The Evolutionary Interpretation of Treaties and the Right to Marry: Why Article 23(2) of the ICCPR Should Be Re-Interpreted to Encompass Same-Sex Marriage

Abstract

The United Nations Human Rights Committee (HRC) has not considered the application of the International Covenant on Civil and Political Rights (ICCPR) to same-sex marriage since providing their views in 2002 in response to an individual communication brought by two lesbian couples about New Zealand’s Marriage Act. Since 2002, the pace of reform globally has been increasing, with numerous countries now allowing same-sex couples to marry — in many cases in response to court decisions. This has led a number of commentators to opine that at some time in the future, the HRC will depart from the views it expressed in 2002 and adopt an interpretation of the ICCPR which embraces a right to marry a person of the same sex. This Article takes a doctrinal approach to that issue and goes to its crux. It applies the general rule of treaty interpretation set out in Article 31 of the Vienna Convention on the Interpretation of Treaties and argues that (i) the right to marry in Article 23(2) of the ICCPR should be given an evolutionary, rather than static interpretation; and (ii) a contemporary evolutionary interpretation of the right to marry should encompass a right to marry a person of the same sex.