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Tatar’s request to UNFICYP has no legal standing

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The statement by the so-called minister of foreign affairs, Tahsin Ertugruloglu, in the Turkish daily Hurriyet, could be characterised as an ultimatum, as he gave a month’s notice to UNFICYP to agree to a separate agreement with the ‘TRNC’, seeking recognition for the illegal regime.

In the negative, he stressed, UNFICYP would have to withdraw from its two military camps in the occupied north of Cyprus.

It should be mentioned that Ertugruloglu and the Turkish Cypriot leader Ersin Tatar met in New York with Antonio Guterres and Jean Pier Lacroix and submitted a draft “agreement on the status of the forces”.

In this respect, Ertugruloglu stated that the United Nations will examine the draft and give an answer the soonest as possible and that they will take the necessary steps in case of a negative answer.

The selfish rhetoric jargon is baseless, as everybody knows how difficult the signing of an agreement between an illegal state and the United Nations, which, in this case, are bounded by their own UN Resolution 541 (1983) of 18 November 1983:

It “Deplores the Declaration of the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus and considers the declaration referred to above as legally invalid and calls for its withdrawal.”

The same difficulty was also confronted former Turkish Cypriot leader Mustafa Akinci, who, on 2 July 2018, sent a letter to the members of the UN Security Council asking for the reassessment of the mandate of UNFICYP.

He argued that UNFICYP continues to cooperate with the Turkish Cypriot authorities without a legal basis and that preparing a document with the UN dealing with all aspects of their relations was necessary.

Both the request of Mustafa Akinci for the reassessment of the mandate of UNFICYP and that of Ersin Tatar for a separate agreement are refuted by the following legal arguments.

Regarding the legal basis argument, it should be noted that the host state’s consent is the most important legal basis for the admission and operation of a UN force.

In the case of Cyprus, this consent has been given by the government of the Republic of Cyprus.

The then Turkish Cypriot vice-president did not protest the arrival of UNFICYP back in 1964 but argued that his constitutional rights were violated when consent from him was not sought (see UN document S/5583, S/5608, S/5613 and S/5629).

The necessity of placing relations between the UN and the host state on a clear legal basis led to the conclusion of an agreement on 31 March 1964 between the Republic of Cyprus and the UN concerning the status of UNFICYP.

The UN itself viewed the government of the Republic of Cyprus, following the voluntary defection of its Turkish Cypriot members in December 1963, as having the full constitutional competence to sign the agreement with the UN.

Restoring order

Concerning the purposes of UNFICYP’s operation, its mandate, as enunciated by the Security Council in its resolution 186 of 4 March 1964, was in the interest of preserving international peace and security, to use its best efforts to prevent a recurrence of fighting and to help maintain and restore law and order and return to normal conditions.

It is of utmost importance to mention that operative paragraph 2 of this resolution recognises that the responsibility for maintaining and restoring law and order belongs to the government of Cyprus.

There is, therefore, no need for any other legal basis for cooperation between the Turkish Cypriots and UNFICYP since the legal basis of the force rest equally upon Security Council Resolution 186 of 4 March 1964, taken in accordance with the provisions of the UN charter and the consent of the government of the Republic of Cyprus, which requested the presence of a UN peacekeeping force on the island.

There is, however, another legal argument against preparing such a document which is obviously aimed at giving the Turkish Cypriot side a say in matters concerning UNFICYP and promoting the recognition of their illegal regime.

For 58 years, the Turkish Cypriot side cooperated with UNFICYP in the performance of its peacekeeping mission.

This has created customary international law, according to eminent international lawyers.

The two necessary elements implying the existence of customary law are there.

“Consuetudo,” prolonged repetition of the same action, and “opinio juris sive necessitatis”, belief in the obligatory character of its usage.

This is the opinion of my Professor Paul Guggenheim (“Traite de Droit International Public”, tome 1, p.46) and that of Professor Oppenheim (International Law Vol 1, p.26) who confirms that “international jurists speak of a custom when a clear and continuous habit of doing certain actions has grown up under the aegis of the conviction that these actions are, according to International Law, obligatory or right”.

We want to stress that the Turkish Cypriot opposition dared to react to Tatar’s actions and the need to be ready and united to face future challenges of the Turkish side.

By Dr Andrestinos N. Papadopoulos, Ambassador a.h.