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3.13.2010

The ECtHR rules on Greek-Cypriots' Right of Return; the ECJ rules on the Economic Treaty Status of Jewish Settlements

Two important rulings from Europe reinforce the increasing significance of supra-national quasi-constitutional regimes in dealing with international political hot potatoes. In a landmark ruling the ECtHR held last week (Demopoulos et al. v. Turkey)that Greek refugees who had fled northern Cyprus during the Turkish invasion in 1974 do not have an automatic, unqualified right of return to their ancestral land. The majority opinion accepted the Turkish position that the passage of time and the reality on the ground may override "family roots" and other such sentiments, practically holding that the rights of the de facto long term tenant may outweigh those of the original individual owner. Instead of actual return, material compensation may be sought. Turkey had established a remedial apparatus to address such claims by Greek Cypriots. The court took it to be an effective course of action.

The court stated that: "It is not enough for an applicant to claim that a particular place or property is a 'home'; he or she must show that they enjoy concrete and persisting links with the property concerned. Some 35 years have elapsed since the applicants lost possession of their property in Northern Cyprus in 1974. Generations have passed. The local population has not remained static. Turkish Cypriots who inhabited the north have migrated elsewhere; Turkish-Cypriot refugees from the south have settled in the north; Turkish settlers from Turkey have arrived in large numbers and established homes. Much Greek-Cypriot property has changed hands at least once, whether by sale, donation or inheritance."

While ECtHR rulings do not apply beyond Europe, the potential implications for other contested "right of return" claims seem to be far reaching. In the Israeli media, for example, the ECtHR ruling has been portrayed as supporting Israel's claim that the Palestinian right of return (dating back to 1948) is not unqualified or absolute, and that any resolution would have to take into account the on the ground reality in the West Bank. It also occurred to me that this ruling appears, prima facie, to stand in contrast to the Australian High Court approach in Wik (1996), where it was held that numerous bona fides leases of land and changes of ownership over the years do not necessarily extinguish original indigenous title. Perhaps our fellow bloggers Rosalind Dixon, Cheryl Saunders or others who are well versed in Australian constitutional law care to elucidate this apparent difference?

Meanwhile, the ECJ ruled on Feb. 25 that goods produced in the Jewish settlements in the West Bank Palestinian territories cannot enjoy the EU trade and tax treaty privileges as goods produced in either Israel or the Palestinian Authority. That means that some of the export-oriented industries located in the Jewish settlements, ranging from food and wine to computer parts, will lose some of their competitiveness edge although it is not clear to what extent (the government may subsidize the added tax costs). At the declarative level, the ruling is essentially a statement by the ECJ that the Jewish settlements are neither a legitimate part of Israel nor part of the Palestinian Authority. So there may very well be a difference in the legal status of Jewish settlements in the West Bank and Turkish settlements in northern Cyprus.

RH

2 comments:

  1. Ran Hirschl has raised a question about the decision of the High Court of Australia in Wik, in his recent blog on the decision of the ECHR on the Greek-Cypriots' right of return.

    The question in Wik was whether pastoral leases in Queensland extinguished any subsisting native title over the lands in question. The decision of the Court, narrowly reached, was that they did not. This answer turned on the particular characteristics of the pastoral leases. They were granted pursuant to statute, over very large tracts of land, for long periods of time, for pastoral (grazing etc) purposes. As construed by the majority of the Court, they did not grant exclusive possession to the lessees, at least vis-a-vis indigenous peoples, continuing to enjoy the incidents of native title in accordance with their own traditions. In the circumstances, there was unlikely to be inconsistency between the two sets of rights (although in the event of inconsistency, the rights of the lessees would prevail).

    In various respects, then, Wik is distinguishable from the ruling in the Greek-Cypriot case, and from the situation on the West Bank. On the other hand, it demonstrates the significance of the specific circumstances of each type of claim, and the perils of extrapolating too readily from the conclusions of one to another.

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  2. Can you please indicate the precise case from the ECtHR this blog post is discussing? At least the name of the case, even better would be a link to the to the case. I prefer reading the original decision of the Court first, rather than what other newspapers have said about it...Thanks!

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