JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ AND PETTITI

(Translation)

We voted with the majority as regards point 1 of the judgment ’ s operative provisions, concerning the rejection of the preliminary objection in which an abuse of process was alleged, and point 4, concerning joinder to the merits of the preliminary objection ratione temporis. We were in the minority as regards points 2 and 3, taking the view, essentially, that the Court could not rule on the issue under Article 1 (art. 1) of the Convention raised in the Turkish Government ’ s preliminary objection ("everyone within their jurisdiction") without examining the de jure and de facto situation in northern Cyprus as to the merits. We consider that the Court was not yet in possession of all the information it needed in order to assess the administration of justice, the nature and organisation of the courts and the question who had "jurisdiction" under the rules of international law in northern Cyprus and the Green Zone where the United Nations forces operated.

In the first sub-paragraph of paragraph 62 of the judgment the Court holds:

"In this respect the Court recalls that, although Article 1 (art. 1) sets limits on the reach of the Convention, the concept of ‘ jurisdiction ’ under this provision is not restricted to the national territory of the High Contracting Parties. According to its established case-law, for example, the Court has held that the extradition or expulsion of a person by a Contracting State may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, pp. 35-36, para. 91; the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, paras. 69 and 70; and the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 103). In addition, the responsibility of Contracting Parties can be involved because of acts of their authorities, whether performed within or outside national boundaries, which produce effects outside their own territory (see the Drozd and Janousek v. France and Spain judgment of 26 June 1992, Series A no. 240, p. 29, para. 91)."

Admittedly the concept of jurisdiction is not restricted to the territory of the High Contracting Parties, but it is still necessary to explain exactly why jurisdiction should be ascribed to a Contracting Party and in what form and manner it is exercised. We note that in the Drozd and Janousek v. France and Spain judgment cited in paragraph 62 the Court eventually found that there had been no violation.

While the responsibility of a Contracting Party may be engaged as a consequence of military action outside its territory, this does not imply exercise of its jurisdiction. The finding in paragraph 64 does not refer to any criterion for deciding the question of jurisdiction. In our opinion, therefore, there is a contradiction between what the Court says in paragraph 62 and its conclusion in paragraph 64, and this contradiction reappears in the vote on point 2 of the operative provisions. The Court should have looked into the merits of the question who did or did not have jurisdiction before ruling on the objection.

With regard to the validity of the Turkish Government ’ s declaration

The Court concludes in paragraph 89, on the basis of the considerations set out in paragraphs 77 to 88, that the restrictions ratione loci are invalid, while holding that Turkey is bound by the declaration.

Such an approach raised the question whether the Convention institutions are empowered to sever the terms of a declaration by a High Contracting Party by declaring them invalid in part. We consider that, regard being had to the circumstances in which the Turkish declaration was made, its terms cannot be severed in this way as the case stands at present, since this would mean ignoring the scope of the undertaking entered into by a State.

From the point of view of the State concerned this is a manifestation of its intention, for both public and private-law purposes, which fixes the limits of its accession and consent, in a form of words which it considers indivisible. The declaration may be declared invalid, but not split into sections, if it is the State ’ s intention that it should form a whole. It was up to the political organs and the member States to negotiate and decide matters otherwise.

Only five States reserved their positions with regard to the legal issues which might arise concerning the scope of the first Turkish declaration (the Greek Government contending that the restrictions were null and void).

That means that the other member States and the Committee of Ministers have not formally contested the declaration as a whole, nor accepted any one part as essential or subsidiary. Consequently, it cannot be concluded that there is a uniform and consistent practice (paragraph 82) or practically universal agreement (paragraph 80).

At this stage it is useful to point out that numerous declarations set out in instruments of ratification were couched in complex terms or ran to a number of sections (see the appended declarations of France, the United Kingdom and the Netherlands; see also those of Malta and Portugal, the Cypriot declaration of 9 August 1988 or the "colonial" clauses). States expressly named "territories for whose international relations [they were] responsible"; Turkey has not done so in respect of northern Cyprus . Apart from the territorial reservations within the strict meaning of the Convention (800 international treaties include such reservations), the chart of signatures and ratifications shows that some States have made both declarations and reservations (see appended table). In the Belgian Congo case (decision of 30 May 1961 on the admissibility of application no. 1065/61, X and Others v. Belgium , Yearbook of the Convention, 1961, vol. 4, pp. 260-76) the Commission upheld the international relations argument. By analogy, in order to determine the scope of a declaration, it should be pointed out that, according to the Vienna Convention (Article 44: "Separability of treaty provisions"), a ground for invalidating or terminating a treaty may only be invoked with respect to particular clauses where "(a) the said clauses are separable from the remainder of the treaty with regard to their application" and "(b) it appears from the treaty or is otherwise established that acceptance of those clauses was not an essential basis of the consent of the other party or parties to be bound by the treaty as a whole". Accordingly, in our opinion, it was inappropriate at the stage reached by this case in the proceedings before the Court to sever the terms of the Turkish declaration.

The only satisfactory solution in our view was to join all the objections to the merits and to hold a public hearing on the merits giving the Parties the possibility of adducing all relevant evidence on the expression "within [the] jurisdiction" (Article 1) (art. 1) and on the way the international relations of northern Cyprus are conducted. This debate on the merits would also enable all Parties to make known their views about the international undertakings and possible intervention of a "third party" or the TRNC under the auspices of the United Nations, the European Union and the Council of Europe (1989 Declaration consisting in two instruments signed by three signatories, including the TRNC; References and Reports of the Secretary General of the United Nations, from 3 April 1992 to 30 May 1994; Council of Europe report of 15 December 1994, Doc. 7206).

APPENDIX

Declaration by France (3 May 1974)

"Article 15, paragraph 1

...

The Government of the Republic further declares that the Convention shall apply to the whole territory of the Republic, having due regard, where the overseas territories are concerned, to local requirements, as mentioned in Article 63 (art. 63)."

Decl aration by the United Kingdom (14 January 1966)

The British declaration under Article 25 (art. 25) of 14 January 1966, periodically renewed since then, is reproduced in paragraph 33 of the judgment.

The declaration under Article 63 (art. 63) of 23 October 1953 listed forty-three relevant territories (including Cyprus , the Isle of Man and Gibraltar ). The declaration of 10 June 1964 listed the States which had become independent. The declaration of 14 August 1964 listed the territories omitted.

D eclaration by the Netherlands (24 December 1985)

"The island of Aruba, which is at present still part of the Netherlands Antilles, will obtain internal autonomy as a country within the Kingdom of the Netherlands as of 1 January 1986. Consequently the Kingdom will from then on no longer consist of two countries, namely the Netherlands (the Kingdom in Europe) and the Netherlands Antilles (situated in the Caribbean region), but will consist of three countries, namely the said two countries and the country Aruba.

As the changes being made on 1 January 1986 concern a shift only in the internal constitutional relations within the Kingdom of the Netherlands, and as the Kingdom as such will remain the subject under international law with which treaties are concluded, the said changes will have no consequences in international law regarding treaties concluded by the Kingdom which already apply to the Netherlands Antilles, including Aruba. These treaties will remain in force for Aruba in its new capacity of country within the Kingdom. Therefore these treaties will as of 1 January 1986, as concerns the Kingdom of the Netherlands , apply to the Netherlands Antilles (without Aruba) and Aruba .

Consequently the treaties referred to in the annex, to which the Kingdom of the Netherlands is a Party and which apply to the Netherlands Antilles, will as of 1 January 1986 as concerns the Kingdom of the Netherlands apply to the Netherlands Antilles and Aruba."

Chart of signatures and ratifications of the Convention (at 31 December 1994) (extracts)

Member  Date of Date of    Date of   R: reservations

States  signature ratification entry into D: declarations

          or accession force    T: territorial

                          declarations

AUSTRIA 13/12/57 03/09/58    03/09/58   R

CZECH

REP.  21/02/91 18/03/92    01/01/93   R

FINLAND 05/05/89 10/05/90    10/05/90    R

FRANCE 04/11/50 03/05/74    03/05/74    R/T

GERMANY 04/11/50 05/12/52    03/09/53   R

HUNGARY 06/11/90 05/11/92    05/11/92   R

IRELAND 04/11/50 25/02/53    03/09/53   R

LIECHTEN-

STEIN  23/11/78 08/09/82    08/09/82   R

MALTA   12/12/66 23/01/67    23/01/67   D

NETHER-

LANDS   04/11/50 31/08/54    31/08/54    T

PORTUGAL 22/09/76 09/11/78    09/11/78   R

ROMANIA 07/10/93 20/06/94    20/06/94   R

SAN

MARINO 16/11/88 22/03/89   22/03/89   R/D

SLOVAKIA 21/02/91 18/03/92    01/01/93   R

SPAIN   24/11/77 04/10/79    04/10/79   R/D

SWITZER-

LAND  21/12/72 28/11/74    28/11/74   R/D

UNITED

KINGDOM 04/11/50 08/03/51    03/09/53   T