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Drafting, translation and interpretation of international treaties

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International treaties are written agreements between states. (Some international treaties are concluded not between states but states and international organisations having legal personality.) By such treaties, states bind themselves in written form by the obligations laid down in the treaty. It is therefore important that the scope of the obligations (hence the provisions of the treaty), are clear for all contracting parties. The language (or languages) of international treaties play an important role because they embody and communicate the substance of the agreement. It is not irrelevant whether a treaty has only one or several languages, whether the language of the treaty is a third party language for (most of) the contracting parties or whether it is in their official language.

Until the beginning of the 20th century, international treaties were drafted and authenticated in a single language which was first Latin, then French. French was first accepted as a single treaty language for the General Treaty of the Congress of Vienna in 1815 while underlining that the option for this national language should not be seen as a precedent for the future. (Dinah Shelton: Reconcilable Differences? The Interpretation of Multilingual Treaties, Hastings International and Comparative Law Review, 1997, p. 614.) After the First World War, the Treaty of Versailles had already two authentic languages: French and English. Today as a general rule international agreements are multilingual. An underlying interest of having several authentic languages is to demonstrate the broad acceptance that the international treaty achieved and the sovereignty of the states that are parties to the agreement. These languages draw our attention to the cultural diversity represented among the contracting countries.

What is the authentic language of an international treaty?

International treaties usually define in which language(s) their text is authentic. A treaty might have one or several authentic languages that question being also an issue to be decided by the contracting parties.

Only the authentic text(s) of a treaty is (are) authoritative for the purposes of interpretation.

However, in many cases the choice of authentic languages depends on the language regime of the treaty concerned or of the international organisation under which the treaty was created. Agreements concluded under the United Nations framework are usually authentic in the six official languages of the United Nations (Arabic, Chinese, English, French, Russian and Spanish).

WTO agreements have three official languages (English, French and Spanish) and agreements set up under the Council of Europe are as a general rule bilingual (English, French). It is seldom that a multilateral agreement would be authentic in the official languages of all its contracting parties; the number of authentic languages is restricted in the majority of these agreements. That is also due to the fact that the number of the contracting parties to these agreements, concluded under the auspices of international organisations, is in general relatively high and this high number already excludes or at least limits the possibility of having all their official languages admitted as authentic languages. It would be, for instance, an illusion to have all the official languages of the 78 contracting parties to the UN Convention on the international sale of goods or the official languages of the 32 signatories to the Social Charter as authentic languages of these treaties.

Bilateral treaties are: treaties concluded between two states OR between a state and an international organisation or entity OR between two international organisations.

Multilateral treaties are: treaties concluded between several states and/or international organisations and entities.

As such, there are privileged languages chosen on political, cultural and geopolitical grounds. Although it does not seem to be the general rule, some multilateral treaties are monolingual, mainly English. (See the Agreement on Duty-Free Treatment of Multi-Chip Integrated Circuits.) Although at first sight such restrictions appear efficient since they eliminate the difficulties that multilingualism brings up – especially, in the case of organisations based on treaties, the need for continuous translation and interpretation – the fact of having its own official language among the authentic languages of a treaty can be seen as an expression of cultural identity or a way of ensuring the privileged status of its own language.

The Statute of the International Renewable Energy Agency (IRENA) signed in 2009 is, according to its Article XX. only authentic in English. English was accepted as the working language by the parties at the first meeting of the committee in charge of preparing the treaty. In the end, English became not only the working language but at the same time the only authentic language of the Agency and of the Statute, thereby triggering a diplomatic campaign on behalf of France and the francophone countries to have French obtain the same status as English. Finally, a Declaration was adopted at the signature of the Statute saying that the Statute has also to be authenticated in the official languages of the United Nations other than English (Arabic, Chinese, French, Russian and Spanish), as well as in the language of the depositary (German), on the request of the respective signatories. Of those entitled by this authorisation, France and Germany have availed of the possibility of authenticating the Statute in their language versions.

Even if the restriction of a linguistic regime might be justified for practical reasons, it might at the same time cause practical problems in the case of international treaties which might be applied directly by national courts and which might confer rights or impose obligations on individuals. Given the fact that only an authentic language version can be used for authoritative interpretation, the contracting parties which do not have one of the authentic languages as their national language or do not understand them might encounter difficulties in understanding and interpreting the legally binding text.

Nevertheless, these treaties are often translated into the official language(s) of the contracting parties and published in the national gazette of these states when promulgating the treaty concerned. These translations remain non-authentic texts; that is, that they will not be authoritative for interpretation and mainly serve informative purposes in order to ensure the availability of these texts in the national language. However, their importance might be crucial because individuals and the national courts of the contracting party will most probably consult and use these versions when applying treaty provisions.

While the language regime of multilateral treaties is – even if plurilingual – rather restricted, bilateral agreements are in general drafted in the official languages of the two contracting states and are authentic in both or in all of these languages. In some cases (typically for tax treaties), a ‘neutral language’ is added (in the majority of cases English or French), which shall be the decisive version in the event of diverging texts.4 Most recently, some countries5 began to conclude tax treaties only in English, even where English is not the official language of any of the contracting states.

Even if an international treaty has several authentic languages, the practice is that the text of the treaty is negotiated in a lingua franca (which is, in the majority of cases, English), and the (other) authentic texts are produced as translations by the contracting parties which later exchange the texts for scrutiny. Translation thus plays a crucial role in elaborating authentic texts of international instruments. It is important because, if the original contains ambiguities, it will cause even more misunderstanding and mistranslation at the stage of translation. If, for instance, a word or phrase can have several meanings, it is a high possibility that some of the translations will have a meaning that it is not the one the author or legislator originally intended.6 In addition, the language of negotiation (in which the original was produced) will lose its privileged status after the translations of the other authentic texts are prepared. According to the rules of interpretation of the Vienna Convention on the Law of Treaties, the drafting language will not play any further decisive role in the interpretation of the texts.

Finally it is interesting to note that the TEU and the TFEU are themselves classical multilateral international treaties. In that regard they are unique in being authentic in all of the official languages of their contracting parties. The peculiarity is due to the fact that the two treaties create at the same time a supranational international organisation, upon which traditional national competences are transferred and which therefore is based on the principle of linguistic equality of its members as an expression of their sovereignty.

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