Guarantees and Rights of Intervention

By Kypros Chrysostomides

Both Turkey’s illegal invasion in 1974 and its occupation of Cyprus, were claimed to be based on its own interpretation of the Treaty of Guarantee. These arguments are well known. Today, Turkey still insists on the same interpretation of this Treaty. Many famous international legal analysts have considered that, on the basis of the Charter of the U.N., particularly of Article 2(4), the use of force by one state against another is forbidden, except in the case of individual or collective self defence (Article 51). In the exceptional cases when the right of self-defence is invoked, reporting to the Security Council is required. Many scholars have studied and analysed the provisions of the Treaty of Guarantee as well as of Article II and Article IV. They have all reached the common conclusion that this Treaty did not provide for or include any rights of military intervention. Many have in fact said that if such a right were included in the Treaty of Guarantee, it would have been contrary to the U.N. Charter and therefore, under the terms of Article 103, the Treaty would be void to begin with, or at least non-applicable.

The Treaty of Guarantee did not provide for such a right; a different interpretation of this Treaty and the use of force based on it, would be illegal. One of the most prominent international legal analysts, Hans Kelsen, formerly a legal counsel of the U.N., had already noted (in 1959) the incompatibility of the treaty with international law and the Charter of the U.N. A number of opinions and references to authoritative textbooks confirm this view.

The invasion could further not be justified as a ‘humanitarian intervention’, because the criteria for such an intervention are now fairly clearly set out and defined. It is consequently clear that the presence of Turkish troops in Cyprus after the illegal invasion of the 1974 constitutes the continuation of an illegality. The invasion was contrary to the Charter, to the content of the Treaty of Guarantee as well as to general international law.

U.N. Security Council and General Assembly Resolutions confirm both the illegality of the military intervention and continuing occupation of Cyprus, as well as the sovereignty of the Republic of Cyprus throughout its territory, including the occupied section. In practice, however, the U.N. and the international community have so far shown tolerance towards the continuation of this illegality. Turkey has always, wrongly, insisted that the Treaty gave it a right to a unilateral military intervention and has never accepted the submission of this issue to an international body or tribunal so as to get clarifications on the content of the Treaty.

At the time the Annan Plan and its additional Protocol expanded the powers of the Guarantors in all areas and included a guarantee of the constitutional order of both future federated states, along with that of the federal state. The only addition made was the self-explanatory and thus rather unnecessary provision that the Treaty is subject to the rules of international law and the provisions of the Charter of the U.N. But this was also the case back in 1974 and, indeed, is always the case, irrespective of whether an international Treaty specifically says so or not.
All knew very well that the matter had been clearly raised by the Government of the Republic of Cyprus during 2004 both in Nicosia and in Bürgenstock, as well as by Greece during its parallel talks with Turkey on security matters. It was also well known to them that Turkey had always insisted that it had a right of unilateral military intervention. This was in fact put down in writing and was also publicly stated in a document which was circulated then to the Turkish Grand National Assembly.

The fact that the U.N. did not discuss this issue then, in conjunction with the fact that for 45 years it has tolerated the illegality committed in Cyprus, may indeed lead to the conclusion that the Turkey’s aim all along was and still is to justify, with the consent of Cyprus, the implied acceptance of this illegality by the international community and the preservation of the status quo regarding the Treaty of Guarantee (as it was applied in 1974). In other words, what was sought by Turkey was the indirect, yet very clear, recognition of the right of unilateral military intervention. The UN also refused, at the very last minute, to accept a method of control and a procedure for the triggering of a right of intervention, and that with the support of certain Permanent Members of the U.N. Security Council.

The non-alteration of the intervention rights would result in the elimination of all elements of illegality for the 1974 invasion and the resulting occupation; at the same time, it would preserve and legitimize the unilateral right of intervention of Turkey. Such state of affairs would in any event not justify a Turkish Damocles sword hanging over the territory of a European Union Member State.

The matter of termination of the Treaty of Guarantee also formed part of the negotiations in Crans Montana in 2017. The then Greek Minister of Foreign Affairs, Nicos Kotzias was very clear and pursued vehemently the abolition of the Treaty throughout the time prior to Crans Montana and during the Conference. Turkey insisted that the Treaty and its accompanying rights (according to its own clearly wrong interpretation) should be preserved. Despite its alleged flexibility to proceed with its abolition, in the end it insisted on maintaining it as well as keeping occupation troops in Cyprus and refused to put down in writing in the end any other proposals leading to its abolition. The conference in Grans Montana was consequently led to its failure and declared by the SG of the UN as without any positive results.