovereignty or legitimacy of title, is the basis of state liability for acts affecting other states.20 During the American Civil War Lord Russell, the British Foreign Secretary, explained to the United States Ambassador in London:

"Her Majesty's Government hold it to be an undoubted principle of international law, that when the persons or the property or the subjects or citizens of a state are injured by a de facto government, the state so aggrieved has a right to claim from the de facto government redress and reparation".21

The dealings which are likely to take place with a de facto regime will not be of the same nature as the normal contact between states, but non-recognition is not identical to denying any status under international law to the unrecognised state. It is well known that the theories on recognition are purely political and diplomatic in character. Recent practice in the matter favours the approach based on the effectiveness and intrinsic legitimacy of established legal and political systems. From the developments in former Yugoslavia and in Eastern Europe it can be deduced that the disappearance of states or the secession of states have been a matter of fact, that the effects of recognition have been purely declaratory.22

The issue of recognition or non-recognition is not the only yard-stick for the legal position of a de facto regime under international law. On the contrary, while the absence of formal recognition would encompass the denial of the attributes of a full member of the international community, it has been generally agreed that even without recognition by other states the de facto regime has a position under international law which derives from its very existence; the more so, if the regime can draw its legitimacy from the freely expressed will of its people, as is the case with the TRNC.

Just as the Court ruled that it was not necessary to decide on the "lawfulness or unlawfulness under international law of Turkey's military intervention in the Island in 1974"23, it was not necessary for the Court to adjudicate on the status of the TRNC, as the exercise of de facto authority in North Cyprus could be examined, as explained above, independently of the legal status of the TRNC. The Court, however, unlike the Commission24, preferred to rule on the status of the TRNC25, on the basis of the attitudes of other states that do not recognise the TRNC, thus giving an unnecessary and undesirable political advantage to the moving party, the Greek Cypriot Administration. In doing so, the Court failed to take into consideration established rules of international law relating to de facto regimes.

III. FAILURE OF THE COURT TO EXAMINE ACTUAL EXERCISE OF AUTHORITY IN NORTH CYPRUS

In the Loizidou case the Court failed to examine the true governmental position in North Cyprus as it actually existed at the time of the judgement. If this had been properly done, the Court would have been bound to find, as the Commission had found in the Chrysostomos and Papachrysostomou case26, that the Greek Cypriot Government in South Cyprus had not exercised authority over the Turkish Cypriots since December 1963, and that the people of North Cyprus have been governing themselves in an orderly manner, in accordance with democratic standards, in particular, as laid down in Article 3 of the First Protocol to the Convention, and that there existed in fact an administration and a judiciary, as well as, a legislature capable of making laws - that is to say, the very ingredients of statehood.27

It may be recalled that the fact that there was an effectual and established autonomous administration in the North was recognised by Lord Denning MR in the English Court of Appeal in Hesperides Hotels and Another v. Aegean Holidays and Another.28 In Polly Peck International Plc. v. Asil Nadir and Others,29 the TRNC's Central Bank has been recognised by the English Court of Appeal as being equal to any central bank in any other state. In the Hesperides case, Lord Denning MR held that the action, being one in tort, was not maintainable, because the acts complained of were lawful under the lex loci actus; notice would be taken of the laws of the Turkish Federated State of Cyprus which authorised the acts. This was stated in the following terms:

"There is an effective administration in Northern Cyprus which has made laws governing the day to day lives of the people. According to these laws, the people who have occupied these hotels in Kyrenia are not trespassers. They are not occupying them unlawfully. They are occupying them by virtue of a lease granted to them under the laws or by virtue of requisitions made by the existing administration. If an action were brought in the courts of this northern part, alleging trespass to land or to goods, it would be bound to fail. It follows inexorably that their conduct cannot be made the subject of a suit in England".30

The ability of the actual administration of a territory, whether presenting itself as a state or as a government de facto, to enact laws entitled to be taken cognisance of in the international plane, is generally accepted. The fact that an authority exercising legislative power had not been recognised as a state or government does not mean that its legislation is not accepted externally as effective to alter the law within the area under its control. Without entering into a detailed consideration of the authorities on this point, it may suffice to refer to the position within the legal systems of a number of Member States of the Council of Europe.

AUSTRIA

"In Austria courts are not bound to obtain a certificate of the Ministry of Foreign Affairs concerning the existence or non-existence of a state. Austrian Courts did not hesitate to apply the law of the German Democratic Republic even at a time when the latter was not recognized by Austria".31

FRANCE

"The noted Clerget affair has given the courts a chance to decide the question definitively. A private creditor seized the effects of the Commercial Attaché of North Vietnam... The Court of Cassation decided... that the Court of Paris had correctly looked at the actual situation of the North Vietnamese Government and had decided

'that the Democratic Republic of North Vietnam, although not recognized, is represented in France, is an independent sovereign state whose assets... cannot be seized, having regard to the sovereignty and independence which international courtesy forbids us to breach even to obtain payment of debts incurred in a private capacity'.

This case shows in a particularly striking manner the sovereign powers recognized by the courts in these cases".32

GERMANY

"The German Courts have recognized the status of Poland and of Czechoslovakia as states, deducing their status from their existence and from the fact that they possessed a territory, a population, and a stable government, even at a time when the German Reich had not yet recognized these two States".33

SWITZERLAND

In 1965 the Swiss Federal Tribunal, dealing with the effect of the laws of the German Democratic Republic, observed that "the legal order of the GDR is to be treated on an equal basis with the order of the Federal Republic of Germany even though the GDR is not recognized as a State by Switzerland". It also said that "there is no reason why a foreign expropriation, even if it was not followed by the payment of compensation, should not be taken into account as a fact in deciding this question..."34

Even more to the point, however, is the fact that the European Commission of Human Rights itself took into consideration the legislation of the TRNC when, in the Chrysostomos case,35 it found that the arrest of the applicants in Cyprus, by police acting under Chapter 155, Section 14 of the Criminal Procedure Law was "in accordance with a procedure prescribed by law as required by Article 5 para. 1 of the Convention"'. Moreover, by its Resolution DH (95) 245, the Committee of Ministers of the Council of Europe has endorsed the above finding of the European Commission in Chrysostomos by formally agreeing with the opinion expressed by the Commission that in the said case "there had been no violation of Article 5 para. 1 of the Convention" and, further, "that the applicants' detention after their arrest [by the TRNC authorities] and the proceedings against them [before a TRNC judge] were not in violation of the Convention and that there had been no violation of Article 13 of the Convention". It is hard to believe that the Loizidou judgement can be interpreted in such a way as to throw overboard the findings of the Commission in Chrysostomos and the position taken by the Committee of Ministers in Res. DH (95) 245.

IV. INCORRECT ATTRIBUTION OF RESPONSIBILITY TO TURKEY

In paragraph 54 of the judgement (Merits) of 18 December 1996 the Court says as follows:

"It is important for the Court's assessment of the imputability issues that the Turkish Government have acknowledged that the applicant's loss of control of her property stems from the occupation of the northern part of Cyprus by Turkish troops and the establishment of the 'TRNC' (see the above mentioned preliminary objections judgement, p. 24, para. 63). Furthermore, it has not been disputed that the applicant has on several occasions been prevented by Turkish troops from gaining access to her property (see paragraphs 12-13 above)".

As can be seen in the above quotation, the Court referred to the preliminary objection judgement of 23 March 1995, para. 63, in support of the proposition that the Turkish Government "acknowledged that the applicant's loss of control of her property stems from the 'occupation' of the northern part of Cyprus by Turkish troops and the establishment of the "TRNC". However, there is no reference either in the preliminary objection judgement, or in the judgement on the merits, to any record, minutes, proceedings or documents to show in what way, and at what stage, such an acknowledgement is allegedly made. On the contrary, the position of the Turkish Government all along had been that the Turkish intervention of 1974 was carried out under the Treaty of Guarantee, in the wake of a Greek-sponsored coup d'etat which aimed at uniting the Island with Greece (Enosis), and that the Turkish intervention could not be described as an "invasion" or "occupation". Moreover, the Turkish Government, had argued, inter alia, that it was due to the legislation and the constitutional provisions of the TFSC and its successor the TRNC, that the property of the applicant was expropriated, which could not be related to the Turkish intervention of 1974, the intervening acts constituted novus actus interveniens and, therefore, the acts in question were not imputable to Turkey, but to the authorities of the TRNC. Turkey developed the ratione temporis objection to show that the chain of causation since the Turkish intervention was broken and that the Turkish responsibility could not be invoked as regards acts and events prior to the recognition of the competence of the Court to hear and determine individual applications.

Furthermore, the Court's finding in para. 54 that "it has not been disputed that the applicant has on several occasions been prevented by Turkish troops from gaining access to her property", is also not supported by evidence. In support of this proposition the Court refers to paras. 12 and 13 of the judgement on the merits. These paragraphs refer, however, to the "allegations" of the applicant as deduced by the Court. In her application the applicant herself did not allege that on "several occasions" she had been prevented from gaining access to her property. Her complaint was that "by the continued occupation and or control of the said part of Cyprus and by prohibiting ............ access to the said part of Cyprus and consequently to her property in question, has gradually and with the passing of time over the last 15 years, affected the rights of the applicant as property owner".

Had the Court recalled the position of the Turkish Government, as expressed in para. 30 of the Commission's report of 8 July 1993, it would have found that the Turkish Government had in fact denied that the applicant had ever intended to have access to her property but was prevented from doing so. The Turkish Government's view was that there was no genuine attempt to have access to property. The position had been explained in para. 30 of the Commission's report as follows:

"The respondent Government state that, after 15 July 1974, there was an agreement for exchange of Turkish and Greek Cypriots. Turks living in the South were allowed to come to the north of the island and the Greeks living in the north were allowed to go to the south. The properties of the communities concerned were taken over by the administrative authorities on both sides. The question of Greek Cypriot properties in the north and Turkish Cypriot properties in the south is a matter discussed within the framework of the intercommunal talks. The applicant has not been residing in the `Turkish Republic of Northern Cyprus'. Her allegation that she went there to claim her property is false".

The Court also failed to address itself directly with the issue of responsibility. In paragraph 52 of the judgement, the Court held that "the responsibility of a Contracting Party could also arise where as a consequence of military action - whether lawful or unlawful - it exercises effective control of an area outside its national territory". The Court further said in paragraph 56 that "it is obvious from the large number of troops engaged in active duties in northern Cyprus... that her [Turkey's] army exercises effective control over that part of the Island". But this does no more than state a conclusion; it does not provide a reason for it. Moreover, the conclusion is wrong. It could legitimately only have been reached after a close consideration in the given individual case of the extent to which the effective authority of the civil authorities in Northern Cyprus might have been displaced by the presence and activity of the Turkish troops. Had the Court done so, it would have found that the Turkish forces do not exercise governmental authority or control over the administration of the TRNC, any more than, say, the presence of forces of the United States and the United Kingdom in Germany. The best way to demonstrate the absence of Turkish authority in North Cyprus is to look at the omnipresence of Turkish Cypriot authority. The Commission as the fact finding body had not made a finding that Turkey was responsible for the alleged Convention violation. However, the Court did so merely on presumptions, without examining the facts.

V. FAILURE OF THE COURT TO CONDUCT A JUDICIAL EXAMINATION OF THE EXISTENCE OF THE TRNC

As already explained, it was not necessary, or even desirable, to decide on the status of the TRNC. Having decided to do so, however, the Court proceeded to apply wrong criteria to the question under its consideration.

The Court, failed to conduct a judicial examination of the existence of the TRNC, but wrongly regarded international practice, particularly relating to recognition, as constituting international law.36 However, international practice as such is not automatically part of international law, and where it becomes so it always involves the acquiescence, or at least, the non-objection of the state against which the practice is sought to be applied.

Having, however, chosen to make a ruling on the legal status of the TRNC as a central issue in the case, the Court should have independently and objectively examined this issue on the basis of relevant law and facts. The criteria of statehood in international law are well-known (such as, territory, population and government), and the satisfaction of those criteria could easily have been assessed if an attempt had been made to consider the pertinent facts.37 Instead, the Court limited its consideration of facts to the "Turkish military presence in North Cyprus"38 and to "the international response to the establishment of the 'TRNC'"39, thus disregarding the fact of physical control, which is an important criterion of state responsibility.

The Court also failed to examine the facts relating to the creation, structure and operation of the TRNC and to its administrative, legislative and judicial system. Although acknowledging that "it [the Court] must also take into account any relevant rules of international law when deciding on disputes concerning its jurisdiction", the Court immediately went on the say:

"In this respect it is evident from international practice and the various strongly worded resolutions referred to above (of the UN Security Council, the Council of Europe, the European Community's Council of Ministers and the Commonwealth Heads of Government) that the international community does not regard the 'TRNC' as a State under international law and that the Republic of Cyprus had remained the sole legitimate Government of Cyprus..."40

The Court, thus, acted in a manner comparable to some national courts when they accept the views of the executive as determinative of certain questions of foreign affairs. But the European Court of Human Rights is not a national court. It is an international tribunal, even though one of limited jurisdiction. The Court is not meant to be subservient to the views of governments, but rather to examine the validity of those views. The fact that many governments may adhere to a particular position as a matter of policy, even though that position is couched in legal terms, does not turn that position into law.

The Court should instead have approached the question of the status of the TRNC in the manner in which the Badinter Commission41 at the request of the Council of Ministers of the European Community approached the question of the status of the successor States in the former Yugoslavia.

The Badinter Commission did not deal with the question by assessing the degree to which the new States had been recognised as such by other states. Instead, the Commission deemed its task to be one of finding the facts and applying the law to them. The Commission considered:
" (a) that the answer to the question should be based on the principles of public international law which serve to define the conditions on which an entity constitutes a State, that in this respect, the existence or disappearance of the State is a question of fact; that the effects of recognition by other States are purely declaratory;

(b) that the State is commonly defined as a community which consists of a territory and a population subject to an organized political authority; that such a State is characterized by sovereignty;

(c) that, for the purpose of applying these criteria, the form of political organization and the constitutional provisions are mere facts, although it is necessary to take them into consideration in order to determine the Government's sway over the population and the territory".42

It is clear that, for the Badinter Commission, recognition was not "constitutive" of statehood, but merely "declaratory" of it. "Statehood" had an objective existence quite distinct from recognition.

No Member of the European Union has expressed any dissent from the views of the Badinter Commission. It is quite inconsistent for those same States, to accept the approach taken by the European Court of Human Rights in the Loizidou case.

The legality of the existence of the TRNC as a State is not affected by the fact that Turkish forces are present in North Cyprus, for this is the direct consequence of the "coup" by Greek Cypriots in 1974. The international reaction to Turkey's having fulfilled its duties as a guarantor of that arrangement has never been the subject of international judicial scrutiny or indeed of any proper objective legal examination at all. Even the Court of Justice of the European Community allowed no more than the most cursory and superficial examination of the matter in the reference from an English Court in the case of The Queen v. Minister of Agriculture, ex parte Anastasiou (Cypfruvex intervening).43

Moreover, the resolutions referred to in paragraph 42 of the judgement are not legally mandatory and should not have been accorded controlling influence. The Security Council resolutions were not stated to have been adopted in the exercise by the Council of its powers under Chapter VII of the UN Charter, nor were they expressed in the language usually associated with an intent to create a mandatory effect under Article 25 of the UN Charter. A number of Members of the Council of Europe, namely, Britain, Belgium, France and Italy, have openly taken this position regarding Security Council resolutions.44

VI. THE MINORITY ISSUE

Para. 44 of the Loizidou judgement reads as follows:

"In this respect it is evident from international practice and the various, strongly worded resolutions referred to above (see paragraph 42 above) that the international community does not regard the 'TRNC' as a State under international law and that the Republic of Cyprus has remained the sole legitimate Government of Cyprus - itself, bound to respect international standards in the field of the protection of human and minority rights. Against this background the Court cannot attribute legal validity for purposes of the Convention to such provisions as Article 159 of the fundamental law on which the Turkish Government rely."

The statement in the above paragraph that "the Republic of Cyprus has remained the sole legitimate Government of Cyprus - itself, bound to respect international standards in the field of the protection of human and minority rights" has two misleading aspects. First, it wrongly presumes that the recognised "Government of Cyprus" (composed of Greek Cypriots only, irrespective of the provisions of the International Treaties which gave birth to the Republic of Cyprus and of now the defunct 1960 Constitution which provided for a bi-communal Republic of Cyprus) is the legitimate Republic of Cyprus. The Court wrongly equates "recognition" to "legitimacy" without examining the status of the Republic of Cyprus under the above mentioned Treaties and the Constitution. Second, by stating that the present "Government of Cyprus" is itself "bound to respect international standards in the field of human and minority rights", wrongly suggests that the Turkish Cypriots have the status of a "minority" as meant by international standards. If that was the meaning of para. 44, the Court's judgement would have far-reaching repercussions, for it disregards completely the equal political status of the Turkish Cypriot community. Even more surprising is the Opinion of the two honourable judges - Wildhaber and Ryssdal - to the effect that the TRNC is "constituted by what was originally a minority group in the whole of Cyprus". Both of these passages completely ignore those legal and factual features which characterise the life of the society in Cyprus. The International Treaties and the now defunct 1960 Constitution of Cyprus clearly recognised two politically equal communities, the Greek Cypriot community and the Turkish Cypriot community.45 The "minorities" in the Island were religious groups, such as the Maronites, Armenians and Latins, who were given the right to opt to join either one of the two communities.

The Turkish Cypriot Community has never been qualified by anyone, other than Greek Cypriot quarters, as a "minority" in Cyprus, neither at the time of the establishment of the Republic in 1959/60 by agreement between Great Britain, Greece, Turkey and the respective Head of the Turkish Cypriot and the Greek Cypriot communities, nor thereafter. It is precisely because of the attempt of the Greek Cypriot community, through a coup, against the Constitution, to demote the Turkish Cypriot community to a minority status that the Cyprus problem emerged as of 1963. As from December 1963, no government representing the whole population of Cyprus has existed. From then on, the Government of Cyprus was replaced by two exclusive administrations. This corresponded to the right of self-determination of each community, recognised at the time by the British Government, the predominant player in bringing about the Republic of Cyprus. At the time of emergence of Cyprus as an independent State, the then British Colonial Secretary stated:

"It will be the purpose of Her Majesty's Government to ensure that any exercise of self-determination should be effected in such a manner that the Turkish Cypriot community, no less than the Greek Cypriot community, shall, in the special circumstances of Cyprus, be given freedom to decide for themselves their future status. In other words, Her Majesty's Government recognize that the exercise of self-determination in such a mixed population must include partition among the eventual options".46

The existence of separate rights of self-determination of the two communities, or peoples, of Cyprus is implicit in the ongoing negotiation process under the auspices of the United Nations. Even more so, at the end of their meeting held in Geneva in July 1974, the Foreign Ministers of the three Guarantor Powers, United Kingdom, Greece and Turkey issued a statement calling for negotiations to be carried on to secure the restoration of peace and "the re-establishment of constitutional government in Cyprus" and noting at the same time "the existence in practice in the Republic of Cyprus of two autonomous administrations, that of the Greek Cypriot Community and that of the Turkish Cypriot Community".47

The United Nations deals with the Cyprus problem on the basis of two separate communities. For instance, the UN Security Council, in its Resolutions 367 of 1975 and 649 of 1990, describes those to whom the Secretary General is to render his good offices, as "communities" and sometimes as "parties". In his report to the Security Council, dated 8 March 1990, the UN Secretary General states,

"Cyprus is the common home of the Greek Cypriot community and of the Turkish Cypriot community. Their relationship is not one of majority and minority but one of two communities in the State of Cyprus. The mandate given to me by the Security Council makes it clear that my mission of good offices is with the two communities. My mandate is also explicit that the participation of the two communities in this process is on an equal footing. The solution that is being sought is, thus, one that must be decided upon by and must be acceptable to both communities. It must also respect the cultural, religious, social and linguistic identity of each community".

The UN Security Council Resolution 649 of 12 March 1990 also describes the negotiation process as "... negotiations between the representatives of the two communities on an equal footing, the objectives of which must continue to be to freely reach a solution providing for a political settlement and the establishment of a mutually acceptable constitutional arrangement..."
Security Council Resolution 716 of 11 October 1991, and 993 of 29 July 1994, have again emphasised this parity of negotiating status in the search for a bi-communal and bi-zonal federation. The Secretary General has also stated that:

"The federation will be established through a new constitutional arrangement which will be prepared in line with the overall framework agreement being negotiated in which the two communities participate on an equal footing and which will be approved through separate referenda in each community.48

Nothing has changed, in the meantime, to make such assessments irrelevant or invalid. By ignoring such fundamental facts, the Court has not only acted in derogation of legal criteria, but has at the same time aggravated the overall situation by, unfortunately, introducing misguided considerations into the ongoing search for a peaceful settlement. And what about the right of the Greek Cypriot community to self-determination as measured against the human rights standards allegedly relevant to the exercise of self-determination? Has the apparent exercise of self-determination by the Greek Cypriot community by way of coup d'etat in 1963/64 effectively served the human rights of Turkish Cypriot citizens of the Republic? It is sufficient to refer to the UN Security Council Resolution 186 of 4 March 1964, under the terms of which a United Nations Peace Keeping Force in Cyprus was established in order to stop the massacre of Turkish Cypriots in the Island by the Greek Cypriot side beginning in December 1963. Members of the Court may have lost sight of these fundamental facts.

VII. THE SCENARIO OF "SUBORDINATE ADMINISTRATION"

In the inter-state case Cyprus v. Turkey the Commission observed that "the existence of some kind of civil administration in Northern Cyprus does not exclude Turkish responsibility".49 In its judgement of 23 March 1995 in the case of Loizidou v. Turkey (preliminary objections) the Court put a gloss on the phrase "some kind of civil administration". The Court qualified the word "administration", referred to in the above context, by using the phrase "subordinate local administration". The Court observed that the obligation to secure, in an area outside the national territory of a contracting Party, the rights and freedoms set out in the Convention derive from the fact of control "whether it be exercised directly, through its armed forces, or through a subordinate local administration".50

Since the inter-state cases of 1974, 1975 and 1977 the Court must have been aware that there was a process of administrative and political evolution in North Cyprus and that the test of control through the "administration" had to be rephrased. The use of the phrase "subordinate local administration" should in fact be taken to have been intended to restrict and limit the meaning of "some kind of civil administration" referred to by the Commission in its earlier reports. In the view of the Court, the obligation of Turkey can arise under the Convention in respect of the northern part of Cyprus, if the administration there can be described as a "subordinate local administration" of Turkey. Having postulated such a test, the Court totally failed, however, to examine this issue in the light of the facts in relation to the Turkish Republic of Northern Cyprus (TRNC).

It is submitted that the TRNC is not, to use the words of the Court, a "subordinate local administration" of Turkey. This phrase was used by the Court only to define a principle of law; there is no finding on the facts. Had the Court examined the facts, it would have found that the TRNC is a democratic State with all its governmental institutions, exercising its powers of its own right and under a democratic and liberal Constitution, which has been approved by a public referendum.

The word "subordinate" in the above context would imply the existence of an administration in North Cyprus to which authority has been delegated by Turkey, or that it functions under the control and authority of Turkey. This is not the case with the TRNC, which is a sovereign and independent State. The exercise of governmental authority in the TRNC is not by way of delegation; but by way of the free will of its people. Furthermore, Turkey has no duty in international law to control, and cannot in fact control, the acts of State of the TRNC; she cannot enforce a particular course of conduct on the TRNC. This issue cannot be examined in abstracto, that is, without reference to the political and administrative evolution in Cyprus since 1963, and the exercise of substantial jurisdiction by the Turkish Cypriot authorities, which excludes Turkish jurisdiction.

The separate political and administrative evolution in relation to the Turkish Cypriot people began in 1963/64, when they were ejected by force of arms from all the organs of the partnership Republic of Cyprus, by the Greek Cypriot wing of that Republic. The Foreign Affairs Committee of the British House of Commons in their 1987 Report (No. 23) found that much of the violence against the Turkish Cypriot community "was either directly inspired, or certainly connived at, by the Greek Cypriot leadership".51 The Committee also added that "both before and after the events of December 1963, the Government of President Makarios continued to advocate the cause of Enosis and actively pursued the amendment of the Constitution and the related Treaties to facilitate his ultimate objective."52

Following the aggression by the Greek Cypriot community in December 1963, the Turkish Cypriot community had to develop its administrative, legislative and judicial structure, and all this was done as a means of self-defence, as a matter of necessity, and for the protection of its legitimate rights.

A UN Peace Keeping Force (UNFICYP) was stationed in the Island in March 1964, by virtue of the Security Council Resolutions of 4 March 1964, and 13 March 1964 53, "to use its best effort to prevent a recurrence of fighting, and as necessary, to contribute to the maintenance and restoration of law and order and a return to normal conditions". However, the recognition of the Greek Cypriot Administration as the Government of Cyprus, has never contributed to "a return to normal conditions", but to the contrary, led to the polarisation of the two communities and emergence of two separate and exclusive administrations.

As a result of the intercommunal strife throughout the Island, approximately 25.000 Turkish Cypriots vacated some 103 villages to take refuge in some secure Turkish Cypriot areas, where they became refugees.54

The gradual process of political and administrative evolution of the Turkish Cypriot community continued with the establishment of the Provisional Cyprus Turkish Administration (1967-1971) to the stage of the Cyprus Turkish Administration and the Autonomous Cyprus Turkish Administration (1971-1975), and thence, to the Turkish Federated State of Cyprus (1975-1983). These constitutional arrangements demonstrate how the Turkish Administration took over or assumed its share of functions showing its intention to take a constructive hand in reshaping the bi-communal partnership.

On the other hand, the Greek Cypriot Administration, which since December 1963 had seized all the powers and functions of the bi-communal Republic of Cyprus contrary to the 1960 settlement and the Treaties of 1960, continues since 1963/1964 to function as a purely Greek Cypriot Administration, and clearly it is not the bi-communal Republic of Cyprus that was envisaged by those Treaties. All its administrative institutions are made up of Greek Cypriots and all its acts of State, including laws of its parliament, are issued and published in Greek. The Greek Cypriot Parliament has also changed entrenched and, therefore, "unchangeable" articles of the 1960 Constitution by ordinary laws, such as those relating to the Judiciary (e.g. abolition of the Supreme Constitutional Court), municipalities, elections, etc., thus, unilaterally purporting to abrogate the rights of the Turkish Cypriots under the 1960 settlement. Moreover, the Greek Cypriot Parliament adopted on 26 June 1967 the following resolution, which has not been repealed since then:

"Interpreting the age-long aspirations of the Greeks of Cyprus, the House declares that despite any adverse consequences it would not suspend the struggle being conducted with the support of all Greeks, until the struggle ends in success through the union of the whole and undivided Cyprus with the motherland, [Greece] without intermediary stage."

On 15 July 1974 there was a coup d'etat, organised and carried out in Cyprus by the Greek Junta through its Greek-officered National Guard. Its aim was to overthrow Archbishop Makarios and set up a government that would unite the Island with Greece. Turkey intervened under Article IV of the Treaty of Guarantee on 20 July 1974, which caused the downfall of the coup d'etat government in Cyprus, and later the fall of the military dictatorship in Greece.

At the aftermath of the Turkish intervention, the Foreign Ministers of the three guarantor powers - Great Britain, Greece and Turkey - met in Geneva and signed a Declaration on 30 July 1974. In para .5 the Ministers

"noted the existence in practice in the Republic of Cyprus of two autonomous administrations, that of the Greek Cypriot community and that of the Turkish Cypriot community."55

Mr. Glafcos Clerides also acknowledged in his memoirs, Cyprus: My Deposition56, that the Turkish Cypriot Administration was gradually developing since 1963 into statehood. He says in vol. III, pp. 236-237 as follows:

"In the years that followed a steady, stage-by-stage development is noted in the Turkish Administration, with a separation into its executive, legislative, and judiciary powers. Thus, there exist today in Cyprus two poles of power on a separate geographical basis, that is, the government of the Cyprus Republic controlling the largest section of the territory of the state and internationally recognised, and the Turkish Cypriot Administration which controls a very limited area and is not internationally recognised, but has already taken all the characteristics of a small state."

On 13 February 1975 the Turkish Federated State of Cyprus was proclaimed in the hope that this would facilitate a federal settlement. A democratic Constitution, approved by a referendum held on 8 June 1975, was adopted on 17 June 1975. The 1975 Constitution recognised that the Turkish Cypriots could not live in a political limbo, but the Constitution contained a declared intention that the Turkish Federated State of Cyprus should one day form part of a federation for the whole of Cyprus, which would include both the Turkish Federated State and a Greek Cypriot equivalent.
At the third round of Cyprus talks held in Vienna between 31 July and 2 August 1975, both sides reached an agreement for the transfer to the Turkish area, with UNFICYP's help, of Turkish Cypriots wishing to leave the South to settle in the North and of Greek Cypriots wishing to leave the North to go to the South. This agreement for relocation of populations was fully implemented on a voluntary basis, under the auspices of the UN.57 The UN troops moved into the newly established buffer-zone on either side of the border dividing the communities.

On 15 November 1983 the Turkish Republic of Northern Cyprus (TRNC) was proclaimed by the unanimous vote of the Legislative Assembly of the hitherto Turkish Federated State of Cyprus, which was a democratic representative body of the Turkish Cypriot people. The proclamation emphasised, inter alia, that the establishment of the TRNC was a manifestation of the right of self-determination of the Turkish Cypriot people. The Resolution declared that the Turkish Cypriot people are entitled to equal rights and equal status in an independent and sovereign Cyprus, as recognised for all peoples by the Declaration of Friendly Relations.58 The aim of the Turkish Cypriots in declaring an independent State was to assert their status as co-founders of the future federal republic of Cyprus and to ensure that the sovereignty of that Republic would derive from two equal peoples of Cyprus. It came as a reaction to the unjustified recognition of the Greek Cypriot side as the "Government of Cyprus", which reached its climax upon adoption by the UN General Assembly Resolution A/37/253 of 13 May 1983, obtained at the instigation of that "Government". That resolution upset the basis of the intercommunal negotiations and caused deep concern among the Turkish Cypriots as to the purported erosion of their right to political equality and partnership status, by such unilateral decision taken behind the back of the Turkish Cypriots, who were not afforded an opportunity to be heard.

The proclamation of the TRNC in November 1983, that is, 9 years after the Turkish intervention, was the culmination of the process of political and administrative evolution within the Turkish Cypriot people. This took a step further the process of separate political identification of the Turkish Cypriot people that had been initiated on 13 February 1975, by the proclamation of the Turkish Federated State of Cyprus (TFSC). The difference now was that, whereas the TFSC was essentially a restructuring of the Autonomous Turkish Cypriot Administration, that had come into being during the period of the subversion of the Constitution by the Greek Cypriots since December 1963, and made no formal claim to independence, the TRNC was declared an independent State.

The Turkish Cypriot people, by the free expression of their will, gave themselves a Constitution which entered into force in 1985. The Constitution is the foundation of the State entity governed by the rule of law. It endorses an even more extensive bill of fundamental rights than those set forth in the Convention. What is even more to the point, it provides for the holding of free elections at reasonable intervals, by secret ballot, under conditions which ensure the free expression of the opinion of the people in the choice of its legislature. These are exactly the exigencies of Article 3 of Protocol No. 1 to the Convention.

The State thus created, exercises full democratic control over the territory and the people. The density of the control is thus, much stronger than in 1975, or in 1977, when the first three inter-state cases by Cyprus against Turkey had been introduced. The Court should not have ignored these developments which characterise the life of society in Northern Cyprus today. As the Court stated in the Belgian Linguistic case, it should have taken into account issues of fact and law which "characterise the life of society".59

The TRNC acts on its own authority and independently of any other authority, with the consequence that its acts cannot be attributed to any other state in international law. Turkey has recognised the TRNC as an independent and sovereign State. There is no question of such relations being comparable to those that exist between a central and local government. There is no question of superiority or "subsidiarity" in the relations of the two countries.

The TRNC has got its own legal system which has inherited basic elements from the English common law, and which, therefore, is basically different from the system obtaining in Turkey.

Northern Cyprus in the legal sense is neither a province of Turkey, nor a protectorate. It should be emphasised that the TRNC is politically independent of all other sovereign states, including Turkey. The Turkish forces in Northern Cyprus are there under the Treaties of 1960 for the safety of the Turkish Cypriots and with the consent of the ruling authority of the TRNC. Turkey does not, in any way, exercise governmental authority in Northern Cyprus

Even though the TRNC has not been accorded universal recognition, it is not uncommon to find statements from eminent statesmen acknowledging the fact of the existence of two governments and/or administrations in Cyprus. For instance, the Italian Foreign Minister, Mr. Lamberto Dini has, in August and September of 1997 acknowledged that there are "two governments, two entities and border lines in Cyprus".60 Similarly, Ambassador Richard Holbrooke, former US Assistant Deputy Secretary, who has been appointed US Coordinator for Cyprus, stated during a press conference at the Ledra Palace Hotel in the UN-controlled buffer-zone on 4 May 1998 as follows:

"I think it's very clear, no one has disputed, that Glafcos Clerides does not represent or have control of the people of Northern Cyprus. He doesn't deny it. That's a fact. He said it......" .61

The TRNC governs de facto and de jure a specified territory separated from the Greek Cypriot "Republic of Cyprus" by an internationally recognised demarcation line operating as a factual border. As has already been explained, the TRNC is no "vacuum"; it possesses sovereignty and democratic structures.

The theory of "subordinate local administration" postulated by the Court is, therefore, most inappropriate to describe the status of the TRNC. It is not only incompatible with the factual situation in the Island, as explained above, but is also wrong, as it denies the autonomous existence of the TRNC, on the basis of non-recognition. The Court has, unfortunately, preferred to invoke this theory as a means to impute responsibility to Turkey.

VIII. EROSION OF THE PRINCIPLE OF BI-ZONALITY

The Loizidou judgement also fails to take into account the bi-zonal, bi-communal framework for a solution which emerged as a result of the negotiations between the two Parties , under the auspices of the UN Secretary General, and as set out in the two summit agreements concluded in 1977 and 1979 between the Greek Cypriot and Turkish Cypriot leaders, the Set of Ideas of 15 July 1992, prepared by the UN Secretary General, and in Security Council resolutions, particularly Resolution 716 of 11 October 1991 and 744 of 25 August 1992.

The issue of property rights and reciprocal compensation is a manifestation of the conflict in the Island. As such, it can only be settled through negotiations, and on the basis of already agreed principles of bi-zonality and bi-communality. Inevitably, the realisation of bi-zonality will involve an exchange of Turkish Cypriot properties in the South with Greek Cypriot properties in the North and if need be, the payment of compensation for any difference. The principle of bi-zonality implies that the population of the federated State in the North will be predominantly Turkish Cypriot and that the so-called "three freedoms", that is to say, the freedoms of movement and settlement and the right to property will be restricted, and a ceiling is to be agreed upon the number of Greek Cypriots that will reside and own property in the North.

The UN Secretary General's Set of Ideas of 15 July 1992, endorsed by Security Council Resolutions 744 of 26 August 1992 and 789 of 24 November 1992, provide for these issues in the following manner:

"The freedom of movement, the freedom of settlement and the right to property will be safeguarded in the federal constitution. The implementation of these rights will take into account the 1977 High-level Agreement and the guiding principles set out above. The freedom of movement will be exercised without any restrictions as soon as the Federal Republic is established, subject only to non-discriminatory normal police functions. The freedom of settlement and the right to property will be implemented after the resettlement process arising from territorial adjustments has been completed. The federated states will regulate these rights in a manner to be agreed upon during transitional period consistent with the federal constitution".

As to compensation for immovable properties of displaced persons, the Set of Ideas of the UN Secretary General provide as follows:

"... other areas under Greek Cypriot and Turkish Cypriot Administrations. Each community will establish an agency to deal with all matters related to displaced persons.

The ownership of the property of displaced persons, in respect of which those persons seek compensation, will be transferred to the ownership of the community in which the property is located. To this end, all titles of properties will be exchanged on a global communal basis between the two agencies at the 1974 value plus inflation. Displaced persons will be compensated by the agency of their community from funds obtained from the sale of the properties transferred to the agency, or through the exchange of property. The shortfall in funds necessary for compensation will be covered by the federal government from a compensation fund obtained from various possible sources, such as windfall taxes in the increased value of transferred properties following the overall agreement, and savings from defense spending. Governments and international organizations will also be invited to contribute to the compensation fund. In this connection, the option of long-term leasing and other commercial arrangements may also be considered.

Persons from both communities who in 1974 resided and/or owned property in the federated state administered by the other community or their heirs will be able to file compensation claims. Persons belonging to the Turkish Cypriot community who were displaced after December 1963 or their heirs may also file claims".

The Loizidou judgement does not discuss the above facts of obvious relevance to the property claim of the applicant.

IX. FAILURE TO TAKE INTO CONSIDERATION THE STATUS OF THE UN BUFFER-ZONE

The Loizidou judgement makes no reference to the UN-controlled buffer- zone between the two lines separating the two communities in the Island. However, by its finding that Turkey is in violation of Article 1 of Protocol No.1 in preventing applicant's access to her property across the buffer-zone, the Court is taken to have refused, contrary to the UN position on the matter, to take into consideration the existence of the buffer-zone as a relevant point in issue.

It should be recalled that the UN Secretary General has persistently insisted on the preservation of the status and the integrity of the buffer-zone as a necessary element of preserving the peace in the Island.62

The UN Secretary General's Report S/21981 of 7 December 1990 on preserving the integrity of the buffer-zone in Cyprus states that in this zone, set up between the two communities to preserve the military status quo, the UN peace-keeping force has a duty to prevent all unauthorised intrusion and civilian activities. The civil authorities of both communities have accepted the inviolability of this particular zone, and it is their duty to ensure compliance with the undertaking in question. In addition, paragraph 6 of the UN Unmanning Agreement of May 1989 stipulates, "in case a violation persists, the other force will be free to take proportionate action in the area concerned".

In his Report to the Security Council of 31 May 1992 the Secretary General has stated that UNFICYP has a function which has enabled it to keep the peace in Cyprus since 1974, "namely control of the buffer-zone".63 The Secretary General has persistently referred in his subsequent reports to the necessity of preserving "the integrity of the buffer-zone from unauthorized entry or activities by civilians".64

It is due to the Greek Cypriot side's complete disregard of the UN call for respect of the integrity of the buffer-zone that the situation deteriorated in the summer of 1996 to a level unparalleled since 1974.65

The judgement of the Court also ignores the findings of the Commission relating to the integrity of the buffer-zone. No reasons are given why the Court differed from the Commission on this issue. However, in its report of 8 July 1993, the Commission had referred to the UN Secretary General's Report of 31 May 1989 to the Security Council about the demonstration of 31 May 1989 in which the applicant had taken part.66 In his report the Secretary General had stated in para. 11 that,

"following violent demonstrations in the United Nations buffer-zone in November 1988, the Government of Cyprus had given assurances that it would in future do whatever was necessary to ensure respect for the buffer-zone... Accordingly, UNFICYP asked the Government to take effective action to prevent any demonstrators from entering the buffer-zone, bearing in mind that such entry would lead to a situation that might be difficult to control."

In para. 82 of its report the Commission had noted that,
"the demonstration on 19 May 1989, in the course of which the applicant was arrested in Northern Cyprus, constituted a violation of the arrangements concerning the respect for the buffer-zone in Cyprus (cf.para. 39 above). The provisions under which the applicant was arrested and detained (see paras. 43-45 above) served to protect this very area. This cannot be considered as arbitrary".

The fact that the Court ignored to take into account the status of the UN buffer-zone, which is an element that should have been taken into account in considering the right to property (as a correlative of the right of free movement) is a serious omission which may encourage violations of the buffer-zone and lead to incidents and wide-scale troubles in the area, with repercussions all over the Island, affecting in a negative way the prospects for a peaceful settlement.

X. THE QUESTION OF "JUST SATISFACTION"

In its judgement on the merits of 18 December 1996, the Court acknowledged the "exceptional" nature of the case and reserved the issue of "just satisfaction" (compensation) to another hearing, and invited the parties to submit their written observations on this issue.67

Former Article 50 of the European Convention provided that in case a decision or measure of a High Contracting Party is in conflict with the obligations arising from the Convention and the "internal law of the said Party allows only partial reparation to be made..... the decision of the Court shall, if necessary, afford just satisfaction to the injured party".68

During the hearing before the Court on 27 November 1997 Turkey raised the following main points:

(a) The question of "just satisfaction" arises in respect of "decisions or measures of a High Contracting Party". In the present case the decision or measure expropriating the property in question were not those of a High Contracting Party (Turkey), but those of the authorities of North Cyprus. In view of this, Article 50 could not be invoked in the present case. The alleged acts complained of were not, therefore, attributable to Turkey, but to the Turkish Republic of Northern Cyprus (TRNC), which exercises effective authority through constitutionally established organs.

(b) Alternatively, by providing that "the Court shall, if necessary, afford just satisfaction", it was the intention of Article 50 that the Court should examine the issue whether, under the particular circumstances, it was "necessary" to make such an award. There is no entitlement to an award and that the Court's discretion should be guided by the particular circumstances of each case. The award of damages in this case was not "necessary" in view of the particular connection of property issues with the overall political settlement of the Cyprus dispute.

The Court, however, referred to its judgement on the merits "that the continuous denial of the applicant's access to her property in Northern Cyprus and the ensuing loss of all control over the property is a matter which falls within Turkey's jurisdiction".69

The Court failed to examine, however, the issue as to whether an award of pecuniary damages was "necessary" under the provisions of Article 50, in view of the particular circumstances of this case. The Court gave no reasons for the exercise of its discretionary power under Article 50 in making the award. It simply based its decision on the principle of res judicata, assuming that the matter was already decided by the Court in the judgement on the merits and that a judgement awarding the applicant "just satisfaction" should automatically follow. The Court said in para. 26 of its judgement of 28 July 1999, as follows:

"In view of the above the Court is of the opinion that the question of Turkey's responsibility under the Convention in respect of the matters complained of is res judicata. It considers that it should make an award under Article 50. It is not persuaded by the argument that in doing so it would undermine political discussions concerning the Cyprus problem any more than it was by the same argument at the merits stage as regards finding a violation of Article 1 of Protocol No.1".

It is submitted that even though certain issues were res judicata, such as the finding of violation under Article 1 of Protocol No. 1, the res judicata effect of the judgement on the merits could not preclude the Court from considering under Article 50 of the Convention as to whether this was a proper case for making an award of pecuniary damages. The issue whether the Court should under the particular circumstances of this case exercise its discretion to make an award under Article 50 was sub judice, and not res judicata. The Court, however, failed to distinguish the issues which were res judicata from those which were not.

Consequently, in its judgement of 28 July 1998 under Article 50 of the Convention the Court awarded the applicant 300.000 Cypriot pounds for pecuniary damage, 20.000 Cypriot pounds for non-pecuniary damage and costs.

Since the adoption of the Court's judgement on "just satisfaction", its implementation came up for consideration under Article 54 of the Convention70 by the Committee of Minister's Deputies of the Council of Europe.71 The representatives of Turkey have indicated during these meetings that the judgements in the Loizidou case are fundamentally different from other individual or inter-state applications, and attention has been drawn to the exceptional character of the case, its political implications and the negative effects it could have on the Cyprus problem. Turkey has argued that the judgement of "just satisfaction" is inapplicable. The implementation of the Loizidou judgements, would open the floodgates for several other pending and new applications, undermining the principle of bi-zonality agreed upon between the Greek Cypriot and Turkish Cypriot sides, and would turn the present status back to that existing prior to 1974. Turkey has argued that the property issue, relating to Greek Cypriot property in North Cyprus and Turkish Cypriot property in the South, which forms one of the fundamental, and most difficult aspects of the Cyprus conflict, should be settled by negotiations between the two sides. The Turkish Cypriot side has also proposed that a Joint Claims Commission should be set up to deal with the property issue on a reciprocal basis.

However, the Committee of Ministers' Delegates under Article 54 can only supervise the execution of the judgements of the Court which are transmitted to it in due course. The Committee has no other powers.

On 22 June 1999, the Chairman of the Committee of Ministers addressed a letter to the Minister of Foreign Affairs of Turkey expressing the Committee's concern regarding the execution of the said judgement; intimating that the question of compliance with the judgement should be kept separate from the general questions raised in the UN negotiations and reminding Turkey of her undertaking to abide by the judgements of the Court. The Turkish Foreign Minister replied on 24 September 1999. The Foreign Minister emphasised that the political ramifications of the judgement are inextricably linked to the core aspects of the Cyprus question; the execution of the judgement would mean a return to pre-1974 status quo which would render any negotiation process towards a just and viable settlement in Cyprus meaningless and futile. The Foreign Minister, therefore, urged the discretion of the Committee for more flexibility to give time and chance to constructive efforts to succeed.
On 6 October 1999, the Committee of Ministers of the Council of Europe took an interim resolution at its 680th meeting strongly urging Turkey "to review its position and to pay the just satisfaction awarded in this case, in accordance with the conditions set out by the European Court of Human Rights so as to ensure that Turkey, as a High Contracting Party meets its obligations under the Convention".

Some observers believe that the said interim resolution may be a first step towards a process relating to possible suspension of Turkey's membership of the Council of Europe. However, Turkey cannot make concessions on Cyprus which would mean a return to the pre-1974 period. Unless a formula can be devised Turkey's relations with the Council of Europe will be affected in a negative way, but so will be the prestige of the Court for creating such an impasse by pursuing a judicial practice of fiat justitia pereat mundi, without regard to the consequences the judgement was bound to create.

XI. COMMENTS AND CONCLUSIONS

The Loizidou case is just one among a massive number of applications against Turkey, some of which are group applications lodged by hundreds of individuals, relating to immovable property situated in the northern part of Cyprus, outside the national borders of Turkey. In its declaration of 22 January 1990 Turkey accepted the jurisdiction of the Court in matters "performed within the boundaries of the national territory of the Republic of Turkey". However, the Court ruled that this reservation was incompatible with the Convention and severed it from the rest of the declaration. It was never the intention of Turkey to accept the competence of the Court in respect of alleged violations in North Cyprus. In view of the ruling of the Court, the element of consent of a State to be bound by an international treaty, therefore, lost its basic relevance.

This is the first time that a Member State of the Council of Europe is being encountered with such massive number of applications before the Court, relating to immovable property situated outside the national territory of a Member State. More significantly, the complaints constituted part and parcel of a political conflict that necessitated a political solution on a global basis, through negotiation, and not a legal solution.

It is an established rule appertaining to the "order of Europe" envisaged by the Convention, that a Member State of the Council of Europe, whose laws or administrative practices have been found to be contrary to the Convention, must change, revise or repeal such laws or administrative practices in order to achieve compatibility with the Convention. Paradoxically, Turkey cannot change the constitutional and legal provisions, as well as, administrative practices applicable in the northern part of Cyprus. Despite the theoretical findings made by the Court of "jurisdiction" and "responsibility" of Turkey in Northern Cyprus, it is in fact impossible for Turkey to achieve any degree of compatibility of Turkish Cypriot law, or administrative practice with the Convention. Moreover, it is not possible for Turkey to destabilise the situation in the Island by turning the clock back to the pre-1974 period.72

It is submitted that the main criticism of the majority judgement (merits) of the Court in the Loizidou case is in respect of its finding that Mrs. Loizidou was being continuously prevented from having access to her property due to the Turkish military presence, which, therefore, invoked Turkey's responsibility. This is an oversimplification of the situation in the Island; an assumption that is made in isolation of the factual and political situation. It ignores completely the agreement for relocation of populations; the existence of cease-fire (demarcation) lines in the Island and the UN buffer-zone running in between these lines, the status and integrity of which must be preserved; as well as, the principle of bi-zonality, which is the manifestation of the de facto situation in the Island and which will form the basis of a future settlement.

More significantly, the Court, contrary to the Commission, has characterised the applicant's inability to have access to her property as an interference with the right to peaceful enjoyment of possessions. In other words, the right to peaceful enjoyment of possessions has been treated to include, as a corollary, the right to freedom of movement. However, Turkey is not a party to Protocol No. 4 to the Convention that protects the right to free movement and residence. The Court's finding, therefore, makes Turkey's non-ratification of Protocol No.4 of no practical relevance.

Furthermore, in reaching its conclusions, the Court not only disregarded the autonomous nature of the TRNC, but contrary to the rule of the de facto states, vis-à-vis unrecognised states, failed to attribute any significance to its constitutional and legal provisions, as if the TRNC is a vacuum. In doing so the Court equated recognition to legitimacy, and vice versa.

The Turkish Cypriot side reacted strongly to the judgement (merits) of the Court mainly because it denied the equal political status of the Turkish Cypriot community, whose status under the 1960 Cyprus Treaties is that of a co-founder partner of the bi-communal Republic of Cyprus, and in doing so, it unjustifiably bolstered the status of the Greek Cypriot Administration, wearing the mantle of the "Government of Cyprus". This emerges particularly from the reference in paragraph 44 of the judgement to the "legitimate Government of Cyprus" being itself "bound to respect international standards in the field of the protection of human and minority rights". If this were to mean that the Turkish Cypriot community in the Island is a "minority", the judgement of the Court would not only be in conflict with the International Treaties of 1959/60 and the now defunct Cyprus Constitution of 1960, but it would also run counter to the basic elements and principles underpinning the intercommunal talks. The majority judgement, therefore, carries with it an incorrect assessment furthering a legally distorted suggestion of possible far-reaching repercussions. Even more surprising is the concurring Opinion of the two honourable Judges (Wildhaber and Ryssdal) on the right to self-determination, referring to the TRNC as having been "constituted by what was originally a minority group in the whole of Cyprus" (i.e. the Turkish Cypriots). Enough has already been said above to show that the author does not agree with the assessment in question.

It is unjustifiable that the Court could regard the bi-communal Republic of Cyprus as a unitary state composed of one community only, the Greek Cypriots, and that the sovereignty of that Republic73, which was entrusted to the two communities conjointly, could be attributed to one of the communities to the exclusion of the other.74

As for the status of the TRNC, as already explained above, it was not necessary for the Court to decide on this, as the issue of "imputability" could be determined by examining whether the acts complained of were those of Turkey, or those of the TRNC. "Imputability" was a matter of exercise of substantive authority or jurisdiction, and not of status. In deciding upon the question of status, the Court unnecessarily treaded upon political grounds, whereas it chose to do otherwise as to freedom of movement and the right to possessions, by deciding these issues in isolation of the UN-sponsored talks and the de facto situation in the Island. In effect the judgement ignores entirely the principle of "bi-zonality" agreed upon within the context of the Cyprus talks, as well as, the integrity and status of the UN buffer-zone running in between the cease-fire lines of the two sides. The Court refused to take into consideration the suggestion also made by the Committee of Ministers in the earlier inter-state case, that the full enjoyment of human rights in Cyprus depends on a political settlement in the Island.

In view of the foregoing, the judgements of the Court on the merits, as well as "just satisfaction", are bound to have a negative effect on the talks between the two sides. The judgements undermine the agreed principle of "bi-zonality", which entails regulation of the "three freedoms" (the freedom of movement and settlement and the right to property) on the lines proposed in the UN Set of Ideas. Should the judgements of the Court be used to negate the principles underpinning the talks, they will not contribute to a peaceful and agreed settlement of the Cyprus problem. In its judgements the Court in effect proposes a judicial solution to what in essence is a political dispute.75 This judicial solution negates the parameters agreed upon by the parties, namely, a bi-zonal settlement which will necessitate the regulation of the right to property, the most difficult aspect of the Cyprus dispute. The judgements have already played an important part in contributing considerably to the widening of the rift between the two Cypriot communities. It is hoped that in a similar case before it, the Court will be able to reconsider its findings in the Loizidou case.

1 UN Security Council Doc. S/20663, para. 11.
2 Para. 58 of the Report of the Commission of 8 July 1993.
3 Ibid, paras. 78 and 79.
4 Ibid, para. 82.
5 Ibid, para. 88. The Court said that the notion of "home" in Article 8 of the Convention cannot be interpreted "to cover an area of a State where one has grown up and where the family has its roots but where one no longer lives" (para. 66).
6 Ibid, paras. 93-95.
7 Ibid, para. 97.
8 Ibid, para. 98.
9 Ibid, paras. 99 and 100.
10 The case before the Court is numbered 40/1993/435/514.
11 Judgement of the Court (Preliminary Objections) of 23 March 1995.
12 Ibid, paras. 55-98.
13 Ibid, paras. 100-102.
14 Ibid, paras. 103-105.
15 Judgement of the Court (Merits) of 18 December 1996, para. 42.
16 Ibid, paras. 41 and 44-47.
17 Ibid, para. 56.
18 Ibid, para. 68. However, the Court did not find a violation of Article 8 of the Convention (respect for home) as the applicant had moved to Nicosia in 1972. The Court also decided to reserve the question of compensation and invited the parties to submit observations on this question within six months (paras. 67-69). By its judgement of 28 July 1998 the Court awarded Mrs. Loizidou compensation (just satisfaction) under Article 50 of the Convention for loss of use of her property in North Cyprus, from the date of recognition by Turkey of the competence of the Court.
19 See e.g., Jochen Abr. Frowein, Das de facto-Regime in Völkerrecht. A summary in English of this often quoted book by the well known German jurist has been published under the title De Facto Regime, in the Encyclopedia of Public International Law, R. Bernhards (ed.) vol. I, (A-D), 1992, pp. 966-968.
20 See e.g. Texas v. White (1868) 74 US 700, at 733 ("acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property ...... and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding from an actual, though unlawful government"). See also, Zaim M. Nedjati, "Acts of Unrecognised Governments" in the International and Comparative Law Quarterly, vol. 30, part 2 (April 1981) pp. 388-415. Such a principle has also been accepted in international law, which in similar situations, recognize the legitimacy of certain legal arrangements and transactions, such as the registration of births, deaths and marriages, the effect of which can be ignored only to the detriment of the inhabitants of the territory (Advisory Opinion of 21 June 1971 of the International Court of Justice on the Legal Consequences for States of the Continued Presence of South Africa in Namibia ICJ Reports 16, p. 56, para. 125).
21 Jochen Abr. Frowein op. cit., p. 73. See also Dieter Blumenwitz, "The Supremacy of Law, Political Realities and the Need to Adapt to Changes", submitted to the Center for Cyprus Studies, Eastern Mediterranean University, N. Cyprus.
22 Badinter Commission Report of 29 November 1991, 1LR 1992, p. 737.
23 Para. 56 of the judgement.
24 Para. 82 of the Report of the Commission of 8 July 1993.
25 Para. 44 of the judgement.
26 Report of the Commission of 8 July 1993.
27 See, Zaim M. Necatigil, "The Turkish Republic of Northern Cyprus: Statehood and Recognition", Journal for Cypriot Studies, Vol. 2, No. 1(1996), pp. 3-17.
28 (1978) 1 All ER 277, p. 285.
29 (1992) 2 LLR 238 (CA).
30 (1978) 1 All ER 277, p. 285.
31 Seidl-Hohenveldern on "Austria" in Lauterpacht & Collier (eds.), Individual Rights and the State in Foreign Affairs, p. 26.
32 Wail on "France" in Lauterpacht & Collier (eds.), supra, p. 291; Clerget v Banque Commercial pour L'Europe (1971), Court of Cassation, 65 ILR 54; Matte et Ross v La Seciete des Ferges et des Chambres de la Méditerranée (1991) 18 JDI 868.
33 Seidl-Hohenveldern on "Germany" in Lauterpacht & Collier (eds.), Individual Rights and the State in Foreign Affairs, p. 259; Reichsgericht 10 May 1921 Fontes Juris Gentium A. 2 I No.224; and Reichsgericht 29 June 1920 Fontes Juris Gentium A.21 No. 202.
34 VEB Carl Zeiss Jena v. Carl Zeiss Heidenheim (72 International Law Reports 550, pp. 562 and 560).
35 Report of the European Commission of Human Rights of 8 July 1993. See article by Zaim M. Necatigil, "Chrysostomos and Papachrysostomou v. Turkey: Some Aspects of State Responsibility", Journal for Cyprus Studies, Vol. 2, No. 3 (1996), pp. 217-266.
36 Judgement of 18 December 1996 (Merits), paras. 42 and 44.
37 See article referred to in note 27, above, where the criteria of statehood are examined in some detail.
38 Ibid, paras. 16-17.
39 Ibid, paras. 19-24.
40 Ibid, para.44.
41 The Commission was composed, inter alia, of Mr. Robert Badinter, Chairman, at the time President of the French "Conseil Constitutionnel" and Prof. Roman Herzog, at the time President of the German Constitutional Court and later President of the Federal Republic of Germany.
42 29 November 1991, 92 ILR 737.
43 (1994) ECR1-3087, relating to the validity of phytosanitary certificates issued by the authorities in the TRNC.
44 British position: Comments by Sir Colin Crewe at 1589th Meeting, 6 October 1971, Official Records of the Security Council, S/PV.1589, p. 5, paras. 49-53; and at 1598th Meeting, 20 October 1971, Ibid, S/PV.1598, p. 3., paras. 25-26; Belgian position: Comment by Mr. Longerstacy at 1590th Meeting of the Security Council, 14 October 1971, Ibid, S/PV.1594, pp. 5-6, para. 51; French position: Comments by Mr. Kosciuskio-Morizet at 1588th Meeting of the Security Council, 5 October 1971, Ibid, S/PV. 1588, pp. 2-3, paras. 6-8; and Italian position: Comments by Mr. Vinoi at 1589th Meeting of the Security Council, 6 October 1971, Ibid, S/PV. 1589, p. 11, para. 6; and at 159th Meeting, 20 October 1971, Ibid, S/PV. 1595, p. 17, para. 167.
46 Statement in the House of Commons on 19 December 1956.
47 Geneva Declaration of 30 July 1974, signed by the Foreign Ministers of UK, Greece and Turkey.
48 S/23300 of 19 December 1991, para. 6.
49 App1. No. 8007/77, Report of the Commission of 4 October 1983, para. 64.
50 Para. 63.
51 No. 23, para. 27.
52 Ibid, paras. 31.
53 Resolutions No. 186 and 187, respectively.
54 UN Secretary General's Report S/5950 of 10 September 1964, paras. 29-30, and 177-180.
55 HMSO, Misc. No. 30 (1974) cmnd. 5712.
56 Alithia Publishing, Nicosia, 1990.
57 UN Secretary General's Report S/11789 of 5 August 1975.
58 UN General Assembly Resolution 2625 (XXV) of 24 October 1970.
59 Judgement of 23 July 1968, p. 34.
60 Cyprus Mail, of 27 August 1997 and 10 September 1997.
61 Press release of the American Center of 4 May 1998.
62 See particularly the UN Secretary General's Report S/12253 of 9 December 1976, para. 19.
63 S/24050, para. 50.
64 S/26777 of 22 November 1996, para. 16.
65 UN Secretary General's Report S/1996/1016 of 10 December 1996.
66 UN Secretary General's Report S/20663.
67 Para. 69.
68 Now Article 41 of the Convention as amended by Protocol No. 11.
69 Para. 25 of the judgement of 28 July 1998.
70 Now Article 46 of the Convention as amended by Protocol No. 11.
71 640th (September 1998); 647th (October 1998); 654th (December 1998-January 1999); 659th (February 1999); 666th (March 1999); 672th (May 1999); 667th (July 1999); 678th (September 1999); and 680th (September 1999) meetings.
72 See e.g., Gündüz Aktan, "A Deadlock Created by Justice" The Turkish Daily News, 28 January 1999.
73 Restricted as it was, because Cyprus could not change its Constitution, and moreover, it could not enter into economic and political union with any state whatsoever.
74 The two community leaders had signed all the documents establishing the Republic of Cyprus.
75 There have been references to the political dimension of the Loizidou case in other organs of the Council of Europe. For instance, in presenting the opinion of the Committee on Legal Affairs and Human Rights at a session of the Parliamentary Assembly of the Council of Europe on 29 January 1997 the Chairman of the Committee, Mr. Jurgens said:

"the political situation means that human rights are being violated on both sides of the island. That is such a massive problem that legal advice does not help, although the Court of Human Rights here in Strasbourg recently - in the Loizidou case in December - stated specifically that members of the Cypriot community whose property is on the other side of the wall should not lose their property rights. Whether or not those rights can be reinstated is a political matter. They can be reinstated only if the political situation is such that each side is prepared to acknowledge the rights of the other" (AS(1997)CR4).

About the Author

Zaim M. Necatigil studied law at the University of Hull and was awarded the LL.B. (Hons.) degree in 1961. He was qualified as a Barrister-at-Law in 1962 and was called to the English Bar by the Middle Temple Inn of Court, London.

Necatigil served as the Attorney-General of the Turkish Federated State of Cyprus and its successor, the Turkish Republic of Northern Cyprus (TRNC) between 1979-1988. He was adviser to the President of the TRNC during the intercommunal talks between 1988 and 1990. He was elected to the Parliament in 1990 and until 1993 served as the Chairman of the Legal and Political Affairs Committee.
His previous publications include Cyprus:Constitutional Proposals and Developments (Nicosia, 1977), The Cyprus Conflict: A Lawyer's View (Nicosia, 1981), Our Republic in Perspective (Nicosia, 1985) and The Cyprus Question and the Turkish Position in International Law (Oxford University Press, Revised Second Edition, 1996).

Zaim M. Necatigil is now teaching law at the Eastern Mediterranean University and the International American University in North Cyprus, with the title of visiting professor and working as advocate/adviser to the Ministry of Foreign Affairs and Defence of the TRNC.