Here we are again...
Once more, we are facing the possibility of a real breakthrough in the never-ending negotiations for the settlement of the Cyprus issue.
When it comes to the prospects of the reunification of the island, my default position is to be a pessimist.
However, it seems that the Cyprus President Nicos Anastasiades and the Turkish Cypriot leader Mustafa Akıncı might be close to reaching an agreement with regard to one of the thorniest chapters of the negotiation: territory.
Here in Secessions, Constitutions and EU law, we will try to follow the ongoing negotiations with a series of posts starting from today.
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Today's post tries to understand a fundamental paradox that lies in the heart of each and every post-conflict constitution-making process. Enjoy!
In a recent paper I co-authored with Dr Nicolas Kyriacou, we try to understand how bi-communalism affects the state-building processes in a number of settlement plans that have been drafted for the solution of the Cyprus issue. Bi-communalism recognises the existence of two constituent ethno-religious segments on the island and as such it promotes their co-operation in all State organs. We argue that bi-communalism has a Janus-like face: one side of it features as an indispensable element to any settlement in Cyprus, but the other seems to perpetuate the seed of division along the lines of communal affiliation.
Having said that, one has to understand that Cyprus is by no means unique. Such contradiction exists in conflict resolution practice in a number of divided societies where segmental autonomy and strict ethnic representation are used in order to keep all ethno-religious groups appeased. To a certain degree, this is unavoidable not least because the institutional designing of a post-conflict society is often characterized by “a joining together of constituent units which do not lose their identity when merging in some form of union.” In any case, the consociational model of democracy which most of those institutional structures (including the ones in Cyprus) adopt entails that every significant segment of the society proportionately participates in the government of the country. At the same time, it retains a high degree of autonomy and the possibility to veto decisions of the majority in order to protect its vital interests. So, it is almost inevitable that constitutional systems that secure such a high degree of segmental autonomy will not be centered on the idea of “one nation, one state.”
Post-Dayton Bosnia is probably the most striking example of such an institutional designing in Europe. This (con)federal State is comprised of two ethnically defined entities: a Serb one and a Bosniak-Croat one, which enjoy wide-ranging powers of self-government. More importantly, strict ethnic representation of the three constituent peoples is required for the Presidency, the upper chamber of the legislature, the Constitutional Court and the Central Bank. What is interesting to note in this case is that although the role of the international community in the constitutional steering of Bosnia cannot be overestimated, it is an international actor that has cast doubt with regard to the logic of the strict ethnic representation embodied in the system. The European Court of Human Rights in the famous Sejdić and Finci held that the inexistence of the right for the non-constituent peoples to stand for election to the collective State Presidency and to the House of Peoples breaches the European Convention.
Notwithstanding the decision of the Strasbourg Court, it is interesting to note how embedded are in the constitutions of Bosnia and in the Annan Plan both the segmental autonomy of the main ethno-religious groups and the link between ethnic identity and the exercise of political rights. Similar provisions securing the legislative autonomy of the main segments of a society can be found in a number of post-conflict arrangements. For instance, the Ahtisaari Plan envisaged “an enhanced and sustainable system of local self government in Kosovo” giving to the Serbian municipalities full and exclusive powers on a number of areas. Such solution was also adopted in the EU-brokered 15-points Agreement between Serbia and Kosovo in 2013. Similarly in Macedonia, according to section 3(1) of the Ohrid Agreement the signatory parties undertook the responsibility to adopt a revised law on local self-government entailing enhanced competences in a number of areas. But it is not only post-conflict arrangements that opt for segmental autonomy. Some constitutional systems of consolidated democracies that aim at accommodating ethno-linguistic conflicts use it as well. One does not have to look further than the constitutions of Spain and Belgium in order to find ethnic and linguistic communities that enjoy a high level of legislative autonomy.
Apart from Bosnia and Cyprus, provisions of strict ethnic representation can be also found in Kosovo. Article 64(2) of the Constitution provides that minimum ten seats are reserved for the Kosovo Serb Community and another ten for the other minorities. But perhaps the most interesting example is the Good Friday Agreement, which created a power-sharing arrangement between the two main ethno-religious segments in Northern Ireland. Following the 2006 Saint Andrews Agreement, the First Minister is nominated by the largest political party in the Northern Ireland Assembly and the Deputy First Minister by the largest political party of the other political designation. So, if the First Minister comes from the “Unionist” political designation, the Deputy First Minister will come from the “Nationalist” one and vice versa. More interestingly, the ministers are not chosen by this diarchy. Instead, the Northern Ireland Act 1998 provides that the ministerial posts are allocated to all of those parties with significant representation in the Assembly. The number of posts to which each party is entitled, is determined according to the d’Hondt method of proportional representation. The actual posts are chosen by the parties in the order that the seats were awarded. This does not mean that apart from the two largest parties, the other parties are required to enter the Executive. They can choose to go into opposition if they wish.
So, the institutional arrangements suggested for Cyprus according to which segmental autonomy and strict ethnic representations are used, are far from an exception. In fact, the same contradiction can be found in a number of European constitutions that aim at accommodating an ethno-linguistic conflict. Bosnia, Kosovo, Macedonia and Northern Ireland, among others, provide for such examples. One might argue that this happens at the expense of a nation-building procedure that could allow for the bridging of the cleavages between the various ethno-religious segments. However, it seems that the existence of such arrangements are a necessary condition in order to bridge the cleavages between the different sides of a conflict. Once this step is successfully made, then it is up to the political communities to forge a common future together.
 David Apter, The Political Kingdom in Uganda: A Study in Bureaucratic Nationalism (Princeton, NJ: Princeton University Press, 1996), 24.