We need bases in Cyprus not their sovereignty

Two questions of law still linger and rankle among Greek CypriotsThe legal status of the British military bases in Cyprus came under the spotlight again this week at a conference organised by the Cyprus Bar Association during which their legal status came under scrutiny. Two legal questions arise independently of their political complexities that are too long to grapple with in the space available. The Sovereign Base Areas (SBAs) were established at the same time as the Republic of Cyprus (RoC) under the same treaty – the 1960 treaty concerning the establishment of the Republic of Cyprus – under which Britain granted independence in exchange for colonial sovereignty over the SBAs. The Supreme Court of Cyprus ruled in a landmark judgement in 1991 that British sovereignty over the SBAs was a unique species of colonial sovereignty for military purposes rather than normal state sovereignty. The enabling declaration about the administration of the SBAs known as Appendix O made provision for the seamless assimilation of its Cypriot population in the SBAs with the rest of Cyprus, and for limitations on economic activity, customs control and a prohibition on colonisation that were all inconsistent with full-blown sovereignty. The British position on sovereignty is that it was expressly preserved in the 1960 treaty of establishment and nothing in the rest of the treaty or the administrative declaration could detract from the clear text of the treaty. International law on the interpretation of treaties is that parties and courts have to interpret a treaty in good faith giving its terms their ordinary meaning in their context in light of the treaty’s object and purpose. The ordinary meaning of sovereignty in its context was not normal state sovereignty but residual colonial sovereignty. The object of the treaty was to disengage Britain from governing the island of Cyprus and to make provision for retaining military bases there. Its overall purpose was to grant Cyprus independence. So it would seem that the Supreme Court decision that the colonial sovereignty retained was a unique kind of sovereignty insufficient to be within the ordinary meaning of sovereignty of a foreign state was well-grounded. In practice, however, the actual terms used in a treaty have considerable force and more is required than the above interpretative analysis. Hence the importance of the Chagos islands case of 2019 in which the International Court of Justice (ICJ) held in a non-binding advisory opinion that Britain’s carve-out of the Chagos islands in 1965 from its colony of Mauritius before granting it independence in 1968 was a continuing wrongful act in international law. The Chagos Islands are a thousand miles away from the main island of Mauritius in the Indian Ocean. They were acquired by Britain from France as a single colony when they defeated Napoleon in 1815. In about 1965-66 Britain leased one of the Chagos islands, Diego Garcia, to the US for use as a military base. To do this Britain carved out the Chagos islands from Mauritius unilaterally without consulting the people of the colony of Mauritius. Britain then depopulated Diego Garcia to lease it to the US. This meant that when Britain granted Mauritius independence in 1968, the Chagos islands did not form part of the state of Mauritius. Eventually Mauritius persuaded the UN General Assembly to seek an advisory opinion from the ICJ on a question of law about the legality of the carve-out. The ICJ gave its advisory opinion in 2019. It held that the self-determination of colonial peoples that had crystallised into a rule of customary international law by 1965, did not permit a colonial power to retain sovereignty over part of the territory of a colony and grant independence to the rest without the consent of the whole population of the colony freely and genuinely expressed usually by their leaders. Whether the British could lawfully have retained sovereignty of part of Cyprus on independence in 1960 in exchange for granting the rest of the island independence raises questions of law similar to those that arose in the Chagos case. The British attitude to decolonisation in Cyprus was forced partly by the armed struggle against British rule by the majority Greek Cypriot community for union with Greece that began in 1955, and partly by the 1956 Suez crisis when Britain, France and Israel attacked Egypt. My abiding memory of the armed struggle was the walls that blocked the streets of Limassol, and of the Suez Crisis, French sailors with red bobs on their hats and the smell of French cigarettes around the Delices cafe on the sea front. Until 1955, Britain’s policy on Cyprus was that it would never be granted independence let alone union with Greece – basically because Britain needed the whole island as a base. There was a shift in thinking to bases in Cyprus in exchange for independence when Harold Macmillan, who succeeded Anthony Eden after the Suez crisis in 1956, became prime minister – “we need bases in Cyprus, not Cyprus as a base” was the mantra in Downing Street at the time. The change in policy then received a boost when Greece and Turkey agreed an independence plan in 1958 in Zurich and the scene was set to persuade the Cypriots who were invited to London in 1959. The political head of the majority Greek Cypriot community was Archbishop Makarios accompanied by a number Greek Cypriot community leaders. The Turkish Cypriots were led by Dr Fazil Kuchuk and Rauf Denktash. They had opposed union with Greece. Initially, they were happy to remain a British colony but demanded partition if the British were to relinquish sovereignty to Greece. At the London talks, however, they were content with all the independence arrangements. Makarios and his Greek Cypriot entourage were initially not persuaded and complained of a fait accompli albeit of the Zurich agreement between Greece and Turkey, which they were in the end pressured to accept. The British demand for bases in exchange for independence had been on the table since 1958 and was agreed at the tail-end of the London talks. In due course Makarios negotiated the areas down to 99 square miles of the much larger territory demanded by Britain, but two questions of law linger and rankle among Greek Cypriots: whether self-determination had crystallised sufficiently in 1958-59 into a rule of customary international law; and if so, whether Makarios freely and genuinely expressed the consent of the Greek Cypriot population of Cyprus to independence in exchange for the retention by Britain of sovereignty over two military bases? So it is over to the UN General Assembly to ask those questions of the ICJ on behalf of Cyprus.