Beyond the Wall: A German Solution to the Property Issue in Cyprus Reunification

By Calla Ketchens

“For, from now and on

Like the River Ganges which flows

Into the Indian Ocean

I shall begin flowing in[to] [the] ocean of

Brotherhood and peace”

—Osman Türkay “I Am Simply a Human”

The year 2016 has been all about “the wall” in the United States. While it is still yet to be seen if now-President Trump will follow through with one of his most controversial campaign promises, physical, concrete borders are part of peoples’ lives around the world: for example, Israel-Palestine; North Korea-South Korea; Westeros-The Lands of Always Winter. Cyprus has also been affected by physical barriers. Recently, diplomats from Greece, Turkey, and Great Britain as well as negotiators representing Greek and Turkish Cypriots have been discussing a possible reunification. [1]. While negotiators are generally positive about the prospect of reunification, there are some major unresolved issues. [2]. One of the main issues involves “property that Greek Cypriots fled from in 1974” and whether or not that property should be restored to them or if they should be compensated for that property. [3]. Germany after the fall of the Berlin Wall and as part of the reunification of Germany, struggled with this question as well. In order for officials, involved in the reunification negotiations in Cyprus, to answer this question about property, it would behoove them to look at the reunification efforts in Germany as an example.

Background

Cyprus is a former British colony, and, like most British colonies, it resisted British rule for years leading up to its independence in 1960. [4]. However, tensions between the majority Greek Cypriots and minority Turkish Cypriots lead to U.N. peacekeepers being deployed in 1963. [5]. The peace was generally maintained on the island, but in 1974 a coup, sponsored by the Greek Government, led to Turkey invading Cyprus. [6]. The result was a U.N. created buffer zone dividing the northern and southern parts of the island. [7]. Approximately 165,000 Greek Cypriots were displaced from the north to the south, and about 40,000 Turkish Cypriots were likewise displaced from the south to the north. [8]. Turkey seized and held in its control about one-third of the island and still maintains a military presence on it. [9]. In 1983, the Turkish Cypriot “president” declared independence and the formation of its own government, but this declaration has only been recognized by Turkey. [10]. Since then there have been numerous attempts and talks of reunification, but none of have yielded any success. [11]. However, in 2016, talks were again struck up with more hope towards reunification. [12]. Even though a few issues left the two sides at an impasse, the two sides are not yet ready to give up on reaching a solution. [13].

Issues Presented and a German Solution

As mentioned above, one of the main issues causing the impasse of the two sides is what to do with property, specifically what to do with the property that both Greek and Turkish Cypriots were forced to give up in 1974. The two main solutions are to either restore the property to the respective owners before the coup. On one hand, the older generation of Cypriots would probably most appreciate this option as they could return to their families’ lands. On the other hand, the younger generation of Cypriots may feel more displaced by this option, despite a distant connection to their families’ lands. Further, while many people would be restored property for which they, for all intents and purposes, have a lawful claim, many others would then be displaced. Another possible and less disruptive solution is to compensate people for their loss. It would probably work differently than the 5th Amendment Takings Clause of the United States Constitution, though Article 23 of the Constitution of Cyprus is a similar clause. [14]. The type of taking involved in reunification is markedly different than that which is defined in the Constitution of Cyprus: “Restrictions or limitations which are absolutely necessary in the interest of public safety or the public health or the public morals or . . . [urban] planning or . . . development.” [15] [16].

While a person may certainly seek compensation under Article 23, it may be more effective for officials of reunited Cyprus to implement a regulatory scheme based on a treaty. After the fall of the Berlin Wall, Germany faced a similar situation as Cyprus. Between 1945, when Soviet Russia began to take over Eastern Germany after World War II, and 1989 an estimated 3 million East Germans left for West Germany in order to establish a new life. [17].  Property in the German Democratic Republic became “social property” with no clear owner because the land registers were confiscated by the government. [18]. A joint declaration concerning the property question was incorporated into the Unification Treaty in August 1990 as Articles 41(1) and 41(2). [19]. It did a number of things: it enumerated the type of property for which restitution could be claimed, primarily property that was converted into “social property” after October 7, 1949; it excluded some types of property for which restitution could be claimed; it eliminated “social property” and reestablished the right of new owners to have a title to their property; and it subjected these new ownership rights to restitution claims. [20]. In 1992, in an effort to promote development and curb blight, the German government enacted the Investment Priority Law. [21]. It essentially allowed the government to favor those who wanted to invest in and develop properties over those who sought restitution. [22].

Affected Germans could either seek compensation or restitution. If they sought compensation, they would receive between 30 to 50 percent of the current market value. [23]. If their property qualified for restitution, they would first have to register in an Open Property Office. [24]. While processing the claim, the Office must determine what exactly is being claimed before making a decision to reject, uphold, or find that the applicant only qualifies for compensation [25]. If rejected, the applicant may go through an appeals process; if upheld the applicant will decide if he or she wants compensation or restitution. [26]. The applicant will apply to the local Land Registry to enter him or her as owner, unless there is an investment certificate placed. [26]. If the applicant chooses compensation or the Office decides on compensation, then the applicant must apply at the local valuation office. [27].

This was not a perfect system. The bureaucracy slowed the process of transitioning property, and it took property off the market leading to inflation and blight. [28]. There were over 2 million separate claims, and completion moved at a snails pace. [29]. While bureaucracy is always slow, the sheer number of claims in Cyprus will likely not be nearly as high as they were in Germany. Cyprus is in substantially the same situation as was Germany. While there are cultural differences between the two countries and the reasons for the separation of each country are different, Cyprus could look to Germany’s solution for property issues after reunification as its most viable option, with a few tweaks.

* * * * *

[1] See generally, Michele Kambas & Tulay Karadeniz, Cyprus reunification talks break up with plan to keep talking, Reuters, Jan. 12, 2017 at 6:53pm, http://www.reuters.com/article/us-cyprus-conflict-conference-idUSKBN14W0YI; Merrit Kennedy, Could the Divided Island of Cyprus Reunite?, NPR, Jan. 12, 2017 at 5:15pm, http://www.npr.org/sections/thetwo-way/2017/01/12/509526712/could-the-divided-island-of-cyprus-reunite; Patrick Smyth, Cyprus, reunification and a lot of maybes, Irish Times, Jan. 14, 2017 at 1:02am, http://www.irishtimes.com/opinion/cyprus-reunification-and-a-lot-of-maybes-1.2937567; Max Bearak, There are high hopes for Cyprus reunification talks—even as they hit another impasse, The Washington Post, Jan. 13, 2017, https://www.washingtonpost.com/news/worldviews/wp/2017/01/13/why-hopes-are-so-high-about-the-talks-to-reunify-cyprus/?utm_term=.23b5579aeb66.

[2] Bearak, supra note 1.

[3] Kennedy, supra note 1.

[4] CIA World Factbook: Cyprus, https://www.cia.gov/library/publications/the-world-factbook/geos/print_cy.html (last visited Jan. 22, 2017).

[5] Id.; Bearak, supra note 1.

[6] CIA, supra note 4; Bearak, supra note 1.

[7] Bearak, supra note 1.

[8] Id.

[9] Id.

[10] CIA, supra note 4.

[11] Id.

[12] Kennedy, supra note 1.

[13] Bearak, supra note 1; Kambas, supra note 1.

[14] Article 23, The Constitution of Cyprus, available at http://www.presidency.gov.cy/presidency/presidency.nsf/all/1003AEDD83EED9C7C225756F0023C6AD/$file/CY_Constitution.pdf?openelement.

[15] Id.

[16] A note about the Constitution of Cyprus: it was ratified on August 16, 1960, but partly suspended in 1963. CIA, supra note 4. It was amended twice, in 1996 and in 2013, but Turkish Cypriots in the north created and ratified their own constitution. Id. It could be argued that, indeed, this displacement of several Cypriots would fall under Article 23, but there is the issue of the fact that the “Turkish Republic of Northern Cyprus” only recognizes its own constitution. Therefore, Article 23 may not even apply, and the only way for Cypriots to get vindication for loss of property may be to follow a similar path as Germany by creating a treaty and a regulatory scheme to ensure restitution or compensation.

[17] D.B. Southern, Restitution or Compensation: The Land Question in East Germany, 42 Int’l & Comp. L. Q. 690, 692 (1993).

[18] Id. at 691-92.

[19] Id. at 693.

[20] Id.

[21] Id. at 694.

[22] Id.

[23] Id. at 694.

[24] Id. at 695.

[25] Id.

[26] Id.

[27] Id.

[28] Id. at 696.

[29] Id. (By June 30, 1992, only 8.5% or 170,000 claims had been decided.).