Cypriot Lawfare

I am fascinated by the ECtHR's rulings in Xenides-Arestis v. Turkey and Loizou v. Turkey. It is clearly my fault for not noticing them before, since the case is exceedingly intriguing. There is much talk about lawfare these days, especially in the US where they don't seem to be all that fond of the idea of rights for terrorists (or prisoners, generally), but this one has to take the cake. And yet, it is still impossible to sort out whether such a thing is legitimate and otherwise desirable.

The case is relatively simple: In 1974, Turkey invaded Cyprus in order to protect the rights of Turkish Cypriots (allegedly, of course), causing a de facto division of the island in a Greek zone and a Turkish zone that lasts to this day. As a matter of international law, the Greek-speaking government in Nicosia is the legitimate, lawful government of the entire island, and in that capacity it has handled Cyprus' accession to the EU. (I had the honour of supervising an undergraduate thesis by Ms. Fetine Yildirimturk in 2009, which discussed some of the issues caused by the fact that North-Cyprus is part of the EU, yet isn't.)

A practical result of all this is that many Greek-Cypriots who own immovable property in the North have been unable to even visit their land and homes for 37 years now. In many cases, their houses have been taken over by Turkish-Cypriots, causing all sorts of problems for innocent British tourists looking to buy a second home somewhere sunny. In Apostolides v. Orams & Orams, for example, the British defendants were sued in British court by the Greek-Cypriot original owner of their North-Cypriot vacation home. The ECJ ruled that, even though a Greek-Cypriot judgement cannot be enforced in North-Cyprus, that does not mean that it cannot be enforced in the UK. In other words, any damages award that the Greek-Cypriot courts impose can be enforced against the defendant's property anywhere in the EU under the standard rules of Regulation 44/2001. But of course, that only helps if the North-Cypriot property is bought by an EU citizen. What if it continues to be possessed by a Turkish-Cypriot, with no assets in the EU?

Well, in that case the Greek-Cypriot would-be plaintiff has no alternative but to turn to the European Court for Human Rights. After all, Turkey is a party to the Convention, including Protocol 1 which protects the right to property. So if the Turkish army is occupying North-Cyprus, and physically preventing Greek-Cypriots from enjoying their property, Turkey is violating art. 1 of Protocol 1. And under art. 13 and 41 of the Convention, that means that Turkey either has to arrange for an effective remedy under domestic law, or it has to pay just satisfaction, i.e. damages.

In 2005, the ECtHR ruled exactly that, a ruling that resulted in the creation of a Turkish-Cypriot Immovable Property Commission, charged with settling the claims of Greek-Cypriots. According to their website, they have so far paid out a total sum of GBP 58,3 million.

Imagine the possibilities! Israel having to buy back half of their country from the original Palestinian owners... (Not to mention the Syrians who used to live in the Golan Heights.) Sudeten Germans looking for reparations. (OK, bad example, that one has already been sorted out long ago, although President Klaus did briefly make an issue out of it when he was looking for reasons to delay ratifying the Lisbon Treaty & the EU Charter of Fundamental Rights.) Then there is North- and Sourth-Sudan, the Caucasus, the possibilities are infinite. And in every case, it is difficult to say that the claim is illegitimate. It is simply unusual, because it uses a private law frame to look at something profoundly public law: the law of occupation.

Of course, in the case of Cyprus the whole thing isn't really all that expensive, because Turkey occupied exactly that part of the island that was predominantly Turkish already. (Not to mention that presumably land values aren't that high.) But in other settings one can imagine that occupation could become quite expensive in this way, once the initial decision has been made to allow such claims. (Note that the ECtHR does not do exemplary/punitive damages. In jurisdictions that do, this kind of claim can easily get much more expensive.) Much as we understand why Israel isn't interested in making peace with Syria or the Palestinians, at least not at the terms on offer, it is difficult to see how this justifies an indefinite interference with the property rights of any number of Syrian and Palestinian citizens. In effect, this would lead to the result that Israel would have to rent an enormous amount of land in order to be allowed to continue to occupy it, even if that occupation is otherwise lawful under the laws of war. Wouldn't that be fun?