The Right to Marriage according to the Provisions of the Main Legal Instruments of the UN and EU
Abstract
Both in the Universal Declaration of Human Rights (Art. 16) and in the European Convention on Human Rights (Art. 12), the right to marriage is perceived and defined as a fundamental human right, as it was in fact enounced both by jus divinum and by jus naturale. Among other things, from the texts of the legal instruments, of prime importance to the nations of the world, one can note that a marriage can be concluded only between a man and a woman, and only if the following indispensable conditions are met, namely: a) the marriageable age laid down in the national law; b) the mutual consent of the future spouses; c) that the race, nationality or religion of the future spouses are not taken into account. Therefore, a valid marriage is concluded only by the persons of different sex (man and woman), and not by the people of any sex, as the Treaty of Nice (2000) stipulated. In the article, we also highlighted the fact that the right of a man and a woman to have a family is ontologically bound with the marriage. This reality proves in fact, once
more, that the marriage and the family were and remain “two main institutions of the mankind.”
Keywords
the legal instruments; right to marry; the family; the fundamental human rights
References
Bîrsan C.: Convenţia europeană a drepturilor omului. Comentariu pe articole [European Convention on Human Rights. Comments on articles]. 2nd edn. București 2010.
Charrier J.-L., Chiriac A.: Code de la Convention européenne des droits de l’homme. Paris 2008.
Chiriţă R.: Convenţia Europeană a Drepturilor Omului. Comentarii şi explicaţii [The European Convention on Human Rights. Comments and explanations]. 2nd edn. București 2008.
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2016:202:FULL [accessed 7.09.2022].
Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, https://www.ohchr.org/sites/default/files/convention.pdf [accessed 12.09.2022].
Convention on the Elimination of All Forms of Discrimination against Women, https://www.ohchr.org/sites/default/files/cedaw.pdf [accessed 28.09.2022].
Convention on the Nationality of Married Women, https://treaties.un.org/doc/Treaties/1958/08/19580811%2001-34%20AM/Ch_XVI_2p.pdf [accessed 19.08.2022].
Dură N. V.: “Despre caracterul prioritar al normelor dreptului internaţional, privind drepturile şi libertăţile fundamentale ale omului, în raport cu cele ale dreptului naţional [On the priority character of the norms of international law, regarding the fundamental human rights and freedoms, in relation to those of the national law].” National Law Review 7—9 (2018), pp. 54—58.
Dură N. V.: “Drepturile şi libertăţile omului în gândirea juridică europeană. De la Justiniani Institutiones la Tratatul instituind o Constituţie pentru Europa [Human rights and freedoms in European legal thinking. From
Justiniani Institutiones to The Treaty Establishing a Constitution for Europe].” Analele Universităţii Ovidius. Seria: Drept şi Ştiinţe Administrative 1 (2006), pp. 129—151.
Dură N. V.: “General Principles of European Union Legislation Regarding the Legal Protection of Human Rights.” Journal of Danubius Studies and Research III, 2 (2013), pp. 7—14.
Dură N. V.: “Law and Morals. Prolegomena (I).” Acta Universitatis Danubius. Juridica 2 (2011), pp. 158—173.
Dură N. V.: “Law and Morals. Prolegomena (II).” Acta Universitatis Danubius. Juridica 3 (2011), pp. 72—84.
Dură N. V.: “Loi morale, naturelle, source du Droit naturel et de la Morale chrétienne.” In: La morale au crible des religions. Ed. M. Th. Urvoy. Paris 2013, pp. 213—233.
Dură N. V.: “Provisions of International Law on the Parents’ Right to Provide their Children with a Religious Education.” In: The fundamentals of our spirituality. Batumi 2018, pp. 240—248.
Dură N. V.: “ ‘Rights’, ‘Freedoms’ and ‘Principles’ Set Out in the Charter of Fundamental Rights of the EU.” Journal of Danubius Studies and Research VI, 2 (2016), pp. 166—175.
Dură N. V.: “The Fundamental Rights and Liberties of Man in the EU Law.” Dionysiana IV, 1 (2010), pp. 431—464.
Dură N. V.: “The Legal Status of ‘Migrants’ according to the European Union Legislation.” Ecumeny and Law 9/2 (2021), pp. 105—123.
Dură N. V.: “The Right and its Nature in the Perception of the Roman Jurisprudence and of the Great Religions of the Antiquity.” In: Rethinking Social Action. Core Values. Eds. A. Sandu et al. Bologna 2015, pp. 517—524.
Dură N. V.: “The Right to the Guarantee and Ensurance of Religious Freedom from ‘The Statute for Religious Freedom’ of 1786 to the ‘Declarations’ Issued during the UN Session of 2019.” Bulletin of the Georgian National Academy of Sciences 1 (2021), pp. 117—127.
Dură N. V.: “The Universal Declaration of Human Rights.” In: 10th Edition of International Conference The European Integration — Realities and Perspectives. Galati 2015, pp. 240—247.
Dură N. V.: “Thinking of Some Fathers of the Ecumenical Church on the Law.” Christian Researches VI (2011), pp. 230—245.
Dură N. V., Kroczek P., Mititelu C.: Marriage from the Roman Catholic and Orthodox points of view. Kraków 2017.
Dură N. V., Mititelu C.: “Human rights and their universality. From the rights of the ‘individual’ and of the ‘citizen’ to ‘human’ rights.” In: Exploration, Education and Progress in the third Millennium, I, 4. Galaţi 2012, pp. 103—
Dură N. V., Mititelu C.: “The human fundamental rights and liberties in the Text of some Declarations of the Council of Europe.” In: Exploration, Education and Progress in the Third Millennium, I, 5. Bucharest 2015, pp. 7—22.
Dură N. V., Mititelu C.: Legislaţia canonică şi instituţiile juridico-canonice europene, din primul mileniu [Canon law and canonical legal institutions in Europe in the first millennium]. București 2014.
Dură N. V., Petrescu T.: “Children’s Rights. Provisions of Certain International Conventions.” Ecumeny and Law 3 (2015), pp. 127—149.
European Convention on Human Rights, https://www.echr.coe.int/documents/convention_eng.pdf [accessed 17.09.2022].
Main International Instruments on Human Rights to which Romania is a party, vol. I. 6th edn. Bucharest 2003.
Marin M.: “Human Rights Between Abuse And Non-Discrimination.” Managementul Intercultural XVI, 2 (2014), pp. 209—213.
Mititelu C.: “About the Right to Same-Sex Marriage. Some Considerations and Interpretations from the Constitutional Law Perspective.” Logos Universality Mentality Education Novelty: Law 7/2 (2019), pp. 80—88.
Mititelu C.: “Provisions of Principle with European Constitutional Value on the ‘Person’s’ Right to Freedom and Security.” Journal of Danubius Studies and Research VI, 2 (2016), pp. 158—165.
Mititelu C.: “The Children’s Rights. Regulations and Rules of International Law.” Ecumeny and Law 3 (2015), pp. 151—169.
Mititelu C.: “The European Convention on Human Rights.” In: 10th Edition of International Conference The European Integration — Realities and Perspectives. Galaţi 2015, pp. 243—252.
Protocol no. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, https://www.echr.coe.int/Documents/Library_Collection_P7postP11_ETS117E_ENG.pdf [accessed 12.09.2022].
The Institutes of Gaius, https://thelatinlibrary.com/law/gaius1.html [accessed 19.09.2022].
The Institutes of Justinian, https://www.gutenberg.org/files/5983/5983-h/5983-h.htm#link2H_4_0011 [accessed 10.09.2022].
Tratate ale Consiliului Europei. Texte esenţiale [Council of Europe Treaties. Essential texts]. Bucharest 2002.
Universal Declaration of Human Rights, https://www.un.org/en/about-us/universal-declaration-of-human-rights [accessed 1.08.2022].
Ovidius University of Constanţa Romania
https://orcid.org/0000-0001-6489-9252
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
The Copyright Owners of the submitted texts grant the Reader the right to use the pdf documents under the provisions of the Creative Commons 4.0 International License: Attribution-Share-Alike (CC BY SA). The user can copy and redistribute the material in any medium or format and remix, transform, and build upon the material for any purpose.
1. License
The University of Silesia Press provides immediate open access to journal’s content under the Creative Commons BY-SA 4.0 license (http://creativecommons.org/licenses/by-sa/4.0/). Authors who publish with this journal retain all copyrights and agree to the terms of the above-mentioned CC BY-SA 4.0 license.
2. Author’s Warranties
The author warrants that the article is original, written by stated author/s, has not been published before, contains no unlawful statements, does not infringe the rights of others, is subject to copyright that is vested exclusively in the author and free of any third party rights, and that any necessary written permissions to quote from other sources have been obtained by the author/s.
If the article contains illustrative material (drawings, photos, graphs, maps), the author declares that the said works are of his authorship, they do not infringe the rights of the third party (including personal rights, i.a. the authorization to reproduce physical likeness) and the author holds exclusive proprietary copyrights. The author publishes the above works as part of the article under the licence "Creative Commons Attribution-ShareAlike 4.0 International".
ATTENTION! When the legal situation of the illustrative material has not been determined and the necessary consent has not been granted by the proprietary copyrights holders, the submitted material will not be accepted for editorial process. At the same time the author takes full responsibility for providing false data (this also regards covering the costs incurred by the University of Silesia Press and financial claims of the third party).
3. User Rights
Under the CC BY-SA 4.0 license, the users are free to share (copy, distribute and transmit the contribution) and adapt (remix, transform, and build upon the material) the article for any purpose, provided they attribute the contribution in the manner specified by the author or licensor.
4. Co-Authorship
If the article was prepared jointly with other authors, the signatory of this form warrants that he/she has been authorized by all co-authors to sign this agreement on their behalf, and agrees to inform his/her co-authors of the terms of this agreement.
I hereby declare that in the event of withdrawal of the text from the publishing process or submitting it to another publisher without agreement from the editorial office, I agree to cover all costs incurred by the University of Silesia in connection with my application.