The Turkish Republic of Northern Cyprus (‘Northern Cyprus’) is not recognised by any State other than Turkey. Among the many consequences of this non-recognition is the fact that there are no extradition treaties in force in relation to this territory, other than with Turkey. Following the recent failure of UN-brokered talks aimed at finding a solution acceptable to both Turkey and Cyprus, the situation may be unlikely to change in the near future.
Northern Cyprus remains one of the few safe havens in the world for those whose extradition is sought by the UK
The non-recognition of Northern Cyprus has, of course, many causes and many legal consequences: this post focuses on one legal issue which came this month before the English Divisional Court in the case of R (Akarcay) v (1) Chief Constable of the West Yorkshire Police, (2) Secretary of State for the Home Department, and (3) National Crime Agency  EWHC 159 (Admin). Where the authorities of Northern Cyprus wish to investigate a potential offence committed in the UK, can the UK authorities co-operate, consistently with the policy of non-recognition? Can a State co-operate with something that it proclaims not to exist?
As the Court put it, “The non-recognition of Northern Cyprus brings with it the reality that fugitives from justice living there, so long as they are willing to sustain the relatively constrained life inevitable if they never leave its territory, cannot be extradited to any country (except Turkey).” 
Thus Northern Cyprus remains one of the few safe havens in the world for those whose extradition is sought by the UK, among other States. But that has started to change in recent years. Extradition remains off the agenda, since the UK will not conclude such a treaty with an entity which it does not recognise as a State. However, in recent years Northern Cyprus has adopted wide jurisdiction over offences committed abroad, as well as in its territory, by those whom it considers to be its nationals.
Mr Akarcay is a businessman who considers himself a citizen of Northern Cyprus. In 2006 he came under investigation in the UK in relation to drug and money laundering offences. He left the country before he could be arrested, and relocated to Northern Cyprus, where he was, of course, safe from extradition.
In 2011, the UK Foreign and Commonwealth Office (‘FCO’) issued a memorandum to the Serious and Organised Crime Agency (now the National Crime Agency, ‘NCA’) indicating that the UK had no objection to its law enforcement agencies sharing information with their counterparts in Northern Cyprus, in respect of individuals wanted in connection with criminal matters in the UK. The following year, the NCA began ‘Operation Zygote’, heralded by a BBC Crimewatch programme, which named Mr Akarcay among others wanted for UK offences and thought to be in Northern Cyprus.
There followed discussions between the NCA and the Northern Cypriot authorities, and finally the NCA provided them with the police file on Mr Akarcay’s case. He challenged this decision by way of judicial review, arguing among other grounds of challenge that this co-operation amounted to an act of recognition of Northern Cyprus by the UK, in violation of international and domestic law.
Mr Akarcay argued that the provision of this material by the UK was contrary to international law because it conflicted with, among other things, a number of Security Council resolutions which call upon States not to recognise Northern Cyprus, and a 1960 treaty between the UK, Greece, Turkey and Cyprus, by which the parties undertook to prohibit “any activity aimed at promoting, directly or indirectly, either union of Cyprus with any other State or partition of the Island.”
As for the Security Council resolutions, the Court referred to previous authority that such resolutions amount to “recommendations only”
The question, of course, was what effect these international law obligations had on the domestic law powers of the NCA. The question of the domestic law effect, if any, of the international law position on Northern Cyprus had not been dealt with conclusively when the issue arose in the previous case of R (Kibris Turk Hava Yolari and CTA Holidays Ltd) v Secretary of State for Transport  EWHC 1918 (Admin);  EWCA Civ 1093.
As for the Security Council resolutions, the Court referred to previous authority that such resolutions amount to “recommendations only”: they “may create obligations in international law but do not, without domestic legislative action, become part of domestic law in the United Kingdom. A special procedure exists under the United Nations Act 1946 to give such effect by Order in Council.” 
As for the 1960 Treaty, following the orthodox approach in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry, the Court held that it imposes obligations on the UK on the international plane, but not domestically, since it had not been incorporated into domestic law.
Nor was the Court receptive to the argument that the requirement not to recognise Northern Cyprus had become part of UK law through customary international law. Although customary international law is, in principle, part of the laws of England, the Court considered that the translation of those principles into domestic law had constitutional boundaries, so that:
Even if it could be shown that customary international law imposed an obligation not to recognise Northern Cyprus, in my opinion it could not form part of the common law. To treat it as such would contravene the unequivocal constitutional principle that questions of recognition are for the executive. It is not for the courts to dictate to the executive whether they can, must, or cannot recognise a state. 
Accordingly, the Court considered that, whatever international law obligations the UK may have in respect of the non-recognition of Northern Cyprus, they found no footing in domestic law. That was sufficient to dispose of the case, so the Court did not go on to decide that the Claimant’s arguments were non-justiciable, as touching on the conduct of foreign affairs. But it did go on to state the further conclusion that the assistance which the NCA had given the authorities of Northern Cyprus would not, in any event, have amounted to implied recognition by the UK.
It was perhaps inevitable that the Court would reach this result: it would not have been keen to find that, in a situation where people accused of serious crimes in the UK can and do take refuge in Northern Cyprus, the UK police had to sit on information which could help to bring them to justice there. On the facts, it was also difficult to establish that this sort of assistance did, in fact, breach the principle of non-recognition, given the fact that the UN itself works with the Northern Cypriot law enforcement authorities. Again, given the political climate and the desire to reduce Northern Cyprus’ isolation from the international community, it would have been difficult to reach any other conclusion.
The Court could have determined the case on this factual basis alone, but, as discussed above, also briefly analysed a number of the other issues. The conclusions on Security Council resolutions and the status of unincorporated treaties are uncontroversial, but there are two areas which leave questions unanswered:
- The relevance of unincorporated treaties. The Court noted that “a decision maker given a discretion may have regard to unincorporated treaty obligations when exercising that discretion, just as he may ignore them.”  Put in this way, obligations in an unincorporated treaty, however important, are simply factors which a decision maker can heed or ignore at will.
- Customary international law as part of the law of England. The Court cited Lord Mance’s observation that the incorporation of customary international law into the common law must respect the constitutional arrangements within the UK (Keyu v Secretary of State for Foreign and Commonwealth Affairs  UKSC 59). This is uncontroversial: but the Court’s brief analysis does not explain in any detail why this particular principle of customary international law, if established, could not form part of English law. The Court observed simply that the principle related to the conduct of international affairs, and that the decision whether to recognise a state or government was a matter for the executive. This analysis could suggest that, in respect of the (increasingly narrow) range of areas within the executive’s exclusive preserve, customary international law cannot become part of English law. In other words, in areas of exclusive executive competence, the executive would be unfettered by any domestic law obligations flowing from customary international law. This would be a troubling conclusion.