Section IIIwill focus on the application of the concept of extraterritorial jurisdiction -examined in Section 2 – specifically to the Turkish Republic of NorthernCyprus.
This will be tackled using the position and the reasoning of theEuropean Court of Human Rights when confronted with three core cases that willbe presented in chronological order. Finally, critics to that same reasoningwill be provided based on literature and the field research conducted in theTRNC. 1. Line of cases of the Strasbourg Court 1.1.Cyprus v Turkey (1975) The first judgmentpresented, Cyprus v Turkey, datesback to 1975. The Republic of Cyprus claimed several violations of theConvention – including deprivation of life, inhuman and degrading treatment, arbitrarydetention and displacement – by Turkey on the territory of Northern Cyprus.
1 Itis vital to keep in mind that, as explained in Section I, in 1974 Turkeyinvaded the island of Cyprus, extended its occupation to about 40 percent ofthe territory of the Republic of Cyprus and continues to remain in occupationof such territory. The Court first interrogated itself on whether it had thecompetence (ratione loci) to examinethe case, since the alleged violations took place on the island of Cyprus. Inprinciple, as already analyzed, this would exclude the Court’s competence tohear the case. However, it was found that the term “jurisdiction” in Article 1of the Convention, was not “limited to the national territory of the HighContracting Party concerned”2 and that”it is clear from the language … and the object of this Article, and from thepurpose of the Convention as a whole, that the High Contracting Parties arebound to secure the said rights and freedoms to all persons under their actualauthority and responsibility, whether that authority is exercised within theirown territory or abroad”. The fact that Turkey didn’t annex any part of Cyprusnor established a government there was not relevant as for the attribution ofobligations and responsibilities to Turkey.3 Instead,the Court assessed that, since “Turkish troops have entered the island ofCyprus, operating solely under the direction of the Turkish Government … itfollows that these armed forces are authorised agents of Turkey and that theybring any other persons or property in Cyprus “within thejurisdiction” of Turkey, in the sense of Art.
1 of the Convention, to theextent 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 isengaged.”4Furthermore, it is important to highlight that the Court, in its reasoning,referred to the so-called “human rights vacuum” which must be imperativelyavoided in order to ensure the protection of the rights guaranteed by theConvention. In fact, the Court ruled that “the operation of the Convention inthe occupied part of Cyprus would become ineffective if one accepted therespondent Government’s submission Turkey’s submissions that allegedviolations of the Convention in that area could not be examined by theCommission. … The Convention did not allow such a vacuum in the protection ofits rights and freedoms.”5 1.
2.Loizidou v Turkey (1995) In Loizidou, the applicant claimed herproperty rights to be violated as a result of the occupation of Northern Cyprusby Turkish troops which had prevented her from accessing to her home and otherproperties there. She claimed a violation of her property rights contrary toArticle 1 of Protocol No. 1 to the Convention European on Human Rights. The Court was confronted with two intertwined questions:6- Whether theconduct was attributable to its perpetuator, the TRNC, or the State exercisingsupposedly exercising effective control over the area, Turkey. – Whether theEuropean Court of Human Rights was competent to hear the case given thenon-state identity of the TRNC. The two questions are said to be interconnectedbecause, “if the court deemed the wrongful conduct at stake attributable toTRNC, because that entity was not a party to the ECHR, the court would lackjurisdiction to examine the merits of the case.
In the opposite scenario, theattribution of the conduct at issue to Turkey would authorize the court toexercise jurisdiction over a state party to the ECHR”. Therefore, the conceptsof attribution of wrongful acts and effective control were linked for theestablishment of the jurisdiction of the Court. The latter focused on thenature of the TRNC as a de factoorgan and ruled that “the responsibility of a Contracting Party may also arisewhen as a consequence of military action—whether lawful or unlawful—itexercises effective control of an area outside its national territory. Theobligation to secure, in such an area, the rights and freedoms set out in theConvention derives from the fact of such control whether it be exerciseddirectly, through its armed forces, or through a subordinate localadministration”.7Thus, the Court concluded that the violations were falling within Turkishjurisdiction.8In fact, the Court was satisfied with the Turkish troops present on the area ofNorthern Cyprus as proof for the exercise of effective control. It explainedthat “it is not necessary to determine whether … Turkey actually exercisesdetailed control over the policies and actions of the authorities of the”TRNC”. It is obvious from the large number of troops engaged inactive duties in Northern Cyprus that her army exercises effective overallcontrol over that part of the island.
Such control, according to the relevanttest and in the circumstances of the case, entails her responsibility for thepolicies and actions of the TRNC”. … Her obligation to secure to theapplicant the rights and freedoms set out in the Convention therefore extendsto the northern part of Cyprus.”9 Thelegality of the invasion was an irrelevant factor in the assessment of effectivecontrol. Having attributed the wrongdoing to Turkey, the Court alsoautomatically defined itself as competent for hearing the case, being Turkeyone of the Signatories of the Convention. 1.
3.Cyprus v. Turkey (2001) The third case, judged in 2001, related specificallyto the debated recognition of the TRNC and the accountability of Turkey forviolations in the area of Northern Cyprus in the light of the conduct ofmilitary operations by Turkey since 1974. Turkey has maintained its usualdefensive position arguing that “the TRNC was politically independent fromTurkey and consequently Turkey could not be held responsible for its acts”.10 Nevertheless, the Courtexplained that Turkey’s responsibility under the Convention derived not onlyfrom the presence and the acts of its troops but also from the acts of the TRNCadministration “which survived by virtue of Turkish military and other support”.11In conclusion, according to Article 1 of the Convention, Turkey exercised itsjurisdiction over the area of the Turkish Republic of Northern Cyprus.2. Summary The invasion, without declaration of war, of theisland of Cyprus by Turkey was the first and most evident factor for theStrasbourg Court to attach obligations and responsibilities to Turkey regardingacts happening on the northern side of the island.
In fact, entering the islandwith Turkish troops and agents, Turkey brought the persons and properties inNorthern Cyprus under its control. In this way, as explained in Section II, theextraterritorial jurisdiction could be established. Since Turkish troops arestill present in the TRNC, the Court, in Loizidou,established the continuity of Turkish extraterritorial jurisdiction and itsaccountability in case of violations of the ECHR.
Furthermore, the Courtspecified that Turkey’s responsibility also derives from the dependency thatthe local administration developed towards Turkish support. 3. Critics After havingassessed the reasoning of the Court when attaching responsibilities to Turkeyunder the Convention over the area of Northern Cyprus, it is important tohighlight the eventual critics to that same reasoning. Those that are going tobe presented derive both from the researched literature and from the fieldresearch conducted in the TRNC. The critics focus on the realistic character ofthe control exercised by Turkey in the TRNC.
As assessed inCyprus v Turkey, it is not only the mere presence of Turkish troops thatestablishes the link for the “effective control”. Instead, factors such asdependency could play a pivotal role. However, the governmental branch of theTRNC, that finds its basis in the TRNC Constitution, is managed by the localadministration that exercises public authority. This has been the case since1963 when certain areas were being administered by the so-called TurkishCypriot General Committee and later by the Provisional Cyprus TurkishAdministration, the Autonomous Cyprus Turkish administration (1971) and theTurkish Federated State of Cyprus (1975). In fact, the London Accords “recognisedthe existence of the two communities as two distinct ethnic groups meritingprotection, with each community maintaining the capacity to block the other’sinitiatives in the unfolding Parliament, despite the numerical majority of theGreek population.”12As it is now, the Turkish Republic of Northern Cyprus is the result of adevelopment towards political and administrative independency that began waybefore the invasion by Turkey.
Gradually, the TRNC government obtain thecontrol over its citizens. This was presented in Loizidou, where Turkey argued that “the TRNC is a democratic and constitutionalState which is politically independent of all other sovereign States includingTurkey. The administration in northern Cyprus has been set up by the TurkishCypriot people in the exercise of its right to self-determination and not byTurkey. Moreover, the Turkish forces in northern Cyprus are there for theprotection of the Turkish Cypriots and with the consent of the ruling authorityof the TRNC. Neither the Turkish forces nor the Turkish Government in any wayexercise governmental authority in northern Cyprus.”13Finally, the Republic of Turkey also underline the importance of assessing theindependence of the TRNC also considering the democratic character of theelections and the presence of a Constitution approved by way of referendum.
14 Identifyingthe role of the local administration is particularly vital because, even if theTurkish troops are still present on the area for its security, they might notbe involved in the exercise of public authority. In fact, as one of therespondents explained in an interview during the field research, the Turkishtroops call themseves”self peace forces”. They are defending Turkish Cypriots as their officialfunction. However, their presence on the island is able to create a sort ofbargaining power.
This was explained as being their non-official function.However, if the official reason for which they are still present on the islandis the security of the latter and the protection of citizens, thenattaching human rights obligation to Turkey would be incorrect. In fact, “if Turkeycannot apply its responsibilities as emanating for example from directives ofcourt decisions, then it is silly to impose such obligations at the outset,even if human rights require some form of protection.”15Furthermore, concerning the necessity of protection of human rights and toavoid the so-called “human rights vacuum” – as it was ruled in Cyprus v Turkey – it is argued that humanrights of the Turkish minority were actually already protected only at theregional level.16 TheECHR, even if at first it should have been applied to the entire island ofCyprus, was never applied to the Turkish minority community. Instead, theTurkish Cypriot administration was protecting the rights of its community.As the lastpoint, even though influences towards the emancipation from the Republic ofTurkey are popular among the population of the TRNC, it is hardly believable inpractice given the strong economic dependency that then TRNC has on Turkey. Infact, the non-recognition as a state at the international level of the TRNCcreates 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 NorthernCyprus consisting in Turkish financial aid transfers.17 Indeed, the almost totally closedeconomy and the difficulty in foreign trade is one of the major problems of theTurkish Cypriots. International trade is conducted indirectly through Turkeyor, eventually, through the legally recognized ports in Cyprus.18A respondent testifiedthat the impact and influence that Turkey has on Northern Cyprus isparticularly strong. “It can change governments in Northern Cyprus.” As anexample, he said that it is not unusual for Foreign Ministers of Turkey to callpolitical party leaders in Northern Cyprus and to express their demands, thatwould be exhausted.
Conclusion The main reason this topic and the relatedresearch question were chosen is the very controversial character of Cyprus’past and present. Its different influences, its history of division and itsinvasion are all elements that contributed to its debated situation today, withthe Republic of Cyprus being part of the European Union and the TurkishRepublic of Northern Cyprus being a self-declared State unrecognized by therest of the world. As it is described, it might be difficult to imagine thatthose two parts, with such different status, are the components of the sameisland.
As Cyprus has been a party to the Councilof Europe since 1961, the European Convention on Human Rights would have toapply to the entirety of the island. Things obviously changed when the TurkishRepublic of Northern Cyprus officially declared itself an independent state.Not being recognized by any State in the world but Turkey, the TRNC faced aclear exclusion, both in economic and political terms.
This includes theimpossibility of signing and ratifying any kind of European nor internationaltreaty, such as the European Convention on Human Rights. In this way, a legalgap in the protection of human rights is created, since those are onlyprotected at the national level and the TRNC government is, therefore, excludedfrom double-checks by the European Union or the international community.Furthermore, as a consequence, individuals would lack an essential mean inorder to obtain and effective remedy in cases of individual human rightsviolations. As a response to this gap, the ECHR has an extraterritorialapplication. In fact, as explained in the previous Sections, the European Courtof Human Rights is attaching the obligations and responsibilities stemming fromthe Convention over the area of the TRNC to the Republic of Turkey. Thereasoning behind this decision is based on the fact that Turkey, invading theisland – 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 wassatisfied with the Turkish troops being present on the island as the proofnecessary to establish the control and the jurisdiction of Turkey over theTRNC. The explanation of the Court did not come without critics, which are allturned to demonstrate that Turkey cannot be imputable for acts happening on theterritory of the TRNC because of its control over it. This argument revolvesaround the fact that the TRNC was founded as an independent self-declared statewith its own Constitution and, even before the official declaration ofindependence, it was administered by local administrations. Furthermore, theParliament is elected democratically and the public power is handled by theTRNC government.
Instead, the official function of troops sent by Turkey is toassure the security of the citizens and of the borders. Their presence wouldnot, 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 NorthernCyprus casts doubts. This was one of the aspects that were investigated duringthe field research on the territory. In this regard, questions were asked aboutthe Turkish influence over the area, in order to understand whether Turkeycould actually be said to exercise effective control as the Strasbourg Courtestablished.
As the situation is now in the TRNC, it might be incorrect or, atleast, incomplete to accept the presence of Turkish troops as proof of theeffective control exercised by Turkey. Instead, a closer look to political andeconomic aspects would have to be given. The TRNC is living in circumstances oftrade and political exclusion due to its unrecognized status. Being theRepublic of Turkey the only state officially recognizing it, the relationshipdeveloped between Turkey and the TRNC is one of dependency of the lattertowards the former. As seen in the previous Section, one third of the budget ofthe Turkish Republic of Northern Cyprus corresponds to donation by Turkey,which still unofficially holds a bargaining power on the territory andgovernment of the TRNC, as testified by some of the respondents of theinterviews conducted. In conclusion, the decision of the European Court ofHuman Rights is to attach obligations and responsibilities deriving from theECHR to Turkey for unlawful acts taking place in the Turkish Republic ofNorthern Cyprus. Although the decision itself could be considered correct, thereasoning behind it might be updated and would, therefore, need to bereassessed.