7. Conclusions
7.2. Conclusions for day-old chicks
Accession Treaties are international treaties requiring ratification of all existing EU Member States and at least one acceding country.6 In case of multi-country enlargements of the EU, the Member States do not sign a specific agreement with each of the acceding states, but rather a single set of documents for the acceding group.7The Treaty of Accession comprises three balancing elements, namely; ‘The Treaty of Accession’ itself, ‘The Act of Accession’ with all attachments and ‘The Final Act’ which includes the declarations adopted by the Member States as an intergovernmental conference and the unilateral declarations.8 The general consensus on the admission of the ten new Member States9 was reached by the Council of the European Union on 14 April 2003.10 As a result, the Accession Treaty was signed by all of the Member States and the acceding countries on 16 April 2003 in Athens.
Following completion of ratification procedures it entered into force on 1 May 2004.11 It has been widely accepted that ‘while partly imitating previous enlargement
5
Ibid.
6 Treaty of Accession (n 2) Article 2.
7 This was the case for the ten new Member States in 2003.
8 See K Inglis, ‘The Union’s Fifth Accession Treaty: New Means to Make Enlargement Possible’
(2004) 41 Common Market Law Review 937; C Hillion, ‘The European Union is Dead. Long Live the European Union: A Commentary on the Treaty of Accession 2003’ (2004) 29 European Law Review 583.
9 Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia.
10 Decision of the Council of the European Union of 14 April 2003 on the admission of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union OJ L 236;General Affairs And External RelationsCouncil, 2501st Council Meeting, Luxembourg, 14 April 2003, 7705/02 (Presse 91) 7.
11 Treaty of Accession (n 6) Article 2(2).
138
practice, the Treaty of Athens nevertheless contains more elaborate arrangements than earlier Accession Treaties, both quantitatively and qualitatively.’12
Although the prospect of a settlement on the island prior to accession was not foreseeable or even necessitated by the EU, some scholars, inter alia, Tocci and Emerson proposed several methods on to how to incorporate the Turkish Cypriots within the accession process as effectively as possible in the event of a reunification on the island prior to accession. The proposed methods predominantly depended on the timing of an agreement.
According to the abovementioned scholars, the first and foremost option would have been to make a settlement conditional upon EU accession and ipso facto the inclusion of the terms of a settlement in the Accession Treaty. This would have only been achieved if an agreement was reached between the two conflicting parties in Cyprus by 2002.If this was the case, then the implementation of EU laws and regulations in northern Cyprus would have required extended transitional periods;
nevertheless, if certain deviations from the acquis were incorporated into Cyprus’
Accession Treaty, they would have had the highest possible legal ranking and consequently, they would have been least exposed to the attack of the ECJ. Overall, the arrangements made between the EU and the Turkish Cypriot community would have been protected from unfavourable ECJ rulings.13
Tocci and Emerson introduced a second scenario; if an agreement was not reached by the end of 2002,14 but the prospect of a settlement was anticipated in the near future, then the Accession Treaty would be signed with the RoC. This would in turn necessitate an agreement of a separate Protocol with the Turkish Cypriot authorities after the conclusion of a settlement. The Treaty would need to contain provisions allowing revisions that are to come about from a settlement.15Nevertheless, this second scenario would only have been applicable if an agreement was reached latest by 2003; unfortunately, it was not.
12 Hillion (n 8) 588.
13 M Emerson and N Tocci, Cyprus as Lighthouse of the East Mediterranean Shaping EU Accession and Re-unification (Centre for European Policy Studies2001) 68.
14 The cut-off date for Accession Negotiations was November 2002.
15 Emerson and Tocci (n 13)
The Accession and The EU’s Capability to Accommodate a Future Cyprus Solution
139
The third scenario, which is the status quo, was classified as being ‘the worst-case scenario.’16 The push for accession of the RoC resulted in success and the Treaty of Accession was signed with the Republic which acceded to the EU as the sole representative of the entire island simply because a settlement was not reached by 2004.17 The implementation of acquis however, is limited to the south of the island until a solution to the Cyprus problem is found. The consequences of this final scenario have been unpleasant; there is now a lacuna in the legal order of the Union which is an irritation for the political and legal life of the bloc.18
The fact that the Commission refused to establish regular contact with the Turkish Cypriot authorities during the pre-accession process in order to listen to their concerns or inform them about the obligations, transition periods, derogations to the acquis and the benefits of EU membership, suggests that the EU had a pre-conceived idea about Cyprus’ EU journey. The Commission’s explanation for this decision of non-inclusion was that the creation of official relations with the Turkish Cypriot authorities would have been tantamount to recognition of the TRNC.19 As a result, the only solution to this problem would have been the conclusion of a settlement just before the expiration of the accession timetable for Cyprus. A settlement would have dismantled the TRNC and would have given the Turkish Cypriot community on the island a new status; thus, contact between the EU and the Turkish Cypriots would have been legally acceptable. Since the prospect of a settlement was out of the question at that point in time, the only contacts with the Turkish Cypriot authorities were via information missions by the officials of the EU Commission in non-official venues, such as, universities and chambers of commerce.20
Nonetheless, the issue of recognition could have been easily worked around by the EU; the fact that they opted to maintain the problem, would suggest that the Turkish Cypriot community was simply unwanted in the accession from the very beginning.
Contact with the Turkish Cypriot officials could have been accommodated if they were simply categorised as the representatives of the ‘future common state of Cyprus’. The Greek Cypriot authorities have been and still are conducting
16 Emerson & Tocci (n 13) 68.
17 Ibid.
18 RP Hugg, ‘Perceptions: Cyprus Advances towards Europe: Realism and Rationalism’ (2001) 6(3) Journal of International Affairs.
19 Emerson & Tocci (n 13) 69.
20 Ibid.
140
negotiations with the Turkish Cypriot authorities on a regular basis without recognising the TRNC;21similarly, the U.S.A. has hosted a reception in its premises in northern Cyprus as a motion of encouragement towards peace without recognising the TRNC and in 2008 the ‘Inforum World Conference’22 was held in north Cyprus.23 Whether or not an imperative momentum would have been added to the inter-communal talks on the island if the Union had established relations with the Turkish Cypriot community is doubtful.24
According to the EU officials, they would have further encouraged the Turkish Cypriot intransigence as regards to reaching a settlement, if they had refused to allow Cyprus to accede on the grounds that there was an ongoing political conflict on the island.25Can it not be argued that the very act of participating in settlement negotiations during the pre-accession period of Cyprus indicates that the Turkish Cypriot authorities were willing to compromise and conclude some sort of an agreement with the south? Ironically, it was the EU’s decision to allow Cyprus to accede in a divided manner that reignited the nationalism in the north of the island. A few years after the accession, the Turkish Cypriot leadership and the nationals of the TRNC turned against the prospect of reunification; ex President of the TRNC, Eroglu, firmly claimed that the ‘absence of an agreement is also an agreement.’26Furthermore, as a result of the EU’s reluctance to meet with the Turkish Cypriot authorities during Cyprus’ pre-accession stage, the authorities in the north have since claimed that they would only accept official contacts with the EU if they were not subordinated to the Union’s dealing with the Greek Cypriot authorities;27 this is an example ofthe game theory’s non-cooperative behaviour,
21 Ibid 70.
22The aim of these conferences is to advance the work of empirical input-output modeling, analysis, and data development techniques through the presentation and publication of papers representing the work of Inforum activities worldwide.
23Inforum World Conference 2008, ‘The Sixteenth Inforum World Conference in Cyprus’
<http://inforumweb.umd.edu/organization/conferences/iwcxvi/iwcxvi.html> accessed 5 June 2015.
24 Emerson & Tocci (n 13) 70. For a discussion on sub-national entities and the EU see, J Hopkins,
‘The Future of Sub-National Governments in a Supra-National World:
Lessons from the European Union’ (2007) 38 Victoria University of Wellington Law Review 19
<http://www.upf.pf/IMG/pdf/03-Hopkins.pdf> accessed 1 July 2015.
25 O Demetriou, ‘EU and the Cyprus Conflict: Perceptions of the Border and Europe in the Cyprus Conflict’ (2005) Working Papers Series in EU Border Conflicts Studies, The European Union and Border Conflicts, No 18 (Intercollege) 9.
26Kibris Postasi 26 February 2013 ‘Eroglu: “Anlasma olmamasi da bir anlasmadir”’
<http://www.kibrispostasi.com/index.php/cat/35/news/99867/PageName/KIBRIS_HABERLERI>
accessed 7 May 2015.
27 Emerson & Tocci (n 13) 69.
The Accession and The EU’s Capability to Accommodate a Future Cyprus Solution
141
which was briefly mentioned in the previous chapter. Thence, the EU’s and the Member States’ disinclination to become politically involved in the Cyprus dispute did not last long;‘the choice was not whether, but on whose side to become involved’
and they chose to side with the Greek Cypriots by lifting conditionality on the south.28Nonetheless, the EU camouflaged its choice by stipulating that it aimed to catalyse a solution on the island. The catalysis effect of membership worked surprisingly well up until 2004.
The two community leaderships on the divided island decided to go ahead with another round of UN-brokered negotiations which classified the completion of Cyprus’ EU accession negotiations in December 2002 as the date for a settlement to be established. It is exactly at this point that the EU’s influence on the Cyprus problem can be viewed as being positive and effective in terms of catalysing a solution; for instance, the civil society in the TRNC campaigned in support of an entry of a reunited island into the EU and the majority of the Turkish Cypriot society went against the official position of their leader; the 2002 municipal elections put the opposition parties in charge of all of the TRNC’s major urban regions.29 Yet, the surfacing of this fissure between the Turkish Cypriot society’s will and that of their leadership did not lead to the conclusion of a settlement by the end of 2002;
nevertheless, it did set another deadline for a settlement-April 2003, when the signing of the Accession Treaty by the RoC was due to take place. The majority of the Turkish Cypriots believed that by putting pressure on their representatives, they would see results; unsurprisingly, history had repeated itself and the talks failed in February 2003.30The Turkish Cypriots watched from afar as the Accession Treaty was signed in April by the Greek Cypriots, who are now referred to as the sole representatives of Cyprus. The EU opted to maintain Europe’s last remaining ‘Berlin Wall’ separating its Greek and Turkish Cypriot communities.31
28
Demetriou (n 25) 9.
29 Ibid.
30 Ibid.
31 Emerson & Tocci (n 13) 98.
142