The Cyprus Problem and EU Law: Ships Passing in the Night?
Stripped to its core, the Cyprus Problem pertains to the illegal invasion of the Republic of Cyprus by Turkish forces in 1974 and the displacement of 180,000 Greek Cypriots from their homes. The invasion was followed by the establishment of a Turkish-Pseudo State and the stationing of 43,000 Turkish troops. To this day, 37 per cent of the island remains under Turkish occupation.
Negotiations to resolve the Cyprus Problem have led to the creation of an emotional bond criterion which, if reports are to be believed, can prevail over the established property rights of displaced Greek Cypriots. The criterion entails that a Greek Cypriot will only have a right to return to the relevant property if that person lived in the property until the age of ten before 1974.
While the resolution of the Cyprus Problem is taking place under the auspices of the UN, the Republic of Cyprus is a Member State of the European Union, and any settlement, particularly with regards to property rights, must comply with EU law. This raises the question as to which EU law requirements must be satisfied.
First and foremost, the settlement must comply with the values enshrined in the EU Treaties. According to Article 2 of the Treaty on European Union, ‘the EU is founded on the value of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights’. These are visceral ideals which the EU is obligated to ensure with regards to its Member States. External pressure emanating from Turkey (a non-EU state) onto the Republic of Cyprus in the negotiation process must therefore be in accordance with the EU’s autonomous values.
Secondly, the settlement should comply with the EU Charter of Fundamental Rights (EU Charter). Put simply, the EU Charter is the EU’s own Bill of Rights. As a primary source of law, the EU Charter has the same legal value as the EU Treaties. For present purposes, the most important provision of the EU Charter is Article 17, which enshrines the right to property.
Article 17 of the EU Charter is based on Article 1 of the Protocol to the European Convention on Human Rights. According to Article 17 of the EU Charter, ‘Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest…’
The ‘lawfully acquired’ element denotes that any right to property i.e. to own, use, dispose and bequeath vests not with Turkish settlers, but with Greek Cypriots. In Loizidou v Turkey, the European Court of Human Rights held that all expropriations flowing from the occupation of northern Cyprus are invalid and do not alter the ownership status of displaced Greek Cypriots. Further, property owners cannot be deprived of their rights, save in the ‘public interest’. The arbitrary calibration of the emotional bond criterion extinguishes the rights of many Greek Cypriots in favour of Turkish settlers and should thus fall foul of any public interest requirement.
In order to invoke Article 17 of the EU Charter, a property-related dispute must fall within the scope of Article 51 of the EU Charter. Article 51 of the EU Charter states that: ‘The provisions of this Charter are addressed to the [EU] institutions…and to the Member States only when they are implementing Union law’.
The Cyprus settlement thus requires some form of implementation of EU law, either by the EU institutions or the Republic of Cyprus; otherwise the EU Charter will not bite. The Court of Justice of the EU (CJEU) has adopted a broad approach regarding the application of the EU Charter. The CJEU proceeds on the basis that the applicability of EU law entails the applicability of the EU Charter. This, it is said, reflects the CJEU’s fidelity to upholding the rule of law of which fundamental rights are always part and parcel. If the Cyprus settlement is deemed to fall outside the scope of EU law, then the rule of law will amount to little for displaced Greek Cypriots.