The Cyprus Question Before the European Court of Justice 7. Conclusion State practice shows that mutual reliance and (informal) cooperation with the authorities of an unrecognized entity is not generally excluded. Indeed, the Turkish Republic of Northern Cyprus is a very good example for such cooperation (especially in areas such as trade, crime prevention and law enforcement which also benefit the non-recognizing state).103 The question of what kind of cooperation is excluded by non-recognition cannot be answered in general. It depends on what type of recognition is to be avoided: recognition as an (independent, sovereign) state, as the government of a recognized state, as a belligerent, de facto recognition, de jure recognition or some other variant.104 As shown by the relevant UN Security Council Resolutions105 and the statements adopted by the EC member states,106 what is in question in the case of the Turkish Republic of Northern Cyprus is the non-recognition of that entity as an independent sovereign state. Non-recognition as a state precludes intergovernmental cooperation, i.e. cooperation at ministerial level, as well as all cooperation that requires the existence of diplomatic relations. It does not, however, preclude administrative cooperation between government officials.107 Non-recognized states have concluded several (trade) agreements which expressly provided for cooperation between the competent authorities.108 For example, on 30 April 1936, Germany and Manchukuo (which, at that time, was not yet recognized by Germany)109 agreed on an `Arrangement for German-Manchurian Trade' which provided for cooperation between the `German authorities' and the `customs authorities of Manchukuo'.110 Cooperation with the Turkish Cypriot customs and plant health authorities, as practised by several member states, did not imply recognition of the Turkish Republic of Northern Cyprus as an independent state either by the Community or its member states. This was even more the case as the Turkish Cypriot authorities pretended to act in the name of the `Republic of Cyprus' or `Cyprus' and not in the name of the Turkish Republic of Northern Cyprus.111 Non-acceptance of certificates issued by the Turkish Cypriot authorities could thus not be justified by non-recognition of the TRNC. It may be argued that international law not only does not preclude administrative cooperation with officials of an unrecognized state, it also does not impose such cooperation (in the same way as it does not impose administrative cooperation with the authorities of recognized states in the absence of treaty obligations). In principle, the EC and its member states are free to decide whether or not to cooperate with the authorities of an unrecognized state. The European Union might well decide - in the framework of the Common Foreign and Security Policy (CFSP) - that its member states must not cooperate at the administrative level with the Turkish Cypriot authorities. This, however, would be a political decision and (as shown) not one necessitated by the fact of non-recognition. The ECJ did not based its ruling on such a decision of the competent political bodies but on the reasoning that administrative cooperation is excluded with the authorities of an entity which is not recognized either by the Community or by its member states. It must therefore be concluded that the Court of Justice misjudged the scope and consequences of the principle of non-recognition in international law. It went far beyond that principle and, in fact, applied economic sanctions, a measure that should be reserved for the political bodies responsible for the conduct of the Community's foreign relations. talmon 103 Cf. the statement of TRNC President Rauf Denktash, made on 5 May 1993: `In the past the UK authorities have contacted and even collaborated with ours when it suited their interests' (Reuters Library Report, 5 May 1993). 104 On the various types of recognition and their meaning, see S. Talmon, Recognition of Governments in International Law (1998) 21-111. 105 In Resolution 541 (1983) the Security Council called upon `all States not to recognize any Cypriot State other than the Republic of Cyprus', and in Resolution 550 (1984) it called upon `all States not to recognize the purported State of the "Turkish Republic of Cyprus"' (emphasis added). 106 E.g., the common statement of 16 November 1983 reads in the relevant part as follows: `The ten member states of the European Community are deeply concerned by the declaration purporting to establish a "Turkish Republic of Northern Cyprus" as an independent State ... They call upon all interested parties not to recognize this act' (EC Bulletin 11-1983, point 2.4.1 (emphasis added)). 107 B. Loudwin, Die konkludente Anerkennung im Völkerrecht (1983) 78; W.H. Balekjian, Die Effektivität und die Stellung nichtanerkannter Staaten im Völkerrecht (1970) 130-139; Zivier, supra note 93, at 207; Lin, supra note 96, at 265. 108 See J.A. Frowein, Das de facto-Regime im Völkerrecht (1968) 96-115; Bot, supra note 93, at 67-103. 109 Germany recognized Manchukuo only on 12 May 1938. 110 Article 5. For the text of the Agreement, see 36 Nouveau Recueil Général de Traités (3rd series) 350. 111 See [1994] ECR I-3316, para. 13.
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