International law is the foundation of international trade and should therefore be effective and flexible. International treaties are used to create international legal standards. For their appliation, it is necessary to introduce them into national legal systems, which is usually related to their previous translation. A special role in this case is given to the translator as an entity having a key influence on the shape of the treaty in the language in which it will be applied.
What is the authentic language of the treaty?
The treaty means an international agreement concluded between subjects of international law. After the conclusion of the negotiations on the treaty, when the negotiating parties decide that the text of the treaty has taken its final form, the language of the authentic treaty is established. Authentic language means the binding language of the treaty established by the parties, which is the basis for its interpretation. If the text of the treaty has been established as authentic in two or more languages, the treaty shall have the same force in each of these languages, unless the treaty decides or the parties have agreed that in the event of a discrepancy, the specific text shall prevail. In the event of a dispute arising from a given treaty, only the text in authentic language may be the basis for its settlement.
In international law, there are no universally applicable norms indicating the rules of choosing the language of the authentic treaty. The negotiating parties are free to choose such a language or languages according to their purpose. When a treaty involves only two parties, usually the treaty is authentic in two language versions, corresponding to the languages of each party, with the possible addition of a third language version in one of the so-called "international languages", which should be decisive in case of discrepancies between texts.
Other solutions apply when there are more parties to the treaty.
It happens during the preparation of multilateral treaties that the parties decide on the authentication of texts so that each party receives a treaty in its official language - this is the case with a small number of states - parties. However, when there are more states - parties to the traty, in principle they agree to limit the number of authentic languages. The most common solution is to authenticate the text of the treaty in one or more "international languages" or, if the treaty is drawn up under the auspices of an international organization, in the official language of that organization. Even if the treaty has several authentic language versions, in practice the text of the treaty is negotiated in the lingua franca, and (other) authentic texts are produced in translation by the contracting parties that later exchange the translated texts to be controled. Translation therefore plays a key role in developing texts of authentic international instruments.
Which language is chosen most often?
Until the beginning of the 20th century, international treaties were drawn up and authenticated in one language, which was originally Latin, followed by French, first used as the only authentic language with reference to the General Treaty of the Congress of Vienna in 1815. After the World War I, the Treaty of Versailles has already been drawn up in two authentic languages: French and English. At present, international agreements are usually multilingual. It is rare, however, that multilateral traties are authentic in the official languages of all contracting parties - the number of authentic languages is usually limited. This is due to the fact that the number of contracting parties to agreements concluded under the auspices of international organizations is generally relatively high and excludes or at least limits the possibility of using all official languages of the states-parties as authentic languages of the treaty. The only exceptions are the Treaty on European Union and the Treaty on the Functioning of the European Union - from the perspective of international law - the classic multilateral treaties establishing an international organization. Because linguistic diversity is a significant feature of the EU and an integral part of its image, these treaties are authentic in all official languages of the states parties.
How do you decide about the meaning of words?
Unless one conclusive authentic text has been established, the treaty has the same power in each of its authentic languages. The version of the treaty in a language other than the agreed language will be considered authentic only if the parties agree. The general rule of interpreting authentic treaties in more than one language is to assume that the words used in the treaty have the same meaning in each of the authentic texts. However, when the comparison of authentic texts shows a difference in meaning, it must be interpreted in good faith, in accordance with the ordinary meaning of the words in their context and in the light of the subject and purpose of the treaty. It is necessary then to reach accordingly to grammatical, linguistic and teleological interpretation.
Since language is subject to temporal changes, the "ordinary meaning of words" should refer to the moment of concluding the treaty and the systems in force at the time.
Reference may be made to supplementary means of interpretation, including preparatory work for the treaty and circumstances of its conclusion (so-called travaux préparatoires), to confirm or to establish meaning when the above interpretation leaves meaning ambiguous or unclear or leads to a clearly absurd or unwise result. If, however, this method does not lead to a satisfactory solution, it is important to accept the meaning of the words in the text, which, taking into account the object and purpose of the treaty, is best suited to these texts. If several interpretations are possible, the interpreters should choose the one that will ensure the effectiveness of the treaty in accordance with the principle of effet utille, provided, however, that it is consistent with the letter and spirit of the treaty.
The ambiguity of expression sometimes appears already in the negotiation phase of the treaty because of the difficulty in obtaining consent as to the scope of conceptual terms and related legal consequences. Lack of harmonization can lead to a dispute between the parties.
Examples of problems
Article 4 paragraph 1 lit. c of the WTO Agreement defines the "national industry" using various terminology in WTO languages.
Spanish: "una dilción importante de la producción nacional total de esos productos"
French: "une proportion majeure de la produce nationale totale de ces produits"
English: "a major proportion of the total domestic production of those products"
Special Agreement on the Delimitation of the Maritime Boundary in the Gulf of Maine Area
Against the background of interpretation problems concerning this agreement, a dispute arose between the USA and Canada, settled in 1984 by a judgment of the International Court of Justice. Article 1 of the agreement (authentic in English and French, or rather - in American and Canada), provides that the ICJ Chamber is competent to decide on the course of the border that divides the continental shelf and the fishing zones of these two countries. Both countries have requested that the Chamber set a maritime boundary by providing the answer to the question: “What is the course of the single boundary that divides / Quel est le tracé de la frontière maritime unique divisant” the continental shelf and the fishing zones of these countries. In the content of the ruling the ICJ indicated that there is a significant discrepancy between the understanding of boundaryand frontière maritime with regard to their legal implications. According to the ICJ, the term frontièr maritime may erroneously suggest the idea of a real border between sovereign states, and the ICJ is only authorized to decide on the delimitation of the sovereign rights of coastal states in certain sea areas. The Chamber did not go as far as to deny that the boundary line could run along a noticeable, natural border. However, the ICJ stated that in the case under consideration there were no sufficient geological, geomorphological, ecological or other factors uniquely representing one, undeniable, natural boundary.
United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG)
This convention, which is one of the most important international legal instruments in trade, has 78 states-parties and only six authentic languages (UN). It applies to any contract for the sale of goods between parties whose place of business is in different countries, which implies frequent recourse to it by national courts. High quality of translations is very important in this situation: even if they do not have legal force, they strongly affect the application and interpretation of CISG. Preparation of the text for application by the courts of the states-parties encountered a number of difficulties:
The first unofficial Italian version turned out to be wrong and misleading, which resulted in the need to develop a new version.
The CISG's joint translation into German has been prepared with a view to its inclusion in all German-speaking countries that are parties to it, so as to eliminate a situation where there are different versions in the same language, and therefore CISG would be used in Germany differently than in German-speaking parts of Switzerland. The German version was originally based on the English text. However, because the French version was to serve as an official text in Switzerland, the Swiss delegates, in order to avoid the discrepancy between the French and German versions, in the course of work on the German version referred several times to the French language version. Thanks to this fact, the elaboration of the German text revealed that the texts in French and English contain discrepancies.
The Norwegian legislature chose a different route: the Norwegian text version of CISG has been recast in Norwegian commercial law. This caused a lot of controversy in the international community due to the importance of possible problems that may be generated by translation errors in the case of simple introduction of the text of the treaty into national law.
In the Polish Journal of Laws a parallel text was promulgated - Polish and English, but it should be noted that the Polish text is a translation and the English text is the authentic version, but there are also five other equivalent authentic language versions which have not been published.
Translator is a necessary link
The use of language is an inseparable element of any legal system. Lawmakers use language to form law, and law must provide authoritative dispute resolution regarding the effects of language use. Understanding and interpreting language expressions used in the law-making process must take into account the way in which legal effects depend on the context of use of a given expression.
For the best solution, I think that the process of drawing up the treaty should be not separated from its translation. This would ensure that the actual will of the parties is taken into account in all language versions and would reduce potential applicative problems. Unfortunately, in practice, such undertakings are taken incidentally.
Joanna Osiejewicz (2016), Prawnomiędzynarodowe aspekty tłumaczenia traktatów, „Lingwistyka Stosowana”, T. 19, nr 4, s. 205-215.