Automatic succession in Cyprus

by Alexandros Efstathiou

In the past few weeks, there has been much discussion on both sides in Cyprus as to whether the Bi-zonal Bi-communal Federation (BBF) to be established post-solution would be a continuator state, which is to say, an evolution of the unitary state of the Republic of Cyprus into a BBF structure, or a successor state, which is to say, a completely new state that would start off on a clean slate (tabula rasa) with no obligations under international law apart from those that derive from international customary law, i.e. those aspects of international law that derive from custom rather than treaty law.

Although it is the point of the present article, on the one hand, that it would be improbable that the new BBF structure could be considered a successor state, it could, on the other hand, have been a better deal if we could actually manage to come to a successor state.

The idea of a successor state arose during the period of decolonisation, as a doctrine in international law, so as to appease the newly independent decolonised states that they would be starting off without the burden of the obligations of their previous colonial overlords. Furthermore, this customary doctrine was clearly postulated in Article 16 of the 1978 Vienna Convention on Succession of States in respect of Treaties.

However, since the end of the period of decolonisation it has rarely, if ever, been used vis-à-vis new state structures. Indeed, since 1990, the only states that have widely been considered under international law as to have started off on a clean slate were:

(1) the new states that arose from the dissolution of the USSR, apart from Russia, Ukraine and Belarus, as continuator states of the USSR, and the Baltic states, as continuators to the independent states that existed prior to the 1940 Soviet annexation;

(2) the new states that arose from the dissolution of Yugoslavia, apart from Serbia as a continuator state to the Socialist Federal Republic of Yugoslavia, the Federal Republic of Yugoslavia, and later Serbia & Montenegro;

(3) the Republic of Yemen as a new state established by the unification of the Yemen Arab Republic and the People’s Democratic Republic of Yemen;

(4) the State of Eritrea that seceded from Ethiopia; and

(5) the Republic of South Sudan that seceded from Sudan.

The common factor in these cases was that all the above were states that arose from extraordinary circumstances. However, it is worth noting that, apart from Yemen, all the other cases were cases of dissolution and/or secession of pre-existing states.

On the contrary, at the time of the reunification of Germany, which also happened in roughly the same time period as the unification of Yemen, the reunification was actually considered as an incorporation of the German Democratic Republic (DDR) into the Federal Republic of Germany (BRD), or a form of annexation by the BRD, rather than a case of creation of a new state. No doctrine or state practice have suggested otherwise. The reason for this was the fact that already the BRD had widely been considered as the continuator state of the pre-WWII united Germany, as evidenced by the fact that even Eastern bloc countries directed their post-war compensation claims against the BRD, while the DDR was considered a new state that had been established in 1949 and which ceased to exist in 1990.

Indeed, the situation in Cyprus looks much closer to the one of Germany rather than the one of Yemen. Yemen was established by the unification of two widely recognised states that had never actually existed before as a single state. Germany, on the other hand, was a case of peaceful reunification of two states, that recognised each other as sovereign states under the 1972 Basic Treaty, back to their original single territorial formation that existed before 1949, a formation of which BRD was the continuator state, as held by both the international community and legal scholars.

In the case of Cyprus, more importantly, there is a single state recognised by the entire international community (except Turkey) and legal doctrine as having de jure sovereignty over the entire island (excluding the Sovereign Base Areas), and that is the Republic of Cyprus (RoC). On the other hand, the Turkish Republic of Northern Cyprus is considered a secessionist state with de facto control over the northern part of the island, being recognised by Turkey alone, for reasons of a political, rather that legal nature. It should therefore be clear that, under international law, the new BBF formation could only be a continuator state of the RoC, to which the north would be reincorporated.

In addition to the above, further evidence that the post-solution BBF would be a continuator state of the RoC is the fact that the issues of membership in international treaties to which RoC is party, including UN and EU membership, have never been put into question during the entire negotiation process, and there is wide consensus between the leaderships of both the Greek- and the Turkish-Cypriot community that the BBF should remain party to all the treaties that the RoC is party to and that the UN and EU seats of the RoC will be taken up automatically, without any need for a new application.

Regardless, however, of the dominant discourse within the Greek-Cypriot community that the BBF must be considered as a continuator state of the RoC (of which there is little doubt, for reasons explained above), succession would give the people of Cyprus a much better opportunity to finally decide how to shape their own future, rather than leaving it to the good will of the legislature, which is evident from the following examples:

(1) the people of Cyprus as a whole have never been asked about whether or not they want to join the European Union;

(2) the people of Cyprus have never been asked about whether or not they want to join the Eurozone;

(3) the people of Cyprus have never been asked about whether or not they want to join any international military alliances and/or partnerships; and

(4) the people of Cyprus have never been asked about whether or not they accept their state of citizenship being a signatory to the demeaning colonial hangover called the “Treaty of Establishment”, handing over to the United Kingdom a total of 3% of the island’s territory for the British army to use as an airfield and espionage station in their search for influence and power in the Middle East.

We would have to say that creating a new state and starting off on a clean slate could actually be more advantageous for all the people of Cyprus to be able to redefine their future. In view of the above, unfortunately, it seems that the Greek-Cypriot political leadership is correct in their belief that there can only be continuation, no succession.

 

1 “A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which the succession of States relates.”

 

7 Comments

  1. Hulusi KilimHulusi Kilim said:

    I haven’t read such a well-written document explaining this topic until now. Beautifully said. Thanks for sharing.

  2. Alexandros EfstathiouAlexandros Efstathiou said:

    You are right that the labels don’t matter in the sense that this politically futile debate has taken place only to serve each side’s internal political consumption. However, the analysis was more legal, than political, and the proposition is that, even if highly unlikely, creation of a new state and a vacation of all international legal obligations would not necessarily be a bad idea, contrary to what G/C politicians argue.

  3. Serkan H BirgelSerkan H Birgel said:

    I didn’t actually read it believe it or not; I dismissed it as an example of what you said was the classic futile debate. I think I will read it now because by your description it’s something that goes against the grain! Thanks

  4. Admin said:

    Very well written article. Also we need to keep in mind that those positions are set in order to prove that either side has certain points that there can not be any convergence. In a way, it is a legitimate way of saying we can not reach to a solution because we do not agree with the philosophy. This problem emerged repeatedly in the history of the negotiations. I think it is important to consider hybrid options rather than being fervent supporter of one view. Ultimately, Annan Plan had a good positioning with the case of “Coming into existence” of the state which did not required the UN, CoE, EU memberships but also there were clauses that gives a room for interpretation that federal cyprus is the successor state. Remember Papadopoulos’s defence for saying NO to the plan. He was crying and saying that he wont give a state and get a constituent unit. I am pretty sure that those debates are important for legal experts but pointless discussions for the two leaders. I think it only serves to delay speaking about the real cases of territorial adjustment, more to the point, names of the villages that will be returned to the GC control and so on…

  5. Alexis Pantelides said:

    Alexandre thank you for a very well analysed article. I like the refreshing approach of not taking for granted either legal options, and I welcome the clear setting out of the argumentation. However, the only element which I didn’t see and which I would have found important for me to understand the whole picture, would be an outlook of the legal ramifications in the case of a creation of a new state. i.e. the benefits are evident in your points 1-4 at the end of your article. But what are the potential pitfalls? Is membership of the EU really at stake? And for legal purposes, would there be any legitimate legal claim in questioning the status of the Sovereign British bases? (politically, it is safe to assume that this is an unsurmountable issue). Politically I understand that the issue of the transition mode has been abused – for whatever respective political gains – but on the legal front, it would be interesting to see what the Cypriot citizens (GC and TC) are faced with when having to vote for a referendum. While I welcome your optimism of “starting with a clean slate”, I cannot help but wonder whether this would be too much of a risk, considering the expected complexity of the reunified state. It is a better insight on this “risk” that I would like to see. Thank you again for this piece, exactly the type of articles we need for a knowledgable debate on the issue!

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