Ankara Bar Review Is a Peer Reviewed and Scientific Law Journal Which Is Indexed at the TÜBİTAK–ULAKBİM Database

AnkaraVol.6 Issue.1 2013 Bar Review www.ankarabarreview.org

Ankara Bar Review is a peer reviewed and scientific law journal which is indexed at the TÜBİTAK–ULAKBİM database.

Ankara Bar Review TÜBİTAK–ULAKBİM Veri Tabanında indekslenmekte olan hakemli ve bilimsel bir hukuk dergisidir. The Owner on Behalf of Ankara Bar Sema AKSOY [email protected] Managing Editor Gökhan CANDOĞAN [email protected] Editor in Chief Dr. Gökhan GÜNEYSU [email protected] Editorial Board Chair Vice Chair Onur KILIÇ Burhan Doğuş AYPARLAR [email protected] [email protected] Members Tuğba ŞİMŞEK Ecem ALTUN [email protected] [email protected] Technical Board Graphic & Layout Design Web Design & Programming Ali Kemal ÇERŞİL Eren AYDIN [email protected] [email protected]

Articles and letters that appear Print date 2013 in the Ankara Bar Review do not necessarily reflect the official Printed by ARCS OFSET MATBAACILIK view of Ankara Bar Association Kazımkarabekir Cad. and their publication does not Tunahan 101-2G İskitler/ANKARA constitute an endorsement of Tel: (0.312) 384 24 01 views that may be expressed. Faks: (0.312) 384 24 03 www.arcs.com.tr Readers are invited to [email protected] address their own comments Contact Ankara Barosu Başkanlığı, and opinions to our Adliye Sarayı Kat: 5 contact shown below. Sıhhiye, Ankara, TURKEY T: +90.312.416.7200 (Pbx) Publication and editing F: +90.312.309.2237 are at the sole discretion www.ankarabarreview.org info@ ankarabarreview.org of the Board of Editors.

Ankara Bar Review is published biannually in English. Board of Advisors

A F ABDULHAKİMOĞULLARI Erdal Assoc. Prof. Dr. FEYZİOĞLU, Metin Prof. Dr. AĞAR, Serkan Dr. G AKKAYA, Mustafa Prof. Dr. GEMALMAZ, Burak Assist. Prof. Dr. AKINCI, Müslüm Assoc. Prof. Dr. GÖKTÜRK, Neslihan Assist. Prof. Dr. AKSAR, Yusuf Prof. Dr. GÖLE, Celal Prof. Dr. ALTAŞ, Hüseyin Prof. Dr. GÖNENÇ, Levent Assoc. Prof. Dr. Prof. Dr. ARAT, Tuğrul GÜNAL, Nadi Prof. Dr. GÜNDAY, Metin Prof. Dr. ARSLAN, Ramazan Prof. Dr. GÜNEYSU, Gökhan Dr. iur. ARTUK, Mehmet Emin Prof. Dr. GÜNEYSU BORAN, Nilüfer Dr. iur. ASLAN, Zühtü Prof. Dr. GÜNGÖR, Gülin Prof. Dr. AVCI, Mustafa Assist. Prof. Dr. GÜRTEN Kadir Assoc. Prof. Dr. B GÜVEN, Kudret Prof. Dr. BAŞPINAR, Veysel Prof. Dr. H-İ BAŞTERZİ, Süleyman Assoc. Prof. Dr. HAKERİ, Hakan Prof. Dr. BAYKAL, Ferit Hakan Prof. Dr. HASPOLAT, Mehmet Emin Assoc. Prof. Dr. BAYKAL, Sanem Assoc. Prof. Dr. İNAN, Ali Naim Prof. Dr. BIÇAK, Vahit Prof. Dr. İŞGÜZAR, Hasan Prof. Dr. BÜYÜKTANIR, Burcu Dr. K C-Ç KABOĞLU, İbrahim Özden Prof. Dr. CAŞIN, Mesut Hakkı Prof. Dr. KANADOĞLU, Korkud Prof. Dr. CENTEL, Nur Prof. Dr. KARAGÖZ, Kasım Assoc. Prof. Dr. CENTEL, Tankut Prof. Dr. KARAKAŞ, Fatma Assist. Prof. Dr. CİN, Halil Prof. Dr. KARAKEHYA, Hakan Assoc. Prof. Dr. Assoc. Prof. Dr. ÇALIŞKAN, Yusuf KARAN, Hakan Prof. Dr. ÇEÇEN, Anıl Prof. Dr. KENT, Bülent Assist. Prof. Dr. ÇETİNER, Selma Prof. Dr. KILIÇOĞLU, Ahmet Prof. Dr. D KOCA, Mahmut Prof. Dr. KOCAOĞLU, A. Mehmet Prof. Dr. DEMİR, Mehmet Prof. Dr. Dr. , Esq. DEMİRAY, Nezahat Assist. Prof. Dr. KOCAOĞLU, N. Kağan DEMİRBAŞ, Timur Prof. Dr. KOCAOĞLU, S. Sinan Assist. Prof. Dr. DEMİRCİOĞLU, Reyhan Assist. Prof. Dr. KORKMAZ, Fahrettin Prof. Dr. DÜLGER, İbrahim Assoc. Prof. Dr. KORKUT, Levent Assist. Prof. Dr. DÜLGER, Volkan Assist. Prof. Dr. KUÇURADİ, İonna Prof. Dr. E KÜÇÜKGÜNGÖR, Erkan Prof. Dr. ERDEM, Mustafa Ruhan Prof. Dr. M EREN, Fikret Prof. Dr. MOLLAMAHMUTOĞLU, Hamdi Prof. Dr. ERGİL, Doğu Prof. Dr. MUMCUOĞLU, Maksut Prof. Dr. EROĞLU, Muzaffer Assist. Prof. Dr. O-Ö ERTEN, Rıfat Assoc. Prof. Dr. ODYAKMAZ, Zehra Prof. Dr. ERZURUMLUOĞLU, Erzan Prof. Dr. OKUR, Ali Rıza Prof. Dr. ONAR, Erdal Prof. Dr. T OZANSOY, Cüneyt Assoc. Prof. Dr. TAN, Ayhan Prof. Dr. ÖKÇESİZ, Hayrettin Prof. Dr. TERCAN, Erdal Prof. Dr. ÖZBEK, Mustafa S. Assoc. Prof. Dr. TEZCAN, Durmuş Prof. Dr. ÖZBEK, Veli Özer Prof. Dr. TİRYAKİ, Betül Assist. Prof. Dr. ÖZBUDUN, Ergun Prof. Dr. TURANBOY, Asuman Prof. Dr. ÖZCAN, Fatma Assist. Prof. Dr. TÜZÜNER, Özlem Assist. Prof. Dr. ÖZEL, Çağlar Prof. Dr. U-Ü ÖZGENÇ, İzzet Prof. Dr. ULUŞAHİN, Nur Assist. Prof. Dr. ÖZKAN, Işıl Prof. Dr. USAN, Fatih Prof. Dr. ÖZTÜRK, Bahri Prof. Dr. UYGUR, Gülriz Assoc. Prof. Dr. P ÜÇIŞIK, Fehim Prof. Dr. PAZARCI, Hüseyin Prof. Dr. ÜNVER, Yener Prof. Dr. R ÜYE, Saim Assist. Prof. Dr. RUHİ, Ahmet Cemal Assist. Prof. Dr. ÜZÜLMEZ, İlhan Assoc. Prof. Dr. S-Ş Y SAYGIN, Engin Assist. Prof. Dr. YENGİN, Halisan Dr. iur. SEZGİNER, Murat Prof. Dr. YILDIRIM, Turan Prof. Dr. SOYASLAN, Doğan Prof. Dr. YILMAZ, Ejder Prof. Dr. SÜRAL, Nurhan Prof. Dr. YONGALIK, Aynur Prof. Dr. ŞAHİN, Cumhur Prof. Dr. YUSUFOĞLU, Fülürya Dr. iur. ŞEN, Ersan Prof. Dr. Z ŞEN, Murat Prof. Dr. ZABUNOĞLU, Yahya Prof. Dr. ŞENOCAK, Kemal Prof. Dr. Contents

Foreword Sema AKSOY 9 President of the Ankara Bar Association

A Glimpse Of Ankara Bar Association’s History Ahmet İYİMAYA 11

Peer Reviewed Articles

Cyprus in International Law Erhan BORA 27

Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus 59 Nejat DOĞAN A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks 81 Emriye Özlem ŞEKER Directors’ Remuneration Policies And Other Compliances: General Economic-Banking Views And Evaluations Within The Framework Of The Post Crisis World For Financial Institutions 111 Yonca Fatma YÜCEL

Formation of Contract According to the CISG Belkıs VURAL 125

Articles

The Principle Of Parliamentary Supremacy In The UK Constitutional Law And Its Limitations Ahmet Emrah GEÇER 155

Should Mediators In Workplace Disputes Be Lawyers? Esra YILDIZ 169

Ankara Bar Association’s 8th International Law Congress 185

Foreword

Dear Colleagues,

Ankara Bar Review is a comprehensive legal journal covering key discussion topics. The issues addressed range from Turkish law to international law and cover a wide spectrum of very different problems in the fields of public and private law.

It is an honor to present these articles written by highly respectable experts from academia and practice. Erhan BORA, Esq, provides a stri- kingly well-prepared legal account of Cyprus problem and its relevance to international law. Associate Professor Nejat DOĞAN deals with the same issue in the light of a relatively recent development in international law, i.e. ICJ’s Advisory Opinion on Kosovo and comes up with a highly lucid article, which is also rich in argumentation. I am sure these two articles of the highest caliber will bring about new academic and legal responses. Ms Emriye Özlem Şeker tackles in her article with the problem of the trademark dilution, a crucial legal issue. Ms. Belkıs Vural analyzed an ever important legal problem, namely that of the formation of contracts according to CISG. These and other meticulously written articles turn 2013/1 Issue of Ankara Bar Review into an invaluable contribution to the Turkish and international legal community.

I would like to thank and appreciate the learned members of the Editorial Board of ABR as well as the blind peers who have made the printing of this issue possible. I would like to remind our readers and legal scholars that ABR is a part of a very select group of legal journals, which are indexed at the TUBITAK-ULAKBIM database.

I hope that all our readers will benefit from the 2013/1 Issue of ABR.

Yours sincerely,

Attorney at Law Sema AKSOY President of the Ankara Bar Association

A Glimpse Of Ankara Bar Association’s History*

Ahmet İYİMAYA**

* This article was originally published in the first issue of Ankara Bar Review in 2008. ** Attorney at Law, Member of Ankara Bar, Chair of the Justice Committee of Turkish Grand National Assembly (TBMM), former Chair of the Constitutional Committee of TBMM.

A Glimpse Of Ankara Bar Association’s History / İYİMAYA

I– INTRODUCTION[1] have been planning to do research about the history of Ankara Bar Associa- tion for some years. However, the difficulties of research delayed “my efforts” to do this job. These difficulties were not because of a lack of knowledge Iabout the science of history or that subject is related to history but the real reason is that the resource materials were not in places with easy access. Systematic data about the history and development process of institutions and associations is not only beneficial, but mandatory for the formation of ideals. To have the memory of the efforts in the past hidden in back of developments, is one of the reasons for the “breakdown and failure in the future.”[2] There is likely to be no official research about the historical development of some basic associations such as the Advocacies and Bar Associations. Compre- hensive research, including all the years and volumes, should be done though cooperation between Bar Associations and Universities with proper financial support as well.[3] This study is under the level of sufficiency. The absence of an established and organized archive caused a waste of time and wastefulness. It is not inappropriate to hope to have contributions from distinguished lawyers and their articles volunteered for this research.

II– MATERIALS 1. ARCHIVES: An archive is the most reliable source of knowledge about the past. It has been stated that a government without an organized archive is not an “exactly – independent state.”[4] It would not be wrong to say the same about other institutions in the government. An archive is also defined as a

[1] This article was originally published in the Ankara Bar Association Journal, dated 1993, with copies of the reference documents annexed, therefore should be read within that context. [2] “Those who cannot remember the past are condemned to repeat it”. “The function of the historian is neither to love the past nor to emancipate himself from the past, but to master and understand it as the key to the understanding of the present.” (See Akşin, Sina Türkiye Tarihi, Osmanlı Devletine Kadar Türkler, Ank. 1987V. I. Page 11 for the Foreign authors of these quotations.) [3] Türkiye’de Savunma Mesleğinin Gelişimi (The Development of Advocacy Profession in Turkey) V. 1.1972, V. 2. 1973 (Publication. ist.) This substantial documentation, being compiled and prepared by Turkish Bar Associations, has too many shortcomings. (For instance The Law of the Legal Profession, the first document of advocacy for the whole country is treated completely inadequately by its articles. The famous Law on Attorney was not in the same part with its annex. The originals of the significant documents has been added to the last pages.) [4] Delmas, B. Archives. Ank. 1991 (Publication of General Directorate of State Archives)., page 17.

2013/ 1 Ankara Bar Review 13 A Glimpse Of Ankara Bar Association’s History / İYİMAYA

“memory,” which cannot be easily erased by the centuries”[5]. In an archive facility, four essential features are necessary for it to be sustained; documents, - SHOULD BE DETERMINED AND RESERVED (I), - SHOULD BE PROTECTED (II), - SHOULD BE CONTROLLED (III), and - SHOULD BE PRESENTED TO BE USED (IV)”. It is not easy to say that our archives have the above-mentioned features. The process of “Determination and Destruction”, information and the resources are in their last stage. There are no “Archivists.” It would not be a false description if we define the archives to be graveyards“ of documents.” We are likely to think and accept that the meaning of the words “archive” and “junk” or “worn-out” are same. a) Archives of the Ministry of Justice: Advocacy and the Bar Association are closely related to the Ministry of Justice within the scope of laws; for this reason, it is mandatory to send the reports of the “official process” to the Ministry. There are registers for every lawyer and “a bunch of folders” for every Bar Association in the Ministry. Moreover, the records from the pre-Republican period that are very valuable for the history of advocacy and law are waiting in the archive of the Ministry for researchers to set their hands on these records.[6] I have greatly benefited from the archives of the Ministry of Justice; unfortunately, records before 1940, including the information about Ankara Bar Association, do not exist in the archive. b) Archives of Ankara Bar Association: This title is just a wish. It is really sad to state that Ankara Bar Association has not technically had an archive since its foundation. This deficiency should definitely be corrected; this is not even the task of management or any other commissions, but the historians. After providing an appropriate place and a temporary archivist, it is necessary to

[5] See Kathpaha Yash Pal (Trans. Dr. Nomer, Nihal). The Protection and Restoration of Archive Materials Ank. 1990. Binark, ismet. The Studies for the Development of Archives in the period of Republic and Republic Archive. Ank. 1991. XII The International Archive Congress (September 6th-11th, 1992 Montreal) (Publication of General Directorate of State Archives). Ank. 1992 (2 volumes). In our opinion, it is necessary to teach topics such as “archive and librarianship” as an independent subject or parts of a lesson. The efforts and contributions of those who are not conscious about. [6] I would like to express my gratitude to the Department Chief for Advocacy, Mr. ihsan Güler, for his contributions and to the Ministry of Justice for their archive and great interest. (The destruction of the old records of the bar association and advocacy, including the Constitutional Monarchy Period for manufacturing paper and sending them to SEKA (paper factory), were prevented just in the nick of time in the past years. If the New Advocacy Resolution enters into force, removing the wardship, it is an absolute must to set up a large achive with a modern method and Bar Association should request all documents/records and folders related to the advocacy and bar associations from the Ministry.

14 Ankara Bar Review 2013/ 1 A Glimpse Of Ankara Bar Association’s History / İYİMAYA protect the documents from “dust, moisture, mouse and mess” to institutionalize and transfer all these documents to the consciousness of the next generations.[7] It is not possible for a researcher to come to a healthy conclusion amid the chaos of all existing advocacy and bar documents of the past. Establishment of an archive is very essential for our foundation, the history of our association and “to institutionalize” our past. Until few years ago, the records of “our elderly lawyer colleagues” who were registered in the Ankara Bar Association in the foundation year “could not be found” in the cellar of the bar association except for the record of one lawyer. The resolutions of the first perioddo “ not exist.” “The original register-records” of the Foundation year and the following years “do not exist.” (It is not possible to have historical accuracy for the documents of the past as long as the difference between the terms cellar“ ” and “archive” and the importance of this difference are not understood.) The conclusion part of our article is insufficient“ ” because of the abovementioned shortage of materials. This means that our research shall continue and “an additional article” shall be written if we can get some materials. 2. MEMORIES: As a society, we do not have habit of keeping a diary or writing our memories. We have contacted with some of our “senior” lawyer colleagues and asked if they had got any information about the foundation of the association from their colleagues. The answer we got is no.“ ” We do not criticize; however we can not “praise” “the memories and knowledge” of founders or professionals who worked during that period as the next generation because they did not protect the memories of the past. 3. RESEARCH: According to my research, there exists no study about the history of the foundation of the Ankara Bar Association. There are not even a few lines scratched about the foundation. It is inevitable to criticize not having “any news” in the published journals of the foundation period and the following years.[8]

[7] For this particular purpose, great strides have been made by the current board of Ankara Bar. [8] Although intensive studies about the history of Istanbul Bar Association have been published, the exact establishment date of the İstanbul Bar Association, set up with the name of Society of Attorney before the period of the Law of Legal Profession could not be stated. (only the year 1878). I believe that it is also beneficial to state a different method unlike the methods of the study of history to determine the establishment date of Istanbul Bar Association: After finding different establishment dates as the results of researches, the establishment date of Istanbul Bar Association is stated as “April 5th 1878” based on the report of our distinguished colleague, Lawyer Mr. Osman Kuntman with the resolution dated 20.2.1975 and numbered 8/2 of the Board of Directors of Istanbul Bar Association. (This is probably the first resolution for determination of a date by decree of registration(!)) (See Ali Haydar Özkent- Lawyer/Muhami Suphî Nuri (trans.), Ist. 1340, The Prologue of Özkent, Page. 15, Özkent, Ali Haydar. “The Handbook of a Lawyer”, ist. 1940. Page. 70 etc. for the foundation of istanbul Bar Association. For other

2013/ 1 Ankara Bar Review 15 A Glimpse Of Ankara Bar Association’s History / İYİMAYA

4. NORMS IN LAW: It is essential to “scan the related legal principles” for the history of Advocacy and Bar Association. The most precious treasure for this subject is the “great work” of Serkis Karakoç[9] but this work had not been published. It totaled 50 volumes, including an index of 10 volumes. The Turkish Bars Association has published a two-volume work, named “The Development of Advocacy in Turkey.” Even if it fills a great number of gaps, it leaves many still open.[10] The publishing dates of legal principles and the enforcement norms are helpful resources for dating the foundations of institutions. This method is also used in our research. 5. OTHER MATERIALS: “The fresh resource” for our history of Advocacy and Bar Association was the “Muhamat” Journals, which were prepared by the Society of Attorneys in Istanbul, the capital city of that period. In this journal, there are original and satisfactory articles about the history of advocacy. This source is “as precious as gold” for the history of the pre-Republican period. Furthermore, it includes the preparation stages of the first advocacy law, serious discussions, and the tricky behaviors of the “makers of cheap shoes” up to the Ministry.... all these details are documented in the journal as history.[11] After the generation of the Muhamat journal, advocacy and the history of advocacy “owe” to the great lawyer, votary of advocacy Mr. Ali Haydar Özkent. He translated Muhamî (Lawyer) with Mr. S. Nuri and wrote 34 pages of the introduction regarding “Advocacy in Turkey” for the same book.[12] Muhamî was

research, see Kunt-man, Osman. Lawyer, A brief history of advocacy in Turkey, Istanbul Bar Association and Bar association established by foreigners. (Journal of istanbul Bar Association Year: 1988. Volume: 62. No: 4-6. Page. 254 -, and the studies mentioned in the same article.) [9] The exact name of the codex which is under protection in a private section of the Turkish Historical Society Library is: “Külliyât-ı Kavanîn. Kavanîn ve nizâmat ve feramin ve beravat ve iradât-ı seniyye ile mukâvelât ve umuma ait mukâvelâta muhtevidir. (Metun/ Texts). Karakoç, Serkis. Mülga Bâb-ı Âlî Düstûr encümeni Reîsi ve Müdevvenât-ı Kanûniyye Müdîr-i Sabı kı”. I have been informed about the existence of such a valuable resource in one of the greatest conversations with Prof. Tahir Cağa. He has stated the absolute necessity of printing and presenting this resource to distinguished researchers and those who are interested in the history of law. He regretted the delay for printing this resource as well. [10] See the second footnote of this article. It is also inevitable to present the originals of the texts before 1927 in the annex or in another volume in such a publication as a matter of accuracy and documentation. [11] Muhamat, Ist. 1327- The title of the first page of the first journal is “ID-I MiLLi” (National Festival). It was written: “This journal, for the time being, shall be published at monthly intervals under the patronage of the Law Society” The level of the lawyers of the first generation shall be observed by a feeling of envy. When we read the articles of Artin Toptaş, A. Muhtar and the other professional lawyers, we could explicitly see where we are now about advocacy. (After reading this journal, I once again realized the necessity of knowing at least a foreign language for the lawyers). (Sometimes, I shall try to have quotations from this journal to our Journal of Ankara Bar Association.) [12] Henri Reper (trans. Ali Haydar–Suphi Nuri). Muhâmî, ist. 1340. (The article of Mr. Ali

16 Ankara Bar Review 2013/ 1 A Glimpse Of Ankara Bar Association’s History / İYİMAYA written by the President of Paris Bar Association, H. Repêr’e, and this book was originally published by the Istan bul Bar Association. Mr. Ali Haydar Özkent wrote an 838-paged book called “The Handbook of the Lawyer” in 1940. Every lawyer should read this valuable book and understand the “profession and the art of advocacy.”[13]

III – THE ORGANIZATION OF THE FIRST BAR ASSOCIATION

ACCORDING TO POSITIVE LEGAL PRINCIPLES Advocacy is as old as the history of humanity as an “advocacy and legal aid” institution. Somehow, in every period of time and in each society, “attorneyship and advocacy” have existed. For this reason, writing about the history of this profession and making additions to those are “far beyond the ability of a person.”[14] According to us, the legal principle that provided the opportunity of establishing a bar association in Turkey after the foreign countries is, “The Law on Attorneys” (Mehâkim-i Nizamiye Dava Vekilleri Hakkında Nizamname).[15] This law organized “the advocacy profession”, entry/dismissal to the profession, discipline and other relevant rules; set forth some rules and tariffs for the attorney’s fee; formed a registration and listing system; classified the lawyers (creeated an exam to be promoted) and besides all of these, formed the first “professional body.” The fourth part of the constitution consists of a total of ten articles (articles 31 to 40). It has the title of “The Foundation Form and the Duties of Society Of Attorneys”. “The organization of society, executive and disciplinary boards, duties, methods of work and resolution, lists (roster), relation with the ministry” were comprehensively arranged in these articles. It is necessary

Haydar about the brief history., pp. 7-40). [13] Özkent, Ali Haydar. “The Handbook of a Lawyer”, Ist. 1940. (Publishing the work without changing anything would be a great contribution). [14] It shall be benefited from foreign sources, memories, the history of socio-economic institutions, history of law, travel books and etc. for this subject. For instance, in the travel book (Seyahatname) of Evliya Çelebi (See the annex of this article, Document no: 8) he describes “Esnâf-ı Yazıcıyan” (Tradesmen as clerks/Street letter writers) in istanbul. He also mentions that, there had been 400 businesses and 500 clerkadvocates. (Evliya Çelebi Seyahatnamesi, Evliye Çelebi, Muammet Zılî îbn-i Derviş, ist. 1313, Page 524,) (Ali Haydar Özkent, defines this group as the pioneers of our profession- without making any researches about far beyond those studies for the past, (Özkent, A.H, The Handbook of a Lawyer, ist. 1940. Page 46, -). In my opinion, every idea about this topic would be assertive without finding all the materials of the very past. [15] Düstûr, 1. Tertip, Volume: 3. Page 198-209. (This regulation has been published in the 1st Volume of “The Development of Advocacy” on page 3-11, and the part of instructions is between pages 228-234. It has been prepared by Bar Associations and translated into new alphabet.)

2013/ 1 Ankara Bar Review 17 A Glimpse Of Ankara Bar Association’s History / İYİMAYA to accept this normative organization dated (16/Zilhicce- The twelfth month of the Islamic calendar/1292), January 13th, 1876 as an official document, which has given the opportunity to establish “The Bar Association” even if its name was “Society.” The law (regulation) required a lawyer’s “being a citizen/national right” condition. It is stated that the reason for this requirement could have been be agreement. The same requirement was not mandatory for the Şeriye Court. The reason for this situation could be the impact of the attorneys (dominant group) on those courts, being not authorized to be lawyers according to the regulation. The regulation includes only Istanbul because the reluctance occurs for other districts and the lack of maturity. When the benefits of the modern“ model” came into public appearance, the aforementioned regulation entered into force for the whole country in 1879.[16] The date of regulation (or the regulation of the legal power) for the whole country forms the basis for the dates of the foundation of the Anatolian Bar Associations. For instance, a bar association in Ankara or in any other province except for Istanbul and Rumeli should not have been established before 1879 and it would be strange to claim the bar associations were active before 1879.[17] The question of when the First Turkish Bar Association or İstanbul Bar Association was established remains without a clear answer, such as detailed day and month.[18]

[16] Özkent, Ali Haydar. “The Hand Book of a Lawyer,” p. 75. Mr. Fikri Lütfi. (The president of Ist. Bar Association. Journal of Muhamat.V. II. Page. 732. (The famous, special article for the history of advocacy, dated September 25th 1339, with the title of “Adliye Veklet-i Celîlesine”. [17] The Turkish equivalent for the bar association has been the Society of Attorneys in the internal regulation of the Foreign Bar Association in istanbul. (Özkent, A. H. The Handbook of a Lawyer, p 66). Distinguished lawyer Özkent has a footnote in one of his studies in the Journal of Muhamat. That is: ...“ It is believed that the use of foreign terms is inappropriate in our laws. However, it is necessary to use some internationally recognized terms.” (This note has been written on the preparation stage of the law on legal profession.) Actually before the Law of Legal Profession, “Bar Association” has been used instead of the term “Society” and even The Ministry of Justice has formally used the term Bar“ Association” in one of its official letters. In the articles of lawyers such as Özkent from the first-period, Bar“ Association” has been preferred rather than the term “Society” and it has also been stated that the organizational structure of the Society of Attorneys is same with the Bar Association. Özkent, Muhamî/Lawyer. Page 19. Author has always used the term, “Cemiyet-i Dâime (Bar Association)”. Mardînî i. Paşazade A. Muhtar, Being Attorney, Lawyer and Advocacy in Our Country. (Journal of Muhamat, p. 148). See Journal of Muhamat, p. 689 for the phrase of Bursa Bar Association and the news about bar associations before 1924. Moreover see pages 331, 328-330 in the same journal for the use of this term. [18] See the 6th footnote of this article. Ali Haydar Özkent has stated almost in an implored manner in his articles in the establishment documents and actual information: “...I kindly request to enlighten this dark period of our history by documents and even memories, no matter NEW-OLD.” (Lawyer, Prologue p. 17) It has been applied to the “records, rosters and the

18 Ankara Bar Review 2013/ 1 A Glimpse Of Ankara Bar Association’s History / İYİMAYA

The system of this organization continued until 1923 with the opposition of lawyers who were not authorized to be attorneys, and their mutual conflicts. After a great deal of persuasion activity, the “Mekahim-Î Hukukîyede Vekaletîn Serbest Olduğu Hakkindaki Tamim” (The circular, about being an attorney legally free) came into force in 1923 at the Ministry of Justice on behalf of the Minister of the Republic Government with the signature of Fahruddin.[19] According to this circular, that was considered to be a scandal, everyone had the opportunity to be an attorney, such as people from karaman, grocers, shoe makers and etc. This circular struck the authorities of the advocacy profession and sensible lawyers as a stimulant; after serious efforts, finallyThe “ Law on the Legal Profes- sion” was accepted.[20] Ali Haydar Özkent, in “The Memorial Rule” explains that the basis for advocacy and bar associations is “The Law on the Legal Profession” (Muhamat Or Mehamat).[21] The third article of the law on the legal profession dated April 3rd, 1340 requires that if the number of lawyers practicing in a district reaches ten, they must establish a bar association in that district. The Law also prohibits performance of the legal profession without being registered to a bar association.[22]. The second developmental stage of the history of bar associations and advocacy was “The Law On Legal Profession (Muhamat).” This period of time and the preparatory stages should be the object of serious analysis and inspection. Transition to this stage hides 48 years of a difficult process. The first legal text, including the terms “Bar Association” and “Muhâmî/ Lawyer” is “The Law on the Legal Profession.” Numbered 460 and dated April 3, 1340 (April 16, 1924). Moreover, it was also the first document forming the legal and the comprehensive basis for the profession of advocacy.[23] The enforce-

testimonies”. See the same author, “The Hand Book of a Lawyer”, Page 77. [19] See Journal of Muhamat, p. 668for the texts of abovementioned circular. [20] See Muhamat p. 670 for the original text of a great article written by istanbul Bar Association to show its reaction to the circular. This article has been sent to the Ministry of Justice with the signature of the president. The preparation stages of the Law on Legal Profession were almost at the end of Balkan war. There had been serious preparation studies to enact this law on the contrary; there had been some people against the efforts of the legalization. The Ministry of Justice had stayed in the middle of the supporters and the opponents of legalization, the abovementioned circular had been the last straw and finally the law had been enacted. See the articles and the drafts in some prints of Muhamat. Moreover, Özkent, A.H. “The Handbook of a Lawyer”. Page 98 and -. [21] The origin of the term muhamat“ ” derives from Arabic and it could be pronounced as “mehamat” as well. (Both pronunciations are correct.) Furthermore, “Düstur” has also been written as “mehamat”. There have been explanations about this topic in the discussion of the assembly. (See the texts of The Law on Legal Profession and the Preparation Studies, translated from Ottoman language into Turkish and planned to be published in the Journal of Ankara Bar Association.) [22] Above-mentioned Circular, Article 1, 7 and the other articles. [23] Changing the principle “a lawyer should be a citizen” to “a lawyer should be from Turkey” has been envisaged in this law and whether this is a secret condition of Lozan Agreement

2013/ 1 Ankara Bar Review 19 A Glimpse Of Ankara Bar Association’s History / İYİMAYA ment date of the law shall be a helpful reference to determine the foundation date of Ankara Bar Association.

IV- THE FOUNDATION HISTORY OF ANKARA BAR ASSOCIATON

A – BEFORE THE LAW ON LEGAL PROFESSION (Before 1924) The answer to the question as to whether there was a Society“ of Attorneys (Dava Vekilleri Cemiyeti),” or paraphrased as a “Bar Association” in Ankara before 1924, is not clear. 1- We know that there was a Society of Attorneys before the Law on Legal Profession in five provinces, including Istanbul.[24] However the names of those provinces are not clear in the sources. The provinces that can be discerned are Istanbul, Izmir and Berûsa (Bursa).[25] One of the other provinces could be Ankara because of its political position. 2- In “Our Previous Presidents” part of the “Albums” published by the Ankara Bar Association, a “professional organization” that existed before 1924 is mentioned and “Mr. Salih Sırrı” is referred to as the president of this organization. Since the beginning of the presidency term was there stated to be 1920, could we state that the previous Professional organization was established in 1920? a) Although the organization and the president Mr. Salih Sırrı were mentioned in the first rosters, there were no notes about the history of the presidency period. b) The first thing that comes to mind is research that was carried on without any registration in the bar association and “the determination of the foundation history” was made by getting some useful information from the remaining attorneys (our elderly colleagues) from the first period. The method of reaching a conclusion by the use of the rosters had also been tried by the great professional lawyer Mr. Ali Haydar Özkent.[26] 3- Another finding shall affect the abovementioned thesis in the opposite way: that is a “seal dated 1923” being in the safe custody of the Ankara Bar Association. In 1923, the term “bar association” was not declared in the Law on the Legal Profession and the dates on the seals should show the foundation date according to historical tradition. As a conclusion, what is the meaning of this seal dated 1923? The seal consists of letters and numbers before the new alphabet (Latin-Turkish Alphabet) was adopted. This means that the seal was

had been asked in the assembly. (See the publishment mentioned in 20th footnote of this article) [24] Özkent, Ali Haydar. “The Handbookof a Lawyer,” P. 104. [25] See several news and the texts of telegraphs in Muhamat,. p. 689. [26] Özkent, Ali Haydar. “The Handbook of a Lawyer,” P. 77. The same author, Lawyer, p. 17.

20 Ankara Bar Review 2013/ 1 A Glimpse Of Ankara Bar Association’s History / İYİMAYA engraved before 1927. Consequently, we must consider that there was a “Society of Attorneys” in the 1920s because of the political position of Ankara. 4- The previous duties of the lawyers exist in their abstract of the record.[27] However, in the abstract of the record of Mr. Salih Sırrı, who was the president of an organization before 1924, the duty of “the presidency of the organization” is not mentioned.[28] It is far beyond reality to conclusively determine the year of founding to be 1920 because correspondence with The Ministry of Justice is required for the classification of archives and research in accordance with the Law on Attorneys and this procedure shall take a long time. Finding the employee/register record of Salih Sırrı would also be a great contribution.[29] B – THE PERIOD Of THE LAW ON THE LEGAL PROFESSION: We state precisely that the establishment date of the bar association in Ankara, in other words the establishment date of Ankara Bar Association in the period of the law on legal profession in accordance with this law, is definite. However, it is necessary to state that “the resolution of establishment and the texts of the law” do not exist. I shall continue my research to complete this study. The Ankara Bar Association was established on July 14th 1924 (July 1st 1340 –according to the solar calendar used in Turkey until 1925). 1- The year of 1924 is evident in the published rosters. The published rosters are secondary sources and shall not be the actual evidence without the main source (document).[30] 2- According to the Law on the Legal Profession, the membership date of the first professional colleagues was July 1st, 1340 in the records of the bar association. The registrations of the founder and the honorary members being

[27] The name of Mr. Salih Sırrı had not been stated in the roster/list of 1948 – 1949. It is clear that the studies were started after this year. [28] According to the record of Mr. ibrahim Rauf Ayaşlı in the Bar Association, it has been stated that our first president, Mr. ibrahim Rauf Ayaşlı “ had been elected on July 1st, 1940 for the presidency and resigned from the presidency under the family law on July 7th, 1932.” (Even this is a satisfactory document for the establishment date of the bar association.) [29] It has been declared that Mr. Salih Sırrı had been the president of the society (before The Law on the Legal Profession); however, the document for the approval of this claim has not been found yet. In his record, it says: “...This person has violated the Advocacy law (the correct version of this law is ‘The law on legal profession’) and the regulation of association. He had carried on commerce as a leading business and had not pay the subscription fee (99 Liras), thus he had been expelled from the association with a resolution of commission, dated January 20th, 1932 and numbered 247”. If we assume that the abovementioned knowledge is correct, Mr. Salih Sırrı had not been in good relations with “silk-i muhamat’. (We wish to be mistaken). [30] It could be stated that all documents and records about prosecution could be found in the cellar of Judiciary in the Prosecution Office, which was established with the Law on Attorneys. However, it is not possible to spend a lot of time “unknown efforts” in the cellar without an organized archive.

2013/ 1 Ankara Bar Review 21 A Glimpse Of Ankara Bar Association’s History / İYİMAYA on the foundation date or by the foundation date shall be pivotal contributions to a definite determination.[31] 3- One of the resolutions of the Disciplinary Board of Ankara Bar Association is in existence in the abstract of record of “Mr. Emin Halim,” one of the most senior lawyers of the Ankara Bar Association with register number 3137. A seal of the Ankara Bar Association exists in this resolution; however, the sample of this seal could not be found. “The presidency of Ankara Bar Association/dated July 1st, 1340” and the symbols of our flag were found on the seal. It is not possible to “write an incorrect establishment date” on a document prepared after approximately seven years. Even to find a simple document like the abovementioned took many weeks and more than thousand folders were analyzed. 4- The record of our distinguished president, Mr. ibrahim Rauf Ayaşlı, is also a valuable document to research our history. Our president passed away in 1953, but at the time the Ministry was informed about the situation and it was realized that the employee register folder of Mr. ibrahim Rauf Ayaşlı did not exist in the Ministry. The necessary information was requested from the Bar Association to form a record in the Ministry; the bar association sent the aforementioned document with a cover letter dated September 4th, 1953 to the Ministry of Justice by translating the document from the Ottoman language into the new alphabet. In 1953, we realized that the register document of Mr. Rauf Ayaşlı was in the cellar of the Ankara Bar Association. Unfortunately, this document cannot be located at the moment. The findings of the record prepared by the Ministry of Justice rescued us. It is stated in this document, dated September 3rd, 1340 that the Ankara Bar Association existed in that year. This document was in the Bar Association records, arranged 32 days after the establishment date. Thus, the determined establishment date is certified.[32] It is

[31] The establishment date had been 1924 on the rosters/lists of Ankara Bar Association including our distinguished presidents. [32] The numbers of the records had been mixed while translating the original texts fromthe Ottoman language into the new alphabet. According to our research, the first registered lawyers of the bar association in 1924 (1340) were as follows: Mr. Salih Sırrı Mr. M. Kemâli (Ist. 1296) Mr. Ekrem (Ank. 1306) Mr. ismail Habîbi (Ibradı Kadılığından- From the office of Islamic judges) Mr. Yusuf Ziya (Ayaş 1297) Mr. ibrahim Rauf (Ayaş 1295) Mr. Cemal Hazim (Dırana 1307) Mr. Mümtaz (Ankara) Mr. Cezmi Mr. Râşit Hüsnü (1309) Mr. Muhittin Baha (Bursa 1300) (The abovementioned names have been determined by several studies on different records and searches for the registration dates to the bar association.) The membership date of Mr. Selahattin, who had been appointed as Financial and Legal Advisor could not be found. The order of his record is at the end of 1340 and at the beginning of 1341 (Record no: 12). Four or five of our colleagues (according to the position of Mr. Selahattin) were added to the number of lawyers in 1341 (1925). The number of lawyers was 11 or 12 in 1340. Moreover, 7 lawyers became the members of the association in 1342 (1926). It is also obvious that there were “a great increase of our colleagues” in the capital city of the establishment and independence period. Besides, a research should be done about “the bar associations of districts/ attorneys of other provinces on this list.

22 Ankara Bar Review 2013/ 1 A Glimpse Of Ankara Bar Association’s History / İYİMAYA understood from the document numbered four that the same person was one of the members of that famous discrimination commission by being the president. It is essential to call attention to the fact that there were no casebooks in the first periods of Bar Association and the resolutions had been written on documents by making notes of the document numbers for each document.[33] In accordance with the Law on the Legal Profession and the Regulation on Application of the Law on Legal Profession, it shall be inappropriate to claim another date (in some discussions, the establishment date is declared to be 1926) for the establishment of the Bar Association, since the profession of advocacy could not be performed without an organized Bar Association. For this reason, the Bar Association was legally established in 1924.[34]

V- CONCLUSION 1- It shall only be a coincidence to determine the “Establishment Date of Ankara Bar Association” in terms from the current documents of the Ministry of Justice, Ankara Bar Association and Court of Justice without any organization and separation of the “Archive Arrangement.“ 2- We could not know the definite establishment date of the Professional Organization before the Law on the Legal Profession (1924). According to the current findings, we could affirm the establishment date as 1920. 3- We determine the establishment date of Ankara Bar Association to the day, month and the year in the period of the Law on the Legal Profession, setting

[33] Document no: 1. We have learned from this document about our first president graduated from university with a successful degree (almost AA/karîb-ul’ala) and worked in several departments of justice system. He became a lawyer after his resignation from the magistracy in the court of appeals. Our president states that, “Advocacy is “an honorary profession/ meslek-i celte” and it is a great pleasure to hear such a sentence from our president. [34] Document No: 3. Member (Aza): Mümtaz, 2. President (Reîs-i Sânî): Cemal, 1. President (Reîs-i Evvel) the date of the resolution with the signature of I. Rauf 3.1.1929, number (resolution number): 89. The resolution is as follows: “The transference of the registered lawyer, Mr. Muhyiddin with record number 406 has been requested from the İstanbul Bar Association to the Ankara Bar Association and the transference of this lawyer to the roster of Ankara Bar Association has been resolved unanimously at the end of a detailed analysis of necessary documents.” This document, being in the record of Ministry of Justice with register number 3137, has been written with “Arabic Alphabet” except for the signatures and dates. The Records of the same document in Istanbul Bar Association (The official letter of the Istanbul Bar Association to the Ankara Bar Association for the transfer) was written in the Latin/Turkish alphabet. This subject has slightly mentioned because of the comments about the execution date of the document, the date of the Alphabet Revolution (harf devrimi) and the documents with two different alphabets. (It has been understood from the records that the office of Mr. Muhittin was just a hotel room in Anafartalar.) Moreover, whether the resolution is lawful shall be open to discussion according to Article 11 of the regulation of the enforcement of the Law on Legal Profession, which states “it is mandatory to have a library in the office and determination of the names of the books.”

2013/ 1 Ankara Bar Review 23 A Glimpse Of Ankara Bar Association’s History / İYİMAYA up the advocacy and the bar association on a normative basis at the level of laws and it is not open to a discussion: Ankara Bar Association was established on July 14th 1924 (July 1st 1340 –according to the solar calendar used in Turkey until 1925). 4- There were more than ten studies about the establishment date of the Istanbul Bar Association. Distinguished members of Ankara Bar Association should also make further research on this subject to contribute their work and efforts to this study.

24 Ankara Bar Review 2013/ 1 Peer Reviewed Articles

PEER REVIEWED ARTICLE

Cyprus in International Law

Erhan BORA*

* Erhan Bora was accepted with full scholarship to Ankara University Faculty of Law in 1983. He holds a Master’s Degree of the same university in European Union Law in 2008. He is registered at the Ankara Bar Association, and has continuously been practicing as a Barrister-At-Law for 23 years. He has represented his clients in more than 550 cases in the European Court of Human Rights. He is currently studying Phd Law at Bilkent University.

Cyprus in International Law / BORA Peer Reviewed Article Reviewed Peer

ABSTR ACT

The Cyprus issue is only a small item on the international law agenda but there is no other example in modern history of such a small piece of land with 135 UN Security Council resolutions about it, continuously affecting a geographical area at least 560 times larger than itself (the Middle East) and probably having an indirect impact on an area (the Eastern Mediterranean) even larger than that. However, the majority of the academic literature deals with the political aspects of the Cyprus issue and there are very few articles and/or essays that examine it as a case of international law, which is the main aim of this article. The article focuses on the events that caused Turkey to intervene in Cyprus in 1974 and the murder of the US Ambassador, examines the judgment of the Euro- pean Court of Human Rights in the Loizidou case, and discusses the issues of sovereign state, recognition, ratione temporis, intervention and occupation whilst offering a critique of them.

2013/ 1 Ankara Bar Review 29

Cyprus in International Law / BORA

1. Introduction t is commonplace to start an essay with some reference to the recent history of events, but the Cyprus issue cannot be understood without examining the humanitarian experiences that took place before Turkey’s intervention in I1974, which according to most legal scholars is the year when the legal problems Article Reviewed Peer started. I personally have witnessed the bitterness of the recent history of the island since I lost my classmate Mustafa[1] when we were only eight years old, and saw the holes of the five bullets that penetrated through my father’s coat, leaving blood stains that decayed and turned dark black along the time. Over the long years the blood stains have faded to become almost invisible, however, the sorrow in Turkish Cypriots’ memories stays alive since the Cyprus problem has remained unsolved for half a century. The case of Cyprus attracted great concern as an international legal issue when Turkey took military action in Cyprus in 1974, and the legal arguments reached a climax when Turkey was held responsible for its intervention by the European Court of Human Rights (ECHR) in 1998. This essay discusses the legal arguments behind that judgment and makes a final analysis not solely on whether the decision was correct or not but whether it is based on strong and satisfactory grounds with sufficient reference to international law sources. One of the issues the ECHR ignored was the series of events that led Turkey to intervene which when considered in detail were strong enough to change the outcome of the judgment. A detailed examination of the background of the case from as early as the 1950s should be made not for the sake of general information but to illustrate explicitly how everything started. It would be much easier to discuss the Cyprus issue as a subject of international public law and prove that the Turkish Republic of Northern Cyprus (TRNC) is a fully sovereign state but that effort would be purely theoretical since there is an international court decision stating that TRNC is not a state according to international law. Whether a tribunal can decide the statehood of an entity deserves another academic study but with the ECHR judgment in hand, primarily it is inevitable to challenge that judgment and prove TRNC is a sovereign state in that context.

[1] Muratağa, Sandallar and Atlılar are the three Turkish villages that were attacked by a terror organization called EOKA-B which was founded by Greek Cypriots as a part of a plan named “Acridas” to eliminate all the Turkish Cypriots within 72 hours. The raid took place on August 14, 1974 and 126 innocent Turkish civilians were killed, one of them my eight-year-old class mate Mustafa. Only three people somehow managed to escape from the massacre in Atlılar. All the dead were buried in mass graves by bulldozers. The United Nations described the massacre as a crime against humanity, by saying “constituting a further crime against humanity committed by the Greek and Greek Cypriot gunmen.” The massacre was reported by international media, including The Guardian and The Times.

2013/ 1 Ankara Bar Review 31 Cyprus in International Law / BORA

2. Recent History And The Foundation Of The Republic Of Cyprus Cyprus is the third biggest island in the Mediterranean Sea and is widely acknowledged to have great strategic importance due to its closeness to the Peer Reviewed Article Reviewed Peer rich oil fields of the Middle East as well as the Suez Canal. Throughout history, nearly all the leading powers have occupied or at least attempted to occupy the island. In chronological order, Hittites, Assyrians, Egyptians, Persians, Arabs, Lusignans, Venetians, and Ottomans occupied the island at some time. The Ottoman conquest of the island took place in 1571 and the Ottomans ruled Cyprus successfully for more than three centuries. When the Ottoman empire started to experience military threats and rivalry from the Russian empire, the Ottomans made a lease agreement about Cyprus with the British who undertook to help the Ottomans against possible Russian aggression[2] and thus started to govern Cyprus from 1878. However, when the Ottomans joined World War I against Britain, the British administration declared the leasing agreement to be invalid and took over the island. The island was, and still is, an important military base for Britain and was vital to control the security of its colonial interests. The British built a harbour in the eastern city of Famagusta in 1906 and the island’s strategic importance doubled with military facilities giving the opportunity to control the Suez Canal, the crucial route to the most important colonies of the British empire, notably India as well as Australia. On November 5, 1914 the British took advantage of their military presence in the island and officially annexed it as a colony on the argument that the Ottoman empire was at war against Britain, allying with the Germans. It was part of British policy to promise the natives of the colonies their independence so as to convince them to join British military campaigns against Germany in World War I. Cyprus was no exception to this policy, and many Greek Cypriots joined Her Majesty’s forces in both World Wars, hoping that Britain would offer them Cyprus and also that they would have the opportunity to unite the island with their motherland of Greece. In 1923, Turkey ceased to claim its legal rights over Cyprus[3] as part of the provisions of the Treaty of Lausanne[4], and in 1925 the island was declared a British crown colony. There was a favourable atmosphere for the Greek Cypriots to put their historical aims into practice and the Church of Cyprus took the lead by organizing

[2] H. James Meyer, “Policy Watershed: Turkey’s Cyprus Policy and the Interventions of 1974,” WWS Case Study 3/00, 4. Available at: http://wws.princeton.edu/research/cases/cyprus.pdf., accessed on December 20, 2011. [3] Article 20 of the Lausanne Treaty: “Turkey hereby recognises the annexation of Cyprus proclaimed by the British Government on the 5th November, 1914.” [4] The Treaties of Peace 1919–1923, Vol. II Treaty of Peace with Turkey Signed at Lausanne, July 24, 1923 (New York: Carnegie Endowment for International Peace, 1924).

32 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA a referendum in 1955 to determine whether union with Greece (known as enosis) was desired.[5] The Greek Cypriots voted in favor of enosis, with more than 90% voting in favour, but the Turkish Cypriots did not even attend the referendum and boycotted it. The British sensed the oncoming danger and

offered the Greek Cypriots a restricted autonomy under a constitution but that Article Reviewed Peer was not welcomed by the leading extreme elements of the Greek Cypriots. The same year the EOKA[6] organization was founded, declaring its main aim as independence and union with Greece, with or without the use of armed force. As a reaction to these events the Turkish Resistance Organization (TMT)[7], unlike the EOKA calling for Taksim (partition in Turkish), was founded by the Turkish Cypriots as a defence unit. The island started to tremble with military preparations that created turmoil which was only temporarily suppressed by use of extra force by the British[8]. On August 16, 1960, Cyprus attained independence after the Zürich and London Agreement between Great Britain, Greece and Turkey. The UK retained the two Sovereign Base Areas of Akrotiri and Dhekelia, while government posts and public offices were allocated by ethnic quotas, giving the Turkish Cypriots a permanent veto, 30% in parliament and administration, and granting the three “mother-states” guarantor rights.

3. The Zurich And London Agreements The Zürich and London Agreement for the constitution of Cyprus[9] started with an agreement on February 19, 1959 in Lancaster House in London, between Turkey, Greece, the United Kingdom and Cypriot community leaders (Archbishop Makarios III for the Greek Cypriots and Dr Fazıl Küçük for the Turkish Cypriots). On that basis, a constitution was drafted[10] and agreed together with two

[5] Rupert Emerson, “From Empire to Nation: The Rise to Self-Assertion of Asian and African Peoples” (Boston: Beacon Press, 1960), pp. 295-328. [6] EOKA (Ethniki Organosis Kyprion Agoniston): Greek abbreviation for National Organization of Greek Cypriot Fighters. It was a Greek Cypriot nationalist paramilitary organization that fought a violent campaign during which many civilians murdered for the end of British rule of Cyprus followed by eliminating the Turkish population in the island. See dn:1. [7] TMT was the local resistance force founded to defend Turkish Cypriots with small arms, since all imports were under Greek control, against armed attacks from Greeks and it was partially successful until 1974. [8] Meyer, “Policy Watershed,” 6. [9] The full text may be accessed at: http://www.kypros.org/Constitution/English/ [10] The Constitution was prepared in 15 months by a commission of experts representing the two communities, Greece, Turkey and the UK. A Swiss Professor of Constitutional Law, Prof. Marcel Bridel of Lausanne University, was the legal adviser to it.

2013/ 1 Ankara Bar Review 33 Cyprus in International Law / BORA

further Treaties of Alliance and Guarantee[11] in Zürich on February 11, 1960. Together with the Zürich and London Agreements, two other treaties were also agreed upon in Zurich. The Treaty of Guarantee was designed to preserve the territorial independence of the Republic of Cyprus. Cyprus and the guarantor

Peer Reviewed Article Reviewed Peer powers (the United Kingdom, Turkey, and Greece) promised to prohibit the promotion of “either the union of the Republic of Cyprus with any other state, or the partition of the Island”. Article IV of the Treaty of Guarantee states: In the event of a breach of the provisions of the present Treaty, Greece, Turkey and the United Kingdom undertake to consult together with respect to the representations or measures necessary to ensure observance of those provisions. In so far as common or concerted action may not prove possible, each the three guaranteeing Powers reserves the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty. The Constitution provided for under the Agreements divided the Cypriot people into two communities on the basis of ethnic origin. The President had to be a Greek Cypriot elected by the Greek Cypriots, and the Vice-President a Turkish Cypriot elected by the Turkish Cypriots. The Vice-President was granted the right of a final veto on laws passed[12] by the House of Representatives and on decisions of the Council of Ministers which was composed of ten ministers, three of whom had to be Turkish Cypriots nominated by the Vice-President. In the House of Representatives, the Turkish Cypriots were elected separately by their own community. The House had no power to modify the basic articles of the Constitution in any respect and any other modification required separate majorities of two thirds of both the Greek Cypriot and the Turkish Cypriot members. Any modification of the Electoral Law and the adoption of any law relating to municipalities or any fiscal laws required separate simple majorities of the Greek Cypriot and Turkish Cypriot members of the House. It was thus impossible for representatives of one community alone to pass a bill. The highest judicial organs, the Supreme Constitutional Court and the High Court of Justice, were presided over by neutral presidents – neither Greek-Cypriot nor Turkish-Cypriot – who by virtue of their casting votes were supposed to maintain the balance between the Greek and Turkish members of the courts. Whereas under the previous regime Greek Cypriot and Turk- ish Cypriot judges tried all cases irrespective of the origin of the litigants, the Constitution provided that disputes among Turkish Cypriots be tried only by

[11] No. 5475, Treaty of Guarantee, signed at Nicosia on August 16, 1960 by the parties: The Republic of Cyprus, Greece, Turkey and the United Kingdom of Great Britain and Northern Ireland. The full text may be accessed at: http://www.mfa.gov.cy/mfa/mfa2006. nsf/All/484B73E4F0736CFDC22571BF00394F11/$file/Treaty%20of%20Guarantee. pdf [12] However the Turkish-Cypriot vice-president never had the chance to use that tool.

34 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA

Turkish Cypriot judges, disputes among Greek Cypriots by Greek Cypriot judges only, and disputes between Greek Cypriots and Turkish Cypriots by mixed courts composed of both Greek Cypriot and Turkish Cypriot judges. Thus, to try the case of a petty offence which involved both Greek and Turkish

Cypriots, two judges had to sit. The procedure was expensive and conducive Article Reviewed Peer to creating a biased judiciary. In addition, separate Greek and Turkish Communal Chambers were created with legislative and administrative powers in regard to educational, religious, cultural, sporting and charitable matters, cooperative and credit societies, and questions of personal status. Separate municipalities were envisaged for Greek Cypriots and Turkish Cypriots in the five largest towns of the island. As the population and properties were intermixed, the provisions were difficult and expensive for the small towns of Cyprus to implement. Turkish Cypriots held 30% of the posts in the civil service and comprised 40% of the police force and army. The United Nations Mediator on Cyprus, Dr Galo Plaza, described the 1960 Constitution created by the Zürich and London Agreements as “a constitutional oddity,”[13] and reported that difficulties in implementing the treaties signed on the basis of those Agreements had begun almost immediately after independence[14]. Within three years the functioning of the legislature started to fail, and in 1963, when the fiscal laws under Article 78 of the Constitution expired, the House of Representatives split along straight communal lines and failed to renew the income tax upon which the public finances depended. The Greek Cypriots managed to control the financial structure as the sole legitimate Government of Cyprus whereas the Turkish Cypriots strongly depended on aid from Turkey.

4. First Blood The Greeks have historically been planning to annex Cyprus to Greece. As early as 1881, the British High Commissioner in Cyprus informed the Brit- ish Colonial Secretary that there were about 600 Hellenic subjects (meaning newcomers from Greece) on the island[15]. Another report was sent in 1900 that the whole Greek school system was used as a Hellenic propaganda for enosis[16].

[13] Para. 163 of Report to the U.N. Secretary-General in March 1965. Full text accessible at: http://europenews.dk/files/Galo%20Plaza%20report.pdf [14] Ibid, paragraph 129. [15] Michael Stephen, The Cyprus Question. A Concise Guide to the History, Politics and Law of the Cyprus Question (London, 2000, Northgate Publications), 6. [16] It refers to the movement of the Greek-Cypriot population to incorporate the island of Cyprus into Greece. Similar movements had previously developed in other regions with ethnic Greek majorities such as the Ionian islands, Crete and the Dodecanese. These

2013/ 1 Ankara Bar Review 35 Cyprus in International Law / BORA

It has also been reported that during the period from 1914 to 1939 around 80,000 Turkish Cypriots were forced to emigrate to Turkey[17]. The Greek Cypriots saw British rule as the biggest obstacle to enosis and started a rebellion between 1950 and 1960 during which 371 British soldiers [18]

Peer Reviewed Article Reviewed Peer were killed . The rebels had the help of military elements from Greece under the command of General Georgios Grivas[19] who was encouraged spiritually[20] and financially[21] to buy explosives and arms partly by the Cyprus President Archbishop Macarios and partly by the Greek government[22] in Athens. The rebellion was not for independence but for enosis[23] and this ambition also explains why, after the foundation of the Cyprus Republic as a free state, the Greek Cypriots started to kill the Turkish Cypriots as they were the next obstacle to their plan. In 1963, inter-communal violence broke out which resulted in Turkish Cypriots being forced to move into enclaves[24]. Cypriot President Archbishop Makarios III ,who was also a fanatical pro-enosis leader[25], never deviated from that goal[26] [27]. He declared that he would not comply[28] with the provisions of the Constitution of Cyprus which underlined the partnership status of the Turkish Cypriots and thus prohibited union of Cyprus with Greece, called for unilateral constitutional changes on the reasoning that the Constitution was unworkable. The statements made by President Makarios were accepted as one

regions were eventually incorporated into the Greek state. [17] Stephen, The Cyprus Question. 7. [18] Chris Summers, ‘Can Cyprus overcome its bloody history?’ BBC News, 23 November 2009, http://news.bbc.co.uk/2/hi/8321765.stm accessed on December 14, 2011. [19] On November 15, 1967 the Greek Cypriot National Guard under his direct command overran two small villages on the critical Larnaca-Limassol-Nicosia intersection, resulting in the deaths of 27 people, mostly unarmed Turkish-Cypriot civilians as well as Turkish- Cypriot resistance fighters at Kofinou and Agios Theodoros. The immediate result of this event was Turkey’s ultimatum, which prompted the Greek military government to recall both the Greek Division and General Grivas to Athens. [20] Stanley Mayes, Makarios, A Biography (London and Basingstoke: Macmillan, 1981), 51. [21] Ibid., 58. [22] Evangelos-Tossizza Averoff, Lost Opportunities, The Cyprus Question, 1950–1963 (New Rochelle, NY: Caratzas 1986), 151. [23] Stephen, The Cyprus Question. 8. [24] Michael Moran, “How the Turkish Cypriots Were Deprived of their Constitutional Rights in 1964/5,” in Sovereignty Divided. Essays on the International Dimensions of the Cyprus Problem (Lefkoşa, Turkey: CYREP, 1999), 1. [25] Ahmet Gazioğlu, Two Equal and Sovereign Peoples. A Documented Background to the Cyprus Problem and the Concept of Partnership (2nd edn, Lefkoşa, Turkey: CYREP, 1999), 1. [26] Brendan O’Malley and Ian Craig, The Cyprus Conspiracy. America, Espionage and the Turkish Invasion (London: I.B. Taurus, 2007), 90. [27] M. Necati Ertekün, The Cyprus Dispute and the Birth of the Turkish Republic of Northern Cyprus, 2nd edn (Oxford University Press, Oxford), 3. [28] Zaim Necatigil, The Turkish Republic of Northern Cyprus in Perspective (Nicosia, 1985), 3, Publisher, Z.M. Nejatigil, 1985.

36 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA of the main reasons for the violence[29] of the inter-communal hostilities which were ignited by Greek police officers murdering[30] two unarmed Turkish civilians[31] in Nicosia. The violence continued with a notorious incident where armed Greek Cypriots broke into the house of a Turkish army doctor (present subject

to the provisions of the Treaty of Guarantee), killing his wife (shot in the head) Article Reviewed Peer and his three children together in the bath whilst the children desperately clung to their mother, and also a woman who lived next door[32],[33]. It was directly after this event that my own father and his four friends went to see the factual situation. They were shot by Greek military elements from Greece, three of them dead and two seriously injured. The following January the dead bodies of 21 Turkish Cypriots were found in a mass grave[34] their hands and feet tied and their bodies having the signs of heavy torture before they were shot in the village of Ayios Vasilios. The events which resulted from the breakdown of the Constitution caused 103 Turkish villages to be destroyed and 25,000 Turkish Cypriots to be made refugees in their own country, more than 364[35] of them killed[36]. The Vice-President publicly declared that the Republic of Cyprus had ceased to exist, and along with the three Turkish-Cypriot Ministers, the Turkish-Cypriot members of the House withdrew, as did Turkish-Cypriot civil servants since they feared being murdered too if they insisted on continuing their official duties. In 1964, Turkey tried to intervene in Cyprus in response to the ongoing Cypriot inter-communal violence, as one of the Guarantors according to the Treaty of Guarantee. This initiative was stopped by a strongly worded letter from the US President, Lyndon B. Johnson on June 5, warning that the United States would not stand beside Turkey in the event of a consequential Soviet invasion of Turkish territory. Months after the killings, on March 27, 1964, UN Peace keeping Forces (UNFICYP) were deployed in Cyprus at flash points, but no investigation of any nature was made to find those responsible for the massacres of 1963 and none have, even up to now. It is possible to increase the number of examples in which armed Greek Cypriots killed their Turkish neighbours without mercy. There were some fewer events that involved the Turkish Cypriot minority[37] retaliating against the

[29] Meyer, “Policy Watershed,” 10. [30] Andrew Borowiec, Cyprus. A Troubled Island (Westport, CT: Praeger 2000) 53. [31] UN Refugee Agency Refworld, Report: http://www.unhcr.org/refworld/country,,,CHR ON,CYP,,469f387d1e,0.html (accessed December 2011). [32] O’Malley and Craig, The Cyprus Conspiracy, 92. [33] The house is still preserved untouched in Nicosia and named ‘The Museum of Barbarism’. [34] O’Malley and Craig, The Cyprus Conspiracy, 93. [35] Meyer, “Policy Watershed,” 10. [36] Necatigil, The Turkish Republic of Northern Cyprus, 5. [37] The term minority is used here only to express the fact that Greek Cypriots outnumber Turkish Cypriots in the population. Turkish Cypriots are not legally defined as a “minority”

2013/ 1 Ankara Bar Review 37 Cyprus in International Law / BORA

attacks and killing some Greek Cypriots although, even according to neutral observers, the Turkish Cypriots had no intention of making the first move, organizing themselves primarily for defence[38]. However, this article does not aim to show how bloody or fierce were the massacres against the Turkish [39]

Peer Reviewed Article Reviewed Peer community, which is explicitly narrated by independent sources including a large body of publications. Instead, this article draws attention to the point that it was the Greek Cypriots who shed the first blood in Cyprus, motivated by their historical aim of achieving enosis. The first blood does not always justify the counter attack of the party whose blood was shed: there are many other issues within the legal context like proportionality and reasonability, which are elements of self-defence as a general term of criminal law, and which are reflected in international law[40]. Before making that legal evaluation, however, it is important to demonstrate how fatal was the threat to Turkish Cypriots’ lives triggered by the very first move because only then can it be understood whether it was inevitable for Turkey to intervene in Cyprus. After the events settled down a difficult period started for Turkish Cypri- ots between 1963 and 1974. They formed their own government known as the General Committee[41] and tried to tackle the problems of resettling over 20,000 refugees[42] in addition to the financial problems of the civil servants who had lost their posts. Assistance came largely from Turkey and partly from UNFICYP. For seven years the Turkish Cypriots lived in poverty restricted to the cantons [43] and with the fear of a repetition of the killings by the de-facto holders of the Cyprus Republic, that is Greek Cypriots, and did not receive a single coin from the legal Cyprus Republic. This period largely occupies my childhood memories: when crossing Greek areas my father’s car was regularly checked by armed Greek soldiers. As a child I did not understand why there was only one Turkish film on the state television channel once a month and we were obliged to watch Greek television programmes for the other 29 days of the month. Apart from another attack made on a Turkish village in 1967, things seemed calm till 1974, but the gulf between the two communities widened. On July 15, 1974 the Greek military junta carried out a coup d’état against

in any legal text including the Cyprus Constitution and on the contrary UN Security Council Resolution No. 774, August 25, 1992, speaks of two equal communities. [38] Mayes, Makarios, A Biography, 161. [39] Scott Harry Gibbons, The Genocide Files, A Charles Bravos Modern History (London: Charles Bravos, 1997). [40] Oppenheim’s International Law, Volume 1, Peace, ed. Robert Jennings and Arthur Watts (9th edn, Harlow, Essex: Longman, 1992), “Intervention,” par. 131, “Circumstances which may justify intervention,” 439. [41] Necatigil, The Turkish Republic of Northern Cyprus, 9. [42] Which was more that 10% of the whole Turkish Cypriot population at the time. [43] M. Necati Ertekün, The Cyprus Dispute and the Birth of the Turkish Republic of Northern Cyprus (2nd edn, Oxford University Press, Oxford, 1983), 14-16.

38 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA

Macarios, during which at least 2,000 of his supporters were killed in the four days of the coup[44] by Greek militia. This time they were led by another pro- enosis leader known to have murdered Turkish civilians, Nicolaos Sampson, who later admitted that he was about to proclaim enosis before he had to quit[45]. It

would be naive to expect Greeks who had killed their Greek Christian brothers Article Reviewed Peer to show mercy to their historical enemy: Muslim Turks. Following the coup Makarios fled the island and pointed out that even the Turks were in great danger[46]. In response, Turkey decided to exercise its right of guarantee derived from Article 4 of the Treaty of Guarantee, and invited[47] the UK to intervene[48] in Cyprus together with it in order to protect Turkish Cypriots. This may still be interpreted as Turkey’s willingness to preserve[49] the legal status quo on Cyprus, according to the 1960 Zürich-London Agreement but, when the UK declined, Turkey started a full-scale military action on July 20, 1974. The Turkish air force began bombing Greek positions on Cyprus, hundreds of paratroops were dropped in the area between Nicosia and Kyrenia, while off the coast of Kyrenia, 30 Turkish troop ships protected by destroyers landed 6,000 men as well as tanks, trucks, and armoured vehicles. Three days later, when a ceasefire had been agreed, Turkey had landed 30,000 troops on the island and captured Kyrenia, the corridor linking Kyrenia to Nicosia, and the Turkish Cypriot quarter of Nicosia itself. The junta in Athens, and then the Sampson regime in Cyprus, fell from power[50]. In Nicosia, Glafkos Clerides assumed the presidency and constitutional order was restored to what it was before the Greek junta’s coup, but the situation was nothing like it was before 1963. The EOKA was still on the scene, this time assassinating and murdering the US Ambassador Rodger Davies and his secretary[51] on August 19, 1974 in protest over the position of the US during Turkey’s intervention, illustrating that the constitutional order was never restored. The Greek-Cypriot forces were unable to resist the Turkish advance and, during two military actions that took five days overall, 37% of the island was taken over by the Turkish army[52]. The supremacy of the Turkish army was more than enough to take over the whole island within the next few days, which is still the case. Nevertheless, the army

[44] Borowiec, Cyprus. A Troubled Island, 84. [45] Necatigil, The Turkish Republic of Northern Cyprus, 11. [46] Ertekün, The Cyprus Dispute, 32. [47] Meyer, “Policy Watershed,” 16. [48] Jan Asmussen, Cyprus at War, Diplomacy and Conflict during the 1974 Crisis (London: I.B. Tauris, 2008), 291. [49] Ibid., 16. [50] Meyer, “Policy Watershed”. [51] Nancy Crawshaw, The Cyprus Revolt, An Account of the Struggle for Union with Greece (XXX: XXX, G. Allen & Unwin, London, 1978), 393. [52] Ibid., 2.

2013/ 1 Ankara Bar Review 39 Cyprus in International Law / BORA

stopped at a certain point, showing that Turkey’s intention was not to occupy the whole island, an issue which even US Foreign Secretary Henry Kissinger was sure of[53]. Around 180,000 Greek Cypriots moved from the north to the Cyprus Gov-

Peer Reviewed Article Reviewed Peer ernment controlled area in the south, whereas around 50,000 Turkish Cypriots moved to the areas under the control of the Turkish forces and settled in the properties of the displaced Greek Cypriots. Around 7,250 Turkish Cypriots moved into British Sovereign Bases as refugees and refused to return to their homes which were under the control of the Republic of Cyprus due to their fear of death, and insisted they would only move to the Turkish military controlled zone in the north[54]. To this day, 1,534 Greek Cypriots and 502 Turkish Cypriots are missing as a result of the fighting. The events of the summer of 1974 dominate politics on the island, as well as Greco-Turkish relations. The last major effort to settle the Cyprus dispute was the Annan Plan in 2004. It gained the support of the Turkish Cypriots but was rejected by the Greek Cypriots, who perceived it as disproportionately favorable to the Turks. On May 1, 2004 Cyprus joined the European Union (EU) together with nine other countries. In March 2008, a wall that for decades had stood at the boundary between the Republic of Cyprus and the UN buffer zone was demolished. The wall had cut across Ledra Street in the heart of Nicosia and was seen as a strong symbol of the island’s 32-year division. On April 3, 2008, Ledra Street was reopened in the presence of Greek and Turkish Cypriot officials. The legality of the invasion is still widely debated. It depends on whether common or concerted action between the United Kingdom, Greece and Turkey had proved impossible and whether the outcome of the invasion safeguarded the independence, sovereignty and territorial integrity of the Republic of Cyprus. For that reason a significant number of scholars prefer to use the term “intervention” rather than “occupation”[55]. In 1983, Turkish Cypriots issued the Declaration of Independence of the Turkish Republic of Northern Cyprus. This has been recognized by Turkey only. The United Nations declared the Turkish Republic of Northern Cyprus (TRNC) legally invalid and asked for its withdrawal. The UN Security Council has issued multiple resolutions that all states should refrain from recognizing the protectorate of Turkey in Cyprus. However, apart from a few particular incidents,[56] no one has been killed

[53] Asmussen, Cyprus at War, 255. [54] Ibid., 267. [55] Eiki Berg, “Examining Power-sharing in Persistent Conflicts: De Facto Pseudo-Statehood versus De Jure Quasi-Federalism,” Global Society 21 (2007): 212. Available: . [56] There was a border protest organized by NGOs which was later provoked by Greek

40 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA in Cyprus from any of the two communities the four decades since Turkey’s intervention.

5. The Loizidou Case Before The Peer Reviewed Article Reviewed Peer European Court Of Human Rights a. Facts Titina Loizidou is a Cypriot national who grew up in the city of Kyrenia (which is not under the Republic of Cyprus’s control after 1974) in northern Cyprus. In 1972 she married and moved with her husband to Nicosia. She owned some land in Kyrenia before the Turkish intervention in 1974. She claims her property in the north was occupied without her consent and construction started. Her ownership of the property is undisputed since she has certificates of registration issued by the Cypriot Lands and Surveys Department before 1974. She also alleges that she has been prevented in the past, and is still prevented, by Turkish forces from returning to Kyrenia and “peacefully enjoying” her property. b. Application lodged Based on the facts above, Loizidou lodged an application at the European Court of Human Rights (ECHR) against the Republic of Turkey (15318/89)[57] claiming that Turkey-as the high contracting party has violated a number of provisions of the European Convention on Human Rights[58] (the Convention) that aim to protect fundamental rights and basic freedoms. After a series of hearings the Court reached a final judgment on December 18, 1996 rejecting some part of the claim but it concludes by eleven votes to six that Turkey has violated Article 1 of Protocol No. 1 of the Convention[59] and in a later judgment, awarded the applicant full compensation for the loss she suffered due to deprivation of her property. The subject matter of the case does not fall into the scope of this essay, rather the Court’s reasoning for final judgment forms the core of this study.

nationalists by a Greek trying to climb up to a Turkish flag pole in order to grab the Turkish flag which resulted in the death of two Greek civilians.

[57] The judgment may be accessed at the official webpage of the European Court of Human Rights: http://www.echr.coe.int/ECHR/Homepage_EN [58] Updated and full official text may be accessed at: http://www.echr.coe.int/NR/rdonlyres/ D5CC24A7-DC13-4318-B457-5C9014916D7A/0/ENG_CONV.pdf [59] First paragraph of Article 1 of Protocol No. 1: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.” taxes or other contributions or penalt

2013/ 1 Ankara Bar Review 41 Cyprus in International Law / BORA

c. Defence of the Turkish Government The defendant government has put forward the following defences against the applicant’s allegations: 1. Objection ratione temporis: Under Article 46 of the Convention, Turkey has declared on January 22, 1990, that it accepted the jurisdiction of the Peer Reviewed Article Reviewed Peer Court on facts which occurred subsequent to the time of deposit[60] its declaration. The process of the taking“ ” of property in northern Cyprus started in 1974 and ripened into an irreversible expropriation by virtue of Article 159 (1) (b) of the TRNC Constitution[61] of May 7, 1985 justified under the international law doctrine of necessity[62]. 2. Objection ratione loci and ratione materiae: The act referred to does not constitute an act of “jurisdiction” by Turkey within the meaning of Article 1 of the Convention[63] since Northern Cyprus is outside of that jurisdictional territory (ratione loci) and its nature is not relevant to jurisdiction (ratione materiae).

[60] On January 22, 1990, the Turkish Minister for Foreign Affairs deposited the following declaration with the Secretary General of the Council of Europe pursuant to Article 46 of the Convention: On behalf of the Government of the Republic of Turkey and acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, I hereby declare as follows: The Government of the Republic of Turkey acting in accordance with Article 46 (art. 46) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention which relate to the exercise of jurisdiction within the meaning of Article 1 of the Convention (art. 1), performed within the boundaries of the national territory of the Republic of Turkey, and provided further that such matters have previously been examined by the Commission within the power conferred upon it by Turkey. This Declaration is made on condition of reciprocity, including reciprocity of obligations assumed under the Convention. It is valid for a period of 3 years as from the date of its deposit and extends to matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration. [61] Article 159 (1) (b) of the TRNC Constitution: “All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined ... and ... situated within the boundaries of the TRNC on 15 November 1983, shall be the property of the TRNC notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly.” [62] This term is used to describe the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional, initially based on the ideas of the medieval jurist Henry de Bracton. It has been used by Pakistan (1954), Grenada (1985) and Nigeria (2010). [63] Article 1: Obligation To Respect Human Rights: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

42 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA

6. The Court’s Assessment For the first objection, the Court decided that the present case concerns alleged violations of a continuing nature since the applicant can still be regarded as the legal owner of the land and was not allowed to enjoy freely her right of property even after 1990. Article Reviewed Peer When examining the second and the third objections, the Court dealt in detail with “the international response” to the establishment of the TRNC. This could be summarized as: 1. The UN Security Council adopted Resolution 541 (1983) which deplores the declaration by the Turkish Cypriot authorities of the purported secession of part of the Republic of Cyprus; Considers the declaration legally invalid and calls for its withdrawal and also calls upon all States to respect the sovereignty, independence, territorial integrity and non-alignment of the Republic of Cyprus; Calls upon all States not to recognize any Cypriot State other than the Republic of Cyprus. 2. The UN Security Council adopted Resolution 550 (1984) calling for similar measures for not recognizing the exchange of “ambassadors” between Turkey and the TRNC. 3. The Committee of Ministers of the Council of Europe decided that it continued to regard the Government of the Republic of Cyprus as the sole legitimate Government of Cyprus and called for the respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus. 4. On November 16, 1983 the European Communities issued a statement in which they reject this declaration, and also to reiterate their unconditional support for the independence, sovereignty, territorial integrity and unity of the Republic of Cyprus. They continue to regard the Government of President Kyprianou as the sole legitimate Government of the Republic of Cyprus. 5. The Commonwealth Heads of Government Meeting in New Delhi in November 1983 issued a press communiqué stating the declaration was legally invalid and reiterated the call for its “non-recognition” and immediate withdrawal. They further called upon all States not to facilitate or in any way assist the illegal secessionist entity. From the wording above, it is been understood that the Court has decided not to accept the TRNC as a state since it is not recognized and/or it is not accepted as legitimate by the international community. This is not just a subjective perception since the Court clearly states in its ruling (paragraphs 39–43): In this respect it is evident from international practice and the various, strongly worded resolutions referred to 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

2013/ 1 Ankara Bar Review 43 Cyprus in International Law / BORA

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…” In regard to the third objection, the ECHR referred to the Turkish military

Peer Reviewed Article Reviewed Peer presence in Northern Cyprus with more than 30,000 personnel controlling the whole of the occupied area and also to the fact that all civilians entering military areas are subject to Turkish military courts. The expressions used by the Court clearly illustrate that it attributes great importance to the military presence (paragraphs 60–63) It is obvious from the large number of troops engaged in active duties in northern Cyprus that her army exercises effective overall control over that part of the island. Such control, according to the relevant test and in the circumstances of the case, entails her responsibility for the policies and actions of the “TRNC” (see paragraph 52 above). Those affected by such policies or actions therefore come within the “jurisdiction” of Turkey for the purposes of Article 1 of the Convention (art. 1) ... The Court accepted this as a strong argument for the existence of Turkey’s jurisdiction in the occupied area thus rejecting the objection of jurisdiction.

7. THE COURT’S PARADIGMS The ECHR made several references to international law but failed to consider settled and accepted international law principles and thus based its ruling on incorrect reasoning. The main problem is that the Court did not investigate any other issue, such as the interpretation of the ‘time limit’ clause or the concept of “facts subsequent to the time of deposit.” The time factor and the interpretation of exclusion clauses have previously been discussed by other international courts that were founded and started to function earlier than the ECHR. The International Court of Justice has examined the issue in two important cases (Mavrommatis Palestine Concessions[64] and Phosphates in Morocco[65]) defining a dispute as a disagreement on a point of law or fact between two persons. In the Mavrammatis case the Permanent Court of International Justice stated:[66] “The Court is of [the] opinion that, in

[64] Judgment given by the Permanent Court of International Justice in 1924 (P.C.I.J, Ser. A, No. 2). The complete text of the judgment may be accessed at the official page of the Permanent Court of International Justice at: http://www.icj-cij.org/pcij/serie_A/A_02/06_Mavrommatis_en_Palestine_Arret.pdf [65] Judgment given by the Permanent Court of International Justice in 1938 (P.C.I.J, Ser. A/B). The complete text of the judgment may be accessed at the official page of the Permanent Court of International Justice at: http://www.icj-cij.org/pcij/serie_AB/AB_74/01_Phosphates_du_Maroc_Arret.pdf [66] Mavrommatis Palestine Concessions, judgment, 35.

44 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA cases of doubt, jurisdiction based on an international agreement embraces al1 disputes referred to it after its establishment …” In the Phosphates in Morocco case the Permanent Court of International Justice this time declared[67] the basic rule for interpreting the ratione temporis: “It is necessary always to bear in mind

the will of the State which only accepted the compulsory jurisdiction within speci- Article Reviewed Peer fied limits, and consequently only intended to submit to that jurisdiction disputes having actually arisen from situations or facts subsequent to its acceptance...”, and thus accepts the objection. It has been accepted that where the point of time is expressed by a phrase of an exclusion clause, the court will (is expected to) simply determine a fixed date[68]. This is formulated in Roman law as: Id certum est quod certum reddi potest, meaning: “what is certain can be rendered certain.” The ECHR rejected Turkey’s objection[69], finding there was a violation of a continuous nature, but failed to determine the exact date of commencement of the liability pursuant to the Convention. This leaves the high contracting party in a state of uncertainty and inability to predict when or if its liability starts or ends. This issue alone is a violation of the Article 6 of the Convention which prescribes the right to a fair trial which has been explained and emphasized in a number of the ECHR’s judgments. On the other hand, once the ECHR decided to consider the events before Turkey became a signatory to the Convention, it should have presented sound reasoning as to why it went as early as 1974 but not before that date, back to the year 1963, for instance, when the Cyprus problem started to brew. Weak reasoning is another strong violation of Article 6, this time on the part of the Court which is supposed to judge national courts on whether they obey that provision. At the base of the whole conflict lies the partial intervention in Cyprus by Turkey in 1974. This is the fact and/or the event that took place on that date that caused the applicant to lose her actual (de facto) contact with her property. This is simply the fact, or in other words the central point of argument, that created the dispute and it took place long before Turkey’s recognition of the Court’s jurisdiction in 1990. The ECHR, just like the International Criminal Court, is a prospective institution in that it cannot exercise its jurisdiction over events that occurred prior to the entry into force of its Statute or before its jurisdiction was officially recognized by the high contracting party[70]. A similar understanding prevails

[67] Phosphates in Morocco, judgment, 24. [68] Shabtai Rosenne, An International Law Miscellany (Dordrecht: Martinus Nijhoff, 1993) 38. [69] That was one of the reasons for dissent by the judges (Bernhardt, Baka, Gölcüklü, Jamberk and Lopes Rocha) of the ECHR expressed as: “The preliminary objection ratione temporis raised by Turkey is in my view legally well-founded ...” [70] William A. Schabas, An Introduction to the International Criminal Court (4th edn,

2013/ 1 Ankara Bar Review 45 Cyprus in International Law / BORA

in the foundation of the International Criminal Tribunal for the Former Yugo- slavia[71]. For the competence of that Tribunal to arise, it is necessary that the violations should have commenced since 1991 and its territory is also limited to the land surface, air space and territorial waters of former Yugoslavia[72].

Peer Reviewed Article Reviewed Peer Therefore, the ECHR’s interpretation of Turkey’s time-limit clause should have reflected the generally accepted understanding and principle of the issue, not a unique and narrow comment that discourages other prospective states from signing the Convention. The concept of continuing violation and its application is problematic in international law[73] and the Court avoided examining and explaining how it concluded that there was a continuous violation but not an instantaneous act (that is alleged occupation[74] in 1974). Since Turkey does not recognize the applicant’s right to the property, this at worst can be considered as expropriation with or without just compensation, not a continual denial of access to property. My view on this issue is also supported by a similar opinion of the US in the case of Mondev International in which the applicant (Mondev) alleged that the US had breached its obligation under the North American Free Trade Agreement (NAFTA) to its detriment. The US rejected the principle of continuing violation. According to this theory, the applicant would be permitted to bring claims based on a supposed breach of obligation to make reparation not within three years of the original breach, but for as long as the respondent State refused to accede to the investor’s demand[75]. The response was clear: “This is not precluded by the fundamental principles of treaty interpretation (and common sense).” On the other hand, the alleged continuous nature of the violation is problematic too. The Turkish Cypriot leader Rauf Denktaş and the Greek Cypriot leader (the President of Cyprus) Glafkos Clerides had agreed and signed a document during the third round of the Vienna peace talks in 1974 on a number

Cambridge University Press, 2011), 69. [71] UN International Criminal Tribunal for the Former Yugoslavia. For further information please refer to the official web page of the Tribunal: http://www.icty.org/ [72] Gabriel Kirk McDonald and Olivia Swaak Goldman, Substantive and Procedural Aspects of International Criminal Law, Volume II, Part 1, Documents and Cases (The Hague: Kluwer Law International, 2000), 293. [73] Bernard H. Oxman and Beate Rudolf. “Loizidou v. Turkey,” American Journal of International Law 9 (1997) 532-537. [74] Occupation is defined in Article 42 of the Annex to the Hague Convention IV of 1907: “Territory is considered occupied when it is actually placed under the authority of the hostile army.” However, Article 3 of the Treaty of Guarantee recognizes and legitimizes Turkey’s right of intervention which already gives the right to have military elements in Cyprus. For that reason Turkey cannot be deemed an occupier and/or invader in Cyprus. [75] Sean D. Murphy, “Contemporary Practice of the United States Relating to International Law, Retroactive Application of Treaty to Treaty Based Claim,” American Journal of International Law 97 (2003) 438.

46 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA of principles which openly state that Turkish Cypriots in the south were free to stay or move to the north[76] while the Greek Cypriots in the north had the same freedom[77] and the transfers were be made under the monitoring of the UNFICYP to ensure they were voluntary. It was not alleged by Loizidous that

she was specifically and actually forced to move to the south. Article Reviewed Peer When assessing the second and third objections, the ECHR showed inconsistency by refusing to examine whether Turkey’s intervention in Cyprus was on legal grounds or not. However, on the contrary, the Court insisted on discussing the issue that TRNC is not a sovereign state and furthermore it based its reasoning on non-legal concepts such as the international response and the recognition or legitimacy of TRNC, which are irrelevant in determining the legal presence of a sovereign state. There are certain circumstances that justify intervention in international law: a state’s right to protect its citizens abroad[78], discretion of a state to protect its nationals[79], collective self defence[80], to assist others in their self determination[81] and as a result of a treaty[82]. Turkey had more than one justification, starting with the protection of Turkish nationals abroad and/or assisting Turk- ish Cypriots to use their right of self determination and/or self defence. Even Oppenheim considers[83] Turkey’s intervention resulted from the Treaty of Guarantee but adds the essence of a sceptical examination—something that the Court avoided doing. Oppenheim alleges that when a case can be defined as “assistance on request” the intervention is legal[84] again and gives the following examples: no unlawful intervention was involved when British forces went to the aid of Muscat and Oman in 1957 at the request of the Sultan; when British and American forces landed in Jordan and Lebanon in 1958 at the request of those states; when British forces assisted Uganda, Kenya and Tanganyika in 1964, and Zambia in 1965, at their request; when, during the Vietnam conflict, American forces assisted the Republic of Vietnam at its request; when, in 1968 and 1969, and again in 1983, French forces responded to requests for assistance from Chad, and also in 1978 in response to a request from Zaire... In none of the above cases did the legally intervening forces act upon a treaty, neither did they act upon the justification of defending their citizens,

[76] Ertekün, The Cyprus Dispute, 39. [77] Asmussen, Cyprus at War, 272-273. [78] Oppenheim’s International Law, Volume 1, Peace, 9th edn, 440. [79] Ibid., 442. [80] Ibid., 444. [81] Ibid., 445. [82] Ibid., 446. [83] Ibid., 447 (see dn:41) [84] Ibid., 436.

2013/ 1 Ankara Bar Review 47 Cyprus in International Law / BORA

but still their acts are deemed legal. Turkey’s position is superior to these cases in comparison, but the ECHR did not even consider the consent of the Turkish Cypriots who asked for Turkey’s military and financial help in consensus and did not object to Turkey’s military presence since 1974.

Peer Reviewed Article Reviewed Peer There are four accepted legal theories that deal with the concept of sovereign state; declarative theory, state practice, de facto and de iure states and constitutive theory. The declarative theory and constitutive theory are the leading competing theories of major concern of debate. Nevertheless, the constitutive theory is highly criticized for its defects[85]. New states are without rights and obligations under international law until they are recognized and this encourages them even to behaving more illegally (TRNC has been accused of not taking necessary measures for preserving the historical heritage of Cyprus and thus violating the 1970 UNESCO Agreement on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; and the 1995 UNIDROIT (International Institute for the Unification of Private Law) Convention on Stolen or Illegally Exported Cultural Objects[86]. But, how can you accuse a state of acting illegally when you do not accept its legal status? This can be explained by the state practice which shows that recognition is primarily a political act on the part of the states. Why should the legal status of an entity be dependent upon the performance of such a political act? State practice shows that it may not be possible to ignore completely an unrecognized entity. It is not clear how many members of the international community must recognize the new entity and it is not right to esteem such a vague concept with the determinant of statehood. The declarative model was most famously expressed in the 1933 Montevideo Convention[87]. Although only the states of the American continent have signed the convention, as a restatement of customary international law, the Montevideo Convention merely codified existing legal norms and principles and therefore does not apply only to the signatories, but to all subjects of international law as a whole. This makes the declarative theory noteworthy and a good reason why it should be preferred to other theories. The “declarative” theory defines a state as a person in international law if it meets the following criteria: (1) a defined territory; (2) a permanent population;

[85] Alina Kaczorowska, Public International Law (4th edn, Abingdon: Routledge, 2010), 227. [86] Theresa Papademetriou, Destructıon of Cultural Property in the Northern Part of Cyprus and Violatıons of Internatıonal Law (XXX: XXX, 2009). [87] The Montevideo Convention on the Rights and Duties of States was a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codified the declarative theory of statehood as accepted as part of customary international law. Article 3 of the Convention declares that statehood is independent of recognition by other states.

48 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA

(3) a government; and (4) a capacity to enter into relations with other states. According to declarative theory, an entity’s statehood is independent of its recognition by other states. This view is shared by Oppenheim when explaining the relation between concepts of statehood and recognition [88]:

There is no doubt that statehood itself is independent of recognition. Inter- Article Reviewed Peer national law does not say that a state is not in existence as long as it is not recognized, but it takes no notice of it before its recognition … Recognition is given either expressly or implicitly … TRNC’s borders are well defined and even accepted by the UN officials who have been patrolling the borders for the past half century, so there is a defined territory. The presence of the Turkish Muslim population of the island has not even been denied by the Cyprus Constitution of 1960, so the population which is agreed to be around a quarter of a million fulfils the second necessity of the declarative theory. Fully democratic and free elections have continuously been held in the north of the island since 1963 forming the legitimate and legal background of the legislative parliament and the government in the north, whereas none of the population of the north takes part in the elections of the Republic of Cyprus. The ECHR has refused to discuss the TRNC Constitu- tion, which has continually been valid since the Constitutional Referendum of May 1985 in northern Cyprus, with 70.2 % of the Turkish Cypriots voting in favour[89] but instead insisted on basing its judgment on the 1960 Cyprus Constitution which lasted for just three years and failed[90] upon the systematic campaign by the Greeks[91] against it in 1963 and has not been accepted by Turkish Cypriots since then. TRNC has sixteen representatives with diplomatic missions all over the world including two in the US. Moreover, TRNC has been accepted to participate[92] in the Organization of Islamic Cooperation (OIC) under the name of “Turkish Cypriot State” which is a proof of its capacity to enter into relations with other states. OIC has 57 members, 56 of which are classed by the UN as member states. The OIC has a permanent delegation to the UN, and considers itself the largest international organization outside of the UN, representing 22% of the world’s population. A joint and unanimous decision made by 56 UN member states accepting the TRNC as a separate

[88] Oppenheim, Lassa, International Law. A Treatise, Vol. I Peace, ed. Ronald E. Roxburgh (London: Longmans, 1920; repr. Clark, NJ: The Law Book Exchange, 2008), 133. [89] Mümtaz Soysal, “Political Parties in the Turkish Republic of Northern Cyprus and Their Vision of the Solution,” in Cyprus, A Regional Conflict and Its Resolution. Ed. Norma Salem (St. Martin’s Press: New York, 1992), 41. [90] Norma Salem, “The Constitution of 1960 and Its Failure,” in Cyprus, A Regional Conflict and Its Resolution. Ed. Norma Salem (St. Martin’s Press: New York, 1992), 117-126. [91] H. D. Purcell, Cyprus. Nations of the Modern World (New York: Praeger, 1969), 308, 309. [92] OIC Resolution No. 2/31-P on the situation in Cyprus adopted by the 31st Islamic Conference of Foreign Ministers, held in Istanbul on June 14-16, 2004.

2013/ 1 Ankara Bar Review 49 Cyprus in International Law / BORA

state with its own flag distinct from that of the Republic of Cyprus is a recogni“ - tion” that no organization could disregard. Since the recognition is a political choice of a state, it is not necessary that it should be done in a formal way, even according to the constitutive theory, as recognition might as well be de [93] [94]

Peer Reviewed Article Reviewed Peer facto, implied , or on condition. Even the Republic of Cyprus gave such recognition, with special emphasis on the “sovereignty and political equality of Turkish Cypriots”[95] on condition that the Turkish Cypriots would support the Republic of Cyprus’ application for membership of the EU in 1995. Apart from the OIC, Pakistan, Bangladesh, Saudi Arabia, Malaysia, Indonesia, Albania, Bosnia and Macedonia openly support[96] TRNC despite the UN resolution. Briefly, TRNC, having five internationally recognized universities with thou- sands of students from all over the world, and being self sufficient in energy[97], has accomplished much more than the majority of recognized states have been able to achieve after decades of effort[98]. Fowler and Bunck’s definition[99] of sovereign state seems parallel with the declarative theory in regard to the elements of territory, people and government, however, they mention a new school of thought that challenges the theory by adding the requirement of de jure independence[100]. Nevertheless, they acknowledge that Turkish Cypriots have managed to prove that they are legally separate[101] from the government of Cyprus, but that this together with Turkey’s recognition as a sovereign state is not enough for TRNC to become a member of the exclusive club of sovereign states, differentiating between becoming a sovereign state and being accepted. Frank Hoffmeister[102] when analyzing the TRNC makes reference to the

[93] Oppenheim, International Law, 3rd edn, 133. [94] Kaczorowska, Public International Law, 222. [95] Christopher Brewin, “Turkey, Greece and the European Union,” in Cyprus. The Need for New Perspectives, Ed. Clement H. Dodd (The Eothen Press: Huntingdon, Cambridgeshire, 1999), 159. [96] Barry Bartmann, “The Quest for Legitimacy, International Status of the Turkish Republic of Northern Cyprus,” in Cyprus. The Need for New Perspectives, Ed. Clement H. Dodd (The Eothen Press: Huntingdon, Cambridgeshire, 1999), 279. [97] TRNC began selling electricity to the Republic of Cyprus in 2011, making a legal contract upon the insistence of the Greek officials through its electricity department office so as not to be interpreted as recognition. Nevertheless the issue itself can be summarized as the non-sovereign state selling electricity to the sovereign one. [98] Ishtiaq Ahmad, The Divided Island, A Pakistani Perspective on Cyprus (Pan Graphics, 1999, Nicosia, Cyprus), 35. [99] Michael Fowler and Julie Marie Bunck, Law Power and the Sovereign State, The Evolution and Application of Sovereign State (University Park, PA: Pennsylvania State University Press, 1996), 33. [100] Ibid., 50, 51. [101] Ibid., 52. [102] Frank Hoffmeister, Legal Aspects of the Cyprus Problem: Annan Plan and EU Accession (Leiden: Koninklijkebrill NV, 2006) Chapter III, “The Turkish Intervention”, 50.

50 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA

Montevideo Convention and states that TRNC fulfils all the conditions set forth in that convention except the existence of a government, indicating the presence of the Turkish army and the size of the financial aid from Turkey[103] as obstacles. Hoffmeister on the one hand accepts the Turkish population as

around 100,000 and compares it with the 35,000–40,000 of the Turkish army Article Reviewed Peer presence, emphasizing its pressure on the local police force, and on the other hand expresses the view that the amount of financial aid and its direction can be used by Turkey to influence TRNC politics. Hoffmeister’s unreferenced population estimates do not reflect the truth. According to the TRNC’s official and accountable 2006 Population and Housing Unit Census, the population of TRNC is 265,100[104]. The presence of the Turkish Army takes its legitimacy[105] from the need to protect Turkish Cypriots and its legality from Article 181 of the 1960 Cyprus Constitution (which is still recognized as the only valid Constitution by the international community) as well as the Article 4 of the Treaty of Alliance[106]. Turkey maintains its presence to protect the Turkish Cypriot population and estimates the number of military elements to be sufficient although that number may sometimes not being enough to stop Greek attempts making border violations. However, the UK does not deny having around 3,000 military personnel in its “sovereign bases” in Cyprus, without any reasoning, but still the sovereignty of the military bases is not disputed. The number of its soldiers has never been a determinant of a government’s sovereignty, nor has the amount of financial aid. Nevertheless, Turkey is known to have attempted to interfere in the last presidential elections in TRNC by supporting[107] Mehmet Ali Talat against Dervis Eroğlu, but the Turkish Cypriots elected Eroğlu as their president. Turkey’s failure thus shows the Cypriot Turkish community is hardly influenced by financial aid from another state. All the authors mentioned above have based their arguments on one theory or another, whereas in the Loizidou case, the ECHR simply relied on the concept of non-recognition and international response but failed to form a connection between its opinion and a settled international law theory, causing its decision to appear groundless and creating suspicions about its legality. When NATO missiles killed sixteen innocent civilians during the Kosovo conflict on April 23, 1999, an application was made against NATO member

[103] Ibid., 51. [104] http://nufussayimi.devplan.org/Census%202006.pdf A new population estimate has been carried out in TRNC whilst this article was being written, and it is in the press that the population of TRNC has reached around 300,000 but it is not yet officially confirmed. [105] Bartmann, “The Quest for Legitimacy,” 273. [106] Signed by Greece, Turkey and the UK. [107] Amanda Paul, “Cyprus – The Beginning of a New Era,” European Policy Center, April 21, 2010, www.epc.eu.

2013/ 1 Ankara Bar Review 51 Cyprus in International Law / BORA

states to the ECHR by six Yugoslav nationals resident in Belgrade. The Grand Chamber of the ECHR unanimously found the case (Bankovic et al. v. 17 NATO and ECHR Member States) inadmissible[108] on the ground that the action did not fall within the scope of the jurisdiction of the defendant states

Peer Reviewed Article Reviewed Peer on December 12, 2001. The Court’s refusal to recognize the exercise of extraterritorial jurisdiction by the respondent states, due to their lack of effective control over the targeted territory and its inhabitants, is not fully convincing[109]. To be more precise and plain, this is hypocrisy. It is still argued that the Loizidou case opened up the possibility of arguing that NATO occupied and/or operation areas were subject to the jurisdiction of the ECHR[110]. The approach chosen by the Court to distinguish the Bankovic case from its established case law, which recognized extra-territorial acts as constituting an exercise of jurisdiction, raises the suspicion that the ECHR rejected any further legal involvement in this issue of high politics and human rights. It was expected that the Court would fully explain why it did not stick to the principles expressed in the Loizidou case, but then again there is not a known legal theory to explain the double standards used in both cases. The Court is also mistaken in not discussing the legality of the intervention[111]. Article: 1 of Protocol 1 annexed to the Convention with the title “Protection of Property” states: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. The second paragraph of Article 1 authorizes the state to control the use of property in accordance with the general interest, and what other interest can be more important than saving the lives of Turkish Cypriot civilians? If the Court

[108] The Grand Chamber’s Decision as to the Admissibility of Application no. 52207/99 of ECHR. [109] Frank Schorkopf, “Grand Chamber of the European Court of Human Rights Finds Yugoslavian Bombing Victims’ Application against NATO Member States Inadmissible,” 3 German Law Journal (2002), http://www.germanlawjournal.com/index.php?pageID=11&artID=133 [110] Eric Engle, “Private Law Remedies for Extraterritorial Human Rights Violations,” Inaugural Dissertation for Doctorate of Law of the Bremen University, evaluated by Prof.Dr. Gert Brüggemeier and Prof.Dr. Josef Falke, January 30, 2006, 21. [111] The same criticism is made of the ECHR by the dissenting Judge Pettiti: “… the Court did not examine the question whether that intervention was lawful (see paragraph 56 of the judgment). The decision to station international forces on the line separating the two communities made the free movement of persons between the two zones impossible, and responsibility for that does not lie with the Turkish Government alone ...”

52 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA examined the issue of legality and gave the defendant government the possibility of defending itself with regard to the legality then it would not be possible to hold Turkey responsible since the deprivation of property was a compulsory consequence of the act of defending civilian lives, legitimated both by the

Treaty of Guarantee and the second paragraph of Article 1 of the Protocol 1. Article Reviewed Peer The Court ignores the legality issue and states that it does not make a on the responsibility of the defendant to carry out its duties stated in the Convention. This reasoning, together with the disregarding of the legality of the TRNC, is still widely and strongly criticized by legal scholars with the allegations that the judgment would have been different otherwise, since the TRNC is a stabilized de facto regime having an effectual and autonomous nature of the legal order and administration in the northern part of Cyprus, and the Turkish Cypriots 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[112]. On the other hand, when determining liability for wrongdo- ing, “fault” is an important issue that must be discussed within the context of the legality. The Court did not pay any attention[113] to the fact that it was the Greek Cypriot side led by their leader President Makarios, who started the armed conflict in the beginning, in 1963, by arming Greek youths secretly and training them to realize a “13-point plan” for amending the Constitution[114]. It is the primary responsibility of a court to seek for and discuss the legality of an issue in hand and another duty is to deal with it on legal grounds, but judges all over the world (and/or courts) sometimes make the mistake of relying on the actions or views of political actors during their decision making process. US courts have often been criticized for looking for executive signals on how to treat foreign governments involved in legal action before a court[115]. There are cases before US courts in which the judges have avoided accepting the legal existence of Soviet Russia just by relying on the political statements of the US’s official memorandum of non-recognition. The same mistake was committed by the ECHR basing its reasoning on the concept of non-recognition in the UN Resolutions, which are political declarations.

[112] Cansu Akgun, “The Case of TRNC in the Context of Recognition of States under International Law,” Ankara Bar Review [2010], 1. This was part of the author’s Master’s thesis submitted at Amsterdam University Faculty of Law under the supervision of Ass. Prof. Dr. Enrico Milano. [113] A similar objection was raised by the dissenting judges (Bernhardt, and Lopes Rocha) of the ECHR in slightly a different form: …“ Who is responsible for this failure? Only one side? Is it possible to give a clear answer to this and several other questions and to draw a clear legal conclusion?...” [114] Rauf R. Denktaş, “The Failed Test of Legality,” Ankara Bar Review [2010], 27. [115] Thomas D. Grant, The Recognition of States. Law and Practice in Debate and Evolution (Westport, CT: Praeger XXXX), 53, 54.

2013/ 1 Ankara Bar Review 53 Cyprus in International Law / BORA

7. CONCLUSION t is beyond doubt that TRNC, whether recognized or not, is a fully sovereign state with a democratic structure and fully functioning state organs, and the ECHR’s failure to realize this issue does not change the reality. Peer Reviewed Article Reviewed Peer IWhat is more important than this is the fact that it was the Greek Cypriots’ actions that ignited the series of events in the first place which led to the current situation. The Loizidou case is important not only for causing another 1,400 similar applications to be filed against Turkey claiming compensation but it also had some impact on international law for creating a reference in the interpretation of the concept of “jurisdiction.” The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia relied on Loizidou in support of its “overall control” test of attribution in the Tadic case, which it used to determine whether the conflict in Bosnia was international or non- international in character[116]. Turkey on the other hand refused to recognize the judgment in Loizidou until 2003 but later paid the amount ordered, which was around 1.1 million Euros. It made another maneuver to emphasize the sovereignty of TRNC and somehow convinced the Court to make an order[117] obliging all the Greek Cypriot applicants to apply to the TRNC Immovable Property Commission in the first instance[118]. It is understandable that the ECHR should seek a means of compensation for the applicant but it is also important that the search should be confined to and harmonized with the settled rules of international law and not affected by political choices. Cyprus is a complicated legal issue full of pain for innocent civilians but its multidimensional character makes it inevitable to reconsider the roles of every actor, whether legal or political. It is not warranted to place all of the burden on to Turkey since apart from the political figures the UK, Greece and the Republic of Cyprus too must share the responsibility for what has happened up to now and for the future. No one is totally innocent.

[116] Marko Milanovic, Extraterritorial Application of Human Rights Treaties (Oxford University Press, 2011), 42. [117] Case of Xenides-Arestis v. Turkey (Application No. 46347/99). Full text available at the official web site of the Court: http://www.echr.coe.int/ECHR/Homepage_EN [118] The ECHR, with its decision on March 1, 2010 as to the admissibility of Demopoulos and others v. Turkey found that Law no. 67/2005 provides an effective remedy and rejected the complaints of the applicants for non-exhaustion of domestic remedies. To date there have been 459 applications lodged before the Commission, 95 have been concluded through out-of-court settlement and four cases through formal hearings.

54 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA

BIBLIOGR APHY Peer Reviewed Article Reviewed Peer

Ahmad, Ishtiaq. The Divided Island, A Pakistani Perspective on Cyprus. Islamabad: 1999. Published by Pan Graphics, 1999, Nicosia, Cyprus. Akgun, Cansu, “The Case of TRNC in the Context of Recognition of States under International Law,” Ankara Bar Review [2010], 1. Asmussen, Jan, Cyprus at War, Diplomacy and Conflict during the 1974 Crisis (London: I.B. Tauris, 2008. Averoff, Evangelos-Tossizza, Lost Opportunities, The Cyprus Question, 1950–1963. New Rochelle, NY: Caratzas 1986. Bartmann, Barry, “The Quest for Legitimacy, International Status of the Turkish Republic of Northern Cyprus,” in Cyprus. The Need for New Perspectives, Ed. Clement H. Dodd. The Eothen Press: Huntingdon, Cambridgeshire, 1999. Berg, Eiki, “Examining Power-sharing in Persistent Conflicts: De Facto Pseudo-Statehood versus De Jure Quasi-Federalism,” Global Society 21 (2007). available: . Borowiec, Andrew, Cyprus. A Troubled Island. Westport, CT: Praeger 2000. Christopher Brewin, “Turkey, Greece and the European Union,” in Cyprus. The Need for New Perspectives, Ed. Clement H. Dodd. The Eothen Press: Huntingdon, Cambridgeshire, 1999. Crawshaw, Nancy, The Cyprus Revolt, An Account of the Struggle for Union with Greece XXX: XXX, G. Allen & Unwin, London 1978. Rauf R. Denktaş, “The Failed Test of Legality,” Ankara Bar Review [2010], 27. Engle, Eric, “Private Law Remedies for Extraterritorial Human Rights Violations,” Inaugural Dis- sertation for Doctorate of Law of the Bremen University, evaluated by Prof.Dr. Gert Brüggemeier and Prof.Dr. Josef Falke, January 30, 2006. Ertekün, M. Necati. The Cyprus Dispute and the Birth of the Turkish Republic of Northern Cyprus. 2nd edn, Oxford University Press, 1983. Fowler, Michael and Julie Marie Bunck, Law Power and the Sovereign State, The Evolution and Application of Sovereign State. University Park, PA: Pennsylvania State University Press, 1996 Gazioğlu, Ahmet, Two Equal and Sovereign Peoples. A Documented Background to the Cyprus Problem and the Concept of Partnership. 2nd edn, Lefkoşa, Turkey: CYREP, 1999, Gibbons, Scott Harry, The Genocide Files, A Charles Bravos Modern History. London: Charles Bravos, 1997. Grant, Thomas D. The Recognition of States. Law and Practice in Debate and Evolution. Westport, CT: Praeger XXXX. Hoffmeister, Frank, Legal Aspects of the Cyprus Problem: Annan Plan and EU Accession.

2013/ 1 Ankara Bar Review 55 Cyprus in International Law / BORA

Leiden: Koninklijkebrill NV, 2006. Kaczorowska, Alina, Public International Law. 4th edn, Abingdon, Oxfordshire: Routledge, 2010. Mayes, Stanley, Makarios, A Biography. London and Basingstoke: Macmillan, 1981. McDonald, Gabriel Kirk and Olivia Swaak Goldman, Substantive and Procedural Aspects of Peer Reviewed Article Reviewed Peer International Criminal Law, Volume II, Part 1, Documents and Cases. The Hague: Kluwer Law International, 2000, Meyer, H. James, “Policy Watershed: Turkey’s Cyprus Policy and the Interventions of 1974,” WWS Case Study 3/00, 4. Available at: http://wws.princeton.edu/research/cases/cyprus.pdf., accessed on December 20, 2011. Milanovic, Marko, Extraterritorial Application of Human Rights Treaties. Oxford University Press, 2011. Moran, Michael, ‘How the Turkish Cypriots Were Deprived of their Constitutional Rights in 1964/5,’ in Sovereignty Divided. Essays on the International Dimensions of the Cyprus Problem. Lefkoşa, Turkey: CYREP, 1999. Murphy, Sean D. “Contemporary Practice of the United States Relating to International Law, Retroactive Application of Treaty to Treaty Based Claim,” American Journal of International Law 97 (2003) 438 Necatigil, Zaim, The Turkish Republic of Northern Cyprus in Perspective (Nicosia: XXX, 1985), Publisher, Z.M. Nejatigil, 1985. O’Malley, Brendan and Ian Craig, The Cyprus Conspiracy. America, Espionage and the Turkish Invasion. London: I.B. Taurus, 2007. Oppenheim, L., International Law. A Treatise, Vol. I Peace, ed. Ronald E. Roxburgh, 3rd edn, London: Longmans, 1920; repr. Clark, NJ: The Law Book Exchange, 2008 Oppenheim’s International Law, Volume 1, Peace, ed. Robert Jennings and Arthur Watts. 9th edn, Harlow, Essex: Longman, 1992, Oxman, Bernard H. and Beate Rudolf, “Loizidou v. Turkey,” American Journal of International Law 9 (1997) 532-537. Papademetriou, Theresa, Destructıon of Cultural Property in the Northern Part of Cyprus and Vıolatıons of Internatıonal Law (XXX: XXX, 2009. Paul, Amanda. “Cyprus – The Beginning of a New Era,” European Policy Center, April 21, 2010, www.epc.eu. Purcell, H. D. Cyprus, Nations of the Modern World. New York: Praeger, 1969. Rupert Emerson, “From Empire to Nation: The Rise to Self-Assertion of Asian and African Peoples” (Boston: Beacon Press, 1960), pp. 295-328. Salem, Norma, “The Constitution of 1960 and Its Failure,” in Cyprus, A Regional Conflict and Its Resolution. Ed. Norma Salem. St. Martin’s Press: New York, 1992), 117-126. Schabas, William A., An Introduction to the International Criminal Court (4th edn, Cambridge University Press, 2011.

56 Ankara Bar Review 2013/ 1 Cyprus in International Law / BORA

Schorkopf, Frank, “Grand Chamber of the European Court of Human Rights Finds Yugoslavian Bombing Victims’ Application against NATO Member States Inadmissible,” 3 German Law Journal (2002): http://www.germanlawjournal.com/index.php?pageID=11&artID=133

Shabtai, Rosenne, An International Law Miscellany. Dordrecht: Martinus Nijhoff, 1993. Article Reviewed Peer Soysal, Mümtaz, “Political Parties in the Turkish Republic of Northern Cyprus and Their Vision of the Solution,” in Cyprus, A Regional Conflict and Its Resolution. Ed. Norma Salem. St. Martin’s Press: New York, 1992. Stephen, Michael, The Cyprus Question. A Concise Guide to the History, Politics and Law of the Cyprus Question. London: 2000, Northgate Publications. Summers, Chris, “Can Cyprus overcome its bloody history?” BBC News, November 23, 2009, http://news.bbc.co.uk/2/hi/8321765.stm accessed December 14, 2011. UN Refugee Agency Refworld, Report: http://www.unhcr.org/refworld/country,,,CHRON,CYP,,469f387d1e,0.html (accessed Decem- ber 2011)

2013/ 1 Ankara Bar Review 57

PEER REVIEWED ARTICLE

Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus

Nejat DOĞAN*

* Associate Professor, Anadolu University, Faculty of Economics, Department of International Relations, [email protected]

Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN Peer Reviewed Article Reviewed Peer

ABSTR ACT

Kosovo “unilaterally” declared independence in 2008. In the Advisory Opinion delivered on 22 July 2010, the ICJ opined that this declaration “did not violate international law.” This Advisory Opinion has some critical ramifications for the future of the Cyprus question. One can easily deduce from the Court’s findings that neither the declaration of independence by the TRNC nor its recognition violates any applicable rule of international law. As such the Greek Cypriot Administration as well as the international community does not have the right to impose a solution on the island against the will of the Turkish Cypriot community. In fact, given especially the process and outcome of half-a-century of negotiations and of 2004 referendum, the best solution to the impasse between the communities is to recognize two independent states on the island, namely the Greek Cypriot State and the Turkish Cypriot State, as envisaged in the Annan Plan. Keywords: International Court of Justice (ICJ), Kosovo Advisory Opinion, Turkish Republic of Northern Cyprus (TRNC), declaration of independence, recognition, international law, the Annan Plan.

2013/ 1 Ankara Bar Review 61

Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN Peer Reviewed Article Reviewed Peer

1. Introduction his paper is not yet another historical review of events on the island of Cyprus, but an attempt to explain the basic reasons of why the Turkish community has the right to self-determination and why the Turkish TRepublic of Northern Cyprus (TRNC) should be recognized almost thirty years after its declaration of independence. The paper draws on the recent advisory opinion of the International Court of Justice (ICJ) on Kosovo as well as legal, political, and philosophical arguments on secession and the right to self determination. The first section of the paper reviews the advisory opinion on Kosovo; the second section relates the arguments of the Court to the Cyprus question and enumerates the basic reasons for the TRNC’s right to claim recognition. The third section discusses the position of the Greek Administration of Southern Cyprus (GASC) on the future of Kosovo and Cyprus. Finally the paper provides some policy suggestions with the Turkish side. The paper argues that, given especially the process and outcome of half-a-century of negotiations and of 2004 referendum, the best solution to the impasse between the communities, is to recognize two independent states on the island, namely the Greek Cypriot State and the Turkish Cypriot State, as envisaged in the Annan Plan.

2013/ 1 Ankara Bar Review 63 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

2. ICJ’s Advisory Opinion On The Declaration Of Independence By Kosovo “Injustice anywhere is a threat to justice everywhere” Martin Luther King Jr. Peer Reviewed Article Reviewed Peer On 22 July 2010 the International Court of Justice gave its advisory opinion on the unilateral declaration of independence by Kosovo. Before elaborating on the inalienable rights of the Turkish Cypriots and on the declaration of independence by the TRNC, it would be very helpful to briefly look at this advisory opinion. On 8 October 2008 the United Nations (UN) General Assembly adopted a resolution (63/3) where it requested an advisory opinion from the ICJ on the declaration of independence by Kosovo without the blessing of the UN. The question put to the Court in the resolution reads as follows: “is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”[1] Before addressing this main question, the ICJ tackles two procedural questions: first of all, whether it has jurisdiction to give the opinion requested by the General Assembly and, secondly, if it has jurisdiction, whether it should decline to give the opinion in the case (i.e., the issue of discretion). Citing Article 10 of the UN Charter, the Court concludes that the General Assembly has the competence to ask an advisory opinion. On the possible conflict of powers between the UN Security Council and the General Assembly, the Court asserts that “a request for an advisory opinion is not in itself a ‘recommendation’ by the General Assembly with regard to a dispute or situation” and that “the fact that a question has political aspects does not suffice to deprive it of its character as a legal question.”[2] Therefore, the question put to the Court is of legal character and the Assembly has the right to request an advisory opinion from the Court on such questions; that is, the ICJ has jurisdiction in the case before it. The Court also “considers that there are no compelling reasons for it to decline to exercise its jurisdiction” in respect of the request of the General Assembly.[3] The Court, then, starts reflecting on the legality of the declaration of independence by Kosovo. Although the question before the Court requires political and philosophical discussion on many issues such as sovereignty, self-determination, recognition, and secession, the Court confines itself to a narrow interpretation and reads the question literally. The Court argues that “the question is narrow and specific; it asks for the Court’s opinion on whether or not the declaration of independence is in accordance with international law. It does not ask about the legal consequences of that declaration. In particular, it does not ask whether or not Kosovo has achieved

[1] ICJ, “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo.” Advisory Opinion, 22 July 2010, General List No. 14, paragraph 1. (Hereinafter ICJ, 2010: paragraph No.) [2] ICJ 2010: paragraphs 24 and 27. [3] ICJ 2010: paragraph 48.

64 Ankara Bar Review 2013/ 1 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN statehood. Nor does it ask about the validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State.”[4] Therefore, “the task which the Court is called upon to perform is to determine whether or not the declaration of independence was adopted in violation of international law.”[5] According to a scholar of international law, the General Assembly’s question “is equivalent to asking whether the decision of the United Kingdom to make derivers Article Reviewed Peer drive left side of the road rather than the right is in accordance with international law. The answer in both cases is clear: international law simply does not address the issue.”[6] Yet given that the political and legal stakes in the case are so high especially for the big powers, the Court can be said to have tried to sidestep the critical issues that may easily deduce from the General Assembly’s question. “In fact what the Court did was to read literally the question it was asked, and thus to avoid opining on the major legal (and related policy) issues raised by the act of secession.”[7] After summarizing the factual background of the Kosovo war and the eventual declaration of independence, the Court starts addressing the main question and turns its attention, first of all, to the regulation of declarations of independence by general international law. The Court asserts that “during the eighteenth, nine- teenth and early twentieth centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State from which independence was being declared. [And] state practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence.” Accordingly, it concludes that “the declaration of independence of 17 February 2008 did not violate general international law.”[8] The Court, then, turns to reflecting on the legal relevance of the Security Council Resolution 1244 that established the United Nations Interim Admin- istration Mission in Kosovo (UNMIK). The Court concludes that “the purpose of Resolution 1244 was to establish a temporary, exceptional regal régime which superseded the Serbian legal order and which aimed at the stabilization of Kosovo, and that it was designed to do so on an interim basis…the Security Council did not serve for itself the final determination of the situation in Kosovo and remained silent on the conditions for the final status of Kosovo.”[9] As such the Court implied that the political structures Resolution 1244 had established were temporary and the members of the Security Council had the responsibility, or at least they were aware, that a final status should have been agreed on. In fact, this was the mission of the Special Envoy. The Court said:

[4] ICJ 2010: paragraph 51. [5] ICJ 2010: paragraph 56. [6] Hurst Hannum, “The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?” Leiden Journal of International Law 24, 2011, p. 156. [7] Robert Howse and Ruti Teitel, “Delphic Dictum: How Has the ICJ Contributed to the Global Rule of Law by Its Ruling on Kosovo?” German Law Journal 11, 2010, p. 841. [8] ICJ 2010: paragraphs 79 and 84. [9] ICJ 2010: paragraphs 100 and 114.

2013/ 1 Ankara Bar Review 65 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

In November 2005, the Secretary-General appointed Mr. Martti Ahtisaari as his Special Envoy for the future status process for Kosovo. This appointment was endorsed by the Security Council. Mr. Ahtisaari’s Letter of Appointment included, as an annex to it, a document entitled ‘Terms of Reference’ which

Peer Reviewed Article Reviewed Peer stated that the Special Envoy ‘is expected to revert to the Secretary-General at all stages of the process’. Furthermore, ‘the pace and duration of the future status process will be determined by the Special Envoy on the basis of consultations with the Secretary-General, taking into account the cooperation of the parties and the situation on the ground.’[10] The Court also reflected on the identity of those who declared independence, since the declaration of independence by the very institutions of the Interim Administration would have violated Resolution 1244. The majority of the Court, however, said that the authors of the declaration did not act within the legal order that UNMIK and the Security Council resolutions established. “The Court considers that the authors of that declaration did not act, or intend to act, in the capacity of an institution created by and empowered to act within that legal order but, rather, set out to adopt a measure the significance and effects of which would lie outside that order.”[11] For all the reasons explained above, the Court unanimously decided that “it has jurisdiction to give the advisory opinion requested;” by nine votes to five that it would “comply with the request for an advisory opinion;” and by ten votes to four that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law.”[12]

3. The ICJ’s Advisory Opinion And The Trnc’s Right To Claim Independence “Injustice in the end produces independence” Voltaire

The conclusions the Court reached have important ramifications for the Cyprus question, the final status of the island as well as the Turkish Republic of North- ern Cyprus. The TRNC does not only have the right to declare independence, which it did on 15 November 1983, but also the right to claim recognition. Among many others, the following legal, political, and moral reasons can be singled out: As it is clear from the Advisory Opinion, the Court opines that a group of people living in a certain area that has been devastated as a result of years of

[10] ICJ 2010: paragraph 65. [11] ICJ 2010: paragraph 105. [12] ICJ 2010: paragraph 123.

66 Ankara Bar Review 2013/ 1 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN conflict should have a final political status and have permanent political structures. A government established by UNMIK and the Security Council was an interim and exceptional measure in Kosovo. By the same token, since the establishment of the UN peacekeeping mission in Cyprus in 1964 (UNFICYP),

the island has been de facto divided between the two communities and a final Article Reviewed Peer solution to the problem is yet to be reached. Negotiations between the Turkish and Greek communities have been continuing since the early 1960s with no concrete or positive results. Negotiations, however, cannot continue indefinitely. Moreover, as explained below, the Greek Cypriot community’s voting down the Annan Plan demonstrates to the UN and world public opinion that the Greeks do not want to coexist with the Turks in a united Cypriot state. Taken together, the island should have a final status and the best way to achieve this is to recognize the TRNC and agree on a two-state solution. Although the ICJ Advisory Opinion is silent on political consequences of the Kosovo’s declaration of independence as well as on whether states should recognize this declaration or not, it is a strong confirmation and reaffirmation by the highest legal authority in the state system that “general international law contains no applicable prohibition of declarations of independence” and so the actual adoption of a declaration of independence does not violate “any applicable rule of international law.”[13] As such the declaration of independence by the TRNC does not violate international law; and now it is time for both Turkish Cypriots and Turkey to promote the cause of recognition. The mission of Mr. Martti Ahtisaari, appointed by the Secretary General and endorsed by the Security Council, was to find a solution to the impasse between the parties and define Kosovo’s final status. In his report to the UN Secretary General, who transmitted it to the Security Council, Mr. Ahtisaari concluded that “the negotiations’ potential to produce any mutually agreeable outcome on Kosovo’s status is exhausted. No amount of additional talks, whatever the format, will overcome this impasse…the only viable option for Kosovo is independence.”[14] The similarities of the negotiation process in Kosovo and Cyprus are striking. UN Secretary-General Kofi Annan had assumed a mission similar to that of Mr. Ahtisaari. One cannot stress enough the importance as well as legal and political ramifications of the Annan Plan for the island. The Annan Plan had envisaged a two-state federal republic, the Turkish Cypriot State and the Greek Cypriot State, and aimed at bringing a lasting solution to political problems on the island through a complex give-and-take formula between the two communities. The separate referenda in each community held on 24 April 2004. However the Greek Cypriot community voted down the plan (%75.3 against) whereas the Turks voted for (%64.9 in favor). This result should have consequences on the island, but sadly

[13] ICJ 2010: paragraphs 84 and 122. [14] ICJ 2010: paragraph 69.

2013/ 1 Ankara Bar Review 67 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

and unfortunately, the UN has shied away from its responsibilities and done nothing to correct the ongoing injustice. Fortunately, though, the fate of the Annan Plan and the referendum opens up the critical legal question of whether the Security-Council resolutions as well as the General-Assembly resolutions are

Peer Reviewed Article Reviewed Peer still valid or should be binding on the Turkish Cypriot community. Between 1964 and 2012 the UN did what it can and, sadly, it failed. So it is time for the UN to acknowledge the right of the Turkish Cypriot community to independence and recognition. In fact the Annan Plan had created a map of the constituent states. Therefore, the UN should honor the communal borders drawn by this map and recognize the independence of the “Turkish Cypriot State.” The Court in the Kosovo Advisory Opinion referred to Cyprus and said: Contemporaneous practice of the Security Council shows that in situations where the Security Council has decided to establish restrictive conditions for the permanent status of a territory, those conditions are specified in the relevant resolution. For example… the Security Council, in its resolution 1251 of 29 June 1999, reaffirmed its position that a ‘Cyprus settlement must be based on a State of Cyprus with a single sovereignty and international personality and a single citizenship, with its independence and territorial integrity safeguarded’. The Security Council thus set out the specific conditions relating to the permanent status of Cyprus.”[15] However, in the Advisory Opinion, the Court does not discuss the legality of the TRNC, political consequences of the declaration of independence by the authorities of the TRNC, the situation on the ground, or the process of negotiations since the early 1960s. Nor does the Court discuss the developments since the Security Council passed Resolution 1251. The political and legal arguments made in this paper override any possible opposition to the TRNC’s declaration of independence and its existence as a separate and functioning state on the island. In fact, by voting down the Annan Plan, in 2004 the Greek Cypriots openly communicated to the UN and world public opinion their political will; that is, they do not want to coexist with the Turkish community in a united Cypriot state. The political will of the Greek Cypriot community should also be respected by the UN as well as by the guarantor states. One can easily deduce from the Greek community’s political will that the Turkish community has been left with no choice but to ask the international community to recognize the TRNC. Just as the Greek community has the right to have their own state, the Turkish community should also have the right to “pursue life, liberty and happiness” under their own state. Therefore, enforcing the one“ state solution” on the Greek community as well as on the Turkish community would be both politically unjust and legally problematic.

[15] ICJ 2010: paragraph 114.

68 Ankara Bar Review 2013/ 1 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

Therefore, a Cyprus with two states is the best solution to the current impasse. As Tozun Bahcheli correctly pointed out more than ten years ago, “without the presence of a sense of shared identity and a modicum of trust between the two communities, there is no reason to expect that a bicommunal federation would fare any

better than the power-sharing experiment of the early 1960s. A negotiated solution Article Reviewed Peer for two independent states is worth considering. There is no reason to think that a two-state settlement will make it any harder than other solutions for the eventual reconciliation of the Greek and Turkish communities.”[16] “The situation on the ground,” and the circumstances under which the declaration of independence was issued have also been important for the Court in taking its final decision on Kosovo. The Court refers to the “Letter of Appointment” extended to Mr. Ahtisaari by the Secretary General. Citing the letter the Court said: “the pace and duration of the future status process will be determined by the Special Envoy on the basis of consultations with the Secretary-General, taking into account the cooperation of the parties and the situation on the ground.”[17] Given that the situation in Kosovo did not change after a long negotiation process; the Court naturally opines that the authors of the declaration of independence wanted to change this impasse. The Court concludes: the“ declaration of independence reflects the awareness of its authors that the final status negotiations had failed and that a critical moment for the future of Kosovo had been reached… The authors of the declaration of independence emphasize their determination to ‘resolve’ the status of Kosovo and to give the people of Kosovo ‘clarity about their future’.”[18] Again the similarities between the Kosovo issue and the Cyprus question are striking. The problems and the conflict between the two communities on the island had started in 1963; and almost twenty years’ of negotiations had failed. However, the Turks and the Greeks were living separately on the island. This “situation on the ground” was given a legal status by the authors of the TRNC’s declaration of independence. The very declaration reads that: “developments which have taken place in Cyprus for the last 20 years, and the critical stage which these developments have reached at present, necessitate the placing of certain facts with clarity before world public opinion...By pressing the legitimate and irrepressible will of the Turkish Cypriot People, in the light of the aforesaid realities, convictions and necessities we hereby declare before the World and before History the establishment of the Turkish Republic of Northern Cyprus as an independent State.”[19] At the time the UN was established, the basic political and moral norm of the new world order was declared to be self-determination; that is those nations

[16] Tozun Bahcheli, “Searching for a Cyprus Settlement: Considering Options for Creating a Federation, Confederation, or Two Independent States.” Publius: The Journal of Federalism 30 (1-2), 2000, p. 216. [17] ICJ 2010: paragraph 65. [18] ICJ 2010: paragraph 105. [19] TRNC, “Declaration of Independence by Turkish Cypriot Parliament on 15 November 1983.”

2013/ 1 Ankara Bar Review 69 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

under the colonial rule would become equal members of the “family of nations.” Accordingly, Article 1 of the UN Charter stipulates that one of the four critical purposes of the UN is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Besides, in an

Peer Reviewed Article Reviewed Peer effort to further emphasize, and in fact to realize, this basic norm Articles 55 enumerates critical functions of the UN: With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. The Court, although did not discuss the issue in detail, referred to the right of self-determination in the Advisory Opinion. It said: “During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation… One of the major developments of international law during the second half of the twentieth century has been the evolution of the right of self-determination.”[20] When the UN was established in 1945, the island of Cyprus was under the rule of the British empire. As such, both the Greek and Turkish Cypriot communities have had the right to claim independence because of this very basic norm. The 1960 agreements among Turkey, Greece, and Great Britain were so crafted to push (and maybe force) the two communities to live together. It was almost a forced marriage and, sadly, ended in divorce within three years. Now, it is time for the international community to honor its promise to extend the right of self determination to both the Greek and Turkish communities. f) In 1960, when the agreements were signed among the three states for geostrategic reasons, one of the main communities on the island was the Turkish Cypriots. Out of political and ethical norms of “social contract,” the Turkish side has the right to reclaim its right to self determination just because the so-called Republic of Cyprus did never honor its duties to provide the Turks with the necessary means to pursue a decent life on the island. The Greek authorities claiming to have jurisdiction on the entire island are still in total ignorance of the needs of the Turkish community and they even imposed sanctions on the Turkish Cypriots in an effort to force them to give up their basic rights. Therefore, the international community should accept the right of the Turkish community to self determination and recognize the TRNC.

[20] ICJ 2010: paragraphs 79 and 82.

70 Ankara Bar Review 2013/ 1 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

This raises the issue of the Turkish community’s right to remedial secession. This is not a legal or political, but basically a moral argument. The remedial right approach “includes among the grounds for the unilateral right to secede the following: (a) large-scale and persistent violations of human rights, (b) unjust tak-

ing of the territory of a legitimate state, and (c) in certain cases, the state’s persistent Article Reviewed Peer violation of agreements to accord a minority group limited self-government within the state.”[21] It is an established fact that at least since 1963, basic human rights of Turkish Cypriots have been grossly and continuously violated by the authorities of the so-called “Republic of Cyprus.” And this injustice cannot be corrected without submitting the right to independence of the Turkish community, because neither the Cyprus Republic nor the UN has been able to stop the persistent violations of basic human rights on the island. In fact the ICJ touches on the remedial-secession right of Kosovo in its advisory opinion but does not attempt to elaborate on this right. The advisory opinion reads that: Differences existed regarding whether international law provides for a right of ‘remedial secession’ and, if so, in what circumstances. There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of ‘remedial secession’ were actually present in Kosovo. The Court considers that it is not necessary to resolve these questions in the present case. The General Assembly has requested the Court’s opinion only on whether or not the declaration of independence is in accordance with international law. Debates regarding the extent of the right of self-determination and the existence of any right of ‘remedial secession’, however, concern the right to separate from a State. As the Court has already noted and as almost all participants agreed, that issue is beyond the scope of the question posed by the General Assembly.[22] g) The TRNC meets all the criteria to become a state“ ” and so to get recognized by the international community as such. The basic legal document that sets out the criteria for recognition is the “Montevideo Convention on the Rights and Duties of States.” Nineteen American states signed the Convention in 1933 and it came into force in 1934.[23] According to Article 1 of the Convention: “the state as a person of international law should possess the following qualifications: a) permanent population; b) a defined territory; c) government; d) capacity to enter into relations with other states.” First of all, the Cypriot Turks have been a group living on the island at least

[21] Allen Buchanan, “Secession” in Stanford Encyclopedia of Philosophy, 2003. [22] ICJ 2010, paragraphs 82-83. [23] Cedric Ryngaert and Sven Sobrie, “Recognition of States: International Law or Realpolitik? The Practice of Recognition in the Wake of Kosovo, South Ossetia, and Abkhazia.” Leiden Journal of International Law 24, 2011, pp. 472-474.

2013/ 1 Ankara Bar Review 71 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

for 441 years now, and as of December 2011 the TRNC has a population of 294,906.[24] Second, the TRNC has a defined territory (either actually drawn by the Turkish side in 1974 or legally drawn in the Annan Plan and accepted by the negotiating authorities in 2004). Third, the Turkish Cypriot community

Peer Reviewed Article Reviewed Peer has been administering itself through its own institutions since 1964 and the TRNC has had effective governments since its declaration of independence in 1983. Finally, the TRNC has the capacity to enter into relations in the system of states. The TRNC is not only recognized by Turkey, but also participates in the work of the Organization of Islamic Conference (OIC) that currently has 57 members. Moreover, from a practical point of view, the TRNC has been negotiating with the Greek Cypriot State as well as such organizations as the UN and EU on the status of the island. Furthermore, Australia, France, Germany, and the EU have “representative offices” in the TRNC. Therefore, given the criteria of the Montevideo Convention, the TRNC pos- sesses all the qualifications of a state and deserves full recognition. Interestingly enough, according to Article 3 of the Montevideo Convention, “the political existence of the state is independent of recognition by other states.” Article 3 further explains that “even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.” And this is what exactly the TRNC has been doing since 1983. Although the recognition of the TRNC by other states is important, it should be noted that the TRNC “exists independently” of recognition and the nature of political treatment, whatever it might be, of other states.

4. The Greek Administration Of Southern Cyprus And The Icj’s Advisory Opinion “Sometimes a noble failure serves the world as faithfully as a distinguished success” Edward Dowden

The Greek Administration filed a 70-pagewritten “ statement,” dated 3 April 2009, with the ICJ about the Kosovo case where it said “Resolution 1244 does not render the declaration of independence lawful.” Moreover, according to the Greek Administration, “Kosovo does not meet the criteria for statehood in international

[24] TRNC, “Initial Results of the Population Census in THE TRNC Declared to Be 294 Thousand 906 (12.12.2011).

72 Ankara Bar Review 2013/ 1 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN law and is not an independent sovereign state.”[25] The Greek Administration, with a letter dated 8 July 2009, also filed “written comments” with the ICJ where it not only reiterated its position but also referred to the TRNC: “the so-called Turkish Cypriot authorities made a declaration purporting to create an independent

state in the northern part of Cyprus… The declaration was incompatible with the Article Reviewed Peer principle of territorial integrity and with the 1960 Treaty of Guarantee.”[26] Yet it is clear from the Greek Administration’s lengthy defense of Serbia that the Greek Cypriots were not happy that the very issue of declaration of independence was before the ICJ. Naturally, the Kosovo Advisory Opinion disappointed the Greek Cypriots. As a matter of fact, on 26 July 2010, the Foreign Minister of the Greek Administration, Markos Kyprianou, said that the Greek Cypriots “won’t be lead to recognize the independence of Kosovo. Last week’s announcement of the positive verdict of the UN International Court of Justice regarding the legality of Kosovo’s independence will not affect [our] position. The decision of the ICJ is restricted only to the specific question which refers to the procedure of the declaration itself. At the same time we believe that when a territorial integrity of a country is concerned, the issue is to be resolved by means of talks and negotiations, and not by unilaterally declaring independence.”[27] The international media and scholars of law have not escaped the worry of the Greek Cypriot Administration about the case. For example, Quentin Peel from Financial Times reported that “Erato Markoulli [the then Foreign Minister of the GASC] said her country ‘cannot and will not recognise a unilateral declaration of independence’. Ms. Markoulli denied the stance had anything to do with northern Cyprus, the Turkish-ruled part of the island whose independence has been recognised only by Turkey. Yet that is clearly the most threatening precedent. If Kosovo wins recognition from the US and UK, how long will they refuse to do the same for the self-styled Turkish Republic of Northern Cyprus? Many EU members now regret allowing Cyprus to join without resolving its internal division. The Greek Cypriots rejected Kofi Annan’s UN plan for unification, after the Turkish Cypriots had voted heavily in favour in 2004.”[28] As Ker-Lindsay argues, the Advisory Opinion also blessed the policies of Russia vis-à-vis South Ossetia and Abkhazia. “In upholding the right of Kosovo to declare independence, the ICJ has also proved a much needed boost to Russia’s claim that its decision to recognize South Ossetia and Abkhazia was justified. Moscow can now say that as their declarations were not deemed to be illegal it has the sovereign right to recognize these territories.”[29] In the same vein, Turkey’s recognition of

[25] http://www.icj-cij.org/docket/files/141/15609.pdf, pp. 49-50. [26] http://www.icj-cij.org/docket/files/141/15684.pdf, paragraph 20. [27] http://www.novinite.com/view_news.php?id=118525 [28] Quentin Peel, “Greek Cyprus watches Kosovo’s move.” Financial Times, February 6, 2008. [29] James Ker-Lindsay, “Not Such a sui generis Case After All: Assessing the ICJ Opinion on Kosovo.” Nationalities Papers 39 (1), 2011, p. 7.

2013/ 1 Ankara Bar Review 73 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

the TRNC is completely in conformity with the rules of general international law. In fact Ker-Lindsay also touches on the importance of the Advisory Opin- ion for Turkey; he says “in Turkey and northern Cyprus there was considerable speculation that the opinion could open the way for recognition of the TRNC.”[30]

Peer Reviewed Article Reviewed Peer From the discussion above, it is clear that the universal recognition of the TRNC is a matter of time. It is not a question of how or why, but when. In this process, it would be fruitful to provide the Turkish side with some policy suggestions.

5. In Place Of A Conclusion: Policy Suggestions For Both Turkey And The Trnc “There is no substitute for hard work” Thomas Edison

Given the outcome of the Annan Plan referendum, the TRNC should apply to the UN for becoming a member of the organization. The application may be rejected or disregarded; but the leaders of the TRNC should not hesitate to keep this issue on the UN agenda and, as a matter of fact, on the agenda of many international organizations. Toward strengthening its bid for full recognition by the international community, the TRNC should also apply to the International Monetary Fund (IMF) and the World Bank as well as NGOs such as Eurovision and UEFA to become a member. In fact, UN membership is not required for becoming a member of the World Bank. For example Kosovo has membership in all five groups of the Bank.[31] As Dolidze argues “collective recognition in the form of acceptance to the United Nations, and to a lesser extent to other international organizations, and recognition by other international organizations may impact upon the whole question of statehood.”[32] Turkey is lavish with recognizing newly independent states and, in fact, attempts to become one of the first few states that recognize a declaration of independence. Turkey should stop recognizing new states unless they recognize the TRNC. It is a fair question to ask why, for example, Kosovo and Bosnia have not recognized the TRNC. In fact, when the problems arose between Kosovo and Serbia back in 1999, Turkey provided with Kosovo all the support it could, including joining the NATO’s mission. “From the outset Turkey’s

[30] James Ker-Lindsay, “Not Such a sui generis Case After All: Assessing the ICJ Opinion on Kosovo.” Nationalities Papers 39 (1), 2011, p. 6. [31] World Bank, “World Bank Group Members,” 2012. [32] Anna V. Dolidze, “Can Kosovo Be a Precedent for South Ossetia and Abkhazia: Recognizing Differences in Dynamics of Recognition.” Cornell International Affairs Review 2 (2), 2009, p. 42

74 Ankara Bar Review 2013/ 1 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN support for Kosovo’s independence was very clear and strong.”[33] However, Kosovo is yet to recognize the TRNC. Turkey and the TRNC should pursue an active diplomacy especially before small and medium states, because the number of recognitions does matter.

Not only big powers but also small and medium states can make a difference Article Reviewed Peer in the process of TRNC’s getting recognized as a full-fledged member of the family of nations. Every now and then the news surfaces in the international and national media alike that the TRNC will unite with Turkey and become its 82nd city or province. Unification of the TRNC with Turkey would be neither a good policy nor a good tactic toward promoting their interests. Because, on the one hand, the constituent community of the island is the Turkish Cypriots and not the Turks per se; that is, the international community can and eventually will recognize the TRNC but would not accept the unification of the TRNC with Turkey. This also would be interpreted as annexation,“ ” and such the Turkish side would face a strong reaction of the international community, since modern international law prohibits states to expand through “annexation.” In addition, this policy would contradict the 1960 agreements, regardless of whether they are still in force. Therefore, Turkey should focus on increasing its diplomatic pressure on states toward helping the TRNC to gain full recognition. The TRNC, on the other hand, should be more active on world stage and turn every opportunity into a window through which it can better explain its cause. Both Turkey and the TRNC should give priority to training able international lawyers as well as scholars of public international law. Providing students with more and better scholarships, establishing research centers, and setting up graduate studies are among many fruitful approaches. In addition, opinions and decisions of the ICJ should be more closely studied, for, although a universal acceptance of the optional clause of the ICJ Statue is yet to be achieved, the Court shapes and shoves international law to an unprecedented extent in the system thanks to its critical decisions on issues ranging from the use of force to environment. Turkey should increase its diplomatic efforts before the members of the Organization of Islamic Conference in an effort to get the TRNC admitted as a full member of the organization that would enormously help the TRNC to gain recognition by other states. At the thirty-first session of the Islamic Conference of Foreign Ministers, held in Istanbul between June 14-16, 2004, the organization adopted a resolution on “the Situation in Cyprus” and, having acknowledged that “a new situation has emerged in Cyprus following the referenda on 24 April 2004,” decided that “the Turkish Muslim people of Cyprus should

[33] Doğu Ulaş Eralp, “Kosovo and Turkey: What Lies Ahead?” SETA Policy Brief. Ankara: SETA, 2010, p. 6.

2013/ 1 Ankara Bar Review 75 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

continue to participate in the work, activities and meetings of all OIC organs under the name envisaged by the UN Secretary-General’s settlement plan.”[34] (OIC 2004). Although the Turkish Cypriot community has been participating in the work of the OIC under the name of “Turkish Cypriot State,” this name however is yet

Peer Reviewed Article Reviewed Peer to appear in the final communiqués of the summit meetings as well as foreign ministers meetings.[35] Nor has the OIC accepted “Turkish Cypriot State” as a full member of the organization. Such membership would really strengthen the hand of the Turkish community in pursuing the policy of universal recognition. Turkey and the TRNC should also intensify their efforts to get all the restrictions and embargoes on the Turkish Cypriots lifted that have been imposed by the Greek community as well as the international community. As succinctly put by the Ministry of Foreign Affairs of the TRNC, “these illegal and immoral embargoes imposed are in blatant violation of the UN Charter and in contraven- tion of the relevant international human rights instruments.”[36] Therefore, not only before IGOs but also before humanitarian organizations the Turkish side should pursue an active diplomacy. Turkey and the TRNC should protect, and in the long-run not give up, their right to natural resources on and around the island of Cyprus. Natural gas and oil reserves have turned the Eastern Mediterranean into a region of strategic competition between not only regional powers but also the great powers, including the European Union. To exploit the resources in a fashion to benefit the Turkish community on the island, Turkey should continue its cooperation with the TRNC in the area of natural gas and oil exploration. Moreover Turkey should continue supporting the normalization of relations between régimes in the region. The European Union is an important actor in this process. Its importance emanates not only from its political and economic power but also its role to play for the future of the island and the Eastern Mediterranean region. There- fore, Turkey should make its peace with the EU’s policies in the membership process; that is, Turkey should decide whether it really wants to become a full member of the organization. If it could reach a final decision, that would help the Turkish side to make the necessary adjustments and create a long-term plan about the Cyprus issue. The declarations of independence by Kosovo, South Ossetia, and Abkhazia and the subsequent events on their recognition demonstrated that at least one

[34] Organization of Islamic Conference, Resolutions on Political Affairs, Adopted by the Thirty-First Session of the Islamic Conference of Foreign Ministers (Session of Progress and Global Harmony), Istanbul, Republic of Turkey, 14-16 June 2004, Resolution No.2/31-P. [35] Nejat Doğan, “Uluslararası Örgütler Nezdinde Kıbrıs Sorunu,” Uluslararası İlişkilerde Güncel Konular ve Türkiye. Cenap Çakmak, Nejat Doğan, Ahmet Öztürk (Eds.) Ankara: Seçkin, 2012, pp. 33-36. [36] “Turkish Cypriot Isolation” http://www.the TRNCinfo.com/index.asp?page=276, 2012.

76 Ankara Bar Review 2013/ 1 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN big power must recognize the new state and also support the cause of this state at the international platforms such as the UN Security Council. Currently Turkey and the TRNC are without such a support. Even if Russia (because of its religious and historical ties with the Greeks) and China (out of strategic reasons) may refrain from supporting an independent Turkish Cypriot State; Peer Reviewed Article Reviewed Peer the United States, Britain and France may support for their political, strategic, and economic interests in the region. In fact a two-state solution on the island would serve the interests of the US and Britain in that their basic policy has been to maintain the balance of power in the region. Therefore, Turkey should intensify its diplomatic efforts before the permanent members of the Security Council (P-5 states) in an attempt to cooperate on strategic issues in the region and help the TRNC to gain universal recognition.

2013/ 1 Ankara Bar Review 77 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

REFERENCES

Peer Reviewed Article Reviewed Peer Bahcheli, Tozun (2000). “Searching for a Cyprus Settlement: Considering Options for Creating a Federation, Confederation, or Two Independent States.” Publius: The Journal of Federalism 30 (1-2): 203-216. Buchanan, Allen (2003). “Secession” in Stanford Encyclopedia of Philosophy. http://plato. stanford.edu/entries/secession/ Doğan, Nejat (2012). “Uluslararası Örgütler Nezdinde Kıbrıs Sorunu.” Uluslararası İlişkilerde Güncel Konular ve Türkiye. Cenap Çakmak, Nejat Doğan, Ahmet Öztürk (Eds.). Ankara: Seçkin. 9-44. Dolidze, Anna V. (2009). “Can Kosovo Be a Precedent for South Ossetia and Abkhazia: Recogniz- ing Differences in Dynamics of Recognition.” Cornell International Affairs Review 2 (2): 42-45. Eralp, Doğu Ulaş (2010). Kosovo and Turkey: What Lies Ahead? SETA Policy Brief. Ankara: SETA. GASC (2009a). http://www.icj-cij.org/docket/files/141/15609.pdf GASC (2009b). http://www.icj-cij.org/docket/files/141/15684.pdf GASC (2010).http://www.novinite.com/view_news.php?id=118525 (Retrived on October 11, 2012). Hannum, Hurst (2011). “The Advisory Opinion on Kosovo: An Opportunity Lost, or a Poisoned Chalice Refused?” Leiden Journal of International Law 24: 155-161. Howse, Robert and Ruti Teitel (2010). “Delphic Dictum: How Has the ICJ Contributed to the Global Rule of Law by Its Ruling on Kosovo?” German Law Journal 11: 841-845. ICJ (2010). “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo.” Advisory Opinion, 22 July 2010, General List No. 141. Ker-Lindsay, James (2011). “Not Such a sui generis Case After All: Assessing the ICJ Opinion on Kosovo.” Nationalities Papers 39 (1): 1-11. OIC (2004). Organization of Islamic Conference, Resolutions on Political Affairs, Adopted by the Thirty-First Session of the Islamic Conference of Foreign Ministers (Session of Progress and Global Harmony), Istanbul, Republic of Turkey, 14-16 June 2004, Resolution No.2/31-P. http://www.oic-oci.org/english/conf/fm/31/31%20icfm-pol1-eng.htm#RESOLUTION NO. 2/31-P (Retrieved on October 10, 2012). Peel, Quentin (2008). “Greek Cyprus watches Kosovo’s move.” Financial Times. February 6, 2008. Ryngaert, Cedric and Sven Sobrie (2011). “Recognition of States: International Law or Realpolitik? The Practice of Recognition in the Wake of Kosovo, South Ossetia, and Abkhazia.” Leiden Journal of International Law 24: 467-490. TRNC (1983). “Declaration of Independence by Turkish Cypriot Parliament on 15 November 1983.” http://www.atcanews.org/archive/declarationofindependence.pdf (Retrieved on October 11, 2012).

78 Ankara Bar Review 2013/ 1 Ramifications Of The ICJ Kosovo Advisory Opinion For The Turkish Republic Of Northern Cyprus / DOĞAN

TRNC (2011). “Initial Results of the Population Census in THE TRNC Declared to Be 294 Thou- Article Reviewed Peer sand 906 (12.12.2011).” http://www.the TRNCinfo.com/tanitma/en/index.asp?sayfa=haberde tay&newsid=1115 (Retrieved on October 11, 2012). TRNC (2012). “Turkish Cypriot Isolation” http://www.the TRNCinfo.com/index.asp?page=276 (Retrieved on October 10, 2012). World Bank (2012). “World Bank Group Members.” http://web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/ORGANIZATION/BOD EXT/0,,contentMDK:20122871~pagePK:64020054~piPK:64020408~theSitePK:278036~isC URL:Y,00.html (Retrieved on October 11, 2012).

2013/ 1 Ankara Bar Review 79

PEER REVIEWED ARTICLE

A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks

Emriye Özlem ŞEKER*

* Maastricht University (LL.M.), 2012.

A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER Peer Reviewed Article Reviewed Peer

ABSTR ACT

The aim of this thesis is to compare the laws in the EU and Turkey on trademark dilution in the light of case law. In the first part, EU law is explained under the headings of Trademark Directive, Trademark Regulation and Benelux trademark law. In the second part, Turkish trademark on dilution examined. The comparison part focused on the similarities and differences between the sides mainly which mainly focus on reputation, likelihood of confusion, detri- mentally to distinctive character or reputation, due cause and the proof requisites to anti-dilution protection. It was concluded that, although European Union and Turkey has different structures, policies and aims in trademark law; political relations between parties makes the trademark laws against dilution develop in similar way. Keywords: European Union, Turkey, trademark law, dilution, Decree Law 556, Trademark Directive, Trade- mark Regulation.

2013/ 1 Ankara Bar Review 83

A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Part I. Introduction raditionally, the aim of a trademark is showing the commercial origin of the product. However with the expansion of the transportation, communication and high amount of investments in trademark images in Tglobal dimension; this aim becomes inadequate for the new coming functions. Article Reviewed Peer Anti-dilution protection aims to protect the marketing power of the trademark which derives from its brand image. It protects trademarks against the activities which may have the effect of lessening the exclusivity and brand image shielded by trademarks. There are two types of dilution; dilution by blurring and dilution by tarnishment. Dilution by blurring occurs if an identical or similar sign to a registered trademark with reputation with a strong message to public is used on similar or non-similar goods. Then the earlier trademark with reputation loses its power to arise immediate association with the goods it is registered and used to[1]. That risk also called “gradual whittling away” or “dispersion of identity”. Confusion on the origin of goods and services is not required. Dilution by tarnishment means the impairment of a mark’s reputation through inappropriate or negative associations. Public will not be confused; but through the link made between the later mark and earlier trade mark the reputation of the latter will be harmed. Tarnishment generally occurs if a trade mark with reputation or similar mark is used in relation to inferior products or in an unwholesome context, where such use without the trade mark owner’s consent will evoke negative associations with the famous mark in the minds of the public[2]. 1. Functions of trademark 1.1 Indicator of origin Main function of trademark is to show the commercial origin of product or service and to differentiate them from the goods and services of other entities. Trademarks conceptualize the abstract notion of a product and consequently enable the individualization of the product by creating the tie between a product and its mark[3]. This traditional function of trademark is not as crucial as it was before. Nowadays it is more important for consumers that trademarks meet their expectations from types and the characteristics of the goods and services.

[1] Guy Tritton. Intellectual Property in Europe. 3rd ed. Sweet & Maxwell, London. 2008. p.342. [2] Sabine Casparie-Kerdel. Dilution disguised: has the concept of trade mark dilution made its way into the laws of Europe?, E.I.P.R. 2001, 23(4), 185-195. [3] Spyros M. Maniatis, Anselm Kamperman Sanders. A consumer trade mark: protection based on origin and quality, E.I.P.R. 1993, 15(11), 406-415.

2013/ 1 Ankara Bar Review 85 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

1.2 Distinguish goods and services Trademark enables the relevant group of public to distinguish the goods and services of one enterprise from others and to recognize the concerned goods and services when he/she sees the mark[4]. Thus, trademark prevents the goods

Peer Reviewed Article Reviewed Peer and services from being anonymous in market and individualizes them. There exist a close relation between trademarks functions of indicating the origin and distinguishing goods and services. It is claimed that the function of indicating origin also includes the aptness to distinguish and identify goods and services[5], or, these two functions are the substantive functions of trademark and should be protected together[6]. 1.3 Guarantee of consistent quality The importance of the first two functions lost their importance by time. Now, consumers consider the trademark as a sign guaranteeing a level of the quality of the goods or services which the consumer experienced before and does not disappoint consumer in this regard. This function enables consumers to save time and effort, then they assume that the quality of the good or service is same as before; thus they do not have to receive information each time. Also, this increases transparency in market and enables competition; consequently protects public welfare[7]. It should be noted that this function does not protected separately but within the scope of first two essential functions. 1.4 Advertisement Advertisement ensures communication between consumer and the producer. It aims to economically impress the targeted consumer group and to direct them in accordance with the objectives of the advertisers for purchasing of goods and services. Advertisement made by enterprise itself is more important, then consumer regards the enterprise as his counterpart. Trademark represents the brand image of the good or service and advertises it directly to consumer. Thus, alongside with the previous functions, trademark has a function of advertising too.

[4] Hanife Dirikkan. Tanınmış Markanın Korunması, Seçkin Yayıncılık 2003, Ankara. p. 11. [5] Spyros M. Maniatis, Anselm Kamperman Sanders. A consumer trade mark: protection based on origin and quality, E.I.P.R. 1993, 15(11), 406-415. [6] Hanife Dirikkan. Tanınmış Markanın Korunması, Seçkin Yayıncılık 2003, Ankara. p. 12. [7] Hanife Dirikkan. Tanınmış Markanın Korunması, Seçkin Yayıncılık 2003, Ankara. p. 16.

86 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

2. History 2.1 Odol Although dilution is first discussed and codified in the US, earliest case related to dilution was seen in German Courts in 1925. In Odol case, owner of the

trademark “Odol” for mouthwash sued the defendant for using same the Article Reviewed Peer trademark for various steel products. The court held that although they are unrelated goods using the same trademark; it is an immoral act-gegen die gutten sitten. Since when public hears the word “odol”, they will immediately associate this name with plaintiff’s products and the good quality thereof. The court concluded that the owner of the mark has an interest in “seeing that its mark is not diluted –verwassert-: it would lose its selling power if everyone used its “odol” as the designation of their goods. 2.2 Schecter Trademark protection against dilution is first stated in Schecter’s article of The Rational Basis of Trademark Protection (Harvard Law Review, 1927) without naming it openly as “dilution”. In this article, Schecter proposed a quasi-property protection for famous trademarks wider than the traditional trademark protection which protects the confusion regarding the origin of the product or service. Schecter claimed that since trademarks are more than indicator of origin, they shall be protected against dilutive acts of the defendants which cause decrease in the distinctive effect of trademark in the market. Thus, protection related to only function of showing origin is not enough for trademarks with reputation. According to Schecter, trademark is not only the indicator of goodwill but also the most effective agent for the creation of good will, indicator of an anonymous and impersonal guaranty of satisfaction in public mind; it creates a desire for further satisfactions. He claimed that the more distinctive the trademark is, the more it sells. Thus, Schechter criticized the approach which takes the goodwill as main property and substance of protection, proposed the approach which regards the trademarks as a symbol of this protected matter. The main reason to protect a trademark against dilution for Schecter is that, once the trademark become known to public as a constant and uniform source of satisfaction its owner should have a right to expand his rights to prevent the use of its trademark in other fields which destructs the uniqueness of the trademark[8]. Schechter calls this widening as “the natural expansion of his trade”. In short, Schecter argued that apart from showing the origin, trademark also has selling power, which is independent from its classical function. This selling power is independent from the goods or services the trademark used for and comes from its own uniqueness and singularity in public’s eyes. This uniqueness

[8] Frank I. Schechter, The Rational Basıs of Trademark Protection, 40 Harv. L. Rev. 813. April, 1927.

2013/ 1 Ankara Bar Review 87 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

of trademark impaired or vitiated by the use of on related or unrelated goods. Thus owner needs a protection against this gradual whittling away. 2.3 The U.S. Despite the fact that dilution theory was first generated in Europe, it has been Peer Reviewed Article Reviewed Peer developed and codified in the U.S. As it stated above, Schecter introduced the dilution theory in his article The Rational Basis of Trademark Protection in 1927. In 1947, first dilution statue was enacted in Massachusetts. Federal Dilution Act was enacted in 1995 and it created section 43(c) of the Lanham Act. Before this Act, approximately 25 states had laws which are prohibiting trademark dilution[9]. The definition of dilution in U.S. law is; lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of competition between the owner of famous mark and other parties, or likelihood of confusion, mistake or deception[10]. Differ- ent from Europe, the U.S. Law uses the word “famous” mark and in addition to that; “likelihood of confusion” or “competition between the parties” is not required for protection against dilution[11].

Part Ii. European Union

3. TRADEMARK DIRECTIVE Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (Trademark Directive) is the first step taken by the European Commu- nity towards to a trademark policy in compliance with the establishment of the internal market. With this Directive, European Union aimed to harmonize the trademark laws of the member states. Directive mostly influenced from the Benelux trademark law which had a harmonized trademark system at the time Directive was drafting. Anti-dilution law under Benelux trademark law will be discussed in detail in the later chapters. Directive does not explicitly use the term dilution; however articles 4/3, 4/4(a) and 5/2 may be regarded as the dilution related part of Directive. Then these articles stipulate protection for a mark with a reputation against its use on dissimilar goods or services. Competition or confusion requirement is not clear here as it is in Lanham Act of the U.S. They also differ from Article 4/2(d) which provides protection for well-known marks[12].

[9] Soyoung Yook. Trademark Dilution in European Union, 11 Int’l Legal Persp. 223, 2001. [10] §45 of the Lanham Act (1995). [11] 15 U. S. C. § 1127, § 45 of the Lanham Act (1995). [12] Soyoung Yook. Trademark Dilution in European Union, 11 Int’l Legal Persp. 223, 2001. p. 12.

88 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Art. 4/3 of the Directive is a mandatory provision for Member States. According to this article a trademark shall not be registered, or, if registered should be declared invalid, if it is an identical or similar sign to an earlier Community trademark with reputation, and is or has been registered for non-similar goods and services

without due cause, thereby taking unfair advantage of, or being detrimental to, Article Reviewed Peer the distinctive character or the repute of the earlier Community trade mark. Two possible outcomes of this use are; being detrimental to distinctive character or repute of Community trademark with reputation. This article provides protection for only Community trademarks with earlier registration and reputation. Article 4/4(a) is similar to Art. 4/3; but it provides optional protection for national trademarks under the same situations. So, Member States may provide further protection for national trademarks with reputation against later marks with identical or similar sign on dissimilar good and services which would be detrimental to distinctive character or repute of the earlier national trademark with reputation. Art. 5/2 also provides optional protection to trademarks with reputation in Member States. Different from Art. 4/3 and 4/4(a); Art. 5/2 does not distinguish the national and Community trademarks, mentions the consent of proprietor of the earlier trademark with reputation and using the term of “use in the course of trade”. Art. 5/2 of Directive only mentions later use on non-similar goods and service; however as for Adidas Benelux BW v. Fitnessworld Trading decision[13], Member States, where it exercises the option provided in art. 5/2 of Directive, should grant protection to proprietor of earlier mark against signs similar or identical in relation to both identical and similar or goods or services not similar. Common requirement for protection against dilution under Trademark Direc- tive can be divided as such; 3.1 Reputation For Art. 4/3, 4/4(a) and 5/2 to apply, earlier trademark should be registered and have reputation. “Reputation” stated here is not equal to well-known trademarks in the context of Art. 6bis of Paris Convention or Art.16 of TRIPS. These well- known trademarks are already protected with a separate article of Directive; Art. 4/2(d). Then the aim of Art. 4/2(d) Directive is different from the three article of Directive which aims to protect marks with reputation against use on different goods or services which they are registered. Special aim of Paris Convention and TRIPS is to protect well-known marks in countries where they are unregistered. This protection granted to well-known marks in an exception and it is relatively rigid compared to protection granted to marks with reputation.

[13] Case C-408/01 Adidas Benelux BW v. Fitnessworld Trading, para. 22.

2013/ 1 Ankara Bar Review 89 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Reputation requested in Trademark Directive is clarified in General Motors Corp. v. Yplon SA decision of ECJ[14]. According to this case, earlier trademark should be known to significant part of the relevant sector of the public. It is sufficient that mark has reputation in a substantial part of a Member State. As for ECJ, percentage of the public required for mark to be known cannot be Peer Reviewed Article Reviewed Peer inferred from Directive. “Sufficient degree” required by the Directive is that degree of the knowledge that public has, in order to make association between earlier mark with reputation and later mark for non-similar goods and services and earlier mark to be damaged. In examining this degree reputation, national courts must take into consideration all the relevant facts of the case; in particular the market share held by the trademark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it. Threshold for assuming that a trademark has the necessary reputation is remarkably low in the EU[15]. 3.2 Likelihood of confusion Requirement of likelihood of confusion does not stated in articles 4/3, 4/4(a) and 5/2. It is claimed that it may seem paradoxical that confusion is required for similar good but not for non-similar goods[16]. However the articles are not conflicting, because they protect the different functions of the trademark. The protection against similar goods and services requires confusion, since it is related to the trademark’s function of indicating to origin and distinguishing goods and services. Whereas protection against dilution is not purely related to trademark’s function of indicating origin; but mostly the distinctive power of trademark as a result of the investment done by the proprietor in it, separating from goods and services. ECJ in Sabel case interpreted the likelihood of confusion within Art. 4/1(b) of Directive and stated that interpretation of likelihood of confusion in that article is not inconsistent with articles 4/, 4/4(a) and 5/2 where likelihood of confusion is not required[17]. In L’oreal v. Bellure case, ECJ is referred with the question of the likelihood of confusion or association under Art. 5/2 and stated that likelihood of confusion is not required for Art. 5/2 to apply, it is enough for a link to be established by the relevant sector of the public without confusion as a result of similarity between trademarks[18].

[14] Case C-375/97, General Motors Corp. v. Yplon SA (1999). [15] Martin Senftleben. Bringing EU Trademark Protection Back Into Shape – Lessons to Learn From Keyword Advertising, http://www.epip.eu/conferences/epip06/papers/Parallel%20 Session%20Papers/SENFTLEBEN%20Martin.pdf (Accessed 20 July 2012). [16] Soyoung Yook. Trademark Dilution in European Union, 11 Int’l Legal Persp. 223, 2001. p. 15. [17] Case C-251/95, Sabel BV v. Puma AG (1997) para. 23. [18] Case C-487/07. L’Oréal SA and Others. v. Bellure NV and Others (2009). para. 50.

90 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

According to Intel judgment of ECJ, “link” in this context means that any kind of mental association between marks, so a mere bringing to mind of earlier mark is enough. The existence of such “link” assessed globally, by taking into account all fac- [19]

tors relevant to the circumstances of the case. These factors include ; Article Reviewed Peer • Degree of similarity between the conflicting marks; • The nature of the goods or services for which the conflicting trademarks are registered, including the degree of closeness or dissimilarity between those goods or services and the relevant section of the public; • The strength of the earlier mark’s reputation; • The degree of the earlier marks’ distinctive character, whether inherent or acquired through use; • The existence of the likelihood of confusion on the part of the public. There are three types of injuries in Art. 4/4(a) of Directive, including detriment to distinctive character of earlier mark (dilution by blurring), detriment to repute of the mark (dilution by tarnishment) and unfair advantage taken of the distinctive character of trademark or the repute of the mark. The public to be taken into consideration in order to determine whether the registration of the later mark may be invalidated under Art. 4/4(a) of Directive varies depending on the type of injury alleged by the proprietor of the earlier trademark. As for the formula described in Intel case, firstly both trademark’s distinctiveness and its reputation were assessed. Relevant public consists of average consumers of the goods or services for which that mark is registered, who are reasonably well informed and reasonably observant and circumspect. There has to be similarity between signs which are used in relation to not similar goods and services. The condition of similarity between the mark and the sign, referred to in Art. 5/2 of the Directive requires the existence, in particular, of elements of visual, aural or conceptual similarity[20]. 3.3 Detrimental to distinctive character or reputation When the detrimentality of later use to the earlier mark concerned, several elements such as similarity of respective marks, inherent distinctiveness of the earlier trademark, the extent of the reputation that the earlier mark enjoys; the range of goods or services for which the earlier trademark enjoys a reputation, uniqueness of the mark in the marketplace, whether the respective goods/services, although dissimilar, are in some way related or likely to be sold through the same outlets, and whether the earlier mark will be any less distinctive for the goods/services for which it has a reputation than it was before should be

[19] Case C-252/07, Intel v. CPM- Intelmark (2008). [20] Case C-251/95, Sabel BV v. Puma AG (1997).

2013/ 1 Ankara Bar Review 91 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

considered[21]. “Detriment” becomes more obvious when the earlier mark is unique and has reputation in relation to the range of goods and services[22]. Directive gives freedom of interpretation to Member States but at the end, it leads to an inconsistent protection from dilution or denying offering trademark protection from dilution under the Trademark Directive which changes Peer Reviewed Article Reviewed Peer from one Member State to another. This result is against the main objective of the Trademark Directive in harmonizing the laws among Member States[23]. 3.4 Without due cause The other perquisite for proprietor of the earlier mark to exercise his rights under Art. 5/2 is the use of trademark “without due cause”. The meaning of without due cause is defined in Bayerische Motorenwerke AG and BMW Nederland BV v. Deenik[24] decision of ECJ. In this case defendant used the registered trademark BMW for advertising his legitimate activities repair and maintenance of the goods covered by the trademark. Defendant used the trademark in order to identify the source of the goods which are subject to his service and as ECJ stated defendant cannot effectively communicate his services to public without using the name of the trademark. The problem here is, to what extent trader is free to use the trademark in description of his service? As for ECJ in the concerned decision; third party can use the trademark for the purpose of informing the public that he carries out the repair and maintenance of goods, unless the marks is used in a way that may create the impression that there is a commercial connection between the other undertaking and the trademark proprietor’s business is affiliated to the trademark proprietor’s distribution network or that there is a special relationship between the two undertakings. 3.5 Proof In order to benefit from the protection introduced by Art. 4/4(a), the proprietor of the earlier mark must prove that the use of earlier mark “would take unfair advantage of, or be detriment to, the distinctive character or the repute of the earlier trademark”. The proprietor of the earlier mark does not have to demonstrate the actual and present damage, but foreseeable injury which will ensue from the later use. In this case proprietor of earlier mark cannot require waiting the actual damage to occur in order to be able to prohibit that use. The proprietor of the earlier mark must, however, prove that there is a serious risk that such injury will occur in future[25].

[21] Audi-Med Trademark, 1998 R.P.C. 863, 1998 E.T.M.R. 1010, 1017 (1998). [22] Soyoung Yook. Trademark Dilution in European Union, 11 Int’l Legal Persp. 223, 2001. p. 16. [23] William T. Vuk, Protecting Baywatch and Wagamama; Why the European Union Should Revise the 1989 Directive to Mandate Dilution Protection for Trademarks, 21 FORDHAM INT’L L. J. 861,906 (1998). [24] Case C-63/97, Bayerische Motorenwerke AG and BMW Nederland BV v. Deenik (1998). [25] Case C-252/07, Intel v. CPM- Intelmark (2008).

92 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Proprietor of the earlier mark should prove that the use of later mark is or would be detrimental to the distinctive character of the earlier mark. This requires evidence of a change in the economic behavior of the average consumer of the goods and services for which the earlier mark registered consequent on

the use of the later mark, or a serious likelihood that such a change will occur Article Reviewed Peer in the future. 4. TRADEMARK REGULATION Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (Trademark Regulation) is the second project of European Union on trademarks which introduced “Community trademark” system. Trademark Regulation is essentially same with Trademark Directive. As it is in Directive, Regulation also does not have clear provisions on dilution. Art. 8/5 of Regulation corresponds to articles 4/3 and 4/4(a) of Directive. Different from the language used in Directive, Art. 8/5 of Regulation openly states the requirement of proprietor’s opposition which is an implicit requirement in Directive. Art. 8/5 defines the threshold of reputation as; if the earlier mark is a Com- munity trademark it must have reputation within the Community and in case earlier mark is a national trademark it should have reputation in the member state concerned. However it is unclear that whether it means that a Community trademark must have reputation which extends beyond more than one member state for art. 8/5 to be applied[26]. Another difference from Directive is that under Art. 108 of Trademark Reg- ulation, if a Community trademark application dilutes another community trademark with reputation in Community, it can be converted into national trademark. Art. 9/1c of Regulation is the corresponding provision of Art. 5/2 of Directive which regulates the rights conferred with trademarks. Only difference between them is the scope of reputation; which is member state in Art. 5/2, where it is Community in Art. 9/1c. Secondly, because of the legal nature of Directive and Regulation under EU law the main difference is that, Art. 5/2 of Directive is an optional provision for Member States on deciding the scope of protection whereas Art. 9/1 of Regulation is a mandatory provision. Also, according to Art. 14/1 of Regulation, effects of Community trademarks are governed by the Regulation and infringement of Community trademarks shall be governed by national laws related to the infringement of national trademark. Thus, dilution of Community trademarks will be determined according

[26] Guy Tritton. Intellectual Property in Europe. 3rd ed. Sweet & Maxwell, London. 2008. p.333.

2013/ 1 Ankara Bar Review 93 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

to regulation; but the remedies are constructed from the law of the Member state where the action is sought. Regulation creates a Community trademark system which is valid in the whole Community with one registration. Community trademarks system coexists with

Peer Reviewed Article Reviewed Peer national trademark systems. Although in essence Directive and Regulation are similar, optional provisions in Directive may lead to differences in practice[27]. 5. BENELUX TRADEMARK LAW Since both Directive and Regulation’s provisions on dilution are influenced by Benelux trademark law, Benelux’s approach on anti-dilution protection will be briefly discussed in order to understand the European approach better. Benelux countries; including Belgium, the Netherlands and Luxembourg, established Benelux Economic Union in 1958. Benelux Trademark Act entered into force in 1978 which repeals the trademark laws of the Benelux countries. Section 13 of Trademark Act defines the scope of protection conferred on trademarks as below: “The owners of a trademark can prohibit another person from using an identical sign if he can prove such use may cause him to sustain loss or damage.” It was considered that this protection covers the loss or damage resulted from the confusion on the commercial origin of goods and services. However, Benelux Court of Justice broadened this scope in Union[28] case (Julien/ Verschuere judgment) in 1983.This decision is considered to change the traditional likelihood of confusion criterion to broader likelihood of association. As a result, owner of the earlier trademark can ban the later use of trademark if it can be shown that public would consider the earlier mark when they see the later mark. Likelihood of confusion is not necessary here. Furthermore, if the later use loosen earlier marks capacity to induce buying or loosen its exclusivity to preserve the unique association that the trademark brings about in the consumer’s mind; that would be a sufficient ground for a ban. Benelux’s approach for conflict of trademarks can be exemplified with cases like; • Later trademark leads to a link with earlier trademark in some way, • Later trademark has common owner or source, • Goods of two marks are same, • Possible conscious or subconscious association made by the public between the third party’s sign or mark and the earlier trademark. In short trademark infringement in Benelux on conflict of two trademarks is not limited to confusion as to commercial origin of goods and services or relationship between owners of two marks[29].

[27] Soyoung Yook. Trademark Dilution in European Union, 11 Int’l Legal Persp. 223, 2001. p.21. [28] UnionlUnion Soleure, 20 May 1983, NJ 72. [29] Remco E. P. de Ranitz and Peter P. J. M. Verhaag, Landmark Case Holds that Ordinary

94 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Directive obliged the Member States to approximate their trademark laws within the Community; subsequently the new Benelux Trademark Act pro- mulgated in 1992 and came into force in 1996. However Directive did not make essential changes in the Benelux Trademark Act. The most significant

change is addition of reputation and description of damage requirements to Article Reviewed Peer infringement cases. Accordingly in dilution cases trademark owner should prove the reputation of their trademark and damage to distinctive character of reputation. Under Benelux law reputation among relevant sector is sufficient. It is not necessary to be established among the public at large; the mark owner only need to show that the mark is engaged in normal commercial use, and on that basis has become known within interested circles. According to Art. 13/3 of Benelux Trademark Act, the mark owner may claim any damages that he may suffer by the diluting use. By showing bad faith, the mark owner can request an accounting and transfer of the defendant’s profits and seize movable property used in fringing the mark[30]. The new Benelux Trademark Act addresses dilution under art. 13(a)/1c. According to this article mark owner can contest any use in the course of trade, without due cause, made of a mark that has a reputation in the Benelux territory, or of a similar sign, for goods that are not similar to those for which the mark is registered, where use of such sign takes unfair advantage of or is detrimental to the distinctive character or the repute of the mark. Benelux Court of Justice held that use of KLAREIN for a detergent was detrimental to the reputation of a registered mark CLAERYN for gin as it impaired the capacity of the latter mark to stimulate the desire to buy[31]. Dilution can only be a matter of cancellation under Benelux trademark law, and there has been no provision for opposition. Also, as it is stated in Art. 12/ a[32] only registered trademarks are afforded any protection regardless of the nature of action instituted[33].

Marks Are Protected Only If There’s a Risk of Confusion, INTELL. PROP. WORLDWIDE, May/June 1998, at 3, 4. [30] Arthur Schwartz & David Morfesi, Dilution Comes of Age: The United States, Europe and South Africa, 87 TRADEMARK REP. 436, 455 (1997). [31] Lucas Bols v. Colgate- Palmolive (1979) E.C.C. 419, Benelux Court of Justice. [32] Art. 12/a of Benelux Trademark Act; “Regardless of the nature of the action instituted, no one may judicially claim protection for a symbol which is considered a mark within the meaning of Article 1 unless he has filed it in due form and, where applicable, has had the registration renewed.” [33] Schwartz, p. 451-452.

2013/ 1 Ankara Bar Review 95 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Part III. Turkey

6. Turkey–EU Turkey was one of the first countries trying to seek for a closer relationship with

Peer Reviewed Article Reviewed Peer European integration. Turkey-EU relations is managed under two heading; associate membership which started with Turkey’s application to European Economic Community (EEC) in September 1959, full membership process started with Turkey’s application to European Economic Community (EEC) in April 1987. Under association part, negotiations on the establishment of association between Turkey and EEC resulted with the signature of the Agreement Creating an Asso- ciation between the Republic of Turkey and the European Economic Community (known as “Ankara Agreement”) which forms the legal basis of relations. This agreement entered into force on 1 December 1964 and has the aim of Turkey’s full membership to EEC through a process comprises of three steps[34]. Final step is the completion of custom union between parties[35] and it was accomplished on March 6, 1995. Since then Turkey is the first country to conclude a Custom Union with the EC without being a member[36]. Custom Union did not cover agriculture, free movement of labor, services and capital. However, it is regarded as the biggest step for integration of Turkey to EC[37]. Alongside with the associate membership, Turkey applied for full membership in April 1987 and in December 1999, Turkey was recognized as an EU candidate country by EU Helsinki Council. In October 2005, negotiations were formally opened between parties. Completion of negotiations depends on successful adaptation of EU body of law (acquis communautaire) on each 35 sections and unanimous agreement of member states on the membership of Turkey.

[34] Article 2 of Ankara Agreement states this aim as following; 1. The aim of this Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the Parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people. 2. In order to attain the objectives set out in paragraph 1, a customs union shall be progressively established in accordance with Article 3, 4 and 5. 3. Association shall comprise: (a) a preparatory stage; (b) a transitional stage; (c) a final stage. [35] Article 5 of Ankara Agreement as follows; “The final stage shall be based on the customs union and shall entail closer coordination of the economic policies of the Contracting Parties.” [36] Aybey, Ali. Turkey and the European Union Relations: A Historical Assesment. Ankara Avrupa Çalışmaları Dergisi, Cilt:4, No:1 (Güz: 2004), p. 19-38. [37] Cited in Ibid. Heinz Kramer, A Changing Turkey: The Challenge to Europe and the United States Washington D.C., Brookings Institution Press, 2000, p. 190.

96 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Negotiations on intellectual property law (chapter 7 of the acquis) were opened and the screening was completed in 2006. EC’s assessment at the start was Turkey has reached considerable level of legislative alignment with the acquis in the area of IP law; but administrative capability was insufficient for

effective enforcement. Therefore, EC came to the conclusion that further efforts Article Reviewed Peer are needed in intellectual property law section[38]. Current situation within this section is that alignment of the legislation with the acquis is relatively high, although implementation and enforcement are still problematic[39]. 7. Turkish Law 7.1 Introduction Turkish legal system falls under civil law. It is the product of strong movements of law across frontiers from Switzerland, Germany, France and Italy, the entire legal system having been imported from these sources[40]. These laws are known as “source law” and frequently referred by courts and academics[41]. 7.2 Turkish IP Law Under Turkish law copyrights are protected according to Law 5846 on intellectual and artistic works. Turkey is contracting state for both the Bern Conven- tion for the protection of literary and artistic works, and the Rome Convention on the protection of performers, producers and phonogram and broadcasting organizations. Turkish intellectual property rights divided under two main headings; i) copyright and neighboring rights and ii) industrial property rights. Law and application in Turkey on intellectual property shaped by two external influences; EU laws and TRIPS. 1995 is turning point for Turkish intellectual property law. The existing laws were modernized and many international conventions were signed as from that year[42]. Copyrights and related rights regulated by Law 5846 on intellectual and artistic works. Computer programs and preparatory works which subsequently

[38] Screening Report: Turkey. Chapter 7 Intellectual Property Law. 19 October 2006. http:// ec.europa.eu/enlargement/pdf/turkey/screening_reports/screening_report_07_tr_internet_ en.pdf (accessed on 12 August 2012). [39] http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/tr_rapport_2010_ en.pdf and http://ec.europa.eu/enlargement/pdf/key_documents/2011/package/tr_ rapport_2011_en.pdf (accessed on 12 August 2012). [40] Esin Örücü. Turkey: Change Under Pressure, in E. Örücü, E. Attwooll & S. Coyle, (eds.) Studies in Legal Systems: Mixed and Mixing, The Hague, London, Kluwer Law International, 1996, 89-111 [41] For example, Turkey adopted Swiss Civil Code in 1926. According to common interpretation of Turkish Civil Code Art. 1, Swiss Civil law is “source law” and used in the application of Turkish Civil Code. [42] S. Karahan, C. Suluk, T. Saraç, T. Nal. Fikri Mülkiyet Hukukunun Esasları, Seçkin Yayıncılık (Second Ed.) Ankara 2009.

2013/ 1 Ankara Bar Review 97 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

lead to a program are protected by Law 5846 as scientific or literary works. Law 5846 aligned with the provisions covered by Information Society Directive. The duration of protection is 70 years from the death of the author[43]. Exhaustion is implemented at national level[44]. Only for semiconductors topographies [45]

Peer Reviewed Article Reviewed Peer international exhaustion is accepted . In the field of industrial property rights, Turkey is party to the Paris Con- vention of 1925, WIPO, GATTS and TRIPS agreements, as well as to the Madrid protocol, though not to the Madrid Agreement, the Nice and Vienna agreements and the Trademark Law Treaty. Patents are protected according to Decree Law No 551 as amended by Decree Law 566, in force since 1995. Turkey is party to the Paris Convention, the Patent Cooperation Treaty (PCT), the Strasbourg agreement and the Budapest Treaty on the Deposit of Micro- organisms, as well as the European Patent Convention. Turkey has also signed the Patent Law Treaty. Patents are granted for 20 years. Industrial design rights are protected under Decree Law 554. Turkey is party to the Geneva Act of the Hague agreement concerning the international registration of designs, and the Locarno Agreement on classification for industrial designs. Designs may be registered or not. Unregistered designs are protected by the provisions of the Commercial Code concerning unfair competition. Duration of protection is for 5 years, renewable up to 25 years. On the enforcement of the IPRs; the Enforcement Directive is not implemented in a single act, but its provisions are contained in the Code of Civil Procedure, Law 5846 on intellectual and artistic work and in legislation specific to each type of right protected[46]. The Turkish Patent Institute is the main administrative body. It is responsible for granting patents, utility models, registered designs, trademarks, circuits’ topographies, and geographical indications. In the judicial area, 21 specialized courts have been established in Istanbul, Ankara and Izmir. 8. Turkish Trademark Law The main trademarks legislation is the Decree 556 of 1995, amended in 2004 and implementing provisions. While registered trademarks are protected under Decree 556, unregistered trademarks are protected under Turkish Commercial Code concerning unfair competition. Trademarks may be individual, collective

[43] Law 5846 Art. 27. [44] Law 5846 Art. 23, Decree Law 556 (Trademarks) Art. 13, Decree Law 551 (Patents) Art. 76, Decree Law 554 (Industrial Designs) Art.24. [45] Law 5147 Art. 12/c. [46] Screening Report: Turkey. Chapter 7 Intellectual Property Law. 19 October 2006. http:// ec.europa.eu/enlargement/pdf/turkey/screening_reports/screening_report_07_tr_internet_ en.pdf (accessed on 12 July 2012).

98 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER or guaranteed marks. The signs can be trademarks if they consist of words, designs, letters, numerals or particular shapes or packages, if they are distinctive, and can be represented graphically. The trademark must be used within 5 years or can be revoked. Trademarks

may be transferred, licensed totally or partially, may be used as a security, and is Article Reviewed Peer subject to inheritance. The right of priority and the exhibition priority extend to marks for which a previous application was filed in a State party to the Paris Convention or a national application within 6 months. The protection is granted for 10 years from the date of filing, and can be renewed. Absolute grounds for refusal of registry of trademark under stated under Art. 7, and relative grounds for refusal are counted under Art.8 of Decree Law 556. Substantive law provisions on trademark, which are stated above, are essentially identical with provisions of Trademark Directive and Regulation. The evaluation of the similarity of the classes for which goods or services the trademark registered is done according to Communique 2012/2 of TPE on classification of good and services to be used in trademark registration applications. Since Turkey is a contracting party to Nice Agreement Concern- ing the International Classification of Goods and Services for the Purpose of Registration of Marks, the classifications are the same; 45 classes specified in the Communique 2012/2; 34 for goods, 11 for services. However this is not an absolute classification and TPI has discretionary power to make narrow interpretation for same class of good and services or broad interpretation for different class of good and services[47]. 9. Dilution As it is stated above, basic principles of Turkish trademark law is same with European Trademark Directive and Regulation. For protection against dilution, related articles of Decree 556 are; Art. 8/4 and 9/1(c). Art. 8/4 corresponds to Art. 8/5 of Trademark Regulation and 4/3 and 4/4(a) of Trademark Directive. The text of article is as following; A trademark applied for which is identical or similar to a registered trademark or to trademark with an earlier date of application may be used for different goods and services. However, where in the case of a registered trademark or of a trademark which has an earlier date of application for registration the trademark has a reputation and where the use without due cause of trademark applied for would take unfair advantage of, or be detrimental to, the distinctive character or repute of the registered trademark or of the trademark with an earlier application date, upon opposition by the proprietor of the earlier trademark, the trademark applied for shall not be registered even to be used for goods and services which are not similar to those for which the earlier trademark is registered.

[47] Art. 5 of Communique 2012/2 of TPI.

2013/ 1 Ankara Bar Review 99 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Art. 9/1(c) states the protection against dilution under the rights conferred to a registered trademark at corresponds to art. 5/2 of Directive; The proprietor of a trademark shall be entitled to prevent all third parties not having his consent from using the trademark as described herewith: c) use of any sign which is identical with or similarity to the registered trade- Peer Reviewed Article Reviewed Peer mark in relation to goods or services which are not similar to those for which the trademark is registered, where the of that sign without due cause takes… First of all, this is not a good example of legislation. Then Art. 8/4 starts with stating a fact; that identical or similar trademark can be used for different goods and services. Decree Law does not have to state this mere fact of trademark law; trademarks give rights within the class they are registered/used. Secondly, registration is a requirement for protection against dilution under Turkish law. Decree law specifies the trademarks which can demand protection; trademarks with registration or trademarks with an earlier date of application. 9.1 Reputation For protection against dilution, earlier trademark should have reputation. Turk- ish version of Art. 8/4 of Decree law states this condition as “earlier trademark which has reached a level of reputation in public”. TPI has published guideline on determining the reputational level of trademarks and their application. In this guideline, TPI counts 17 criteria used in the determination of the repute of trademark. 18th criterion is any evidence that might be used to prove the reputation of trademark. So this is not a closed number count. As it is in Directive and Regulation, trademarks with reputation are different than well known trademarks under Paris Convention art. 6bis and TRIPS art.16. Then well-known trademarks according to Paris Convention 6bis are separately stated under Art. 7/1(i) of the Decree Law. Also TPE has listed the well-known marks according to Art. 6bis of Paris Convention and Art. 7/1(i) of Decree in Official Trademark Gazette Special Edition. This list published only once and is not updated. It includes trademarks like; BMW, ARÇELİK, BEKO, CAMEL, COCA COLA, GRUNDIG[48]. Definition of marks with reputation has discussed in doctrine and jurisprudence. Since both Art. 7/1(i) and 8/4 used the same word “tanınmış”(well-known) for the trademarks concerned. However the difference between them can be seen in the English version of the Decree Law, Art. 7/1(i) defines the trademarks as trademarks which have not been authorised by their owners, well known marks according to 6bis of the Paris Convention when Art. 8/4 uses the term trademark has a reputation. Turkish version of Art. 8/4 uses the term; trademarks which reached a level of reputation in public.

[48] İbrahim Ekdial. Tanınımış Markalar ve Uygulamaya Genel Bakış, İstanbul Patent Marka Danışmanlık Ltd. Şti, 15.12.2003. http://www.istanbulpatent.com/tr/mak_marka_ taninmis.htm (Accessed on 12 July 2012).

100 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

The difference of the protection of well-known trademark under Art.7/1(i) from trademarks with reputation under Art. 8/4 is that[49]; • Well-known marks only protected against similar goods and services, • Well-known marks do not have to be known in the country where the

protection sought, Article Reviewed Peer • Well-known trademarks do not have to be registered. Limits of the protection conferred to these two terms for trademarks are controversial in Turkey. According to Tekinalp, these terms are representing different concepts; trademarks reaching a level of reputation is wider than well-known trademarks, however level of recognition of them is lower than well-known trademarks[50]. Tekinalp explains this difference with the example of Coca Cola and Ferah Cola. For him, Coca Cola is a well-known mark, whereas Ferah Cola is known in certain part of Turkey but mark with reputation under Art. 8/5 of Decree Law. Reputation of both marks assessed according to the target group of the goods or the services of the mark concerned. As for Arkan, trademarks under Art. 7/1(i) and 8/4 of Decree Law are different. Then well-known trademarks under Paris Convention Art. 6bis cannot be registered for similar goods or services; yet trademarks with reputation under art. 8/4 of Decree Law cannot be registered for both similar and different goods and services[51]. Also in order to be a well-known mark under Art. 6bis of Paris Convention, mark should be known to public wider than the specific group of the trademark. According to Yasaman Art. 8/4 covers trademarks reaching a level of reputation, Art. 9/1(c) is about reputation of the trademark. Yasaman claims that trademarks mentioned in Art. 9 are well-known marks. He further stated that since Art. 9/1 uses the wording of “signs identical or similar to the registered mark”, when both Art. 9/1 and 8/4 are interpreted together, protection conferred under art. 8/4 covers “similar marks” too[52]. Since Art. 8/4 of Decree Law uses the word even/ bile (Turkish), it seems more appropriate to the language of Decree Law that protection conferred on trademarks with reputation under Art. 8/4 of Decree covers later use in both similar and dissimilar goods and services. Because the recognition of these marks among specific part of public is high and they are registered, they may obtain wider protection against identical or similar signs. Also since the protection provided for well-known marks of Paris Convention Art. 6bis is an

[49] Alper Çağrı Yılmaz. Türk Marka Hukuku ve Avrupa Birliği Hukukunda Mutlak Tescil Engelleri, Devlet Planlama Teşkilatı, DPT Yayın No 2769, 2008. p. 72. [50] Ünal Tekinalp. Fikri Mülkiyet Hukuku, İstanbul 2002, §25, no.64 [51] Sabih Arkan. Marka Hukuku C. 1, Ankara 1997, p. 105. [52] Hamdi Yasaman, Marka Hukuku 556 Sayılı Kanun Şerhi, C.1, Vedat Kitapçılık, İstanbul, 2004. p. 410.

2013/ 1 Ankara Bar Review 101 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

exception to principle of registration, it cannot be widened to dissimilar goods and services/ against dilution. Proprietor of earlier trademark shall oppose to registration (Art. 8/4 of Decree Law) or infringement (Art. 9/1(c) of Decree Law). TPI is not obliged to

Peer Reviewed Article Reviewed Peer consider the refusal of registry or infringement without any demand, by itself. For Art. 8/4 on protection to apply, one of the three possible outcomes of the later use should exist in the case. Two of them are related to protection against dilution. 9.2 Likelihood of Confusion Decree Law does not mention likelihood of confusion or association. Confu- sion is not a requirement for both outcomes. MERIDIEN decision[53] of Court of Appeal may represent the point of view of Court on dilution. In this case, owner of the trademark Le Meridien for hotels opposed to the registration of trademark “Meridien Bilişim + sign” for computer services. Court held that, Le Meridien is both well-known trademark under Art. 7/1(i) and trademark with reputation under Art. 8/4 of Decree. Since the trademarks are used for dissimilar goods, Court stated that Art. 8/4 is the provision to be applied in this case. According to the Court, for this article to apply there should be a link established between trademarks and this link should result in taking unfair advantage of or being detrimental to the distinctive character or repute of the registered trademark. Court did not use confusion in that case. 9.3 Detriment to distinctive character First one is that the later use should be detrimental to distinctive character of the earlier trademark with reputation, which can be defined as dilution by blurring. Distinctive character mentioned in Art.8/4 is different from the distinctive character mentioned in Art. 5 of the Decree Law under definitions of signs can be used as trademark. “Distinctive” in the context of Art. 5 is used for the capability of sign to be used as an indicator of commercial origin and its capability to personalize a group of goods or services. On the other hand, distinctive character under Art. 8/4 is related to the personalization of good or service in the present case. It requires a research on potential consumers whether the trademark with reputation has a distinctive character which affects the behavior of consumer in the favor of mark[54]. Detriment to distinctive character means the decrease in the power of attraction of trademark as a result of usage of same or similar signs by different entities. Then when the consumer sees the later mark he/she makes a conscious

[53] 11th Chamber of Court of Appeal, E. 2007/5927, K. 2007/9302, 18.06.2007. [54] Hanife Dirikkan. Tanınmış Markanın Korunması, Seçkin Yayıncılık 2003, Ankara. p. 199.

102 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER or unconscious mental link with the mark with reputation. According to Dirik- kan, this protection is related to trademarks functions of showing the origin and advertising. However not every use of mark with reputation on different goods or services is detrimental to distinctive character of trademark, but the

later use which is capable to decrease the level of distinctiveness of trademark Article Reviewed Peer requires protection. Under Turkish law, TPI and the courts makes the assessment of this possible damage. In Max v. Maxden decision[55], Ankara 2nd Civil Court of Intellectual and Industrial Property Rights decided on the registrability of defendant’s trademark Maxden against the opposition of Unilever N.V.’s trademark of Max. At first instance at TPE, the opposition is rejected for the classes except for ice creams. Court held that trademarks of the parties are similar, then the “Max” is the dominant component of the trademark. “Max” is a trademark with reputation for ice creams and eligible for protection under Art. 8/4 of Decree Law. Parties appealed to this decision. According to the Court, average consumer will think that producers of the goods are same or economically linked. In this case, defendant will not provide goods and services with same quality with the plaintiff; therefore, the consumer will attribute his/her dissatisfaction to plaintiff, and plaintiff’s trademark will become ordinary and lose its distinctive power and area of influence. With this decision, Court decided to protect the mark Max against similar and non-similar goods, since it has reputation and the later use may damage the brand image and lead to a loss of exclusivity. 9.4 Detrimental to repute of trademark Second outcome could be that the later use is detrimental to reputation of trademark, which can be shortened as dilution by tarnishment. This requirement is stated in Art. 8/4 as an relative ground for refusal but it is not counted under Art. 9/1(c), within the scope of protection conferred on trademark. Since both articles aim to protect the trademark with the same context, trademark owner should have the right to depend on Art. 9/1(c) in the cases where exist a detriment to his marks reputation after the registration of the later mark[56]. Use of later trademark may be detrimental to reputation of earlier mark in different ways. First, trademark with reputation may be used on goods or services with inferior quality. Consumer imagines that mark with reputation and the good of that mark has certain level of quality and create a link with earlier and later

[55] Ankara 2nd Civil Court of Intellectual and Industrial Property Rights. E. 2010 / 191, K. 2011 / 143, http://www.deris.com.tr/Upload/CourtDecision/42afa496-e558-4ffb- ba7e-c078dd1a5a23/MAX-MAXDEN%20KARAR%20OZETI.pdf (accessed on 12 July 2012). [56] Hanife Dirikkan. Tanınmış Markanın Korunması, Seçkin Yayıncılık 2003, Ankara. p.215.

2013/ 1 Ankara Bar Review 103 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

trademark on quality of their goods. In the case the later mark used on low quality goods, consumer will attribute his dissatisfaction to mark with reputation. This kind of use was discussed in Ford case[57] where the word Fort was used on the spare parts of the defendants and it was sued by Ford Motor Company

Peer Reviewed Article Reviewed Peer for trademark infringement. The Court decided there is a risk for the spare parts with inferior quality to damage or may damage the reputation of plaintiff’s trademark. Thus, the court came to the conclusion that such use infringes the trademark of proprietor. Second situation may be the cases where trademark’s use on the goods against brand image. The use of brand image on different goods and services requires due diligence. In cases where the trademark with reputation used on different goods and services without the permission of proprietor, brand image and the later goods and services may not overlap and there can be a negative change in the behavior of consumer against the mark with reputation. The mark may be used in a way that leads to establishment of unwanted links. Type of goods of services of later mark may lead to inappropriate associations and links with mark with reputation which may damage the repute of first mark. For instance, use of a well-known perfume mark for rats bane[58]. Mark with reputation may be used in a way that defamatory to brand’s image. Here, trademark is used on goods which trademark does not want to be associated with and damages the reputation of the trademark. Like the use of “Adihasch” which is similar to “Adidas” on T-shirts[59]. There exists no risk of confusion here. Trademark is used in a way that it is obvious that goods are originate from different enterprises, however later mark uses the distinctive power of the mark with reputation[60]. 9.5 Without due cause As it is in Directive and Regulation, in order to anti-dilution protection to apply there should not be any due cause. Defenses against refusal for registration of mark and infringement in Decree Law are similar to Directive. They may be used against dilution claims. 9.6 Proof For provisions on protection against dilution to apply later use should take unfair advantage of or be detrimental to the distinctive character or repute of the earlier registered trademark with reputation. Actual damage is not required. The risk of possible or foreseeable damage is sufficient under the condition that TPI or Court is convinced on it. As the distinctive character of the trademark

[57] 11th Chamber of Court of Appeal, E. 1982/3859, K. 1982/4025, 21.10.1982. [58] Dirikkan,. p. 221. [59] Dirikkan, p. 223. [60] Dirikkan, p. 223.

104 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER increases, so does the chance to damage to reputation increase too. To exercise his rights, trademark proprietor should first get a decision from TPI for proving the fact that his mark has reached to a certain level of reputation within the public concerned. TPI and the Courts are competent on deciding [61]

on the reputation of the trademark . But the priority on time belongs to TPI. Article Reviewed Peer Accordingly, Court of Appeal decided that the condition of legal interest for filing a suit is not met if the proprietor did not exhaust the legal remedies at TPI first[62].

Part IV. Comparison The basic idea of dilution is the same in EU and Turkish law. They both try to provide an equitable protection to trademarks with reputation which exceeds the traditional scope of right conferred on trademark. Both sides do not use the name “dilution” openly in their legislations but have the comparable definition in the codes. The structure and the needs of the sides are different. EU aims to develop a trademark system which follows the integration policy. Turkey on the other side, tries to harmonize the Codes with EU body of law and the universal standards. Language of the Decree Law is closer to Trademark Regulation. Then Art. 8/4 of Decree Law explicitly states the opposition of proprietor as Art. 8/5 of Trademark Regulation. Two types of dilution and taking unfair advantage stated in the Codes of both side. Detriment by blurring stated as “detrimental to distinctive character” and interpreted as diminishment in the power of attraction of the trademark[63]. EU has a dual trademark system coexisting together; national trademarks and Community trademarks; while Turkey has national trademarks only. This may create difference with the requirement of reputation, especially in the geographical extent. In this context, rights granted to Community trademarks can be unjustifiably broad when the dilution is discussed[64]. Since dilution is accepted on community level, one Community trademark with reputation may block the use of same or similar trademark on dissimilar goods and services for the whole Community. For the same difference, Turkey has only one administrative body, TPI, and legal system for trademarks, where EU has both OHIM for Community trademarks and national IP offices for national trademarks. Although the essence

[61] 11th Chamber of Court of Appeal, E.2004/49, K 2004/9168, 04.10.2004. [62] Ibid. [63] Case T-215/03, Sigla SA v. OHIM para.39. [64] Soyoung Yook. Trademark Dilution in European Union, 11 Int’l Legal Persp. 223, 2001. p.18.

2013/ 1 Ankara Bar Review 105 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

of them is same, differences may be seen because of the optional provisions in the Directive. As for Turkey, it does not mean that it is out of the scope of Community regulations, consequent to close relations with EU and process of adoption of acquis, Turkish trademark law is in accordance with the EU

Peer Reviewed Article Reviewed Peer body of law in IP field. In Turkey cases of dilution are mostly seen under Turkish Commercial Code’s provisions on unfair competition, since there is no confusion to the origin of the goods and services. Therefore; number of the cases where Art. 8/4 is discussed is relatively low and the term dilution is not used in those cases. It is mostly referred as detrimental to the distinctive character or repute of the mark with reputation. Trademarks entitled to dilution protection are relatively more clear under EU Law. Decree Law’s language makes it difficult to separate well-known trademarks and trademarks with reputation. There is a tendency to add the well-known trademarks to dilution protection under Art. 8/4 of Decree Law and expand the protection of Art.8/4 of Decree Law to similar goods because of the language of Art. 9/1(c) of Decree Law. Different from European Union, Turkey has an administrative decision for proving the reputation of the trademark. Then in order to obtain protection against dilution, it is better for proprietors to get a decision from TPI first. Language of Turkish Decree Law is suitable for interpreting the anti-dilution protection in a way that it includes both similar and non-similar goods and services. Then unlike Directive and Regulation it uses the word even before the later non-similar trademarks which the protection sought against. However in EU, Member States extend dilution protection against non-similar goods under Art. 5/2 of Directive, which is optional. Confusion is not a requirement for protection against dilution in both sides. It is not clear in the legislation of both sides; however EU has more certainty on the type of association or link need to be established for dilution. This requirement clarified in decisions; Adidas-Salomon v. Fitnessworld and Intel v. CPM.

Part V. Conclusion rademarks are essentially indicators of origin which informs the consumer on the producers of goods and services. They traditionally provide protection within this scope against to confusion caused by identical Tand similar signs on identical and similar goods and services. However with the increase in the investments done in trademarks, their definition become broaden with time. Apart from showing the origin and distinguishing the goods and services, they guarantee certain quality and do advertising.

106 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Due to this expansion, need for further protection apart from cases of confusion emerged. This widening in the scope of protection for trademarks first discussed in German case of Odol and developed in the U.S. and come into existence under the name dilution. Dilution means the possible of damage to

the trademark with reputation by later use of signs identical or similar to it on Article Reviewed Peer goods and services not similar, where there is no likelihood of confusion. It may happen with decrease in the distinctive character of mark (blurring), or enabling negative associations to brand image (tarnishment). When it compared to the U.S., dilution is relatively a new concept in Europe and although the name is not explicitly stated, it can be found in Trademark Directive, Trademark Regulation and ECJ decisions. Requirements of reputation, type of association between marks and due causes, effects of later use needed for dilution are defined in the cases mentioned previously. Harmonization process of trademark laws of Member States still continues. However duality of trademark systems, ambiguity in the legislations and ECJ decisions make it difficult for EU to agree on one dilution definition and application. Definition of dilution can be found in the Turkish Decree Law on trademarks. As a result of close relations with EU and process of adoption of EU body law, provisions on dilution are similar. Turkish Decree law is not clear on the distinction between well-known marks under Paris Convention Art. 6bis and trademarks with reputation according to Art. 8/4 of Decree Law. This ambiguity creates difficulties in determination of perquisites for protections granted in articles 7/1(i), 8/4 and 9/1(c). Also according to common interpretation of Art. 8/4 of Decree Law, anti-dilution protection covers both similar and non-similar goods and services in Turkey. Jurisprudence on dilution is developing; but most of the cases are seen under unfair competition and the term dilution is not used. In this thesis I have looked into the laws of EU and Turkey on protection of trademarks against dilution. The major differences are in the determination of reputation of the earlier mark, further protection against similar goods and services and role of the administrative decisions in the protection against dilution. My conclusion is that; European Union and Turkey has different structures, policies and aims in trademark law; but close relations stemming from the associate membership and accession negotiations bring them closer in this field and particularly in protection against dilution.

2013/ 1 Ankara Bar Review 107 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Part VII. Bibliography

BOOKS/ ARTICLES Peer Reviewed Article Reviewed Peer Guy Tritton. Intellectual Property in Europe. 3rd ed. Sweet & Maxwell, London. 2008. Soyoung Yook. Trademark Dilution in European Union, 11 Int’l Legal Persp. 223, 2001. Spyros M. Maniatis, Anselm Kamperman Sanders. A consumer trade mark: protection based on origin and quality, E.I.P.R. 1993, 15(11), 406-415. Martin Senftleben. Bringing EU Trademark Protection Back Into Shape – Lessons to Learn From Keyword Advertising, http://www.epip.eu/conferences/epip06/papers/Parallel%20Session%20 Papers/SENFTLEBEN%20Martin.pdf (accessed on 12 July) William T. Vuk. Protecting Baywatch and Wagamama; Why the European Union Should Revise the 1989 Directive to Mandate Dilution Protection for Trademarks, 21 FORDHAM INT’L L. J. 861,906 (1998). Remco E. P. de Ranitz and Peter P. J. M. Verhaag, Landmark Case Holds that Ordinary Marks Are Protected Only If There’s a Risk of Confusion, INTELL. PROP. WORLDWIDE, May/ June 1998. Arthur Schwartz, David Morfesi. Dilution Comes of Age: The United States, Europe and South Africa, 87 TRADEMARK REP. 436, 455 (1997). Aybey, Ali. Turkey and the European Union Relations: A Historical Assesment. Ankara Avrupa Çalışmaları Dergisi, Cilt:4, No:1 (Güz: 2004), p. 19-38. Heinz Kramer. A Changing Turkey: The Challenge to Europe and the United States, Washington D.C., Brookings Institution Press, 2000. Screening Report: Turkey. Chapter 7 Intellectual Property Law. 19 October 2006. http:// ec.europa.eu/enlargement/pdf/turkey/screening_reports/screening_report_07_tr_internet_en.pdf (accessed on 12 July 2012) Esin Örücü. Turkey: Change Under Pressure, in E. Örücü, E. Attwooll & S. Coyle, (eds.) Studies in Legal Systems: Mixed and Mixing, The Hague, London, Kluwer Law International, 1996, 89-111. Hanife Dirikkan. Tanınmış Markanın Korunması, Seçkin Yayıncılık 2003, Ankara. S. Karahan, C. Suluk, T. Saraç, T. Nal. Fikri Mülkiyet Hukukunun Esasları, Seçkin Yayıncılık (Second Ed.) Ankara 2009. Ünal Tekinalp. Fikri Mülkiyet Hukuku, İstanbul 2002, §25, no.64 Sabih Arkan. Marka Hukuku Cilt 1,Ankara 1997. Hamdi Yasaman, Marka Hukuku 556 Sayılı Kanun Şerhi, Cilt 1, Vedat Kitapçılık, İstanbul, 2004. Alper Çağrı Yılmaz. Türk Marka Hukuku ve Avrupa Birliği Hukukunda Mutlak Tescil Engelleri, Devlet Planlama Teşkilatı, DPT Yayın No 2769, 2008. İbrahim Ekdial. Tanınımış Markalar ve Uygulamaya Genel Bakış, İstanbul Patent Marka

108 Ankara Bar Review 2013/ 1 A Comparison Of Trademark Laws In European Union And Turkey On Protection Against Dilution Of Trademarks / ŞEKER

Danışmanlık Ltd. Şti, 15.12.2003. http://www.istanbulpatent.com/tr/mak_marka_taninmis. htm (accessed on 12 July) http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/tr_rapport_2010_en.pdf http://ec.europa.eu/enlargement/pdf/key_documents/2011/package/tr_rapport_2011_en.pdf Peer Reviewed Article Reviewed Peer CASE LAW

Case C-408/01 Adidas Benelux BW v. Fitnessworld Trading Case C-375/97, General Motors Corp. v. Yplon SA (1999) Case C-251/95, Sabel BV v. Puma AG (1997) Case C-487/07, L’Oréal SA and Others. v. Bellure NV and Others (2009) Case C-252/07, Intel v. CPM- Intelmark (2008) Case C-63/97, Bayerische Motorenwerke AG and BMW Nederland BV v. Deenik (1998) Case T-215/03, Sigla SA v. OHIM Audi-Med Trademark, 1998 R.P.C. 863, 1998 E.T.M.R. 1010, 1017 (1998) UnionlUnion Soleure, 20 May 1983, NJ 72. Lucas Bols v. Colgate- Palmolive (1979) E.C.C. 419, Benelux Court of Justice 11th Chamber of Court of Appeal, E. 1982/3859, K. 1982/4025, 21.10.1982 11th Chamber of Court of Appeal, E.2004/49, K 2004/9168, 04.10.2004 11th Chamber of Court of Appeal, E. 2007/5927, K. 2007/9302, 18.06.2007 Ankara 2nd Civil Court of Intellectual and Industrial Property Rights, E.2010/191, K.2011/143, http://www.deris.com.tr/Upload/CourtDecision/42afa496-e558-4ffb-ba7e-c078dd1a5a23/ MAX-MAXDEN%20KARAR%20OZETI.pdf (accessed on 12 July)

2013/ 1 Ankara Bar Review 109

PEER REVIEWED ARTICLE

Directors’ Remuner ation Policies And Other Compliances: General Economic-Banking Views And Evaluations Within The Framework Of The Post Crisis World For Financial Institutions

Yonca Fatma YÜCEL*

* Attorney at law - Specialist in law, Banking Regulation and Supervision Agency.

Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL Peer Reviewed Article Reviewed Peer

ABSTR ACT

This article sets forth current legal legislations and recent developments related to directors’ remuneration policies and other compliances of financial institutions based on the approach for Corporate Governance Principles in Turkey after the economic crisis in the world. At the outset, general economic and banking views in the world considering selected countries’ situations were presented, both global and Turkey’s evaluations were discussed in terms of Average Annual Real Gross Domestic Product (GDP) Growth, Real GDP Growth and Selected Soundness Indicators in Turk- ish Banking Sector. In addition, this article emphasizes the general dominant principle of new Turkish Commercial Code. At last, the normative system of the regulatory bodies in Turkey was explained in details.

2013/ 1 Ankara Bar Review 113

Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL

Introduction Peer Reviewed Article Reviewed Peer ll countries have been faced to different serious financial obstacles due to economic crises since 2007. The global recession has affected the entire world economy, with greater detriment to some countries thanA others. It is a major global recession characterized by various systemic imbalances and was sparked by the outbreak of the U.S. subprime mortgage crisis and financial crisis of 2007–08. At that point, a more broad based credit boom fed a global speculative bubble in real estate and equities, which served to reinforce the risky lending practices.[1] In addition to the bad financial situation was made more difficult by a sharp increase in oil and food prices. The emergence of sub-prime loan losses in 2007 began the crisis and exposed other risky loans and over-inflated asset prices. With loan losses mounting and the fall of Lehman Brothers on September 15, 2008, a major panic broke out on the inter-bank loan market. As share and housing prices declined, many large and well established investment and commercial banks in the United States and Europe suffered huge losses and even faced bankruptcy, resulting in massive public financial assistance.[2] For that reason dominating the big picture for economic developments, it is required to determine general view of role of finance both in the world and in the Turkey based on post economic crisis before presenting directors’ remuneration policies and other compliances for financial institutions in Turkey.

I. General Economy Europe experienced a substantial decline in systemic downside risk in the summer of 2012 as a result of credible reform momentum in Italy and Spain, as well as conditional but strong commitment by the ECB and the euro-zone core to stabilize the banking sectors and the sovereign debt markets while those reforms take effect. Generally, the emerging economies look to be faring better. In 2012, the ongoing crisis in the euro-zone retarded growth, but it did not completely derail development. IMF has announced the growth estimations of emerging economies for 2012 and 2013 respectively as 5.6% and 5.9%. It was observed that the emerging economies are affected from the decrease in global

[1] Foldvary Fred E., The Depression of 2008 (PDF).(September 18,2007)The Gutenberg Press. ISBN 0-9603872 O-X Retrieved 2009-01-04; Nouriel Roubini, A Global Breakdown of the Recession In 2009 (Jan.15,2009), Forbes. [2] “Great Recession”, Wikipedia, www.wikipedia.org.

2013/ 1 Ankara Bar Review 115 Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL

trade volume and that many economies are trying to provide a soft descent within the aim of pursuing their domestic macroeconomic balances.[3] China, entering the complex middle-income transition, experienced a bout of systemic risk associated with its leadership transition and a decade-long decline in reform

Peer Reviewed Article Reviewed Peer momentum. That risk has declined with a successful leadership handoff and early signs of a forceful commitment to reduce corruptions alter the role of government in the growth. On the whole, the global economy, while not yet free of downside risk, appears to set for a year of transition to better-balanced economic growth, albeit with lagging employment and income inequality continuing to hamper a robust recovery. Global growth performance has lost power in the second quarter of 2012. The loss of confidence to developed countries’ medium-term policy perspectives is considered as the main reason of this development. As a matter of fact, it was observed that the improvements faced to the developed economies’ public sector balances in short-term were not supported by implementations to provide remarkable improvements in the debt stock. This situation indicates that the measures necessary for the growth policies and sustainability of public debt within following period shall be conducted in a delicate balance. It is observed that in countries within the center of global crisis, even if monetary policies supporting growth are sustained, the reflections of uncertainties brought by the public borrowing problems are still continuing. Emerging countries which still have a relatively strong domestic demand and maintain a strong public finance are applying new policy strategies to minimize the reverse effects formed by foreign trade and capital channels and to support global growth. In addition, it is observed that financial markets are affected negatively from the increasing macroeconomic risks and deterioration of expectations. In an environment where global uncertainties are continuing, Turkey con- ducts incentive systems and monetary policies minimizing macro financial risks simultaneously to make its growing strategy sustainable. The essence of these policies is composed of increasing the competitive power, protecting financial discipline, reducing current deficit, increasing domestic savings, fight against informal economy, encouraging own funds usage instead of borrowing within the companies sector, improving investment environments and supporting Istanbul International Finance Project. The reliability of macro policies implemented and the endurance of Turkish economy face to external shocks was approved by an international rating agency by increasing the country note, even if it’s a bit delayed. As of the third quarter of 2012, the improvement in foreign trade balance is continuing, current

[3] Financial Markets Report, BRSA, June 2012, Issue 26, p. iii.

116 Ankara Bar Review 2013/ 1 Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL deficit is slowing down, measures are taken to prevent deviation from financial discipline and elastic monetary policy is preserved face to fast capital inflows depending on possible monetary expansion following the note increase.[4]

[5]

Figure 1 Average Annual Real GDP Growth (%) 2002-2011 Article Reviewed Peer

Figure 2 Real GDP Growth (%)[6]

[4] Financial Markets Report, BRSA, Sept. 2012, Issue 27, p. iii. [5] IMF World Economic Outlook April 2012, Turkish Statistical Institute (TurkStat), Investment Support and Promotion Agency of Republic of Turkey Prime Ministry, www. invest.gov.tr. [6] IMF World Economic Outlook April 2012, Turkish Statistical Institute (TurkStat), Investment Support and Promotion Agency of Republic of Turkey Prime Ministry, www. invest.gov.tr.

2013/ 1 Ankara Bar Review 117 Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL

II. Banking Sector Table 1 Selected Soundness Indicators in Turkish Banking Sector[7] % 2007 20008 2009 2010 2011 03.12 06.12 09.12

Peer Reviewed Article Reviewed Peer Loans/Total Assets 49,1 50,1 47,1 52,2 56,1 56,9 57,9 57,7 1 Month Liquidity Adequacy Ratio 155,1 141,0 144,0 137,1 115,8 114,8 115,9 124,1 Capital Adequacy Ratio 18,9 18,0 20,6 19,0 16,5 16,6 16,5 16,5 Own Funds/Total Assets 13,0 11,8 13,3 13,4 11,9 12,5 12,5 12,9 NPL (Gross)/ Loans 3,48 3,68 5,27 3,66 2,70 2,74 2,66 2,95 Net Interest Margin 4,9 4,8 5,4 4,3 3,5 1,02 2,01 2,98

Spread 4,5 4,6 5,3 4,1 2,6 1,04 1,99 3,05

In looking at the flow chart for selected soundness indicators in Turkish banking sector, we can see that the banking sector financial soundness indicators are indicating a strong structure. 57.7% of sector assets are composed of loans expressing the main intermediation function. The sector is operating with an asset structure having high liquidity. Liquidity adequacy ratio with one month maturity is 124.1% which is above 100%. The usage of liabilities in the sector indicates a manageable leverage ratio; 87.1% of the assets are financed by liabilities. Non-performing loans ratio, which is the most essential indicator concerning asset quality has been decreasing since 2009, but showed a partial increase by 0.32 point in the third quarter of the year and realized as 2.95%. When the income-expenses and profitability ratios are analyzed, it is observed that income creating and profitability ratios of the assets have been increasing since the first quarter of this year. The decrease in the sector’s non-interest incomes/non-interest expenses ratio kept continuing also in the third quarter.

[7] Financial Markets Report, BRSA, Sept. 2012, Issue 27, p. iii.

118 Ankara Bar Review 2013/ 1 Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL

The convergence to equilibrium between non-interest incomes and non-interest expenses will be positive for profitability. With respect to the changes in fund flows in the banking sector during the last year as of September, while loans and required reserves have been the

important items creating asset increase, securities portfolio and receivables from Article Reviewed Peer banks had a decreasing effect. In recent years, banks’ policies to conduct efficiently their liability costs and the efforts to diversify their liability possibilities are being effective on the composition of liability structure. Banks increasing their liability possibilities other than deposit is affecting positively the maturity structure and product diversification. Off-balance sheet operations kept increasing depending on the growth in commitments item. Revocable credit allocation commitments, showing the possibility of banks to allocate credit to the counterparty have been the item increasing off-balance sheet transactions depending on the increase of loans.[8] Considering comparative recent economic and banking developments both in the world and in the Turkey, remunerations of board of directors’ of financial institutions was determined with the sustainable, legitimate and accountable criteria and standards due to post economic crisis both in the world and in the Turkey. Especially, at the European Union level, remuneration policies in the financial services sector include a general principle that firms should establish and maintain comprehensive remuneration policies, applying to those categories of staff whose professional activities have a material impact on the risk profile of the financial undertaking, which are consistent with sound and effective risk management and do not induce excessive risk-taking. Complementing this general principle, there are more specific recommendations relating to the balance between fixed and variable components of remuneration (that is, between core salary and bonus); the determination of the bonus element on the basis of performance; deferred payment of bonuses with a link to the firm’s future performance; the responsibility of the (supervisory) board for overseeing the policy and its application and the involvement of properly independent control functions in its design and operation.[9]

[8] Financial Markets Report, BRSA, Sept. 2012, Issue 27, pp. iv-v. [9] Commission Staff Working Document related to Amending Capital Requirements Directive on trading book, securitization issues and remuneration policies/Impact Assessment, Commission of the European Communities, July,13,2009, p.19.

2013/ 1 Ankara Bar Review 119 Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL

III. Main Approach of New Turkish Commercial Code With respect to addressing global economic and banking sector’s issues both in the world and in the Turkey during last year new Turkish Commercial Code, Peer Reviewed Article Reviewed Peer came into force on July, 2012. New Turkish Commercial Code enlightened new corporate governance approach. It is required to describe corporate governance approach of new Commercial Code due to directors’ remunerations of financial institutions being determined by Corporate Governance Principles in Turkey. The corporate governance approach of the New Code is based on four pillars that have universal characteristics within the context of corporate governance. These are as follows: (1) Full transparency, (2) Fairness, (3) Accountability, (4) Responsibility. Full transparency has been sought in (1) financial statements, (2) boards of directors’ (BoD) annual reports, (3) independent audits, (4) transactional auditors, (5) all audit reports of individual companies and group of companies. Fairness has been ensured by establishing a balance of interests and by objective justice. Accountability has been embodied in the BoD reports, flow of information, right to information and oversight. Responsibility has been regulated in parallel with accountability. The Capital Markets Board (CMB) has been provided with exclusive authority to regulate corporate governance principles for listed companies under new Code. This authorization will ensure it remains dynamic and up-to-date. The BoDs of publicly held companies are now obliged to publish corporate governance reports. There are two main prominent principles in this respect under this Commercial Code are as follows: • The principle of equal treatment: Shareholders of joint-stock company either listed or non-listed shall be subject to equal treatment under equal terms. • Not to become indebted to the company: Shareholders are prohibited from borrowing money from the company unless they perform their due debts resulting from subscription of capital, and unless the profit of the company together with independent reserve funds cover the loss of the company for previous year. It’s unclear whether guaranties are also restricted, and whether affiliates/ relatives of the shareholder are subject to the same restriction. Creditors of the company have a direct claim against shareholders who violate this rule. There are similar restrictions applicable to directors and other affiliates of a company.

120 Ankara Bar Review 2013/ 1 Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL

The new Commercial Code dispenses with the prior regime of indivisible and absolute responsibility for the entire board with respect to actions of the company. The more modern approach apportions liability across responsible directors/officers based on the delegation of authority among them and their

respective degree of fault. Intra-group transactions to the detriment of a specific Article Reviewed Peer subsidiary must be compensated by the controlling parent.

IV. Legislations of Regulatory Bodies When we look at the company directors’ remuneration, we can see two main regulations in Turkey. A. Capital Market Board’s Communique Capital Market Board (CMB) has authority to regulate corporate governance principles for listed companies. According to “The Communique on The Determination and Implementation of Corporate Governance Principles” for listed companies issued by CMB as follows: (1) Remuneration principles shall be writing and remuneration policy shall be published on the web-site. (2) Remuneration committee shall propose to the Board for determining remunerations regarding board of directors and top management in compliance with the following criteria: (a) Long- term targets of companies, (b) Performance criterion related to performance of company and directors, (c) The degree of achievement criteria for directors and top management. (3) Remuneration of the independent board members shall be provided at a level to sustain independence. The independent board members cannot receive stock options or performance based payment plans. (4) The remuneration and other benefits given to the board members and the top management shall be disclosed to the public via annual report. B. Banking Regulation and Supervision Agency’s Regulation Concerning the banks; all banks should determine own corporate governance principles according to annexed Corporate Governance Principles for Banks of “The Regulation on Corporate Governance Principles for Banks”[10] issued by Banking Regulation and Supervision Agency (BRSA).

[10] This Regulation was entered into force by published in the Official Gazette Nr. 26333 on the dated of November 1st, 2006. The amendments related to mentioned Regulation was entered into force by published in the Official Gazette Nr. 27959 on the dated of June 9th, 2011.

2013/ 1 Ankara Bar Review 121 Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL

In addition, there is the most highlighted point that Turkey adopted all principles based on European Union (EU) legislations such as directives etc. in spite of Turkey is not still EU member. All banks shall determine and ensure remuneration policy in compliance with the bank’s ethical values, strategic goals and internal balances under the Article 6th Peer Reviewed Article Reviewed Peer of Corporate Governance Principles for Banks of the mentioned Regulation.[11] At that point all banks can determine own remuneration policies freely based on the Corporate Governance Principles for Banks. A written remuneration policy shall be determined in compliance with the scope and structure of the bank’s activities as well as its strategies, long-term targets and risk management structures which will prevent undertaking extreme risks and promote effective contributions to the risk management under mentioned BRSA principles. The board of directors shall review the remuneration policy at least once a year to ensure its effectiveness. The board of directors shall ensure the remunerations of board of directors and top management and the other staff involved are in compliance with ethical values, internal balances and strategic goals of the bank. This remuneration shall not, only, be related to the bank’s short-term performance such as profit or income. The responsibilities assigned to members of committees comprised of board members shall be taken into consideration in payments to be made to such members. It is possible to make incentive payments to members of the board of directors equipped with executive duties as well as the top management (top team, executive leaders etc.) on the basis of the bank’s performance, such incentive payments shall be made in a way to make positive contributions to the bank’s corporate values and be subject to certain objective criteria to be observed. The amounts of performance-based payments shall not be guaranteed in advance. The performance-based payments shall be made in instalments and in consideration with the maturity of risks undertaken according to mentioned Corporate Governance Principles. The criteria taken into account in the performance-based payments and the information regarding the method and average amounts of such payments shall be presented in the banks’ annual reports prepared within the framework of the “Regulation on Principles and Procedures of the Preparation and Publication of Annual Reports by Banks”, under the section titled “Information on Human Resources Applications”. We can see that the following condition will be valid for the remunerations of managers and staff at the internal control, internal audit as well as risk management. The payments to be made to managers and staff at the internal control, internal audit and risk management units shall be determined independently from the performance of such units they audit, supervise or control; but, the

[11] Servet Taşdelen, Banking Law Commentary, pp. 309-312.

122 Ankara Bar Review 2013/ 1 Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL performance in the own function of the related staff shall be taken into consideration in this respect. On the other hand, when we survey the other compliances with remunerations, these are counted as below: (1) Incentive payments Peer Reviewed Article Reviewed Peer (2) Indemnity payment (3) Performance based payments (4) Promotion Concerning the incentive payments, the criteria regarding job descriptions and distributions of the staff as well as their performance-based incentive payments shall be determined and announced by the top management. The said criteria shall be reviewed regularly on the basis of their standards determined and special duty related responsibilities. Moreover; the indemnity payments are to be made to the staff leaving from the bank shall be determined on the basis of the staff’s past performance and in consideration with the contribution made by the related staff to the bank’s long-term performance. The board of directors has authorities for cancellation of performance based payments of banks’ staff if certain cases arise as below: The actions necessary shall be taken by the board of directors against the staff detected to endanger the bank’s operations in a secure manner or be responsible for failures in the bank’s financial structure as a result of their activities, including also the cancellation of their performance-based payments.[12] The authorities of top management related to recruitments and promotions of the staff are as follows: The top management shall implement and supervise the processes required to ensure the recruitments and promotions of the staff involved are based on objective criteria and to take into consideration for the purposes of education, experience and responsibility. Such processes shall be in compliance with the organization’s general policies as well as relevant procedures on issues like staff recruitment, training, measuring, consultancy, promotion, indemnity and discipline. The responsibilities of top management in compliance with the remuneration policy of banks are as follows: • The top management shall ensure that requirements on necessary knowledge and competencies are continuously observed and that the organization has the capability to acquire the manpower in compliance with the goals set. • The top management shall ensure that the staff involved are oriented and trained after their recruitment for purposes of increasing their knowledge and skills to required levels. The education and training programs prepared with the aim to increase technical and administrative skills of the staff effectively shall be reviewed on a regular basis.

[12] Seza Reisoğlu, Banking Law Commentary, pp. 371-374.

2013/ 1 Ankara Bar Review 123 Directors’ Remuneration Policies and Other Compliances: General Economic-Banking Views and Evaluations within the Framework of the Post Crisis World for Financial Institutions / YÜCEL

Conclusıon ll countries in the world adopted unanimous principles and criteria for determining remunerations of board of directors’ of financial institutions due to economic crisis. With respect to addressing these issues from the Peer Reviewed Article Reviewed Peer frameworkA of EU legislation, there is now a widespread recognition that remuneration practices in financial institutions have contributed to the financial crisis through encouraging excessive risk taking and pro-cyclical behavior. Specifically: – There was an excessive concentration on short term profits without adequate regard to longer term risks; – Perverse incentives were created that exacerbated excessive risk-taking: if the reward for risk-taking is too high, there are incentives to relax controls within the organization and to take on imprudent levels of risk; – Remuneration policies likely fostered conflicts of interest by motivating certain categories of staff to behave in a way that prioritizes their personal remuneration over the interests of the institution: managers may focus on improving quarterly profits over long-term growth of the business; traders may take excessive risks to increase their bonus even if the trading strategy is not consistent with the risk appetite of the bank. As a result, remuneration policies have a pro-cyclical effect where they entail (possibly disproportionate) rewards on the upside and insufficient penalties on the downside, e.g., bonuses based on short-term profits that are paid immediately, with no risk adjustment or deferred payment to take account of future performance of the business unit or institution as a whole.[13] For this reason Turkey made required amendments related to previous legislations in compliance with the European legislations and the other international standards after the economic crisis in the world. When we look at the general implementations of corporate governance principles in Turkey related to directors’ remuneration policies and other compliances for financial institutions in the post crisis world, we can reach three crucial points for Turkey in spite of existing different applications in other’s European countries. These are as follows: The principle of “Say on Pay Rule” is not valid for Turkey for determining remunerations of board of directors in the financial institutions. All banks have an obligation to act in compliance with the Regulation on Corporate Governance Principles for determining remunerations of board of directors of banks. The claw-back process in Turkey generally will not apply unless any violation of mentioned Law and regulation exist.

[13] Commission Staff Working Document related to Amending Capital Requirements Directive on trading book, securitization issues and remuneration policies /Impact Assessment, Commission of the European Communities, July 13, 2009, p.46.

124 Ankara Bar Review 2013/ 1 PEER REVIEWED ARTICLE

Formation of Contr act According to the CISG

Belkıs VURAL*

* Yıldırım Beyazıt University, Research Assistant, the Department of Private Internatinal Law; University of Lucerne (J.D. Candidate); Ludwig Maximillians University, Munich (LL.M. eur.); Bilkent University (LL.B.). email: [email protected].

Formation of Contract According to the CISG / VURAL Peer Reviewed Article Reviewed Peer

Abstract

Formation of contract is one of the crucial topics that have been governed uniformly by United Nations Convention on Contracts for the International Sale of Goods and even a compromise area between Common Law and Continental European Law (Civil Law) systems. The main focus of the work will be on commonly accepted offer-acceptance model through conceptual clarifications and even some compari- sons between the German Approach and the Convention in terms of formation of contract. Keywords: Formation of Contract, Criteria of Offer, Irrevocability of Offer, Types of Acceptance, Standard Contracts Terms, Battle of Forms, Late Acceptance

2013/ 1 Ankara Bar Review 127

Formation of Contract According to the CISG / VURAL

A. Introduction Taking into consideration the importance and volume of international business, a uniform law to regulate the trade at the international level was an absolute must in the last quarter of the twentieth century. The attempts to reach a uniform law in the area of international business were successfully completed in 1980 with Article Reviewed Peer United Nations Convention on Contracts for the International Sale of Goods (hereinafter the CISG). Today we see 78 contracting states that signed the CISG (including Turkey[1]) and it has been accepted as a considerably successful instrument that provides harmonization and unification in the regulation of international business. In this work we will deal with the issue of contract formation, which is governed explicitly by the CISG and moreover it has a part that rules formation of international sales contracts and follows the traditional offer- acceptance model (only obviously accepted model) in terms of the conclusion of a contract.[2] Although there is such an instrument for uniformity, it cannot be said that all issues related to a sales contract is governed explicitly by the CISG. For example, validity of contract is excluded from the application scope of the CISG[3] therefore we will not examine the issue of validity in this work. As a second and important point, it has to be said that commercial letter of confirmation is also an issue stays out of the CISG, in other words there is no provision that rules it but there are scholarly approaches[4] to handle the issue under formation of contract. Thirdly and finally, e-commerce transactions is also handled by some scholars under the contract formation but we will not include these issues in the work and deal with the formation of contract through understanding terms offer and acceptance under the CISG in general and at some points in comparison with German Approach on the issues and additionally mention the problem of standard contract terms.

B. Offer As is known, contract is a legal transaction that requires at least two persons and two corresponding declarations of intent. First one of these corresponding declarations is called offer, it has to receive the offeree in order to conclude an effective contract and has to include some special criteria. These special criteria will be treated in more detail in this part.

[1] Turkey ratified the CISG in 2010. Official Gazzette No.27545, 07 April 2010. But it entered into force on the 1st August 2011. [2] P Schlechtriem/P Butler UN law International Sales, Springer- Verlag Berlin-Heidelberg, 2009, p.65. [3] Acccording to Art.4 (a) “…Convention, it is not concerned with: the validity of the contract…” [4] Schlectrim, supra n. 2, p. 83.

2013/ 1 Ankara Bar Review 129 Formation of Contract According to the CISG / VURAL

I. Criteria for an Offer Each proposal does not mean an offer that is why according to the CISG, a proposal has to fulfill some requirements which are; a sufficient definiteness of the proposal, an intention to be bound in case of acceptance and the effective- [5]

Peer Reviewed Article Reviewed Peer ness of the offer, in order to be accepted as an offer . 1. Definiteness of Addressee and Public Offer In the CISG, the proposal must firstly address one or more specific persons[6] or it is considered as an invitation to make an offer (invitatio ad offerendum) unless otherwise the proposal is indicated to one or more unspecific persons clearly as an offer by the offeror.[7] When the proposal addresses to a definite person or persons there is no problem but a problem arises when the proposal is directed towards an unspecific group of persons (which is known as Public offer), here it strictly requires to show the difference between an offer which addresses to indefinite circle of people and invitation to make offer. According to Art.14 of the CISG, it is generally accepted that a party can make an offer to an unspecific group of persons.[8] For instance, a seller may send some catalogues that include product descriptions and product price lists, to indefinite number or large number of people and that may be interpreted as public offer.[9] But according to Honnold, such an offer in cases of acceptance may cause some practical difficulties.[10] It is fair to say that by the reason of some vague situations when a proposal is communicated to an indefinite group, Art.14 (2) of the CISG requires a clear indication of whether it is an offer and furthermore unless such a clear indication is provided, that proposal will be just an invitation to make an offer.[11]

[5] Schlechtriem, supra n. 2, p. 69. P Huber/A Mullis The CISG: A New Text Book for Students and Practitioners, Sellier European Law Publication, 2007, p.70. [6] Witz , in Witz/Salger/Lorenz, Art.14, para.20. [7] Ibid, para.58. [8] J Honnald, Uniform Law for international sales under the CISG, 3rd ed., Kluwer Law International, The Hague, 1999, p. 148. [9] Ibid. [10] “For example, sellers often give wide distribution to catalogues describing a line of goods and indicating prices. Some months may be required for the preparation, printing and distribution of the catalogue. During this period some of the goods may become unavailable because of heavy demand, shortage of materials or other production difficulties and cost increases may call for readjustment of prices.” Ibid [11] Ibid, p. 149.

130 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL

2. Intention to Be Bound in case of Acceptance Secondly, the CISG puts a subjective criterion, which is the intention of the offeror. Accordingly, a proposal requires being “binding” in order to be an effective offer[12] under the CISG[13] Therefore, it has to include the offeror`s

intention which shows the readiness to be bound by offer in case of acceptance. Article Reviewed Peer Such a criterion provides to an offer to be distinguished from a simple non- binding proposals.[14] Here also (as has been discussed above) “invitatio ad offerendum can be illustrated as a non-binding proposal which fails to have the “intention to be bound/animus contrahandi”.[15] In cases where the offeror wants to be bound by his offer, is a question of interpretation under national legal systems[16], and it is fair to say, that under the CISG it has to be handled in each case individually as well.[17] Moreover, it should be mentioned here; “intention to be bound” and “to be bound by offer irrevocably” have to be distinguished[18]; whereas “intention to be bound is a criterion for an effective offer in Art.14 of the CISG, offer´s position of being bound by offer irrevocably is another issue[19] which we will handle in Art.16 of the CISG. 3. Sufficient Definiteness Another important criterion for an offer is “sufficient definiteness of proposal”.[20] What is understood under the sufficient definiteness of a proposal under the CISG is figured in the Art.14 (1) (2nds.).[21] Accordingly in a proposal; goods, quantity and price are considered essential elements (essentialia negotii) of a contract and therefore, they have to be determined sufficiently.[22] It is obvious that if the essential terms of a contract are explicitly fixed, there will be no problem of determination.[23]

[12] K Ludwig, Der Vertragsschluß nach UN-Kaufrecht im Spannungsverhaltnis von Common Law und Civil Law, Diss. Heidelberg, p.37. [13] “In cases of acceptance, offeror must indicate his intention to be bound by his offer.” Gruber, in MünchKomm, CISG Art. 14, para.5. [14] Ludwig, supra n. 12, p. 37. [15] Dörner, in Schulze u.a. §145 para. 3. [16] Under German Law according to §133 BGB, it is a problem of interpretation. Dörner, in Schulze u.a. §145, para. 3. [17] Ferrari, in Kröll, Mistelis,Viscasillias, CISG (Commentary) Art. 14, para. 11. [18] Magnus, in Staudingers, CISG Art.14, para. 12. [19] Gruber, in MünchKomm, CISG Art.14, para. 5. [20] Schlechtriem, in Schlechtriem/Schwenzer, CISG Art.14, para. 1; Gruber, in Münch Komm, CISG Art.14, para. 13. [21] Schlechtriem, in Schlechtriem/Schwenzer, CISG Art.14, para. 3. [22] Ibid. [23] Ludwig, supra n. 12, p. 296.

2013/ 1 Ankara Bar Review 131 Formation of Contract According to the CISG / VURAL

a) Indication of Nature and Quantity of Goods Due to the fact that only an offer containing the fundamental elements of a sales contract can lead to the successful conclusion,[24] the elements such as nature and quantity of offered goods must be determined or at least determinable [25]

Peer Reviewed Article Reviewed Peer in the offer. But hereby it is fair to say that the explicit description of the goods is not strictly required; even it may be impliedly according to Art.14 (1) (2nd s.) determined[26] so Schlechtriem accepts that there may be just a simple indication of the goods and their amounts but at least that indication must be interpretable.[27]It is clear that “silence” has no function to refer to the goods therefore an implicit determination of goods differs from “silence”.[28]Moreover, besides written indications, a verbal indication is also acceptable to refer to the nature and quantity of goods.[29] The question of whether “the indication of nature” includes the colour and equipment has to be asked and in response to that question, it can be said that the elements of the contract which are apart from the essential terms such as the colour and equipment, do not have to be shown, the description of the name of the goods for example, “saying the model of the car” is enough to accept a concluded contract.[30] Eventually, the colour and equipment of the good are the matters of the performance so that they don´t impact the conclusion of contract.[31] b) Price Determination Under the CISG, the term “price” is another element that has to be determined or at least determinable, i.e. a proposal has to include it either implicitly or explicitly.[32] If there is neither a determined price nor a determinable one, an effective offer does not exist pursuant to Art.14 (1) of the CISG[33] and a contract is not concluded effectively.[34] It is fair to say that under the CISG, the contract does not have to include an explicit fixed price, for example; one party may want a late determination in order to take into consideration the market price or by the reason of necessity of more information. Here even such an uncertain determination fulfils the

[24] Schlechtriem, in Schlechtriem/Schwenzer, CISG Art.14, para. 3. [25] Mullis, supra n. 5, p. 296. [26] Schlechtriem, in Schlechtriem/Schwenzer, CISG Art.14,para. 8; Ferrari, in Kröll/Mistelis/Viscasillias, CISG (Commentary) Art.14, para. 21. [27] Schlechtriem, in Schlechtriem/Schwenzer, CISG Art.14,para.8. [28] Ibid. [29] Ibid. [30] CIETAC, 23.4.1997, CISG-online no: 1151. [31] Ibid. [32] Bundesgericht, 5 April 2005, (Switzerland) translatin available at: http://cisgw3.law.pace.edu/cases/050405s1.html (last visit: 15.10.2012). [33] Ferrari, in Kröll/Mistelis/Viscasillias, CISG (Commentary) Art.14, para. 32. [34] NJW 1990, pp. 3077-3079.

132 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL requirement of determinability of price under the criteria for offer.[35] Moreover, in cases a proposal refers to a price list or market price; it is adequate to accept a determination impliedly.[36] c) The Relation between Articles 14 (1)and55 of the CISG At the first instance Art.55 is seen in conflict with Art.14 of the CISG. Article Reviewed Peer Whereas Art.14 (1) provides that an offer is only validly concluded if the parties have included the price impliedly or explicitly into their contract, Art.55 only applies if the contract has been validly concluded without determining the price.[37]Although (as has been mentioned above) this situation is seen as an inconsistency between two provisions of the CISG,[38] with the support of scholarly approaches it is easy to understand why both provisions do exist together. According to Schlechtriem; “If the parties have performed the contract despite no definite price having been agreed, or have in other way made clear that they wanted to perform the contract, the requirement of a sufficiently definite or determinable price can be seen as having been excluded by the parties. Accordingly, a valid contract has been concluded and the price has to be determined according to Art.55 CISG.”[39] As has been stated by Schlectriem, Art.55 of the CISG has an application scope in cases where the parties exclude any types of price determination (based on party autonomy acc. to Art.6 of the CISG) and conclude a valid contract.[40] Art.55 of the CISG has a gap filling function in terms of open price contracts as well; because Schlechtriem and Mullis claim that the formation of contract is governed by usually national contract laws, if there is an existing reservation (based on the Art. 92 of the CISG) on the application[41] of Part II CISG (provisions on formation of contract btw. Art.14-24 of the CISG) or the absence of price determination arises from the usages or practices between the parties (acc. to Art. 9 CISG).[42] II. Termination of Offer 1. Effectiveness and Withdrawal of an Offer If there is an effective offer (assuming the criteria to be an offer are met) the

[35] Ludwig, supra n. 12, p.45. [36] Gruber, in MünchKomm, CISG Art.14, para.19. [37] Schlechtriem, supra n. 2, p.71. [38] Mullis, supra n. 5, p.76. [39] Schlechtriem, supra n. 2, p. 72. [40] Mullis, supra n. 5, p. 76. [41] Denmark, Finland, Norway and Sweden are the contracting states that have put a reservation. See Herre, in Kröll/Mistelis/Viscasillas, CISG (Commentary) Art.92, para.2. [42] Schlechtriem, in Schlechtriem/Schwenzer, Art.14, para.20; Mullis supra n. 5, p.77.

2013/ 1 Ankara Bar Review 133 Formation of Contract According to the CISG / VURAL

next step stays as the determination of effectiveness of an offer.[43] Art. 15 of the CISG shows the rule as to whether and when an offer is effective and when it may be withdrawn[44] and its first sentence says “an offer becomes effective when it reaches[45] the offeree.” (Art.15 (1))

Peer Reviewed Article Reviewed Peer Art.15 of the CISG follows the approach based upon “Receipt Theory” in terms of effectiveness of declarations (not only for offer but also for acceptance)[46] under contract formation.[47] Therefore, according to Art.15 of the CISG, for an effective offer, the offeree has to receive it so contrary to “Dispatch Theory”, dispatching of proposal does not suffice to become an offer.[48] Another consequence which arises from Art.15 of the CISG is related to the terms “withdrawal and revocability”[49] of an offer under the CISG.[50] However “withdrawal” and “revocation” are not differently daily used words, they have different meanings under the CISG.[51] Also, the2nd sentence of Art.15 of the CISG provides that “an offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer.” Both two terms “revocability” and “withdrawal” are seen together here. Although the provision includes the “irrevocability”, Art.15 of the CISG mainly governs the right to withdraw.[52] Regarding Art.15, it is required to make a distinction between withdrawal and revocation, because their consequences in terms of the CISG are not corresponding.[53]To explain the differences, Eörsi claims that this distinction exists in different stages of contract formation.[54] At first stage, as has been written in Art.15 (1) of the CISG, an offer needs to reach the offeree in order to be effective.[55] Until an effective offer exists or at the time of effectiveness, it can be withdrawn by the offeror (Art. 15 (2) CISG) it means that withdrawal can be before or at the time when offer reaches the offeree.[56] Unless it

[43] J Lookofsky, Understanding the CISG, Kluwer Law International, 3rd (Worldwide) Ed.2008, p.52. [44] Witz/Salger/Lorenz/Witz, Art.15, para.1. [45] What is understood under “reaching” is regulated separately in Art.24 CISG. [46] Eörsi, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè, Milan (1987) 145-149 p.146 available at: http://cisgw3.law.pace.edu/cisg/biblio/eorsi-bb15. html (Last visit: 15.10.2012). [47] Kindler P, Einführung in das neue IPR des Wirtschaftsverkehrs, Verlag Wirtschaft und Recht, Frankfurt a.M, 2009, p.93. [48] Eörsi, supra n. 46, p.148. [49] The term “Withdrawal” comes from Anglo Saxon Origin, the term “revocation is of Latin origin. See Eörsi, supra n. 46, p.147. [50] Eörsi, supra n. 46, p.147. [51] Ibid, p.147-148. [52] Lookowsky, supra n. 43, p.52. [53] Eörsi, supra n. 46, p.147. [54] Ibid. [55] Ibid. [56] Kindler, supra n. 47, p. 95.

134 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL is withdrawn, it goes to the second stage and here it becomes already effective and under certain conditions may be revoked.[57] It has to be noted here, the revocation of an offer under Art.16 of the CISG is separated from the term “withdrawal” under Art.15 (1) of the CISG.

2. Revocation of Offer Article Reviewed Peer Whether an offeror is bound by his proposal is a question, which has different answers according to Common Law and Civil Law Systems. It has to be said that CISG has reached a compromise on revocation of offer between Common Law and German Law System. a) Revocability of Offer under the CISG Art.16 (1) of the CISG allows to the offeror to revoke his offer, until the offeree dispatches his acceptance[58] so Art.16 (1) shows the basic principle that an offer is revocable under CISG[59] after acceptance is dispatched by offeree, the offeror`s right to revoke drops.[60] If offeror enjoys his right to revoke, this revocation has to reach the offeree, before the offeree dispatches an acceptance in response to the effective offer.[61] Here this result is accepted as a remarkable consequence of “Common Law-Mailbox rule.”[62] Although, by Art.16 (1) of the CISG, the revocability of offer is provided, Art.16 (2) of the CISG sets an exception to revocability of offer.[63] Firstly Art.16 (2), lit a. shows the irrevocability of the offer, in cases if the offer fixes a time period for acceptance or it indicates itself that, it is irrevocable.[64] According to Giannini; this is a close approach of the CISG towards the provision of §145 BGB, which provides irrevocability in principle.[65] According to Eörsi, under the CISG, fixing a time period for acceptance is not enough to make an exception to Art.16 (1) of the CISG and it requires

[57] Eörsi, supra n. 46, p. 147. [58] Schlechtriem, supra n. 2, p.73. [59] Mullis, supra n. 5, p.81. [60] Ludwig, supra n. 12, p.313. [61] A Garro, Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods, 23 Int`L Law. (1989), pp. 443-483, p.455, available at: http://cisgw3.law.pace.edu/cisg/biblio/garro1.html (last visit: 15.10.2012) [62] According to Common Law-Mailbox Rule, if the offeree dispatches an acceptance before the revocation reaches, the offer may not be revoked anymore. [63] Saenger, in BeckOK, CISG Art.16, para.4. [64] Eörsi, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) pp. 150-160, p.157, available at: http://cisgw3.law.pace.edu/cisg/biblio/eorsi-bb16.html Last visit: 15.10.2012 [65] G Giannini, The Formation of the Contract in the UN Convention on the Interna tional Sale of Goods: A Comparative Analysis, Nordic Journal of Commercial Law, (2006/1), available at: http://www.cisg.law.pace.edu/cisg/biblio/giannini.html#iii (Last visit: 14.10.2012).

2013/ 1 Ankara Bar Review 135 Formation of Contract According to the CISG / VURAL

an indication of irrevocability as well[66] contrarily, Kindler[67] and Ludwig[68] accept that fixing a time period is enough to assent the irrevocability of offer under Art.16 (2) lit.a of the CISG. Secondly according to Art.16 (2) lit.b, in cases if the offeree reasonably relies [69]

Peer Reviewed Article Reviewed Peer that offer is irrevocable and acts in reliance on it, the offer is not revocable. As it is seen here; whereas Art.16 (1) of the CISG stays closely to the Common Law, Art.16 (2) of the CISG exists as an exception to that approach.[70] In conclusion, it is fair to say that the “revocability of offer” under CISG is limited because, the offeror is bound by his offer; (has no right to revoke) between the dispatch time of acceptance and it`s arrival at the offeror.[71] Art.16 of the CISG is considered as a compromise between the Civil Law and the Common Law understanding of revocation of an offer.[72] By that reason, in practice while conclusion of an international sales contract, an interpretation problem may arise in terms of irrevocability of offer between parties from different legal systems.[73] b) Excursus: German Approach (Irrevocability of Offer) As has been seen above “irrevocability of offer” is a significant difference, which hereby has to be handled between German legal system and the CISG. “Any person who offers to another to enter into a contract is bound by the offer, unless he has excluded being bound by it.” (§145 BGB)[74] Although in the CISG, in principle an offer is revocable, according to German approach, offeror is bound by his proposal (Antrag)[75] at the time of delivery to the offeree (when it is effective acc. §130 BGB).[76] By the reason of the binding effect of offer, according to §145 BGB, offer is in principle irrevocable,[77] unless the offeror indicates that he is not bound by his offer.[78] This approach shows that removal of that binding effect is possible through one-sided declaration of offeror.[79] For example, if the offeror, his offer as “freibleibend”, “ohne obligo” or somehow not binding declares; there is an

[66] Eörsi, supra n. 64, p.157. [67] Kindler, supra n. 47, p.97. [68] Ludwig,supra n. 12, p.314. [69] Eörsi, supra n. 64, p.157. [70] Mankowski, in Ferrari, Internationales Vertragsrecht, Art.16, para.1. [71] Ludwig, supran. 12, p.345. [72] Ferrari, in Kröll/Mistelis/Viscasillas, CISG (Commentary) Art.16, para.1. [73] Giannini, supra n. 65. [74] BGB in English, Translation available at: http://www.gesetze-im-inter net.de/englisch_bgb/ englisch_bgb.html#p0428 (Last visit: 14.10.2012) [75] Busche, in MünchKomm, BGB §145, para.1. [76] Eckert, in BeckOK, BGB § 145 para.31. [77] NJW 199, pp. 311-312. [78] Brox, AT, para.168. [79] Jauerning, in Jauerning § 145,para.5; Brox, AT, para.170.

136 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL exclusion of “binding effect”[80] and the offer becomes revocable. For the sending form of this one-sided declaration, it is fair to say that either the offer itself may include such a declaration or this declaration may be separately sent from the offer.[81]

3. Rejection of Offer and Expiry of Time Set for Acceptance Article Reviewed Peer Under the CISG, “rejection” is the third termination ground apart from withdrawal (Art.15 CISG) and revocation of offer (Art.16 CISG).[82] Pur- suant to Art.17 of the CISG an offer is terminated through rejection by offeree.[83]Accordingly, rejection of an offer must be either expressly or by an implication[84] but if it is an explicit rejection, it has to reach the offeror.[85] The receipt theory here applies to declaration of rejection as well.[86] Offer may be rejected even after the offeree dispatches acceptance but this acceptance does not have to receive to the offeror.[87] It means that the rejection avoids the conclusion of a contract only if it reaches the offeror before or at the same time of the receipt of acceptance to the offeror.[88] The consequence of the receipt theory is seen here as well. According to Schlechtriem, the rejection of an offer should be considered in the same way as the withdrawal of an acceptance.[89] If the rejection reaches the offeror before the acceptance, a contract is not concluded and it cannot be saved through applying Art.21[90] of the CISG.[91] Art.17 of the CISG reveals the result of the rejection and states that, “the original offer can no longer be accepted, even if it is irrevocable.”[92] Besides the above-mentioned termination grounds, under the CISG there is no provision that indicates whether the expiry of time period (fixed by offeror)

[80] Giannini, supra n. 65 [81] Brox, AT, para.170. [82] Kindler,supra n. 47, p. 97. [83] Gruber, in MünchKomm, CISG Art.17,para.1. [84] Mankowski, in Ferrari Internationales Vertragsrecht, Art.17, para.6. [85] Witz/Salger/Lorenz/Witz, Art.17, para.6. [86] Ibid. [87] Schlechtriem, in Schlechtriem/Schwenzer, Art.17, para. 3. [88] Ibid. [89] Schlechtriem, in Schlechtriem/Schwenzer, Art. 17, para.3. [90] Art. 21 (1) CISG: A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree or dispatches a notice to that effect. Art. 21 (2) CISG: If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without delay, the offer or orally informs the offeree that he considers his offer as having lapsed or dispatches a notice to that effect. [91] Schlechtriem, in Schlechtriem/Schwenzer, Art.17, para. 3. [92] M Viscasillas, Cross-References and Editorial Analysis: Article 19, available at: http:// cisgw3.law.pace.edu/cisg/text/cross/cross-19.html (Last visited: 15.10.2012).

2013/ 1 Ankara Bar Review 137 Formation of Contract According to the CISG / VURAL

for acceptance terminates the offer itself or not.[93] It should be noted that “expiration of time for acceptance” which has been written under Art.18 (2) (2nds.) does not terminate the offer itself.[94] According to Kindler, the time set for acceptance has a meaning that shows until when offeror is bound by

Peer Reviewed Article Reviewed Peer his offer, which is governed under Art.16 (2) lit.a., it does not have a function to terminate offer after the time period expires.[95] Moreover, it has to be noted that, the CISG does not govern the potential termination grounds like death or loss of capacity of the offeror.[96]

C. Acceptance Acceptance is the second declaration of intent (in response to the offer), which has to reach the offeror[97] in order to conclude an effective contract.[98] Articles 18-22 of the CISG are the provisions that are related to the subject of acceptance. In this part, acceptance under the CISG will be treated in detail. I. Types of Acceptance Under the CISG, firstly it has to be mentioned that the means of declaration are left optional to offeree and actually there is no necessity of a certain form for acceptance[99] but there are different types of the acceptance, which hereby will be handled. 1. Acceptance by Explicit Declaration Acceptance by explicit declaration can be divided into two different types which are firstly acceptance by written declaration and secondly acceptance by oral statement. But here just the acceptance by written declaration will be mentioned briefly. Acceptance by written declarations is preferred mostly[100] and made by any forms of written statements such as letter, fax, email etc. and requires reaching the offeror as a result of the receipt theory[101]and also, the declaration which addresses the offeror, must be given by the offeree himself/herself or his legal representative.[102]

[93] Kindler, supra n.47, p.97. [94] Ibid. [95] Ibid. [96] Ibid, p.95. [97] Ludwig, supra n. 12, p. 63. [98] Ibid. [99] Witz/Salger/Lorenz/Witz, Art.18, para.6. [100] Viscasillias, Contract Conclusion under CISG, 16 Journal of Law and Commerce (Spring 1997), pp. 315-344, pp. 325-326, available at: http://cisgw3.law.pace.edu/cisg/biblio/ perales5.html#iii (Last visit:15.10.2012) [101] Ibid, p. 326. [102] Witz/Salger/Lorenz/Witz, Art.18, para.6.

138 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL

2. The Special Case of Silence Firstly it is important to say that under the CISG the offeree is not charged with a duty to reply to the offeror.[103] It is fair to say that like under German Law System such a consequence comes from the negative function of principle [104] [105]

freedom of contract and by that reason , silence or inactivity is not enough Article Reviewed Peer to set up an acceptance in itself unless there is no indication of assent.[106] Art.18 of the CISG, sets a rule that actually protects the offeree from the traps of the offeror, for example, if no reaction were enough to amount the acceptance in itself, through sending goods and sending a proposal that stipulates in cases of not sending unsolicited goods will constitute an acceptance, would mostly lead to unwelcome situations for the offeree.[107] It also needs to be noted that the offeror may not obviate this rule (Art. 18 (1) (1sts.)) by stating “silence will be regarded as offeree`s assent to accept”.[108] However silence or inactivity does not constitute an acceptance at first instance, this does include some exceptional situations.[109] The wording of Art.18 (1) (2nd s.)[110] provides the possibility for the silence to be considered exceptionally as acceptance. The cases in which silence is accepted as acceptance, requires taking into consideration the relevant circumstances that support silence especially trade usages and practices.[111] In such cases in which silence is recognized as acceptance, it is advised to handle and interpret each case individually and not generalize.[112] When parties had several business transactions by now, national courts will, taking into consideration those relations, decide whether by silence there is a valid acceptance or not.[113] 3. Acceptance by Performance Whereas in Art.18 (1) of the CISG not only explicit declaration but also an implied conduct that is equal to offerees’ assent as a rule [114] must reach the offeror, Art. 18 (3) of the CISG has an exceptional approach that goes away

[103] Lookowsky, supran. 43, p.55. [104] Ibid. [105] In English terminology also used; “inaction” or “no action” instead of inactivity. [106] Schlechtriem, supra n. 2;p. 78; Kindler, supra n. 47, p.97. [107] Schlechtriem, supra n. 2, p.77. [108] Lookowsky, supra n. 43, p.56. [109] Schlechtriem, supra n. 2, p.78. [110] Art.18 (1) (2nd s.)Silence or inactivity does not in itself amount to acceptance. [111] Lookowsky, supra n. 43, p.55; Schlechtriem supra n. 2, p.77. [112] Schlechtriem, supra n. 2, p.78. [113] Ibid; See desicionsrelated : Grenoble 21 October 1999 (CLOUT) abstract no. 313, Unilex database: http://www.unilex.info/case.cfm?pid=1&do=case&id=415&step=FullText (Last visit: 15.10.2012); OLG-Rp Hamm (1993 27(L)), Unilex database: http://www.unilex. info/case.cfm?pid=1&do=case&id=52&step=FullText (Last visit: (15.10.2012). [114] Art. 24 CISG.

2013/ 1 Ankara Bar Review 139 Formation of Contract According to the CISG / VURAL

from the receipt theory.[115] Through only performing an act, such as ship- ment of goods, payment of the price,[116] the offeree may communicate his acceptance effective, and conclude the contract even if the acceptance does not have to reach the offeror[117] and furthermore in cases if the offeree accepts

Peer Reviewed Article Reviewed Peer an offer by performing an act, the notification is not required to conclude an effective contract[118] because the acceptance becomes effective when the performance begins.[119] II. Derivation of Acceptance from the Offer “A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of offer and constitutes a counter offer.” (Art. 19 (1) of the CISG) Accordingly, an acceptance must comply exactly with the offer[120] similarly in the traditional conception; the acceptance must be a response like the mirror image[121] of its offer.[122] On the contrary, acceptance does not require the same wording as used in the offer but a response, which aims to be an acceptance, constitutes (instead of an acceptance) rejection and a counter-offer, if it derives from the content of the offer.[123] It is fair to say that the CISG takes into consideration the complexity of the international commercial practices and based on that consideration, we see an exception to the Mirror Image Rule under Art. 19 (2),[124] as has been stated below; “However a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or dispatches notice to that effect. If he does not so object, the terms of the contract are the terms of the offer with the modifications

[115] Kindler, supra n. 47, p.97-98. [116] Schlehctriem, supra n. 2, p. 77. [117] Saenger, in BeckOK, CISG Art. 18(3), para.4. [118] Ibid. [119] Lookowsky, supra n. 43, p.57. [120] Ibid. [121] “This paragraph states the traditional principle known as the mirror image rule.” See, Viscasillas, supra n. 92. [122] Lookowsky, supra n. 43, p.57; Mullis, supra n. 5, p.89. [123] Kindler, supra n. 47, p.98; Lookowsky, supra n. 43, p.57; Eckert, in BeckOK, BGB§150, para.14. [124] Farnsworth, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) pp. 175-184, p. 175, available at: http://cisgw3.law.pace.edu/cisg/biblio/ farnsworth-bb19.html (Last visit: 15.10.2012); Mullis, supra n. 5, p.89; K Wildner, Art. 19 CISG: The German Approach to the Battle of the Forms in International Contract Law, The Decision of the Federal Supreme Court of Germany of 9 January 2002, 20 Pace Int´l L. Rev. 1 (2008), pp. 1-30, p.2, available at: http://digitalcommons.pace.edu/ pilr/vol20/iss1/1/ (Last visit: 12.09.2012).

140 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL contained in the acceptance.” (Art.19 (2) of the CISG) In spite of the additions or modifications of the offer, if there is no material alteration, Art.19 (2) applies. By the way it is important to remind that the qualification of the alteration [125]

(as non-material or material) has crucial importance and here some diffi- Article Reviewed Peer culties arise while determining whether material or non-material modification exists.[126] Thanks to Art.19 (3) of the CISG, this determination is made easily, because a materiality test is provided under Art.19 (3) of the CISG. Accordingly, “Price, payment, quantity and quality of the goods, place and time of delivery, the extent of liability of one party to the other or the settlement of disputes are accepted material.”[127] This is a non-exhaustive list[128] and a change out of this list might be accepted material upon the individual case as well.[129] Besides this non-exhaustive list, there are some cases in which material alterations under Art. 19 (3) of the CISG, were considered as immaterial by the courts; for instance the Austrian Supreme Court decided that an alteration in the quantity of the goods (in other elements of the contract is also possible) was a non-material one, because this alteration was in favour of the Offeror, so it did not constitute a counter offer.[130] III. Standard Contract Terms and Battle of Forms 1. Inclusion of SCT into the Contract Today it is accepted that, Standard Contract Terms (hereinafter SCT) provide facilitation to daily trade and practice. Though SCT have a crucial role in terms of formation of contract, the concept of SCT is not clearly provided under the CISG.

[125] I Schwenzer/ F Mohs, Old Habits Die Hard: Traditional Contract Formation in a Modern World, IHR 2006, pp. 239-246, p.243, available at: http://cisgw3.law.pace.edu/cisg/ biblio/schwenzer-mohs.html (Last visit: 13.09.2012). [126] F Vergne, The Battle of the Forms Under the 1980 United Nations Convention on Contracts for the International Sale of Goods, 33 American Journal of Comparative Law, 1985, pp. 233-258, p. 256. [127] Kindler, supra n. 47, p.98; Mullis, supra n. 5, p.89. [128] Kindler, supra n. 47, p.98. [129] Ibid. [130] In English translated case, it is stated that: “Even though Art. 19(3) CISG enumerates certain modifications and qualifies them as material; it may as well be that modifications to these points within the declaration of acceptance are to be considered not material to the agreement. This might be a result of the special circumstances of the case, previous negotiations or of usages in the particular business or between parties. Modifications in favor of the offeror, in particular, do not require a counter acceptance.” Federal Supreme Court of Austria, 20.03.1997 available at: http://cisgw3.law.pace.edu/cases/970320a3. html (Last visit: 15.10.2012).

2013/ 1 Ankara Bar Review 141 Formation of Contract According to the CISG / VURAL

It is obvious that the standard terms will have effect when they are part of the contract.[131] Actually, in order to be a part, they have to be included into contract but here this raises the question of how the inclusion of SCT may happen.

Peer Reviewed Article Reviewed Peer As has been mentioned above, the inclusion of SCT is not an issue precisely governed by the CISG but the issue may be handled in respect of the Art.8, Art.14, Art.18[132] and Art.19 of the CISG.[133] But here we accept to deal with only Art.19 (2) of the CISG and the other articles mentioned above will not be examined in this work. Pursuant to the Art.19 (2) of the CISG, while including the standard contract terms into contract, the parties` assent is necessary. As a consequence of the same article, as long as the standard terms have no material alterations (limitations as well) and where the other party does not oppose those terms, the SCT may become the part of the contract.[134] Additionally, it has to be mentioned that as a result of receipt theory (which seems dominant in terms of contract formation under the CISG) the inclusion of standard terms has to receive the other party in order to be effective.[135] 2. Battle of Forms & the Theories for the Solution Although, in many international sales cases, standard form documents (standard terms and conditions) are commonly used and have important roles in stan- dardizing and accelerating the contract formation process;[136] until a dispute exists, the parties usually are not aware of those incorporated standard forms, which they communicate each other.[137] Schlechtriem states that, “Differences between a declaration of acceptance and offer are nearly always the result of incorporation of, or attempts to incorporate standard terms of contract.”[138] Therefore it is clear thatif the parties exchange standard terms, which are inconsistent with each other, a conflict occurs. That situation is especially called “battle of the forms” regarding the conflicting SCTs between the parties. In cases such a conflict in the standard terms (a battle of the forms) exists,

[131] Ludwig,supra n. 12, p.79. [132] S Eiselen, The Requirements for the Inclusion of Standard Terms in International Sales Contracts, Potchefstroom Electronic Law Journal, Vol. 14, No. 1, 2011, pp. 2-31, p. 4, available at SSR: http://ssrn.com/abstract=1838362 (Last visit:14.10.2012) [133] Ludwig,supra note 12, p.336. [134] Ibid. [135] Ibid, p.337. [136] Mullis, supra n. 5, p.91. [137] U Magnus, Last Shot vs. Knock Out–Still Battle overthe Battle of Forms underthe CISG, in Commercial Law Challenges in the 21st Century, Jan Hellner in memoriam, Stockholm Centre for Commercial Law Juridiska instutionen, 2007, pp. 185-200, p.186. available at: http://www.cisg.law.pace.edu/cisg/biblio/magnus4.html (Last visit: 15.09.2011). [138] Schlechtriem, in Schlechtriem/Schwenzer, Art. 19, para.19.

142 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL two questions have to be answered by the courts. Firstly was a valid contract formed? Secondly, if there is a formation of valid contract, which terms are the parts of the contract? The latter determination is seen mostly controversial.[139] Indeed, the CISG has no special provision that governs the standard terms [140]

and to answer those two questions. If there is the problem of conflicting Article Reviewed Peer standard terms in an international sales contract, there arethree approaches that treat the problem and reach the solutions in different ways.[141] a) Approach of Domestic Law According to that approach, CISG and its general principles do not include sufficient solution for the conflicting standard terms because the issue is related to the validity of contract,[142]which is not governed by the CISG and therefore the domestic law has to be applied.[143]But actually regarding the aim of the CISG (unification of international sales law) it is fair to say that this approach is not a way that the CISG wants to reach in terms of the standard contract terms and the contract formation. Also, in contrast to Domestic Law Approach scholarly arguments have to be pointed here. Piltz accepts that, incorporation of standard terms is a matter of the contract formation which is explicitly ruled by the CISG and thereby the problem of standard terms has to be resolved under the CISG instead of domestic law and also, Moccia argues that the courts should consider separately as first whether a valid contract concluded and then as second step which terms are the parts of the contract have to be answered according to the general principles upon which the CISG is based instead of domestic law.[144]

[139] M Viscasillas, Battle of the Forms, Modification of Contract, Commercial Letters of Confirmation: Comparison of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the Principles of European Contract Law (PECL)” (2002). 14 Pace Int’l Law Review, pp. 153-161, p. 156, available at: http:// digitalcommons.pace.edu/pilr/vol14/iss1/6 (Last visit: 15.10.2012) [140] B Piltz, Standard Terms in UN-Contracts of Sale, VJ 2004 (8), pp. 233–244, available at: http://25.cisg.info/content/publikation.php?id=10 (Last visit: 15.10.2012) [141] Schlechtriem, in Schlechtriem/Schwenzer, Art. 19, para. 21. [142] According to Art.4 (a) “…Convention, it is not concerned with the validity of the contract”. [143] “Näher liegt die Folgerung, dass bei sich also um ein im Gesetz nicht geregeltes “Gültigkeitsproblem“ im Sinn des Art. 4. S.2 lit. a handelt, zu dessen Lösung auf das Kollisionsrechtlich berufene nationale Reckt zurückzugreifen ist.“ U von Huber „Der UNCITRAL-Entwurf eines Übereinkommens über Internationale Warenkaufverträge.“ 43 Rabels Zeitschrifft, H. 3, p.445. [144] C Moccia, The United Nations Convention on Contracts for the International Sale of Goods and the Battle of the Forms, Fordham International Law Journal (1989/1990), pp. 649-679, p. 674.

2013/ 1 Ankara Bar Review 143 Formation of Contract According to the CISG / VURAL

b) Last Shot Rule This approach is considered as the most accepted one[145]and follows strictly the offer- acceptance rules.[146] As has been discussed in Art.19 of the CISG, a response with material

Peer Reviewed Article Reviewed Peer modifications is not an acceptance in addition to this it leads to a rejection and even a counter offer. In the same case if the other party turns with a reply that includes material alterations at that moment this also means a rejection and new counter-offer as well and this goes on like a ping pong game[147]through mutually sending by parties their own conditions until one party commence to performing.[148]If there is a performance by one party, it means that the last submitted offer is accepted through a performance, which indicates assent to the offer (Art.18 (1) of the CISG).[149] Accordingly, the last sent form is the part of the contract and the sender of the last form is the winner of the battle.[150] Contrary to that approach, it is argued that this approach is not in accordance with commercial reality.[151]According to Magnus, this theory is unsatisfactory if the parties start the performance and still insist on their own terms[152] and Wilmer also claims that it is not always clear who is the sender of the last form; therefore some difficulties arise especially in terms of the determination of the contract elements.[153] In conclusion, considering the real commercial law in which each party insists on their own conditions, we agree that this theory is not adequate to solve the problem of the battle of forms. c) The Knock out Rule Pursuant to this approach the problem of the battle of the forms, is accepted as a gap-filling problem, which has to be solved by the general principles of CISG.[154] Here under the Knock out Rule; Art.6 of the CISG, which stipulates the party autonomy, prevails and allows parties a deviation from Art.19 of the CISG.[155] When the parties are content with the essential terms of the contract, under the Knock out Rule, it means that, parties agreed to exclude the conflicting

[145] Viscasillias, supra n. 139, p. 157. [146] Wildner,supra n.124, p. 5;Mullis, supra n. 5, p. 93. [147] Magnus, supra n. 137, p. 186. [148] Ibid; Wildner, supra n. 124, p. 5. [149] Wildner, supra n. 124, p. 5. [150] Ibid, p. 6; Viscasillias, supra n. 139, p. 157. [151] Mullis, supra n. 5, p. 94 [152] Magnus, supra n. 137, p. 192. [153] Wildner, supra n. 124, p. 6. [154] Viscasillias, supra n. 139, p.157. [155] Ibid; Schlechtriem, supra n. 2, p. 82.

144 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL standard terms and enter into the contract with only essential terms.[156]Actually in other words, here the conflicting terms are knocking each other out, and the provisions of the CISG are taking the place of those conflicting terms.[157] The German Courts also have followed different approaches, now the Knock [158]

out Rule is a very close approach to the German Supreme Court (BGH) Article Reviewed Peer and in a decision in 2002 shows the BGH’s approach, which obviously follows the Knock out Rule and states that; “According to the (probably) prevailing opinion, partially diverging general terms and conditions become an integral part of a contract (only) insofar as they do not contradict each other; the statutory provisions apply to rest (so called “knock out”rule).”[159] In conclusion as has been discussed above, there is no consensus on the best way to overcome the battle of forms neither in the literature[160] nor in the court decisions, but it is fair to say, like the German Supreme Court approach, when standard terms are contradicting with each other, then those terms may be excluded and therefore, the rest of the terms may still be part of the contract. IV. The exact Moment of the Contract Conclusion Art.23 of the CISG governs “the exact moment of the contract conclusion”.[161]Accordingly, the time when the acceptance becomes effective, the contract is concluded.[162] Art.18 (2) of the CISG also shows the time when “acceptance” becomes effective.[163] Accordingly the acceptance has to reach the offeror to become effective and just the dispatch (sending) of the acceptance by the offeree does not suffice to get an effective acceptance and a concluded contract as well. V. Late Acceptance 1. Under the CISG Art.21 of the CISG governs the problem of the late acceptance[164] and states that even the late acceptance may lead to a contract conclusion.[165]

[156] Schlechtriem,supra n. 2, p.82; Mullis, supra n. 5, p. 94. [157] Wildner,supra n. 124, p. 7. [158] Schlechtriem,in Schlechtriem/Schwenzer, Art. 19, para.21. [159] BGH, 9 January 2002,CISG-Online 651 see for English translation; Ingeborg S, Fountoulakis C, International Sales Law, Routledge-Cavendish, 2007, pp.166-168. [160] M van Alstine, Fehlender Konsens beim Vertragsabschluss nach dem einheitlichen UN-Kaufrecht. Eine rechtsvergleichende Untersuchung auf der Grundlage des deutschen sowie des US-amerikanischen Rechts. 1st ed. Nomos. Baden-Baden, 1995, p. 214. [161] Gruber, in MünchKomm, Art.23, para.1. [162] Ludwig, supran. 12, p.347. [163] Schlechtriem, in Schlechtriem/Schwanzer, Art. 18, para.11. [164] Schlechtriem, in Schlechtrim/Schwanzer, Art.21,para.2. [165] Ibid.

2013/ 1 Ankara Bar Review 145 Formation of Contract According to the CISG / VURAL

Art.21 of the CISG distinguishes the reasons of late acceptance.[166] Whereas Art.21 (1) of the CISG exists as general rule for late acceptance, Art.21 (2) of the CISG becomes an exception to that general rule.[167] Under Art.21 (1) of the CISG, there is a general rule for the effect of late acceptance and Art.21 (2) of

Peer Reviewed Article Reviewed Peer the CISG examines the lateness because of delay in transmission and its results. As the consequence ofArt.21 (1) and Art.21 (2) of the CISG, the offeror has right to choose to be bound in response to the late acceptance but in first situation (Art.21 (1)), the lateness arises from the offeree´s own behaviour according to Farnsworth, if the offeror wants to be bound to the contract, he has to send a notification to the offeree as soon as possible otherwise he does not have to send any notification.[168] On the contrary in the latter article, the reason of lateness is separated from the offeree`s behaviour, that reason arises from the delays in transmission.[169] Here the offeree has no fault in lateness and he has reliance and expectations on the formation of the contract, that is why the silence in response to that kind of late acceptance is of a binding legal consequence and accordingly unless there is no notification of offeror to the offeree, this means that, the contract is concluded with the late acceptance.[170] As has been seen above, in case of the late acceptance under CISG, the offeror has the right to refuse the late acceptance[171] and for the cases under Art.21 (2) of the CISG, which covers the late acceptance on account of delay in transmission, offeror´s silence against late acceptance is deemed as an approval of offeree´s acceptance, but offeror still has the power to declare not to be bound to the contract.[172] These separated results of Art.21 (1) and Art.21 (2) show us the CISG tries to find a fair solution towards the problem of the late acceptance between the offeree and the offeror through distinguishing the lateness reasons and their consequences in a balanced way. 2. Excursus: Late Acceptance underBGB Under German Law, there is a different approach from the CISG, in terms of the late acceptance.[173] According to §150 (1) BGB, an acceptance, which is dispatched by the offeree after the expiration of time or a reasonable time is a counter offer (Gegenangebot) and requires new acceptance from the offeror.[174]

[166] Ibid. [167] Farnsworth,in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987), pp. 189-194, p. 192, available at: http://www.cisg.law.pace.edu/cisg/biblio/ farnsworth-bb21.html [168] Ibid. [169] Ibid, p. 188. [170] Ibid, p. 189. [171] Ibid, p. 191. [172] Ibid, p. 192. [173] Piltz, Becksches Rechtsanwalts-Handbuch, § 16, para.15. [174] Ludwig, supra n. 12, p.403.

146 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL

Under § 149 BGB a late acceptance may be seen as an effective acceptance, unless the offeror informs the offeree forthwith that he does not approve the offeree`s acceptance and considers the offer as a lapsed offer.[175] In conclusion, Art. 21 (2) CISG and § 149 BGB[176] have to be regarded as [177]

the match ups. In order to apply the provision §149 BGB, the acceptance Article Reviewed Peer has to be dispatched by the offeree within a fixed or a reasonable time, but the offeror has to receive it lately in a concrete case.[178] VI. Withdrawal of the Acceptance According to the CISG, until the acceptance reaches the offeror, the offeree is the master of his acceptance[179] therefore the offeree may withdraw his acceptance (which is already dispatched) until it arrives to the offeror. This result comes from the receipt theory which has been mentioned above. Withdrawal of the acceptance (Art.22 of the CISG) runs parallel with withdrawal of the offer (Art.15 of the CISG)[180] because under both provisions the withdrawal is only possible between the dispatch of the declarations and their arrival.

D. Conclusion s has been evaluated that the formation of contract is also provided as a part under the CISG and the issue of the formation of the contract is dealt with the Part II of the CISG (Art.14-24). AThe traditional offer-acceptance model is the only model that the CISG explicitly speaks about. In terms of the effectiveness the offer and the acceptance, we have seen the dominated position of the receipt theory instead of the dispatch theory. Otherwise, if the dispatch theory was accepted under the Part.II of the CISG, the offer and the acceptance as well, would be effective after the dispatch of the offer by the offeror. Considering the termination reasons of the offer under the CISG, we have dealt with firstly the withdrawal of the offer, which is acceptable only in between time of the dispatch of the offer and its reach the offeree. Secondly, we have moved on the revocability of the offer and shown that under the CISG, the offer is in principle revocable unless there is no fixed time

[175] Eckert, in BeckOK, § 149, (intro) para. 1-12. [176] “If a declaration of acceptance received late by the offeror was sent in such a way that it would have reached him in time if it had been forwarded in the usual way,..” (§ 149 BGB) [177] Eckert, in Beck OK,§149 BGB, para. 12. [178] Busche, in MünchKomm, §149 BGB, para.1. [179] Ludwig, supra n. 12, p.345. [180] Ibid.

2013/ 1 Ankara Bar Review 147 Formation of Contract According to the CISG / VURAL

for acceptance or there is no reliance by the offeree on the irrevocability of the offer. As a deviation from the principle of the receipt theory, we have mentioned briefly that Art.16 (1) of the CISG, follows the Common Law-Mailbox rule and therefore; the revocation has to reach the offeree before he dispatches an

Peer Reviewed Article Reviewed Peer acceptance and thanks to the exceptions in Art.16 (2) of the CISG, it has been accepted that, there is a close approach to German understanding of the irrevocability of offer. It should be noted that, some practical misunderstandings may arise between the contract parties from different legal systems. Finally, as the third reason of the termination of the offer, the rejection of the offer has been discussed. In terms of the acceptance, the offeree is not charged with a reply in response to the offer and therefore in principle silence is not deemed as acceptance in itself. Whereas the CISG requires material alterations to make the deviated offer turn into a counter offer and terminate the former one, BGB makes no materiality test and accepts each deviation from the offer as counter offer and termination reason for the former offer. The problem of the inclusion of standard contract terms is not directly governed by the CISG and there is also no consensus on the solution of the battle of the forms under the CISG regime. As the last important point, the late acceptance has been discussed through making comparison between the CISG and the German approach. In conclusion, it is fair to say that for the unification of the formation of the contract The CISG has attempted to reach a compromise between civil law and common law systems and managed to uniform the issue of the formation of contract between the contracting states.

148 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL

REFERENCES Peer Reviewed Article Reviewed Peer

Artz, M / Berger, Klaus P./ Bieber, Hans J./ Franzen, M./ Gruber, Urs P./ Harke, Jan D./ et al. Münchener Kommentar zum Bürgerlichen Gesetzbuch, With assistance of Wolfgang Krüger, Harm Peter Westermann. 6. ed., Beck, München, 2012 (via Beck Online). Bamberger, G./ Roth, H.; Beck`scher Online Kommentar BGB, 24. ed., Beck, München 2012. Brox, H./ Walker, Wolf D.; Allgemeiner Teil des BGB, 35. ed., F. Vahlen, München, 2011. Büchtig, H. U. / Heussen, B; Das Beck`sches Rechtsanwalts-Handbuch, 10. Auflage, Beck, München, 2011. Christandl, G.; The ‘Dying’ Offer Rule in European Contract Law, European Review of Contract Law (ERCL), 2011, Vol. 7, No. 4, pp. 463-489, available at SSRN: http://ssrn.com/ abstract=2079558. Cvetkovic, P.; The characteristics of an offer in CISG and PECL, 14 Pace Int´L.Rev.12, 1, 2002, available at http://digitalcommons.pace.edu/cgi/view content.cgi?article=1190&context=pilr. Eiselen, S.; The Requirements for the Inclusion of Standard Terms in International Sales Con- tracts, Potchefstroom Electronic Law Journal, Vol. 14 (1), 2011 pp.2-31, available at: SSRN: http://ssrn.com/abstract=1838362. Eörsi, G.; Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan, 1987, pp. 145-149 available at: http://cisgw3.law.pace.edu/cisg/biblio/eorsi-bb15.html. Eörsi, G.; Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan, 1987, pp. 150-160, available at: http://cisgw3.law.pace.edu/cisg/biblio/eorsi-bb16.html. Esser, M.; Commercial Letters of Confirmation in International Trade: Austrian, French, Ger- man and Swiss Law and Uniform Law Under the 1980 Sales Convention, 18 Georgia Journal of International and Comparative Law, 1988, p. 427 ff, available at: http://www.cisg.law.pace. edu./cisg/biblio/esser.html#me12. Fahrnswort, A.; Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan, 1987, pp.163-174, available at: http://cisgw3.law.pace.edu/cisg/biblio/farnsworth-bb18.html. Farnsworth A.; Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan 1987, pp.189-194, available at: http://www.cisg.law.pace.edu/cisg/biblio/farnsworth-bb21.html. Honnald, J.; Uniform Law for international sales under the CISG, 3.ed., Kluwer Law Interna tional, The Hague, 1999, available at: http://www.cisg.law.pace.edu/cisg/biblio/honnold.html. Mullis,A./Huber, P.; The CISG, A new Textbook for Students and Practitioners. Sellier European Law Publication, München, 2007. Ferrari F.; Internationales Vertragsrecht. EGBGB, CISG, CMR, Fact Ü. 2. ed., Beck, München, 2010.

2013/ 1 Ankara Bar Review 149 Formation of Contract According to the CISG / VURAL

Garro, A.; Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Good, 23 Int`L Law., 1989, pp. 443-455, available at: http://cisgw3.law. pace.edu/cisg/biblio/garro1.html. Giannini, G.; The Formation of the Contract in the UN Convention on the International Sale of Goods: A Comparative Analysis, Nordic Journal of Commercial Law, 2006, V.1, available Peer Reviewed Article Reviewed Peer at: http://www.cisg.law.pace.edu/cisg/biblio/giannini.html#iii. Jauernig, O.; Bürgerliches Gesetzbuch. Mit Allgemeinem Gleichbehandlungsgesetz (Auszug), Kommentar, 14.ed., Beck, München,2011 Köhler, H.; BGB, allgemeiner Teil. 35. ed., Beck, München, 2011. Kröll, S.; Kröll-Mistelis-Perales Viscasillas; UN Convention on Contracts for the International Sale of Goods (CISG). Beck, München, 2011. Kindler, P.; Einführung in das neue IPR des Wirtschaftsverkehrs, Verlag Wirtschaft und Recht, Frankfurt a.M, 2009. Lookofsky, J.; Understanding the CISG. A Compact Guide to the 1980 United Nations Conven- tion on Contracts for the International Sale of Goods. 3. ed., Kluwer Law International, 2008. Ludwig, K.; Der Vertragsschluss nach UN-Kaufrecht im Spannungsverhâltnis von Common law und civil law. Dargestellt auf der Grundlage der Rechtsordnungen Englands und Deutschlands., Diss.P. Lang.,Frankfurt-am-Main, 1994. Magnus, U.; Last Shot vs. Knock Out–Still Battle over the Battle of Forms under the CISG, in Commercial Law Challenges in the 21st Century, Jan Hellner in memoriam, 2007, Iustus Förlag, pp. 185-195, available at: http://www.cisg.law.pace.edu/cisg/biblio/magnus4.html. Magnus, U.; “UN-Kaufrecht“ Julius von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Sellier/de Gruyter, Berlin, 2005. Mahosun, H.; Der B2B-Vertragsschluss im E-Commerce nach deutschem und syrischem Recht , 2011. Zugl.: Frankfurt (Oder), Univ., Diss., 2011, available at: http://nbnresolving.de/urn/ resolver.pl?urn=urn:nbn:de:kobv:52 1-opus-549. Moccia, C.; The United Nations Convention on Contracts for the International Sale of Goods and the Battle of the Forms, Fordham International Law Journal, 1989/1990, pp. 649-679. Piltz, B.; Standard Terms in UN-Contracts of Sale, VJ 2004 (8), pp. 233 – 244, available at: http://25.cisg.info/content/publikation.php?id=10. Schlectriem, P./ Butler, P.; UN law on International Sales, Springer-Verlag Berlin Heidelberg, 2009. Schlectriem, P./ Ingeborg, S.; Kommentar zum Einheitlichen UN-Kaufrecht, Das Übereinkom- men der Vereinten Nationen über Verträge, über den internationalen Warenkauf, 5. ed, Beck, München, 2008. Schulze, R./ Dörner, H.; Bürgerliches Gesetzbuch: Handkommentar, Nomos, Baden Baden, 7.ed., 2012 (via Beck online). Secretariat; Secretariat Commentary on the Draft Convention on Contracts for the International Sale of Goods, A/Conf.97/5 1979. van Alstine, M.; Fehlender Konsens beim Vertragsabschluss nach dem einheitlichen UN-Kaufrecht.

150 Ankara Bar Review 2013/ 1 Formation of Contract According to the CISG / VURAL

Eine rechtsvergleichende Untersuchung auf der Grundlage des deutschen sowie des US-amerikanischen Rechts. 1.ed., Nomos. Baden-Baden, 1995. Wildner, K.; Art. 19 CISG: The German Approach to the Battle of the Forms in International Contract Law, The Decision of the Federal Supreme Court of Germany of 9 January 2002, 20 Pace Int´l L. Rev. 1 (2008) available at: http://digitalcommons.pace.edu/pilr/vol20/iss1/1/. Peer Reviewed Article Reviewed Peer Witz, W.; Salger, Hanns-Christian; Lorenz, Manuel: International einheitliches Kaufrecht. Praktiker-Kommentar und Vertragsgestaltung zum CISG. Verlag Recht und Wirtschaft, Heidel berg, 2000. von Huber, U.; Der UNCITRAL, Entwurf eines Übereinkommens über Internationale Waren- kaufverträge, 43RabelsZeitschrifft, p.445 ff. Viscasillas, M.; Cross-References and Editorial Analysis: Article 19, available at: http://cisgw3. law.pace.edu/cisg/text/cross/cross-19.html. Viscasillias, M.; Contract Conclusion under CISG, 16 Journal of Law and Commerce (Spring 1997) pp. 315-344, available at: http://cisgw3.law.pace.edu/cisg/biblio/perales5.html#iii. Viscasillas, M.; Battle of the Forms, Modification of Contract, Commercial Letters of Confirma tion: Comparison of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the Principles of European Contract Law (PECL), 2002, Pace International Law Review. Paper 189, available at: http://digitalcommons.pace.edu/intlaw/189.

2013/ 1 Ankara Bar Review 151

Articles

The Principle Of Parliamentary Supremacy In The UK Constitutional Law And Its Limitations

Av. Ahmet Emrah GEÇER*

* Attorney at law in Istanbul Bar Association, Istanbul University (L.LB.), King’s College London (L.LM.). The Author can be contacted on [email protected].

The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER

ABSTR ACT

This article examines one of the crucial constitutional doctrines of the UK law, the principle of parliamentary sovereignty, in consideration of the European Commu- nities Act 1972, the Human Rights Act 1998 and the Devolution Acts. Particularly, the leading cases such as the Factortame and the Hirst case are scrutinised. In terms of the traditional view of this doctrine, Parliament is omnipotent and therefore as mentioned by adherents of this notion that there are no limits on Parliament relating to subject matter. In this paper, nevertheless, it is argued that the supremacy of parliament is not absolute in the UK constitutional law anymore due to the reasons stated. Keywords: United Kingdom, Common Law, Constitu- tional Law, the Principle of Supremacy of Parliament, EU Law.

2013/ 1 Ankara Bar Review 157

The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER

Introduction hen any constitution in a democratic country which has whether written or unwritten[1] is examined, it can be seen that ultimate authority stems from a statute, convention or history. If a country hasW a written fundamental document, it is governed by representatives with reference to the formal constitution[2] and it is generally interpreted by constitutional court.[3] What if a country such as the UK has not got a written constitution? This issue is highly divisive amongst jurists in United Kingdom due to the fact that there are various reasons as below mentioned. In consideration of the history of British constitutional law in the last century,[4] it could be concluded that the Dicey theory was the most influential theory amongst the other theories.[5] According to Dicey[6], “Parliament has under the English constitution, the right to make or unmake any law whatever; and further, ... no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament.” Notwithstanding the notion, which explained the sovereignty of parliament, have shaped the pillar of British constitution, there are a number of sophisticated academic arguments against the doctrine. In recent years, notably, the theory has been discussed in the light of the European Union Law, the European Convention on Human Rights and Devolution. At this point, various authors continue to advocate conventional approach and they believe that it has an absolute power and it can change whatever it wants. Some, however, encounter this stance and they argue that even though parliamentary sovereignty is a fundamental rule of British constitution, its authority is limited to some extent. For instance, Lord Hoffmann highlights that despite the fact that Parliament has the power to make primary legislation contrary to rights in legal area, the aspect of the UK courts, even though acknowledging the sovereignty of parliament, they should consider those rights cannot be restricted by any power.[7]

[1] Barnet,Hilaire,(2011;115), Constitutional and Administrative Law, Newyork, Routledge Press [2] Weill,Rıvka,(2012;457), Reconciling Parliamentary Sovereignty and Judicial Review: On the Theoretical and Historical Origins of the Israeli Legislative Override Power, Hastings Constitutional Law Quarterly, vol,39-2 [3] See footnote 2, [4] Loveland,Ian,(1996;517),Parliamentary Sovereignty and the European Community: the Unfinished Revolution?, Parliamentary Affairs,vol.49-2,Oxford University Press [5] Eleftheriadis,Pavlos,(2009;2),Parliamentary Sovereignty and the Constitution, Canadian Journal of Law and Jurisprudence,Vol.XXII,no:2 and Barber,N.W.,(2011;145),The After Life of Parliamentary Sovereignty, Oxford, Oxford University Press [6] Dicey,A.V.,(1915,3-8), The Law of Constitution, Oxford Press [7] Le Sueur,Andrew and et al,(2010;75), Public Law Text, Cases, and Materials, Oxford University Press

2013/ 1 Ankara Bar Review 159 The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER

This paper will analyse the debate on parliamentary sovereignty from history to today in consideration of the above issues and Lord Hope words; “Our constitution is dominated by the sovereignty of parliament but parliamentary sovereignty is no longer, if it ever was, absolute.[8]” It, then, will reach a consequence, which is absolute parliamentary sovereignty has no place in contemporary British constitution.

A. The Effect Of European Law On The Supremacy Of Parliament Before United Kingdom entered European Community in 1973, the principle of the EU legal order which enabled the EU to have supreme authority over all Member States had already been established.[9] Furthermore, the United Kingdom signed the Brussels Treaty of Accession in 1972. However, whereas international treaties concluded by the United Kingdom are binding on that state with regard to international law, they do not produce legal obligations in internal legal system unless they are incorporated by an Act of Parliament.[10] Hence, the European Communities Act 1972 was made by Parliament. In terms of the Article 2(1) of the act: “...all such rights, powers, liabilities, obligations and restrictions from time to time arising by or under the Treaties ... are without further enactment to be given effect ... in the United Kingdom.” It is clear that it is a direct challenge to sovereignty ofthe UK Parliament and, also, includes a significant restriction on the parliamentary supremacy in relation to substantive issues. To put in another way, the United Kingdom provides for the supremacy of EU law in the European Communities law 1972. On the other side of the coin, whereas the European Communities Act 1972 came to force in United Kingdom, there had not been any dispute until the Factortame case in 1988 since the Parliament had struggled to avoid making a legislation, which is in conflict with European law and, in the same vein, judges zealously had interpreted domestic provisions in accordance with the norms of EU law.[11]

[8] Parpworth,Neil,(2007;92), Constitutional and Administrative Law, Oxford University Press; ( Lord Hope, Jackson v The Attorney General(2005;56)) [9] Turpin,Colin;Tomkins,Adam(2011;79),British Government and Constitution, Cambridge, Cambridge University Press. “...by creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty on a transfer of powers from the states to the Community, the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves...” cited in Costa v ENEL case 1964 [10] Carroll,Alex,(2003;96-100) Constitutional and Administrative law, Pearson Publication [11] Barber,N.W.(2011;149) The Afterlife of Parliamentary Sovereignty, Oxford, Oxford University Press.

160 Ankara Bar Review 2013/ 1 The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER

The leading Factortame case clearly sets out the relationship between EU and UK law and the nature of parliamentary supremacy.[12] The court held that European Law takes precedence over domestic law due to the fact that European Community Act signed up by the United Kingdom. It can be concretized by Lord Bridge statement[13] in giving judgment in the Factortame case. The Lord argued that “...It was certainly well-established in the jurisprudence of the Court of European Justice long before the United Kingdom joined the community. Thus, whatever limitation of its sovereignty of parliament accepted when enacted the European Communities Act 1972 was entirely voluntary…”[14] However, according to several writers, the effect of Act 1972 might appeared a rotation of parliamentary sovereignty from the UK Parliament to the EU, the statute may be repealed by parliament. That is to say, sovereignty has been lent rather than given away.[15] On the other side, it is stated that the UK Parliament preferred an irreversible way because of the fact that even if taking the sovereignty back is likely to be possible in theory, this may not be possible in practise. Namely, while there is a formal veneer of parliamentary sovereignty in the UK law, for all practical purposes, ascribing priority to the law of the European law.[16] It is concluded that the Factortame decision threw the deficiencies of this old view into sharp relief in consideration of UK’s membership of the EU.[17] This is

[12] Business for New Europe,(2010;5),The Case for a UK Sovereignty Bill: Options and Analysis [13] Factortame v Secretary of State for Transport 1991, (Lord Bridge,658)“Some public comments on the decision of the European Court of Justice, affirming the jurisdiction of the courts of member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in E.C.C. Treaty it was certainly well established in the jurisprudence of European Court of Justice long before the United Kingdom joined the community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court , when delivering final judgment , to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the European Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law in those areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy.” [14] See footnote 8, p.98 [15] See footnote 9,p.86 [16] Elliot,Mark(Undated;551) United Kingdom: Parliamentary Sovereignty Under Pressure, Cambridge Press [17] Loveland,Ian(2011;26) Constitutional Law, Administrative Law, and Human Rights,

2013/ 1 Ankara Bar Review 161 The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER because the doctrine was improved originally by the judges in response to the political events of seventeenth century. The United Kingdom altered substan- tially its constitutional order that the principle of parliamentary sovereignty replaced the Monarchy. In the same fashion, it can be argued that it required another significant constitutional order alteration in the move towards greater European integration.[18]

B. The Relationship Between European Convention On Human Rights And The Parliamentary Sovereignty Human rights Act 1998 accepted by the UK providing the incorporation of the European Convention on Human Rights into domestic law.[19] The adoption has resulted in a debate whether it takes precedence over the UK law.[20] The HRA has affected on the UK law with the provisions of the European Convention on Human Rights and the ECtHR verdicts, even if there are not always direct restrictions.[21] Various writers considered that the 1998 Act is the best thought of as a radical but not a revolutionary measure about the effect of Human Rights Act on Parliamentary sovereignty.[22] They believe that it is radical because new values such as transparency and the accountability of governments are injected to domestic law. It, in contrast, is not revolutionary since it does not repeal the principle of parliamentary supremacy. At this point, especially prominent professor Feldman statement can be appropriate quota- tion to clarify above issue. “…The Act’s ability to inject values which could fill the ethical vacuum at the hearth of public life depends on the perceived legitimacy of the Convention Rights, which in turn depends on their capacity to accommodate the most important element of the United Kingdom’s constitutional heritage…”[23] On the other hand, some jurists such as Sir John Laws classified statutes as two parts and he termed ordinary statutes and constitutional statutes. He, also, asserted that while ordinary statutes may be repealed, but constitutional statutes may not in the sense that the abrogation of a constitutional statute might cause negative effect on fundamental human rights. According to John Laws, in that situation, the courts may pay more

Oxford, Oxford University Press [18] See footnote 10,p.116 [19] Twomey,Anne,(2007;1),Implied Limitations on Legislative Power in The United Kingdom, Sydney Law School, Legal studies Research Paper,no:07/59 [20] See footnote 2,p.137 [21] See footnote 16,p.552 E [22] Such as Allen and Thompson [23] Pollard,David;Parpworth,Neil;Huges,David(2007;60), Constitutional and Administrative Law, Text with Materials, Oxford University Press.

162 Ankara Bar Review 2013/ 1 The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER or less deference to the legislature when in interpreting statutes even though acknowledging of parliamentary sovereignty.[24] Accordingly, neither doctrine nor the courts reached a broad consensus regarding the issue. Pending case which is called Hirst v United Kingdom, however, would be a prominent source to tackle the she subject, concerns the franchise and general exclusion from it of convicted prisoners.[25] British court concluded in favour of the domestic law and rejected the claimant’s case. Subsequently divisional court ruled that the matter should be left for parliament to determine. The claimant, then, appealed to ECtHR. The Grand Chamber of ECtHR decided by majority of that this rule was unlawful. Afterwards, government have not tended to change in the law owing to that any change gives rise to entirely outcry in the community.[26] In spite of the fact that the coalition government did not want to change the statute as its predecessor, it scared that further inaction would lead to amount of indemnity.[27] The House of Commons, nevertheless, debated the matter and unfortunately MPs voted the majority against the amendment. The case is ongoing and it is shown that when the matter resolve, this decision will dramatically influence the UK law. When the HRA is scrutinized, the court should consider two outstanding sections regarding relationship HRA, the UK parliament and British courts in this case. According to these articles, the courts have a right to decide which one use in that case. If they use the section 4 and the issue will remain in the hands of Parliament. In contrast, the section 3 is opted by courts giving effect in a way which is fitting with HRA.[28] Overall, it is submitted that even though parliamentary sovereignty is being wounded by HRA, this is not always a direct restriction. It depends on whether the courts enforce section 3 or 4. If court interprets the matter in terms of the section 3, parliamentary sovereignty is affected by the court decision. If enforced the section 4, there is no influence on parliamentary sovereignty. In the next period, it is believed that it is likely to clarify with the Hirst case.

[24] See footnote 8,p.90 [25] See footnote 9,p.80 [26] Allen,Micheal-Thompson,Brian(2011;423) Constitutional and Administrative Law, Oxford University Press [27] See footnote 9,p.80 [28] See footnote 9,p.81

2013/ 1 Ankara Bar Review 163 The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER

C. Is Devolution Matter Against The Traditional Constitutional Doctrine Of UK?[29] Labour government initiated a devolution process in 1998, by means the Scotland, Wales and Northern Ireland Act. They provide the nations of the United Kingdom with a system of self-government, in differing degrees, except with England. According to Barnett, since the authority devolved is the will of Britain parliament, thus Westminster Parliament can withdraw the authority from subordinate governments and institutions whenever it wishes. She, furthermore, advocated that the devolution enables the nations the granting of limited autonomy defined by the statutes and controlled by the courts. That is to say, the dependence of legal-theoretical sovereignty is upon the political sovereignty of the people of nations.[30] Elliot, however, point out that the UK Parliament has not renounced legislative sovereignty in relation to the three nations. He, moreover, put forward a new comment, which is unilateral interference in the devolved matters by the UK Parliament would fundamentally undermine the spirit of the devolution scheme. This might be possible in theoretically, but in practice, it does not as it would be politically unacceptable for the Westminster Parliament to ignore the wishes of the nations.[31] It is concluded that devolution apparently does not have an influence on parliamentary sovereignty, but indeed it is likely to restrain parliamentary supremacy in some issues.

[29] For detailed information: Bogdanor,Vernon,(2001), Devolution in the United Kingdom, Oxford University Press [30] See footnote 2,p.137 [31] See footnote 16,p.545

164 Ankara Bar Review 2013/ 1 The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER

Conclusion hilst parliamentary sovereignty has evolved in many years[32], it suc- ceeds in remaining as a matter of law.[33] Even though it continue to remain a matter, parliamentary sovereignty have lost its effect onW British constitution owing to the fact that there are several factors such as EU law, HRA, the initiative of Devolution and Common Law Radicalism.[34] Taking everything into account, apart from these, however, it seems to preva- lent idea that the most important challenge is phenomenon of Globalisation. It is known that Globalisation leaded to nations make a significant amount of treaties, pacts and collaboration with one another. Hence, nations felt the need standard of rules. Accordingly they established supranational institutions such as the EU and the some rules enforced by the institutions preceding domestic laws of nations. Thus, the effect of state authority on nation has declined. As Lord Hope words;”…But parliamentary sovereignty is no longer, if it was, absolute’ because of the fact that the world has dramatically changed in the recent years.”[35] What is more, we conclude that the principle of parliamentary sovereignty was designated to eliminate conventional powers such as the monarchy. Once democratic practice spread across the world, nevertheless, a new threat emerged as democratically elected fascist regimes. [36] Therefore, it is necessary to make limitations on the public’s will. Particularly, even a democratically elected parliament should not be able to touch fundamental human rights.

[32] See footnote 26 [33] See footnote 9,p.95 [34] Bogdanor,Vernon,(2009;32), The New British Constitution, Hart Publishing Limited [35] See footnote 8,p.92; ( Lord Hope, Jackson v The Attorney General(2005;56)) [36] Ginsburg,Tom,(1997;1-3),The Decline and Fall of Parliamentary Sovereignty, Cambridge University Press

2013/ 1 Ankara Bar Review 165 The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER

BIBLIOGR APHY

Allen,Micheal-Thompson,Brian,(2011),Constitutional and Administrative Law,Oxford Uni- versity Press Barber,N.W.,(2011), The Afterlife of Parliamentary Sovereignty,Oxford,Oxford University Press and Newyork University Scholl of Law. Barnett, Hilaire,(2011),Constitutional and Administrative Law,Newyork,Routledge Press Bogdanor,Vernon,(2001), Devolution in the United Kingdom, Oxford University Press Bogdanor,Vernon,(2009), The New British Constitution, Hart Publishing Limited Bradley A.W.,Ewing K.D.,(2003),Constitutional and Administrative Law, Pearson Longman Butler,Petra,(2004),Human Rights and Parliamentary Sovereignty in New Zealand, VUWLR 35 Business for New Europe,(2010),The Case for a UK Sovereignty Bill: Options and Analysis Carroll,Alex,(2003) Constitutional and Administrative law, Pearson Publication, United Kingdom Dicey,A.V.,(1915), The Law of Constitution, Oxford Press Eleftheriadis,Pavlos,(2009),Parliamentary Sovereignty and the Constitution, Canadian Journal of Law and Jurisprudence,Vol.XXII,no:2 Elliott, Catherine-Quinn, Franches,(2011), English Legal System,Essex: Pearson Press. Elliott,Mark,(2007),United Kingdom Bicameralism, Sovereigny, and the Unwritten Costitution, Oxford University Press and Newyork University Scholl of Law. Elliott,Mark,(Undated), United Kingdom: Parliamentary Sovereignty Under Pressure, Cambridge. Ginsburg,Tom,(1997),The Decline and Fall of Parliamentary Sovereignty, Cambridge University Press Le sueur,Andrew and et al,(2010), Public Law Text, Cases, and Materials, Oxford University Press Loveland,Ian,(1996),Parliamentary Sovereignty and the European Community: the Unfinished Revolution?, Parliamentary Affairs,vol.49-2,Oxford University Press

166 Ankara Bar Review 2013/ 1 The Principle Of Parliamentary Supremacy In The Uk Constitutional Law And Its Limitations / GEÇER

Loveland,Ian,(2009), Constitutional Law,Administrative Law, and Human Rights, Oxford, Oxford University Press. Parpworth,Neil,(2007),Constitutional and Administrative Law, Oxford University Press Pollard,David and et al,(2007),Constitutional and Administrative Law text with materials, Oxford University Press Turpin,Colin-Tomkins,Adam,(2011), British Government and the Constitution, Cambridge, Cambridge University Press. Twomey,Anne,(2007),Implied Limitations on Legislative Power in The United Kingdom, Sydney Law School, Legal studies Research Paper,no:07/59 Weill,Rıvka,(2012), Reconciling Parliamentary Sovereignty and Judicial Review: On the Theo- retical and Historical Origins of the Israeli Legislative Override Power, Hastings Constitutional Law Quarterly, vol,39-2 Woodhouse, Diana,(2007), United Kingdom the Constitutional Reform Act 2005-Defending Judicial Independence the English Way, Oxford University Press and New York University Scholl of Law. Case law: Factortame v Secretary of State for Transport AC 604 [1991] Hirst v the United Kingdom ECHR 681 [2005] Jackson v The Attorney General UKHL 56 [2005] Av. Ahmet Emrah Geçer Erdem/Erdem Hukuk Bürosu, Abdi İpekçi Caddesi, Deniz Apt., no: 20, kat 4/5 Teşvikiye/İstanbul

2013/ 1 Ankara Bar Review 167

Should Mediators in Workplace Disputes Be Law yers?

Esra YILDIZ*

* Queen Mary University of London 2012-2013 LL.M. Student.

Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ

Introduction ue to the increased interest in the possible applications of alternative dispute resolution (ADR) processes in the past ten years, the term mediation has become a permanent part of legal terminology.[1] Media- Dtion is also a significant dispute resolution method that is practised by lawyers, non-lawyers and is closely associated with workplace disputes.[2] Currently, a hotly-debated issue is whether mediators should be lawyers or non-lawyers. This is because most lawyer mediators and experts believe that lawyers have more mediating skills than non-lawyer mediators with which to analyze and evaluate the current legal positions of the disputants.[3] Furthermore, some mediation experts claim that using an evaluative approach is an indispensable part of effective, successful mediation; because non-lawyers cannot inform the parties about their legal rights and obligations[4] they should not be allowed to mediate.[5] However, others assert that non-lawyers contribute their own specialized knowledge and attributes to the mediation process, and that many of these attributes are not shared by their lawyer counterparts.[6] Although this argument extends to every area of mediation, it is particularly important in family and workplace disputes.[7] This is owing to the fact that there are certain similarities between the resolution of family disputes and employment disputes, such as that both may involve a high degree of personal feeling.[8] In addition, the remedies available in the courts may not achieve the final resolution of a dispute that may include non-legal questions as well.[9] In terms of employment dispute resolution (EDR), this is particularly the case where the individual is still working for the employer.[10] Parties to labour and employment disputes typically have long-term and ongoing relationships that can be damaged by miscommunication over issues, for instance, job standards

[1] Karen A. Zerhusen, ‘ Reflections on the Role of the Neutral Lawyer: The Lawyer as Mediator’ (1993) 81 KyLJ 1165 [2] Jacqueline M. Nolan-Haleyt, ‘Lawyers, Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective’ (2002) 7 HNLR 235 [3] Matthew Daiker, ‘No J.D. Required: The Critical Role and Contributions of Non-Lawyer Mediators’ (2005) 24 RL 499 [4] ibid at 500 [5] ibid at 501 [6] Daiker (n 3) 501. [7] Cherly Dolder, ‘The Contribution of Mediation to Workplace Justice’ (2004) 33 ILJ 320 [8] ibid at 321 [9] The Report of the Employment Tribunal System Taskforce (London: HMSO, July 2002) 7.25 [10] ibid

2013/ 1 Ankara Bar Review 171 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ and expectations or an employee’s perception.[11] To resolve these conflicts, the parties may need a neutral third party who knows the relationship between both disputing parties and workplace conditions, such as human resources practitioners. Therefore, it should not be compulsory for a lawyer mediator to resolve workplace conflicts. Mediation is a voluntary dispute resolution process and nobody, other than the parties involved,[12] should be able to decide whether their mediator is a lawyer or not. This approach comes from the self-determination principle in ADR.[13] Indeed, being a lawyer might not be necessary to mediate a dispute effectively because mediation is not composed of an evaluative approach, for instance, giving legal information to the parties.[14] Mediators should be more able to provide the disputing parties with an atmosphere conducive to communication. If parties wish to understand legal process and rights, they have a chance to consult a lawyer. Notwithstanding, non-lawyer mediators may face challenges when they mediate employee conflicts but they also have a considerable amount to contribute to this process. In this paper, not all challenges and contributions of non-lawyer mediators in EDR can be discussed thoroughly so the focus will be on the compatible mediation method. It will then be shown that it is not necessary to choose lawyer mediators, although there are challenges of being non-lawyer mediators, such as giving legal advice to the parties, being manipulated by attorneys representing the parties and power imbalances between disputing parties.[15] DIFFERENT MEDIATION METHODS IN WORKPLACE DISPUTES Choosing the type of mediator is an essential stage in deciding about the mediation approach. This is due to the fact that the chosen method has a bearing on the mediation process and the mediator may be able to use some tactics in the approach, such as using an evaluative method which would need legal knowledge. Therefore, in this case, it may be beneficial and effective for the mediator to be a lawyer. However, different mediation approaches may be used in different types of disputes with successful outcomes. The three mediation approaches commonly used: facilitative, transformative and evaluative, will be discussed in the first part of this essay, and it will be argued that one of these is particularly useful for workplace conflicts.

[11] R. B. Jacobs, ‘Resolving Workplace Disputes Through Mediation’ NJLJ accessed date 5.3.2013 [12] Jacob Bercovitch and Allison Houston, ‘ Resolving International Conflicts the Theory and Practise of Mediation’ in Jacob Bercovitch (eds), The Study of International Mediation: Theoretical Issues and Empirical Evidence (LRP, 1996) [13] Robert A. Baruch Bush, ‘Efficiency And Protection, Or Empowerment And Recognition?:The Mediator’s Role And Ethical Standards In Mediation’ (1989) 41 Fla. L. Rev. 253 [14] Daiker (n 3) 499 [15] ibid

172 Ankara Bar Review 2013/ 1 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ a) Facilitative Approach The facilitative approach helps the disputing parties to resolve their dispute in a mutually-beneficial and agreeable manner.[16] In other words, when a dispute occurs, the parties may feel emotional and aggrieved so a facilitative mediator will try to normalize the atmosphere and provide the parties with a peaceful environment to communicate with each other.[17] A facilitative mediator does not offer any solution or recommendation to parties either individually or as a group.[18] Additionally, the mediator does not share his or her ideas with disputants regarding any possible solution to the case.[19] b) Transformative Approach The transformative mediator is more neutral than a facilitative mediator[20] and tries to mediate by guiding the parties to come to an agreement through empowerment and recognition.[21] This is done by creating an opportunity for the parties to consider the other party’s interests, needs and value.[22] This approach has an incomparable potential for transforming people’s moral growth by helping them with difficult circumstances.[23] c) Evaluative Approach The third approach concerns the evaluative mediator who helps the parties to reach an agreement by emphasizing the strong and weak arguments of either side.[24] The mediator will also give an opinion and some advice; these recommendations may also include the use of legal knowledge.[25] SUITABLE APPROACH IN EDR After explaining the three main mediation approaches, it is now possible to determine which approach provides the most effective mediation process and outcome for workplace cases using either a lawyer or a non-lawyer mediator. Most mediation experts claim that the transformative approach is suitable for

[16] ibid at 508 [17] Zena Zumeta, ‘Styles of Mediation: Facilitative, Evaluative and Transformative Mediation’ (2002) 1 NACM accessed 26 March 2013 [18] Kovach, K. and Love, L., “Mapping mediation: the risks of Riskin’s grid”, (1998) 3 HNLR, 71–110 [19] Ibid at 510 [20] Zumeta (n 17) 2 [21] Tina Nabatchi and Lisa B. Bingham, ‘Transformative Mediation in the USPS REDRESSTM Programme: Observations of ADR Specialists’ (2001) 18 HL& ELJ 399 [22] Bush (n 13) 253 [23] Nabatchi and Bingham (n 21) 402 [24] Daiker (n 3) 510 [25] Carolyn Chalmers, ‘Danger Ahead: Ethics Guidelines for Lawyer Mediators’ [2006] MSBA 1

2013/ 1 Ankara Bar Review 173 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ

EDR.[26] This is because workplace disputes are made up of different conditions from other disputes. The relationship between an employee and his employer is particular in that it is neither close nor distant. The hierarchical structure is a barrier between them. When they have a dispute, the employee will usually continue to work for the employer. Although the employee may be in the right and may have a strong case, in reality he or she is in the weaker position due to the fact that he or she will be open to different pressures, such as mobbing, from the employer or supervisor at work. In workplace disputes, the employee may continue to work in the same work area but his or her work standards should be more qualified and he should be treated fairly. Regarding employers, it is a changeable situation according to their purpose. If they want to reduce their workforce, they may not care about a future work relationship. They may be more ready to break the relationship, hoping to do so at the smallest cost to the company. However, they may be more willing to resolve the dispute if the company has benefited from the employee’s skills and knowledge for a long time. In other words, disputing parties’ interests and value will be different depending on the dispute. Mostly, EDR might be more effective for improving future relationships that have been in conflict. The facilitative method, on the other hand, may be adequate to fix relations but not to transform these into better relations. In terms of the evaluative method, this approach may not be seen as an effective one owing to the fact that it may show one party in a stronger position,[27] meaning that the stronger party may be less inclined to negotiate in this situation. Also, some experts are against using evaluative methods in mediation. They have given ten reasons why the evaluative method may hinder negotiations, and not serve the mediation purpose.[28] The transformative approach is seen as the most effective one in workplace disputes because, as mentioned above, it gives the disputing parties the opportunity to manage their own conflicts by using empowerment and recognition.[29] Empowerment provides a calming effect and makes parties more confident and open.[30] As for recognition, parties are more frank, mindful and try to empathize with the opposing party’s current situation.[31] In this way, parties may change their perspective and accommodate their differences. In other words, they may try to be constructive instead of destructive.[32] This method may improve the

[26] Nabatchi and Bingham (n 21) 423 [27] Lela P. Love, ‘The Top Ten Reasons Why Mediators Should Not Evaluate’ (1997) 24 FSULR 937 [28] ibid at 945 [29] Nabatchi and Bingham (n 21) 422 [30] ibid at 402 [31] ibid at 403 [32] Dorothy J. Della Noce, Robert A. Baruch Bush, and Joseph P. Folger, ‘Clarifying the

174 Ankara Bar Review 2013/ 1 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ parties’ problem-solving ability and guide them towards solving their future disputes.[33] According to Bush and Folger, transformative mediation works in improving employees, workplaces and society.[34] This belief led them to creating the Training Design Consultation Project (TDC).[35] One of the members of the TDC, Cynthia Hallberlin (then Alternative Dispute Resolution Counsel for the United States Postal Service (USPS)), was given the task of developing the Equal Employment Opportunity (EEO) mediation programme for the USPS, the largest civilian employer in the US.[36] She observed the importance of the objectives and value of EDR and selected the transformative method.[37] This is because the USPS was interested in improving the quality of workplace conflict relations. This was the first time a mediation programme was created for a specific dispute. ‘Training programmes and materials, trainer development programmes, research protocols, and mediator evaluations’ were all made specifically to support the aims and values of the dispute framework.[38] Research on the mediation programme has illustrated the fact that the transformative approach has accomplished many things on many different levels.[39] However, this method takes a long time to work because disputing parties can struggle to recognize each other’s value and interests.[40] It can be seen from the USPS example that mediators may turn to other methods when they cannot apply the transformative process.[41] In light of the effective methods, it can be pointed out that mediators do not have to be lawyers because they do not need to use any legal knowledge and evaluative approaches. They need to be more neutral and create an environment where the parties can express themselves. After choosing the type of workplace mediation approach, it is now possible to show why mediators do not have to be lawyers by explaining the challenges and contributions of non-lawyer mediators in EDR.

Theoretical Underpinnings of Mediation: Implications for Practice and Policy’ (2003) 3 PDRLJ 39 [33] Nabatchi and Bingham (n 21) 331 [34] ibid [35] Noce, Bush, and Folger ( n 32) 50 [36] ibid at 51 [37] ibid at 52 [38] ibid at 53 [39] ibid [40] Nabatchi and Bingham (n 21) 413 [41] ibid at 404

2013/ 1 Ankara Bar Review 175 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ

Challenges Of Being A Non-Lawyer Mediator In Edr

1- Giving Legal Advice to the Parties This challenge generally appears in the evaluative mediation process. Non-lawyer mediators might face this difficulty in spite of receiving the compulsory mediator training. Mediation training differs depending on the country but in common mediation training, mediator candidates are given enough legal information to use in the mediation process.[42] The disputing parties might be satisfied with the legal knowledge of non-lawyer mediators,[43] but some experts believe that mediation training is not adequate enough for mediators to advise on specific, individual cases that the mediator will have to deal with. [44] Even if a non-lawyer mediator has sufficient training to inform disputants of their legal rights and obligations, there is another problem–the unauthorized practice of law.[45] The solution for a non-lawyer mediator should be to advise them to seek legal advice. [46] This may allow non-lawyer mediators to remain as a neutral third party and may also prevent the unauthorized practice of law by providing communication between the disputing parties.[47] However, it should be noted that encouraging attorney participation within the mediation process may mean that it is impossible to arrive at an agreement and will increase the cost of mediation.[48] Depending on the case, an effective EDR mediation process may not need an evaluative method. If the case is about terminating the relationship between employer and employee, then evaluative mediation might be beneficial. How- ever, if the grievance is about promotion, salary increase or harassment, using evaluative methods may not be beneficial for their future relations because it may force the weaker party to accept the stronger party’s every offer. This might create greater inequality between the parties and the mediator may have one more problem to overcome in the process. Hence, it might be enough to learn legal knowledge during the training as the mediator’s effectiveness is related to their experience more than the fact of

[42] Daiker (n 3) 511 [43] ibid at 512 [44] Love (n 27) 943 [45] John D. Feerick, ‘Toward Uniform Standards Of Conduct For Mediators’ (1997) 38 STLR 455 [46] Jacqueline M. Nolan-Haley, ‘Informed Consent in Mediation: A Guiding Principle For Truly Educated Decision making’ (1999) 74 NDLR 775 [47] Joshua R. Schwartz, Note, Laymen Cannot Lawyer, But Is Mediation the Practice of Law?, 20 CARDOZO L. REv. 1715, 1730-31 (1999) [48] Daiker (n 3) 513

176 Ankara Bar Review 2013/ 1 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ a legal degree.[49] A law degree should not be equated with effectiveness;[50] in fact, a law degree might be a hindrance for mediators.[51] Some studies have found that lawyers are worse mediators than non-lawyers.[52] This is because lawyer-mediators believe every issue can be solved thanks to their legal knowledge and they might have difficulties in finding a balance between providing legal information and using soft skills to bring the disputants together.[53] Conversely, non-lawyer mediators may be able to find out the objectives of the parties instead of merely informing them of their legal positions. [54] Thus, the disputing parties have a chance to reach a ‘win-win agreement, where both parties reach their desired result, as opposed to a ‘‘split-the-differences’’ compromise’[55] which may mean that relations between the parties may be damaged although they have reached a workplace agreement. 2- Manipulation by the Parties’ Attorney There is an essential challenge which occurs when one party is represented by counsel in the mediation process.[56] There is no problem with this in itself; however, some lawyers may try to manipulate the mediation process in their client’s favour.[57] This manipulation normally occurs by not allowing non- lawyer mediators to communicate directly with the party or only allowing ineffective communication.[58] Sometimes the objective of these representing lawyers is to take the case to court where they can charge much more money. In a study carried out in Minnesota, lawyers were asked how frequently their clients requested that they look into using ADR for a particular dispute.[59] The lawyers were instructed to rate their clients’ requests based on choices of “never,” “rarely,” “sometimes,” “usually,” or “always.”[60] The lawyers reported that 79% of the time, their individual clients “never” or “rarely,” requested the use of ADR.[61] Additionally, according to a different survey, attorney-represented

[49] Roselle L. Wissler, ‘Court-Connected Mediation in General Civil Cases: What We Know from Empirical Research’ (2002) 17 OSJDR 641 [50] Zerhusen (n 1) 1168 [51] Daiker (n 3) 526 [52] Matt Wise, ‘Separation Between the Cross-Practice of Law and Mediation: Emergence of Proposed Model Rule 2.4’ (2000) 22 JPL & Pol’y 383 [53] Daiker (n 3) 513 [54] ibid [55] ibid at 523 [56] ibid at 513 [57] John Lande, ‘How Will Lawyering and Mediation Practices Transfrom Each Other’ (1996) 24 FSUR 839 [58] Marsha B. Freeman, ‘Divorce Mediation: Sweeping Conflicts Under the Rug, Time to Clean House.’ (2000) 78 UDMLR 67 [59] J. Brad Reich, ‘Attorney V. Client: Creating A Mechanism To Address Competing Process Interest in Lawyer-Driven Mediation’ (2002) 26 ULJ 183 [60] ibid at 189 [61] ibid

2013/ 1 Ankara Bar Review 177 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ disputants reported lower satisfaction levels with the skills of mediators.[62] However, it is very difficult to recognize these types of lawyers.[63] It may be better for the dispute to remain unresolved than allow the parties to reach a potentially one-sided agreement.[64] According to EDR researchers, employees being represented by a third person may be useful to resolve disputes in EDR.[65] Bingham, Kim, and Raines examined the USPS mediation programme which permits employees to bring any representative, such as lawyers, union representatives, professional association representatives, and friends or family.[66] Some employees do not ask for a representative.[67] The study was carried out on 7,651 mediators, 7,989 complaints and 6,794 respondents. The settlement rate for mediations was 55 percent for those not using representatives and 61 percent where both parties were represented, so there was a statistical difference of 6 percent. Additionally, the research also compared resolution rates: those represented by unions or a professional association representative had the highest rate (65 percent), those represented by fellow employees was 60 percent and those by lawyers was the lowest rate at 50 percent. This may be a reason why more effort is required when dealing with lawyers as they make non-monetary resolutions more difficult to achieve. Lawyers may also try to recover monetary damages in the process. Moreover, attorneys may have a limit to accepting offers and reaching an agreement may also be difficult. In fact, if the parties participate in the discussion, they may reduce their demands related to the opposing party’s approach and offers. Furthermore, the research showed the satisfaction rates of parties based on fairness. Ninety-one percent of those represented by unions or professional associations considered the outcome fair. The figure for those represented by fellow employees was 88 percent and only 76 percent for those with lawyers.[68] There is a further problem of being represented by lawyers at the beginning of the mediation process. Lawyers generally advise their clients about dispute resolution methods, either: mediation, arbitration or litigation. If they decide to go to mediation, they choose the mediator and the process.[69] In spite of what the research has shown about party satisfaction being most strongly

[62] Lisa B. Bingham, ‘Employment Dispute Resolution: The Case for Mediation’ (2004) 12 CRQ 145. See also Lamont E. Stallworth, ‘Find A Place For Non-Lawyer Representation In Mediation’ (1998) 4 DSM 19 (The empirical evidence also suggests that such non- lawyer representation has been effective) [63] Daiker (n 3) 514 [64] Lamont E. Stallworth, ‘Find A Place For Non-Lawyer Representation in Mediation’ (1998) 4 DSM 19 [65] Bingham (n 62) 147 [66] ibid [67] ibid at 162 [68] Bingham (n 62) 163 [69] Reich (n 59) 185

178 Ankara Bar Review 2013/ 1 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ related to elements of procedural justice in mediation, it may be argued that the opportunity for party self-determination significantly decreases in lawyer- driven mediation.[70] As a general result, the mediation process provides a place for representing lawyers in order to square accounts with each other.[71] Despite the fact that the disputing parties are generally not represented by lawyers, they do have the possibility of being represented by lawyers in EDR. In such circumstances, non-lawyer mediators may show more sensitivity by speaking directly to the party represented by the lawyer.[72] Also, a non-lawyer mediator may encourage the party to attempt to come to an agreement. How- ever, the lawyer mediator might tend to talk with the representative lawyer and ignore the individual during the mediation process. In turn, the increased party participation fostered by non-lawyer mediators leads to other benefits. For example, studies have demonstrated that when given greater control over the dispute, parties are much more satisfied with the process as a whole. Fur- thermore, surveys have also shown that when parties participate to settle down their dispute, they are more willing to follow through with that resolution rather than a court-ordered settlement.[73] 3- Power Imbalances between Disputing Parties A final problem that the non-lawyer mediator may face is a power imbalance between the disputing parties.[74] This situation may come about when one party has more mediation experience.[75] Some experts claim that one of the disputing parties may influence or deter the opposing party by using his or her power.[76] In EDR, employers may often try to influence or intimidate employees because they know that employees may rely on them financially. For example, if an employee is in a strong position in the mediation process and an agreement is reached in favour of the employee, the employer is able to abuse him or her in the workplace. An employee may consider this possibility and be influenced by this during the mediation process. Freeman has observed that it may not be easy to understand and find a balance between parties who have different positions.[77] She states that a non-lawyer mediator may never ‘catch on to the underlying posturing or be at a loss to significantly affect the results without totally derailing the mediation’.[78] A lawyer mediator is better

[70] ibid at 186 [71] ibid [72] Daiker (n 3) 520 [73] ibid at 520- 521 [74] Lamont E. Stallworth, ‘Find A Place For Non-Lawyer Representation In Mediation’ (1998) 4 DSM 19 [75] ibid at 20 [76] ibid [77] Freeman (n 58) 69 [78] Daiker (n 3) 516

2013/ 1 Ankara Bar Review 179 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ at seeing the unequal bargaining powers and can manage the level of power between parties.[79] However, according to Lande, these power imbalances are a serious problem for all types of mediators.[80] There are a number of imbalanced power problems caused by represented parties. For example, the unrepresented parties might expect the mediator to “level the playing field” and give legal advice.[81] The unrepresented disputant may also be at a disadvantage because of a lack of mediation experience and legal information. Non-lawyer mediators may not recognize either the imbalanced positions nor give legal advice to the weaker party.[82] Finally, there might be a one-sided (stronger favour) settlement. As can be seen from the above, non-lawyers may have a greater challenge in leveling the situation between parties. However, it should not be missed that recognizing imbalanced positions between the disputing parties is related to mediation experience. Mediators may improve their skills by analyzing the parties’ attitude and speaking style or emotion by mediating. This is due to the fact that a lawyer mediator may not have adequate experience of leveling the field if he or she is new to the area of law. Besides understanding these imbalances, it may be better for mediators to be drawn from the dispute environment; so a non-lawyer mediator who is also a builder by trade may be able to assist construction disputes adequately. This is because the non-lawyer mediator would be familiar with the work and the features of the relationship. There is, of course, a huge difference between a construction dispute and an intellectual property dispute. The best solution may be to have a non-lawyer mediator who is an expert in conflict resolution. He or she has the ability to ask the right questions and understand the interests of both parties. Thus, it is not necessary to be a lawyer to mediate workplace disputes.

[79] Freeman (n 58) 72 [80] John Lande, ‘How Will Lawyering and Mediation Practices Transfrom Each Other’ (1996) 24 FSUR 839 [81] Stallworth (n 74) 19 [82] ibid

180 Ankara Bar Review 2013/ 1 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ

Contributions of Non-Lawyer Mediators Finally, ignoring non-lawyer mediators may mean ‘turning a blind eye’ to their significant contributions.[83] Spiegelman, a lawyer-mediator, indicates that non-lawyer mediators have solved a number of society’s daily problems for thirty years.[84] Not surprisingly, many of these mediation processes end in a satisfactory outcome. The only difference from the current mediation process is the name of process and tactics. For example: if two workers have a dispute, their supervisor may act as a mediator as he is neutral. On the other hand, a non-lawyer mediator might provide the disputing parties with an informal atmosphere.[85] Free communication may increase the parties’ awareness of the dispute. Spiegelman also explains that the non-lawyer mediators remove the formalities and legal rules that often hinder the mediation process and the parties can consider their conflicts.[86] Thus, the parties may have a chance to find unique solutions which the courts cannot.[87] Besides, this free communication may increase the possibility of current conflicts being resolved and future disputes prevented.[88]

[83] Daiker (n 3) 521 [84] ibid [85] ibid at 517 [86] ibid [87] Craig A. McEwen & Richard J. Maiman, Mediation in Small Claims Courts: Consensual Processes and Outcomes, in Mediation Research: the Process and Effectiveness of Third- Party Intervention (Jossy Bass 1989) [88] Daiker (n 3) 518

2013/ 1 Ankara Bar Review 181 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ

Conclusion o sum up, the mediation process was originally conceived as a voluntary dispute resolution method. In other words, disputing parties may apply for mediation and they may choose their neutral third party mutually Tand voluntarily. However, choosing who will be a mediator has become a controversial issue. Most mediation experts assume that lawyer-mediators may resolve disputes more successfully and effectively than non-lawyer mediators thanks to their legal knowledge and abilities. In reality, some lawyers try to monopolize the mediator occupation for themselves. This new occupation means money for some lawyers and they want to keep things that way. However, others argue that non-lawyers should also be mediators. In particular, the parties may have a chance to choose a non-lawyer mediator for workplace disputes. It might be obvious that features of workplace disputes such as ongoing and hierarchical relationships may need a non-lawyer mediator. These models of relationships might need to be maintained when resolving the dispute at the same time. Therefore, lawyer-mediators may not be effective at maintaining these because of their attitude and characteristics. Besides this, the surveys demonstrate that non-lawyer mediators are mostly used to resolving workplace disputes. In addition, non-lawyer mediators are good at mediating between the disputing parties by using their abilities, for instance, a human resources manager is able to understand the dispute and interest of the parties better. Although non-lawyer mediators have some drawbacks in the mediation process, such as, manipulation by lawyers representing the parties, finding a balance between the strong and weak parties, and giving legal information, they are also capable of making a number of contributions. They can create an informal meeting setting and encourage the disputants to communicate freely. Furthermore, non-lawyer mediators tend to speak with disputants instead of the representative of the party. In terms of leveling positions of strength, this depends on the mediator’s experience, not whether they are a lawyer. Finally, in terms of informing parties about legal rights, mediation is not a legal service[89] so a mediator should not use his or her legal knowledge. Legal advice might create an imbalanced position between parties depending on strength of their cases. Therefore, there should not be a restriction on mediators. The parties should choose the neutral party voluntarily. Both types of mediators (lawyer and non- lawyer mediator) have advantages and disadvantages. Reducing these disadvantages depends on the individual cases and parties. In EDR, the parties tend to use non-lawyer mediators, so it is not necessarily the case that mediation roles are limited to lawyers.

[89] Loretta W. Moore, ‘Lawyer Mediators: Meeting the Ethical Challenges’ (1997) 30 FLQ 679

182 Ankara Bar Review 2013/ 1 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ

BIBLIOGR APHY

Alfini J J, ‘ Evaluative Versus Facilitative Mediation: A Discussion’ [1997] FSULR 919 Beck C J A & Sales B D, ‘Family Mediation: Facts, Myths, And Future Prospects’ [2001] 3 Bercovitch J & Houston A, ‘ Resolving International Conflicts the Theory and Practise of Mediation’ in Jacob Bercovitch (eds), The Study of International Mediation: Theoretical Issues and Empirical Evidence (LRP, 1996) Bingham L B, ‘Employment Dispute Resolution: The Case for Mediation’ [2004] CRQ 145 Bums R B, ‘Symposium: Some Ethical Issues Surrounding Mediation’ [2001] FLR 691 Bush R A B, ‘Efficiency And Protection, Or Empowerment And Recognition?:The Mediator’s Role And Ethical Standards In Mediation’ [1989] FLR 253 Bush R A B, ‘Efficiency And Protection, Or Empowerment And Recognition?: The Mediator’s Role And Ethical Standards In Mediation’ [1989] FLR 253 Chalmers C, ‘Danger Ahead: Ethics Guidelines for Lawyer Mediators’ [2006] MSBA 1 Daiker M, ‘No J.D. Required: The Critical Role and Contributions of Non-Lawyer Mediators’ [2005] RL 499 Dolder C, ‘The Contribution of Mediation to Workplace Justice’ [2004] ILJ 320 Feerick J D, ‘Toward Uniform Standards Of Conduct For Mediators’ [1997] STLR 455 Folberg J & Taylor A, ‘Mediation: A Comprehensive Guide To Resolving Conflicts Without Litigation’ [1984] 246 Freeman M B, ‘Divorce Mediation: Sweeping Conflicts Under the Rug, Time to Clean House.’ [2000] UDMLR 67 Haley J M N, ‘Informed Consent in Mediation: A Guiding Principle For Truly Educated Deci- sion making’ [1999] NDLR 775 Haleyt J M N, ‘Lawyers, Non-Lawyers and Mediation: Rethinking the Professional Monopoly from a Problem-Solving Perspective’ [2002] HNLR 235 Harkavy J R, ‘Privatizing Workplace Justice: The Advent Of Mediation in Resolving Sexual Harassment Disputes’ [1999] WFLR 135 Jacqueline M. Nolan-Haleyt, ‘ Lawyers, Non-Lawyers and Mediation: Rethinking the Profes- sional Monopoly from a Problem-Solving Perspective’ [2002] HNLR 235 Kelly J B, ‘Who Should Be Mediator?’ [1992] FA 19 Laflin M E, ‘Preserving The Integrity Of Mediation Through The Adoption Of Ethical Rules For Lawyer-Mediators’ [2000] NDJLE & P Pol’y 479 Lande J, ‘How Will Lawyering and Mediation Practices Transfrom Each Other’ [1996] FSUR 839

2013/ 1 Ankara Bar Review 183 Should Mediators in Workplace Disputes Be Lawyers? / YILDIZ

Love L P, ‘The Top Ten Reasons Why Mediators Should Not Evaluate’ [199] FSULR 937 Maute J L, ‘ Mediator Accountability: Responding To Fairness Concerns’ [1990] JDR 346 Maute J L, ‘Public Values and Private Justice: A Case For Mediator Accountability’ [1991] GJLE 503 Moore L W, ‘Lawyer Mediators: Meeting the Ethical Challenges’ [1997] FLQ 679 Nabatchi T & Bingham L B, ‘Transformative Mediation in the USPS REDRESSTM Programme: Observations of ADR Specialists’ [2001] HL& ELJ 399 Noce D J D, Bush R A B and Folger J P, ‘Clarifying the Theoretical Underpinnings of Media- tion: Implications for Practice and Policy’ [2003] PDRLJ 39 Reich J B, ‘Attorney V. Client: Creating A Mechanism To Address Competing Process Interest in Lawyer-Driven Mediation’ [2002] ULJ 183 Reich J B, ‘Attorney V. Client: Creating A Mechanism To Address Competing Process Interest in Lawyer-Driven Mediation’ [2002] ULJ 183 Riskin L L, ‘Mediation and Lawyers’ [1982] OSLJ 29 Riskin L L, ‘Toward New Standards For The Neutral Lawyer In Mediation’ [1984] ALR 329 Riskin L, ‘Understanding Mediator’s Orientations, Strategies, and Techniques: A Grid for the Perplexed’ [1996] HNLR 26 Stallworth L E, ‘Find A Place For Non-Lawyer Representation in Mediation’ [1998] DSM 19 Summers C W, ‘Employee Voice and Employer Choice: A Structured Exception To Section 8(a) (2)’ [1994] CKLR 129 Wessner B, ‘A Uniform National System of Mediation in the United States: Requiring National Training Standards and Guidelines for Mediators and State Mediation Programs’ [2002] COJCR 3 Wise M, ‘Separation Between the Cross-Practice of Law and Mediation: Emergence of Proposed Model Rule 2.4’ [2000] JPL & Pol’y 383 Wissler R L, ‘Court-Connected Mediation in General Civil Cases: What We Know from Empiri- cal Research’ [2002] OSJDR 641 Zerhusen K A, ‘ Reflections on the Role of the Neutral Lawyer: The Lawyer as Mediator’ [1993] KyLJ 1165 Zumeta Z, ‘Styles of Mediation: Facilitative, Evaluative and Transformative Mediation’ (The National Academy of Distinguished Neutrals, September 2002) accessed 26 March 2013

184 Ankara Bar Review 2013/ 1 Ankara Bar Association’s 8th International Law Congress

Ankara Bar Association’s 8th International Law Congress

nkara Bar Association warmly invites you to participate in it’s biannual International Law Congress; “Democracy, Rule of Law and the Right of Defence” which will take place between the dates 8th and 11th of Janu- ary,A 2014 at the Litai Guest-House of the Union of Turkish Bar Associations. Our key Congress issues are as follows: Our first issue is “Turkey’s Quest for a New Constitution”, under which in addition to the discussion on Constitution-making, we will have sessions on democracy in the contexts of political parties, electoral systems, local governments and civil disobedience. Under the topic “Attorneyship and the Bar Association” we will not only take the opportunity of acquiring knowledge on attorneyship systems and bar associations from all around the world, but also elaborate on different practices of public-duty services for lawyers, such as legal aid. For “Fundamental Rights of the Vulnerable Groups and Mechanisms for Their Access to Justice Within the Framework of International Migration Law” we envisaged a fruitful discussion of migration from standpoints of human rights, law, policy, labour exploitation and access to justice for migrants. Our fourth topic; “Between Liberalisation and Protection of Personal Data; Electronic Communications and Information Technology Law” covers a wide array of contemporary debates on telecommunications sector ranging from competition problems to the EU perspectives on data protection. Our special session on LGBT rights; “Sexual Orientation and Gender Iden- tity” will provide us with an insight into the history of LGBT rights struggles in addition to comprehensive case-law assessments from several different angles such as developments in the courts’ general approaches, LGBT’s freedom of expression and labour rights. “From European Court of Human Rights to the Constitutional Court; an Evaluation of the Individual Right to file Constitutional Complaints” will be a platform for a discussion of both the procedural and theoretical implications of the newly established constitutional complaint system in Turkey. Alongside the above sessions, our programme will be further enrichened with interviews as well as workshops on various fields of both public and private law. We aimed to include of a wide-range of international legal issues, while striving to guarantee the plurality as well as depth of perspectives on each topic. To further this end, we will host distinguished lawyers, judges, scholars and policy-makers from all around the world and Turkey, in addition to our ongoing collaboration with various NGO’s, including International Organi- zation for Migration, Kaos-GL and Unicef. Moreover, we expect high-level participation from the Constitutional Court of Turkey alongside the newly established Turkish Migration Administration as well as the Information and Communication Technologies Authority.

2013/ 1 Ankara Bar Review 187 Ankara Bar Association’s 8th International Law Congress

Additionally, the Congress reception which will provide us with the honour of hosting mission representatives in Ankara, a one-day Cappadocia trip for our foreign guests and the Congress gala dinner will delightfully complement our programme. In such manner, we are certain that this Congress will be a contribution to legal theory and practice in Turkey and especially to our young colleagues who would like to further explore their fields of interest and find networking opportunities with specialists. We are working in all our capacity to build this fruitful platform for sharing knowledge, exchanging perspectives and getting together for all our participants. In that spirit, we wish to express our gratitude to our sponsors; the Union of Turkish Bar Associations, Telkoder and Turkcell as well as to all those who supported us in our organization efforts.

188 Ankara Bar Review 2013/ 1