Section III
will focus on the application of the concept of extraterritorial jurisdiction –
examined in Section 2 – specifically to the Turkish Republic of Northern
Cyprus. This will be tackled using the position and the reasoning of the
European Court of Human Rights when confronted with three core cases that will
be presented in chronological order. Finally, critics to that same reasoning
will be provided based on literature and the field research conducted in the
TRNC. 

1.    Line of cases of the Strasbourg Court

 

1.1.Cyprus v Turkey (1975)

 

The first judgment
presented, Cyprus v Turkey, dates
back to 1975. The Republic of Cyprus claimed several violations of the
Convention – including deprivation of life, inhuman and degrading treatment, arbitrary
detention and displacement – by Turkey on the territory of Northern Cyprus.1 It
is vital to keep in mind that, as explained in Section I, in 1974 Turkey
invaded the island of Cyprus, extended its occupation to about 40 percent of
the territory of the Republic of Cyprus and continues to remain in occupation
of such territory. The Court first interrogated itself on whether it had the
competence (ratione loci) to examine
the case, since the alleged violations took place on the island of Cyprus. In
principle, as already analyzed, this would exclude the Court’s competence to
hear the case. However, it was found that the term “jurisdiction” in Article 1
of the Convention, was not “limited to the national territory of the High
Contracting Party concerned”2 and that
“it is clear from the language … and the object of this Article, and from the
purpose of the Convention as a whole, that the High Contracting Parties are
bound to secure the said rights and freedoms to all persons under their actual
authority and responsibility, whether that authority is exercised within their
own territory or abroad”. The fact that Turkey didn’t annex any part of Cyprus
nor established a government there was not relevant as for the attribution of
obligations and responsibilities to Turkey.3 Instead,
the Court assessed that, since “Turkish troops have entered the island of
Cyprus, operating solely under the direction of the Turkish Government … it
follows that these armed forces are authorised agents of Turkey and that they
bring any other persons or property in Cyprus “within the
jurisdiction” of Turkey, in the sense of Art. 1 of the Convention, to the
extent that they exercise control over such persons or property. Therefore,
insofar as these armed forces, by their acts or omissions, affect such persons’
rights or freedoms under the Convention, the responsibility of Turkey is
engaged.”4
Furthermore, it is important to highlight that the Court, in its reasoning,
referred to the so-called “human rights vacuum” which must be imperatively
avoided in order to ensure the protection of the rights guaranteed by the
Convention. In fact, the Court ruled that “the operation of the Convention in
the occupied part of Cyprus would become ineffective if one accepted the
respondent Government’s submission Turkey’s submissions that alleged
violations of the Convention in that area could not be examined by the
Commission. … The Convention did not allow such a vacuum in the protection of
its rights and freedoms.”5

 

1.2.Loizidou v Turkey (1995)

 

In Loizidou, the applicant claimed her
property rights to be violated as a result of the occupation of Northern Cyprus
by Turkish troops which had prevented her from accessing to her home and other
properties there. She claimed a violation of her property rights contrary to
Article 1 of Protocol No. 1 to the Convention European on Human Rights. The Court was confronted with two intertwined questions:6

–  
Whether the
conduct was attributable to its perpetuator, the TRNC, or the State exercising
supposedly exercising effective control over the area, Turkey.

–  
Whether the
European Court of Human Rights was competent to hear the case given the
non-state identity of the TRNC.

The two questions are said to be interconnected
because, “if the court deemed the wrongful conduct at stake attributable to
TRNC, because that entity was not a party to the ECHR, the court would lack
jurisdiction to examine the merits of the case. In the opposite scenario, the
attribution of the conduct at issue to Turkey would authorize the court to
exercise jurisdiction over a state party to the ECHR”. Therefore, the concepts
of attribution of wrongful acts and effective control were linked for the
establishment of the jurisdiction of the Court. The latter focused on the
nature of the TRNC as a de facto
organ and ruled that “the responsibility of a Contracting Party may also arise
when as a consequence of military action—whether lawful or unlawful—it
exercises effective control of an area outside its national territory. The
obligation to secure, in such an area, the rights and freedoms set out in the
Convention derives from the fact of such control whether it be exercised
directly, through its armed forces, or through a subordinate local
administration”.7
Thus, the Court concluded that the violations were falling within Turkish
jurisdiction.8
In fact, the Court was satisfied with the Turkish troops present on the area of
Northern Cyprus as proof for the exercise of effective control. It explained
that “it is not necessary to determine whether … Turkey actually exercises
detailed control over the policies and actions of the authorities of the
“TRNC”. It is obvious from the large number of troops engaged in
active duties in Northern Cyprus that her army exercises effective overall
control over that part of the island. Such control, according to the relevant
test and in the circumstances of the case, entails her responsibility for the
policies and actions of the TRNC”. … Her obligation to secure to the
applicant the rights and freedoms set out in the Convention therefore extends
to the northern part of Cyprus.”9 The
legality of the invasion was an irrelevant factor in the assessment of effective
control. Having attributed the wrongdoing to Turkey, the Court also
automatically defined itself as competent for hearing the case, being Turkey
one of the Signatories of the Convention.

1.3.Cyprus v. Turkey (2001)

 

The third case, judged in 2001, related specifically
to the debated recognition of the TRNC and the accountability of Turkey for
violations in the area of Northern Cyprus in the light of the conduct of
military operations by Turkey since 1974. Turkey has maintained its usual
defensive position arguing that “the TRNC was politically independent from
Turkey and consequently Turkey could not be held responsible for its acts”.10 Nevertheless, the Court
explained that Turkey’s responsibility under the Convention derived not only
from the presence and the acts of its troops but also from the acts of the TRNC
administration “which survived by virtue of Turkish military and other support”.11
In conclusion, according to Article 1 of the Convention, Turkey exercised its
jurisdiction over the area of the Turkish Republic of Northern Cyprus.

2.    Summary

 

The invasion, without declaration of war, of the
island of Cyprus by Turkey was the first and most evident factor for the
Strasbourg Court to attach obligations and responsibilities to Turkey regarding
acts happening on the northern side of the island. In fact, entering the island
with Turkish troops and agents, Turkey brought the persons and properties in
Northern Cyprus under its control. In this way, as explained in Section II, the
extraterritorial jurisdiction could be established. Since Turkish troops are
still present in the TRNC, the Court, in Loizidou,
established the continuity of Turkish extraterritorial jurisdiction and its
accountability in case of violations of the ECHR. Furthermore, the Court
specified that Turkey’s responsibility also derives from the dependency that
the local administration developed towards Turkish support.  

3.    Critics

 

After having
assessed the reasoning of the Court when attaching responsibilities to Turkey
under the Convention over the area of Northern Cyprus, it is important to
highlight the eventual critics to that same reasoning. Those that are going to
be presented derive both from the researched literature and from the field
research conducted in the TRNC. The critics focus on the realistic character of
the control exercised by Turkey in the TRNC.

As assessed in
Cyprus v Turkey, it is not only the mere presence of Turkish troops that
establishes the link for the “effective control”. Instead, factors such as
dependency could play a pivotal role. However, the governmental branch of the
TRNC, that finds its basis in the TRNC Constitution, is managed by the local
administration that exercises public authority. This has been the case since
1963 when certain areas were being administered by the so-called Turkish
Cypriot General Committee and later by the Provisional Cyprus Turkish
Administration, the Autonomous Cyprus Turkish administration (1971) and the
Turkish Federated State of Cyprus (1975). In fact, the London Accords “recognised
the existence of the two communities as two distinct ethnic groups meriting
protection, with each community maintaining the capacity to block the other’s
initiatives in the unfolding Parliament, despite the numerical majority of the
Greek population.”12
As it is now, the Turkish Republic of Northern Cyprus is the result of a
development towards political and administrative independency that began way
before the invasion by Turkey. Gradually, the TRNC government obtain the
control over its citizens. This was presented in Loizidou, where Turkey argued that “the TRNC is a democratic and constitutional
State which is politically independent of all other sovereign States including
Turkey. The administration in northern Cyprus has been set up by the Turkish
Cypriot people in the exercise of its right to self-determination and not by
Turkey. Moreover, the Turkish forces in northern Cyprus are there for the
protection of the Turkish Cypriots and with the consent of the ruling authority
of the TRNC. Neither the Turkish forces nor the Turkish Government in any way
exercise governmental authority in northern Cyprus.”13
Finally, the Republic of Turkey also underline the importance of assessing the
independence of the TRNC also considering the democratic character of the
elections and the presence of a Constitution approved by way of referendum.14

            Identifying
the role of the local administration is particularly vital because, even if the
Turkish troops are still present on the area for its security, they might not
be involved in the exercise of public authority. In fact, as one of the
respondents explained in an interview during the field research, the Turkish
troops call themseves
“self peace forces”. They are defending Turkish Cypriots as their official
function. However, their presence on the island is able to create a sort of
bargaining power. This was explained as being their non-official function.
However, if the official reason for which they are still present on the island
is the security of the latter and the protection of citizens, then
attaching human rights obligation to Turkey would be incorrect. In fact, “if Turkey
cannot apply its responsibilities as emanating for example from directives of
court decisions, then it is silly to impose such obligations at the outset,
even if human rights require some form of protection.”15
Furthermore, concerning the necessity of protection of human rights and to
avoid the so-called “human rights vacuum” – as it was ruled in Cyprus v Turkey – it is argued that human
rights of the Turkish minority were actually already protected only at the
regional level.16 The
ECHR, even if at first it should have been applied to the entire island of
Cyprus, was never applied to the Turkish minority community. Instead, the
Turkish Cypriot administration was protecting the rights of its community.

As the last
point, even though influences towards the emancipation from the Republic of
Turkey are popular among the population of the TRNC, it is hardly believable in
practice given the strong economic dependency that then TRNC has on Turkey. In
fact, the non-recognition as a state at the international level of the TRNC
creates a huge problem of economic isolation given the lack of import-export.
This resulted in one third of the budget of the Turkish Republic of Northern
Cyprus consisting in Turkish financial aid transfers.17 Indeed, the almost totally closed
economy and the difficulty in foreign trade is one of the major problems of the
Turkish Cypriots. International trade is conducted indirectly through Turkey
or, eventually, through the legally recognized ports in Cyprus.18
A respondent testified
that the impact and influence that Turkey has on Northern Cyprus is
particularly strong. “It can change governments in Northern Cyprus.” As an
example, he said that it is not unusual for Foreign Ministers of Turkey to call
political party leaders in Northern Cyprus and to express their demands, that
would be exhausted.

 

Conclusion

 

The main reason this topic and the related
research question were chosen is the very controversial character of Cyprus’
past and present. Its different influences, its history of division and its
invasion are all elements that contributed to its debated situation today, with
the Republic of Cyprus being part of the European Union and the Turkish
Republic of Northern Cyprus being a self-declared State unrecognized by the
rest of the world. As it is described, it might be difficult to imagine that
those two parts, with such different status, are the components of the same
island.

As Cyprus has been a party to the Council
of Europe since 1961, the European Convention on Human Rights would have to
apply to the entirety of the island. Things obviously changed when the Turkish
Republic of Northern Cyprus officially declared itself an independent state.
Not being recognized by any State in the world but Turkey, the TRNC faced a
clear exclusion, both in economic and political terms. This includes the
impossibility of signing and ratifying any kind of European nor international
treaty, such as the European Convention on Human Rights. In this way, a legal
gap in the protection of human rights is created, since those are only
protected at the national level and the TRNC government is, therefore, excluded
from double-checks by the European Union or the international community.
Furthermore, as a consequence, individuals would lack an essential mean in
order to obtain and effective remedy in cases of individual human rights
violations. As a response to this gap, the ECHR has an extraterritorial
application. In fact, as explained in the previous Sections, the European Court
of Human Rights is attaching the obligations and responsibilities stemming from
the Convention over the area of the TRNC to the Republic of Turkey. The
reasoning behind this decision is based on the fact that Turkey, invading the
island – irrespectively of whether such action was considered legal or illegal
– has acquired the effective control of the territory of Northern Cyprus, therefore,
acquiring the responsibility in case of breaches of human rights. The Court was
satisfied with the Turkish troops being present on the island as the proof
necessary to establish the control and the jurisdiction of Turkey over the
TRNC. The explanation of the Court did not come without critics, which are all
turned to demonstrate that Turkey cannot be imputable for acts happening on the
territory of the TRNC because of its control over it. This argument revolves
around the fact that the TRNC was founded as an independent self-declared state
with its own Constitution and, even before the official declaration of
independence, it was administered by local administrations. Furthermore, the
Parliament is elected democratically and the public power is handled by the
TRNC government. Instead, the official function of troops sent by Turkey is to
assure the security of the citizens and of the borders. Their presence would
not, therefore, be considered the proof of effective control by Turkey. Furthermore,
the veracity of the official number of troops that are said to be in Northern
Cyprus casts doubts. This was one of the aspects that were investigated during
the field research on the territory. In this regard, questions were asked about
the Turkish influence over the area, in order to understand whether Turkey
could actually be said to exercise effective control as the Strasbourg Court
established. As the situation is now in the TRNC, it might be incorrect or, at
least, incomplete to accept the presence of Turkish troops as proof of the
effective control exercised by Turkey. Instead, a closer look to political and
economic aspects would have to be given. The TRNC is living in circumstances of
trade and political exclusion due to its unrecognized status. Being the
Republic of Turkey the only state officially recognizing it, the relationship
developed between Turkey and the TRNC is one of dependency of the latter
towards the former. As seen in the previous Section, one third of the budget of
the Turkish Republic of Northern Cyprus corresponds to donation by Turkey,
which still unofficially holds a bargaining power on the territory and
government of the TRNC, as testified by some of the respondents of the
interviews conducted. In conclusion, the decision of the European Court of
Human Rights is to attach obligations and responsibilities deriving from the
ECHR to Turkey for unlawful acts taking place in the Turkish Republic of
Northern Cyprus. Although the decision itself could be considered correct, the
reasoning behind it might be updated and would, therefore, need to be
reassessed. 

 

 

 

x

Hi!
I'm Katy!

Would you like to get a custom essay? How about receiving a customized one?

Check it out