Assoc. Prof. Dr. Sibel SAFI
Abstract. United Kingdom of Great Britain and Northern Ireland, the Kingdom of Greece and the Republic of Turkey are the parties of the Cyprus Treaty of Guarantee. Regarding to this Treaty the established Republic has been party of 1951 Geneva Convention. The 1951 Refugee Convention was signed and ratified by the United Kingdom without any geographical limitation under Article 1B(1) in 1954. Subsequently in 1956, the United Kingdom extended the Refugee Convention’s application to its then colony, Cyprus, under Article 40(1) of the Convention. Upon independence, the Republic of Cyprus assumed the international obligations and responsibilities of the United Kingdom in accordance with Article 8(1) of the Treaty of Establishment. Refugees use as a transit passage the territorial integrity of TRNC in order to reach the southern part of the island. Refugees seek asylum in TRNC as well. Although Cyprus as a whole is party of the Convention and it is applicable in the southern part, Geneva Convention is not applicable at the northern part of the island. The provisions are suspended in the current situation and the asylum seekers are being sent to Turkey because there is not any applicable refugee granting Legislation.
RECOGNITION OF THE STATES
When the requirements for statehood was listed in the Montevideo Convention, there was also mention of the recognition of statehood by other states and actors of the international law, which drew attention to what is disputably the most complex, and certainly the most political aspect of statehood. The term recognition creates a certain degree of confusion, since it is not completely clear as to what it refers to as being recognized; a government or a state? And if it is a government, whether its legality or practical existence? In the context of international law, there is no one fits for all kind of recognition (or non recognition), since the terminology used in official communications or international declarations is highly inconsistent. There might be ‘formal recognition’, ‘full diplomatic recognition’, ‘de iure recognition’, ‘de facto recognition’ and so on. There may not be the use of the term ‘recognition’, however, it can be through an agreement, which constitutes as establishing diplomatic relations or a message of congratulatory nature, after the declaration of independence or independence day.
There are two theories surrounding the issue of recognition, first of which was mentioned in the Montevideo Convention. The Convention was consistent that the theory is too uniform in its approach when it is codified and it stated that the topic of recognition has no legal relevance. On one hand, this theory is reasonable, according to this declarative theory, the act of “recognizing a state” should be used simply to state the option of other states regarding whether or not an entity in international law satisfies the requirements to be a state or not. Therefore, the act of recognition can affirm that such an entity is actually a state, however, since this entity already met the requirements of statehood, this declaration is not really necessary.
The opposing theory, on the other hand, puts forward that international community of states is in its essence a political community, and the membership should depend on whether or not the new state is accepted by the existing members, in this case, the other states. This is called the constitutive theory and it resembles the membership procedure of exclusive country clubs or other social structures by the way it requires the approval of other members. This theory suggests even if all four requirements of statehood are sufficiently met, recognition is essential for an entity to achieve statehood.
In principle, recognition is a unilateral act, which in turn impacts bilateral relations between two states. In contemporary practice, it is accepted that if a state is accepted to take part in UN, this constitutes as collective recognition, as to that entity becoming a lawful member of the international community of states. This is because it reflects the fact that admission into the UN requires approval by five major powers of the Security Council as well as at least two thirds of the member states.
TRNC is neither a member of UN nor recognized by any of its member states except Turkey. In contrary there is a UN Resolution to the effect of non-recognition and calling out other states not to recognize its statehood.
However regarding to Montevideo Convention, as article 1 stipulates that “the state as a person of international law should possess the following qualifications; a permanent population, a defined territory and the capacity to enter into relations with the other states”. This article indicates that to be recognized is not a constitutive element as a requirement for statehood. Article 3 of the Convention expresses this situation as “The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.”
Legal Consequences of Non-Recognition
Typically acquiring recognition serves for two legal functions. First, as it is already mentioned above, it plays a role in determination of statehood, and each individual determination can be evidential in doing so. Secondly, recognition is a condition in order to establish formal relations, such as diplomatic relations or becoming party to bilateral or multilateral treaties. This second function is what is referred to as “constitutive” in the constitutive theory, however, this is not a precondition to be a state as Montevideo Convention determines. There is no rule in international law that requires the states to make a public declaration of recognition nor carry out optional relations such as exchange of embassies. The expression of state’s position regarding the recognition of another state is voluntary, therefore, political. It can also be political in the sense that, non-recognition of a state by another does not have to be supported with a legal ground, as there will be no attempt to satisfy the question of statehood. Non-recognition can merely be an act of general disapproval and boycott. Alternatively, recognition can be part of a policy driven aggression, involving declaration of a puppet state; and legal consequences of such act will arise from the breaches of international law involved.
To a considerable degree, the recognition is merely symbolic, it shows that a certain state accepts that another entity as its equal. In practice, it can be observed that it actually does not have such a big impact on relations between states, as it is not uncommon for intergovernmental activities to be carried out in absence of recognition, many states enter into contractual relationships, through treaties with states which they are not very willing to recognize. This shows that, entering into treaties with another state does not solely create implied recognition, let alone, when there is expressed exclusion of this by the parties in the treaty. This means that UK can enter into an extradition treaty or any other treaty of cooperation with TRNC without creating the outcome of an implied recognition. On the other hand, it is probably true to say that if states enter into diplomatic relations with another, this will create implied recognition, since the establish-ment of formal diplomatic relations give rise to the political validation that otherwise only derive from recognition.
In fact, in certain circumstances, non-recognition may carry the implicit effect of assumption of recognition, since it implies a sense of acknowledgment of the existence of that state. According to Warbrick, a mere statement of non-recognition may mean either of these five different things;
“(a) a statement of neutrality, under which no view is taken deliberately as to the entity’s statehood; (b) driven purely by political calculations (thereby implying recognition of statehood in law); (c) driven by the understanding that recognition would be unlawful or premature (genuine non-recognition); (d) issued on the basis that supervening obli-gations in custom or treaty prevent recognition; (e) issued on the basis of a supervening obligation imposed by the Security Council”.
As Warbick explains, only one of those is a certain declaration that the state in question is not recognised by the declaring state, as a state.
This brings up the considerations around the practicalities of recognition. The existence of statehood has no value at all, unless other member states of the international community acknowledge that, what is the worth of Taiwan or UK being a state if no other country will form relations with them as such.
Unilateral Declaration of Independence
There is a strong correlation between the right to be a state and the principle of self determination, hence, self determination has been embodied in the UN Charter. Article 1(2) and Article 55 makes references to the “principle of equal rights and self determination of people”. There are a number of methods of maintaining self-determi-nation, including simply forming a new state through secession, joining other states in a federal structure or joining a non-federal state. Right to self determination dates back to colonial times, and in that context it was perceived that people who have been under colonial rule by another state, have the right to decide for their independence under international law. The post colonial concept of secession was based on the assumption that the internal right of self determination of the people was being violated. This kind of secession was called remedial secession and was lawful under the international law. Nonetheless, the topic of self-determination, namely through the method of secession is still a vague issue and its validity under international law is subject to dispute when the colonial context is removed. The Canadian Supreme Court has made a supportive reference to the subject of self determination through secession and deemed it as a democratic expression. The court has recognized that the right to self determination is a right that all persons are subject to and should enjoy. However, it also made a note that a right to secession is a right that arose from international law right to self determination of those who are under the rule of another state (colonial rule), and have been suffering from exploitation and control of another state or foreign conquest which results with the subjects of this state not being able to righteously exercise their right to self determination within the territory that they belong to. Otherwise, the presumption is that self determi-nation of the people should be achieved within the existing structure of the state. This is based on another general assumption that every state has the right to have its territory recognized and its territorial integrity respected by other states and members of the international community, given that its government represents the vast majority of its permanent residents, who are treated equally and not subject to discrimination in front of the law, and within the scope of the right of self determination granted by the UN Charter and International Human Rights.
The International Court of Justice has recently issued an opinion regarding the issue of secession through unilateral declaration of independence in 2010, in the Kosovo Advisory Opinion. In this opinion the Court of Justice had considered whether unilateral declaration of independence is lawful or not in international law in relation to the question before it, and found that in that specific case, there was no violation of international law. International Court of Justice has stated in their opinion that “…One of the major developments of international law during the second half of the twentieth century has been the evolution of the right of self-determination” and there are examples of states exercising declaration of independence outside the colonial context. Historically, the practice of the members of international law in such cases has never been in the direction to suggest that there is or should be any rule in international law, which should prohibit such declarations. ICJ has reminded the significance of the principle of territorial integrity and made references to the former resolutions of the Security Council in which the declaration of independence was found in breach of international law. There is no general prohibiting in the international law regarding the unilateral declaration of indepen-dence based on the practices of the Security Council or international law in general. Nevertheless, ICJ has highlighted the fact that those declarations would be legal under the international law, if they were not to be merely unilateral declarations of independence and not following an unlawful use of force or other violations of jus cogens. In case of TRNC the topic of declaration of independence is so much more complicated.
STATUS OF TURKISH REPUBLIC OF NORTHERN CYPRUS (TRNC)
IN INTERNATIONAL LAW
Cyprus has a long and notable history. The first time when it acquired its inde-pendence and the republic was established in 1960, the island has kept the common law system and reflected the influences of Greece and Turkey, who considered themselves as mother lands, specially in the administrative law system. Greek law, which influenced this system was inspired by legal systems of different European states, therefore, it is possible to see the traces of those legal systems, namely French, in Cyprus law.
Following the territorial separation in 1974, naturally, Turkey has increased its impact on the northern part of the island. The shift from Ottoman control, to becoming British Colony, to declaring an independent, bi-communal republic in 1960, the Republic of Cyprus and finally the 1974 Turkish military intervention resulting with division, created many transitions in the legal context and call into many questions that neither Cypriot Constitutional Law nor the international law had answer.
The original text of the Republic of Cyprus, as well as being a very long text for a constitutional text, of 199 articles to be exact, mainly stands out for the fact that it purports a complicated mechanism which aims (objectively speaking failed) to do justice for both ethnic communities on the island, namely Greek and Turkish Cypriots, who are different in size by a ratio of 70 to 30 percent respectively. Additionally, the text of the constitution, as well as the administrative law, has been drawn to match the framework of the international law and the treaties that founded this republic, namely, the Zürich, London and Nicosia treaties, therefore, the Cypriot Constitution is sometimes referred to as the Zürich constitution.
Beginning in 1964 Turkish Cypriots lost the shared power to rule, and they losing their place in the Supreme Court of Justice in 1966 followed this. Relying on the Guarantee agreement, troops of the Republic of Turkey have intervened and stationed on the north part of the island, since 20 July 1974, which resulted with the division of the island, to the current day. The north part of the island is under the control of Turkish Cypriot ethnic group since. After the division, Turkish Cypriot community first called themselves the “Turkish Federate State of Cyprus” and drafted and enacted a constitution aligned with this concept in June 1975. Unfortunately, at that time, the establishment of this new constitution has been perceived as an act of segregation rather than establishing a new structure of a federal state and this idea has been received so well by the other actors of the region, namely Greek Cypriot community and Greece and the rest of the international community. Since this idea was misunderstood as an implication of an attitude towards a permanent partition, or transitioning into two different states, and hasn’t been accepted, eventually in 1983 Turkish Cypriot declared independence which is a formal secession, and called themselves Turkish Republic of Northern Cyprus (TRNC). The vast majority of the international community did not recognized this new state. The seclusion meant that, the constitution of the Republic of Cyprus was de facto repealed in the territory under Turkish Cypriot control and was replaced by the new constitution of the Turkish Republic of Northern Cyprus. The new constitution makes some concessions, in particular regarding the sovereignty when execute powers are exercised by the executive authorities of the constitution.
Treaties in place
The international treaties that were in place for the founding and securing the Republic of Cyprus are as follows:
Ø Treaty of Zürich (1959)
Ø Treaty of London (1959)
Ø Treaty of Establishment (1960)
Ø Treaty of Guarantee (1960)
Ø Alliance Contract (1960)
The most relevant of these treaties is the Treaty of Guarantee which involves Greece, Turkey and United Kingdom, on one hand, and Cyprus on the other. The purpose of the treaty was to safeguard the execution of the provisions in the above treaties and the constitution of Cyprus. Under this treaty Greece, Turkey and Britain have been granted the power to intervene with use of force in case the provisions of the Treaty of Establishment were not complied with and no other attempts of resolving the issue, such as consultation, has succeeded. The purpose of such intervention can only be to protect the observation of the provisions of the constitution and unity of the Republic.
The provisions of the Treaty of Guarantee, namely Article 4, did not only incorporate the principles rooted in the international law but also in the Cypriot constitution. The significance of this, is that these powers and what they safeguard have not only been incorporated in Article 4 of the treaty, which despite the disputes, Republic of Turkey legally relied their military intervention on, but they were also incorporated into the constitution on the Republic of Cyprus, which the Greek Cypriot side claims to be still intact and in force. Therefore, reading the issue of justifying the intervention, the Greek side along with the international community, claims that the Turkish side cannot rely on Article 4, and the international law perspective alone.
Greek Cypriot community also claims that the military intervention was in breach of Article 4 of the Treaty of Guarantee, rather than under this provision. Their claim was that this provision did not make any reference to “military intervention”, it merely says action. They further claimed that, Article 4 cannot be referring to military intervention since use of force is restricted under the Article 2(4) of the UN Charter. There is a body of opinion that suggests that Article 103 of the UN Charter puts forward that Charter obligations should take supremacy over the responsibilities arising from the provisions of other international agreements’ provisions given that there was a conflict. This suggests that the obligations created under the Treaty of Guarantee are not in compliance with the UN Charter obligations and to customary international law. Another argument is that the word “action” cannot be taken as to mean military action due to the principle of construction ‘ut res magis valeat quam pereat’.
Greece has taken a different approach to the issue than the Greek Cypriots. They did not support the argument that Article 4 of the Treaty of Guarantee did not refer to a right of intervention. Their claim was that this Article only allows action with the pre-condition of restoring the status quo ante and that the Treaty itself makes mention to action taken for the mere purpose of “re-establishing the state of affairs created by the present Treaty”.
The UN Security Council has been disapproving the unilateral military actions taken by the Republic of Turkey in Cyprus and has been supportive of the preservation of Republic of Cyprus. However, it has never been expressive of any decisive opinion regarding or support towards the legal arguments surrounding the validity of the military intervention, by any of the parties involved.
After both the military intervention of 1974 and the Declaration of Independence in 1983 UN Security Council adopted resolutions, as an addition to previous resolutions regarding the Cyprus problem.
In Resolution 353 (1974), Security Council has expressed its growing concerns surrounding the situation, as described it as becoming a “serious threat to international security and peace”. The Security Council called for the imminent termination of the Turkish intervention which damaged the territorial integrity, independence and sovereignty of the Republic of Cyprus. Security Council then asked for the withdrawal of foreign military forces from the island, and these calls were later affirmed by all relevant resolutions of the UN regarding the Cyprus question. In Resolution 3212 (1974), UN General Assembly has also referred to the state of affairs in Cyprus as a potential threat to international security and peace and asked for the respect of the Republic and its territorial integrity, independence and overall sovereignty, and repeated the request of immediate withdrawal of Turkish military forces from the island. In the following years, there has been other resolutions adopted by the UN Security Council, which have repetitively affirmed, and endorsed all previous Security Council Resolutions on Cyprus question, starting from 353 (1974). These resolutions, namely 410 (1977), 440 (1978), which re-affirmed the previous resolutions, further called for compliance, co-operation and implementation within a reasonable time frame.
In November 1983, Turkish Cypriot ethnic group made a political natured move and made a unilateral declaration of independence and the establishment of Turkish Republic of Northern Cyprus, in the north part of the island. However, the international community quickly and clearly rejected this declaration of a new state. Three days after the declaration of TRNC, UN Security Council has adopted Resolution 541 (1983), and expressed that it does not recognize such declaration of secession from the Republic of Cyprus. Resolution 541 (1983) has expressed the view that such a declaration was legally invalid and should be withdrawn. The resolution further makes a call for all the States of the international community, not to recognize the new state on the island or any other than the Republic of Cyprus. Later, Resolution 550 (1983) has affirmed the previous Resolution 541, and further, expressed the view that exchanging ambassadors between Republic of Turkey and TRNC was also not valid. The said Security Council Resolutions and their effect on the continued presence of Turkey on the island have been subject to many legal debates. The 1974 Resolutions can be considered as having been issued following Article 40 of UN Chapter VII and if it is interpreted strictly based of the wording of the resolution, expressions such as “calls upon” can be deemed legally binding.
The day after the establishment of TRNC, European Union, which was composed of only ten member states (and was called The European Community) at the time, has made a statement about the declaration of independence and establishment of TRNC, and expressed its rejection of the declaration and showed support to the Republic of Cyprus, by expressing that they consider the government of Republic of Cyprus as the only legitimate government in Cyprus. Moreover, through its Heads of Government, the Commonwealth made a statement that, among other things, they do not recognize the declared new secessionist state, and they regard it as legally not valid and invite all members of international community not to recognize or assist the new state in any way.
THE DOMESTIC LEGAL FRAMEWORK OF IMMIGRATION
IN NORTHERN CYPRUS
The Aliens and immigration law (CAP 105) is the main instrument dealing with immigration and regulates inter alia border control, detention, expulsion, and residence permits. The law predates the ‘constitution’ as well as all of the international human rights and refugee treaties and conventions that became part of the domestic legal framework. Thus, it is not aligned with human rights and refugee rights obligations of the administration to which it has bound itself unilaterally. The detention of foreigners for the purpose of deportation is regulated under the subsequently amended ‘aliens and immigration law’ (CAP 105).
The ‘law’ provides that a person can be detained if declared a “prohibited immigrant”. It provides 13 instances under which a person may be declared a “prohibited immigrant”, listed under Article 6(1). The ones that are most commonly applied to asylum seekers and refugees are the following:
- any person who is convicted of an offence for which a sentence for imprisonment has been passed;
- any person who enters or resides in the country contrary to any prohibition, condition, restriction, or limitation;
- any person who was deported from the northern part of Cyprus;
- any foreigner who wishes to enter as an immigrant, but does not have in his or her possession a granted immigration permit;
- any persons who suffers from contagious or infectious disease and is a danger to public health or does not comply with the regulations in the interest of public health.
Under CAP 105, the administrative detention of persons who have been issued with denial of entry decisions or deportation orders is allowed under Articles 13 and 14. Article 13, which applies to decisions relating to the prohibition of entry to prohibited immigrants, provides for a maximum period of 8 days of administrative detention after which detention is subject to judicial review, which may lead to the court ordering an extension of the detention. Article 14 provides that deportation orders along with detention orders can be issued against persons who overstay their visa or who are considered to be a “prohibited immigrant”, for an indefinite period. There is no provision for a maximum period of detention and no provisions on judicial review. In practice, detention and deportation orders are issued under Article 14 in almost all cases. However, the ‘constitutional’ provisions, in relation to challenging such decisions with recourse or a habeas corpus, still apply.
Unauthorized entry and/or stay are prohibited under Articles 12 and 19 of CAP 105 and they are punishable by imprisonment and/or a fine under these articles. During the criminalization process, people in need of international protection are usually detained at ‘police’ stations and/or the ‘central prison’ alongside people accused with or convicted of criminal offences and is not automatically given access to available asylum procedures. In some cases, detention and deportation orders are immediately issued against them and following detention in ‘police’ stations; they are deported based on these orders.
‘Criminal Code’ (CAP 154)
The ‘criminal code’ provides sentences for personation in general and personation of a person named in a certificate. Persons in need of international protection are often arrested, charged, and convicted for these types of crimes. During the criminalization process, they are almost always detained on the basis of pre-trial detention at ‘police’ stations and/or the ‘central prison’ alongside people convicted of other criminal offences. They are not automatically given access to available asylum procedures.
‘Prohibited Military Zones Law’ (5/1979) & ‘Military Crimes and Punishments Law’ (29/1983)
Under Article 4 of the ‘prohibited military zones law’, ‘military courts’ have the jurisdiction to hear cases about and impose penalties on anyone that enters without authorization, secretly, or fraudulently into prohibited military zones. Under Article 20 of the ‘military crimes and punishments law’, secretly, fraudulently, or deceptively entering prohibited zones designated by the military (which are explicitly indicated by written notices and signs) is punishable with up to three years of imprisonment. Entering military zones, where a special permit is required to enter, without permission or against the conditions of the permission granted, is punishable with up to two years imprisonment. In order to be able to access the established national asylum procedures in the Republic of Cyprus, exercising its jurisdiction in the southern part of the island, persons seeking international protection who arrive in the northern part should be able to present themselves to the authorities of the Republic of Cyprus posted at the official crossing points along the Green Line. However, due to the lack of knowledge and fear of being arrested and/or returned back to their points of departure by the police on either side of the island, people in need of international protection often try to cross the Green Line irregularly. Less often, asylum seekers in the Republic of Cyprus try entering the northern part in this way, especially in cases where there are legal and/or practical barriers for them to be reunited with their families in the Republic of Cyprus, in order to reach their families who are usually in Turkey.
Obligations Under International Law That Is Part of the Domestic Legal Framework
1951 Refugees Convention
The Refugee Convention, as complemented by the 1967 Protocol, is regarded as “the cornerstone of the international system for the protection of refugees”. Thus, its provisions are not only relevant for the purposes of this report, to the extent that they are considered to form part of the domestic legal framework, but also because they set the international standards for refugee protection.
The Refugee Convention is considered to apply in the domestic legal order. The Refugee Convention was signed and ratified by the United Kingdom without any geographical limitation under Article 1B(1) in 1954. Subsequently in 1956, the United Kingdom extended the Refugee Convention’s application to its then colony, Cyprus, under Article 40(1) of the Convention. Upon independence, the Republic of Cyprus assumed the international obligations and responsibilities of the United Kingdom in accordance with Article 8(1) of the Treaty of Establishment. Additionally, on 16 May 1963, the Republic of Cyprus also affirmed its commitment to the Refugee Convention through a declaration to the UN Secretary General. Thus, under the provisional Article 4 of the ‘constitution’ applicable in the northern part of Cyprus, the Refugee Convention is part of the domestic legal framework. On the other hand, Turkish Cypriot ‘authorities’ have not ratified the 1967 Protocol of the 1951 Refugee Convention that lifted the time limit provided in the Convention and extended its application to refugees other than those affected by events at the time of the Second World War.
Nevertheless, as a matter of its applicability in the northern part of Cyprus for contemporary situations of displacement in regards to the time limitation, it is important to underline that Palestinian refugees within the scope of Article 1D of the Refugee Convention, whose positions have not been ‘definitively settled in accordance with the relevant UN General Assembly resolutions’ who have ceased to receive protection or assistance from UNRWA without reason, have ipso facto entitlement to the protection offered by the Refugee Convention, based on the inclusion clause in Article 1D(2).
Paragraph 2 of Article 1D contains an inclusion clause ensuring the ipso facto entitlement to the protection of the Refugee Convention for those refugees who, without having their position definitively settled in accordance with the relevant UN General Assembly resolutions, have ceased to receive protection or assistance from UNRWA for any reason. Hence, the Refugee Convention avoids overlapping competencies between UNRWA and UNHCR, and, in conjunction with UNHCR’s Statute, ensures the continuity of protection and assistance to Palestinian refugees as necessary. According to the Article D: “This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.”
Paragraph 2 of Article 1D becomes significant in the Turkish Cypriot context with regards to Palestinian refugees that seek asylum in the northern part of Cyprus. Hence, it follows that Turkish Cypriot ‘authorities’ have, despite the time limitation, responsibilities under the Refugee Convention towards this group.
The founding principles of the refugee protection regime denoted by the letter and spirit of the Refugee Convention are stated as follows:
- The principle of non-refoulement: refugees should not be returned to face persecution or the threat of persecution; measures involving the expulsion of refugees shall only be taken in exceptional circumstances when there is a direct impact on national security or public order.
- The principle of non-discrimination: protection shall be extended to all refugees without discrimination.
- The principle of non-criminalization: persons escaping persecution shall not be expected to leave their country and enter another in a regular manner; thus they should not be penalized for having entered into or illegally being in the country where they seek asylum.
The Refugee Convention, together with the 1967 Protocol sets out the Customary International Law principle of non-refoulement in Article 33 from which no derogation is permitted. Regarding to article 33.1: „1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”
Article 32.2 sets out the conditions under which a refugee may be expelled. However, it does not affect non-refoulement obligations of states under regional and international human rights law, which permits no exceptions.
It applies to those who are determined to be refugees under Article 1 of the Refugee Convention as well as those who have applied for or have a presumptive or prima facie claim to refugee status. Under this article, a refugee is a person:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”.
In order to be a beneficiary under the Refugee Convention, the standard of proof of the well-founded test requires ‘good reason’, ‘valid basis’ or ‘real or reasonable chance or likelihood’ of persecution that falls lower than the balance of probabilities tests.
There is an exclusion clause to refugee definition under Article 1(F) and a cessation clause under Article 1(C) of the convention. Regarding to the Article 1(C); „(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or (2) Having lost his nationality, he has voluntarily re-acquired it; or (3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or (4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or (5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality; (6) Being a person who has no nationality he is, because of the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence;”.
The reasoning behind the cessation clauses is that when it is no longer justified or necessary, international protection shall cease to be provided. The clauses, interpreted restrictively, do not deal with the cancellation of status. The burden of providing proof rests with the relevant authorities in the asylum country. Regarding to the Article (F) „The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”
The reasoning behind exclusion clauses is that perpetrators of extremely grave acts do not deserve refugee protection. In order for the clauses to apply, individual responsibility to a crime covered by Article 1(F) needs to be established. The burden of proof rests with the authorities undertaking refugee status determination; the applicant should be given the benefit of the doubt, which is the case for all refugee status determination proceedings. The standard of proof requires clear and credible evidence. It should also be kept in mind that even after a person is excluded, he/she may still be protected against refoulement under other human rights instruments as elaborated in the following paragraphs.
Regarding non-criminalization, Article 31 of the Refugee Convention provides as follows:
- The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
- The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
The reasoning behind this article was stated to be that “a refugee, whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of a national passport and visa) into the country of refuge”.
Although Article 31 talks about ‘refugees’, it applies to ‘presumptive refugees’, that is to say, anyone that claims to be in need of international protection. This is because refugee status determination is of a declaratory nature, and if interpreted otherwise, the provision would be devoid of all effect. As there are many people in need of international protection coming through Turkey, another element in need of explaining in the Turkish Cypriot context is the term ‘directly’. This does not mean that the Article should not apply to those who briefly transited from other countries or those that were not able to find effective protection in the countries from which they transited. Rather, it only excludes those who found protection and are permanently or temporarily settled in other countries. Nevertheless, on the availability of effective protection, it is not a decisive argument that UNHCR is operational in the transit countries. Furthermore, on assessing whether a person transited through or stayed in another country, the intention to reach a particular country of destination, such as for family reunification purposes, is a factor that should be considered. The requirement of showing ‘good cause’ for illegal entry or presence depends on the facts of each case. For example, the existence of ‘a well-founded fear of persecution’ is considered to be in itself as a ‘good cause’. Additionally, the existence of close family links in the country of refuge, impossibility or dangerousness to attain authorized entry or presence can also be amongst factors listed. Similarly, the term ‘without delay’ also depends on the facts of each case, such as availability of advice.
The term ‘penalties’ includes (amongst others) imprisonment, fines, corporal and any other form of punishment as well as detention or custody imposed in lieu of punish-ment. As for detention, only when imposed in non-punitive form, is it considered acceptable.
In practice, as elaborated in other parts of this report, the rules in the Refugee Convention are almost never taken into account by the Turkish Cypriot administration in cases that concern detention of persons in need of international protection on grounds of irregular entry or presence or for purposes of deportation.
The Republic of Cyprus with the law 39/62 ratified the European Convention on Human Rights and its Protocol 1. Therefore, it remains part of the domestic legal framework in accordance with the temporary Article 4 of the ‘constitution’. Furthermore, according to the case law of the European Court of Human Rights (ECtHR), Turkey has extra-territorial responsibility in the northern part of Cyprus, making it responsible for the violations of the rights safeguarded in the ECHR in the northern part of the island.
ECHR may potentially address international protection issues in deportation cases under Article 2, 3, exceptionally under article 5, 6, 8 Protocols 6 and 13.
Article 2 protects the right to life. Article 3 prohibits torture, and inhuman or degrading treatment or punishment. Articles 2 and 3 of the ECHR absolutely prohibit any return of an individual who would face a real risk of treatment contrary to either of those provisions. This is different when compared to the prohibition of refoulement to ‘persecution’ on one of the grounds set out in the Refugee Convention.
The right is absolute and non-derogable. Inhuman treatment is defined as the minimum as a deliberate treatment that causes severe suffering, mental or physical, that is unjustifiable in a particular case. Degrading treatment is defined as a treatment that ‘humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance’ and includes actions that are executed as reprimand or penalty irrespective of their lawfulness. The standard of proof is that, in cases related to Article 2, the prospect of death on return must be a virtual certainty; in cases related to Article 3, substantial grounds must exist for believing that the person to be removed would face a real risk of being subjected to torture or other forms of ill treatment prohibited by that provision which requires the risk to be foreseeable and real. Even a small risk can be regarded to be real, if the foreseen consequences are severe. There is a qualitative requirement that the ill-treatment shall attain ‘a minimum level of severity’. The Court’s assessment ‘depends on all the circumstances of the case, which includes the nature and the context of treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim’. In exceptional cases, protection was provided under Article 3 on grounds of ill-health, inability to benefit from medical, social or other forms of assistance or living conditions.
Article 5 protects the right to liberty and security of persons and 6, the right to a fair trial. Articles 5 and 6 may also provide protection in deportation cases, however, only in very exceptional circumstances.
Article 8 protects the right to private and family life and in cases concerning expulsion of family members or family reunification, it may give a right to enter or prevent removal. For example, if a family cannot establish itself in another country and the interference is not justified, that is to say that when the interference is not in accordance with law or is not pursuing a legitimate aim necessary in a democratic society (it does not respond to a social need and it was disproportionate) then Article 8 may provide protection.
Rules on Article 5 of the ECHR apply to issues pertaining to a deprivation of liberty. According to the case law of ECtHR, the detention of asylum seekers and third-country nationals in ‘airport’ transit zones amounts to a deprivation of liberty, rejecting the authorities’ argument that it does not do so because detention can be avoided by taking a flight out of the country. Additionally, according to the case law of ECtHR, deprivation of liberty must be a measure of last resort, after exhausting the possibility of less intrusive measures.
Under the ECHR, a deprivation of liberty shall:
- be justified for a specific purpose defined in Article 5(1) (a)-(f); – after conviction by a competent court; for failure to comply with a court order or a specific obligation prescribed by law; pending trial; in specific situations concerning minors; on public health grounds or due to vagrancy; to prevent an unauthorized entry or to facilitate removal of an alien.
- be ordered in accordance with a procedure prescribed by law;
- not be arbitrary.
Detention to facilitate the removal of a foreigner is only lawful when there is such an order and realistic prospect of removal, irrespective of that person’s unwillingness to cooperate with the authorities.
Under Article 5(2), there are procedural safeguards that must be complied with. Authorities have a duty to inform every detainee of the legal and factual grounds of detention “promptly” and in simple, non-technical “language which he [or she] understands”, so as to also allow that person to challenge its lawfulness in court. Under Article 5(4), there is a right to access a “speedy” review and the remedy should be accessible, sufficiently certain in theory and in practice, and capable of leading to release as well as to the court’s periodic review of the need for continued detention. The ECtHR, in the cases M.A v. Cyprus, K.F v. Cyprus, H.S. and others v. Cyprus and A.H and J.K. v. Cyprus,decided that neither the recourse under Article 146 of the Constitution nor the Habeas Corpus applications in accordance with Article 155 of the Constitution (at first and second instance) constitute an effective remedy against decisions of detention of asylum seekers and migrants for deportation purposes, since both procedures do not comply with the speediness requirements of Article 5(4) of the ECHR. These two remedies are very similar to those that may be pursued in the ‘supreme administrative court’ and the ‘supreme court’ in the northern part of Cyprus, as explained above, thus indicating that the requirements under Article 5(4) of the ECHR are not satisfied.
Finally, Article 5(5) requires that “everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation”.
Under the ECHR, the place, regime, and conditions of detention may also raise issues under Articles 3, 5 or 8 of the Convention. In these cases, when making an assessment, the ECtHR examines individual features of the conditions as well as their cumulative effect. Among other elements these include: “where the individual is detained (airport, police cell, prison); whether or not other facilities could be used; the size of the containment area; whether it is shared and with how many other people; availability and access to washing and hygiene facilities; ventilation and access to open air; access to the outside world; and whether the detainees suffer from illnesses and have access to medical facilities”. Special consideration should be given in cases concerning vulnerable groups, such as children, survivors of torture, pregnant women, victims of trafficking, older persons, persons with disabilities, and people with mental health issues, and whether detention facilities are equipped to handle their needs.
In Dougoz, Peers, and S.D. v. Greece, the ECtHR stated that due to their experiences while fleeing persecution, detained asylum seekers were particularly vulnerable and their anguish may increase in detention. In Riad and Idiab v. Belgium the ECtHR held that detention for more than ten days in the transit zone amounted to inhuman and degrading treatment, in violation of Article 3, basing its decision on the following facts; that it was a place intended to receive people for extremely short periods of time and may arouse in detainees a feeling of solitude by its very nature; there was no external area for walking or taking physical exercise, no internal catering facilities, and no radio or television to ensure contact with the outside world. In A.B. and Others v. France, administrative detention of an underage child for eighteen days in the context of a deportation procedure against his parents was a violation of Article 3 with regards to the child’s age and the duration and conditions of his detention, in addition to violation of Articles 5(1) and 5(4) in respect to the applicant’s child, as well as a violation of Article 8 in respect to the child and his parents.
Article 13 provides that ‘everyone whose rights and freedoms … are violated shall have an effective remedy before a national authority’, which also has been applied in asylum proceedings. In cases of asylum seekers where a complaint concerns allegations that the person’s expulsion would expose him or her to a real risk of treatment contrary to Article 2 or 3 of the Convention, for the purposes of Article 13, the effectiveness of the remedy imperatively requires independent and rigorous scrutiny by a national authority, a prompt response, and having an automatic effect of suspense. It is important to highlight that a recourse for/by/of the ’supreme administrative court’ against a deportation decision in the northern part of Cyprus, in accordance with Article 152 of the ‘constitution’, is very similar to the proceedings in accordance with Article 146 of the Constitution in the Republic of Cyprus and both lack automatic effect of suspense; ECtHR has previously held that these proceedings in Cyprus cannot be considered as an effective remedy in relation to the complaints under Articles 2 and 3 of the ECHR on these grounds.
Whatever is the legislation ever, the states have to obey the rule of non-refoulement because it is a customary law. Asylum seekers and the refugees can not be sent back to the place that they are having well founded persecution. The detainees should receive in writing the reasons for their deportation and detention. Asylum seekers shall not be criminalized solely on grounds of irregular entry or stay. The Refugee Convention is considered to apply in the domestic legal order. The Refugee Convention was signed and ratified by the United Kingdom without any geographical limitation under Article 1B(1) in 1954. Subsequently in 1956, the United Kingdom extended the Refugee Convention’s application to its then colony, Cyprus, under Article 40(1) of the Convention. Upon independence, the Republic of Cyprus assumed the international obligations and responsibilities of the United Kingdom in accordance with Article 8(1) of the Treaty of Establishment. Additionally, on 16 May 1963, the Republic of Cyprus also affirmed its commitment to the Refugee Convention through a declaration to the UN Secretary General. Thus, under the provisional Article 4 of the ‘constitution’ applicable in the northern part of Cyprus, the Refugee Convention is part of the domestic legal framework. On the other hand, Turkish Cypriot ‘authorities’ has not ratified the 1967 Protocol of the 1951 Refugee Convention that lifted the time limit provided in the Conventionand extended its application to refugees other than those affected by events at the time of the Second World War. Regarding to the circumstances that the island is a transit region for the asylum seekers a Refugee policy should be adopted. At least the asylum seekers should not be sent back due to the Customary Law of non-refoulement.
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