It might be thought that, whatever the future of the island, the Cyprus problem is not as urgent as the above analysis suggests, and that non-action might be an option. Thus, the EU might consider leaving the islanders to sort out their own future. Needless to say, this is the current attitude of many politicians in the EU. It is, however, not a realistic approach. Because accession negotiations trigger a dynamics of their own, non-action is not equal to stand-still. Part of Cyprus is now firmly on its way to accession as a result of the EU's commitment towards enlargement to the East, which would be endangered by a Greek veto. Because of the difficulty of both Cypriot parties now to shift positions on the Cyprus issue, and in order not to prejudice the disputed question of territorial sovereignty, accession of the Republic of Cyprus might perhaps be realised by leaving unclarified the territory to which the Treaties would apply. Either way, this would result in the effective non-application of EU law (and of EC law) to the territory of North Cyprus, with all the consequential disadvantages of this situation.
Non-accession would mean the continuation of the present unsatisfactory situation with distinct risks flowing from the de facto lawlessness described above. Accession without settlement would trigger a situation of unpredictability and the prospect of guerilla activity on the island. None of this is acceptable. The foregoing should be enough for the EU to take a more active interest in the solution of the issues.
But even if one were to dismiss these forcasts as overtly pessimistic, and if one were to believe that life could largely continue peacefully and without major incidents, then still, there would be another reason why the EU would have a special responsibility towards bringing about a settlement before accession can be envisaged. It is this. If Cyprus were ever to enter the EU without solving the problem between North and South, this might result in a lack of democracy which would reflect badly on the workings of the European Union. "Paper" European Parliament elections for the North organised by the South would be a sham,13 and because of the government of the Republic of Cyprus does not represent the North, the democratic content of Community law would be compromised, and the quality of Community legislation could only suffer as a result. Due to the practical inapplicability of Community law to the Northern part of the island, the paradigm of democracy through welfare would not work either. Any lack of democracy at grassroots level would immediately be transposed to central levels of decision-making. If the matter would be brought before the European Court of Human Rights - as in the Matthews case14 relating to the failure by the United Kingdom to organise European elections in Gibraltar -, the Loizidou cases15 would be authority for denying the responsibility of the Republic of Cyprus for this type of shortcoming. Yet no European politician should even consider entertaining the proposition that laws affecting Cyprus could be made under the exclusion of the Rule of Law. Accession under these terms is clearly contrary to the Copenhagen criteria.16
For all these reasons, it is believed that the Cyprus issue should not be downplayed. Rather, an institutional structure needs to be thought out which can serve as a legally adequate and a politically acceptable solution to the issue. The way in which EU membership can contribute to this is considered next.
13 The Republic of Cyprus regularly organises election in which Turkish Cypriots have a formal right to vote and to stand for elections. However, the Turkish Cypriots will not accept to be represented in the framework of constitutional arrangements unilaterally dictated by the Republic of Cyprus. If the Republic of Cyprus would organise European elections, Turkish Cypriots would equally be unable to take part in them. In the Parliamentary Assembly of the Council of Europe, the seat for the Turkish Cypriots remains empty.
14 In Matthews v. UK, judgment of 18 Feb. 1999, the European Court of Human Rights found that the absence of elections in Gibraltar to the European Parliament was a violation of the applicant's right to vote to chose the legislature, as guaranteed under Article 3 of Protocol No. 1 to the European Convention.
15 In Loizidou v. Turkey, judgment of 29 July 1998, the European Court of Human Rights ruled on compensation by Turkey for unjustified denial of access to property owned in Kyrenia. The earlier judgment of 18 Dec. 1996, in which the Court held that the continuous denial to the applicant of access to her property fell within Turkey's jurisdiction, is annotated, i.a., by Necatigil, Zaim, "Judgment of the European Court of Human Rights in the Loizidou Case: A Critical Examination", 3 Journal for Cypriot Studies (1997), 147-71 and by White, Robin, "Interference With Property Rights in Northern Cyprus", 22 European Law Review (1997), 374-80.
16 The Copenhagen European Council of June 1993, which approved the principle of the EU's enlargement to embrace the associated countries of Central and Eastern Europe, also defined the criteria which applicants would have to meet before they could join the Community: These criteria concern: the stability of institutions guaranteeing democracy, the Rule of Law, human rights and respect for and protection of minorities (political criteria); the existence of a functioning market economy and the capacity to cope with competitive pressure and market forces within the European Union (economic criteria); and the ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union (criteria concerning adoption of the Community acquis). See further Heinze, Christian, "On the Question of the Compatibility of the Admission of `Cyprus' into the European Union with International Law, the Law of the EU and the Cyprus Treaties of 1959/60", in Necati Münir Ertekün (ed.), The Status of the Two People in Cyprus. TRNC Ministry of Foreign Affairs, Lefkosa 1997, p.181-229.