CHAPTER 7
PLURILINGUAL TREATIES: ASPECTS OF INTERPRETATION
Paul Eden*
I. INTRODUCTION
As the first and second indents of the preamble to the Vienna Convention on the Law
of Treaties (VCLT) acknowledge, treaties have had a fundamental role in the history
of international relations and they are also of ever-increasing importance ‘as a source
of international law and as a means of developing peaceful co-operation among
nations, whatever their constitutional and social systems’.1 In 2000 the then SecretaryGeneral of the United Nations, Kofi Annan, noted that ‘[s]upport for the rule of law
would be enhanced if countries signed and ratified international treaties and
conventions’.2
One of the key features of the practice of the United Nations and other
international bodies tasked with supporting the rule of international law through the
adoption of treaties (primarily multilateral) on a range of issues is the plurilingual
nature of the instruments concluded. The Charter of the United Nations, for example,
was authenticated in five languages—Chinese, French, Russian, English and
Spanish3—and this practice has increasingly been applied to the multilateral treaties
negotiated under the auspices of the specialized agencies of the United Nations.
Given the widespread practice of authenticating treaties in two or more
languages4 and the importance of multilateral treaties both as a source of international
law and as a means of encouraging peaceful co-operation among nations, it is
surprising that more attention is not devoted to the issue of the interpretation of
plurilingual treaties.5 Due to the breadth of the subject, this chapter can only offer a
brief introduction to some of the key issues involved including the historical
background, the practice of the Permanent Court of International Justice (PCIJ) and
International Court of Justice (ICJ) prior to the adoption of the VCLT, the provisions
*
Lecturer in Law, University of Sussex.
The Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January
1980) 1155 UNTS 331 (VCLT).
2
KA Annan, We the Peoples: The Role of the United Nations in the 21st Century (United Nations, New
York, 2000) 69.
3
The Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1
UNTS 16 art 111 (UN Charter).
4
Authentication is the process of establishing the definitive text of a treaty. The modern practice of
drafting multilateral treaties in more than one authentic language has necessitated drawing a distinction
between the process of adoption (article 9 VCLT) and authentication (article 10 VCLT). See
International Law Commission (ILC), ‘Report of the International Law Commission on the work of its
Eighteenth Session’ (4 May-19 July 1966) [1966] Yearbook of the ILC Vol II ‘Draft Articles on the
Law of Treaties: with commentaries’ 187, 195 (UN Doc A/CN.4/191) where the ILC noted that ‘the
text of a treaty may be “adopted” in one language but “authenticated” in two or more languages’. See
also A Aust, Modern Treaty Law and Practice (2nd edn, CUP, Cambridge, 2007) ch 6.
5
See, for example, I Brownlie, Principles of Public International Law (7th edn, OUP, Oxford, 2008)
and P Reuter, Introduction au droit des traités (3rd edn, Presses Universitaires de France, Paris, 1995)
neither of whom make any reference to the issue of the interpretation of plurilingual treaties. See also
RK Gardiner, Treaty Interpretation (OUP, Oxford, 2008) 353 ‘From the fact that many judgments and
awards of international courts and tribunals only mention articles 31 and 32.... it might be concluded
that article 33 [VCLT] is the poor relation of the set’.
1
2
of the VCLT dealing with the interpretation of treaties authenticated in two or more
languages (article 33) and the influence of these provisions on the subsequent practice
of the ICJ particularly in the LaGrand case.6
II. HISTORICAL BACKGROUND
A. Introduction
As Shelton notes, ‘[u]ntil the twentieth century, treaties were generally written in the
lingua franca of the period and place’.7 For many centuries the lingua franca of
western European treaty making was Latin.8 During the 17thand 18th centuries French
succeeded Latin as the pre-eminent diplomatic language.9 It is worth noting that
article 120 of the Final Act of Congress of Vienna10 states that:
The French language having been exclusively employed in all the copies of the
present Treaty, it is declared by the powers that have concurred in this Act, that
the use made of that language shall not be construed into a precedent for the
future; every power, therefore, reserves to itself the adoption in future
Negotiations and Conventions, the language it has heretofore employed in its
diplomatic relations; and this Treaty shall not be cited as a precedent contrary
to the established practice.11
Given the context and timing of the Congress of Vienna—the Final Act was signed
nine days before Napoleon’s final defeat at the Battle of Waterloo on 18 June 1815—
the ambivalence expressed towards the use of French in the Final Act was
understandable. However, notwithstanding the provisions of article 120 of the Final
Act of the Congress of Vienna, all the major multilateral treaties of the 19th century12
and early 20thcentury13 were drafted and signed in French.
6
Case Concerning the Vienna Convention on Consular Relations (Germany v USA) (Judgment) [2001]
ICJ Rep 466 (LaGrand).
7
D Shelton, ‘Reconcilable Differences? The Interpretation of Multilingual Treaties’ (1996–1997) 20
Hastings International and Comparative LR 611, 613–614. See also M Tabory, Multilingualism in
International Law and Institutions (Sijthoff & Noordhoff, Alphen aan den Rijn, 1980) 4.
8
The Treaties of Peace, for example, concluded at Osnabrück (14(24) October 1648) 1 CTS 119 and
Münster (14(24) October 1648) 1 CTS 271 (known collectively as the Peace of Westphalia) were
drafted and signed in Latin. See further L Winkel, ‘The Peace Treaties of Westphalia as an instance of
the reception of Roman Law’ in R Lesaffer (ed), Peace treaties and international law in European
history: from the late Middle Ages to World War One (CUP, Cambridge, 2004) 222.
9
J Hardy, ‘The Interpretation of Plurilingual Treaties by International Courts and Tribunals’(1961) 37
BYIL 72. See also A Ostrower, Language, Law, and Diplomacy : A Study of Linguistic Diversity In
Official International Relations and International Law (University of Pennsylvania Press, Philadelphia,
1965) vol 1, 286.
10
The General Treaty of the Final Act of the Congress at Vienna (adopted 9 June 1815) 64 CTS 453.
11
The translation of art 120 is taken from the copy of the General Treaty signed in Congress at Vienna
presented to the House by Lord Castlereagh. See Hansard vol 32 col 113 (2 February 1816).
12
See, for example, the Treaty between Austria-Hungary, France, Germany, Great Britain, Italy, Russia
and Turkey for the Settlement of Affairs in the East (adopted 13 July 1878, ratifications exchanged 3
August 1878) 153 CTS 171 (Congress of Berlin). See also the Convention for the Amelioration of the
Condition of the Wounded in Armies in the Field (adopted 22 August 1864, entered into force 22 June
1865) 129 CTS 361 (Geneva Convention of 22 August 1864), the Declaration Renouncing the Use in
Time of War of Explosive Projectiles Under 400 Grammes Weight (adopted 29 November (11
December) 1868) 138 CTS 297 (Declaration of St Petersburg), the International Convention for the
Pacific Settlement of Disputes (adopted 29 July 1899, entered into force 4 September 1900) 187 CTS
3
B. The Treaty of Versailles
In contrast to the general practice of the 19th and early 20th centuries, article 440 of the
Treaty of Versailles states that ‘the English and French texts are both authentic’.14 As
Millar notes:
Much as the French wished otherwise, the British and American participation
in the War and in its settlement and the presence of President Wilson in Paris
made it inevitable that the English language should be an official language of
the Treaty of Peace.15
The French delegation resisted the decision because it meant that it made English and
French the official languages of the League of Nations and the PCIJ. Millar thought
that the decision ‘perhaps to some extent marked the passing of French as the chief
medium of diplomatic intercourse’16 and this development was criticized both by
French writers17 and others.
In 1924 James Brown Scott—the Honorary Editor in Chief of the American
Journal of International Law at the time—published a book (in French) asserting the
primacy of French as the ‘official or authentic’ language of international law.18
Hudson challenged Scott’s views regarding the supremacy of French by reference to
the practice of States concluding bipartite treaties.19 Hudson tentatively concluded
that there was no rule of law giving primacy to any one language in the conclusion of
bipartite treaties but that, in general, parties concluded treaties in the language of one
or both of the parties. Where a language was employed that was not one of either of
the parties to the treaty ‘regional differences exist: China and Japan tend to employ
English, while Hungary, Poland and Italy tend to employ French’.20
The problems with Hudson’s tentative conclusions are twofold. First, his own
research suggested that there was evidence of a practice of employing French as the
official or authentic language of bilateral treaties by three non-French speaking
European States. Secondly, Hudson failed to consider the practice of States in relation
to multilateral treaties. Many open multilateral treaties concluded between 1919 and
410 (Hague Convention I), the International Convention with Respect to the Laws and Customs of War
on Land and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 29
July 1899, entered into force 4 September 1900) 187 CTS 429 (Hague Convention II) and the
International Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva
Convention of 22 August 1864 (adopted 29 July 1899, entered into force 4 September 1900) 187 CTS
443 (Hague Convention III).
13
See, for example, the International Convention respecting the Laws and Customs of War on Land
and its annex: Regulations concerning the Laws and Customs of War on Land (adopted 18 October
1907, entered into force 26 January 1910) (Hague Convention IV).
14
The Treaty of Peace with Germany (adopted 28 June 1919, entered into force 10 January 1920) 225
CTS 188 (English Text) (Treaty of Versailles).
15
DH Millar, The Drafting of the Covenant (GP Putnam & Sons, New York, 1928) vol 1, 505
16
ibid.
17
See, for example, J Basdevant, ‘La conclusion et la rédaction des traités et des instruments
diplomatiques autres que les traités’ (1926) 15 Recueil des Cours de l’Académie de Droit International
535, 562.
18
JB Scott, Le français, langue diplomatique moderne (A Pedone, Paris, 1924).
19
MO Hudson, ‘Languages Used in Treaties’ (1932) 26 AJIL 368.
20
ibid 372.
4
1932 adopted French as the sole authentic language of the treaty in subjects as diverse
as international humanitarian law21 and aviation.22
The 1924 International Convention for the Unification of Certain Rules of
Law relating to Bills of Lading (the Hague Rules)23 is significant in having been
adopted in both French and English.24 There is a widespread belief that only the
French version of the Hague Rules is authentic25 but one reason for the adoption of
English as an official language was the fact that, according to the Lloyds Register of
Shipping for 1921–1922, at least 60 per cent of the gross tonnage of ocean going
vessels of 100 tonnes or more was owned by English speaking nations.26
C. The International Conferences of American States 1889–1940
The practice of the International Conferences of American States between 1889 and
1940 is illustrative of the rise of plurilingualism in treaty-making. The Plan of
Arbitration discussed at the first International Conference of American States—held
in Washington DC between October 1889 and April 1890—was drafted in English,
Spanish and Portuguese.27 However the rather differently worded 1903 Treaty on
Arbitration concluded at the second International Conference of American States—
held in Mexico City between October 1901 and January 1902—was only concluded in
Spanish28 but all the participants were Spanish speaking countries. By contrast, the
Convention on Literary and Artistic Copyrights adopted at the same Conference was
concluded in Spanish, English and French.29 The practice of plurilingual treaty
making was continued at subsequent International Conferences of American States
including the seventh International Conference of American States—held in
Montevideo in December 1933—where the Convention on the Rights and Duties of
States was concluded in Spanish, English, Portuguese and French.30
21
See, for example, the Convention for the Amelioration of the Condition of the Wounded and Sick in
Armies in the Field (adopted 27 July 1929, entered into force 19 June 1931) 118 LNTS 303 and the
Convention relative to the Treatment of Prisoners of War (adopted 27 July 1929, entered into force 19
June 1931) 118 LNTS 343.
22
See the Convention for the Unification of certain Rules relating to International Carriage by Air
(adopted 12 October 1929, entered into force 13 February 1933) 137 UNTS 11 (Warsaw Convention)
art 36.
23
The International Convention for the Unification of Certain Rules of Law relating to Bills of Lading
with Protocol of Signature (adopted 25 August 1924, entered into force 2 June 1931) 120 LNTS 155
(Hague Rules).
24
The Convention itself is silent on this point but the League of Nations Treaty Series states that
‘French and English official texts communicated by the Belgian Minister for Foreign Affairs’ (120
LNTS 155, 156 (in French) 157 (in English).
25
See eg Jindal Iron & Steel Co Ltd v Islamic Solidarity Shipping Co Jordan Inc [2004] UKHL 49,
[2005] 1 WLR 1363 [18] ‘The French text is the authoritative language of the Hague Rules’ (Lord
Bingham). It is however significant that the Hague Rules were originally drafted in French.
26
As quoted in MF Sturley (ed), The Legislative History of the Carriage of Goods by Sea Act and the
Travaux Préparatoires of the Hague Rules (Fred B Rothman & Co, Littleton, Colorado, 1990) vol 2,
554.
27
See JS Brown (ed), The International Conferences of American States 1889–1928 (OUP, New York,
1931) 43.
28
The General Treaty of Arbitration (adopted 29 January 1902, entered into force 31 January 1903)
190 CTS 432.
29
The Convention on Literary and Artistic Copyrights (adopted 27 January 1902, entered into force 22
February 1903) 190 CTS 391.
30
The Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force
26 December 1934) 165 LNTS 19.
5
D. Conclusion
The historical background surveyed above suggests that within western Europe there
was a tendency to accord French the status of an official language in the drafting of
multilateral treaties in the 19th and early 20th centuries but that other more
multilingual approaches can also be found notably in the practice of the International
Conferences of American States. The authentication of the Charter of the United
Nations in five languages—Chinese, French, Russian, English and Spanish—marked
the beginning of a new era of multilingualism in the drafting of multilateral treaties.31
Although the practice of making the English and French texts of multilateral treaties
equally authentic remained common in the 1940s and 1950s,32 the 1948 Genocide
Convention was authenticated in the same five languages as the UN Charter33 and
subsequent practice has confirmed the plurilingual approach to treaty-making
although the process can give rise to considerable practical problems.34
III.THE PRACTICE OF THE PCIJ AND ICJ PRIOR TO THE ADOPTION OF THE
VCLT
A. Introduction
The rise of plurilingual treaty making and the advent of the era of judicial settlement
of international disputes have ensured that the legal consequences of these diplomatic
developments have been the subject of judicial scrutiny by both the PCIJ and the ICJ.
However the PCIJ was only ever required to consider the interpretation of bilingual
treaties, where the idea of a harmonising different language versions to produce a
single authoritative ‘text’ is easier to contemplate. By contrast the ICJ has operated
during an era of multilingualism, a development that—at both a theoretical and a
practical level—entails the potential for a greater degree of inter-lingual uncertainty.35
31
Arabic was adopted as both an official and working language in 1973. See further M Tabory, ‘The
Addition of Arabic as an Official and Working Language of the UN General Assembly and at
Diplomatic Conferences’ (1978) 13 Israel LR 391.
32
See, for example, the Convention Relating to the Status of Refugees (adopted 28 July 1951, entered
into force 22 April 1954) 189 UNTS 150 art 46 and the Convention for the Protection of Human Rights
and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213
UNTS 222 art 66.
33
The Convention on the Crime of Genocide (adopted 9 December 1948, entered into force 12 January
1951) 78 UNTS 277 art X (Genocide Convention).
34
See generally M Tabory, Multilingualism in International Law and Institutions (Sijthoff &
Noordhoff, Alphen aan den Rijn, 1980) ch 2, United Nations, Review of the Multilateral TreatyMaking Process (United Nations, New York, 1985) and S Rosenne, Developments in the Law of
Treaties 1945–1986 (Cambridge Studies in International and Comparative Law. New Series, CUP,
Cambridge 1989) 390–398. See also D Shelton, Reconcilable Differences? The Interpretation of
Multilingual Treaties’ (1996-1997) 20 Hastings International and Comparative LR 611, 621–622 and R
Sabel, Procedure at International Conferences : a Study of the Rules of Procedure at the UN and at
Inter-governmental conferences (2nd edn, CUP, Cambridge, 2006) 397–398.
35
For a discussion of some of the theoretical issues involved see D Cao, ‘Inter-lingual Uncertainty in
Bilingual and Multilingual law’ (2007) 39 Journal of Pragmatics 69–83. See also S Šarčević, New
Approach to Legal Translation (Kluwer Law International, The Hague, 1997).
6
B. The Permanent Court of International Justice
1. Introduction
In Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion)36 the Court
noted that the English and French texts of sub-section (a) of the resolution adopted by
the Council of the League of Nations—referring the dispute between France and
Great Britain regarding the applicability of the Nationality Decrees issued in Tunis
and Morocco (French Zone) on 8 November 1921 to British subjects—differed
slightly and also that the French and English texts of article 15 paragraph 8 of the
Covenant of the League of Nations ‘do not exactly correspond’.37 The Court was
however of the opinion that the French and English expressions had the same
meaning and that the differences were of no juridical importance.38
2. The Mavrommatis Palestine Concessions Case
In the Mavrommatis Palestine Concessions Case39 the Government of the Greek
Republic instituted proceedings against the United Kingdom for the alleged failure of
the Government of Palestine (and consequently also the British Government) to
recognize (to their full extent) the rights acquired by Mr Mavrommatis, a Greek
subject, under contracts and agreements concluded by him with the Ottoman
authorities in regard to concessions for certain public works to be constructed in
Palestine.
The United Kingdom filed a preliminary objection to the Court's jurisdiction
on a number of different grounds. The relevant objection—from the perspective of the
interpretation of plurilingual treaties—was the condition imposed upon the PCIJ’s
jurisdiction by article 26 of the Mandate for Palestine40 namely ‘that the dispute must
relate to the interpretation or the application of the provisions of the Mandate’41.
The Greek Goverment relied upon Article 11 of the Mandate to support their
application and the Court based their judgment principally on the first part of
paragraph 1 of article 11 that stated
The Administration of Palestine shall take all necessary measures to safeguard
the interests of the community in connection with the development of the
36
Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) PCIJ Rep Series B No 4.
ibid 21.
38
ibid 22. See also Competence of the International Labour Organization in regard to International
Regulation of the Conditions of Labour of Persons Employed in Agriculture (Advisory Opinion) PCIJ Rep
Series B No 2, 35 where the Court made reference to article 440 of the Treaty of Versailles and
Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory
(Advisory Opinion) PCIJ Rep Series A/B No 44, 26 where the Court found that the objects of article
104 of the Treaty of Versailles appeared ‘more clearly from the French text of the article’.
39
Mavrommatis Palestine Concessions Case (Greece v United Kingdom) (Objections to the
Jurisdiction of the Court) PCIJ Rep Series A No 17 (Mavrommatis).
40
Mandate for Palestine (adopted 24 July 1922, entered into force 26 September 1923). In his
dissenting judgment, Moore acknowledged that it was an open question ‘whether a mandate, which is
in a sense a legislative act of the Council, is on the same legal footing as a treaty’. Moore however also
stated: ‘I accept for the present case the rules laid down by authorities on international law for the
interpretation of treaties’. Mavrommatis 69 (diss op Judge Moore). On the legal status of the Mandate
for Palestine see further B Knoll, The Legal Status of Territories Subject to Administration by
International Organisations (CUP, Cambridge, 2008) ch 2.
41
Mavrommatis 15.
37
7
country, and, subject to any international obligations accepted by the
Mandatory, shall have full power to provide for public ownership or control of
any of the natural resources of the country or of the public works, services and
utilities established or to be established therein. (Emphasis added)
The French version of the italicized part of article 11 was as follows: ‘aura pleins
pouvoirs pour décider quant à la propriété ou contrôle public de toutes les ressources
naturelles du pays, ou des travaux et services d'utilité publique déjà établis ou à y
établir’. The Court acknowledged that, according to the French version, ‘the powers
thus attributed to the Palestine Administration may cover every kind of decision
regarding public ownership and every form of “contrôle” including the right to annul
or cancel existing concessions’.42
However the English version of article 11 was more restrictive as it only
contemplated the acquisition of ‘public ownership’ or ‘public control’ over the natural
resources of the country. Since no question of ‘public ownership’ was raised on the
facts of the case, the Court devoted its attention to the meaning of the expression
‘public control’ and concluded that that, used in conjunction with the expression
‘public ownership’, ‘public control’ would appear rather to mean ‘the various
methods whereby the public administration may take over, or dictate the policy of,
undertakings not publicly owned’.43 In a much quoted passage the Court laid down
the principles to be applied to the interpretation of a treaty with two authentic
versions.
The Court is of opinion that, where two versions possessing equal authority
exist one of which appears to have a wider bearing than the other, it is bound
to adopt the more limited interpretation which can be made to harmonize with
both versions and which, as far as it goes, is doubtless in accordance with the
common intention of the Parties. In the present case this conclusion is
indicated with especial force because the question concerns an instrument
laying down the obligations of Great Britain in her capacity as Mandatory for
Palestine and because the original draft of this instrument was probably made
in English.44
Applying these principles the Court found that the Mavrommatis concessions in
themselves were outside the scope of article 11 but that the so-called Rutenberg
concessions (which allegedly infringed some of the rights claimed by Mr
Mavrommatis in Jerusalem) fell within the scope of article 11 and thus the dispute fell
within the jurisdiction of the PCIJ under article 26 of the Mandate.
Judge Moore, in his dissenting opinion, criticized the approach to the
interpretation of the Mandate and stated that he was strongly inclined to believe that
the French text of article 11 was a so-called ‘literal’ translation of the English text,
‘and was intended to mean the same thing’.45 Moore also took the view that, where
there is a difference in meaning between texts of equal authority, the text in the
language of the country which is bound was to be preferred.46 Moore was scathing of
42
Mavrommatis 18.
Mavrommatis 19.
44
Ibid.
45
Mavrommatis 69 (diss op Judge Moore)
46
Mavrommatis 70 (diss op Judge Moore) citing A Rivier, Principles du Droit des Gens (Rousseau,
Paris, 1896) vol 2, 123–125.
43
8
the Court’s findings regarding the interpretation of article 11 of the Mandate accusing
his colleagues of finding ‘an unnatural and previously unheard of elasticity’ in the
English text ‘which had made it unnecessary to try the suggested possibilities of the
French text’.47
3. Conclusion
As Hardy notes, the Mavrommatis Palestine Concessions case is the most explicit
ruling of the PCIJ on the question of divergent passages in plurilingual texts.48 The
solution applied by the Court was ‘to adopt the more limited interpretation which can
be made to harmonise with both versions’. Two additional factors cited in favour of
this conclusion were, first, that the more limited interpretation was in the language of
the country against whom the obligation was being enforced and, secondly, ‘because
the original draft of this instrument was probably made in English’.
The problem with the Court’s approach in the Mavrommatis Palestine
Concessions case, as Moore noted in his dissenting judgment, is that in order to
harmonize the two language versions, the Court adopted a much wider meaning of the
phrase ‘public control’ (encompassing government regulation as well as government
ownership). For this reason Hardy concludes that ‘the assertion of certain authors that
the Court endorsed “limited interpretation” as a rule for solving discrepancies
between authentic texts is accordingly erroneous’.49
C. The International Court of Justice
1. Introduction
The ICJ has tended to concentrate on the French and English texts in determining the
meaning of the UN Charter and its own Statute. To the extent that the other authentic
texts are considered, it has almost always been in the context of dissenting opinions.
2. The 1948 Admissions Advisory Opinion
In the Admissions Advisory Opinion50 the majority of the Court referred only to the
French and English texts in determining the meaning of article 4 of the UN Charter.51
In their joint dissenting opinion Judges Basdevant, Winiarski, Sir Arnold McNair and
Read stated that, in so far as they understood, the Chinese, Russian and Spanish texts
contained nothing that contradicted the views that they had expressed.52 By contrast
Judge Krylov’s dissenting opinion examined all of the authoritative texts of article 4
47
ibid.
J Hardy, ‘The Interpretation of Plurilingual Treaties by International Courts and Tribunals’ (1961) 37
BYIL 72, 76.
49
ibid 80. See also Sir I Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, MUP,
Manchester, 1984) 149 ‘It is doubtful, however, whether this passage necessarily bears the construction
which has been put upon it’ and International Law Commission, ‘Report of the of the International Law
Commission on the work of its Eighteenth Session’ (4 May–19 July 1966) [1966] Yearbook of the ILC
Vol II ‘Draft Articles on the Law of Treaties: with commentaries’ 187, 225 (UN Doc A/CN.4/191).
50
Admission of a State to the United Nations (Advisory Opinion) [1948] ICJ Rep 57 (Admissions).
51
See eg Admissions Adv Op 62–63 and diss op Judge Zoričič 94.
52
Admissions joint diss op Judges Basdevant, Winiarski, Sir Arnold McNair and Read 86.
48
9
of the UN Charter and in this context Judge Krylov acknowledged the assistance that
he had received from Judge Hsu Mo in relation to the Chinese text.53
3. The Aerial Incident of 27 July 1955 Case
In the Aerial Incident of 27 July 1955 case54 the Court referred in passing to both the
French and English texts of article 36 paragraph 5 of the ICJ Statute55 in determining
the meaning of the words ‘declarations... which are still in force’ but did not consider
whether any issue of plurilingual interpretation arose. One of the concurring judges
did acknowledge the apparent differences between the English and French texts.56
The most comprehensive consideration of all the authentic texts of the ICJ
Statute was undertaken by Judges Lauterpacht, Koo and Spender57 in their joint
dissenting opinion where they rejected the Bulgarian contention that
the first French version adopted by Committee IV/1—‘declarations qui sont
encore en vigueur’ (declarations which are still in force)—was a faithful
translation of the English text; that it was changed at the request of the French
delegation into the present wording in French: ‘pour une duree qui n'est pas
encore expiree’ (for a duration which has not yet expired); and that the French
representative had explained in the Committee that the changes which he
proposed for insertion did not relate to the substance but were intended to
improve the drafting.58
In the view of Lauterpacht, Koo and Spender, the words ‘pour une duree qui n’est pas
encore expiree’ (for a duration which has not yet expired) must be regarded as
determining the true meaning of the English text in question because the final version
was originally formulated in the French language and the French text removed any
doubt whatsoever as to the meaning of the words. The dissenting judges
acknowledged that the Chinese, Russian and Spanish texts of the paragraph under
consideration approximated to the English text but, as these languages were not
working languages at the 1945 San Francisco Conference, this fact did not ‘not
invalidate or weaken the obvious meaning of the French text’.59
4. The 1962 Certain Expenses Advisory Opinion
In the Certain Expenses Advisory Opinion60 the Court made no reference to
the different texts in its determination that the expenditures authorized by the General
Assembly to cover UN operations in the Congo and the Middle East constituted
53
See Admissions diss op Judge Krylov 110 and 112.
Case Concerning the Aerial Incident of 27 July 1955 (Israel v Bulgaria) (Preliminary Objections)
[1959] ICJ Rep 127 (Aerial Incident).
55
ibid 144.
56
ibid 149 (sep op Judge Badawi).
57
ibid 161–162 (joint diss op Judges Lauterpacht, Koo and Spender).
58
ibid 162 (joint diss op Judges Lauterpacht, Koo and Spender).
54
59
ibid 161 (joint diss op Judges Lauterpacht, Koo and Spender). See also Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Jurisdiction and
Admissibility: Judgment) [1984] ICJ Rep 392 (considered below) where the discussion of article 36(5)
of the ICJ’s Statute ‘reached its climax’ A Zimmerman and others (eds), The Statute of the
International Court of Justice: A Commentary (OUP, Oxford, 2006) 642.
60
Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151 (Certain Expenses).
10
‘expenses of the Organization’ within the meaning of article 17 paragraph 2 of the UN
Charter. In his separate opinion Judge Sir Percy Spender stated that
The cardinal rule of interpretation that this Court and its predecessor has stated
should be applied is that words should be read, if they may be so read, in their
ordinary and natural sense. If so read they make sense, that is the end of the
matter…. If the meaning of any particular provision read in its context is
sufficiently clear to satisfy the Court as to the interpretation to be given to it
then there is neither legal justification nor logical reason to have recourse to
either the travaux préparatoires or the practice followed within the United
Nations.61
Remarkably Judge Sir Percy Spender’s long exegesis entitled ‘General Observations
on the Interpretation of the Charter’62 fails to acknowledge either the existence or
significance of article 111 of the UN Charter.
By contrast the dissenting opinion of Judge Koretsky made specific reference
to all the authentic texts of the UN Charter (except Chinese) in order to determine the
meaning of the word ‘primary’ in article 24 of the UN Charter.
The word ‘primary’ is not used in Article 24 in the sense of an ordinal number
(i.e. first, second etc.), but one may say in the hierarchical sense. The French
text reads: ‘la responsibilité principale’, the Spanish text: ‘la responsabilidad
primordial’, and the Russian text: ‘glavnuju otvjetstvjennosti’ (which literally
translated means ‘chief’, ‘main’ responsibility). 63
5. Conclusion
It is difficult to escape the conclusion that the fact that English and French are the
working languages of the ICJ64 coupled with the fact that the ICJ functions as the
successor to the PCIJ where multilingualism was limited to bilingualism has tended to
blind the ICJ to the linguistic possibilities of authentic texts in languages other than
French or English.
IV. ARTICLE 33 OF THE VIENNA CONVENTION ON THE LAW OF TREATIES
A. Introduction
There are two codification initiatives that pre-date the drafting of the VCLT that
deserve attention. The 1928 Havana Convention on the Law of Treaties65 and the
Harvard Research in International Law Draft Convention on the Law of Treaties.66
1.
61
1928 Havana Convention on the Law of Treaties
Certain Expenses 184 and 18–186 (sep op Spender).
Certain Expenses 184–187 (sep op Spender).
63
Certain Expenses 274 (diss op Koretsky) (emphasis in original).
64
Statute of the International Court of Justice (adopted 26 June 1945) 33 UNTS 933 art 39.
65
The Convention on Treaties (adopted 20 February 1928, in force 29 August 1929) (1935) 29 AJIL
Supp 138 (1928 Havana Convention)
66
(1935) 29 AJIL Supp 653.
62
11
Although the 1928 Havana Convention on the Law of Treaties (1928 Havana
Convention) has been described as ‘almost completely forgotten’67 it is still in force68
and the plurilingual treaty making practice of the Conferences of American States
raises the question whether the issue of interpretation of plurilingual treaties was
acknowledged in the 1928 Havana Convention. With regard to question of
interpretation, only the form is considered in the 1928 Havana Convention. The 1928
Havana Convention—signed in Spanish, English, French and Portuguese69—makes it
clear that the written form is an essential condition of treaties70 and that ‘[t]he
authentic interpretation of treaties when considered necessary by the contracting
parties shall also be in writing’.71
The issue of treaty interpretation, although not dealt with substantively in the
1928 Havana Convention, was considered by the Third Sub-Committee of the Second
Committee of the Seventh International Conference of American States. The SubCommittee produced 13 draft articles on the interpretation of treaties.72 Draft article
11 states
In case of a discrepancy between equally binding official copies of a treaty and
when it is impossible to establish the purpose of the contracting parties, the
restrictive interpretation which best harmonizes the texts will be adopted.
The influence of the Mavrommatis case73 is on the wording of the draft article is clear.
2. The Harvard Draft Convention on the Law of Treaties
In their Introductory Comment, the Harvard Research in International Law criticized
the drafting of the 1928 Havana Convention on the Law of Treaties as ‘subject to
many objections’ and they also asserted that the principles it embodied could not be
said to ‘constitute any significant clarification to the law of treaties’.74
Unlike the 1928 Havana Convention, the Draft Convention on the Law of
Treaties produced by the Harvard Research in International Law does contain a
provision on the interpretation of plurilingual treaties. Article 19(b) provides that
When the text of a treaty is embodied in versions in different languages, and
when it is not stipulated that the version in one of the languages shall prevail,
the treaty is to be interpreted with a view to giving the corresponding
provisions in the different versions a common meaning which will effect the
general purpose which the treaty is intended to serve.
67
A Aust, ‘The Law of Treaties’ in JP Grant and J Craig Barker (eds), The Harvard Research In
International Law: Contemporary Analysis and Appraisal (WS Hein & Co, Buffalo, New York, 2007)
308.
68
Status in 1993: 8 parties. CL Wiktor, Multilateral Treaty Calender 1648–1995 (Martinus Nijhoff
Publishers, The Hague, 1998) 274. Efforts to obtain more up-to-date information have been
unsuccessful.
69
1928 Havana Convention art 21.
70
ibid art 2.
71
ibid art 3.
72
The text is reproduced as an appendix to the Harvard Research in International Law Draft
Convention on Treaties (1935) 29 AJIL Supp 1225–1226.
73
Mavrommatis Palestine Concessions Case (Greece v United Kingdom) (Objections to the
Jurisdiction of the Court) PCIJ Rep Series A No 17 (Mavrommatis).
74
Introductory Comment, reproduced in (1935) 39 AJIL Supp 653, 670.
12
The commentary on article 19(b) states that ‘[t]his principle was apparently
recognized by the Permanent Court of International Justice in the Mavrommatis
Case’.75 It is noteworthy that article 19(b) was at odds with the views of publicists of
the period, such as Oppenheim,76 but the commentary ignores this.
3. The drafting of article 3377
The issue of the interpretation of treaties drawn up in two or more authentic texts or
versions was first addressed by the Special Rapporteur of the International Law
Commission (ILC), Sir Humphrey Waldock, in his Third Report on the law of
treaties.78 In his Six Report79 Waldock acknowledged that the United States
Government had questioned his use of the expression ‘authentic texts’ on the grounds
that ‘a treaty is more properly conceived of as a unit, consisting of one text: and that
the several language versions are an integral part of and constitute a single text’.80
Waldock defended his approach by reference to the practice of the United Nations in
drawing up the texts of multilingual instruments—not least the wording of article 111
of the UN Charter itself—and on doctrinal grounds.
Moreover, so far as the English language is concerned, the word ‘version’ is
more indicative of difference than the word ‘text’, and it may be doubted
whether any advantage would be gained by introducing the fiction that a
plurilingual treaty has only one text of which there may be different
‘versions’.81
Notwithstanding Waldock’s views, his original two draft articles on languages were
recast by the Drafting Committee as a single article that focused on the question of
interpretation.82 The new draft article changed the emphasis of Waldock’s draft with
its reference to the ‘text’ of a treaty authenticated in two or more languages and using
the term ‘divergence’ in preference to Waldock’s ‘difference’. In the final draft
version, the Drafting Committee’s version was adopted as draft article 29.83
4. Draft Article 29: Interpretation of treaties in two or more languages
75
(1935) 39 AJIL Supp 653, 971.
‘Unless the contrary is expressly provided, if a treaty is concluded in two languages and there is a
discrepancy between the meaning of the two different texts, each party is only bound by the text in its
own language’ L Oppenheim (RF Roxburgh (ed)), International Law: A Treatise (3rd edn, Longmans,
London, 1920) vol 1, 704.
77
See generally P Germer, ‘Interpretation of Plurilingual Treaties: A study of Article 33 of the Vienna
Convention on the Law of Treaties’ (1970) 11 Harvard International LJ 400 and M Tabory,
Multilingualism in International Law and Institutions (Sijthoff & Noordhoff, Alphen aan den Rijn,
1980) ch 3.
78
See Sir H Waldock, Special Rapporteur, ‘Third Report on the law of treaties’ [1964] Yearbook of the
ILC Vol II 62–65 (UN Doc A/CN.4/167).
79
Sir H Waldock, Special Rapporteur, ‘Sixth Report on the law of treaties’ [1966] Yearbook of the ILC
Vol II 101-103 (UN Doc A/CN.4/186).
80
ibid 102 (Comment of the United States).
81
ibid.
82
See ‘Revised draft articles’, [1966] Yearbook of the ILC Vol II, 118 (UN Doc A/CN.4/L.117).
83
ILC ‘Report of the of the International Law Commission on the work of its Eighteenth Session’ (4
May–19 July 1966) [1966] Yearbook of the ILC Vol II ‘Draft Articles on the Law of Treaties: with
commentaries’ 187, 224–226 (UN Doc A/CN.4/191).
76
13
1. When a treaty has been authenticated in two or more languages, the text is
equally authoritative in each language, unless the treaty provides or the parties
agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the
text was authenticated shall be considered an authentic text only if the treaty so
provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each
authentic text. Except in the case mentioned in paragraph 1, when a
comparison of the texts discloses a difference of meaning which the
application of articles 27 and 28 does not remove, a meaning which as far as
possible reconciles the texts shall be adopted.
At the first session of the 1968 UN Conference on the Law of Treaties, the
Committee of the Whole adopted the text of the ILC’s draft article with two
amendments. First, the final clause regarding the presumption that authentic texts
possess the same meaning was recast as sub-paragraph 4 and the words ‘a meaning
which as far as possible reconciles the texts shall be adopted’ were replaced by the
clause ‘which as far as possible reconciles the texts shall be adopted, having regard to
the object and purpose of the treaty, shall be adopted’.84 At the second session of the
UN Conference on the Law of Treaties, the revised draft article 29 was adopted by
101 votes to none85 and, as part of the final renumbering,86 became article 33 of the
VCLT.
5. Article 33: Interpretation of treaties authenticated in two or more languages
1. When a treaty has been authenticated in two or more languages, the text is
equally authoritative in each language, unless the treaty provides or the parties
agree that, in case of divergence, a particular text shall prevail.
2. A version of the treaty in a language other than one of those in which the
text was authenticated shall be considered an authentic text only if the treaty so
provides or the parties so agree.
3. The terms of the treaty are presumed to have the same meaning in each
authentic text.
4. Except where a particular text prevails in accordance with paragraph 1,
when a comparison of the authentic texts discloses a difference of meaning
which the application of articles 31 and 32 does not remove, the meaning
which best reconciles the texts, having regard to the object and purpose of the
treaty, shall be adopted.
B
84
Conclusion
See United Nations Conference on the Law of Treaties, First Session (Vienna 26 March–24 May
1968) Official Records 188-190 and 442–443 (UN Doc A/CONF.39/11).
85
United Nations Conference on the Law of Treaties, Second Session (Vienna 9 April–22 May 1969)
Thirteenth plenary meeting (6 May 1969) 58-59 (UN Doc A/CONF.39/SR.13).
86
See United Nations Conference on the Law of Treaties, First and Second Sessions (26 March–24
May 1968 and 9 April–22 May 1969) Documents of the Conference 302 (UN Doc A/CONF.39/28).
14
Even before the VCLT came into force on 27 January 1980, some international courts
and tribunals were prepared to acknowledge the customary status of article 3387 and
the principles embodied in article 33 were also considered in great detail in the Young
Loan arbitration.88 In the Young Loan arbitration a three judge minority rejected the
reliance on article 33(4) VCLT by the four judge majority. In Sir Ian Sinclair’s view
With respect, it is submitted that, on this point, the approach of the dissident
members of the Tribunal is to be preferred to the approach adopted in the
majority decision.89
V.THE PRACTICE OF THE ICJ AFTER THE ADOPTION OF THE VCLT
A. Introduction
Although the ICJ has been willing to acknowledge the customary status of articles
31–32 VCLT on numerous occasions,90 the Court was initially rather more reticent
about making the same observation about article 33 VCLT, at least that is until the
potential divergence between the authentic texts of article 41 of the ICJ Statute made
the determination of article 33 VCLT’s customary status an unavoidable question for
the Court to answer in the LaGrand case.91
1. Military and Paramilitary Activities in and against Nicaragua
In order to establish the jurisdiction of the Court in the Military and Paramilitary
Activities in and against Nicaragua case92 Nicaragua relied—in part—on article 35
paragraph 5 of the ICJ Statute,93 asserting that its 1929 Declaration unconditionally
recognizing the compulsory jurisdiction of the PCIJ was still in force. The 1929
Declaration was approved by the Nicaraguan Executive and ratified by the
Nicaraguan Senate in 1935. The Nicaraguan Ministry of External Relations of
Nicaragua informed the Secretary-General of the League of Nations of these
developments by telegram in November 1939 but no instrument of ratification was
ever received in Geneva.
87
See, for example, Golder v UK (App no 4451/70) (1979-80) 1 EHRR 524, 532 [29] ‘Articles 31 to
33 enunciate in essence generally accepted principles of international law’. See also the separate
opinion of Judge Verdross 543 [6] and 544 [10] and—arguing against the application of the rules of
interpretation in the VCLT—the separate opinion of Judge Sir Gerald Fitzmaurice 564 [35].
88
Young Loan (Belgium, France Switzerland, UK, USA v Federal Republic of Germany) (Arbitration
Tribunal) (1980) 59 ILR 495 (Young Loan arbitration).
89
Sir I Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, MUP, Manchester, 1984) 152.
90
See, for example, Territorial Dispute (Libya v Chad) (Judgment) [1994] ICJ Rep 6, 21 [41]; Oil
Platforms (Iran v United States) (Preliminary Objections) [1996] ICJ Rep 803, 812 [23], Case
Concerning Kasikili/Sedudu Island (Botswana v Namibia) (Judgment) [1999] ICJ Rep 1045, 1059 [18]
(Kasikili/Sedudu Island) and Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) 27 February 2007
< http://www.icj-cij.org/docket/files/91/13685.pdf> accessed 30 June 2010 109–110 [160].
91
Case Concerning the Vienna Convention on Consular Relations (Germany v USA) (Judgment)
[2001] ICJ Rep 466 (LaGrand).
92
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Jurisdiction and
Admissibility: Judgment) [1984] ICJ Rep 392 (Nicaragua).
93
The English version of Article 36(5) states that ‘[d]eclarations made under Article 36 of the Statute
of the Permanent Court of International Justice and which are still in force shall be deemed, as between
the parties to the present Statute to be acceptances of the compulsory jurisdiction of the International
Court of Justice for the period which they still have to run and in accordance with their terms’.
15
The United States argued that the failure to deposit an instrument of
ratification rendered Nicaragua’s acceptance of the PCIJ’s compulsory jurisdiction
incomplete and thus it could not be said to be ‘still in force’ as required under article
36(5) of the ICJ’s Statute. The Court noted that
Nicaragua, having failed to deposit its instrument of ratification of the Protocol
of Signature of the Statute of the Permanent Court, was not a party to that
treaty. Consequently the Declaration made by Nicaragua in 1929 had not
acquired binding force prior to such effect as Article 36, paragraph 5, of the
Statute of the International Court of Justice might produce.94
The Court acknowledged that the ‘binding force’ issue before it differed from the
issue considered by the Court the Aerial Incident case95 and thus that case did not
provide ‘any pointers to precise conclusions on the limited point now in issue’.96
The Court—by eleven votes to five97—held that it had jurisdiction on the basis
of article 36(5) read together with article 36(2) of the ICJ’s Statute on the ground that
the word ‘binding’ did not appear in the English or French versions of Article 36(5)
and because ‘[a]ccording to the travaux préparatoires the word “binding” was never
suggested; and if it had been suggested for the English text, there is no doubt that the
drafters would never have let the French text stand as finally worded’.98 Further
the Court cannot but be struck by the fact that the French Delegation at the San
Francisco Conference called for the expression ‘still in force’ to be translated,
not by ‘encore en vigueur’ but by the term: ‘pour une durée qui n'est pas
encore expirée’. In view of the excellent equivalence of the expressions
‘encore en vigueur’ and ‘still in force’, the deliberate choice of the expression
‘pour une durée qui n'est pas encore expirée’ seems to denote an intention to
widen the scope of Article 36, paragraph 5, so as to cover declarations which
have not acquired binding force.99
Even the members of the majority who voted for the jurisdiction of the Court under
article 36(2) and (5) acknowledged that the Treaty of Friendship, Commerce and
Navigation of 21 January 1956100 provided ‘a clearer and a firmer ground’ than the
jurisdiction based on the optional clause.101 Several of the dissenting judgments based
their rejection of the majority’s reasoning—disregarding the English text in favour of
the wider French wording—on the application of article 33 VCLT.102 In his separate
opinion Sir Robert Jenning specifically acknowledged the fact that article 36(5)
necessarily appeared in five equally authentic languages and that ‘[t]he Chinese,
94
ibid 404 [26].
Case Concerning the Aerial Incident of 27 July 1955 (Israel v Bulgaria) (Preliminary Objections)
[1959] ICJ Rep 127 (Aerial Incident).
96
Nicaragua 405 [29].
97
Judges Mosler, Oda, Ago, Schwebel and Sir Robert Jennings dissenting.
98
Nicaragua 406 [30].
99
ibid 406 [31].
100
Treaty of Friendship, Commerce and Navigation (with Protocol) between the United States of
America and Nicaragua (adopted 21 January 1956, entered into force 24 May 1958) 1960 UNTS 6 art
24.
101
Nicaragua 444 (sep op Singh).
102
See Nicaragua 463 (sep op Mosler), 523 [22] (sep op Ago), 537 (sep op Sir Robert Jennings), 575
(diss op Schwebel).
95
16
Russian and Spanish versions apparently translate the English formulation of the
criterion of transfer, viz. “and which are still in force...”’.103 In Sir Robert Jennings
view article 33(4) VCLT could not be reconciled ‘with any solution which seeks to
give a special meaning to the French text, which meaning cannot be collected from
the Chinese, the English, the Russian and the Spanish’.104
The approach of the minority on the applicability of article 36(5) of the ICJ’s
Statute in the Nicaragua case has been cited with approval105 but methodologically it
may be questioned whether the application of article 33 VCLT was appropriate given
the fact that neither State was (or is) a party to the VCLT106 and the drafting of the
treaty in question considerably pre-dated the drafting of article 33 VCLT in any event.
2. The ELSI Case
In the ELSI case107 one of the issues before the Chamber was the correct interpretation
of the 1948 Treaty of Friendship, Commerce and Navigation between the United
States and Italy (the FCN Treaty).108 The FCN Treaty was equally authentic in
English and Italian. The first paragraph of the Protocol appended to the FCN Treaty
stated
The provisions of paragraph 2 of Article V, providing for the payment of
compensation, shall extend to interests held directly or indirectly by nationals,
corporations and associations of either High Contracting Party in property
which is taken within the territories of the other High Contracting Party.
In the Italian version of the FCN Treaty the words ‘shall extend to interests held
directly or indirectly by national’ were represented by the words ‘si estenderanno ai
diritti spettanti direttamente od indirettamente ai cittadini’. Italy argued that the term
‘diritti’ (rights) used in the Italian version was narrower than the term ‘interests’ used
in the equally authentic English version and that, on the basis of the principle
expressed in article 33, paragraph 4 of VCLT, the correct interpretation of the
Protocol must be in the more restrictive sense of the Italian text.109
In the event, the Chamber declined to base their decision on the question of
interpretation of the two texts of the Protocol because, due to ELSI’s financial
situation and the decision of its shareholders to close the plant, ‘it is simply not
possible to say that the ultimate result was the consequence of the acts or omissions of
the Italian authorities’.110
103
Nicaragua 537 (sep op Sir Robert Jennings).
ibid.
105
See A Zimmerman and others (eds), The Statute of the International Court of Justice: A
Commentary (OUP, Oxford, 2006) 642 ‘[n]otwithstanding the passage of time one may still entertain
doubts as to the correctness of [the Court’s] argument’.
106
The USA signed the VCLT on 24 April 1970 but has not ratified it. Nicaragua has neither signed or
ratified the VCLT.
107
Case Concerning Elettronica Sicula SpA (ELSI) (US v Italy) (Judgment) [1989] ICJ Rep 15 (ELSI).
108
Treaty of Friendship, Commerce and Navigation between the United States of America and the
Italian Republic (adopted 2 February 1948, entered into force 26 July 1949) 79 UNTS 171
(supplemented by the Agreement of 26 September 1951, 326 UNTS 1961) (the FCN Treaty).
109
ELSI 70-71 [118].
110
ELSI 71 [119].
104
17
3. The Case Concerning Kasikili/Sedudu Island
In the Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) 111 the Court
was concerned with the interpretation of the Anglo–German Agreement of 1 July
1890 (the 1890 Agreement).112 Although the 1890 Agreement was authenticated in
both English and German, the ICJ was satisfied that the terms ‘centre of the main
channel’ in article III, paragraph 2, of the 1890 Agreement and ‘Thalweg’ of that
channel possessed the same meaning applying Article 33(3) VCLT ‘under which “the
terms of the treaty are presumed to have the same meaning in each authentic text”’ 113.
It is tempting to criticize the judgment in the Kasikili/Sedudu Island case on
the grounds that applying article 33 VCLT to a 19th century treaty ignores the intertemporal interpretation problem114 but the parties to the case were satisfied with this
approach and the solution adopted by the leading publicists of the period was wholly
unworkable. In the words of the third edition of Oppenheim
Unless the contrary is expressly provided, if a treaty is concluded in two
languages and there is a discrepancy between the meaning of the two different
texts, each party is only bound by the text in its own language. Moreover, a
party cannot claim the benefit of the text in the language of the other party.115
4. The LaGrand Case
In the Case Concerning the Vienna Convention on Consular Relations (Germany v
USA) (Judgment) (LaGrand),116 the United States sought to argue that the ICJ’s prior
indication of provisional measures117 under article 41 of the ICJ Statute ‘did not create
legal obligations binding on [it]’.118 The United States attempted to base its argument
on the fact that ‘[t]he language used by the Court in the key portions of its Order is
not the language used to create binding legal obligations’119 rather than the more
difficult and controversial question of the legal effects of orders made under article 41
of the ICJ Statute. The Court acknowledged that the interpretation of article 41 had
been the subject of extensive controversy in the literature120 and that it was necessary
to make a ruling on the legal effects of orders made under article 41 of the ICJ Statute
111
Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) (Judgment) [1999] ICJ Rep 1045
(Kasikili/Sedudu Island).
112
Agreement between Germany and Great Britain respecting Zanzibar, Heligoland and the Spheres of
Influence of the Two Countries in Africa (adopted 1 July 1890) 173 CTS 271 (the 1890 Agreement).
113
Kasikili/Sedudu Island 1062 [25].
114 See further R Higgins, ‘Some Observations on the Inter-temporal Rule in International Law’ in J
Makarczyk (ed), Theory of International Law at the Threshold of the 21st Century: Essays in honour of
Krzysztof Sbubiszewski (Kluwer Law International, The Hague, 1996) 173-181. See also Sir R Jennings
and Sir A Watts (eds), Oppenhiem’s International Law (9th edn, Longman, London, 1996) vol 1, §633
‘Supplementary means of interpretation’ 1281-1282.
115
L Oppenheim (RF Roxburgh (ed)), International Law: A Treatise (3rd edn, Longmans, London,
1920) vol 1, 704. See also A Rivier, Principles du Droit des Gens (Rousseau, Paris, 1896) vol 2, 123–
125.
116
Case Concerning the Vienna Convention on Consular Relations (Germany v. USA) (Judgment)
[2001] ICJ Rep 466 (LaGrand).
117
Case Concerning the Vienna Convention on Consular Relations (Germany v. USA) (Request for the
Indication of Provisional Measures: Order) General List No 104 [1999] ICJ Rep 9.
118
LaGrand 500 [96].
119
ibid.
120
For a survey of the literature see the select bibliography in A Zimmerman and others (eds), The
Statute of the International Court of Justice: A Commentary (OUP, Oxford, 2006) 924-925.
18
(which, for all practical purposes, was identical to the equivalent provision of the
Statute of the PCIJ).
The dispute which exists between the Parties with regard to this point
essentially concerns the interpretation of Article 41 which is worded in
identical terms in the Statute of each Court (apart from the respective
references to the Council of the League of Nations and the Security
Council).121
The English version of article 41 reads as follows:
1. The Court shall have the power to indicate, if it considers that circumstances
so require, any provisional measures which ought to be taken to preserve the
respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith
be given to the parties and to the Security Council.122
The French version of article 41 states
1. La Cour a le pouvoir d'indiquer, si elle estime que les circonstances
l'exigent, quelles mesures conservatoires du droit de chacun doivent être prises
à titre provisoire.
2. En attendant l'arrêt définitif, l'indication de ces mesures est immédiatement
notifiée aux parties et au Conseil de sécurité.123
The United States argued that, the use in the English version of ‘indicate’ instead of
‘order’, of ‘ought’ instead of ‘must’ or ‘shall’, and of ‘suggested’ instead of ‘ordered’,
implied that decisions under article 41 lacked mandatory effect.124
Noting that the English and French texts of the ICJ Statute were equally
authentic and that, in cases of divergence between the equally authentic versions of
the ICJ Statute, neither it nor the UN Charter indicated how to proceed, the Court
declared that, in the absence of agreement between the parties on this point, article
33(4) VCLT could be regarded as reflecting customary international law.125
Article 33(4) VCLT states that
when a comparison of the authentic texts discloses a difference of meaning
which the application of Articles 31 and 32 does not remove the meaning
which best reconciles the texts, having regard to the object and purpose of the
treaty, shall be adopted.
The Court considered that the object and purpose of the ICJ Statute was to enable to
Court to fulfil the functions provided therein, in particular the judicial settlement of
international disputes by binding decisions in accordance with article 59 of the ICJ
Statute. The context of article 41 therefore was the need to ensure that the respective
121
LaGrand 501 [99].
Emphasis added.
123
Emphasis added.
124
LaGrand 502 [100].
125
LaGrand 502 [101].
122
19
rights of the parties to a dispute were preserved during the settlement of the dispute.126
The Court concluded that ‘[t]he contention that provisional measures indicated under
Article 41 might not be binding would be contrary to the object and purpose of that
Article’.127
The conclusions reached by the Court in interpreting the text of article 41 of
the ICJ Statute in the light of its object and purpose made it unnecessary for the Court
to consider the preparatory work in order to determine the meaning of article 41.128
This was significant because, as the Court acknowledged, in the course of drafting the
original version of article 41, ‘the words ‘la Cour pourra ordonner’ (‘the Court may
… order’) were replaced by ‘la Cour a le pouvoir d'indiquer’ (‘the Court shall have
the power to suggest’)’.129 In response to this the Court argued
The preparatory work of Article 41 shows that the preference given in the
French text to ‘indiquer’ over ‘ordonner’ was motivated by the consideration
that the Court did not have the means to assure the execution of its decisions.
However, the lack of means of execution and the lack of binding force are two
different matters. Hence, the fact that the Court does not itself have the means
to ensure the execution of orders made pursuant to Article 41 is not an
argument against the binding nature of such orders.130
In his dissenting opinion Judge Oda criticized the ‘roundabout method of
analysis’ that led the Court to the conclusion that orders on provisional measures
under article 41 have binding effect.131 Judge Oda also stated that ‘addressing the
general question as to whether or not an order indicating provisional measures “is
binding” or “has binding force” [was] an empty, unnecessary exercise’.132 In Judge
Oda’s view the real question that the Court was trying to raise was the question of
responsibility of the State which allegedly had not complied with the order indicating
provisional measures, a question that had not arisen in the past jurisprudence of the
Court.133
Judge Oda was also critical of the Court’s view that there was a ‘related reason
that points to the to the binding character of orders made under article 41’134 namely
the principle universally accepted by international tribunals and likewise laid
down in many conventions … to the effect that the parties to a case must
abstain from any measure capable of exercising a prejudicial effect in regard to
the execution of the decision to be given, and, in general, not allow any step of
any kind to be taken which might aggravate or extend the dispute.135
126
LaGrand 502-503 [102].
ibid.
128
LaGrand 503 [104].
129
LaGrand 504 [105].
130
LaGrand 505 [107].
131
LaGrand 539 [33] (diss op Oda).
132
ibid [34].
133
ibid.
134
LaGrand 503 [103].
135
Electricity Company of Sofia and Bulgaria (Belgium v Bulgaria) (Request for the Indication of
Interim Measures of Protection: Order) PCIJ Series A/B No. 79 194, 199 as quoted by the Court
LaGrand 503 [103].
127
20
In Judge Oda’s view a general statement that a party to a case must abstain from any
measure capable of exercising a prejudicial effect to the execution of the ultimate
decision could not be interpreted as supporting the argument that an order for
provisional measures made under article 41 has binding force.136
5. The Case Concerning the Dispute Regarding Navigational and Related Rights
In the recent Case Concerning the Dispute Regarding Navigational and Related
Rights 137 the Court was concerned with the interpretation of the 1858 Treaty of
Limits between Costa Rica and Nicaragua.138 The dispute centred on the meaning of
the words ‘con objetos de comercio’ in article VI of the 1858 Treaty of Limits.
Although the 1858 Treaty of Limits is only authoritative in the Spanish version, the
official languages of the Court are English and French139 and thus the correct
translation of the disputed phrase divided the parties.
For Nicaragua, this expression must be translated into French as ‘avec des
marchandises de commerce’ and into English as ‘with articles of trade’; in
other words, the ‘objetos’ in question here are objects in the concrete and
material sense of the term. Consequently, the freedom of navigation
guaranteed to Costa Rica by Article VI relates only to the transport of goods
intended to be sold in a commercial exchange. For Costa Rica, on the contrary,
the expression means in French ‘à des fins de commerce’ and in English ‘for
the purposes of commerce’; the ‘objetos’ in the original text are therefore said
to be objects in the abstract sense of ends and purposes. Consequently,
according to Costa Rica, the freedom of navigation given to it by the Treaty
must be attributed the broadest possible scope, and in any event encompasses
not only the transport of goods but also the transport of passengers, including
tourists.140
The Court affirmed its earlier jurisprudence relating to the customary status of articles
31 and 32 VCLT and stated that neither the fact that Nicaragua was not a party to the
VCLT nor the fact that the treaty to be interpreted considerably pre-dated the drafting
of the VCLT prevented the Court from referring to the principles of interpretation set
forth in articles 31 and 32 of the VCLT.141
Having observed that there were ‘no grounds for supposing, a priori, that the
words “libre navegación . . . con objetos de comercio” should be given a specially
restrictive interpretation, any more than an extensive one’,142 the Court considered the
issue of the meaning of the phrase “con objetos de” as used in article VI of the 1858
Treaty of Limits. Significantly the Court acknowledged that the Spanish word
‘objetos’ can, depending on its context, have either of the two meanings put forward
136
LaGrand 538 [31] (diss op Oda).
Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua)
(Judgment) 13 July 2009 < http://www.icj-cij.org/docket/files/133/15321.pdf> accessed 30 June 2010.
138
Treaty of Territorial Limits between Costa Rica and Nicaragua (adopted 15 April 1858, entered into
force 26 April 1858) 118 CTS 439.
139
Statute of the International Court of Justice (adopted 26 June 1945) 33 UNTS 933 art 39.
140
Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua)
(Judgment) 13 July 2009 < http://www.icj-cij.org/docket/files/133/15321.pdf> accessed 30 June 2010
[45].
141
ibid [47].
142
ibid [48].
137
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ie the wider ‘for the purposes of’ or the narrower ‘with articles of’. Due to the
difference between the two meanings (concrete vs. abstract) the Court was satisfied
that an examination of the context was sufficient for a firm conclusion to be reached.
The context of the 1858 Treaty of Limits supported Costa Rica’s wider
interpretation.143 The Court also stated it was significant that the English translations
of the 1858 Treaty of Limits submitted by the parties to President Cleveland in 1887
for use in the arbitration proceedings he was asked to conduct in which, even though
the translations were not identical on all points, both used the phrase ‘for the purposes
of commerce’ to translate the phrase ‘con objetos de comercio’.
By itself, this argument is undoubtedly not conclusive, because the only
authoritative version of the instrument is the Spanish one and at the time the
Parties might have made the same mistake in translation, which cannot be
treated as an implicit amendment of the 1858 Treaty. It is also no doubt true
that Nicaragua might have paid insufficient heed to the meaning of the term
‘objetos de comercio’, which was not at issue in the questions submitted to the
arbitrator; this could be the explanation for a translation done by it in haste. It
nonetheless remains the case that this concurrence, occurring relatively soon
after the Treaty was concluded, is a significant indication that at the time both
Parties understood ‘con objetos de comercio’ to mean ‘for the purposes of
commerce’. This is the meaning accepted by the Court.144
Having determined that ‘con objetos de comercio’ meant ‘for the purposes of
commerce’, the Court turned to the issue of the meaning to be ascribed to the word
‘commerce’ in the context of article VI of the 1858 Treaty of Limits. The Court
accepted that the term ‘commerce’ had a more restricted meaning when the treaty was
concluded and that there was authority for the proposition that the terms of a treaty
must be interpreted in the light of the parties’ common intentions which would be ‘by
definition, contemporaneous with the treaty’s conclusion’.145 However the Court
concluded that, because the 1858 Treaty of Limits ‘was intended to create a legal
régime characterized by its perpetuity’,146 the parties common intention was for the
term ‘commerce’ to follow the meaning attached to it at any given time.
6. Conclusion
The Case Concerning the Dispute Regarding Navigational and Related Rights 147
confirms that some of the complexities of multilingualism will exist even where the
treaty under consideration is authentic in only one language, albeit a language that is
not one of the official languages of the Court. The Court has been prepared to apply
143
ibid [52].
ibid [56].
145
ibid [63] quoting Case Concerning Rights of Nationals of the United States of America in Morocco
(France v USA) (Judgment) 1952 ICJ Rep 176 and Case Concerning Kasikili/Sedudu Island (Botswana
v Namibia) (Judgment) [1999] ICJ Rep 1045, 1062 [25].
146
ibid [67]. The Court also made reference to article 31(3)(b) VCLT to support their conclusions [63][66].
147
Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua)
(Judgment) 13 July 2009 < http://www.icj-cij.org/docket/files/133/15321.pdf> accessed 30 June 2010.
144
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article 33 VCLT as a customary norm in two of its more recent cases.148 In the
Kasikili/Sedudu Island case this meant applying article 33(3) VCLT to a 19th century
treaty but this was done with the encouragement of both parties to the case. By
contrast there was no such agreement in the La Grand case and the Court declined to
respond directly to the Chinese, Spanish and Russian texts of the relevant provisions
of the ICJ Statute set out in the German memorial.149
VI. CONCLUSION
This chapter has sought to offer an introduction to the issue of the interpretation of
plurilingual treaties focusing on the relevant practice of the PCIJ and ICJ. Given the
importance of the issue, the limited acknowledgement of the issue by the ICJ and the
relegation of the topic in the general literature150 to a rather small (but welcome)
number of books and articles is a source of puzzlement and concern.
Compared to the restricted nature of the debate in general international law,
the widespread discussion of the topic in the context of European Union Law is
marked.151 The sheer volume of plurilingual legislative acts within the European
Union (EU), and the fact that these plurilingual legislative acts have to be interpreted
and applied in the both the 27 EU Member States and by the European Court of
Justice (ECJ), goes some way to explaining the differing levels of interest in the topic
but knowledge of both the legal issues and an awareness of the wider implications of
148
Case Concerning Kasikili/Sedudu Island (Botswana v Namibia) (Judgment) [1999] ICJ Rep 1045,
1062 [25] (Kasikili/Sedudu Island) and Case Concerning the Vienna Convention on Consular Relations
(Germany v USA) (Judgment) [2001] ICJ Rep 466, 502 [101] (LaGrand).
149
Memorial of the Federal Republic of Germany (submitted 16 September 1999) vol 1, [4.149][4.150] < http://www.icj-cij.org/docket/files/104/8552.pdf> accessed 30 June 2010. See also RK
Gardiner, Treaty Interpretation (OUP, Oxford, 2008) 361. The response of the United States to the
plurilingual arguments put forward in the German memorial was as follows: ‘In any case, the
authoritative text of the Court’s 3 March 1999 Order was in English. It should therefore be construed in
accordance with the English text of Article 41.’ Counter-Memorial of the United States of America
(submitted 27 March 2000) [152] (footnote omitted) <http://www.icjcij.org/docket/files/104/8554.pdf> accessed 30 June 2010. The attempt to reproduce the text of the
Russian quoted in the German memorial was no less embarrassing. See ibid [152] and footnote 65.
150
In addition to the books and articles cited in the chapter see also CB Kuner, ‘The Interpretation of
Multilingual Treaties: Comparison of Texts versus the Presumption of Similar Meaning’ (1991) 40
ICLQ 953, WJ Aceves, ‘Ambiguities in Plurilingual Treaties: A Case Study of Article 22 of the 1982
Law of the Sea Convention’ (1996) 27 Ocean Development & International Law 187, U Linderfalk, On
the Interpretation of Treaties (Law and Philosophy Library Volume 83, Springer, Dordrecht, 2007) ch
11 and BJ Condon, ‘Lost in Translation: Plurilingual Interpretation of WTO Law’ (2010) 1 Journal of
International Dispute Settlement 191.
151
See, for example, RL Creech, Law and Language in the European Union; The Paradox of a Babel
‘United in Diversity’ (Europa Law Publishing, Groningen, 2005), M Derlén, Multilingual
Interpretation of European Union Law (European Monographs Volume 67, Kluwer, Alphen aan den
Rijn, 2009), B Pozzo and V Jacometti (eds), Multilingualism and the Harmonisation of European Law
(Kluwer Law International, Alphen aan den Rijn, 2006), FG Jacobs, ‘Approaches to Interpretation in a
Plurilingual Legal System’ in M Hoskins and W Robinson (eds), A True European: Essays for Judge
David Edwards (Hart, Oxford, 2003) 297 and A Doczekalska ‘Drafting and Interpretation of EU Law:
Pparadoxes of Legal Multilingualism’ in G Grewendorf and M Rathert (eds), Formal Linguistics and
Law (Mouton de Gruyter, Berlin, 2009) 339. See also K Lipstein, ‘Some Practical Comparative Law:
The Interpretation of Multi-Lingual Treaties with special regard to the EEC Treaties’ (1973-1974) 48
Tulane LR 907, T Klimas and J Vaiciukaite, ‘Interpretation of European Union Multilingual Law’
(2005) 3 International Journal of Baltic Law 1 and LM Solan, ‘The Interpretation of Multilingual
Statutes by the European Court of Justice’ (2009) 34 Brooklyn Journal of International Law 277.
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plurilingualism (particularly in the context of treaty-making) should also be on the
agenda of every international lawyer.