View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Cadmus, EUI Research Repository EUROPEAN UNIVERSITY INSTITUTE Department of Law The Cyprus issue: The four freedoms in a (Member) State of siege. The application of the acquis communautaire in the areas not under the effective control of the Republic of Cyprus Nikos Skoutaris Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board: Prof. Marise Cremona, European University Institute (Supervisor) Dr. James Ker-Lindsay, London School of Economics and Political Science Prof. Panos Koutrakos, University of Bristol Prof. Ernst-Ulrich Petersmann, European University Institute © 2009, Nikos Skoutaris No part of this thesis may be copied, reproduced or transmitted without prior permission of the author ACKNOWLEDGEMENTS In Spanish it is fairly common to wish for a life como una película . My life, during the four years of my doctoral research has been like many of them. Now that I am approaching the grand finale, it is the most appropriate moment to thank the actors in those movies. Entre les Murs (Laurent Cantet, 2008) First and foremost, I am greatly indebted to my supervisor Prof. Marise Cremona, from whom I have learned enormously as her research assistant for the last two years, not only for her constant encouragement and her timely and rigorous guidance on every chapter of the thesis but also for her unfailing support even against the most unfounded hysterical nationalist attacks. I am also grateful to Prof. Petersmann for his very valuable comments in earlier drafts of the thesis. My sincere thanks are due to (in alphabetical order) Dr. K. Agapiou-Josephides, Prof. A. Antoniadis, Prof. M. Attalides, Prof. A. Auer and the whole Constitutional Convention for Cyprus Research Team, Prof. P. van den Bossche, Dr. K. Chrysostomides, Prof. V. Coufoudakis, Prof. G.R. De Groot, Mr. A. Demetriades, Mr. M. Droushiotis, Prof. K. Featherstone, Dr. F. Hoffmeister, Prof. E. Kaymak, Dr. S. Laulhe – Shaellou, Dr. N. Loizides, Prof. K. Nicolaidis, Dr. Ph. Nicolaides, Dr. K. Özersay, the late Prof. G. Papadimitriou, Prof. H. Schneider, Prof. J. Shaw, Prof. A. Sözen, Prof. Dr. Z. Stavrinides, Dr. A. Strand, Dr. N. Tocci, Prof. N. Walker and Prof. J. Weiler for sharing their views on various aspects of the Cyprus issue and the thesis. I wish to express my gratitude to Dr. James Ker-Lindsay and Prof. Panos Koutrakos, who accepted to share their time and knowledge with me as external members of the jury. The financial support from the Greek State Scholarships Foundation (IKY) and the EUI for the fourth year grant are acknowledged although there were moments that the interaction with IKY resembled of playing in Les Quattre Cent Coups (François Truffaut,1959). Casablanca (Michael Curtiz, 1942) Rick: Louis, I think this is the beginning of a beautiful friendship. It has been a great privilege to undertake this doctoral research in the European University Institute that provides for an ideal environment for postgraduate studies with its excellent library, computing facilities, administrative staff and of course its “mensa” and bar. More importantly, as great “Bogie” would have put it, the EUI experience has been the beginning of many beautiful friendships. From the people I met during the last years of my Ph.D. I should mention Vicky, Nikolas, the other members of the παραλίστα and the people in the Academy, Graciela, Joyce and Anny that have made life in Schifanoia much more interesting. As for the old cohorts, it has been a great honour to meet and spend time with les enfants terrible of the Greek historiography, Giorgos ( Γεροδάσκαλος ) Antoniou, Sakis (Compagno ) Gekas and Kostis ( Ινστρούκτωρ ) Kornetis. I feel lucky to have met Hara Kouki, a real companion to my long and difficult endeavour to deconstruct the world and Stathis Georgiadis, who has made me a demanding customer when I visit an ουζερί and has admitted in my presence that è un mondo difficile ... Life would have been so much more boring without Elias ( The Spirit ) Dinas. We have together comprehended what mala vida means and we are preparing ourselves for mala vyntra . Ανάποδα … Special thanks go to my flatmate for the last three years, Vassilis Tzevelekos. Despite the fact that I have benefited greatly from his deep knowledge of 3 international law, it is mainly the highs and the lows of the cohabitation we have shared that I will always keep in my memory and my heart. Much more than a friendship has been my relationship with my favourite librarian, Anna, who has provided me for another very important reason to remember, remember the 17 th of November . I am really grateful that she has managed to get me distracted from my Ph.D. in Bologna, Florence, London, Barcelona, Epidaurus, Tate Modern, Anafi, MACBA, Venice, Samothraki and has been extremely patient and caring during my moments of frustration and panic. Proxima estación… In true Casablanca terms, and before getting to the plane, I could say to all of them: We will always have Florence… Amici Miei (Mario Monicelli, 1975) My friends outside the Institute have been a breeze of fresh air when this project and the life in the academic world, in general, seemed completely meaningless. A million thanks to Katerina, Vaso, Phoebe, Nikos and Tasos with whom distance does not make any difference and who are always ready for new adventures… A special mention is absolutely due to Carol Ni Ghiollarnath, who has found another way to pleasantly surprise me. The thesis has greatly benefited from her excellent language correction. At the end of the day, this project has started in the corridor of the Universiteit Maastricht Guesthouse… The Royal Tenenbaums (Wes Anderson, 2001) I simply have no words to express my gratitude to my family, without the support and love of whom, this project and other endeavours would have never been accomplished. In recognition of my untellable gratitude, this thesis is dedicated to them: στην Αλέξια , τη Βέρα και το Γιάννη . P.S. Seul Contre Tous (Gaspar Noé, 1998) On 6 December 2008, I was close to submit my first draft. That evening, I was out to celebrate my onomastico . By the time I was back at home, Alexis was already dead. And then?... And then, I realised that while I was studying, ‘ the times they [were] a- changing ’… While I was writing my thesis, a sixteen-year-old boy had to stand upright and solitary in the terrible solitude of the crowd (Μανώλης Αναγνωστάκης , Μιλώ ). To all those people that at some moment in their life found themselves seul contre tous , the thesis is also dedicated. Nikos Skoutaris Florence, February 2009 4 TABLE OF CONTENTS CHAPTER ONE : INTRODUCTION ............................................................................... 11 1. INTRODUCTION .............................................................................................. 11 2. THE MAIN CHALLENGES ................................................................................. 13 2.1 Legal Issue .............................................................................................. 13 2.2 Political issue........................................................................................... 14 3. METHODOLOGY ............................................................................................. 16 4. THE THESES OF THE THESIS .......................................................................... 18 5. THE ANALYSIS ............................................................................................... 21 CHAPTER TWO : THE HISTORICAL , POLITICAL AND LEGAL CONTEXT OF THE SUSPENSION OF THE ACQUIS IN NOTHERN CYPRUS ................................................ 25 1. INTRODUCTION .............................................................................................. 25 2. THE BIRTH OF A REPUBLIC BUT NOT OF A NATION ............................................ 27 2.1 Struggling for Enosis , Fighting for Taksim, Achieving Independence .. 27 2.2 The Constitution....................................................................................... 29 2.3 The Treaties ............................................................................................ 31 2.3.1 The Treaty of Guarantee .................................................................. 31 2.3.2 The Treaty of Alliance ...................................................................... 32 2.3.3 The Treaty of Establishment ............................................................. 32 3. “T HE FIRST PARTITION ” ................................................................................. 37 3.1 The 13 Points........................................................................................... 37 3.2 The doctrine of necessity ......................................................................... 39 3.3 The International legitimacy of RoC ......................................................... 40 4. THE 1974 TURKISH MILITARY INTERVENTION AND THE CONTINUED PRESENCE OF TURKEY ON CYPRUS ...................................................................................... 41 4.1 The 1974 Turkish military intervention...................................................... 41 4.2 The “Turkish Republic of Northern Cyprus” (“TRNC”) .............................. 43 5. THE ROC AS A CANDIDATE FOR EU ACCESSION .............................................. 46 5.1 The Association Agreement....................................................................