Alternative Methods for the Relationship between Turkish Republic of Northern Cyprus and World Health Organisation

Kuzey Kıbrıs Türk Cumhuriyeti ve Dünya Sağlık Örgütü Arasındaki İlişkiye Dair Alternatif Yöntemler

Volkan GÜNEL, Şölen KÜLAHÇI, Arda Alp GÜREL

The state of necessity doctrine, which portrays the uni-communal structure of the Republic of Cyprus as “legitimate”, is nearly 60 years old. During this period, the Turkish Cypriot people were the most damaged and isolated. It is unclear how long it will take for the state of necessity to constitute an exception to the constitutional order. However, considering that the 1960 Constitution of the Republic of Cyprus, which can be said to be 63 years old as of 2023, was implemented in its intended form only in the first 3 years and was applied exceptionally in the remaining 60 years, the issue of which situation is essential and which situation is exception becomes confusing. Although deadlock is generally seen as more harmful for Northern Cyprus, deadlock in the field of health is dangerous for the entire island. Therefore, it is a fundamental need to test various methods for the participation of Turkish Cypriots in global health cooperation.

Disease, Pandemic, WHO, Health Diplomacy, TRNC, Global Health.

Kıbrıs Cumhuriyeti’nin tek toplumlu yapısını “meşru” gösteren zorunluluk hali doktrini yaklaşık 60 yılı geride bırakıyor. Bu süre zarfında en çok zarar gören ve izole olan Kıbrıs Türk halkı olmuştur. Zorunluluk halinin anayasal düzene istisna teşkil etmesi ne kadar daha sürecek belirsizdir. Fakat 2023 itibarı ile 63 yılı geride bıraktığını söyleyebileceğimiz 1960 Kıbrıs Cumhuriyeti Anayasasının, sadece ilk 3 yılında olması gereken şekli ile uygulanıp geri kalan 60 yılında istisnaî şekilde uygulanmış olduğu göz önünde bulundurulursa hangi halin esas, hangi halin istisna olduğu meselesi kafaları karıştırmaktadır. Çözümsüzlük genelde Kuzey Kıbrıs için daha zararlı görülse de sağlık alanında çözümsüzlük adanın tamamı için tehlikelidir. Bu nedenle Kıbrıslı Türklerin küresel sağlık iş birliğine katılımı için çeşitli yöntemlerin denenmesi temel bir ihtiyaçtır.

Hastalık, Pandemi, DSÖ, Sağlık Diplomasisi, KKTC, Küresel Sağlık.

Introduction

The coronavirus pandemic has once again revealed the necessity of global organization in preventing diseases. This situation has made it necessary to reconsider the functionality of the World Health Organization (WHO). It is important to define the role of WHO, which was established to “ensure that all people achieve the highest possible level of health.” It is also important for us to understand the situation of the Organization in the Turkish Republic of Northern Cyprus (TRNC). It is also necessary to examine how to prevent the spread of epidemic diseases and to ensure harmony and cooperation between local health policies. Otherwise, such pandemics may recur and thus pose a danger to the world. Moreover, in the meantime, it is possible that the resistance of the virus in question will increase and become more dangerous. For this very reason, it is extremely important to combat infectious diseases on a global scale.¹

I. WHO Health Policies

Reviewing WHO’s attitude and history towards infectious diseases is very important in determining the role of the organization in the pandemic. WHO’s first fight against the epidemic started with malaria disease in 1955. After various efforts, WHO announced in 1969 that it was not possible to finalize this project and this initial study was not successful. In the same period, in 1967, WHO participated in the “Intensified Smallpox Eradication Program”, which was carried out within the scope of the fight against smallpox, which was initiated by the Soviet Union and later joined by Cuba and the USA, and provided widespread vaccination and surveillance on a global scale.² Within the scope of these studies, WHO announced that smallpox was completely eradicated as of 1980.³ The momentum gained from this success paved the way for WHO to launch vaccination campaigns for other diseases such as diphtheria, whooping cough, measles, polio and tuberculosis.⁴ Despite the Cold War, this success with smallpox revealed the need for states to cooperate, especially in health matters. For this purpose, a study titled “Global Health and Foreign Policy” was published in 2009, with the decision numbered 63/33 of the United Nations (UN) General Assembly. In the said study, it was mentioned that global health is a long-term goal that is national, regional and international and requires constant attention and interstate cooperation, except for emergencies. In later years, the UN drew attention to the importance of global health in its resolutions 64/108, 65/95 and 66/115.

At this point, we should also draw attention to the concept of “Global Governance”. That is a concept used as a tool to make sense of global change.⁵ In this context, global governance is methods that encourage collective action and provide collective solutions that advance common goals. Global governance reveals the necessity of ensuring global cooperation through different methods, especially in cases where interstate cooperation is not sufficient in the field of health. As a matter of fact, in the report titled “Our Global Neighbourhood” published by the UN’s Global Governance Commission in 1995, global governance was defined as mutual decision-making processes that determine the joint functioning of individuals, public or private organizations and respond to changing conditions.⁶ Thus, it becomes clear that global governance is a function of providing governance without government.⁷ In this respect, International Health Regulations (IHR), which came into force under the leadership of WHO, have become an important guide for global cooperation in order to reduce the spread and incidence of infectious diseases.

WHO acts as the guiding and coordinating authority on health efforts around the world. To this end, WHO works in close cooperation with international organizations, national ministries of health and professional bodies. WHO and the UN cooperate with 15 Specialized Organizations (ILO, FAO, UNESCO, IMF, World Bank, International Telecommunication Union, International Civil Aviation Organization, Universal Postal Union, International Meteorological Organization, etc.) to exchange information and data and provide technical assistance to each other.⁸ While efforts to cooperate in the field of global health continue, it has been observed that WHO could not make a sufficiently effective action plan and could not provide good leadership in cooperation in the fight against the Ebola pandemic that emerged in the west of Africa. However, with the regulations made after this failure, the pandemic fight program was renewed and a special fund was created for this purpose.⁹ The purpose of this fund and cooperation has been tried to be explained with a view called “One Health”. Accordingly, it is expected to create a harmonious structure in the definition and follow-up of infectious diseases with the joint efforts of many disciplines collaborating at the regional, national and global level in order to achieve the best health results for the environment, animals and humans. For this reason, it is important to adopt this view at the national level and develop international relations on the subject.¹⁰

Interstate health policy has become a more complex and important issue with globalization. WHO has a very important place in determining and implementing such policies.¹¹ However, it is a controversial issue to what extent states comply with WHO recommendations. For example, it has been stated by everyone that global solidarity is necessary during the Covid-19 pandemic. However, success was not achieved in realizing this cooperation. At this stage, since the primary concern of the states was to prevent the disease from entering their own countries, cooperation was ignored and very strict sanctions were imposed against the countries where the disease started or spread. There have been conflicts over the supply of masks and vaccines. Due to the stockpiling of health supplies by some states, some states are deprived of these supplies. Just as people can be selfish, governments can also act in a similar way. Similar situations were encountered in previous pandemic diseases. States may not comply with WHO’s rules and recommendations, and also may impose non-recommended travel and trade restrictions as a priority. For example, during the H1N1 pandemic, Russia and China stopped importing pork, which had nothing to do with the disease.¹² Similar practices do not comply with WHO recommendations and harm international relations and trade. During the pandemic, some countries prevented the fair implementation of global health policies. Member countries of the World Trade Organization have also violated trade agreements and imposed export restrictions on products necessary to combat the pandemic. Nearly eighty countries have banned the export of medical supplies for the COVID-19 pandemic, including face masks, personal protective clothing, surgical gloves.¹³ Considering that people’s income level is the determining factor in access to health services, it will be understood that the economic fluctuation caused by such restrictions in international trade, especially in developing countries, will negatively affect the health of many people. Therefore, such practices will serve the spread of infectious diseases in economically underdeveloped regions, leading to results contrary to the desired results. The Health for All doctrine put forward by WHO with the Alma Ata Declaration was a precaution against similar situations.¹⁴ As explained in the declaration, economic and social development is of great importance in reducing the gap between the health status of developing and developed countries. Improving the well-being and health of humanity is the basis of sustainable economic and social development. Therefore, the efforts spent in this direction will contribute to a better standard of living and world peace. It can be argued that this approach of WHO is almost a supranational normative framework of the right to health.¹⁵ Economic development is extremely important in achieving the goal of Health for All. This situation also coincides with Article 10/2 of the TRNC Constitution; “The state removes all political, economic and social obstacles that limit the fundamental rights and freedoms of the person in a way that is incompatible with the principles of human peace, social justice and the rule of law, and prepares the necessary conditions for the development of the material and spiritual existence of the human being.” As can be seen from the provision in question, it is the duty of the state to eliminate economic obstacles that restrict access to the right to health, which is a fundamental right. Therefore, within the framework of these duties, states must carry out health studies for everyone in cooperation with WHO.

II. Legal Status of TRNC and its Impact on the Implementation of WHO Policies

The Turkish Republic of Northern Cyprus was declared as an independent state on 15 November 1983, but it is not recognized by any other state other than the Republic of Turkey. Since the recognition of states is not considered a constitutive element of the state, but a declaratory condition of entering into relations with it, the TRNC continues its legal existence even though it is not recognized by most states. As it is known, population, country and independent public authority are the founding elements of a state. We can use the term independent state for the TRNC, which has these constituent elements. Although recognition is only an explanatory process, it creates some constitutive effects between the recognizer and the recognized state.¹⁶ It is claimed by some that TRNC is not a state. Some even use the term “de facto state” for the TRNC,¹⁷ which is a very interesting choice. De facto means “actually, in action”, and its opposite, de jure, means “legally”.¹⁸ In this case, should it be understood that other states are “de jure states”? To give a simpler example, does calling some films as “art films” mean that other films are not art? Cinema is an art¹⁹ and even though some films are liked and some are disliked, we need to consider each film within the art of cinema. If we can use the concepts of state and law synonymously today, can there be a state that is not “de jure”? Then, isn’t the “de jure” qualification already a “sine qua non”, that is, indispensable for the state? After all, the difference between “law” and other social normative systems is the sanction of the state. When law and the state are in such a bond, wouldn’t the phrase “de facto state” seem as strange to the reader as the phrase “de facto law”? Here, the concept of “de facto law” is an example of reductio ad absurdum. It is usual to distinguish between de facto recognition and de jure recognition²⁰ It is also understandable to define a government as de facto, but it seems contradictory to call the state, which is a law-creating entity, de facto. If the term de facto is used for the government, will the nature of the state remain suspended? For example, Afghanistan was a member state of the United Nations, but the situation became controversial with the takeover of the government by the Taliban. It is clear that a new administration is dominant in the country, but aside from the fact that this power has not come to power legitimately in terms of Afghan law, it exhibits behaviour that is intolerably contrary to justice. In other words, if this situation is considered with the Radbruch formula, it is not the law implemented by the Taliban administration. Because, according to Radbruch, there cannot be a law that is unbearably unjust.²¹ However, in order to discuss the status of a government, it must be accepted that there was a state in the beginning. After all, if the suspected government was establishing a new state, it would not be considered a government, since the state it established would not be recognized. In other words, if the term “state” is to be used for an authority that affects a certain group of people in a certain geography, the de facto adjective for this state makes the “statehood” qualification of the authority in question controversial. The phrase “de facto state” is then an oxymoron, like “dark light” or “cold fire”. If there is a perception that non-de facto states are de jure states, how is this de jure qualification achieved? If what is implied here is recognition by other states, the concept of “sovereign equal state” will be meaningless, because obtaining such a position with the blessing of other states will not coincide with equality. If the thing that provides the de jure qualification is the law, that is, the rule of law, it will be necessary to accept that the TRNC recognizes the rule of law, as stated in its constitution, TRNC is a constitutional democracy. If an allegation is made that the rule of law cannot be achieved in the TRNC territory, who is the authority that can detect and evaluate this, and will other states that cannot meet or lose this condition become de facto in the future? Even if the evaluation of other states is accepted, we cannot talk about the concept of “sovereign equal state”. In this case, we must say that every state creates itself, otherwise an ontological paradox emerges.

Of course, what is written above is conscious ignorance. In other words, it is known that the phrase de facto state, which is established in the literature, refers to states that are not recognized and therefore cannot become parties to international law, but this concept needs to be criticized. It is against the basic principles of logic²² to claim that TRNC is a de facto state but not a de jure state. A state cannot be defined as de facto.

Is the unrecognized TRNC a singular, completely individual entity that can exist without external relations, as Vattel imagines²³ ? Or is it under the influence of the only state that recognizes it? In mutual relations, it is inevitable for the parties to influence each other. Each state affects each other within the framework of the relations it has established, but the influence of the parties in these relations may not be equal. It can also be argued that the increase in influence may eliminate sovereignty and therefore the state status. Immediately after the establishment of the Turkish Republic of Northern Cyprus, it was declared invalid by the decision numbered 541, dated 18.11.1983, taken by the United Nations Security Council.²⁴ It is claimed that the TRNC, which is under the influence of Turkey, is not actually independent because it is not recognized by any other state other than the Republic of Turkey. So, let’s take a closer look at what state looks like on the island. The intangible and invisible state is a legal entity; therefore, we reveal the existence of the state with some symbols. In other words, the idea of the State, which does not exist in the concrete world, needs certain signs and symptoms. So, what are the symbols we encounter on the island? Turkish flags are hung in many places in the north of the island, but we also encounter Greek flags in the south. The Turkish national anthem is sung in the north of the island, but the Greek national anthem is also sung in the south.²⁵ The north of the island uses the same currency as Turkey, but the south uses the same currency as Greece. The north has close cultural ties with Turkey and the south with Greece. While there are many Turkish immigrants in the north, there are also many Greek immigrants in the south. It can be said that the Greek influence is high in the south of the island and the Turkish influence is high in the north. Despite this similar effect, the independence of Southern Cyprus is not questioned. The only difference here is that Southern Cyprus can establish direct contact with the world, while Northern Cyprus can only establish relations with the Republic of Turkey. Although Northern Cyprus and Turkey influence each other, the relationship between the Republic of Turkey and the Turkish Republic of Northern Cyprus has an asymmetric structure. Nevertheless, due to this asymmetry, the existence of the TRNC cannot be denied. It is frequently stated that the Turkish Republic has a political influence on the Turkish Republic of Northern Cyprus. It is a fact that states influence each other politically. In fact, it has been observed that political influence works in the opposite direction in some periods. For example, in 2004, TRNC President Rauf Denktaş organized a rally in Turkey, and then Turkish Prime Minister Recep Tayyip Erdoğan expressed his discomfort by saying, “Whatever you have to say, tell it in Cyprus.”²⁶ The Nagorno-Karabakh Republic, which is put forward as another example of a “de facto state”, exhibits a similar situation. It is claimed that the Republic of Armenia has an influence here too. However, considering that Robert Kocharyan and Serzh Sarkisyan, who are of Nagorno-Karabakh origin, served as the President of Armenia and the effects of the Karabakh issue on the formation of Armenian policies, it becomes unclear which state influences and directs the other more. Of course, comparisons between Karabakh and Cyprus do not mean anything in terms of the sovereignty of the TRNC, this example only shows that appearances can be deceiving. What we need to look at for the sovereignty of TRNC is the Constitution of the Turkish Republic of Northern Cyprus. Accordingly, sovereignty unconditionally belongs to the people of the Turkish Republic of Northern Cyprus. The people exercise this sovereignty through their authorized bodies in accordance with the principles stipulated in the Constitution. These bodies are the Assembly of the Republic, the president, the council of ministers and independent courts.

The main problem of the Turkish Cypriot people in the fight against pandemic diseases discussed in this study is that the TRNC is not recognized. Although contact with WHO cannot be established due to the recognition problem, the WHO acquis is followed by the TRNC. Therefore, if this problem is solved, Northern Cyprus will immediately be included in the global structure. Due to the failure of the Crans-Montana talks, it was seen that the Turkish side moved away from the federal solution. It has been seen recently that the Turkish side’s thesis is in favour of a solution with two independent states. In this process, TRNC became a member of the Organization of Turkic States as an observer.²⁷ It is unclear whether this attitude, which does not coincide with the United Nations Security Council resolution 541, will be successful. In this context, it has even been suggested that the phrase “Turkish Cypriot State” may be adopted instead of “Turkish Republic of Northern Cyprus”. Thereupon, Tufan Erhürman made the following statement: