Free movement and choice of residence: Basic Human Rights

The rights of freedom of movement and the incidental right of choice residence within the borders of a state, are guaranteed by various international instruments on the protection of Human Rights.

The topic I have chosen, is and will remain, very relevant especially to Cyprus, having regard to the long search for a solution of the Cyprus problem.

The right of freedom of movement was recognized as early as 1215 in the English Magna Carta.

Nevertheless, it was the US Supreme Court, in the 19 century which promoted this basic human rights through a series of judgments, to the effect that freedom to travel throughout the United States I sone of the rights and privileges of National Citizenship.

The rights of freedom of movement and the incidental right of choice residence within the borders of a state, are guaranteed by various international instruments on the protection of Human Rights.

By way of illustration one could refer to Article 13 of the Universal Declaration of Human Rights, Article 12, of the International Covenant on Civil and Political Rights, Article 2 of the Fourth Protocol to the European Convention on the Protection of Human Rights and Articles I (18) II 18, I (19), II 19 of the European Social Charter.

The Republic of Cyprus is bound legally to secure the rights of movement and choice of residence to its citizens by virtue of the above International Instruments in addition to its Constitutional provisions to the same effect and in particular Article 13 to the Constitution.

Needless also to remind you, that under Article 169 of the Constitution, these Instruments have superior force of Law, meaning that any other provisions of Cyprus Law or practice which contravene the above, cannot be enforced as the International Instruments supersede them.

Pursuant to the above, the Supreme Court of Cyprus has held that a regulation which restricts the circulation of private motor vehicles according to their registration number to alternate weekends, restricts the right to move freely throughout the territory of the Republic.  See Elia vs. The Police (1980) 2 CLR 118.

Similarly the German Courts decided that, the freedom to choose a residence, was infringed by the Commissioner of Police of Berlin, who stamped the residence permit of a Turkish National residing in Berlin “not authorized to take up residence in the districts of Kreuzber, Tiergarten or Wedding”.  Decision of 26 August 1977 V w G Berlin, (NJW 1978, 68).

Under the European Convention for the Protection of Human Rights Protocol 4 Article 2(1) everyone shall have the right to liberty of movement and freedom to choose his residence.

By virtue of Article 2(3) no restrictions shall be placed on the exercise of these rights.

Certain exceptions are allowed, if necessary in a Democratic Society, in the interests of national security or public safety or order, for the prevention of crime, for the protection of health or morals or of the protection of the rights and freedom of others.  Needless to say that these exceptions are applied restrictively, as they are exceptions to the general rule. 

Having regard to the above, it is clear that freedom of movement and choice of residence are basic human rights which the Republic of Cyprus is bound to guarantee to all its citizens irrespective of ethnic or community origin.  These basic human rights, are rights of both Greek and Turkish Cypriots, as citizens of the Republic of Cyprus.

Given the fact that under the European Convention the Republic of Cyprus is bound towards the other contracting member states to the Convention to respect these rights and given also the fact that any citizen of the Republic of Cyprus can challenge directly and after exhausting local court procedures any restriction on his rights before the European Court for the Protection of Human Rights in Strasburg, it becomes abundantly clear that any settlement of the political issue must respect, as of necessity, this Protocol of the Convention.

I should perhaps also mention that although the European Convention as such is not binding on the European Union as a separate legal entity, nevertheless its terms and conditions are binding on the 15 Member States of the Union and on any prospective members, so much so, that it is considered as part of the Acquis Communautaire.

The European Court of Luxemburg has adopted the European Convention on the Protection of Human Rights and so have a number of amending treaties of the Rome Treaty, as part of the Acquis Communautaire, in the form of general principles of Law, binding also on the organs and institutions of the European Union.

A prerequisite for entry to the European Union and to remain as a Member without problems, is, of course the full adherence and respect to the basic and fundamental rights of freedom of movement and residence.

In January 1989 the Greek Cypriots produced written “Proposals for the Establishment of a Federal Republic and the Solution of the Cyprus Problem”.

Despite the fact that reference in these proposals, is made to the need to ensure that all citizens enjoy the protection of Human Rights, including the right of movement and establishment, they go on to derogate from this principle by providing in para VI under the Chapter of  “Constitutional Arrangements”, para. 2 that “in case more Turkish Cypriots choose to reside in the Turkish Cypriot region, the Turkish Cypriots shall constitute the majority in that region, even if all Greek Cypriot refugees return to that region”.

With all due respect, this provision violates the basic Human Rights of Greek and Turkish Cypriots and it is contrary to Protocol 4 of the European Convention and inevitably the Aquis Communautaire for the following reasons:

1.    The Turkish Cypriots are guaranteed an artificial majority, perpetually in the Turkish Cypriot administered region.  This means that Greek Cypriots will never be allowed to exercise their rights of freedom of movement and choice of residence so as to preserve this Turkish Cypriot majority.
2.    Turkish Cypriots will also be inevitably restricted from moving inside or outside Cyprus in such a way so as to reduce to a minority the majority of Turkish Cypriots in the Turkish Cypriot region.

Any solution which deviates from Protocol 4, will cause problems to the Republic of Cyprus for violating the rights of freedom of movement and choice of residence and will expose it to actions against it before the European Court, from other Members States to the Convention and to individual complaints of Greek or Turkish Cypriots.  It will also inevitably cause problems to the process of joining the European Union and also to the smooth functioning of the Republic within the Union after entry.

It is very unfortunate that even more recently, as late as, November 2000, the Secretary General of the United Nations Mr Annan, served on President Clerides a document purporting to incorporate his observations and thoughts on the Cyprus problem which move along the same lines.

In para 12, he says that there will have to be “two component states”, a Greek Cypriot and a Turkish Cypriot.  Each one with its own “basic law”.  The “component states” must to a great extent be self governed provided that they should not infringe the “basic law” of the “common state”.

In para 14, the Secretary General says that “he believes that the solution must regulate carefully the exercise of the (property) rights so as “to secure the character” of  the “component states”.

He also suggests that the satisfaction of these principles require a proper combination of resettlement, exchange (of properties) and damages.

For a certain period of time, which shall be determined by agreement, it is possible to have restrictions on the numbers of Greek Cypriots who shall decide to reside in the North and Turkish Cypriots who shall decide to reside in the South.

With all due respect again to the Secretary General, he is skating on thin ice in attempting in diplomatic language to reconcile the irreconcilable.  It is not at all possible to restrict Human Rights even temporarily for the purpose of implementing a constitutional settlement of the Cyprus problem but even if this is possible it would be extremely dangerous to accept temporary restrictions which I am afraid, might turn to become permanent, if one is conscious of recent history.

Further it is impossible to preserve the “character” of the “Component States” without permanent derogations from the right of free movement and choice of residence.

The whole philosophy of Mr Annan is the creation of two “component ethnic States” as we have seen above, one ethnic Greek Cypriot and one Turkish Cypriot which he then goes on to say, that it will be possible for them to grant rights of additional internal citizenship to persons of Cypriot citizenship. 

As a result and in order to preserve the Turkish Cypriot character of the state, inevitably there will be a deprivation of the right of free movement and choice of residence.

I conclude by emphasizing the need for all parties involved to understand the necessity of adhering strictly to instruments for the Protection of Human Rights and in particular the European Convention.

History has taught us that the sacrifice of Human Rights on the Altar of Political expediency has been the source of trouble, conflict, war, destruction and human pain and suffering and misery.

The history of Cyprus has also taught us that we should be extremely sensitive in dealing with proposals, ideas or suggestions that would pay only lip service to these instruments.

I only hope that this small contribution will help towards creating a much needed Human Rights culture in this corner of the world.