PROCEEDING OF THE INTERNATIONAL CONFERENCE ON

EUROPEAN ENVIRONMENTAL POLICY

AND THE CASE OF CYPRUS MINES

SustaInable Development, European EnvIronmental PolIcIes

and the TurkIsh RepublIc of Northern Cyprus

Ruşen KELEŞ

Eastern Mediterranean University, Magosa, TRNC

The right to live in a healthy and balanced environment is recognized by the Constitution of TRNC as one of the socio-economic human rights of citizens (Art.40). Accordingly, the Environment Law of 1997, in its Article 4, emphasizes the principle of sustainable development and suggests that environment factor and the state of natural resources have to be taken into consideration in taking measures concerning economic development, in the preparation of  socio-economic development plans, in investment programmes and in all kinds of development policies. The case of TRNC is important in this respect because the number of the constitutions and other legislations that have enshrined the concept of sustainable development among their provisions is very limited.

As presented in the Rio Declaration, the definition of sustainable development, which was first proposed by the Brundtland Report in 1987, is too general to satisfy the demands of legal semantics. Indeed, the Principle 3 of the Rio Declaration states that the right to development must be fulfilled so that it responds in a proper way to the development and environmental needs of present and future generations. This definition basically includes the ethical concept of justice between generations, in other words, intergenerational equity.

This concept has been the victim both of the market’s developmental trend and of the practical politics of the feasible. In fact the rationale of the market consists in the short-term exploitation of opportunities. If a technical definition of sustainable development is to be given, it can be safely assumed that it is an increase of a country’s wealth production which does not entail parallel reduction or degradation of its natural capital. This definition also ensures that the ideal of justice between generations will be realized, because it demands that a country’s natural capital should be conserved and passed on to future generations unsatched[1].

With this definition in mind, major principles of sustainable development policy for the European Union may be summarized as the followings:

-promoting territorial cohesion through balanced social and economic development of regions and improved competitiveness.

-encouraging development generated by urban functions and improving the urban-rural relationship

-promoting more equal accessibility

-developing access to information and knowledge

-reducing environmental damage

-enhancing and protecting natural resources and the natural heritage

-enhancing the cultural heritage as a factor for development

-developing energy resources while maintaining safety

-encouraging high-quality sustainable tourism

-limiting the impacts of natural disasters

The EU principles of environmental policy evolved over a relatively long period of time and they have gained a compulsory character for the member states. According to these principles, pollution and nuisance should be prevented at source and the decision-making should take account of environmental effects as early as possible. In connection with these principles, scientific knowledge should be improved and research encouraged. Exploitation of natural resources which causes significant damage to the ecological balance should be avoided. The cost of preventing and eliminating nuisances should be borne by the polluter ( the polluter pays principle).Furthermore, activities carried out in one member state should not cause environmental deterioration in another. The effects of environmental policy should take account of the interests of developing countries. The Community and its member states should act together ( the principle of cooperation) to promote international environmental policy. The public should be informed and educated about environmental protection. Action should be taken at the appropriate level. And finally, national environmental policies should be coordinated and harmonized.

As it is seen from the foregoing principles, almost all of the core ideals and themes of sustainable development such as the economy-environment integration, intergenerational obligation, social justice, environmental protection, quality of life and participation are covered by them.

It has been a matter of controversy for a long time in recent past which level of authority will have the power to execute the principles of sustainable development. The Maastricht Treaty of 1992 clarified this issue by the principle of subsidiarity in its Article 3/B, by stating that “In areas which do not fall within its exclusive competence, the Community shall take action in accordance with the principle of subsidiarity, only if and so far as the objectives of the proposed action can not be sufficiently achieved by the member states and can therefore by  reason of the scale or effects of those action be better achieved by the Community”. In another article (Art. 130 r), it has been stated that “the Community shall take action relating to the environment to the extent to which the objectives referred to in par.1 (of Article 130 r) can be attained better at Community level than at the level of the individual member states”.

Subsidiarity is the principle of organization in both social and political fields. It means that where possible, decisions should be taken by the individual or the family, not by society at large; by the local community, not by the state ; and by the member  (federated) states of a federation ; and  by the member states of the European Union, not by Brussels (The European Union itself).

By the 6 th Environment Action Programme of the European Unon that will be in force during the period 2001-2010, (Environment 2010: Our Future, Our Choice), The Commission of the Euopean Communities has decided that the top priorities of the 6 th Action Programme should be 1. Tackling climate change, 2. Protecting the nature and bio-diversity, 3. Environment and health and 4. Ensuring the sustainable management of natural resources and wastes. Improving the implementation of existing legislation, integrating environmental concerns into other policies, encouraging the market to work for the environment, empowering citizens and changing behaviour and finally greening land-use planning and management decisions have been adopted as the basic elements of a strategic approach meeting the environmental objectives of  the European Union.[2]

Although the principles of the International Environmental Law that have been touched upon above have been taken from the documents of the European Union, they concern the whole world and therefore they interest both the member states of the European Union and non-members countries. As a result, public authorities and individuals  everywhere have a certain  legal and ethical responsibility to safeguard  the eco-system against local, national, regional and global ecological problems.

With such an understanding, it is impossible to defend a position that tends to ignore almost altogether the great risks created by present conditions in which the buildings and pools in the former fields of the Cyprus Mining Corporation are found. This American corporation has continued its mining activities from 1916 to 1975 , where the existence of the Cyprus Federation in Gemikonağı region in Lefke came to an end as a result of a coup initiated by Nicos Sampson and supported by the Greek Junta then in power. A  collapse  happened  in 1925 in one of the mines and six persons  (8 Turkish and 3 Greek Cypriots)  died because of the inadequacy of the measures that should have been taken to ensure envirnmental safety. Starting from 1950’s, Turkish and Greek Cypriote workers have began to work in separate mines. In the early 1970’s, the CMS was convicted to pay compensation to both farmers and fishermen to cover the losses caused by its mining operations.

The CMC left Cyprus in 1974, following de facto  partition of the Island between Turkish and Greek Cypriots, leaving behind nuclear  and chemical wastes, used mining beds and waste pools, all creating tremendous threat to the health and well-being of the inhabitants of  communities around. A concrete example of the danger that the left over CMC establishments create for the living habitat is that nearly 200 goasts have been died in 1995 as they drank water of the pool that was constructed in the 1970’s.

Since one of the major principles of the Environmental Law ( the precautionary principle) dictates that environmental measures must anticipate, prevent and attack the causes of environemntal degradation , and where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation, the case of Gemikonağı mining field seems to be well entitled to be dealt with necessary concern. In case the polluting corporation willl not be required by any competent national or international authority to comply with the polluter pays principle, thousands of people and other living organisms in the area will continue to suffer irreversibly.

A technical problem in the case of the CMC is that the Turkish Republic of Northern Cyprus is not entitled to go  to international courts, because it is not  yet an iternationally regognized state. One should admit that this fact should not prevent the people suffering from this nuisance , or their elected representative, namely the municipal authority, from applying  to the International Court of Justice, for avoidance of the environmental risks that they face or for asking compensation. The International Environmental law even accepts  the concept of liability without fault, let alone the case of the CMC which was emerged as a result of a grave fault of the above-mentioned corporation.

A similar case that was handled by the International Court of Justice in the early 1990’s presents certain similarities with the case of the CMC. In other words, the ICJ was presented with an opportunity to consider some of the environmental aspects of mining as a result  of the case brought by Nauru against Australia involving Certain Phosphate Lands in Nauru. The issues raised by the case, included the extent of certain legal obigations on the use of natural resources, including the obligation to rehabilitate mined lands, and the land rights of indigenous inhabitants.

Nauru is a central Pacific island with a population of appoximately six thousand which achieved independence in 1968. It is rich in phosphate which was discovered there in 1900 and subsequently the island became an important source of the substance for phosphate –poor countries like Australia and New Zealand.

From 1947 until 1968, Nauru had been a territory administered under a UN General Assembly-approved Trusteeship Agreement between Australia, New Zealand and the United Kingdom. By the time it reached independence in 1968 large amounts of the phosphates had been mined and large parts of the island had been rendered uninhabitable. In May 1989, Nauru submitted an application to the ICJ asking it to declare Australia’s responsibilities for breaches of international legal obligations relating to its phosphare mining activities in Nauru[3]. Nauru claimed, inter alia, that  a) Australia had violated the 1947 Trusteeship Agreement and Article 76 of the Charter  b) by contributing to the physical destruction of the island as a unit of self-determination, accomppanied c) by a failure to rehabilitate the land ;  d) had violated the principle of self-determination, occasioned  e) by the literal disposal of the territorial foundation of the unit of self-determination accompanied  f) by a failure to provide an adequate sinking fund to cover the costs of rehabilitating the mined lands; g) and had breached the obligation to respect the right of the Nauruan people to permanent sovereignty over natural resources. Because, it was argued that a major resource was being depleted on inequitable terms and the extraction of phosphate involved a physical reduction reduction of the homeland of the people of Nauru. Nauru asked the Court to declare that Australia had incurred an international legal responsibility for breach of these and other obligations, and requested primarily a declaration of Australia’s liability.

In June 1992, the Court found (by nine votes to four) that it had jurisdiction over the application and that the application was admissable.

Some of the grounds raised by Australia, and the findings by the Court in respect to thereof, are of some relevance to broader issues of International Environmental law. These are: a) the waiver of environmental claims, b) the time period within which such claims should br brought, c) the conditions in which good faith principles will have been violated and finally d) the issue of joint and several liability. The Court rejected most of the objections of Australia , including the inadmissibility. The Court recognized that even in the absence of  any applicable treaty provision, delay on the part of the claimant state may render an application inadmissible, but held that international law does not lay down any specific time-limit in that regard.

Finally, in August 1993 Australia offered Nauru  107 million dollars in full and final settlement of the claim, which sum was accepted by Nauru with an undertaking to discontinue proceedings and bring no further claims.It is particularly important to see that according to the opinion of the International Court of Justice, provided that certain minimum steps are taken to maintain a legal claim, the passage of time will not necessarily render a claim inadmissible.

Neither the principles of the International Environmental Law , including the specific legislation of the European Union, nor the rules of environmental ethics  woud allow the present environmental conditions in Gemikonağı (Lefke) mining field to continue as they are going  to influence the health and well-being of the living beings and biotic and non-biotic elements of the eco-system. Therefore, every step has to be taken nationally, regionally and internationally in order to prevent any delay in the protection of the environment there. Otherwise, all legal and ethical principles of environmental politics will be bound to be on the paper.