Ordinary meaning or literal interpretation

As stated in the Vienna Convention on the Law of Treaties, a treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms in their context and in the light of its object and purpose. In a strict sense, that means literal interpretation of the text. The European Court of Human Rights has on occasion referred to the ordinary meaning of words when interpreting the provisions of the Convention, although not always so obviously and literal interpretation has not always been the decisive method.

Ost & van de Kerchove, among others, consider that the approach of the European Court of Human Rights to literal interpretation has varied from case to case, being sometimes the decisive principle of interpretation but remaining on occasion in the background as the Court has given more weight to other factors such as the spirit of

471 Senden 2011, p. 390. In the view of Senden, an interpretation method is a technique that clarifies which substantive argument has been used in order to support a specific reasoning and which helps the judge to objectify its reasoning. An interpretative principle serves as an objective or aim that can be taken into account when interpreting a provision with the help of an interpretation method. (Ibid.) However, The European Court of Human Rights does not appear to clearly distinguish methods and principles from one another, but rather refers to the various principles by using specific denominations.

the Convention.⁴⁷² The Court is, nevertheless, bound by the text of the Convention in that it could hardly “write” new rights into the Convention.⁴⁷³ The Court has referred to the ordinary meaning of words in various cases, using also other expressions such as “sufficiently clear”, “normal”, “evident” and “natural”.

In the case of Johnston and Others v. Ireland, for example, the Court explicitly referred to the wording of Article 31, paragraph 1, of the Vienna Convention in assessing whether the “right to marry” under Article 12 could be understood as including the

“right to divorce”. In the Court’s words, ”in order to determine whether the applicants can derive a right to divorce from Article 12, the Court will seek to ascertain the or-dinary meaning to be given to the terms of this provision in their context and in the light of its object and purpose”. Further, “the Court agrees with the Commission that the ordinary meaning of the words “right to marry” is clear, in the sense that they cover the formation of marital relationship but not their dissolution. […]”⁴⁷⁴. In that case, the interpretative situation was relatively simple. The wording of Article 12 does not explicitly refer to the right to divorce. Instead, the provision may raise other questions in the light of national law. The provision speaks of the right of men and women and limits the right to marry by linking it to national laws governing the exercise of that right. The scope of the provision has proven to be particularly problematic with regard to the right of transsexuals to marry someone of the sex opposite to their re-assigned gender. In the case of Rees v. the United Kingdom, the Court stated as follows:

In the Court’s opinion, the right to marry guaranteed by Article 12 (art. 12) refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 (art. 12) is mainly concerned to protect marriage as the basis of the family.

Furthermore, Article 12 (art. 12) lays down that the exercise of this right shall be subject to the national laws of the Contracting States. The limitations thereby intro-duced must not restrict or reduce the right in such a way or to such an extent that the

472 Ost & van de Kerchove 1989, p. 263 and 264.

473 Grewe points out that in this respect, national courts interpreting constitutions have more flex-ibility than the European Court of Human Rights. For example in Germany, judges have shown some willingness to recognise rights not explicitly spelled out in the Constitution. (Grewe 1998, p. 227)

474 In the Court’s words, ”in order to determine whether the applicants can derive a right to divorce from Article 12, the Court will seek to ascertain the ordinary meaning to be given to the terms of this provision in their context and in the light of its object and purpose”. Further, “the Court agrees with the Commission that the ordinary meaning of the words “right to marry” is clear, in the sense that they cover the formation of marital relationship but not their dissolution. […]”

Johnston and Others v. Ireland, plenary judgment of 18 December 1986, Series A 112, §§ 51 and 52.

very essence of the right is impaired. However, the legal impediment in the United Kingdom on the marriage of persons who are not of the opposite biological sex cannot be said to have an effect of this kind.⁴⁷⁵

That strictly literal interpretation has been confirmed in later case law⁴⁷⁶. Consider-ing the strongly affirmative nature of that reasonConsider-ing, it is persuasive as such and gives the reader legal foreseeability. However, some developments in the legal situation and interpretation have taken place since the Rees and Cossey judgments. In the case of Christine Goodwin v. the United Kingdom, the Court stated as follows:

It is true that the first sentence refers in express terms to the right of a man and woman to marry. The Court is not persuaded that at the date of this case it can still be assumed that these terms must refer to a determination of gender by purely biological criteria (as held by Ormrod J. in the case of Corbett v. Corbett, paragraph 21 above). There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The Court has found above, under Article 8 of the Convention, that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual.

There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities within Contracting States, the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the as-sumption by the transsexual of the social role of the assigned gender. […] ⁴⁷⁷

In this fragment of discourse, the Court uses general practical reasoning to convince the audience of a changed situation, meriting a different interpretation of the Con-vention provisions. The relevant linguistic elements include expressions such as “not persuaded that at the date of this case it can still be assumed”, “there have been major social changes” and “dramatic changes brought about developments in medicine”. Thus,

475 Rees v. the United Kingdom, judgment of 17 October 1986, Series A 106, §§ 49 and 50.

476 See Cossey v. the United Kingdom, judgment of 27 September 1990, Series A 184, §§ 44 to 46.

The Court further stated that “although some Contracting States would now regard as valid a marriage between a person in Miss Cossey’s situation and a man, the developments which have occurred to date (see paragraph 40 above) cannot be said to evidence any general abandonment of the traditional concept of marriage. In these circumstances, the Court does not consider that it is open to it to take a new approach to the interpretation of Article 12 (art. 12) on the point at issue.” (§ 46) Thus, the Court remained with the strict interpretation of Article 12 even though there had been developments in the legal conceptions in the States parties to the Convention.

477 Christine Goodwin v. the United Kingdom, Grand Chamber judgment of 11 July 2002, Reports of Judgments and Decisions 2002-VI, § 100.

the principle of ordinary meaning, together with context, may not as such be fruit-ful for the purpose of analysing possible transition of the legal culture of protecting fundamental rights particularly where the conceptions in the different legal systems as to the meaning of the term are rather similar, but it is necessary to resort to a wider context and external elements of argumentation, even sources of other sciences. How-ever, when read together with the national laws relating to the exercise of the right, there could be evolution of the legal situation changing the meaning. The transition of the legal culture in such cases would take place more on the basis of national leg-islation than through the interpretation of the Convention. As regards possible right of persons of the same sex to marry, according to national laws, the Court has not for the time being gone as far as reading the Convention provision to guarantee such a positive obligation for the States, and it would go beyond the wording of the provision.

However, it would be interesting to see how the Court would interpret it in situation where national laws permitted it. The situation would, however, then be rather linked to other means of interpretation.

Matscher points out that insofar as the Convention contains ordinary terminology, it is not problematic to interpret the provisions rather freely, in accordance with the ordinary meaning of words. However, the situation is different with regard to legal terminology. He raises the question of whether such terminology should be interpreted in accordance with the meaning it is given in the national legal system concerned, or in national legal systems collectively, or whether it should be interpreted autonomously.⁴⁷⁸ An example of legal terminology would be, for example, the concept of “possessions”

in Protocol No. 1 to the Convention, which may raise questions such as the personal or material scope of the concept⁴⁷⁹. In such cases, a literal interpretation may always not be sufficient to decide the exact meaning of the provision but other principles of interpretation may be called for, such as the margin of appreciation. The Court may also be faced with the weighing of conflicting interests, which may be given priority even if a strict interpretation of the first part of the provision – “No one shall be deprived of his possessions” – is accepted as such. For example, in the case of Lithgow and Others v. the United Kingdom, the interpretation of the provision in the light of the ordinary meaning of words was more complicated, and while sharing the applicants’ view as to the grammatical meaning of the provision to some extent, the Court did not agree

478 Matscher 1998, p. 26.

479 See e.g. Marckx v. Belgium, judgment of 13 June 1979, Series A 31, in which the Court decided whether illegitimate children could enjoy less extensive rights than legitimate ones under national laws, and Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A 52, in which the Court considered a variety of intangible assets as belonging to the concept of possessions, as well as Tre Traktörer Aktiebolag v. Sweden, judgment of 7 July 1989, Series A 159, in which the Court found that even a licence to serve alcoholic beverages fell within the concept as one of the principal conditions for carrying on business.

in all respects but resorted to the travaux préparatoires as a supplementary means of interpretation as mentioned in the foregoing.⁴⁸⁰ The Court accorded the Government a wide margin of appreciation in determining when a deprivation of possessions should occur. Thus, the more the Court departs from literal interpretation and gives room for other principles of interpretation, the more there is transition of legal culture taking place. The supplementary means of interpretation are treated below.

3.4.2 Context

As regards the additional criterion of context in Article 31, paragraph 1, of the Vienna Convention on the Law of Treaties, there are different types of context that may be identified, including the other provisions of the article in question, other articles of the Convention, the Convention as a whole including its Protocols, as well as other international instruments or even case law of other judicial bodies.⁴⁸¹ It appears from the foregoing reference to the protection of possessions, for example, how the Court takes into account other provisions of the same article when interpreting the situation.

In the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom, for example, the Court has referred to other articles of the Convention as follows:

“ According to the Court’s established case-law, Article 14 (art. 14) complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 (art. 14) does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous -, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter [...]”

It did not find a violation of Article 8 taken alone, but considered that there had been discrimination in that case and thus found a violation of Article 14 taken together with

480 Lithgow and Others v. the United Kingdom, plenary judgment of 8 July 1986, Series A 102, §§ 114 to 119. The case concerned the interpretation of Article 1(1) of Protocol 1, the second sentence of which reads “No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

There was no disagreement on the meaning of the words “no one”, but the scope and contents of the general principles of international law was put into question. The Court found, with support from the preparatory work, that they were only meant to cover non-nationals and did not apply to the taking of property from the State’s own nationals, whereas nationals would be covered by the provisions of national law.

481 Ost & van de Kerchove 1989, p.271.

Article 8.⁴⁸² One of the most typical cases where two Convention articles are indeed applied together are those of discrimination under Article 14 of the Convention, as that provision cannot be applied alone. According to White & Ovey, however, the question of context has most often become relevant in the case of interpretation of some provisions of the additional Protocols, which have not been entirely ratified by the State party concerned.⁴⁸³ In the case of Maaouia v. France, the Court used a con-text encompassing Article 6 and Protocol No. 7, to establish the meaning of “criminal charge” and thus the applicability of Article 6, paragraph 1, as follows:

The Court points out that the provisions of the Convention must be construed in the light of the entire Convention system, including the Protocols. In that connection, the Court notes that Article 1 of Protocol No. 7, an instrument that was adopted on 22 November 1984 and which France has ratified, contains procedural guarantees ap-plicable to the expulsion of aliens. In addition, the Court observes that the preamble to that instrument refers to the need to take “further steps to ensure the collective enforcement of certain rights and freedoms by means of the Convention ...”. Taken together, those provisions show that the States were aware that Article 6 § 1 did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere. […] ⁴⁸⁴

Thus, the Court excluded from the scope of criminal charge aspects that were regu-lated by other explicit provisions in Protocol No. 7. In the same judgment, the Court also took into account a wider context, paying attention to the fact that, in general, such orders were not classified as criminal within the member States of the Council of Europe⁴⁸⁵. The Court may also refer to the context in looser terms, as for example in the case of Guzzardi v. Italy in which the Court stated that “without losing sight of the general context of the case, the Court recalls that, in proceedings originating in an individual application, it has to confine its attention, as far as possible, to the issues raised by the concrete case before it”⁴⁸⁶. In that piece of discourse, the Court

482 Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A 94,

§§ 71 and 83. In the case of Rasmussen v. Denmark, the Court applied Article 14 together with Articles 6 and 8, but found no violation (judgment of 28 November 1984, Series A 87, §§ 32 to 34 and 42.

483 See White & Ovey 2010, p. 70.

484 Maaouia v. France, Grand Chamber judgment of 5 October 2000, Reports of Judgments and Decisions 2000-X , § 36. The case concerned the classification of exclusion orders as preventive measures for the purpose of immigration control.

485 The Court noted that ”the domestic legal order’s characterisation of a penalty cannot, by itself, be decisive for determining whether or not the penalty is criminal in nature. Other factors, notably the nature of the penalty concerned, have to be taken into account. (Ibid. § 39)

486 Guzzardi v. Italy, judgment of 6 November 1980, Series A 39, § 88.

does not specify whether it refers to the internal context or a wider external context.

However, the Court has on occasion underlined the importance of adopting an exten-sive approach to the context of interpretation. The European Court of Human Rights has explicitly stated that “the Court must have regard to the fact that the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions”.⁴⁸⁷ Thus, in terms of discourse analysis, the Court refers to the concept of internal context, covering both the text of the Convention and its Protocols, but adopting as wide an approach as possible.

As for the concept of external context, Article 31, paragraph 3 subparagraph (a), of the Vienna Convention on the Law of Treaties has no relevance for the interpretation of the European Convention on Human Rights, but under subparagraph (b), there shall be taken into account, together with the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. As noted in the foregoing, that subparagraph has a connection to the doctrine of precedents applied by the European Court of Human Rights, which is a rather flexible one. The Court has expressed its doctrine of precedents as follows:

“While the Court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved. It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure

“While the Court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases. Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved. It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure