CONTENTS ankarabarrevıew (Listed Alphabetically by Surname) HOW JUSTICE MAY BE REACHED THROUGH ADVOCACY Foreword Published by the Ankara Bar Association V. Ahsen Coşar 2 Volume 3 • Issue 1 • January 2010 ISSN: 1308-0636 From the Editor Ece Yılmaz 4 The Owner on behalf of Ankara Bar Association & Editor in Chief The Case of TRNC in the context of Recognition of States V. Ahsen Coşar under International Law 7 Executive Editor Cansu Akgün Cemâl Dursun Human Rights Violations faced by Turkish Cypriots Committee Chair 19 Habibe İyimaya Kayaaslan Aslı Aksu Committee Vice-Chair The Failed Test of Legality Murat Sümer Rauf R. Denktaş 25 Managing Editor Ece Yılmaz Can the Cyprus Problem be Resolved? Christis Enotiades 33 Technical Editor Larry D. White, JD New Set of Negotiations in the Cyprus Problem: Board of Editors Federation for a Stable Democracy 35 Cansu Akgün, LL.M (The Netherlands) Tufan Erhürman Nursel Atar, LL.M (USA) Levent Aydaş Property Wars in Cyprus: Cemâl Dursun, LL.M (The Netherlands) The Turkish Position according to International Law Özge Evci, LL.M (Turkey) 43 Habibe İyimaya Kayaaslan, LL.M (UK) Murat Metin Hakkı Cihangir Karabıyık Altan Liman, LL.M (The Netherlands) Analyzing Cyprus Accurately: Ayşegül Özdemir, LL.M (UK) Legal Aspects of a Political Matter 57 Ş. Saadet Özfırat van Delft Mehmet Hasgüler & F. Murat Özkaleli Murat Sümer, LL.M (UK) Ece Yılmaz, MA (Malta) Kadir Yılmaz, LL.M (UK) If I were Christofias Zeynel Lüle 67 Board of Advisors Sami Akl If I were Talat Mustafa Bozcaadalı Zeynel Lüle 69 Aidan Robertson, QC Prof. Wendy Davis Prof. Yüksel Ersoy Turkey and the Cyprus Dispute: Pitfalls and Opportunities Prof. Arzu Oğuz Tarık Oğuzlu 73 Dr. Gamze Öz The Place of Management Misgovernance as an Impediment to Peace: Ankara Barosu Başkanlığı, Adliye Sarayı, The Political Misuse of Property in Cyprus Kat: 5, Sıhhiye, Ankara, Turkey 83 Raşit Pertev Graphic Design Mustafa Horuş [Ankara Bar Association] The Turkish Cypriot Legal System from a Historical Perspective 93 Printed by Turgut Turhan Şen Matbaası Özveren Sk. 25/B Demirtepe / ANKARA Tel: +90 312 229 64 54 Turkish Foundations in Cyprus M. Serhat Yener 121 Type of Publication Semiannually in English A Partitioned State that is in the European Union: Place of Publication The Case of Cyprus 125 Ankara Kadir Yılmaz • Articles and letters that appear in the Anka- ra Bar Review do not necessarily reflect the News official view of Ankara Bar Association and 143 their publication does not constitute an en- dorsement of views that may be expressed. • Readers are invited to address their own comments and opinions to Ankara Barosu Başkanlığı, Adliye Sarayı, Kat: 5, Sıhhiye, Ankara Turkey or [email protected] (alternatively: [email protected]) • ABR is available through HeinOnline 2 ankarabarrevıew 2010/1 proposing constitutional changes Foreword which would abrogate the prior power-sharing arrangements. So, ■ by V. Ahsen Coşar the Turkish Cypriots felt betrayed President and pushed away by the Makarios Government. The activities of cer- tain Greek Cypriot groups led to Dear Readers, the eruption of inter-communal vio- The main subject of this issue is lence in 1963 during which many the “Cyprus Problem”. Cypriots were killed. As a result, the Turkish side withdrew from A brief look at its history is in the government and a United Na- order. After being ruled by the Ot- tions (UN) peacekeeping force was tomans for more than 300 years, the formed. island was occupied by Britain in 1878 but nominally remained un- In 1974, the supporters of Maka- der Ottoman sovereignty. Britain rios and EOKA started to fight with annexed the island in 1914 and de- each other. Makarios defended the clared it as its colony in 1925. independence of Cyprus whereas the other side, backed by the mili- Starting from the 1950s, Greek tary junta in Greece, aimed for uni- Cypriots organized themselves fication with Greece. Because of the under the National Organization contention between the two groups, of Cypriot Combatants (EOKA) the Turkish Cypriots were in a great which started a guerrilla movement danger, and Turkey used its right to against the British Crown in 1955. intervene granted by the London The main target of this movement Treaty. Turkish Republic and Turk- was the idea of unification with ish Cypriots did not consider this as Greece (Enosis). In 1960, the Greek an occupation. It was a humanitar- and Turkish communities agreed ian intervention and a self-defence on a constitution. This Constitution against the violence of EOKA sup- envisioned a sharing of the govern- porters. mental power between Turkish and Greek Cypriots. This agreement In 1975, after many unsuccessful and the London Treaty signed by peace talks, Turkish Cypriots estab- Turkey, Greece, and Britain was the lished an independent administra- starting point for the independence tion with Rauf Denktas as the presi- of Cyprus. London Treaty gave dent. Eventually, Turkish Cypriots each party a right to intervene under proclaimed the Turkish Republic of certain conditions. Shortly after the Northern Cyprus in 1983 which has declaration of the Republic of Cy- been recognized only by Turkey. prus, problems arose. The Turkish Ever since, the Turkish Republic Cypriots thought that Archbishop of Northern Cyprus has been ex- Makarios, the first President of the cluded from the European system. island, did not treat the two com- As an example, European Court munities equally and justly. In fact, of Justice ruling in 1996 listed a he was blamed for using his pow- range of goods, including fruit and ers in favor of Greek Cypriots and vegetables, which were not eligible 3 for preferential treatment when ex- fect of isolating the Turkish Cypriots ported by the Turkish Cypriot com- and impeding their development.” munity directly to the EU. In addition, following the out- In December 2002, the EU Co- come of the referenda, the Europe- penhagen Summit offered an in- an Council stated that “The Turkish vitation for Cyprus to join the Un- Cypriot community has expressed ion in 2004 provided that the two their clear desire for a future within communities agree to a UN plan the European Union. The Council by early spring of 2003. Without is determined to put an end to the reunification, only the internation- isolation of the Turkish Cypriot ally recognized Greek Cypriot part community and to facilitate the re- would gain membership. The result, unification of Cyprus by encourag- as we all know, was that the Greek ing the economic development of Cypriots turned down the UN Re- the Turkish Cypriot community. The unification Accord drafted under the Council invited the Commission to supervision of Secretary-General bring forward comprehensive pro- Annan and gained EU membership posals to this end, with particular alone without the Turkish Cypriots emphasis on the economic integra- on their side. tion of the island and on improving contact between the two communi- The decision of the European ties and with the EU.” Union is a good example of what could be perceived as a double Turkish Cypriots are still waiting standard. This problem has two for these promises to be fulfilled… sides and both parties are responsi- Shortly, both Turkey and the ble for what happened. Turkish Cypriots are sincere fol- The Annan Unification Plan cre- lowers of Atatürk’s maxim: “Peace at home, peace in the world”, and ated hopes for a peaceful existence we also believe that, “the future is of both communities on the Island. long.” Turkish Cypriots endorsed the plan; but unfortunately Greek Cypriots See you in our next issue. overwhelmingly rejected it. Best regards. Even after the endorsement of the Plan by Turkish Cypriots, the European Union still did not end V. Ahsen Coşar the isolation of the Turkish Cypriot community. President of Ankara Bar Association Thus, after the end of the twin referendum, the United Nations Secretary-General Annan expressed his hope that the members of the UN Security Council “can give a strong lead to all States to cooperate both bilaterally and in international bod- ies to eliminate unnecessary restric- tions and barriers that have the ef- 4 ankarabarrevıew 2010/1 From the Editor ■ by Ece Yılmaz This latest issue of the ABR what is the role and the respon- includes fourteen articles by aca- sibility of Turkey in Northern demic, international, and local Cyprus? This question strictly authors debating the legal system linked to the fact that TRNC is in- and status of Cyprus and its reper- dependent from the Turkish State cussions on Turkey and beyond. I and can deem itself internation- believe this special issue will be ally responsible from its actions. of interest not only to lawyers but However vigorously we may ar- also to many other professionals gue that TRNC is an autonomous, and concerned individuals seeking distinct and legitimate subject of to grasp the subject thoroughly. the international law, on the con- trary, as examined by Ms. Akgün Rauf Raif Denktaş has been the in her article “The Case of TRNC key figure in the Turkish Cypriots in the context of Recognition of as a veteran politician for more States under International Law”, than 50 years. He was the founder some argue its dependence on and the first president of the Turk- the Turkish state. Mr. Turhan ish Republic of Northern Cyprus analyzes the period of formation, (TRNC). As Rauf Denktaş is an development and the change of indispensable actor of the history the Turkish Cypriot legal system of TRNC, the ABR’s Special Cy- from a historical perspective in prus Issue would be unthinkable his article entitled “The Turkish without his contribution. I would Cypriot Legal System from a His- like to extend my utmost grati- torical Perspective”.