PRESENTATION OF TIM POTIER

PRESENTATION OF TIM POTIER’S BOOK

“A FUNCTIONAL CYPRUS SETTLEMENT – THE CONSTITUTIONAL DIMENSION”

By Dr Kypros Chrysostomides

5.7.07 – Nicosia

Dear all,

It is always a great honour to be asked to present a book, the intellectual product of a colleague and in particular if the writer is an academic. For this, I thank Tim Potier very much and I shall gladly share with you a few thoughts about his work.

Tim has an impressive background with a PhD from the University of Keele, a fellowship at the University of Exeter and was head of the Department of Law at the Intercollege where he teaches on a full time basis. He specializes in Public International Law, Human Rights and Jurisprudence though with this book, he concentrates on constitutional law and in particular, federal constitutional law. I have not had the pleasure to read any of his other works, books or articles. Tim Potier finds it challenging to deal with conflict situations. He wrote about “Conflict in Nagorno-Karabach, Abhazia and South Ossetia: A legal appraisal”; a chapter on “Continued challenges, post settlement, to the Cyprus conundrum”, a briefing paper to the Chatam House on “Cyprus: Entering another Stalemate” and a number of other works. He has obviously followed closely the recent developments in our country.

His most recent work is the book at hand with the title “A Functional Cyprus Settlement; The Constitutional Dimension”. The book is included in the series of PELEUS, “Studien zur Archaeologie und Geschichte Griechenlands und Zyperns” by Franz Philipp Rutzen, Publishers. A very well presented voluminous publication, into which the author has no doubt put long hours of research and study.

The author has chosen to examine in his book the constitutional aspects of the Cyprus Problem under the Annan Plan. Indeed any “Functional Cyprus Settlement” should address these, as the constitutional aspects are certainly of crucial importance and they also contain connotations and symbolisms. However, the problem is not limited to constitutional issues alone. Even the most appropriate constitutional solutions could not by themselves be “a highly functional settlement” either, as the author seems to believe in his forward.

Though the author is not optimistic, he points out in no uncertain terms that: “At the end of the day, all that is required is the will and certain level of trust”. He sees that: “Extreme fatique, diplomatically, has set in over the ‘Cyprus problem’ as the period since the referendum has become extended”. However, we, Cypriots, cannot allow fatigue to set in over us and I am glad that legal academia seems to share this view by discussing aspects of a plan that has been tabled and failed, a discussion which may provide food for thought in our future endeavours. It is a very encouraging exercise, since what we look for is a way of starting afresh. We have two indicators on which we may base our efforts: the Report of Sir Kieran Prendergast (then Deputy Secretary General of the UN of 22 June 2005 and the resulting agreement of the 8^th July 2006, for a final solution. It is not the proper forum here to expand on these issues, but I cannot resist the temptation to indicate one salient statement of Sir Kieran, he said: “…the Cyprus problem must be settled on its own merits and primarily serve the interests of the Greek Cypriots and the Turkish Cypriots”.

Tim’s book could prove useful in the context of the new efforts that are in progress, and hopefully of new negotiations that may start, or even in the context of a common constitutional assembly, which this speaker advocates. The Cypriots have a right and an obligation to reclaim their country for themselves and to reverse the present unacceptable status quo.

Tim Potier seems on the one hand to know the history of the Cyprus problem and on the other to have studied in depth the Annan Plan. His numerous remarks about mistakes and inconsistencies are notable.. I shall single out a few central points of his discussion of the Annan Plan, which present a constitutional interest, as well as points which touch upon issues of international law.

Indeed, I agree with Tim, that the references in any plan for a constitutional settlement of a specific problem, to the constitutional system of other countries, like Belgium or Switzerland, as it happens in the Annan plan, should be avoided. We are looking for a new and specific system, appropriate for our country under the given set of facts. We do not, and should not, copy just for the sake of convenience. We could probably adopt some solutions from the one or the other federal constitution, but only for a good reason pertinent to our situation. I also believe that a new constitution cannot be modeled on two other federal constitutions simultaneously.

In the Chapters “Entry into Force” and “State Succession”, which touch upon crucial issues both of constitutional as well as international law, Tim Potier, seems to conclude that all relevant arrangements “…indicate continuity (merely replacing the old/former), rather than the beginning of something”. This is, however, only a product of ‘legal interpretation’. Though one could hasten to agree with this evaluation, the picture is not absolutely clear. There was no express provision to this effect, a fact that could lead to endless legal disputes and ambiguity. You may ask: Is it not always so, is n’t ‘constructive ambiguity’ a standard pattern of international diplomacy? In any event the term used by Tim as title to his Chapter 5, “State Succession” already denotes “creation” of a new state. Serious arguments could be presented that no new state would have been created by the plan. There could be, on the other hand, a number of strong arguments to the contrary. Let me remind you of the first article of the new Constitution of Bosnia-Herzegovina, it says: “The Republic of Bosnia and Herzegovina, the official name of which shall henceforth be “Bosnia and Herzegovina”, shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders. It shall remain a Member State of the United Nations…” There was no equivalent provision in the Annan Plan

Who was to be appeased by the constructive ambiguity followed in this respect? It is not my intention to expand on this issue, but I would think that the situation has dramatically and irreversibly changed since accession of Cyprus as a single and uniform state entity to the EU. This is a matter that cannot anymore be ignored and terms as “constituent states” or “constitutive powers” may have lost their significance in the meantime.

Skipping some chapters on the “Reconciliation Commission”, “Human Rights” and “Separation of Powers”, which Tim apparently considers unproblematic, let me stop for a while at the chapter on citizenship. Tim Potier refers, obviously without any discussion, that there is “single Cypriot citizenship” and probably thinks without further discussion, that the wording of Article 3, of the Main Articles renders the arrangements relating to the “second citizenship of the constituent states” quite normal.

No modern federation recognizes a separate citizenship of its federated states. In the United States, Germany, Austria, Canada and Belgium, all citizens have one single citizenship. More particularly, in the case of Belgium, to which reference is made in the Annan Plan, it is well established, according to Professor Francis Delpérée, that its Constitution forbids the communities or the regions forming the federal state, from according their own separate citizenship. It is also well known that it is only sovereign states, which are subjects of international law that may grant citizenship to their citizens. Even in Switzerland, where the federation has historically evolved in quite a different manner and where separate political rights of citizens, also known as “separate status of citizen” (Bürgerrechte), are being recognized on three different levels, that of the “community”, of the “cantons” and of the “general community”, the principle is that of a legally single and indivisible Swiss citizenship (Prinzip der rechtlichen Untrennbarkeit).

In the case of Cyprus, the Annan Plan attempted to introduce a unique arrangement. Though it stipulated that the internal citizenship should complement and should not replace the Cypriot citizenship, it deleted in its 5^th version, even the reference that such citizenship would be similar to that of an EU citizen. Why?

As far as the exercise of political rights is concerned, the Plan separates the criteria of its exercise as follows: ‘Save for the election of Senators, who will be elected separately by the Greek-Cypriots and the Turkish-Cypriots, the political rights on the federal level will be exercised on the basis of the internal status of the citizen of the constituent state. The political rights in the constituent state and on a local level shall be exercised at the place of permanent residence’.

The first question that arises is, what is then meant by ‘one and single Cypriot citizenship’ mentioned in the Plan, following, apparently, the wording of a number of resolutions of the Security Council? What political rights are exercised on the basis of such single citizenship? It is obvious that there are none in practice and that the ‘second citizenship’, that of the constituent states, takes precedence. Is the ‘single Cyprus citizenship’ merely of nominal value or at best does it exist only for travelling purposes and as proof of the European “citizenship”? A truly unique system of citizenship and exercise of political rights was being created, as a result of the inventiveness of the drafters of the Annan Plan and the demands of the Turkish side.

At the same time, another detail should be noted. It might not be as significant but it is characteristic of the whole arrangement. On birth, a child automatically acquires the internal citizenship of its parents irrespective of its place of birth; however the Cyprus “federal” citizenship, it is automatically acquired only by children born in Cyprus and who have at least one Cypriot parent. If born abroad, having one or even both Cypriot parents, there is an additional need for registration according to the method and formalities prescribed in the Plan. In other words, in the latter case, unless registered, a child is not considered automatically to become a citizen of the United Cyprus Republic, but he or she is considered as having automatically acquired the internal citizenship of the relevant constituent state. But how is this possible since only Cypriot citizens can acquire internal citizenship? Is this arrangement not a contradiction in terms? Why complicate things if simpler solutions could be adopted? This is a question that requires clarification.

Because of time constraints I shall not be able to deal with the entire wealth of information and tracing of a hoard of mistakes and inconsistencies that Tim Potier finds in the final version of the plan. I would refer to a few specific points alone.

First, the “Presidential Council”. No previous plan or ideas have ever devised any such scheme. In any event the fact that it would be elected by Parliament under the Annan plan, drew the attention of Tim Potier. He suggests that the Presidential Council should be elected by the electorate, as the “present system weakens the authority of the executive”. I agree whole heartedly, but go a bit further than Tim and wonder why the Plan followed a different route. Not particularly why a system of rotation was adopted (which is a different question altogether) but why should the Presidential Council be elected by Parliament and not by universal suffrage. In Switzerland, where this arrangement was first invented for historical reasons, the purpose was not to give the Council popular support and to place it hierarchically below the Federal Assembly. So in essence Tim agrees that the weakening of the executive was envisaged for obvious reasons.

Furthermore, the author points out that the pertinent “Basic Article” 5(2)(a) and Article 26(1) of the draft constitution cannot be reconciled. The latter provides that Parliament “shall elect three non-voting members”, whilst the Basic Article states that the Presidential Council “shall comprise six voting members”, with “additional non-voting members” in the event that the federal Parliament “so decides”. This is indeed so, and surely a clarification is required. I also agree with Tim that the existence of non-voting members on the Presidential Council is inexplicable. On the other hand, personally I disagree with his positions on the composition of the Presidential Council and his justification thereof. He says: “Whilst political equality does not have to be provided (in its purest form, 50:50)…it ought to be reflected in the Presidential Council. The existence of a “Greek majority” [which he puts in quotation marks] in the Presidential Council is vulnerable to the emergence of a “majority consciousness” (one of dominance among the members). Granted, decisions may not be reached in the Council without the agreement of one of the two Turkish Cypriot ‘voting members’, but a cementing from the outset, of the latter’s minority condition, in perhaps the most visible division of government, is likely only to accentuate unhappiness and disagreement rather than the opposite. Besides, that feeling of dominance may be acted out too readily, prior to any vote, through pressure being put to bear on the ‘minority’ to achieve that consensus.” Hence he believes that “it is far tidier for the Presidential Council to have eight members rather than nine. Of the eight members, four should hail from each constituent state.” There may be logic, according to Tim, behind this suggestion I fail, however, to understand how this would be justified in the context of the salient facts surrounding the present situation in Cyprus.

The same string of thought occurs in connection with the discussion on the Federal Parliament. Tim finds that: “The voting arrangements in the Chamber of Deputies contain some worrying signs. Deputies hailing from the Turkish Cypriot State would be in a permanent minority…” And he suggests that the method provided for the Senate relating to decisions of Parliament i.e. that majority voting including one quarter of senators present and voting from each constituent state is required, should have been adopted also for the Chamber of Deputies, where the plan provided only for simple majority. Tim does not believe that it is enough that the plan expressly provided as follows: “…decisions of Parliament need the approval of both Chambers with simple majority of members present and voting, including one quarter of senators present and voting from each constituent state”. Though Tim’s approach is respected, I believe that he labours under a different interpretation of the term “political equality”. The objective of Cypriots should not be to create a system of permanent division and certainly not one of apartheid. The High Level agreement of 1977 seems to advocate in favour of preserving the unity of the state.

There are other very interesting discussions in the book under the Annan Plan: on Federal Elections, on the External Relations, on the European Union Relations and other matters. Despite the fact that there may be divergence of opinion on several aspects and despite the fact that the Annan Plan as it was, after the Referendum, must be considered as null and void and of no effect whatsoever, I believe that we the Greek and Turkish Cypriots alike, all of us the people of Cyprus, exercising our constitutional powers together, may benefit from discussions similar to those contained in Tim’s book.

Time does not allow me to deal with other aspects discussed by the author in his really impressive and detailed book, for which I congratulate him and wish him all the best. In fact we, Cypriots, should be grateful that Tim has shown such a vivid interest in our problem.

Research & Development Center - Intercollege