CYPRUS v. TURKEY JUDGMENT
25
91. The Court disagrees with the applicant Government's criticism of the
Commission's reliance on this part of the Advisory Opinion. In its view, and
judged solely from the standpoint of the Convention, the Advisory Opinion
confirms that where it can be shown that remedies exist to the advantage of
individuals and offer them reasonable prospects of success in preventing
violations of the Convention, use should be made of such remedies. In
reaching this conclusion, the Court considers that this requirement, applied
in the context of the “TRNC”, is consistent with its earlier statement on the
need to avoid in the territory of northern Cyprus the existence of a vacuum
in the protection of the human rights guaranteed by the Convention (see
paragraph 78 above).
92. It appears evident to the Court, despite the reservations the
Greek-Cypriot community in northern Cyprus may harbour regarding the
“TRNC” courts, that the absence of such institutions would work to the
detriment of the members of that community. Moreover, recognising the
effectiveness of those bodies for the limited purpose of protecting the rights
of the territory's inhabitants does not, in the Court's view and following the
Advisory Opinion of the International Court of Justice, legitimise the
“TRNC” in any way.
93. The Court recalls that, in its Advisory Opinion on Namibia, the
International Court of Justice stated the following (1971 ICJ Reports, p. 56,
§ 125):
“In general, the non-recognition of South Africa's administration of the Territory
should not result in depriving the people of Namibia of any advantages derived from
international co-operation. In particular, while official acts performed by the
Government of South Africa on behalf of or concerning Namibia after the termination
of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts,
such as, for instance, the registration of births, deaths and marriages, the effects of
which can be ignored only to the detriment of the inhabitants of the Territory.”
94. The Court observes that this passage was included in the Opinion as
a result of various arguments made in the course of the proceedings
preparatory to its adoption. Thus, the representative of the Netherlands
pointed out to the International Court of Justice that the non-recognition of
South Africa's illegal rule in Namibia “does not exclude taking into account
the fact of exercise of powers in so far as that taking into account is
necessary in order to do justice to the legitimate interest of the individual
[who] is, in fact, subjected to that power” (Pleadings, vol. II, p. 130). The
representative of the United States said that “[i]t would, for example, be a
violation of the rights of individuals if a foreign State refused to recognise
the right of Namibians to marry in accordance with the laws in force ... or
would consider their children to be illegitimate. A contract for the sale of
goods also should not be declared invalid merely because it was entered into
in accordance with ordinary commercial laws applied to Namibia by South
Africa” (Pleadings, vol. II, p. 503). These statements, by logical necessity,