CONCURRING OPINION OF JUDGE MALINVERNI JOINED BY JUDGE KOVLER

(Translation)

I voted together with my colleagues in favour of finding no violation of Article 12 of the Convention. However, I cannot subscribe to some of the arguments set out in the judgment in reaching that conclusion.

1. Thus, I am unable to share the view that “looked at in isolation, the wording of Article 12 might be interpreted so as not to exclude the marriage between two men or two women” (see paragraph 55 of the judgment).

By Article 31 § 1 of the Vienna Conventi on on the Law of Treaties of 23 May 1969 (“the Vienna Convention”) , which lays down the general rule on interpretation of international treaties, “ [ a ] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.

In my view, “the ordinary meaning to be given to the terms of the treaty” in the case of Article 12 cannot be anything other than that of recognising that a man and a woman, that is, persons of opposite sex , have the right to marry. That is also the conclusion I reach on reading Article 12 “in the light of its object and purpose”. Indeed, Article 12 associates the right to marry with the right to found a family.

Article 31 § 3 (b) of the Vienna Convention provides that, as well as the context, “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” must be taken into account.

I do not consider that this provision of the Vienna Convention can be relied on in support of the conclusion set out in paragraph 55 of the judgment. The fact that a number of States, currently six , provide for the possibility for homosexual couples to marry cannot in my opinion be regarded as a “subsequent practice in the application of the treaty” within the meaning of the provision in question.

Literal interpretation, which, according to the Vienna Convention, represents the “general rule of interpretation”, thus precludes Article 12 from being construed as conferring the right to marry on persons of the same sex.

I come to the same conclusion if I interpret Article 12 by reference to other rules of interpretation, although such rules , as is rightly noted in the title of Article 32 of the Vienna Convention, are merely supplementary means of interpretation, and literal interpretation remain s the general rule (Article 31 of the Vienna Convention ).

In accordance with Article 32 of the Vienna Convention, recourse may be had to supplementary means of interpretation, particularly in order to “determine the meaning when the interpretation according to Article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”.

Bearing in mind that supplementary means of interpretation include, as stated in Article 32 of the Vienna Convention, “the preparatory work of the treaty and the circumstances of its conclusion”, I consider that the so-called historical interpretation to which Article 32 of the Vienna Convention refers can only serve to “confirm the meaning resulting from the application of Article 31” (Article 32).

There is therefore no doubt in my mind that Article 12 of the Convention cannot be construed in any other way than as being applicable solely to persons of different sex .

Admittedly, the Convention is a living instrument which must be interpreted in a “contemporary” manner, in the light of present-day conditions (see E.B. v. France [GC], no . 43546/02, § 92, 22 January 2008 , and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, §§ 74 ‑ 75, ECHR 2002-VI). It is also true that there have been major social changes in the institution of marriage since the adoption of the Convention (see Christine Goodwin , cited above, § 100). However, as the Court held in Johnston and Others v. Ireland (18 December 1986, § 53, Series A no . 112), while the Convention must be interpreted in the light of present-day conditions, the Court cannot, by means of an evolutive interpretation, “derive from [it] a right that was not included therein at the outset”.

2. Nor can I accept the following statement :

“ [ r ] egard being had to Article 9 of the Charter ... the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants ’ complaint . ” (paragraph 61 of the judgment)

On the contrary, I consider that Article 12 is inapplicable to persons of the same sex.

Admittedly, in guaranteeing the right to marry, Article 9 of the Charter of Fundamental Rights of the European Union (“the Charter”) deliberately omitted any reference to men and women, since it provides that “ [ t ] he right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights”.

In my opinion, however, no inferences can be drawn from this as regards the interpretation of Article 12 of the Convention .

The C ommentary of the Charter does indeed confirm that the drafters of Article 9 intended it to be broader in scope than the corresponding A rticles in other internationa l treaties . However, it should not be forgotten that A rticle 9 of the Charter guarantees t he right to marry and to found a family “ in accordance with the national laws governing the exercise of these rights ” .

By referring in this way to the relevant domestic legislation, Article 9 of the Charte r simply leaves it to States to decide whether they wish to afford homosexual couples the right to marry . However, as the C ommentary quite rightly points out, “ there is no obstacle to recogni s e same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages ” .

In my view, A rticle 9 of the Charte r should therefore have no bearing on the in terpretation of Ar ticle 12 of the Convention as conferring a right to marry only on persons of different sex .

It is true that the Court has already referred to A rticle 9 of the Charte r in its Christine Goodwin judgment ( cited above, § 100). However, in that case the Court considered whether the fact that domestic law took into account, for the purposes of eligibility for marriage, the sex registered at birth , and not the sex acquired following gender reassignment surgery , was a limitation impairing the very essence of the right to marry . After her ope ration, the applicant lived as a woman and wished to marry a man. The case did not therefore concern marriage between persons of the same sex.