Loading/unloading - Welfare of small ruminants during transport

3. Assessment

3.4. Loading/unloading

As mentioned before, the EU membership of Greece and the RoC make the Turkish Cypriots extremely disinclined to accept the replacement of the UN by the EU as the principal mediator in the future negotiations since the terms of the membership will be shaped by the two Member States. So, what if the agreed parameters of the settlement are changed? It has already been established that the Union can accommodate a settlement to the Cyprus problem that would contain derogations from the acquis; both Protocol No 10 and the EU practice of welcoming territorial exceptions to the application of the acquis, verify this. But, as argued by Mr Alexander Downer- the former Special Adviser of the UN Secretary-General on Cyprus- a federal solution in Cyprus which leads to bi-zonality, is in itself a

167 Report of the Secretary-General on his mission of good offices in Cyprus of 28 May 2004, UN Doc S/2004/437 para 93.

168 European Commission, ‘Proposal for a Council Regulation on special conditions for trade with those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control’ COM (2004) 466, Article 4(1).

169 Skoutaris (n 1) 198.

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derogation from the acquis.¹⁷⁰ Thus, does a Cyprus settlement have to be based on the UN Security Council Resolution 1251?¹⁷¹ This Resolution states 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, and comprising two politically equal communities as described in the relevant Security Council Resolutions, in a bi-communal and bi-zonal federation, and that such a settlement must exclude union in whole or in part with any other country or any form of partition or secession.

According to Recital (4) of Protocol No 10, a comprehensive settlement is not necessitated for the withdrawal of the suspension of the acquis. Ipso facto, a solution to the Cyprus problem is enough. Although, the difference between a ‘settlement’

and a ‘solution’ is not huge, Uebe believes that a ‘solution’ to the Cyprus problem will be something less than a ‘comprehensive settlement’ such as the Annan Plan.¹⁷² Thus, can the ‘solution’ not be the recognition of the TRNC? Any community within a Member State has the right to pursue its democratic right of self-determination and retain its membership of the EU.

Article 2 TEU states that:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

The location of this provision in the Treaty indicates the significance of these abovementioned core values. Thus, the Union, by law, is obliged to respect its Member States’ democratic decisions, such as the right to vote for independence.

The need to stray away from the literal interpretation of Treaties has gained even more significance since territories of the Union, such as Scotland, Catalonia and Flanders are considering -to different degrees- the prospect of independence from their mainlands. Just as the Turkish Cypriots, the citizens of these territories, who are minorities, have their very own unique cultures, languages and traditions. The Union is required to acknowledge and respect these peoples’ rights and this also includes

170 Vincent L Morelli, ‘Cyprus: Reunification Proving Elusive’ (Congressional Research Service 2015) <https://fas.org/sgp/crs/row/R41136.pdf> accessed 17 July 2015. ₁₇₁

1999, reaffirmed by UN Security Council Resolution 1898 (14 December 2009) S/RES/1898, para 5.

172 Uebe (n 37) 386.

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their right to self-determination.¹⁷³ Alternatively, not only would the EU be in breach of Article 2 TEU, but it would also discriminate against these minorities.

Albeit, the aim of the Union is to abolish borders and unite Europe, with the case of Kosovo, the EU has openly supported its independence. Currently, twenty three of the Member States¹⁷⁴ have recognised Kosovo and the European Parliament has also shown its support for this cause; even though the EU cannot officially recognise the State, Kosovo has the ‘largest concentration of EU officials outside Brussels.’¹⁷⁵ Moreover, a Stability Tracking Mechanism, which is designed by the Union to improve governance, infrastructure and the internal market in Kosovo, drives the Kosovan policy.¹⁷⁶ With the amount of EU assistance and involvement in an unrecognised State that does not belong to the European family (Kosovo), it would be utterly specious for the Union to treat the northern Cyprus any differently. Indeed the Union has socially and economically provided assistance to the north of the island, yet, it steers clear from the prospect of recognising, even indirectly, the authorities in the ‘Areas’. The EU has also shown its support for the secession of Eastern European countries during the break-up of the Soviet Union; furthermore, it has recognised the independence of Croatia and Slovenia as early as 1992.¹⁷⁷ Can the Union not adopt Beran’s theory and show the same respect to a territory that is within its own internal borders?¹⁷⁸

Today, the Union clearly opposes the idea of secession; the lack of support it had for Scotland’s independence referendum proves this.¹⁷⁹ Furthermore, some would argue that the Schengen zone is evidence that the Union wants to remove the idea of

173 Iain McLean, Jim Gallagher and Guy Lodge, Scotland’s Choices: The Referendum and What Happens Afterwards (Edinburgh University Press 2014) 37.

174 Greece, Cyprus, Romania, Slovakia and Spain do not recognise the country.

175 European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Enlargement Strategy and Main Challenges 2014-15’ COM (2014) 700 final; see Pim De Kuijer, ‘The

28^th Member State’ EU Observer (Brussels 18 February

2008)<https://euobserver.com/opinion/25680> accessed 16 July 2015.

176 European Commission, European Neighbourhood Policy and Enlargement Negotiations, Kosovo <http://ec.europa.eu/enlargement/countries/detailed-country-information/kosovo/index_en.htm> accessed 16 July 2015.

177 M Weller, ‘The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia’ (1992) 86 American Journal of International Law 569.

178 R Tarvet, ‘The Accession of Scotland to the European Union: Is “Independence in Europe”

Achievable?’ (Academia.edu) 14

<http://www.academia.edu/9183943/The_Accession_of_Scotland_to_the_European_Union_Is_Indep endence_in_Europe_achievable> accessed 21 June 2015.

179 McLean, Gallagher & Lodge (n 173) 38.

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internal borders in Europe as much as it can; however, it could be argued that exclusion from the Schengen Area is nothing other than a creation of a new border which promotes social exclusion and limits the opportunities available to extraterritorial immigrants.¹⁸⁰ The external border policing and the Schengen Information System, whose sole aim is to keep immigrants outside, represent exclusive communitarian ideology. From an ethical standpoint, the Schengen acquis¹⁸¹encompasses limitations that are explicitly condemned by liberal egalitarianism, natural law and Marxism as it rigorously tries to keep non-EU citizens out of the Schengen Area, whilst simultaneously protecting ‘the economic and cultural wealth signatory countries have acquired over many years.’¹⁸² It should also be noted that a few countries- especially Denmark-do not agree with the concept of shared and unrestricted borders.¹⁸³

There cannot be inconsistency in the EU’s policy as regards secession; the Union either needs to obey its Member States and leave the matter for the European Parliament and Council to handle or it needs to act as a supranational organisation that has bestowed upon itself the power of the right to its own institutional opinion without being authorised to do so by any legal basis in the European Treaties.¹⁸⁴ Although Article 4 TEU emphasises the fact that the EU needs to respect the equality of Member States, their national identities and most importantly in this context, have respect for territorial integrity and the role of the regional governments, the Commission is far less flexible with ‘special cases’ today than it used to be in the past. Albeit the definition of the word ‘respect’ is not elucidated, this Article should technically provide a robust basis for the Union to give northern Cyprus the opportunity to conduct negotiations with the Member States and the Council in a democratic and diplomatic fashion in order to explain its political position.¹⁸⁵

180 Paige A Isaacson, ‘European Supranationalization: An Immigrant’s Nightmare or ‘Business as

Usual?’ (Spring 2014) International Affairs Review

<http://www.usfca.edu/International_Studies/international_affairs_review/spring2014/articles/Immigr ants__Nightmare_or_Business_as_Usual/>accessed 16 July 2015.

181 Schengen acquis: Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders [2000] OJ L 239, 13-18.

182 Isaacson (n 180).

183 Ibid.

184 Tarvet (n 178) 16.

185 Ibid 7.

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Hypothetically, even if the Union did agree to the secession of northern Cyprus, the question would be: what would happen to its EU membership? Would northern Cyprus have to reapply as it would become a ‘new State’ upon independence? One way to approach this question is to claim that a ‘new State’ will not be created by the secession of northern Cyprus as the TRNC has been a country since 1983, despite not being recognised, as ‘the existence of a State is a question of fact and not of law.

The criterion of statehood is not legitimacy but effectiveness...’¹⁸⁶ Furthermore, the TRNC fulfils the majority of the criteria set out in Article 1 of the Montevideo Convention, which classifies a State as a ‘...person of international law [with] a permanent population, a defined territory, government and [the] capacity to enter into relations with other states.’ Thus, even though Jose Manuel Barroso, the former President of the Commission, distorts the principle of continuity by arguing that a‘...new independent state would, by the fact of its independence, become a third country with respect to the EU...’,¹⁸⁷ in the East Germany accession process, Delors made it clear that the principle of continuity will apply to the minority, hence, the disadvantaged acceding State.¹⁸⁸ Accordingly, the role of the Commission’s President is to ‘provide forward movement of the European Union’;¹⁸⁹ hence, the President cannot use political threats in order to renounce northern Cyprus’ EU membership upon secession. Not only would this provide a backward movement of the EU, but it would also extend beyond the competencies of the Commission, despite the fact that the role of the President has been strengthened by the Treaties of Nice and Amsterdam.¹⁹⁰

Indeed, the accession or continuity of northern Cyprus’ membership will have to be negotiated in order to ensure that the State meets the Copenhagen criteria; however, East Germany’s accession process indicates that with the help of the Union, any State is capable of gradually meeting the standards required for membership.

186 Foreign Minister Eban of Israel arguing against a request for an advisory opinion of the International Court on the status of Palestine on 27 July 1948 in James Crawford, The Creation of States in International Law (2^nd edn, OUP 2006) 29-30.

187 It should be noted that there is no clear-cut legal basis for his argument. Jose Manuel Barroso, Letter to Lord Tugendhat regarding Scottish Independence and the EU, quoted in Tarvet (n 178) 6 fn 10. 188 European Commission, ‘The Community and German Unification’ COM (90) 400 final, Vol 1 Pt 2. 1. 1. ₁₈₉

Jose Manuel Barrosso, ‘My Job’ The European Commission, The Commissioners 2010-2014

<http://ec.europa.eu/archives/commission_2010-2014/president/about/role/index_en.htm>.

190 Tarvet (n 178) 7.

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Furthermore, it could be argued that a Treaty change¹⁹¹will also not be necessary with such an accession, as no geographical enlargement of the Union would be taking place per se; the population and the size of the Union would remain the same as Turkish Cypriots are already EU citizens and the north is already part of the Union. This would also be in concert with the proceedings undertaken during East Germany’s accession since it involves the other Member States.¹⁹²

Thus, since the EU is an organisation created by the Member States, the TRNC’s recognition and membership is simply a matter of Member State political authorisation. For the Commission to renounce the membership of northern Cyprus and take a political stance against its own citizens, which are already in a disadvantaged position due to suspension of the acquis, the Commission would be abandoning its legal duties and in fact acting ultra vires. The Commission’s literal interpretation whilst interpreting the Treaties in order to act in favour of the Member States on matters such as independence, has changed the people’s perception of the EU. A recent Eurobarometer study¹⁹³ shows that people no longer classify the Union as being an organisation based on peace and democracy and consider it to be more of a geographical area that promotes free movement and has a single currency.

Consequently, the Union needs to reconsider its own objectives and if it intends on being more than a Union based on economic relations with its members, then its institutions need to interpret the Treaties in a more flexible way.

It is improbable that the independence and continuation of northern Cyprus’

membership will result in ‘any quantitative negative spill-over, other than providing political momentum for other regions such as Catalonia or Flanders to follow, suit.’¹⁹⁴ The issue that the Union needs to consider is whether or not such a development would be negative; as argued by Roland Vaubel, ‘secession may on balance have positive or negative consequences.’¹⁹⁵ Secession would not necessarily mean that the EU would be confronted with changes or segregation; those areas within the Member States which opt for independence will most probably want to remain part of the family. As a result, independence should be a matter for the

191 Article 48 TEU.

192 Tarvet (n 178) 7.

193 European Commission, Eurobarometer 73, Public Opinion in the European Union, August 2010, 41.

194 Tarvet (n 178) 22.

195 Roland Vaubel, ‘Secession in the European Union’ (2013) 33(3) Economic Affairs 288.

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citizens of the territory to decide, whilst, EU cooperation with the breakaway State should be a matter for the Member States to decide amongst themselves. Thence, in the unlikely situation that the TRNC is recognised as a State by the Union’s Member States, the Commission should respect this and try to assume a more productive role- similar to that taken by Delors in the case of East Germany. It should also be noted that, the recognition of the TRNC will prevent permanent restrictions to the free movement of persons and capital in Cyprus. These derogations are solely needed for the particular national identity of a united bi-zonal, bi-communal Cyprus to be protected and to respect the sensitivities of the respective populations. So, the Four Freedoms will be better practiced via the recognition and the EU membership of the TRNC.

5.7. Conclusion

It could be argued that the EU has unintentionally demonstrated ignorance of basic history in Cyprus and disregarded the welfare of the Turkish Cypriot community with the accession of the entire island into the Union and via Protocol No 10 of the Act of Accession. The EU and its Member States chose political dogma over its own principles and dropped the prospect of conflict transformation in Cyprus. History will not judge the Union kindly and the reason for this will be explained in the following chapters. Indeed, the Union owes no duty to the Turkish Cypriots per se and it needs to limit the liability and responsibility of its own Member State, the RoC; however, the gap in the legal order of the Union created by the suspension of the acquis in the north, is going to be difficult to fill as it utterly depends on the achievement of a solution on the island. The following chapter will examine the Annan Plan and discuss how difficult it is for the two Cypriot parties to cooperate and terminate the Cyprus problem. Subsequently, the rest of the thesis will assess the technical and depoliticised approach the Union has adopted whilst handling issues that arise from the Cyprus problem and how this approach has affected the lives of

the Turkish Cypriots.

175 legal arena in order to be able to carry out their own political moves legitimately. As a result of the judicialisation of EU politics, the Cyprus problem has become a

‘Gordian knot’ that is impossible to disentangle.¹ The Anastasiou saga² which

1 Mehmet Hasgüler and Murat F Özkaleli, ‘Analyzing Cyprus Accurately: Legal Aspects of a Political Matter’ (translated from Turkish by E Metin) (2010) Ankara Bar Review 57. ₂

This case concerned the implementation of the non-discrimination principle of the 1972 Association Agreement to the ‘whole of Cyprus’ and questioned whether under the Additional Protocol, which refers to goods originating in Cyprus, Member States were entitled to accept certificates issued by authorities from the TRNC. Association Agreement Signed 19 December 1972 and annexed to Council Regulation (EEC) No 1246/73 of 14 May 1973 on the conclusion of an Agreement establishing an Association between the European Economic Community and the Republic of Cyprus [1973] OJ L 133.

In May 1992, an action was instigated by SP Anastasiou (Pissouri) Ltd and twelve Greek Cypriot producers and exporters of citrus fruit contra the U.K. Ministry of Agriculture Fisheries and Food in the High Court of Justice, for exporting citrus fruit and potatoes from the TRNC. Thus, the High Court was asked to judicially review the practice of the U.K. authorities of welcoming imports of these goods originating in northern Cyprus when the goods were not accompanied by movement and phytosanitary certificates issued by the authorities of the RoC as demanded by EU law. Under Article then 234 EC (now 263 TFEU) the High Court of Justice referred questions to the ECJ based on the interpretation of the Association Agreement and Council Directive 77/93/EEC. The Court asked whether the U.K. authorities, in light of the abovementioned provisions, could legally allow the importation of products accompanied by movement and phytosanitary certificates issued by the Turkish Cypriot authorities. The Association Agreement governed trade relating to fruits and potatoes; Article 7 of the Agreement stipulated that the regulations of origin were to be found in Article 6(1) of the 1977 Protocol. This Article proclaimed that the proof of the origin of a product is evidenced in a movement certificate that needs to be issued by the ‘customs authorities of the exporting State.’ In correlation to this, Directive 77/93/EEC governed matters concerning phytosanitary certificates within the Community; Article 12(1)(b) of the Directive necessitated certificates to be granted in accordance with the laws of a non-contracting state. The U.K., with the support of the Commission in its observation, argued that instead of insisting on the fulfilment of the technical requirements of the legislation, a political interpretation of the provisions was required in this case, which took into account the situation on the island. Thus, the relevant certificates issued by

In document Welfare of small ruminants during transport (página 33-36)