Heat stress

Why do I believe that the democratic theory of self-determination is applicable to the case of Cyprus and the EU? Because the Union claims to be a democratic organisation and therefore the legal and political decisions it makes in relation to the Cyprus problem should be in line with democratic principles. A future settlement in Cyprus should be in line with the principles in which the Union is founded; the Union is founded on the principle of democracy.

Democracy as an idea and practice originates from Ancient Greece. The idea has been accompanied by many definitions since its birth. The definition habitually correlated to Cleon is the one which is common to us today; ‘rule of the people, by the people, for the people’.¹⁰³

It is definitely not an easy task to evaluate the democratic legitimacy of the EU since the meaning of democracy is ever-evolving; there is no set benchmark to measure the Union’s democratic legitimacy against.¹⁰⁴ Furthermore, how do you measure the level of democracy of a supranational organisation which is made up of many

103A philosophy and practice of liberal democracy, which highly resembled the principle of representation, materialised from the 18^th century onwards.

Vaughne Miller&Jon Lunn, ‘The European Union: A Democratic Institution?’ (2014) House of Commons Library Research Paper 14/25.

104 Ibid.

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sovereign States? The 2009 German Federal Constitutional Court ruled on the compatibility of the Treaty of Lisbon (2009) with the German Constitution and here it stated that: ‘With the present status of integration, the European Union does, even upon the entry into force of the Treaty of Lisbon, not yet attain a shape that corresponds to the level of legitimisation of a democracy constituted as a state.’¹⁰⁵ Brigid Laffan has argued that political theorists mainly concentrate on democracy and legitimacy in the traditional nation-State and not on political systems in non-States, such as supranational organisations. As a result, ‘the EU is a challenge to how we conceptualize democracy, authority and legitimacy in contemporary politics.’¹⁰⁶ The Lisbon Treaty arguably improved the democratic legitimacy of the Union. The Treaty on European Union and the Treaty on the Functioning of the European Union form the constitutional foundation of the Union. These Treaties set out the institutional framework for the way the EU functions; provide a set of principles by which it will act; identify provisions on where the powers and competences lie; and provide rules on how to modify such things. It is important to note that the EU does not have competences by right and no competence-competence and this principle is protected by the Court of Justice of the EU.¹⁰⁷ Nevertheless, the judicial activism of the Court cannot be ignored. The Court has been very open with promoting the interests of the Union and EU integration throughout the years; even to the point of

105 Federal Constitutional Court Press office, Press release No 72/2009 (30 June 2009) ‘re. Judgment of 30 June 2009 on Act Approving the Treaty of Lisbon compatible with the Basic Law’

<http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2009/bvg09-072.html> accessed 23 May 2016.

106Brigid Laffan, ‘Democracy and the European Union’ in Laura Cram, Desmond Dinan &Neill Nugent (eds), Developments in the European Union (Palgrave Macmillan 1999)

With regards to structure and functioning, the Union is definitely not like the inter-governmental UN, and it is also not a federal entity like the Unites States. According to Joseph Weiler, the Union has

‘chartered its own brand of constitutional federalism.’ Basically, the structure of the Union is a compromise of rival and complementary systems. Thus, just like there are different definitions and models of democracy-such as representative, associational and direct- there are different models, principles and systems competing within the EU. See Joseph H H Weiler, ‘Chapter 2, Federalism Without Constitutionalism: Europe's Sonderweg’ in Kalypso Nicolaidis &Robert Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP 2001)

107 See Case C-376/98 Germany v Parliament and Council (tobacco advertising) [2000] ECR I- 8419.

Consolidated Version of the Treaty on European Union (TEU) [2012] OJ C 326/0001 Article 5(2): ‘...

the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to obtain the objectives set out therein. Competences not conferred upon the Union in the Treaties shall remain with the Member States.’

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dismissing the interests of the Member States. An example would be the establishment of the doctrine of ‘direct effect’ by the ECJ.¹⁰⁸ Thus, how democratic actually is the Union?

Without a doubt, the Union’s Treaties aim to establish a democratic basis for the organisation; for instance, Article 10 TEU demands that EU action is based on

‘representative democracy’.¹⁰⁹ This Article basically confirms that the heads of State and government in the European Council and government ministers in the Council have a democratic responsibility towards their citizens and their national governments. ‘The Treaties thereby link democratic legitimacy at EU level to accountability and legitimacy at national level: democratic legitimacy is not just a matter of EU governance but also of domestic governance.’¹¹⁰ Article10(3) provides that every citizen will have the right to participate in the democratic life of the EU.¹¹¹ National parliaments can take part in the decision-making process of the Union as a result of the mechanisms set out in the EU Treaties. Two legally binding Protocols annexed to the EU Treaties- the Subsidiarity Protocol¹¹² and the Protocol on the Role of National Parliaments- make it possible for national parliaments to examine Union documentation and decline Commission proposals.¹¹³

108 This doctrine is the foundation of the legal relationship between the Union and the Member States.

Miller & Lunn (n 103) 15.

109Consolidated Version of the Treaty on European Union (TEU) [2012] OJ C 326/0001 Article 10:

1. The functioning of the Union shall be founded on representative democracy. 2. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens. 3.

Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen. 4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.

Article 11 TEU includes certain provisions which complement the representative system and Article 12 TEU stipulates how the national parliaments help the proper functioning of the Union.

110 Miller & Lunn (n 103) 15.

111 Thus, for the first time in the history of the Union, the right to directly participate and influence the decision-making process has been established by means of the ‘citizens’ initiative’ thanks to the Lisbon Treaty.

112 Protocol No 2 on the application of the Principles of Subsidiarity and Proportionality. The principle set out in Article 5(3) TEU, whereby the EU should act only if action at EU level would be more effective than at national level. Article 5(3) TEU national parliaments ‘ensure compliance with the principle of subsidiarity in accordance with the procedure provides for in the Protocol’.

Consolidated Version of the Treaty on European Union (TEU) [2012] OJ C 326/0001.

113 Protocol No 1 on the role of National Parliaments in the European Union obliges the institutions of the Union to send all documents to national parliaments and wait until they have been properly examined by these parliaments before adopting the legislation. Article 9 of this Protocol also states

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Moreover, the Preamble to the EU’s Charter of Fundamental Rights proclaims that the Union is ‘founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law.’ Without a doubt, the EU’s focus is on the rights, duties and freedoms of its citizens. The fact that the Copenhagen Criteria requires the candidate States to have stable institutions, guarantee democracy, uphold human rights and rule of law and respect for and protect minorities, proves that democracy is highly valued by the Union and that Beran’s theory has a place in the supranational organisation’s system.

Obviously, there is no straight answer as to whether or not the Lisbon Treaty actually made the EU affairs more democratically legitimate. It should be noted however that the infamous term ‘democratic deficit’ is not extinct.¹¹⁴ A democratic deficit exists if the institutions of the Union do not satisfy the prerequisites of general principles of democracy, such as, transparency and accountability. As mentioned above, the Court of Justice and the EU Treaties are working to ensure that a representative democratic system is running throughout the EU affairs.¹¹⁵ But, although the power of the European Parliament has increased since the signing of the Lisbon Treaty, it is still weak in comparison to the Commission and the Council; the EU is rather distant from voters; and the policies adopted by the Union are not supported by the majority of the EU citizens. Yet, as Paul Craig has stipulated, since the Member States are all democratic States, and democratic parliaments have agreed to the membership of such an organisation, citizens of these States have indirectly

that the European Parliament and national parliaments ‘shall together determine the organisation and promotion of effective and regular interparliamentary cooperation within the Union’. The second recital of this Protocol recalls that Member States wish: ‘to encourage greater involvement of national Parliaments in the activities of the European Union and to enhance their ability to express their views on draft legislative acts as well as on other matters which may be of particular interest to them’.

Consolidated Version of the Treaty on European Union (TEU) [2012] OJ C 326/0001.

114 EU definition: ‘The democratic deficit is a concept invoked principally in the argument that the European Union and its various bodies suffer from a lack of democracy and seem inaccessible to the ordinary citizen because their method of operating is so complex’.

EUR-LEX Glossary of Summaries ‘Democratic Deficit’ <http://eur-lex.europa.eu/summary/glossary/democratic_deficit.html> accessed 23 May 2016.

115 The Treaties ‘provide a clear and equitable legal and constitutional basis for power, accountability and legitimacy, one that was negotiated and agreed by the leaders of all EU Member States and endorsed by their parliaments and/or electorates.’ Miller & Lunn (n 103) 17.

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consented to a transfer of some sovereign powers which is ‘characteristic of any collective action.’¹¹⁶ Hence, the EU is nonetheless a democratic organisation.

Beran’s argument is that the rightful unity of a State has to be based on the willingness of its ‘normal adults’ to be part of one State; the EU is also based on democratic willingness insofar as there is now a right to withdraw. According to Article 50 TEU, the Member State will notify the European Council of its desire to leave and once it has obtained the consent of the European Parliament, the Council will have to conclude an agreement on behalf of the EU with the withdrawing State.¹¹⁷ This option has made the Union more democratic-even though no Member State has yet withdrawn.¹¹⁸

The Union has never actually had to deal with the breakup of any Member State; the Scottish Government held a referendum on the independence of Scotland from the U.K. on 18 September 2014, but the majority voted to stay united. Unfortunately, the EU still does not have a common consensus with regards to handling such a scenario; there are no clear agreements or Treaties which solve this dilemma. The questions that remain unanswered are: would the new State remain in the EU or would it have to reapply in order to join the club or would both the rump State and the new State be considered as completely new States which need to reapply for membership? With regards to the Scottish situation, there was a common belief that the remainder of the U.K would be the same and therefore its membership would continue. Furthermore, it was believed that Scotland would be regarded as a novel State which would require negotiations on the terms of its membership if it wanted to join the EU.¹¹⁹ According to Blair Jenkins, who led the ‘Yes’ campaign in Scotland, since Scotland would continue to obey all of the EU principles set out in

116 Paul Craig, ‘The ECJ, National Courts and the Supremacy of Community Law’ in Roberto Miccü

& Ingolf Pernice (eds), The European Constitution in the Making (Baden-Baden 2004)

117 Article 50 Consolidated Version of the Treaty on European Union (TEU) [2012] OJ C 326/0001.

118 The U.K. will hold a referendum on 23 June 2016 to decide whether it should remain as a Member State or withdraw. Before the Treaty of Lisbon, there were no provisions in the Treaties which outlined the ability of a Member State to voluntarily withdraw from the Union. So, pre-Lisbon, the concept of withdrawal was difficult. See United Nations, Vienna Convention on the Law of Treaties (23 May 1969) Treaty Series 1155 331.

119 James Crawford &Alan Boyle, ‘Annex A Opinion: Referendum on the Independence of Scotland –International Law Aspects’ (Scotland analysis: Devolution and the Implications of Scottish

Independence 2013)

<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_A.

pdf> accessed 25 May 2016.

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Article 2 TEU, and since there are no provisions to exclude a Member State in the current EU agreements, Scotland would continue to be a Member State upon secession.¹²⁰ On the other side, the ‘No’ campaign led by Alistair Darling, argued that the independence of Scotland would have also placed Scotland outside of the Union as a new State.¹²¹ Jose Manuel Barroso¹²² stipulated that it would be rather difficult, if not unattainable, for an independent Scotland to join the Union as not all Member States would approve such a decision-especially Spain which has its own fears regarding the principle of secession.¹²³ The reality is, if Scotland ever declares its independence then it will have to go through a lengthy process of negotiations and ratifications if it wants to become a Member State. The point to note is that the Union should take into consideration the possibility of internal secession and should prepare itself to handle such matters in a democratic and uniform manner.

All of these abovementioned arguments indicate that the EU should support Beran’s democratic theory of political self-determination for a new world order as it prides itself on its democratic legitimacy. If the EU claims to be a democratic organisation, then it should not be supporting the idea that secession should only occur if moral wrongs have been suffered by the separatists. If the EU wants to ensure an ever-closer Union it cannot reject secessionist claims by using ‘moral wrongs’ as a benchmark, it cannot drive communities away and it can definitely not unduly rake over the past. Even though the Union is siding with the political arguments put forward by the Turkish Cypriot community with regards to the events that took place on the island pre-1974 and the situation on the island since the Annan Plan referendum, it is continuing to act against them in the legal field and is consequently rendering invidious judgments. The EU tends to avoid invidious judgments between Member States in order to prevent tension and bias-for instance, it avoids the topic of

120BBC News, ‘Scottish Independence: Blair Jenkins answers your questions’ (Scotland, 18 January 2013) <http://www.bbc.co.uk/news/uk-scotland-21088109> accessed 25 May 2016.

121 Noscotland.net, ‘”Better Together” - Alistair Darling delivers the John P Mackintosh lecture’ (9 November 2012) <https://noscotland.net/2012/11/09/alistair-darling-delivers-the-2012-jp-mackintosh-lecture/> accessed 25 May 2016.

122 11^th President of the European Commission serving from 2004-2014.

123 Spanish Prime Minister Mariano Rajoy, said in November 2013 that after a vote for independence, Scotland ‘will be left outside the EU’,Simon Johnson, ‘Spanish PM: Independent Scotland would be kicked out of the EU’ The Telegraph (London,27 November 2013)

<http://www.telegraph.co.uk/news/politics/10479461/Spanish-PM-Independent-Scotland-would-be-out-of-the-EU.html> accessed 25 May 2016.

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Nazis and fascists-; yet, it also needs to maintain equilibrium between Member States and candidate States and even third States if it wants to uphold a democratic and just status. So, by rendering judgments such as the infamous Orams ruling, the EU is taking sides in the Cyprus conflict which pre-dates its involvement with the island. Even if the decisions of the EU institutions satisfied the Turkish Cypriots, the EU would still be unduly raking over the past and this time damaging its relations with the Greek and Greek Cypriots. Thus, ‘moral wrongs suffered’ cannot be the threshold for secession as this would clash with the very raison d’etre of the EU.

The Union needs to employ Beran’s theory of no-fault secession if it wants to promote peace in Europe. The EU simply needs to acknowledge this theory and this in turn will untie the Cypriot Gordian knot. There needs to be an acceptance of ‘here-and-now’.

Beran’s theory is one of rightful borders and not of good borders; it is intended to serve for the peaceful resolution of border disputes via democratic means. It should be underlined that his theory is not intended to imply that people who are being slaughtered by others in their State cannot justifiably secede (perhaps with the help of powerful allies) without a referendum and just division of assets; hence, his theory, as mentioned before, needs supplementing with a theory of justifiable emergency secession. Overall, I believe that secession should be an option if and only if, the new State is going to be able to survive, treat its citizens in a just manner, be liberal and democratic and honour its international duties.¹²⁴ The TRNC is capable of fulfilling these requirements; it just needs to be given a chance.

124 Simon Caney, ‘National self-determination and National Secession: Individualist and Communitarian Approaches’ in Percy B Lehning (ed), Theories of Secession (Routledge 2005) 155.

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3.The RoC’s Membership Application...The EU’s First

Short-Sightedness?

Humorist George Mikes once said that ‘the Cypriots know that they cannot become a world power, but they have succeeded in becoming a world nuisance, which is almost as good.’¹ A new chapter to the Cypriot political saga -whose end is neither known nor seems likely to be ‘happily ever after’ if it carries on in the same direction-was added when the EC accepted the RoC’s unilateral application for accession and subsequently labelled her as a candidate Member State without necessitating a political solution to the Cyprus problem. Automatically, the EU became a party to the conflict when it should have remained outside as a mediator.

Unfortunately, since then, the Cyprus problem has become a nuisance for the political and the legal life of the Union and it seems as though the strategies adopted

Unfortunately, since then, the Cyprus problem has become a nuisance for the political and the legal life of the Union and it seems as though the strategies adopted