1. Introduction
In the modern era of international law, treaties are predominantly published in multiple languages.Footnote 1 However, the interpretation of multilingual treaties is inherently complex, largely because ‘language as a means of communication is fraught with ambiguities, mistakes, and deception’.Footnote 2 This complexity increases where treaties are intended to be implemented in different domestic legal traditions and systems.Footnote 3 Another problem with multilingual interpretation ‘flows from the natural tendency to use the same word in several languages, although the meaning of the word differs considerably from one language to another’.Footnote 4 This is, for example, the case with the term ‘public order’, a concept that is used in various international legal instruments but which has different meanings when used in English, French and Arabic.
According to the Vienna Convention on the Law of Treaties (VCLT), each of the different language texts of a treaty are equally authoritative, unless the treaty provides otherwise.Footnote 5 While the VCLT allows States to presume that terms in each authentic treaty text have the same meaning, and thus the rules of interpretation in Articles 31 and 32 VCLT can be applied to just one of the treaty texts,Footnote 6 there are times when an examination of other, or indeed all, texts of the treaty is required.
Article 33 VCLT sets out the principles for interpreting multilingual treaties. Article 33(4) suggests that differences in meaning between authentic texts are to be resolved, in the first instance, by applying Articles 31 and 32 VCLT to the diverging texts to determine if this ‘removes’ the differences between them. Where differences are not able to be removed through this method, the diverging texts must be ‘reconciled’. An examination of the VCLT rules, key case law and scholarship does not, however, reveal clear guidance on when exactly an examination of multiple texts is to be conducted or how any differences in meaning are to be reconciled.
The literature on Article 33(4) demonstrates that the provision has been ‘the cause of great uncertainty’ and that ‘[o]n the whole, the opinions expressed in the literature appear to confuse more than clarify’.Footnote 7 The vagueness of Article 33(4) in guiding the resolution of discrepancies has contributed to ‘the lack of precision as to the degree or manner in which these elements are to be applied’.Footnote 8 Case law on Article 33(4) is also limited and provides incomplete guidance.Footnote 9 Such uncertainty inadvertently perpetuates the English-centrism of international law.Footnote 10
By analysing relevant case law from international courts and tribunals, together with scholarship on the interpretation of multilingual treaties, this article proposes a three-step method for applying Article 33(4) VCLT to interpret multilingual treaty terms that have literal equivalence in each language but where the terms are, in fact, used in different ways (for example, to reflect or emphasise different concepts). Step 1 seeks to remove differences between treaty terms, applying Articles 31 and 32 to all language texts of the treaty, by selecting a meaning that is common to each treaty language, if one is available. Where a common meaning cannot be identified, the differences between language texts must be ‘reconciled’ (Step 2). This article argues that, unlike the process for ‘removing’ differences, a ‘reconciliation’ of differences allows for some limited modification of available language meanings in an attempt to harmonise them. Where irreconcilable differences nevertheless remain, the language meaning that best accords with the treaty’s object and purpose can be selected as a last resort, in Step 3.
This method—referred to as the Multilingual Interpretive Method (MI Method)—is explained by reference to a case study of the term ‘public order’ in Africa’s regional refugee treaty, the Organisation of African Unity (OAU) Convention governing the Specific Aspects of Refugee Problems in Africa (OAU Convention).Footnote 11 Given the OAU Convention’s potential to protect people fleeing their home State due to climate change and disasters, the scope of refugee protection under the OAU Convention is the subject of particular contention, and is an issue that partially turns on how the term ‘public order’ is interpreted.Footnote 12
Under Africa’s ‘regional refugee definition’ in Article I(2) OAU Convention, people fleeing a serious disturbance to public order in their home State may be entitled to refugee protection.Footnote 13 How ‘public order’ is interpreted in each of the three authentic texts of the Convention—and whether preference is given to the meaning of the English term ‘public order’, the broader French term ‘ordre public’ or the even broader Arabic term ‘al-nizam al‘amm’—directly influences the scope of who may be entitled to protection. Despite the term’s literal equivalence in each language, the concept of public order varies between languages.Footnote 14 These differences arise from the different social and cultural contexts and legal traditions across English-, French- and Arabic-speaking countries (predominantly reflecting common, civil and Sharia law systems, respectively). The failure in existing scholarship or jurisprudence to address these differences and how they inform the interpretation of ‘public order’ in the OAU Convention has made it difficult to identify a defensible interpretation of the term.Footnote 15
This article begins by introducing in Section 2 the key VCLT rules and the threshold at which a comparison of multilingual texts is required under Article 33(4) VCLT. Section 3 sets out the three steps of the MI Method and applies it to the OAU Convention case study. Section 4 concludes.
2. Applying the VCLT to the interpretation of multilingual treaties
The VCLT rules provide the ‘essential infrastructure’ that ‘should be understood and used by all engaged in treaty interpretation’.Footnote 16 As a reflection of customary international law,Footnote 17 the VCLT rules are binding on all States, regardless of whether the State in question has ratified the VCLT. Articles 31–33 VCLT set out the main rules to be applied for interpreting treaties. Article 31 provides that treaty terms must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms in their context and in light of the treaty’s object and purpose. Paragraphs 2 and 3 of Article 31 describe what is included in the ‘context’ of the treaty and what must be taken into account together with the context, including subsequent agreements between the States Parties, State practice and any relevant rules of international law applicable in the relations between the parties. Article 32 provides that supplementary materials may be used where the application of Article 31 leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable.
Article 33 has a particular role to play in the interpretation of multilingual treaties and states:
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.
Article 33 serves four main purposes. First, it dictates how an interpreter is to determine which texts of a treaty are authoritative (paragraphs 1 and 2). Second, it establishes a presumption of equivalent meaning between the different treaty texts (paragraph 3). Third, it sets out the process for harmonising diverging treaty texts where the presumption of equivalence is rebutted (paragraph 4). Fourth, in establishing the process for harmonising the meaning of treaty texts, Article 33(4) directs the interpreter back to the general rule of interpretation in Article 31, supplemented by Article 32, as the first step in seeking to ‘remove’ the identified differences between the terms, following which the meaning that ‘best reconciles the text’ should be adopted.
There is, however, a lack of clarity in treaty interpretation case law and commentary on both the actual process for applying Article 33(4) in practice, and the threshold for triggering Article 33(4)’s application. This threshold issue is discussed immediately below. The process for applying Article 33(4) is a more complex question and is addressed in Section 3.
Even where a treaty has multiple texts in different languages, there is only one treaty: ‘in law there is only one treaty—one set of terms accepted by the parties and one common intention with respect to those terms—even when two authentic texts appear to diverge’.Footnote 18 In line with the principle of the equality of treaty texts, Article 33(3) provides that ‘the terms of the treaty are presumed to have the same meaning in each authentic text’, suggesting that an investigation into the meaning of a term in each language is not required and that any of the authentic texts of the treaty may be relied on.
Article 33(4) provides the circumstances in which further investigation is required of a term in the different languages, that is, ‘when a comparison of the authentic texts discloses a difference of meaning’. There is therefore some implied methodological inconsistency between the apparent presumption of equivalence in Article 33(3) and the ‘comparison of authentic texts’ referred to in Article 33(4).Footnote 19 A key question here is, what triggers a comparison of the texts? Scholars’ views on this question vary.
Tabory suggests that consideration of more than one treaty text is only necessary where a term’s meaning in one language suggests a lack of clarity.Footnote 20 While it is often accepted that routine interpretation may legitimately refer to a single language,Footnote 21 Gardiner argues that a prudent interpreter should remain aware of the possibility that language differences may exist.Footnote 22 Condon goes further to note the important policy reasons for undertaking a comparison of texts, arguing that consulting different texts can be used as ‘an interpretive tool that assists in determining the ordinary meaning of treaty terms in their context, in light of the object and purpose’.Footnote 23 This approach broadly accords with that of Kuner, who also argues that Article 33(3)’s presumption of equivalence ‘actively hinders’ the goal of correctly evaluating the States Parties’ intent as expressed in the treaty, given that ‘discrepancies between language versions are likely to be the rule rather than the exception’.Footnote 24 Dörr goes further again, stating that ‘[w]hen aiming to establish the ordinary meaning of the words of the treaty, as required by Art 31 para 1, the interpreter must consider the words in all authentic language versions, and, as [Article 33] para 4 reveals, it must actually compare them’.Footnote 25
This article argues that Article 33(3)’s presumption of equivalence can be reconciled with Article 33(4)’s reference to a ‘comparison of authentic texts’ by: first, adopting Kuner’s approach of consulting two or three texts for cases of routine interpretation;Footnote 26 and, second, arguing that a comparison of all authentic texts should be undertaken in certain circumstances. Those circumstances are where: the interpreter is aware of a difference in meaning between the authentic treaty texts; a term is vague or ambiguous in meaning; or the fulfilment of a State’s obligations to perform the treaty in good faith turns on the meaning of a particular term or phrase.Footnote 27 An initial high-level comparison may involve, for example, a review of the ordinary meanings in each language based on available dictionary and technical definitions as a starting point.Footnote 28 These comparisons assist in identifying the States Parties’ intentions, encourage textual unity and are a corollary of States’ pacta sunt servanda obligation to perform their treaty obligations in good faith.Footnote 29
The good faith obligation to compare authentic treaty texts will increase with the significance of the interpretation’s consequences in terms of its impact on the rights and obligations of those affected (whether that be States or individuals). The importance of this is illustrated by looking at the term ‘public order’ in the OAU Convention’s ambiguous definition of ‘refugee’, the interpretation of which could considerably alter which individuals States are obliged to protect from serious harm.Footnote 30 The significant potential impact of interpretation on the protection of individuals supports undertaking a comparison of treaty texts at an early stage of interpretation. The recognition by scholars in translation studies of a ‘myth of linguistic equivalence’Footnote 31 —which recognises assumptions of equivalence between expressions in different languages as ‘imaginary’Footnote 32 —gives further strength to treating the presumption of equivalence in treaty terms with caution.
Any identified divergence in meaning that follows a high-level comparison of texts in each language, or that the interpreter is already aware of, would rebut the Article 33(3) presumption of equivalence and a closer comparison of the meanings of the term in each language would be required, by reference to Article 33(4) VCLT.
3. A Multilingual Interpretive Method for applying Article 33(4) VCLT
The uncertainty surrounding Article 33(4) has been said to ‘stem from the lack of precision as to the degree or manner in which these elements are to be applied’.Footnote 33 Applying Article 33(4) is also made difficult by the provision’s silence on how the application of Articles 31 and 32 might ‘remove’ differences and what it means to otherwise ‘best reconcile’ the differences between the terms. While the terms ‘remove’ and ‘reconcile’ in Article 33(4) are themselves ambiguous, the wording of the provision does indicate that a distinction is required between the processes of removing and reconciling.
One important point of agreement in the commentary is clear: to remove or reconcile treaty differences requires that ‘the treaty interpreter should seek the meaning that gives effect, simultaneously, to all the terms of the treaty, as they are used in each authentic language’Footnote 34 or, in other words, that seeks to ‘find a common meaning for the texts’.Footnote 35 Drawing on international case law and treaty interpretation commentary, it is possible to interpret Article 33(4) as requiring three sequential steps for interpreting terms in equally authentic language texts. The three steps for applying Article 33(4) VCLT form what this author terms the Multilingual Interpretive Method (MI Method). Identifying potential differences between treaty languages (discussed in Section 2) can be said to form a preliminary step in which the presumption of equivalent meanings is rebutted. As foreshadowed at the start of this article, the steps of the MI Method are: Step 1: seek to remove differences between treaty terms to find a common meaning; Step 2: where a common meaning cannot be identified, reconcile the differences through a purposive interpretation with the aim of finding conceptual harmony; Step 3: where irreconcilable differences remain, select one of the treaty meanings that best accords with the treaty’s object and purpose as a last resort. Each step is addressed separately below.
3.1. Step 1: Removing differences to find a common meaning
Once an interpreter is aware of a possible divergence in meaning between two or more authentic language texts of a treaty, Article 33(4) VCLT provides that the starting point for seeking to ‘remove’ the differences must be an application of Articles 31 and 32 VCLT.Footnote 36 Because of the principle of the equality of texts, captured by the Article 33(3) presumption of equivalence, applying Articles 31 and 32 should be undertaken with the aim of finding a common meaning between the available ordinary meanings of the term in question and avoiding conflicting interpretations, insofar as this is possible and consistent with Articles 31 and 32.Footnote 37 The aim of this process is to identify a ‘harmonious interpretation’ of any uncertainties in meaning or ‘alternative possibilities’ of the term in each language.Footnote 38 For example, in the Young Loan arbitration the Arbitral Tribunal for the Agreement on German External Debts recognised the importance of ‘trying to remove any discrepancy’ existing between the diverging treaty terms.Footnote 39
The ordinary meaning of the word ‘remove’ is to ‘take away’.Footnote 40 However, entirely removing or taking away all differences in meaning between a term in two or more languages is a fraught task. Identifying meanings that account for nuances in the explicit and implicit uses of the term in one language across different countries poses significant enough difficulties, let alone across different countries with different languages, legal systems, histories and cultures.Footnote 41 Differences in meaning and uses of a term are dependent on social and cultural contexts that can evolve and change over time and with the perspective of those who seek to interpret them. This is reflected in the increasing body of scholarship that recognises Article 33(3)’s presumption of equivalent meaning as a legal fiction given the difficulty of finding equivalence between expressions in different languages.Footnote 42 This does not mean that a harmonised meaning of a treaty term should not be sought. Indeed, it is mandated by the VCLT rules themselves. It does, however, mean that any attempt to ‘remove’ differences between treaty terms must recognise the context-dependent nature of meaning and tread carefully when it comes to drawing definitive conclusions as to the ordinary meanings of terms in each language.
Given the complexities in finding equivalence in the meaning of terms in different languages generally, it is essential to emphasise that the interpreter’s task under Article 33(4) is to try to remove differences in light of the specific context of the treaty in question, as opposed to in a general sense. The treaty context therefore acts as a filter for the various potential explicit and implicit meanings and uses of a term and the concepts they embrace.
That the treaty in question provides the primary context for interpretation is, of course, clear from the VCLT rules. Article 33(4) provides that the process of removing differences between treaty terms must be undertaken in light of the Article 31 and 32 elements that are relevant to the interpretation in question. In practice, the ordinary meanings of the contentious term in each treaty language will provide the primary focus of inquiry, informed by the object and purpose, the textual context of the provision, any State practice and drafting history and how the term is used in comparative contexts.
To ‘remove’ differences in treaty texts therefore involves applying Articles 31 and 32 VCLT to identify whether there is a common meaning between all the texts. This involves: (a) identifying the available ordinary meanings of the term in each treaty language and the concepts that they capture, including by reference to dictionary definitions, the various contexts in which the term is used in both an everyday and, if relevant, technical sense and its uses in comparable international treaties;Footnote 43 (b) applying all other elements of Articles 31 and 32 in the language of the interpreter where there are no other multilingual conflicts apparent between the texts (and thus Article 33(3)’s presumption of equivalence stands); and, finally, (c) putting all relevant elements ‘into the crucible’Footnote 44 to identify whether a common meaning can be found. Step 1 of the MI Method for ‘removing’ difference therefore aims to find a ‘common meaning’, which is one in which the concepts captured by the treaty term—both explicitly and implicitly—overlap in the different languages and demonstrate conceptual unity or equivalence. Conceptual equivalence occurs when the concepts inherent in the term are equivalent in meaning, though they may not be described using the same terminology—for example, the terms ‘peace’ in English and ‘tranquillité’ in French can be considered equivalent in certain contexts.Footnote 45
In some cases, finding conceptual equivalence between terms may involve identifying various meanings of a term in two or more treaty languages, and selecting the meaning in each language which has the same, substantive meaning. This is the approach that was taken by the International Court of Justice (ICJ or Court) in Elettronica Sicula S.p.A. and by the World Trade Organization (WTO) Appellate Body in the Softwood Lumber case in particular, with support for this approach arguably also found in Georgia v Russia at the ICJ and in the Young Loan arbitration. These four cases are addressed in turn to illustrate the process adopted by the court or arbitral body in question.
In both Elettronica Sicula S.p.A. and Softwood Lumber, the ICJ and the WTO Appellate Body, respectively, identified the various available meanings of the English terms and selected the one that best corresponded to the meaning of the term in the other authentic treaty texts in question. Resolving the divergence in meanings in these two cases did not involve a modification of the English terms but, rather, a selection amongst available English meanings. First, in Elettronica Sicula S.p.A., a Chamber of the ICJ identified the English word ‘interests’ in the treaty in question to be broad and encompass ‘several possible meanings’, whereas the Italian term ‘diritti reali’ had a narrower meaning; namely, ‘real rights’. As the narrower concept of ‘real rights’ was held to be captured within the various different meanings of ‘interests’ (which denoted ‘different kinds of rights in land’Footnote 46 ), the Chamber found harmony between the terms, that is, ‘real rights’ provided the necessary conceptual equivalence between the terms in the two languages.Footnote 47 The Chamber’s approach was to select one of the various English meanings which meant ‘much the same thing’ as the more limited Italian meaning.Footnote 48 While the Chamber did not refer to Article 31 VCLT, by looking at the ordinary meaning of the terms in each language by reference to their context and ultimately selecting an available English meaning the Chamber’s approach was one of removing the apparent differences between the texts. That the Chamber was not ‘reconciling’ the texts is clear from its recognition that the United States’ broad interpretation of the English term was ‘more in accord with the general purpose’ of the treaty.Footnote 49
A similar approach appears to have been taken in Softwood Lumber, albeit with more explicit reasoning. In this case, the WTO Appellate Body had to determine whether the harvesting of timber stumps in the ground amounted to the provision of ‘goods’ by reference to the English (‘goods’), French (‘biens’) and Spanish (‘bienes’) meanings of the term under the Agreement on Subsidies and Countervailing Measures. It did so by applying Article 31 VCLT to identify the ordinary meanings of these terms. After considering the meaning of the English ‘goods’ in regular and legal dictionaries, the Appellate Body concluded that the term had both a broad and more limited ordinary meaning, with the broad meaning corresponding to the French and Spanish terms.Footnote 50 Relying on the Article 33(3) presumption of equivalence, the Appellate Body found conceptual equivalence by concluding that the broader meaning of the English term should be adopted, given that ‘the treaty interpreter should seek the meaning that gives effect, simultaneously, to all the terms of the treaty, as they are used in each authentic language’.Footnote 51
In the case of Georgia v Russia, the ICJ used the French text of the treaty to assist in clarifying the ordinary meaning of the phrase in English.Footnote 52 Despite having to resolve a difference in meaning between authentic treaty texts, the ICJ did not explicitly refer to the VCLT. The ICJ’s reasoning nevertheless suggests that it was applying the VCLT principles to interpret and resolve differences. At issue in this case was whether an attempt to settle a dispute was a prerequisite to the ICJ’s jurisdiction under Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Article 22 provides that a dispute between States Parties regarding ICERD ‘which is not settled by negotiation’ or other procedures provided for in ICERD could be referred to the ICJ for decision. The contention in Georgia v Russia surrounded the meaning of the phrase ‘which is not settled’ in Article 22. Russia argued that the phrase required that a previous attempt to settle the dispute must have been made before the Court could hear the matter.Footnote 53 By contrast, Georgia argued that the phrase represented a mere statement of fact and did not establish an obligation to attempt to settle the dispute before the Court’s jurisdiction could be invoked.Footnote 54 In support of its conclusion that the Russian interpretation should be preferred, the Court observed that in ICERD’s French text, the use of the future perfect tense in the phrase ‘qui n’aura pas été réglé’ reinforced the idea that an attempt to settle the dispute must have already taken place.Footnote 55 The Court also noted that the Chinese, Russian and Spanish texts of ICERD did not contradict this interpretation. No reference was made by the Court to Article 33 VCLT. However, using a French text to clarify the ordinary meaning of an otherwise ambiguous English phrase can also be considered a form of selecting an English meaning that has the closest equivalence to the other texts. Put differently, the ICJ appears to have arrived at a conceptual equivalence by using the French text to make explicit what was implicit in the English meaning, when the latter was interpreted in light of ICERD’s object and purpose as well as its general context.Footnote 56
Finally, the 1980 Young Loan arbitration provides another example of a tribunal achieving conceptual equivalence between different language versions of a term by selecting, from amongst various options, a meaning in one treaty language that is closest to a meaning in another treaty language. The Young Loan arbitration involved a dispute before an arbitral tribunal regarding the meaning of a phrase in the English (‘the least depreciated currency’), French (‘devise la moins dépréciée’) and German (‘Währung mit der geringsten Abwertung’) texts of the London Agreement on German External Debts (LDA). The tribunal accepted that the key contentious terms (‘depreciated’, ‘dépréciée’ and ‘Abwertung’) were ‘vague’Footnote 57 and that there was a likely difference in meaning between the English and French texts on the one hand, and the German text on the other.Footnote 58 In this case, the application of Articles 31 and 32 demonstrated that the English and French terms were broader than the German term but could be interpreted as having several possible meanings, one of which was the German meaning. While Gardiner refers to this as ‘a reconciliation in the sense of a meaning being found which was within the range of possibilities in all three languages’,Footnote 59 the method adopted by the tribunal—that is, applying Articles 31 and 32—suggests that this selection of meaning was undertaken in a process of removing differences as opposed to reconciling them (with the latter giving elevated emphasis to the treaty’s object and purpose). That the tribunal went on to also explicitly consider the ‘reconciliation’ of the terms as a second justification for finding the term to have the German meaning (on the basis that it aligned most closely with the object and purpose of the treaty) appears to have been done to address any potential dispute about whether the narrower German meaning was, in fact, one of a number of meanings that the English and French terms could be said to capture.Footnote 60
While the court or tribunal in these cases did not explicitly draw on Article 33(4), with the exception of the arbitral tribunal in Young Loan,Footnote 61 their methods suggest that differences between multilingual treaty terms may be removed by identifying the available ordinary meanings of the treaty term in each language and then selecting a common meaning, if available, so long as this is consistent with the object and purpose of the treaty, textual context, broader context, relevant State practice and drafting history. This is consistent with Article 33(4)’s implicit direction that interpreters seek to remove differences by reference to Articles 31 and 32 in the first instance.
The process of removing or reconciling differences between treaty texts is discussed in each step of the MI Method by reference to Figure 1. Figure 1 shows a simple depiction of the ordinary meanings of ‘public order’ in English, French and Arabic.Footnote 62 The core concepts reflected in the ordinary meanings of ‘public order’ are: (A) public peace or tranquillity; (B) public safety and security; (C) proactive protection of individual rights and freedoms; and (D) public morality.
It is clear from Figure 1 that there is no single meaning common to all three treaty languages. The only point of clear conceptual overlap between the English, French and Arabic meanings is concepts A and B. Extracting a meaning from the languages that only encompasses concepts A and B is, however, impermissible under Step 1 as it involves modifying the Arabic meaning by excluding concepts C and D as well as the French meaning by excluding concept C (and potentially D), as opposed to identifying equivalence between existing meanings. Selecting the narrow English meaning, representing the only point of overlap with concepts A and B, would also involve adopting the ‘lowest common denominator’Footnote 63 —an approach that was rejected by the International Law Commission (ILC).Footnote 64 In such a situation where conceptual equivalence cannot be found, an interpreter would need to continue with the application of Article 33(4) to seek to reconcile the texts, applying Step 2 of the MI Method.
3.2. Step 2: Reconciling differences through a purposive interpretation to find conceptual harmony
If a common meaning cannot be found by applying Articles 31 and 32 in Step 1, Article 33(4) VCLT requires that a meaning which ‘best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted’.Footnote 65 Existing literature and case law do not clearly define what it means to ‘reconcile’ divergent terms.Footnote 66 The use of ‘best’ to qualify the reconciliation does, however, indicate that perfect unity is not what is being sought in this step. Thus, while Step 1 aims to identify a ‘common meaning’ between the language texts, the process of ‘reconciling’ treaty terms in Step 2 seeks to find a meaning in each treaty language that is compatible in content and can be said to reflect ‘conceptual harmony’ between the texts. Conceptual harmony between two or more texts occurs where the meanings of each term are not the same in substance (equivalent) but do closely overlap when considered in light of the treaty’s object and purpose as well as its broader context.
While all elements of Articles 31 and 32 remain relevant to the interpretation of treaty terms, the wording of Article 33(4) makes it clear that, when reconciling divergent texts, the treaty’s object and purpose is ‘singled out as the essential guiding element of interpretation’,Footnote 67 giving the object and purpose a different role to its function under Step 1 of the MI Method where it is one of a number of equal elements.
While the ordinary meaning of the word ‘reconcile’ is ‘to make (differing facts, statements, etc) consistent or compatible with each other’,Footnote 68 the concept of ‘making’ two terms compatible is vague and fraught. Does this require selecting from clear terms, or modifying terms through an interpretation that is consistent with the VCLT to make them harmonious? The ambiguity of what reconciliation requires stems from the distinction between these various approaches.
While scholars differ in their approaches, they agree that there is a stage of the interpretive process at which one language meaning can be preferred by reference to the treaty’s object and purpose: for Linderfalk, that is after the application of Articles 31 and 32;Footnote 69 for Gardiner and Shelton, it appears to be after both the application of Articles 31 and 32 and then making an attempt to combine the divergent meanings (Shelton) or to extract a meaning that reconciles the texts (Gardiner).Footnote 70 The ILC has emphasised that giving preference to one text over another should only be undertaken after ‘every effort [has been] made to find a common meaning for the texts’.Footnote 71 The selection of one meaning over another, as a final attempt to ‘best reconcile’ the diverging texts, therefore constitutes the final step of the MI Method (Step 3) and is addressed in Section 3.3.
Before one text is selected in preference to another, the interpreter must, therefore, undertake a purposive interpretation of the contentious treaty term to find a meaning that ‘best reconciles’ the text (constituting Step 2). This article argues that where it is not possible at Step 1 to find conceptual equivalence between the alternative ordinary meanings of different language versions of a term, a purposive approach to finding a harmonious interpretation can be achieved by first identifying the meanings in each language that are closest in content from the various meanings identified in Step 1; and then interpreting those meanings by reference to the object and purpose of the treaty in a way that finds conceptual harmony. Interpretation under the purposive approach may involve ‘pushing or stretching the meaning’Footnote 72 of the texts towards each other, but only where this is permitted by the treaty itself, such that it can be said that the final meaning is one intended by the parties (as objectively determinedFootnote 73 ). This approach finds support in the reasoning of the WTO Appellate Body in Chile—Price Band System and Safeguard Measures relating to Certain Agricultural Products.
In this case the Appellate Body criticised an earlier WTO Panel for interpreting the French and Spanish versions of the term ‘ordinary customs duty’ as meaning something different from the ordinary meaning of the phrase in English, noting that:
It is difficult to see how, in doing so, the Panel took into account the rule of interpretation codified in Article 33(4) of the Vienna Convention whereby ‘when a comparison of the authentic texts discloses a difference of meaning … the meaning which best reconciles the texts … shall be adopted’.Footnote 74
While the Appellate Body did not ultimately need to explore what was required to reconcile the texts (as the case was decided on other factors),Footnote 75 its approach supports the position that reconciliation requires that the VCLT rules be applied in an effort to harmonise divergent ordinary meanings before one is selected over another.
Returning to Figure 1, conceptual harmony might be found between the English and French terms by adopting an interpretation of ‘public order’ that captures concepts A, B and C where the broad English ordinary meaning includes concepts A and B but could be interpreted by reference to the OAU Convention’s protection-oriented objects as including concept C, even if there is some disagreement about whether, and when, the term includes concept C. Alternatively conceptual harmony might be achieved where the narrow French ordinary meaning includes concepts A, B and C, but could be interpreted as excluding concept D by adopting a purposive interpretation. However, given that it is not possible to purposively interpret the Arabic meaning as excluding concept D without creating a wholly new meaning, the terms can be said to diverge irreconcilably. In this scenario, Step 3 of the MI Method must be applied.
Simplified depiction of the overlap between the meanings of ‘public order’ in English, French and Arabic.
3.3. Step 3: Selecting a meaning in the case of irreconcilable divergences
Case law supports the view that where the texts diverge ‘irreconcilably’—that is, after every effort has been made to find a common meaning—it is acceptable to select the meaning in one of the languages that best accords with the object and purpose of the treaty.Footnote 76 This implies that a process of actual reconciliation, by reference to the object and purpose of the treaty, must be attempted before preferring the meaning of one text over the others.
This means that if, after applying Step 2, the texts can be said to diverge irreconcilably, then the language meaning that best accords with the object and purpose of the treaty should be selected. This is the only point at which a departure from the principle of equality of the authentic texts is allowed.Footnote 77 Selecting one term over another in this context is a final form of reconciling the treaty texts.
The LaGrand case at the ICJ provides an example of this approach. One of the issues that the ICJ had to determine was whether the provisional measures it adopted under Article 41 of the Statute of the ICJ (ICJ Statute) were legally binding. This required reconciling an apparent difference between the English and French texts of Article 41, in which the English text used the ambiguous term ‘ought’, while the French text used the mandatory term ‘doivent’. Ultimately, the ICJ found the mandatory French term represented the correct meaning, relying on Articles 31 and 32 VCLT to resolve the divergence, then giving preference to the ICJ Statute’s object and purpose, which was to enable the ICJ to fulfil the functions set out in the Statute.Footnote 78 Whether the Court was purporting to ‘remove’ or ‘best reconcile’ the difference in meaning in LaGrand is not expressly stated in the judgment. However, the ICJ’s primary reliance on the treaty’s object and purpose makes it clear that it was reconciling the divergent texts.Footnote 79 Whether, in doing so, the Court was selecting the French meaning over an irreconcilable alternative—or was, in fact, purposively interpreting the English ‘ought’ as ‘must’ instead of ‘should’—is unclear. As such, LaGrand may support an application of Step 2 or 3 of the MI Method.
Where two or more ordinary meanings are available in one language, the principle of the equality of treaty texts requires that the selected meaning be one that has the least amount of divergence from the meanings in the other language texts. In the ‘public order’ example given in Figure 1, this could be the reconciled meaning of the broad English and narrow French meaning under Step 2, as long as that interpretation best reflects the treaty’s object and purpose. This also accords with Article 33(4)’s direction to find the ‘best’ reconciliation of the terms.
4. Conclusion
Applying the VCLT rules to the interpretation of multilingual treaties involves navigating an inescapable tension: on the one hand is the principle of unity of the treaty texts; on the other hand are the inherent difficulties in finding linguistic equivalence between the meanings of a term in different languages. The article has argued that this tension requires that some comparison of multilingual treaties’ different texts should always be undertaken when interpreting treaty terms in good faith. Where that initial comparison reveals an apparent divergence in meaning, or the interpreter is already aware of a difference, Article 33(4) VCLT must be applied to remove, or otherwise reconcile, that difference.
This article has sought to fill the current vacuum of practical guidance on how differences in meaning between authentic multilingual treaty texts can be removed or reconciled, applying the VCLT rules. Relying on the limited treaty interpretation case law and literature, this article outlined a three-step method for removing, or otherwise reconciling, the differences in multilingual treaty texts, referred to as the MI Method.
The first step of this method is to attempt to ‘remove’ differences by applying Articles 31 and 32 VCLT to find a common meaning between the diverging treaty texts. This involves: (a) identifying the ordinary meanings of the term in each treaty language; (b) applying all other elements of Articles 31 and 32 in the language of the interpreter where there are no other multilingual conflicts apparent between the texts;Footnote 80 and (c) putting all relevant elements ‘into the crucible’Footnote 81 to identify whether a common meaning (or ‘conceptual equivalence’) can be found for that specific treaty. If differences between the treaty terms remain following the application of Step 1, the interpreter should apply a purposive interpretation to the term in each of the language texts, with a view to reconciling the differences and finding conceptual harmony between the texts (as distinct from equivalence). This can be done by: (a) identifying the meanings in each language that are closest in content from the various meanings identified in Step 1; and then (b) interpreting those meanings by reference to the object and purpose of the treaty in a way that finds conceptual harmony. If, after applying Step 2, conceptual harmony cannot be identified (such that the texts can be said to diverge irreconcilably), one of the available language meanings that best accords with the object and purpose should be selected (Step 3).
While the application of the VCLT rules will not resolve all problems of interpretationFootnote 82 —particularly where interpretation involves ‘mediating between different cultures and identities’ that are inherent in languageFootnote 83 —they do provide a mandatory framework which supports consistency in the application of treaties in practice. This is particularly evident in the case of the OAU Convention’s regional refugee definition, where the interpretation of ‘public order’ directly influences the scope of people protected by the definition.Footnote 84 If a narrow English interpretation of ‘public order’ is adopted—as proposed by Wood, who applies the VCLT without considering the Arabic or narrower French meaningsFootnote 85 —then even severe human rights violations may not justify a refugee claim provided that ‘law and order’ were otherwise maintained, even if through oppressive means. Wood uses the example of South African apartheid in illustration.Footnote 86 In contrast, by interpreting ‘public order’ as proposed in Section 3.3—that is, preferring a reconciled broad English and narrow French meaning by reference to the OAU Convention’s protection-oriented objects, informed by the term’s broader Arabic meaning—people fleeing such egregious breaches of human rights may be entitled to refugee protection.
Resolving the meaning of contentious terms by reference to a treaty’s authentic texts is not only necessary under the VCLT rules but also ensures the integrity of the treaty itself and protects the intentions of the States Parties. It can also contribute to lessening the dominance of the English language in international law, clearly evidencing that other languages have an equally important role to play.
Acknowledgements
The author is grateful to Dr Tamara Wood, Professors Tim McCormack and Ben Richardson and Anja Hilkemeijer for their feedback on earlier versions of the article. The author also thanks the anonymous reviewers and the International and Comparative Law Quarterly editorial team, Anna Riddell-Roberts and Adaena Sinclair-Blakemore, for their excellent comments and support.
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