clr/1987/1987_1_207.pdf

(1987)Willsand Succession —Children bom out of wedlock—SeeChildren, supra Constitutional Law — Equality — Constitution, Art 28 — Article 9 of the Convention on the Legal Status of ChildrenBom Outof Wedlock —Nor inconsistentwithArt 28 Thisappealisdirectedagainst thedecisionoftheDistrictCourtofLimassol, 5 whereby itwasheldthattheConvention ontheLegal StatusofChildrenBorn OutOfWedlock, ratified by Law 50/79, validly concludedunderArt 169*of theConstitution,acquiredsupenorforcetoanymunicipallawand,therefore, under Article 9ofthe Conventiona child bom outofwedlock has the same nghtofsuccession intheestateofhisfather andhisfather's family, asifhehad 1 0 been born in wedlock, provided that a paternal affiliation is established, pursuant toArticles 3-5 ofthe Convention Article's ofthe Conventionreads asfollows -Achild bornoutof wedlock shall have thesame nghtofsuccession intheestateofitsfatheranditsmother and ofa member ofitsfather's ormother's family asifithad been bom in 1 5 wedlock» Counsel fm theappellantargued thattheprovisions oftheConventionare not enforceable lawin Cyprus as Article 169 3 does not apply totreaties regulating pnvate civillaw nghts amongst citizens but only applies totreaties affecting nghts and obligations of the State,that the Convention isnotself- 2 0 executing but only provides guidelines and directives to the legislature, that the element of reciprocity, provided inArticle 169 3, isnot satisfied, and finally that itsprovisions are unreasonable and are contrary tothepnnciples of equality enshnned in the Constitution in the sense that the nghts of succession granted tothe illegitimate children arenot granted also tothe 2 5 father ofan illegitimate child Itmust be noted that section 4of the ratifying Law 50/79 empowers the Supreme Courtto make rules regulating the procedure in any case coming within such law The proviso tothe section provides thatuntilsuch rules are issued allmatters,the procedureandthepaymentoffees willbegoverned 3 0 mutatis mutandisby the Rules inforce theretofore Held,dismissing theappeal (A)PerTnantafyllides, Ρ

(1)Inviewofsection 4 ofLaw 50/79 the conclusion isthatinsofaras Article 9oftheConvention is concerned, the legislature has proceeded to ratify the Convention on the basisthatitisself-executing

(2)Itfollows that by virtue of itsratification Art 9 has been vested with •supenor force to anymunicipal Law» in thesense of Art 169 3 ofthe Constitution Consequently,itsupersedes therelevantprovisions ofCap 195 and Cap 278, which are incompatiblewithit

(3)It must be stressed that Law 50/79 did not amend or repeal the 4 0 'Quotedatpp 214-215post 208 35 1 C.L.R. Malachtou v. Annefti aforementioned provisions of Cap 195 and Cap 278 but vested Art 9 with supenor force enabling ittosupersede such provisions B)PerA Loizou J (l)ThemeasureswhichacontrachngStatehadtotake inordertoensure conformity of itslawswith theConventionwereleft toeach Statetodecideupdn Theonlylimitationthatwas imposed onaStatewas that itshould convert the rights under theConvention to individual nghts Thisis so stated in the Explanatory Report of theConvention which is an aid toits interpretation 5 10

(2)Itappears thatthecourse adopted by ourStatewas thatof introducing intotheprovisions of the ratifying law section 4 thereof 15

(3)Theposition being so Article9 of the Convention should be treated alongside with therestof itsprovisions asself executing andfor allintentsand purposes Law No 50 of 1979 has rendered it applicable to the individual nghts superseding all other provisions in our laws as are contrary to the provisionsof the Convention by virtueofArticle169 3 of theConstitution C) Per Lons J

(1)The House of Representatives by enacting Law 50/79 ratified theConvention inquestionturningsame oratleastso muchof itasis self executing, intopart and parcel of ourdomestic law Fromitswording itis abundantly clear thatArticle 9 of theConvention isself executing 20

(2)In accordance with Art 169 3 of the Constitution Art 9 has supenor force and supersedes provisions to thecontrary inthe domestic Law under consideration D)PerStylianides J (l)Thiscase raisespointsof considerable importance 25 of Conventions ratified tn conformity with Article 169 of the Constitutionin our domestic legal order The effect and application of Article 169 of thp Cnnntituhnn ?nH tho r.™t.0.-. 30~~ 35 40 2) In the Republic of Cyprus a convention negotiated or signed under a decision of the Council of Ministersand ratified by a law made by theHouse of Representatives and published in the Official Gazette of the Republic "acquires supenor force"to"any"municipal lauT~A ratifying law comes into operation on the date of its publication in the gazette unless otherwise provided Aconvention,however, becomeseffective underinternational law after ratification according totheprovisions of the conventionoratany time thereafter specified therein The convention has supenor force over any municipallaw notonthepnncipleof lexpostenorderogat pnonbutratheron thepnncipleof lexsupenor derogat infenon ThusΊhassupenorforce toany ordinary domestic legislation The convention has supenor force not in the sense of repeating the inconsistent domestic law but in the sense of having supenontyandprecedence initsapplication Aconvention inthelegalorder of Cyprus, as set out inthe Constitution,is of a status supenor to any other law eitherpriororsubsequent but isinferior totheConstitution Another difference between a ratified convention and the ordinary municipal legislation is that theconvention is not interpreted on thebasisof the rules and principles of interpretation of the ordinary statutes but its 209 M a l a c h t o u v. A i m e f t i

(1987)interpretation is governed by international law and particularly by the Vienna Convention on Treaties -{See Section 3 Arts 31 38)

(3)Article 169 does notapply only totreaties affecting rights and obligations of the State as submitted by counsel for the appellant but it governs ail treaties conventions and agreements ratified and concluded in conformity 5 with paragraph 2 thereof provided that all otherrequirements are satisfied

(4)Conventions may be bilateral or multilateral In bilateral conventions where objective nghts are created or obligations by one State towards the other or the nationals of the other State are undertaken reciprocity is essential though according to Article 60 of the Vienna Convention on the 10 Law of Treaties only a material breach of a multilateral treaty by one of the parties entitles the other parties to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part There are however treaties whose nature objective and function in the international relations and the internal legal order exclude the condition of 15 reciprocity Such are multilateral conventions the object of which is not to create any subjective or reciprocal rights for the contracting parties themselves but their objective and their intent is to promote certain pnnciples of law moral and legal values and which a contractingparty signs and ratifies only for the realization of this objective Indeed it would be 20 incomprehensible for a State not to secure the rights and freedoms defined in s 1 of the Convention of Human Rights on the ground that another party to the Convention violates the Convention even against a national of the first State Moreover where there is any international mechanism of control or supervision the condition of reciprocity again cannotvalidly be raised 25

(5)For a treaty to be applicable it must be self-executing Only such provisions of a convention are self executing which may be applied by the organs of the State and which can be enforced by the Courts and which create nghts for the individuals, they govern or affect directly relations of the internal life between the individuals and the individuals and the State or the 30 public authonhe* The question whether or not treaties are self-executing is influenced by the wording of the convention, its provisions and the relevant constitutional law in a given country

(6)Inthe light of the preamble* to the Convention in question inthis case, the provisions of Art 14** and the fact that Cyprus made no reservation whatsoever, the provisions of Art 1***, the Explanatory Report**** which is * Therelevantpartisquotedatρ 226 **Quotedatp 226 "' Quotedatp 227 * " * Therelevantpartisquotedatp 227 210 35 1C.L.R. g 10 15 20 25 30 35 40 Malachtou v. Armefti a supplementary means of interpretation the steps taken by our State namely the ratification of the Convention by Law under Art 169 2 of the Constitution and the enactment of section4 of Law 50/79.andthe operative ' partsof theConvention, namely Articles2-10 which createobjective rulesof general application and regulate the nghts and responsibilities of all individuals governed by the Laws of Cyprus, the conclusion is that the Convention is self-executing

(7)In view of what was explained earlier on and beanng in mind its objective the condition of reciprocity is not applicable to the Convention in question This is so for additional reason that there exists an international mechanism of controlof the application of the Convention

(8)Thereisso ment in thesubmission that theprovtsion ofthe Convention isunreasonable or that it isrepugnant to the pnnciple of equality enshnned in Article 28ofourConstitution On thecontrary ittendstoapplythepnncipleof equality between children bom either in or out of wedlock and to ensure and protect the human nghts of those bom out of wedlock

(9)Our domestic law relatingtothenghtsofsuccessionofchildren bom out of wedlock (The Wills and Succession Law. Cap 195 ss 44 and 46 and the First Schedule thereto andThe Illegitimate Children Law Cap 278 s3) are inconsistent with the Convention The Law applicable is that set out by the Convention Subject totheestablishment ofpaternalaffiliationachildhas the nght of succession ensured by Art 9 thereof Π 01Thp aforesaid nrovisinnq of our statutp law may have constituteda violation ofArticles 8 and 14of the European Convention for the Protection of Human Rights and, if challenged,may bedeclaredrepugnant toArt 28 of the Constitution This however, does not anse in this case,but it constitutes a completeanswertothesubmission thatArt 9 oftheConvention in question isinconsistent with the pnnciple of equality E) Per Pikis. J

(1)Ratification by the legislature incorporates the treaty or convention, asthe case may be, into domestic law by virtue of the legislative powervested intheHouseofRepresentatives(Article61).andifits provisions are self-executing they acquire the forceof law quite independently of para 3 of article 169 or its impact on domestic legislation

(2)This aspect of legislative ratification must be stressed, because if the conclusion is that the provisions of Art 9 of the Convention ratifiedby Law 50/79 are self-executing and became in virtue of this enactment part of our internal legislation, it may be unnecessary to examine the status of the legislation and determine whether it acquired supenor force in virtue of Art 169 3 of the Constitution

(3)A provision ofatreatyorconvention isself-executing ifthenghts vested or theobligationimposedtherebyarecomprehensively definedtothe extent ofmakingthem,without furtheraddition or modification,enforceable before 211 Malachtou v. Armeftj t 987) a court of law. The wording of Article 9 has those attnbutes What is missing inthe Convention ismachinery for theassertion oftheserightsbeforejudicial authonties where denied The legislature aimed to fill this gap by the enactmentofs.4of Law 50/79 The enactmentofs 4 reinforcestheviewthat it was in the contemplation of the legislature to give immediate effect to the rights embodied in the convention

(4)That being thecase itcanbesafely inferredthat the legislature intended by the enactment of Law 50/79 to repeal those provisions of the Wills and Succession Law. Cap. 195. that conflicted with and were repugnant to the nghts conferred by Article 9 of the Convention. Disinclined though courtsof law are to find repeal by necessary implication,this isunavoidable when the provisions of the two enactments are irreconcilable, in which case the provisions of the earlier enactment must yield to those of the latter Appeal dismissed Costsof both parties to be paid"out of the estate. Cases referred to: 5 10 15 In re SusanneAnnander {1983) 1C.L R 619; James Buchanan and Co. Ltd v. Babco Forwarding and Shipping (U.K.) Ltd. [197713All E.R. 1048; 20 Stag Line Ltd. ν Foscolo, Margo and Co Ltd [1931} AH Ε R Rep. 666 Fosterv. Neilson. 7 Law Ed. U.S. 26-29 p. 252 ; Marckx case (Senes A. No. 31 p. 15 paras. 31 and 45-48) — European Court of Human Rights. Johnston and Others v. Ireland, Judgment dated 18 12.86 - Eu.opean 25 Court of Human Rights. O'B v.S.

(1984)Insh Reports 316; Re Khou (American Journal of International Law) Vol. 77 No 1 p- 16 Cheney v. Conn [1968] 1 All E.R. 779; Mizrahi v. The Republic

(1968)3 C.L R. 404; 30 Kannas v. The Police

(1968)2 C.L.R.35; Stavrou and Others v. TheRepublic

(1986)3 C.L.R. 361., Judgment of Court of Appeal ofAix {J.C P. 1948 11.4,150). Cafe sJacques VabreetS.A.R.L J. WeigeletCieChambre Mixte,Cour de Cassation, 23.5.75); In Re Rekhou, Conseil d"Etat, 29.5.81; Austriav. Italy (App. 788/60) European Commission of Human Rights. 212 35 1 C.L.R. Malachtou v. Armefti Appeal. 5 Appeal byplaintiffs againstthejudgment oftheDistrictCourtof Limassol (Chrysostomis. P.D.C. and Stavrinides. D.J.) dated the 26th September. 1983 (Action No. 3107/82). whereby it was decided that when paternal affiliation isestablished, a child bom outofwedlock hasthesamerightofsuccession intheestateofhis father and of any member of his father's family as ifit had been born in wedlock. A. Triantafyllides withR.Michaelides,for the appellant. 10 C.Melas,for the respondent. _ Cur. adv.vutt. The following judgments were read: STYLIANIDESJ.:Thisappeal isdirectedagainstthedecisionof the DistrictCourt of Limassol whereby itwasdecided that whena paternal affiliation isestablished, a child born out of wedlock has 15 the same right of succession in the estate of his father and of a member of hisfather's family asifithad been born in wedlock. Costas Christodoulou Armeftis, late of Limassol. passed away on 29thJuly, 1980, leaving a lawful wife. Bywilldated-2.4.70 he left and bequeathed part of hisproperty.totwopersons, namely. 20 Christodoulos Costa Armeftis and Mana Costa Armefti, the plaintiffs inthisaction.The defendant in Probate Application No. 223/80 was granted letters of administration of the estate of the late Costas Christodoulou Armeftis withthe will annexed. Theplaintiffs bythisaction claimthattheyarelawful heirsofthe 25 -said'deceased asbeing hischildren bofrfout of wedlock and that theyand thesurvivingwife ofthe deceased are hisonlyheirs. After the closing of the pleadings, on the application of the defendant'under 0.27

(1)and

(2)oftheCivilProcedure Ruleswith theconsentoftheplaintiffs, thefollowingwassetdownforhearing 30 as a preliminary point of law: whether illegitimate children succeed aslawful heirstothe estate of their deceased father. TheFullDistrictCourtofLimassol,after hearingargument from counsel of both parties,decided thattheConvention on the Legal Status of Children Bom out of Wedlock, ratified by our LawNo. 35 50/79, validly concluded under Article 169 of the Constitution, acquiredsuperiorforcetoanymunicipallawand,therefore, under Article 9 of the Convention a child bom out of wedlock has the samerightofsuccession inthe estate of hisfather and his father's 213 Styliauides J. Malachtou v.Armefti

(1987)familyasifhe had been bom inwedlock, provided thatapaternal affiliation isestablished,pursuanttoArticle3-5ofthe Convention Learned counsel fortheappellant argued that the provisionsof theConvention arenotenforceable lawinCyprusasArticle169 3 does not apply to treaties regulating pnvate civil law nghts 5 amongst citizens but only applies to treaties affecting nghts and obligations of the State,thatthe Convention isnot self-executing but onlyprovides guidelines and directivestothe legislature, that the element of reciprocity, provided in Article 1693, is not satisfied, and finally that itsprovisions are unreasonable and are 10 contrary tothe pnnciplesof equality enshnned inthe constitution inthe sensethat thenghtsofsuccession granted tothe illegitimate children are not granted also to the father of the illegitimate children Counsel for the respondents,on the otherhand, supported the 15 judgment of the trial Court on the grounds on which the first instance Court relied This case raises points of considerable importance The effect and application ofArticle 169ofthe Constitution andthe position of Conventions ratified in conformity with Article 169 of the 20 Constitution inour domesticlegal order Though inanumber ofcasesthe Courtsofthiscountry referred toand appliedprovisionsoftheEuropeanConvention on Human Rights ratified by Law No 39/62 ashaving supenor force to any municipal law,the issuesraised inthisappeal havenotbeen dealt 25 with inthe past Article 169of ourConstitution readsas follows «Subject to the provisions of Article 50 and paragraph 3 of Article57

(1)every international agreement with a foreign State or any 30 International Organisation relating to commercial matters, economic co-operation (including payments and credit) and modus Vivendi shall be concluded under a decision of the Council of Ministers,

(2)any other treaty, convention or international agreement shall 35 be negotiated and signed under a decision of the Councilof Ministers and shall only be operative and binding on the Republic when approved by a law made by the House of Representatives whereupon itshallbe concluded, 214 1 C.L.R. 5 Malachtou v.Armefti StylianidcsJ.

(3)treaties, conventions and agreements concluded m accordance with the foregoing provisions of this Article shall have, as from their publication intheofficial Gazette of the Republic, superior force toany municipal law oncondition thatsuch treaties,conventionsandagreements areapplied by the otherparty thereto» The provision ofparagraph 3issimilar though notidentical, to Article 55ofthe French Constitutionof4 1058thatruns- 10 15 «Les traites ou accords regulierement ratifies ou approuves ont, desleur publication une autontesupeneure a celledes lots, sous reserve, pour chaque accord ou traite deson application par Γ autre partie» («Treaties oragreements duly ratified orapproved shall upon their publication, have anauthority superior tothat of laws subject foreach agreement ortreaty toitsapplication bythe other party») Article 55stemmed from Articles 26and 28oftheConstitution of 27 1046 which established expressly in a general waythe principle of the superiority of the internationalconventions over 20 the internal laws Article 26 concerned laws anterior to a convention and Article 28lawsposterior toaconvention We may refer also toArticle 28 1oftheConstitutionofGreece of 1975 andArticle 66ofthe Netherlands' Constitution In England the organs who ratify, the mode of ratificationand 21 the effect ofratification ofa treaty are completely different anda — -ratified^treaty"(«treaty^is"used""to~de"note~ rreatyTconvention~of agreement) is neither part of nor applicable inEngland unlessits contents are incorporated ina statute of the national legislation No guidance therefore, maybe obtained from thatdirection 30 IntheRepublic of Cyprus a convention negotiated or signed under a decision of the Council of Ministers and ratified bya law made by the House of Representatives and published mthe Official Gazette of the Republic acquires supenor force to any municipal law Aratifying law comes intooperationonthedateof 35 its publication in the gazette unless otherwise provided A convention, however, becomes effective under internationallaw after ratification, according totheprovisions oftheconventionor at any time thereafter specified therein 215 Stylianides J. Malachtou v. Armefti {1987) In France the Courtsinapplying both theprovisions of Articles 26 and 28 of the Constitution of 1946 and of Article r>5of the Constitution of 1958 held that an international convention prevails over an inconsistentlaw even if thelaw ispostenor The Court of Appeal of Dijon (D, 1952, ρ 801) held that an 5 international convention of 7th January, 1862, prevailed over a decree-law of 12th November, 1938 In a judgment of 10th November, 1947 (J C Ρ,1948 11 4,150)theCourtof Appeal of Aix said «Provided that these considerations lead the Judge to give 10 from now on precedence to the unequivocal diplomatic conventions over contrary legislative provisions even posterior» Similarly the Chambre d' Accusation de la Court d'Appel de Pans on8thJune, 1971 (Gaz Pal 1971 2 793) pronounced that 15 internallegislation evenposteriordoesnotrenderaninternational convention nullandvoid orinapplicable Procureur General Touffait in the «CafesJacques Vabre»et SARLJ Weigel et Cie, (Chambre Mixte,CourdeCassation, of 23 5 75) in his opinion («Conclusions») on the effect of the 20 provisions of Article 55 of the 1958 Constitution on posterior legislation said (page 350 of the report) «The target of Article 55 is not the laws anterior to a treaty Had itbeen so,itwouldbe sufficient toprovide 'thetreatyhas the force of law' since it is an absolute principle that a 25 postenor law prevails over antenor law The analysis of thetextisinconformity with theinternational ethicwhichthedrafters of theConstitutionsof 1946and 1958 followed andleadsusinescapably toconcludethatthe notion of thesupenontyofthetreatyoverthelawhasameaningonly 30 if itrefers tolawspostenortothetreaty,aswithregard tolaws antenor the answer is evident The internationallegal order cannotbe realizedanddeveloped unlesstheStatesapplywith loyalty the conventionswhichtheysign,ratify and publish» The Courtsin France, having regard tothe stnctseparation of 35 powers and their competence, gave thefollowing solutiontothe application of the treatywhich hassupenorforce «Thislimitationofpowers of theJudge ledhiminthecasesof conflict between two judicial norms of different hierarchical 216 1 C.L.R. 5 Malachtou v.Armefti StyliantdesJ. value toatechnical solution which iswell known: thatwhich consists intheensuring of respect tothesuperior norm not certainly by theannulmentof the inferior rule but simply by the non-application (en ecartantΓapplication») inthe caseof inferior law infavour ofthesuperior«(afesJucques Vabrecase (supra)). The convention has superior force over any municipal law not on theprinciple of lex postenor derogat prion butrather on the principle of lex superior derogat inferior!. Thus it has superior 10 force toany ordinary domestic legislation - (Vegleris -Syntagma. 1977, pp.215, 220, 222; Kypreou - Ricos ConstitutionalLaw.8th edition, 1980, p.62, «Cafes Jacques Vabre» (supra)) The convention hassuperior force notinthesense of repealing the inconsistent domestic law butinthesense of having superiority 15 andprecedence initsapplication. (Amaoutoglou, Presidentofthe Greek Council of State: Is a Law Repugnant toInternational Convention Unconstitutional,Syntagma, 1982, p.562; KypreouJudicial Control of theConstitutionality of theLaws. Honorary Volume of the Greek Council of State. 1929-1979. p.201, at 20 pp.222, 228, 229). 25 30 35 40 A convention in the legal order of Cyprus, as set outin the Constitution,isofastatussuperior toany otherlaw eitherprioror subsequent. «Law», when used inrelation tothe period after the coming into operation of the Constitution means a law ofthe Republic -(Article 186.1). The ConstitutionunderArticle 179.1 is the supreme lawofthe Republic and isnot,therefore, within the ambit-of-the-definitionof'«law»r"A"convention"is inferior tothe Constitution and issubject tojudicial review mthe sense thatthe constitutional provisions prevail in case of any inconsistency between them andthe provisions of the convention. Thusthe hierarchy in our legal order is (a) the Constitution, (b)the conventions, and(c)theordinary laws. A convention doesnot stricto sensu repeal the municipallawbuthasonly superior force to itinthesense thatithas precedence initsapplication. Itretains its nature as part of the international law. Having regard to its nature, however, and its connection with the international obligations oftheState,itcannotbe amendedorrepealed byany posterior lawcontrary tothe provisions of the convention or the provisions of the Vienna Convention onthe LawofTreaties that wasratified underArticle 169 byLaw No. 62/76. 217 Stylianides J. Malachtou v. Armefti

(1987)Such ratified convention delineates not only the international obligations of theState,asdefined by theConvention butalsothe internal law until the day that under the provisions of the convention or theVienna Convention onTreaties itceases to be operative -(Veglens op cit, ρ 212) -> Another difference between a ratified convention and the ordinary municipal legislation is that the convention is not interpretedonthebasisoftherules andprinciples ofinterpretatiot of the ordinary statutes but its interpretation is governed by international law and particularly by the Vienna Convention on 10 Treaties - (See Section3,Arts 31-38) Even in England in Buchanan & Co Ltd ν Babco Forwardingand Shipping (UK) Ltd [1977] 3All ΕR 1048 Lord Wilberforce said atρ 1052 « given the expressed objective of the convention to 15 produce uniformity in all contracting states Ithink that the correct approach istointerpretthe English text which after all is likely to be used by many othersthan British businessmen in a normal manner, appropnate for the interpretation of an international convention, unconstrainedby technicalrules of 20 English law, or by English legal precedent but on broad pnnciplesofgeneral acceptation» (See,also,Stag LineLtd ν Foscoto,Mango &Co Ltd, [1931]All ΕR Rep 666, at 677, per Lord Macmillan) Article 169 does not apply only to treaties affecting nghts and 25 obligations of theState,as submittedby counsel for theappellant, but itcovers all treaties, conventions and agreements ratified and concluded in conformity with paragraph 2 thereof, provided that all otherrequirementsare satisfied Paragraph3ofArticle169introducestheconditionofreciprocity 30 The wording is *on condition that such treaties are applied by theotherparty thereto» Inthe GreekConstitutionof 1975 theconditionofreciprocity is limitedtotheapplicationofaconventiontoforeign nationalsonly In the FrenchConstitutionthe wording is almost identical to our 35 Constitution Learnedcounsel fortheappellantargued thatreciprocityhasto 218 1 C.L.R. Malachtouv.Armefti Stylianides J. be proved by certification of theMinistryof ForeignAffairs before any convention is applied intheinternal legal order. Hecitedthe decision of the Conseil d' Etat (en banc), May 29, 1981, In Re Rekhou. 5 In Rekhou's case a controversy arose in respect of the application of theso-called Accords of Evian of March 19, 1962, establishing new relations between Algeria and France.Algeriain the past was part of the French Union.By those Accords it was declared an independent State. The Accords were approved by 10 popular referendum on April 8, 1962, and theirimplementation was authorised by a statute of April 13,

1. Article 15 of the Declaration onthePrinciplesConcerningEconomicandFinancial Cooperation between Algeria andFrance,guaranteed onthepart of France therights toretirementanddisability pensions acquired 15 intheservice of French governmental agencies and on thepartof Algeria such rights acquired in the service of Algerian governmental agencies priortotheexercise of self-determination, i.e.July 3,
2. The Conseil d' Etatconsidered reciprocity to be crucial todeciding theissue, butheld thatan administrative judge 20 lacked the power to determine «whether and to what extent the mode of execution of a treaty oraccordby theotherparty issuch as to divest the provisions of thattreaty oraccord of theauthority which isconferred uponthemby theconstitution». Rekhou scase has two peculiarities: Firstly,Algeria andFrance 25 undertookbilateralobligations, theoneinfavour ofthenationalsof the other; secondly, the Conseil d' Etat,contrary to the practice and decisions of theordinary courtsofjustice in France, soughttc establish-the-exclusive jurisdiction~of~tKe~Minister~6f" Foreigi Affairs in order to make a finding on reciprocity whereas tht 30 ordinary courts ofjustice have asserted these powers themselves. In the «CafesJacques Vabre» case (supra) the opinion of M. Touffait, ProcureurGeneral, on reciprocity was as follows:- 35 40 «Le troisiome moyen reproche a Γarret de la Cour d' appel de Parisd' avoir applique" Γ article 55 de la Constitutionsans avoir examine" si la condition de reciprocito exigoe par cet article se trouvait r^alisoe. Ce moyen pourrait appeler une discussion de principe: Celle de savoir si Γ exigence de rociprocite que formule Γ article55 de notreConstitutionvise non seulement les traites bilateraux pour lesquels elle se comprend mais aussi les traites multilate>aux auxquels elle 219 Styhanides J. Malachtouv. Armefti

(1987)serait difhcilement applicable et celle de savoir plus precisement si cetteexigence vautpourles traites instituantla Communaute economique europeenne Mais e ι ce qui concerne ceux-ci, selon la Cour de Justice des Communautes le fait que dans t'ordre jundique 5 communautaire toutEtatmembre victime d'unmanquement d'un autreEtatmembreasesobligations peutensaisirlaCour deJustice (art 170 duTraitede Rome)pourque'ellemettefin a ce manquement, interdit a Γ Etatdont il s' agit de se faire justice alui-memeaunomd'unequelconquereciprocite(arret 10 du 13 nov 1964, aff 90 et 91/

1. Commission contre Luxembourg et Belgique) Le moyen ne peut done etre accueilh puisque 1 exception tireedudefaut de reciprocitenepeutetreinvoquee devant les jundictions nationales» 15 («The third ground reproaches the decision of the Court of Appeal of Pans to have applied Art 55 of the Constitution without examining if the condition of reciprocity required by this article has been realized This ground could raise a discussion of principle thatof knowing if the requirement of 20 reciprocity which formulates Art 55 of our Constitution, is directed not only to bilateral treaties for which it is understandable but also to multilateral treaties to which it would have been with difficulty applicable, and the other pnnciple of knowing more precisely if this requirement 25 applies to treaties establishing the European Economic Community But with regard to the latter, according to the Courtof the Communities,thefact thatinthejuridical orderof the Communities each member State victim of the failure of the obligations by another member State may resort to the 30 Court(Article 170 oftheTreatyofRome)toputanendtosuch failure, it prohibits the State concerned to take justice in its hands in the name of any reciprocity - (Decision of 13th November, 1964,90and91/63,Commission ν Luxembourg and Belgium) 35 This ground cannotbe accepted since the objection which is drawn from the lack of reciprocity cannotbe invoked before the national jurisdiction») 220 1 C.L.R. Malachtou v. Armefti Stylianides J. The Mixed Chamber of Cour de Cassation, having heard the opinion of the Procureur General, in its judgment said (pp. 335356):- 5 10 15 20 «Surle troisiememoyen: Attendu qu'il estausurplus reproche a!'arretd' avoir fait application deΓ article 95 duTraitedu 25 mars
2. alors. salon le pourvoi. que Γ article 55 de la Constitution subordonne expressement Γ autorite qu' il confere au Traites ratifies parla Francealacondition exigeant leurapplication par Γ autre partie;que lejugedu fond n'apu, des lors, valablement appliquer ce texte constitutionnel sans rechercher si ΓEtat (Pays-Bas) d' ou a ete importe le produit litigieux asatisfait a la condition de reciprocite. Maisattenduque,dans Γ ordrejuridique communautaire, les manquements d' un Etat membre de la Communauto economique europeenne aux obligations qui lui incombent en vertu du Traite du 25 mars 1957 etant soumis au recours prevu par Γ article 170 du dit Traite, Γ exception tiree du defaut de reciprocite ne peut etre invoquee devant les juridictions nationales. D'ou ilsuit que le moyen ne peut etre accueilli». («On the thirdground: Having regard that the judgment is further impeached on that it has applied Article 95 of the Treaty of 25th March, 1958, whereas, according to the • - — provision; Article 55 of theConstitutionexpresslysubjects the 25 authority that confers on treaties ratified by France to the condition which requires theirapplication by the otherparty; and that thejudge of substance could not,therefore, validly apply thisconstitutionaltextwithout inquiring iftheState(the Netherlands) from which the subject product was imported, 30 has satisfied thiscondition of reciprocity. 35 Buttaking intoconsiderationthatinthejuridical orderof the Community the failures of a member State of the European Economic Communityof itsobligations which areincumbent on it by virtue of the Treaty of 25th March, 1957, are amenable toa recourse as provided by Article 170 of the said Treaty, the objection drawn from the failure of reciprocity 221 Stylianides J. Malachtou v.Armefti

(1987)cannot beinvoked before the national jurisdictions. Therefore, from this it follows that this ground cannot be accepted»). Thus the Cour de Cassation held that the condition of reciprocity was not necessary in view of the existence of an international organ to which a State victim might resort for any breach of the obligations of another State party to the Treaty of Rome. 5 The conventions may be bilateral or multilateral, in bilateral conventions, where objective nghts are created or obligationsby 10 one State towardstheotherorthe nationalsofthe otherState are undertaken, reciprocity is essential, though, according to Article 60 of the Vienna Convention on the Law of Treaties, only a materialbreach ofamultilateral treatybyoneofthepartiesentitles the other partiesto invoke the breach asa ground forterminating 15 the treaty orsuspending itsoperation inwhole or in part. Amateria] breach of a treaty under Article 60.3 consists in(a)a repudiation ofthetreatynotsanctionedbytheVienna Convention or (b)theviolation ofa provision essential tothe accomplishment ofthe object or purpose ofthe treaty. 20 There are, however, treaties whose nature, objective and function in the international relationsand the internal legal order exclude the condition of reciprocity. Such are multilateral conventions the object ofwhich isnot to create any subjective or reciprocal rights for the contracting parties themselves but their 25 objective and their intent isto promote certain principles of law, moral and legal values and which a contracting party signs and ratifies only for the realization of this objective. Examples are: Conventions for the protection of human rights and the improvements and formulation of common rules and the 30 achievement ofsocialjustice. ItwouldbeincomprehensibleforaStatenottosecuretherights and freedoms defined in s.l of the Convention of Human Rights on the ground thatanother party to the Convention violates the Convention even againsta national of the firstState - (See, also, 35 Koukouli&Spiliotopoulou -Obligations oftheStateMembersof 222 1 C.L.R. Malachtou v. Armefti Stylianides J. the International Convention 100 of the International Labour Organisation in Syntagma.

1. pp 634-635: Veglens, op. a t , p.
2. Arnaoutoglou. op. cit ρ 559) Where there is any international mechanism of control or 5 supervision, the condition of reciprocity again cannot validly be raised In Application 788/60 -Austria v. Italy -before the European Commission of Human Rights objection was raised regarding the Commission's competence ratione tempons in the sense thatthe 10 accession of a State to a multilateral convention became immediately effective only with regard to other States which had already at that time acceded The Italian Government had. therefore, on 26th October.
3. assumed obligations only in regard toStates which atthattime were ContractingParties; these 15 did not include Austria Italy and Austria had assumed mutual obligations only on 3rd September. 1958 The European Commission of Human Rights in its report on 31.3.63 had thisto say at paragraph 58:20 25 «It clearly appears from these pronouncements that the purpose of the High Contracting Parties in concluding the Convention was not to concede to each other reciprocal rightsand obligations inpursuance of theirindividual national interests but to realise the aims and ideals of the Council of Europe,as expressed initsStatute,andtoestablish acommon public order of thefree democracies of Europewith the object of safeguarding their common heritage of political traditions, "idealsTfreedom and the ruleof law: ~~ ~ " " 30 To achieve this purpose the High Contracting Parties, by theexpresstermsof Article 1of the Convention, undertaketo secure the rights and freedoms defined in Section 1 of the Convention to everyone within theirjurisdiction without any exception. 35 Inbecoming a PartytotheConvention,aState undertakes, vis-o-vis the other High Contracting Parties, to secure the , rights and freedoms defined in section 1 to every person within its jurisdiction, regardless of his or her nationality or status. 223 Stylianides J. Malachtou v.Armefti

(1987)in short it undertakes to secure these rights and freedoms not only to its own nationals and those of other High Contracting Parties but aiso to nationals of States not parties to the Convention and to stateless persons as the Commission itself has expressly recognised in previous 5 decisions It follows that the obligations undertaken by the High Contracting Parties in the Convention are essentially of an objective character being designed rather to protect the fundamental nghts of individual human beings from 10 infringement by any of the High Contracting Parties than to create subjective and reciprocal rights for the High Contracting Parties themselves» We agree with counsel for the appellant that for a treaty to be applicable it must be self-executing We need not in this case 15 attempt to give a general definition of the term «self-executing treaty» Pious declarations and provisions relating to political and international relations in a convention are not self-executing provisions OnlysuchprovisionsofaConventionare self-executing which maybeapplied bytheorgansoftheStateandwhichcanbe 20 enforced bythe Courtsandwhich create nghts forthe individuals, they govern or affect directly relations of the internal life between the individuals, and the individuals and the State or the public authonties Provisionswhich donotcreatebythemselvesnghtsor obligations of persons or interests and which cannot bejusticiable 25 or do not refer to acts or omissions of State organs are not selfexecuting -(Veglens, op cit, pp 202-206) Internationa!lawisprimarilyalawbetween Statesand normally treatieshave effect upon Statesonly Asithasbeenpointed outby the Permanent Court of International Justice (Series B, No 15), 30 this rule can be altered by the express or implied terms of the treaty, in which case its provisions become self-executing If treates contain provisions with regard to nghts and duties of the subjects of the contracting States, their courts, officials, and the like,these Statesmust takesuch stepsasare necessary,according 35 to their Municipal Law, to make these provisions binding upon their subjects, courts, officials, and the like - (Oppenheim's International Law, 8th Edition,Volume 1,page 924) The question whether or not treaties are self-executing is influenced bythewordingoftheconvention,itsprovisionsandthe 40 relevant constitutional lawina given country 224 1 C.L.R. Malachtou v.Armefti Stylianides J. The statement of the law in McNair - Law of Treaties, 1961 Edition, isheavily influenced by the constitutional system of the United Kingdom which, as we have said in the beginning of the judgment, iscompletely different from ourown.Atpp.79-80with 5 reference tothe position of treaties inthe constitutional systemof the United States, where the Constitution, the laws made in pursuance thereof and treaties of the United States are the supreme law of the Land, he states that although treaties become 'the supreme Law of the Land', some treaties require 10 legislative action before they can receive any effect in American courts. After citing a passage from the judgment of Chief Justice Marshall inFosterv.Neilson,7Law.Ed.U.S.26-29,at.p.252,he notes:- 15 20 «Those treaties which do not require any legislation to make them operative are sometimes referred to as 'self-executing'. Itseems that Congress hasbeen soprompt topass legislation for the implementation of treaties that there have been very few opportunities of judicial determination of the question which treaties actually require legislation, and which do not, and itdoes not follow that,because legislation waspassed to implement atreaty, the legislation wasessential». With the aforesaid principles in mind we proceed to consider the European Convention on the Legal Status of Children Bom out of Wedlock. This Convention was done at Strasbourg on the 25 15thdayofOctober, 1975.Itwassignedonbehalf ofthe Republic ofCypruson 1.12.78, subjecttoratification pursuanttoadecision of the Council of Ministers No. 17.257 of 28.9.78 in accordance with Article 11.1 of the Convention and by virtue of Article 169, paragraph 2,of the Constitution of the Republic of Cyprus. 30 Itwasratified bytheConvention ontheLegalStatusofChildren Bom outofWedlock (Ratification) Law, 1979(No.50 of 1979). According to Article 11 the instruments of ratification, acceptanceorapproval are deposited withthe Secretary-General oftheCouncilofEurope.TheConvention enteredintoforce three 35 months after the date of the deposit of the 3rd instrument of ratification, acceptance or approval, i.e. on 11.8.78. The instrumentofratification oftheRepublicofCypruswas deposited with the Secretary-General of the Council of Europe on the 11th day 'of July, 1979- (See Chart Showing Signatures and 225 Stylianides J. Malachtou v. Armefti

(1987)Ratifications of Council of Europe Conventions and Agreements, issued by the Legal Affairs Departmentof the Council of Europe. ISSN 0252-9122) and pursuant toparagraph 3 of Article 11,the Convention came into force three months after the date of the deposit of the instrument of ratification in respect of Cyprus, ιe 5 11 10 79 Itisrecorded inthe preamble tothe Convention«Considering that the aim of the Council of Europe is to achieve a greater unity between its Members in particular by the adoption of commonrules inthe field of law, 10 Notingthatinagreat numberof memberstates efforts have been, or are being, made to improve the legal status of children born out of wedlock by reducing the differences between theirlegal statusandthatof childrenborn in wedlock which are to the legal orsocial disadvantage of the former, 15 Recognising that wide disparities in the laws of member statesinthisfieldstillexist, Believing thatthesituation of children born out of wedlock should be improved and that the formulation of certain common rules concerning their legal status would assist this 20 objective and at the same time would contribute to a harmonisation of the lawsof the member states in this field, Consideringhowever thatitisnecessary to allowprogressive stages for those states which consider themselves unable to adopt immediately certain rules of thisConvention, 25 Have agreed as follows » Article 14 provides that«Anystate may,atthetimeof signature,orwhen depositing its instrument of ratification, acceptance,approval or accession or when making a declaration in accordance with paragraph 2 of Article 13 of this Convention,make not more thanthree reservations in respect of the provisions of Articles 2 to 10 of the Convention» Cyprus made noreservation whatsoever 226 30 35 1 C.L.R. Malachtou v.Armefti Stylianides J. Article 1reads:- 5 «Each Contracting Partyundertakes toensure the conformity of itslawwith the provisions ofthisConvention and to notify the Secretary-General of the Council of Europe of the measures taken forthat purpose». The Explanatory Report is a supplementary means of interpretation. In the Explanatory Report, Chapter «Commentaries on the Provisions of the Convention», in respect ofArticle 1itisrecorded:- 10 «The measures referred to in this article wilt usually take the form of legal or administrative texts.These measures should be taken not later than the entry intoforce ofthe Convention in relation tothe Contracting Partyconcerned. AContracting Partywill,however,beconsideredtohavebroughtitslawinto 15 line with the provisions of the Convention if a firm and constant practice implementing those provisions exists.Thus the term 'law' used in the English text is to be taken, throughout the Convention, to mean legal rules of general application, includinga firm and constant practice». 20 OurStatetook thefollowingsteps:(a)Itratifiedthe Convention byaLawunderArticle 169.2 (LawNo.50/79),and (b)enacted by s.4 of the said Law that the Supreme Court issues Rules of Court governingthepracticeandprocedureoftheCourtsbyvirtueofthis Law and especially for the procedure to be followed in any case 25 under thisLaw and the Court feespayable.Thissection provided further that until the issue of such Rules of Court all matters, procedureandpaymentoffeesaregoverned,mutatismutandis,by theRulesofCourtinforce heretofore. The operative parts of the Convention are Articles2-10.Allof 30 them create objective rules of general application. They regulate the rights and responsibilities of all individuals governed by the Lawof Cyprus. In view of the above the legislative authorities treated this Convention as self-executing and rendered it enforceable and 35 applicable inCyprus. In view of what was explained earlier on, the condition of reciprocity is not applicable as the Convention does not create subjective and reciprocal rights for the Contracting Parties themselves; its objective is to improve the situation of children 40 bom of wedlock, the formulation of common rules conceming 227 Stylianides J. Malachtou v.Armefti

(1987)their status and the harmonisation of the laws of the member States of the Council of Europe in this field. Its object isnot the reciprocal interests of the States. The condition of reciprocity cannot be validly raised for the further groundthatbyArticle1 each contractingpartyisobliged to 5 notify the Secretary-General of the Council of Europe of the measures taken for the purpose of ensuring the conformity of its lawwiththeprovisionsoftheConvention atthe timesetoutinthe Explanatory Report to which reference was made hereinabove. This is in effect an international mechanism of control of the 10 application ofthe Convention. We find no merit in the submission that the provisions of the Convention isunreasonable orthat itisrepugnant tothe principle of equality enshrined in Article 28 of our Constitution. On the contrary, it tends to apply the principle of equality between 15 children bom either in or out of wedlock and to ensure and protect the human rightsof those bom out of wedlock. Article9of the Convention provides:«A child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a 20 member ofitsfather's ormother'sfamily,asifithadbeen bom inwedlock». The domestic law on the nght of succession isregulated by the Wills & Succession Law, Cap. 195, ss.44 and 46, and the First Schedule thereto. Only the legitimate children of a deceased and 25 theirdescendants could lawfully inherit a deceased. The Illegitimate Children Law, Cap. 278, under s.3, provides that an illegitimate child shall have the legal statusof a legitimate childinrespect of hismother and her relatives byblood only.We need notreferforthepurposeofthisjudgmenttootherprovisions, 30 such ass.6 of Cap.

1. Itsuffices tosaythat under the municipal Laws of Cyprus in operation the rights of succession of the children bom out of wedlock were limited to their maternal side only. These provisions are not in conformity with the Convention; 35 they are inconsistent and directly incompatible therewith. Asthe Convention has superior force, the provisions of the municipal Laware not applicable. The Law applicable isthat set out in the Convention: Subject to the establishment of paternal affiliation a 228 1 C.L.R. Malachtou v.Armefti Stylianides J. childhastherightofsuccession ensured byArticle9 aforesaid. 5 10 15 Before concluding this judgment, we would like to put on record that inMarckxcase (SeriesA,No.31, p.15,paragraphs 31 and45-48)theEuropeanCourtofHumanRightspronounced that the State has positive obligations conceming the situation between an unmarriedmotherandherchildandthenearrelatives of the mother and the rights of such child, and that the right of succession is one of such rights. Such relations should be not different from those ofa legitimate child.Atpage 15we read:«As envisaged by Article 8, respect for family life implies in particular, inthe Court's view, the existence in domestic law oflegalsafeguards thatrenderpossibleasfromthemomentof birth the child's integration in his family. In this connection, the State hasa choice ofvariousmeans,but a lawthat failsto satisfy this requirement violates paragraph 1 of Article 8 withouttherebeinganycalltoexamineitunderparagraph2». Relevant is the judgment of the European Court of Human Rightsinthe case ofJohnston and Othersv.Ireland, (6/1985/92/ 139), delivered on 18.12.
2. The devolution of estates on 20 intestacy was governed in Ireland by the Succession Act, 1965, which provides, basically, that the estate is to be distributed in specified proportions between any spouse or «issue» who may survive the deceased. In O'B v.S,

(1984)Irish Reports 316, the Supreme Court held 25 that the word «issue» did not include children who were not the issueofalawful marriageandthataccordinglyanillegitimatechild - - -had, under the Act,.norighttojnheritance on the intestacy of his naturalfather. TheSupremeCourtwhilstholdingthattheresultant discrimination in favour of legitimate children was justifiable by 30 reason of sections 1 and 3 ofArticle41ofthe IrishConstitution, it stated that the decision to change the existing rules of intestate succession and theextenttowhich theywere tobechanged were primarily mattersforthe legislature. The third applicant, a daughter bom out of wedlock (an 35 adulterous union) complained that her succession rights vis-a-vis her parents constituted a violation of Article 8 of the European Convention ofHuman Rights,therebeinganinterference withher family life under Irish Law -(See paragraph 70of thejudgment). The Court saidon the matter:- 229 Styllanlde· J . Malachtouv. Armefti

(1987)«As the Government emphasised, the Marckx case related solely to the relations between mother and child. However, the Court considers thatitsobservations on the integrationof a child within hisfamily are equally applicable toa case such asthe present, conceming asitdoes parentswhohave lived, 5 withtheirdaughter, inafamilyrelationshipovermanyyears». After referring tothe preamble tothe European Convention on the LegalStatus ofChildren Bom out ofWedlock, which wasnot ratified and isnot part of the Lawof Ireland, itsaid:«Initsconsideration of thispartofthepresentcase,theCourt 10 cannot but be influenced by these developments. As it observed in itsabove-mentioned Marchxjudgment, 'respect' for family life, understood asincluding thetiesbetween near relatives, impliesanobligation fortheStatetoactinamanner calculatedtoallowthesetiestodevelop normally(SeriesA.No. 15 31, p.21, §45). And in the present case the normal development of the natural family ties between the first and second applicants and their daughter requires, in the Court's opinion, that she should be placed, legally and socially, in a position akin tothat of a legitimate child. 20 Examination of thethirdapplicant's present legalsituation, seen as awhole, reveals, however, thatitdiffers considerably from that of a legitimate child; in addition, it has not been shown that there are any means available to her or her parents to eliminate or reduce the differences. Havingregard 25 to the particular circumstances of this case and notwithstanding the wide margin of appreciation enjoyed by Ireland inthisarea (see paragraph 55 (c)above),the absence of an appropriate legal regime reflecting the third applicant's natural family ties amounts to a failure to respect her family 30 life. Thereisaccordingly,asregardsallthreeapplicants,abreach orArticle8underthishead». Atparagraph 78with regardtoviolation ofArticle 14(Principle of Equality)itsaid:«The third applicant alleged that, by reason of the 35 distinctions existing under Irish law between legitimate and illegitimatechildren inthematterofsuccessionrightsoverthe estates of their parents, she was the victim of discrimination 230 1 C.L.R. Malachtouv.Armefti Stylianides J . contrary toArticle 14,taken inconjuction with Article8». Atparagraph 79itissaid:«Sincesuccessionrightswereincludedamongsttheaspects of Irish law which were taken into consideration in the 5 examination of the general complaint conceming the third applicant's legal situation, the Court, like the Commission, doesnotconsideritnecessarytogiveaseparate rulingon this allegation». It is to be noted that in Ireland during the pendency of the 10 Johnston case, on 9th May, 1986, the Status of Children Bill, 1986, was introduced into the Seanad. This isa comprehensive legislation governing the status of children in the Republic of Ireland. Ifenacted initspresent form, which isthe stated purpose of removing as far as possible provisions in existing laws which 15 discriminateagainstchildrenbom outsidemarriage-wouldhave, interalia,theeffect thatforsuccession purposes no discrimination would be made between persons based on whether or not their parents were married to each other. Thus, a child bom outside marriage would be entitled to a share on the intestacy of either 20 parent and would have the samerightsinrelation tothe estateof a parentwhodied leavingawillaswould achildofafamily based on marriage. Itisapparent from theabovethatourstatuteLawofSuccession withregardtochildrenbomoutofwedlockmayhaveconstituteda 25 violation of Article 8 of the Convention and Article 14. The provisionsofourstatutelawrelatingtochildrenbomoutofwedlock withregardtosuccession, ifchallengedbeforeacompetentCourt, might-be-declared-unconstitutionaLasJhey_a_rejepugnant and inconsistent with the provisions of Article 28 of the 30 Constitution. This, however, does not arise in this case. The aforesaid are a complete answer to the allegation that the provisionsoftheConvention areinconsistentwiththeprincipleof equality enshrined in the Constitution as there isnoprovision in the Convention entitling the father to succeed his child bom 35 outside marriage. Forthese reasonsthisappeal fails. Having regard to the circumstances of the case, including the novelty of the points raised, costs ofboth sides before this Court and the DistrictCourt tobepaid out ofthe estate. 40 PIKIS J.:Thesubjectofthisappealaretheimplicationsof Law 231 Plkls J. Malachtou v.Armefti

(1987)50/79 ratifying theEuropean Convention on thelegal statusof children bom outofwedlockwithparticularreference tothe nghts of succession ofillegitimate children tothe estate oftheir father TheFullDistrictCourtofLimassoldecidedbywayofapreliminary point that, byvirtueoftheprovisionsofthe above law,article9of 5 the Convention safeguarding nghtsofsuccession,became partof our lawsuperseding or repealing bynecessary implication preexisting municipal legislation, namely The WillsandSuccession Law-Cap 195 The question arose inthe contextofanactionof the plaintiffs, claimingtobeillegitimate children ofthe deceased, 10 against the administratrix of the estate forthe recovery of their share from the estate ofthe deceased Inawellreasoned judgment thetnal Courtheldthat Law50/79 amended bynecessary implication pre-existing domestic lawon the status andsuccession nghts of illegitimate children*, paving 15 the wayforsuccessoftheiraction intheeventofprovingthatthey werechildren ofthedeceasedbomoutofwedlock ThetnalCourt based itsdecision ontwo grounds,thefollowing(a)The provisions ofthe Convention had supenor forceto those of any domestic legislation conflicting therewith in 20 virtueofpara 3ofarticle169 (b) Irrespective ofarticle 1693thelegislature intendedby the provisions of Law 50/79 to incorporate theConvention intodomestic law,anintention denved from the introductory provisions totheratification ofthe law, particularly those of 25 s 4 Section 4 empowered the Supreme Court to make rules governing the practice and procedure of the Courts in proceedings raised under the Convention, an authonty compatible only, asthetnal Court found, withan intentionto maketheprovisions ofthe Convention partofthesubstantive 30 law For the administratrix itwasargued that Law50/79 didnotgo beyond ratifying the Convention, theprovisionsofwhich did not of themselves purport to change the law Construed in their properperspective theprovisionsoftheConvention gonofurther 35 thanprovideguidelinesforstreamliningdomesticlegislation along the declarations made therein on to the status and succession nghts that children bomoutofwedlock ought to enjoy It was *(See,IllegitimateChildrenLaw Cap 278,andTheWillsandSuccessionLaw-Cap 195} 232 1 C.L.R. Malachtou v.A r m e f t i Plkls J . difficult tocontemplate,counselargued,thelegislatureintendingto repeal or amend a host of provisions of domestic legislation bearing onthestatus and rightsof"illegitimate children" merely by reference to the provisions of the Convention. Nordoes, 5 counsel suggested, s.4reveal such anunequivocal intentionon the part of the legislature as to justify the introduction ofthe sweepingchangesindomesticlegislation thetrialCourtnoticed to have been introduced by Law50/79. Further counsel submitted therightsacknowledged by the Convention are broadly defined, 10 lacking the definitive character necessary to classify them as statutory rights. In short, he argued, the provisions of the Convention arenotself-executing andthatinitselfisavalidreason for denying them statutory force. A big part of the address of counsel for the appellant was 15 devoted to the interpretation and application of para.3, article 169, and the circumstances under which a ratified treaty or convention mayacquire superior force to conflicting domestic legislation, Superior force is,heargued, dependent onproof of reciprocity -apositionsupported bytheFrench caseofRe Khou*, 20 cited onthe interpretation ofanalogous provisions ofthe French Constitution of 1958, notably article 58. Respecting reciprocity counsel raised atwofold argument:- 25 Thattheambitofpara.3ofarticle 169isconfined totreaties or conventions founded onreciprocalrightsand obligations, adding that the Convention here under consideration is not modelled on mutuality. Ifcontrary tohissubmission theCourtfound that-theelementof reciprocityispresentbyreference totheprovisionsofarticle 11

(2)stipulatingfor the lodgment ofa minimum number of instruments 30 asaprerequisite forthe convention coming into force, there was no evidence this requirement wassatisfied; that could only be supplied bythe Ministry of Foreign Affairs, the mouthpieceof government for the applicability of treaties, conventions and international agreements. 35 Insum,the position ofappellant isthat Law50/79 merely laid theframework forchangesindomesticlegislationonthestatusand successionrightsofillegitimatechildrenwithoutseekingtochange the lawitself.Counsel did not omitto bringtoour notice dictaof * (

(1982)- cited anddiscussedin Amencan Journal of International Law, Vol. 77. No.l. p.161). 233 Pikla J. Malachtouv. Armefti

(1987)Tnantafyllides, Ρ , in Re Susanne Annander* that go against his submission Thelearnedpresident stated atρ 631 «In Cyprus the status of a father of an illegitimate child has been afforded recognition due to the ratification of the European Convention onthelegalstatusof thechildrenbom out of wedlock by meansof Law 50/79» 5 We were invited not to follow the above appreciation of the effect of Law 50/79orfollow thedecision inany respectnotbeing bound by it. "Counsel for the respondents supported thedecision of the tnal 10 Courtwarrantedbytheintentionofthelegislature asevincedbys 4, and thesupenonty of theprovisions of ratified conventions under para 3, article 169 He laid emphasis, as thetnal Courthaddone, onthereasoning of thedecision of Ungoed-Thomas,J, in Cheney ν Conn**, and the effect of ratification when it derives from a 15 legislative act Self-executing provisions of a convention ratified by Act of Parliament,become part of domestic law like any other enactment of the legislature Bythesame process of reasoning the provisions of article9, self-executing inthesubmission of counsel, pecame, by their incorporation into an Act of the House, part of 20 domesticlegislation andshould be heeded as such On noprevious occasion was theeffect of ratification examined by the Full Bench of the Supreme Court Nor were the implications of the several provisions of article 169 explored Article 169 deals with both, the means of ratification of treaties, 25 conventions and international agreements and their effect on internal law Internationallaw does notspecify theStateauthonty competent to ratify international agreements It is a matter of domesticlaw. And thepracticeofStatesdiffers Forexample, inthe United Kingdom the power to ratify belongs to the Crown 30 recognised as an aspect of itsprerogative IntheUnitedStatesthe power vests cojomtly in the President and the Senate (approval requires two thirdsmajonty) Thesubject ofratification is discussed at length in McNair - The Law of Treaties*** Under English law ratification,thoughitbindstheStateinitsinternationalrelations,has 35 no noticeable effects on internallaw, unless itismade partof itby adoptioninanActofParliament '

(1983)1 CLR 619 **(1968]1AIIER 779 "*1961,atp 129etseq 234 1 C.L.R. Malachtouv.Armefti Plkls J. TheConstitution of Cyprusveststhepowertoratify in different Authorities of the State, depending on the subject matter of the treaty, convention or international agreement. International agreements relating to commercial and matters of economic co5 operation (including payments and credit), are ratifiable by the Council of Ministers in virtue of para. 1 of article

1. Whereas every other treaty, convention or international agreement is subject to ratification by the House of Representatives. Agreementsdulyratified inaccordance witheitherpara. 1 orpara. 10 2, have superior force to municipal law from the date of their publication inthe official gazette «oncondition thatsuch treaties, conventions and agreements are applied by the other party thereto». It will be noticed that unlike English law, international agreementsdulyratifiedbytheExecutiveacquire,from thedateof 15 their publication in the official gazette, enhanced legal effect in domesticlawprovidedtheconditionofreciprocityissatisfied. The difference between treaties, conventions and international agreements ratified by an Actof the House, and those ratified by the Council of Ministers,isthe following: 20 Ratification by the legislature incorporates the treaty or convention, asthe case maybe,intodomesticlawbyvirtueof the legislative power vested in the House of Representatives (article 61);and ifitsprovisions are self-executing they acquire the force oflawquiteindependentlyofpara.3ofarticle 169oritsimpacton 25 domestic legislation. Thepointisexemplified bythe decisionsoftheSupreme Court in Mizrahiv. Republic* and Kannas v. The Police**in which the Court referred to the European-Convention on-Human RightsratifiedbyLaw39/62asanintegralpartofourdomesticlegislation 30 without at allinquiring into the question of reciprocity. We stress this aspect of legislative ratification for if we conclude that the relevant provisions of the Convention ratified by Law 50/79, namely article 9, are self-executing and became in virtue of this enactmentpartofourinternallegislation,itmaybeunnecessaryto 35 examine the status of the legislation and determine whether it acquired superior force in virtue of para. 3 of article
2. A provision of a treaty or convention is self-executing if the rights *

(1968)3C.L.R.404. "

(1968)2C.L R35 235 PUtis J. Malachtou v.Armefti

(1987)vested or the obligations imposed thereby are comprehensively defined to the extent of making them, without further addition or modification, enforceable before a court of law. The wording of article9has,inmyjudgment,thoseattributes.Itdefines succinctly, with all necessary detail, therightsgiven thereunder ina manner 5 fledging them into statutory rights. In clear and unambiguous languageitlaysdownthatachildbomoutofwedlockshallhavethe samerightsofsuccession totheestateofhisfather andmotherasa child bom in wedlock. It makes succession to the estate of one's parents dependent on a natural link as opposed to association 10 through marriage.WhatismissingintheConvention ismachinery for the assertion of these rights before judicial authorities were denied.Thelegislatureaimedtofillthisgapbytheenactmentofs. 4 conferring rule-making power on the Supreme Court to regulate the formalities necessary for claiming enforcement of the right 15 before a competent Court oflaw.And inordertoavoid avacuum until the enactment of subsidiary legislation, they laid down that existing regulations shall apply, no doubt with the necessary modifications, to make possible the vindication of the rights conferred bytheConvention.Theenactment ofs.4reinforcesthe 20 view that it was in the contemplation of the legislature to give immediateeffecttotherightsembodiedintheConvention. That being the case itcan besafely inferred that the legislature intended by the enactment of Law 50/79 to repeal those provisions of the Wills and Succession Law - Cap. 195, that 25 conflicted with and were repugnant to the rights conferred by article9 oftheConvention. Disinclined, though Courtsoflaware, to find repeal by necessary implication, this isunavoidable when the provisions of the two enactments are irreconcilable, inwhich case the provisions of the earlierenactment mustyieldtothose of 30 the latter. Repealbynecessaryimplicationwasrecentlyexamined bytheFullBench inStavrou &Othersv. Republic*, and no useful purpose would beserved byrepeatingtheprinciplesapproved in that case.Itissufficient tonoticethattheprovisionsofarticle9are wholly irreconcilable with those of the Willsand Succession Law 35 -Cap. 195,governingtherightsofsuccession ofchildrenbom out of wedlock. The two cannot be matched within the same legislative framework. Necessarily, we must infer the legislature *

(1986)3C.L.R.361(FB). 236 1C.L.R. Malachtou v. Armefti Plkls J. intended to replace therelevant statutory provisions of Cap. 195 with those of article 9. Forthereasonsgivenabove, theappeal fails. Itisdismissed with costs. 5 TRIANTAFYLLIDESP.:Ihave hadtheprivilegeandthe benefit of perusing in advance the judgments of my learned brother Judges dismissing this appeal and broadly speaking I am in agreement with suchoutcome. Ishall not repeat all over again the facts of this case which are 10 adequately stated intheaforementioned judgments. I wish to put on record that in view of the preamble to, and Article 1of, the"EuropeanConventionontheLegal Statusof the Children Bom out of Wedlock", which was ratified by the Convention on the Legal Status of the Children Bom out of 15 Wedlock (Ratification) Law, 1979 (Law 50/79). I was, atfirst, inclinedtothinkthatthesaid Conventionisnotself-executing and, consequently,itsratification by meansof Law50/79didnotresult in vesting it with «superior force to any municipal law» as envisaged by Article 169.3 of the Constitution,because, in my 20 opinion, the said Article 169.3 should not be treated as being - applicable.to treaties, conventions οχinternational agreements which are not self-executing. In view, however, of section 4 of Law 50/79, which provides that the Supreme Court makes Rules of Court regulating the 25 procedure in any case coming within such Law -and, of course, comingwithintheConventionratified by it-1have eventually,and with admittedly considerable reluctance,reached theconclusion that inso far, atleast, as isconcernedArticle 9 of theConvention, which is applicable in the present case, the Legislature has 30 proceeded to ratify the Convention on the basis that it is selfexecuting;andmyreasonsfor treatingArticle 9of theConvention as notbeingself-executing arenotsostrongastopreventmefrom agreeing withtheLegislature thatitisself-executing (andsee,also, InreSusanneAnnander,

(1983)1C.L.R.619, 631). 237 TriantafyUldes P. Malachtou v.Armefti

(1987)I have to hold, therefore, that Article 9 of the Convention in question has, by virtue of its ratification, been vested with ''superiorforcetoanymunicipallaw'',inthesenseofArticle 169.3 of the Constitution, and, consequently, it supersedes, inter alia, anyprovisionsintheWillsandSuccessionLaw.Cap.195andinthe 5 IllegitimateChildrenLaw,Cap.278,whichareincompatiblewithit. Iwould like to stress that Law 50/79 did not amend or repeal, expresslyorimpliedly,theaforementioned provisionsofCap. 195 and Cap. 278, but by ratifying the Convention in question ithas 10 vested, inter alia, Article 9 of the Convention with superior force enabling it to supersede such provisions in so far as they are incompatible withthesaidArticle9. For the foregoing reasons Ihave reached the conclusion that thisappealshouldbedismissed;anditisfairthatallthecostsofthe 15 parties at the trial and in this appeal should be borne out of the estateofwhichtheappellantisthe administratrix. A LOIZOU J.: The factual background and the relevant provisions of the European Convention on the Legal Status of Children Bom out ofWedlock asintroduced inour Legislation by 20 ratifying LawNo.50 of 1979,have been extensively covered by and set out in full inthejudgment of StylianidesJ., just delivered and I consider itsuperfluous torepeat them here myself. OnthewholeIalsoagree withhisapproach and withthatofthe PresidentofthisCourt,bothastotheresultarrivedataswellasthe 25 orderastocoststobe made inthese proceedings. Iwould like,however, toadda word ortwoasIfeel compelled by reason on having myself chaired the Commission set up by Government to examine and advise as to the desirability of the ratification or not of this Convention. I must say that the 30 conclusions arrived at by the said Commission were unanimous though there existed atthetimea divergence of opinion asto the mode by which its provisions could be given effect and render individual rights actionable at the instance of the individual. It appears that the course adopted was that of introducing into the 35 238 1 C.L.R. Malachtouv.Armefti A. Lolzou J. provisionsoftheRatifying Law,Section 4thereof soastoconvert the international obligations undertaken by the State into selfexecutive rights and give effect to its provisions. Indeed the measureswhichaStatehad totake inordertoensure conformity 5 ofitsLawswiththeprovisionsoftheConvention wereleftto each State to decide upon and to notify the Secretary General of the CouncilofEuropeofsuchmeasurestakenforthatpurpose(Article 1). The only limitation that was imposed on a Contracting State wasthatitshouldconverttheserightsintoindividualrights.Thisis 10 sostated inthe Explanatory ReportoftheConvention whichisan aidtoits interpretation. Cyprus has chosen to include Section 4 of the Ratifying Law empowering the Supreme Court to issue rules governing the practice and procedure of the Courts under the provisionsof that 15 Lawand inparticulartheprocedure tobefollowed before themin anycasebyvirtueofthesaidlawandthepayment offees. Section 4, goes further and by itsproviso provides that untilsuch rulesof procedure are issued allmatters, the procedure andthe payment of fees will be governed mutatis mutandis by the Rules in force 20 theretofore. The position being so, in my judgment Article 9 of the Convention withwhichweare concerned inthisappeal istreated alongsidewiththerestofitsprovisionsasself-executing andforall intents and purposes Law No. 50 of 1979 has rendered it "~~ 25 applicable totheindividualrightssuperseding allotherprovisions— in our Laws which are to the contrary by virtue of Article 169, paragraph 3 ofthe Constitution. Before concluding,Iwouldliketoobservethatwherelegislative provisionsindomestic legislation areaffected bya Convention,it 30 will be very helpful to have, such provisions thereby affected, amended andbroughtintolinewiththeConvention foranyone to findupon lookinguptherelevantheadingoftheLawratherthan to have every time to go through the numerous Conventions ratified in order to ascertain whether and to what extent any 35 particular statutory provision has been affected by such ratification. 239 Malachtouv. Armefti

(1987)LORIS J.;The presentappeal isdirectedagainsttherulingofthe Full District Court of Limassol on a preliminary point raised in LimassolActionNo.3107/82wherebyitwasheldthatachild bom out of wedlock has the samerightsof succession on the estateof his father and or member of his father's family, as if it had been 5 bom in wedlock, pursuant to the provisions of Article 9 of the European Convention on thelegal status ofthe children bom out ofwedlock, ratified by our Law50/

1. Havingconsidered the elaborate rulingofthelearned President of the Court below, in the light of the submissions before us by 10 learned counsel onboth sides,Iholdtheviewthattherulingofthe Court of first instance should be upheld and the present appeal should be dismissed for the following reasons: The House of Representatives by enacting Law 50/79 ratified the Convention inquestion turningsame, or atleastsomuch of it 15 asitisself-executing, into partand parcel of our domestic Law. It is abundantly clear to my mind that Article 9 of the Convention, which is the subject-matter of the present proceedings is self-executing; in clear and unequivocal words statesthat: «Achild bom out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member ofitsfather's ormother'sfamily asifithadbeen bom in wedlock.» The Convention aforesaid, concluded in accordance with the 25 provisions of Article 169 of our Constitution, was ratified by our Law 50/79 which was promulgated in the Official Gazette of the Republicon 1.6.
2. Asenvisaged by Article 169.3 of our Constitution conventions concluded in accordance withthe provisions of Article 169 shall 30 have, as from their publication in the Official Gazette of the Republic, superiorforcetoanyMunicipalLaw. Therefore,Article9oftheConventionhassuperiorforcetoand 240 20 1 C.L.R. Malachtou v.Armefti Lorls J- supersedes provisions to the contrary inthe domestic Law under consideration, notably the Wills andSuccessionLaw, Cap.
3. For all the above reasons I would dismiss the present appeal; coststo be paid oiit of theestate. 5 TRIANTAFYLLIDES P.: In the result the appeal is dismissed unanimously for the various different reasons given in the judgmentsjustdeliveredandthecostsofallpartiesbothatthetrial andonappealare tobe paid out of theestate. Appealdismissed. Coststobe paid outoftheestate. 0 241