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Opinion by Sir Frank Soskice on the Treaty of Guarantee (1963)

Requested by Glafkos Clerides, President of the Cyprus House of Representatives,
in relation to the implementation of certain Articles of the Cyprus Constitution — 1 November 1963

Article IV of the 1960 Treaty of Guarantee reserved to Greece, Turkey and the United Kingdom, where common or concerted action proved impossible, “the right to take action with the sole aim of re-establishing the state of affairs created by the present Treaty”. Turkey invoked that provision to justify the invasion of July 1974. Sir Frank Soskice, a former Attorney General of England and Wales, wrote this opinion for the President of the Cyprus House of Representatives during the constitutional crisis of 1963, a decade before the invasion. The question put to him was direct: if Articles 123 and 173 of the Constitution were not implemented and concerted action proved impossible, had Turkey the right under Article IV to embark upon unilateral military intervention without authority from the Security Council? He concludes that she had not.

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I will at the end of this Opinion set out in sequence what in my view

are the appropriate answers to the questions asked in Mr. Clerides' letter dated October 5th 1963; but before doing so I will make some general observations with regard to the Treaty of Guarantee.

The basic question on which, as I understand it, my opinion is asked is

as follows: Serious difficulties have arisen with reference to the implementation of Article 123 and 173 of the Constitution, and also of Article 73 in relation to he imposition of taxes. Article IV of the Treaty of Guarantee provides that ach guaranteeing Power in the event of breach of the Treaty, it common or concerted action proves impossible "reserves the right to take action with the sole aim of re-establishing the state of affairs created by the Treaty. In these circumstances has Turkey the right under Article IV of the Treaty as one of the guaranteeing powers, if Articles 123 and 173 of the Constitution are not in due course implemented, and should concerted action not prove possible, herself to embark upon unilateral military intervention without authority from the Security Council?

International treaties unavoidably in general embody provisions ex-

pressed in terms less precise and less exactly formulated than domestic legislation. They are the result in the majority of cases of hard bargaining between representatives of conflicting national interests, and it is in the nature of things in general impossible to achieve complete precision when the intentions of the parties are written into the letter of the treaties. It has therefore been accepted that somewhat greater latitude is permissible in the interpretation of international treaties than of domestic legislation, and the general circumstances in which the treaty was entered into may be taken into consideration, as well as the written word of the treaty, in determining what really were the intentions of the parties. In particular there has been much difference of opinion about the legal effect of the many Treaties of Guarantee which have been entered into over the last century and a half.

Furthermore, international law as a whole is subject to a process of

been entered into over the last century and a half constant evolution, as new international situations present themselves. It is, therefore, unwise to attempt to formulate principles in general terms applicable to hypothetical future situations. The views express in this Opinion should therefore be regarded as applicable only to the actual situation envisaged in the previous paragraph and the precise question asked in that might

arise The Treaty of Guarantee itself contains as its last paragraph an

under- taking by the High Contracting Parties as soon as possible to register it with

the

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Secretariat of the United Nations Charter. This, in my opinion, as well as the general background against which the treaty was entered into Is an indication that the parties intended the Treaty to be construed as containing only such obligations and conferring only such rights as would not conflict with the obligations and restrictions imposed by the United Nations Charter. Article 103 of the Charter must I think be considered together with the Treaty, and Article 103 provides as follows: "In

the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. In

this context a number of Articles of the Charter of the United Nations would be relevant notably those contained in Chapter VIll under the heading ,

that is to say, Articles 52 to 54, and also Article 5i "Regional

Arrangements" which

deals with the inherent right of self-defence, as well, of course, as the general Articles in Chapter I setting out the purposes and principles of the United Nations, and those contained in Chapters VI and VIl dealing with the pacific settlement of disputes and the general enforcement powers of the Security Council. It is a feature of these Articles that they prohibit the use of force by Member Nations except in the most limited range of circumstances such as actual self-defence, unless with the authority of the Security Council. In

my opinion, in these circumstances, the words in Article IV of the Treaty

of Guarantee "each of the three guaranteeing Powers reserves the right to take action" should not be construed in any sense which would involve-a conflict with the restrictions imposed by the Articles of the Charter to which I have made reference. I will assume the absence of any threat to or breach of the peace within Article 39 of the Charter such as might bring into operation Articles 43 and 44. These Articles are in any event irrelevant to the present question: since even if a Member Nation used force in pursuance of these Articles, such use of force would not be pursuant to any Treaty, but in fulfilment of the duty to assist the Security Council imposed by these Articles of the Charter Furthermore,

1 will assume that no situation has or could, in relation to the

basic question put to me, arise such as might bring into operation what are in effect the emergency provisions as to self-defence contained in Article 51 of The

words "reserves the right to take action" do not, as I understand them

purport to create a new right to take some action which would otherwise, apart from those words, not be permissible. In my opinion, they are more appropriate to keep in being some right to take action which would have existed independently of the Treaty under international law, in case, in the absence of such a saving provisions, the right which a guaranteeing Power would under international law in any event have possessed might be extinguished by the Treaty. A situation is envisaged in Article IV of the Treaty in which a breach of the Treaty has taken place and concerted action by the guaranteeing Powers has

proved impossible. The effect of the words, in my opinion, is to preserve in

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such a situation such powers as each guaranteeing Power might individually have exercised under the general principles of international law even if there had heen no Treaty of Guarantee. The question, if this view is correct, then arises whether in the actual circumstances envisaged in what I have above described as the basic question asked by Mr. Clerides any right to embark upon unilateral military intervention would have ensured to Turkey apart from the Treaty. There has for example been a right generally recognised in international law

in one nation to use force to rescue or protect its own nationals in the territory

of another State if that State treats them contrary to basic international legal principles, for example, by using unlawful violence against them. Article IV of the Treaty however only preserves the right to take action "with the sole aim of re-establishing the state of affairs created by the Treaty". It is open to question how wide is the scope of the words in Article IV of the Treaty of Guarantee "re-establishing the state of affairs created by the present Treaty". Clearly the "state of affairs" includes the independence, territorial integrity and security of the Republic of Cyprus. It may be asked, however, whether it includes the fulfilment of such Articles of the Constitution as Articles 123 am 173, both of which are under Article 182 declared (in the case of Article 173 subject to some limitations) to be Basic Articles. Article II of the Treaty includes within those things that the Treaty guarantees "the state of affairs established by the Basic Articles of its Constitution". It seems to me necessary to read the words "the state of affairs created by the present Treaty" in Article IV of the Treaty as including, besides the independence, territorial integrity and security of

the Republic of Cyprus, also "the state of affairs established by

the Basic Articles

of the Treaty" referred to in Article I. Un the other hand I do not think the words in Article IV "re-establishing the state of affairs" read with the words in Article II "established by the Basic Articles" are equivalent to words such as "secure exact compliance with the requirements of the Basic Articles". They are in my view quite inappropriate for that purpose. The expression "the state of affairs" is I think a general phrase, descriptive of a broad situation and in my view in its application to Articles 123 and 173 of the Constitution could only permit of action under Article IV of the Treaty if the substance of the protection for the Turkish minority created by Articles 123 and 173 were (unless by general agreement) overset or removed. What constitutes the "substance" of this protection must involve a question of degree and cannot I think be further defined. In order to answer

what I have called the basic question put to me the words in Article IV

of the Treaty of Guarantee "with the sole aim of re-establishing the state of affairs created by the present treaty" in effect have to be read as if they were "with the sole aim of reestablishing the substance of the position created by Articles 123 and 173 of the Constitution" Apart from the right to use force which I have just mentioned I do not know of any other right relevant

in this context of forceful intervention independently of treaty. It is not easy to conceive of a practical situation in which the right of a guaranteeing power to use force to rescue its own nationals from unlawful treatment could be in a real sense relevant to the "sole aim" of preserving the state of things set up by the two relevant Basic Articles of the

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Constitution; and in my opinion this right to use force in the very limited circumstances I have described can be disregarded.

But in my view, in any case, even if the words in question could be construed as creating a right unilaterally to use force. (and as stated I thin they are not appropriate for this purpose) if the TTreaty of Guarantee is a "regional arrangement" falling within the scope of Article 52 of the Charter of the United Nations, it

is in my view impossible to disregard Article 53 of

the Charter which requires that any forceful intervention can only take place with the authority of the Security Council. The question thus arises whether the TTreaty of Guarantee whether considered separately or as forming part of a wider arrangement brought into being by the TTreaty of Guarantee read together with the TTreaty of Establishment and the TTreaty of Alliance should be regarded as such a "regional arrangement". The answer to this question, in my opinion, depends on the nature and content of these Treaties and in particular the TTreaty of Guarantee, the history of events which preceded their making, and the circumstances in which they are made. So considered, in my opinion, there is no reason why the TTreaty of Guarantee should not be regarded as constituting or, forming part of a "regional arrangement". It followed atter and was clearly designed to put an end to the unhappy events which had taken place in Cyprus and to reconcile and put an end to sharp conflicts of opinion both inside and outside Cyprus, which if unresolved could have led to situations of increasing danger. In order that it may fall within the description of a "regional arrangement" within paragraph 1 of Article 52 of the Charter, it must be an arrangement for dealing with such matters relating to the maintenance of international peace and security as an appropriate for regional action provided that such arrangements ... and their activities are consistent with the Purposes and Principles of the United Nations". It seems to me that the TTreaty does comply with these rerequirements. It recognizes and is designed to perpetuate a state of affairs relating to Cyprus which had emerged as the agreed solution to differences negotiated after prolonged periods of acute tension and disturbance; and its obvious objective is to re-introduce and maintain stability and peaceful relationships in Cyprus itself and generally in that part of the Mediterranean area. It enjoins consultation in the event of a breach of the TTreaty and records the desire

of the High Contracting Parties to co-operate. These features seem to me to bear

in every sense the hall-mark of such a regional arrangement as is contemplated in For the reasons I have given, in my opinion, the words in question in Article IV of the TTreaty of Guarantee, even if they

could be said in any relevant circumstances to permit of unilateral military intervention, would

not, in the circumstances which have arisen, allow of such action by Turkey unless It is to be observed that the rights to take action conferred by Article IV are in another sense limited. Such as they

are they only arise if there has been a breach of the TTreaty. If Turkey should claim the right to resort to such authorised by the Security Council. unilateral action as the Security Council may authorise she must

in my opinion be able to demonstrate that she has made genuine and reasonable endeavours to deal with the situation by concerted action with the other High Contracting

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Parties. She could not in my view lawfully maintain that a situation had arisen in which the Security Council might authorise unilateral action unless she had genuinely sought to bring the other guaranteeing Powers into consultation with a view to concerted action, and not even then if she had put forward only arbitrary or unreasonable proposals from which she refused to depart despite representations made in the course of such consultations by the other Powers.

Mr. Clerides in his letter dated September 14th 1963 asks whether, in

my opinion, the terms of the Treaty of Alliance can be said in any sense to modify the Treaty of Guarantee or to assist in the interpretation of the words "take action" in Article IV of the Treaty of Guarantee. I do not think they do and they do not in my opinion, require a meaning to be attributed to those words different from that which earlier in this opinion I have said I think is the right meaning. The Treaty of Alliance itself has to be registered under Article 102 of the Charter of the United Nations, and must and can, I think be read as requiring and authorising only such action as is permissible in accordance with the tiring as of the Chatter of the United Nations to

which 1 have earlier made reference, in particular Articles 51 and 53

Mr. Clerides in his letter of September 14th 1963 asks whether upon the principle "conventio omnis intelligitur rebus sic stantibus" it could be successfully argued that circumstances have arisen which would justify Turkey in withdrawing from the Treaty of Guarantee unilaterally without the consent of the other Powers and would discharge her from any duty of further compliance with the Treaty. As is well-known there is the most acute difference of opinion amongst international jurists, in the first place, whether such a doctrine exists at all as part of international law, and secondly, if it does exist as to what is its scope. Those writers who propound the doctrine, however, do not, as I understand, envisage that it would justify unilateral repudiation of a treaty obligation by one party to it except upon the happening of some change in the circumstances which was basic to the situation in the light of which the treaty obligations were negotiated and undertaken. In the case of the Treaty of Guarantee it could not be argued that any such change has in present circumstances supervened, relevant to any provision of the Treaty, other than that relating to the maintenance of "the state of affairs established" by the Basic Articles of the Constitution in Article IV. There could be no question, therefore, of the repudiation of any provision of the Treaty than this provision. In my opinion, however, the serious difficulties that have arisen in the implementation of Articles 123 and 173 of the Constitution could not be regarded as constituting such a vital change of circumstance as would justify repudiation of the provision. The differences between the Greek and Turkish authorities in Cyprus though no doubt intractable and difficult of solution do not in my opinion represent a new element which can be fairly said to invalidate the basic assumptions upon which this provision of the Treaty was negotiated. On the contrary in my opinion they are difficulties inherent in the nature of the Constitution and the Treaty obligations themselves. I do not myself think that, at any rate so far, anything has taken place which would justify repudiation in terms of the doctrine

"rebus sic stantibus" as that doctrine is propounded by those who assert that it is an established principle in the field of treaty interpretation. It is not easy to answer the further question asked by Mr. Clerides in his letter, what,

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within the sphere of practical possibility, might constitute such a new supervening circumstance as might Justify unilateral repudiation. Conceivably, as an example, the appearance and growth through immigration or otherwise of some other minority group which could not be assimilated either into the Greek or Turkish community and made wholly unrealistic the existing balance of numbers of the population, might constitute such a supervening change: but this is no more than purely hypothetical and in the highest degree unlikely as a practical example. In

view of the considerations above indicated I will set out by way of summary the questions which I understand to be asked and the answers which I think should be given, as follows: 1.

Does the Treaty of Guarantee give the right to intervene in the event of amendment of Articles 123 and 173 of the Constitution? Yes, if the amendments are made without general agreement; but only if the amendments in substance disturb the protection afforded to the Turkish minority. Failure literally to comply with these Articles would not give such a right. Does

the Treaty of Guarantee, considered alone, or read with the other Treaties, constitute or form part of such a regional arrangement as is envisaged in Article 52 of the Charter of the United Nations? Yes. 3.

Do the words "take action" contained in Article IV of the Treaty of Guarantee in the circumstances which have arisen entitle Turkey to embark upon unilateral military intervention without the authorisation of the Security Council? No, and the Security Council could not authorise such intervention unless Turkey could demonstrate that she had made genuine endeavours to secure concerted action with the other Guaranteeing Parties to the Treaty. 4.

Do the difficulties which have arisen in connection with implementation of the provisions in the Constitution which give protection to the Turkish minority and notably Articles 123 and 173, entitle Turkey un- principle to withdraw from the Treaty der the "rebus sic stantibus"

unilaterally and repudiate the obligations it imposes? No.

(Signed) Frank Soskice

November 1st 1963

1 Harcourt Buildings,

TEMPLE E.C.4