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The (Hegemonic?) Role of the English Language

In: Nordic Journal of International Law
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  • 1 Professor Emeritus, Faculty of Law, Humboldt University, Berlin, Germany; President of the OSCE Court of Conciliation and Arbitration
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Latin was the language mostly used by international lawyers in the early centuries of European history, later replaced by French. In the course of the 20th century, the monopoly of French was progressively eroded by English. At world level, English has become the primary instrument of communication, whose dominance is not confined to diplomatic intercourse, but has also intruded into academia. Numerous international law journals have switched to English at least as a supplementary language. This ascendance of English has the great advantage of ensuring easy communication among lawyers world-wide. Yet the concentration on English leads to neglect of writing in other languages, and accordingly, to an impoverishment of intellectual debate. The use of English, tends to degenerate into a tool of political hegemony. All international lawyers should make an effort to reach at least a passive knowledge of the traditional European languages in order to avoid a “déformation linguistique”.

Abstract

Latin was the language mostly used by international lawyers in the early centuries of European history, later replaced by French. In the course of the 20th century, the monopoly of French was progressively eroded by English. At world level, English has become the primary instrument of communication, whose dominance is not confined to diplomatic intercourse, but has also intruded into academia. Numerous international law journals have switched to English at least as a supplementary language. This ascendance of English has the great advantage of ensuring easy communication among lawyers world-wide. Yet the concentration on English leads to neglect of writing in other languages, and accordingly, to an impoverishment of intellectual debate. The use of English, tends to degenerate into a tool of political hegemony. All international lawyers should make an effort to reach at least a passive knowledge of the traditional European languages in order to avoid a “déformation linguistique”.

1 Introduction

1.1 Historical Antecedents

In legal terms, a specific language of international law does not exist. International law itself may be ideally the authentic language of international relations.1 But it must find a specific reflection in terms of human communication in order to be able to perform its genuine function in the international community. According to calculations put forward by experts having explored the matter, currently more than 6,000 languages exist in the world.2 The fact is, however, that at world level the English language has acquired a dominant position. In universal fora within the United Nations, official documents are invariably drafted in English, albeit alongside other languages, and scholarly debates are also predominantly conducted in that language, a language profoundly permeated by history and tradition. It would be futile to try exhaustively to elucidate the causes for this development. Obviously, much has to do with the powerful position of the United States in the world of today that emerged after the end of World War ii and has left its hallmark on the entire framework of international relations to this date.

Until the middle of the 17th century, Latin was the preferred language in international intercourse. The two Westphalian Peace treaties of Münster and Osnabrück, which put a formal end to the Thirty Years War, were still drafted in Latin; a translation into German followed only some months later promoted by private initiative. However, as from the second half of the 17th century the French language largely displaced Latin as the language of international relations.3 Even though France had been defeated by an international alliance that brought about the end of Napoleon’s rule in Europe, the French language was used to produce the original of the Act of the Congress of Vienna in 1815.4 At that time, English had not yet attained the position which it was going to achieve later in the 19th century. Undoubtedly Latin and French were European languages, reflecting the prevailing denomination of international law as ‘European’ international law.5

Since the transformation of international law into a truly universal legal framework, consolidated under the impact of the un Charter of 1945, the need to dispose of a comprehensive transboundary network of communication has dramatically increased. What seemed originally a fairly remote aim, i.e. that all nations live and cooperate with one another under conditions of peace and security guaranteed by the new world constitution, became progressively a living reality. For that purpose, mutual understanding is a basic requirement. No individual state is in a position unilaterally to impose the appropriate linguistic tools. Not dissimilar from what happened in the past, the preferences for specific languages arose from the actual practices which, on their part, were greatly impacted by the prevailing political conditions of power and might.

1.2 Language and Sovereign Equality

Following the main principle of the international legal order, sovereign equality of states (un Charter, Article 2(1)), all nations should have equal opportunities to participate in the global discourse on legal issues. Inasmuch as international law provides the common framework for peaceful coexistence, no nation should qua lege enjoy any privileges or suffer any kind of discrimination.6 However, free and unhindered communication is not an issue that strictly follows legal rules. Considerations of practicability must also be taken into account. The use or non-use of languages characterises the living identity of human beings, of individuals as well as of peoples, which cannot be changed easily by a stroke of the pen of the relevant political authorities. Therefore, it is rather doubtful whether the proposition that all peoples should enjoy equal opportunities to use their own language in international fora, although being desirable, is susceptible of being stated as a legally binding rule for all instances of international relations.

In fact, the requirement that communication must be possible between and among all those interested in, and tasked with, building a peaceful future based on the rule of law will by necessity take precedence over any national claim to perfect linguistic equality. The prevailing realities cannot be ignored. Linguistic patterns and habits do exist and persist. Endeavours to maintain or build a convenient linguistic regime for international law must proceed from that given. On the other hand, any student of the problématique must be aware of the fact that linguistic habits in international relations are more than formal technicalities. The disappearance of Latin in the scholarly discourse as from the 17th century, the emergence of French as the leading language afterwards and its slow decline at world level during the 20th century amply demonstrate that linguistic preferences reflect constellations of power. A state that succeeds in elevating its national language to the status of preferred means of communication in international relations ensures for itself a massive advantage. It can make its voice heard without any difficulties of a semantic nature. What its statesmen and diplomats say is invariably correct from a formal viewpoint of grammar and style and enjoys therefore generally a greater power of persuasion. In oral presentations, those agents may achieve a degree of natural freshness which those who have learned a foreign language later in life will never attain.

In particular, where at the diplomatic level a person is compelled to use one of the great diplomatic languages outside his/her own native experience, he/she can never avoid endorsing, at least implicitly, the wealth of the historical tradition of that language. Of necessity, legal concepts have their past if they are not children of the modern bureaucratic processes that coin new words almost on a daily basis. Obviously, agreeing on a specific language of communication is not meant to accept as such all the connotations which the terms of that language have acquired in their history. The European courts, the European Court of Human Rights7 as well as the Court of Justice of the European Union8 have consistently followed a line of reasoning according to which the concepts contained in the multilateral instruments under their jurisdiction are endowed with an autonomous meaning that cannot be identified by deducing it from the relevant meanings in domestic settings. And yet, automatically, the interpreter will look, in cases of doubt, for clues where they can be found, primarily in the law of those countries where the controversial concept has acquired a specific legal connotation. Governments may also insist that a specific treaty must be interpreted in harmony with their domestic legislation. Famous cases in point abound. We confine ourselves to mentioning, for the time being, the famous reservation entered by the United States in respect of the International Covenant on Civil and Political Rights by stating:

The United States considers itself bound by Article 7 to the extent that “cruel, inhuman or degrading treatment of punishment” means the cruel and unusual treatment of punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States.9

This reservation led to bitter controversies between the United States and its critics with regard to the detainees held at the Guantánamo camp in particular concerning the so-called ‘waterboarding’ practiced by the military authorities with a view to extracting confessions from the prisoners held by them.10

In sum, it may be stated that one encounters a certain paradox in the field of linguistic trans-border communication. On the one hand, agreeing on common standards of communication epitomises the quest for peaceful international relations in a spirit of bona fide cooperation. On the other hand, the observer should not overlook that the search for a common linguistic denominator may at the same time amount to a competition for power through linguistic dominance. This competition is not confined to political relations. In the academic world, similar phenomena can be observed. Here, the configuration is normally a different one. Almost never will it be contended that a specific language is totally inappropriate as a vehicle for the exchange of observations and ideas. However, scholars do not only strive for the truth, at the same time they compete for influence and reputation, employing for their personal ambitions the means that seem most suitable to reach that objective.

2 Official Languages in International Relations

2.1 The World Level

2.1.1 The League of Nations

Two different areas of linguistic uses in respect of international law should be distinguished from the very outset. On the one hand, international relations need formal rules which, however, need not be uniform for the entire world or specific regions. Multilateral and bilateral relations may take on different shapes according to the convenience of the participating actors. Obviously, states are free to choose for their international transactions the language that is most familiar to them.11 For bilateral treaties mostly the languages of the two parties are preferred. Where one of the two languages is almost unknown in the other country, the parties may agree on a third intermediate language as a common denominator.12

It was a striking novelty to reasons in terms of a world-wide regime when after World War I the League of Nations was established. Before 1919, it would have seemed preposterous to introduce elements of a political order designed to embrace the entire world. Still during the 19th century, the technological capacities of humankind were fairly modest. One could not seriously envisage international bodies to which every state would send a delegation to articulate its wishes and concerns. Travel by air was unknown before 1914, and travel by sea could take several long weeks. The ‘Great War’ contributed significantly to facilitating transboundary intercourse through modern means of transport. Telegraphic lines were built, and some years later the telephone made its entry onto the stage. Under these revolutionised conditions, the responsible statesmen could for the first time seriously think of creating a world-wide political organisation. Immediately, the question arose which languages should be chosen as the official languages within that new intergovernmental and administrative framework. At the Peace Conference in Paris in 1919 between the victorious powers and their former enemies, France demanded initially that the negotiations should be held in French. This suggestion was rejected by the British Prime Minister Lloyd George, and supported by the American President Wilson. Eventually France had to accept the equivalence of the English language,13 which found its confirmation in Article 440(3) of the Treaty of Versailles,14 of which the Covenant of the League of Nations was an integral part (Articles 1 to 26). Thus, the determination was implicitly made that French and English should be the official languages of the new organisation. As it was reported, the French language maintained itself most successfully during the first years of the League of Nations’ life, being more frequently used in official speeches both in the Assembly and the Council than the English language.15

The Permanent Court of International Justice, the first world court, had not been set up directly by the Covenant of the League of Nations. Article 14 confined itself to stating that “[t]he Council shall formulate and submit to the Members of the League for adoption plans for the establishment of” such a court. In this regard, the rule laid down for the League of Nations was the decisive precedent. Article 39(1) of the Statute followed that determination precisely, notwithstanding proposals by a preparatory Jurists’ Committee to choose French alone as the official language.16 As Fachiri points out, “the importance of English as an international language and the recognition of the bi-lingual principle by the League of Nations” motivated that choice.17

2.1.2 The United Nations

Obviously, the bilingual character of the linguistic regime of the League of Nations was not appropriate as yardstick for the new world organisation that arose from the ashes of World War ii. It could soon be realised that the membership would reach far beyond the European continent to comprise in any event all those countries that had already reached their sovereign independence. Clearly, the aim was to attain universality. In that perspective, language as a core element of the cultural traditions of the new members could not be ignored but had to be integrated into the world-wide structures to be established.18 To select only English and French would also have appeared as an attempt to repristinate the colonial empires that were on the verge of erosion or even collapse. Nonetheless, in the interest of practicability, certain limits to a system of multilingualism had to be drawn.19 On understandable grounds, the five countries pre-determined as permanent members of the Security Council insisted on having their national languages each recognised as official languages of the United Nations and had no difficulties in getting their demands granted.20 On the other hand, in recognition of the active cooperation of the 18 Latin American countries in the work of the founding conference, and as an element to secure their support in the future, Spanish was added as an additional fifth official language.21 In 1973, Arabic was later recognised as one more of the languages enjoying a preferential status.22 The German language has been elevated to a semi-official status. A special translation section was established within the un Secretariat with the mandate to translate the most important documents of the un system.23 The documents produced by that section are official un documents.24 However, the German-speaking countries themselves have to bear the costs for this special service.

The quality of a language as official un language did not mean, at the original stage of the implementation of the Charter, that all documents would be translated into all of those languages. Only English and French were at the same time recognised as working languages. Pursuant to later changes of the Rules of Procedure that distinction was abolished. Currently, Article 51 of the General Assembly’s Rules of Procedure25 provides that all six official languages shall at the same time be the working languages of the Assembly itself and of its committees and subcommittees. The same provision can be found in the Provisional Rules of Procedure of the Security Council (Article 41).26 Other institutions have simplified their procedures. The un Secretariat uses only English and French as working languages,27 while ecosoc contents itself with English, French and Spanish.28

Notwithstanding those clear rules, difficulties have continually arisen within the un system regarding the effective implementation of the multilingual regime. The General Assembly has consistently shown its concern regarding effective equality in the use of the six official languages.29 For that reason, it even instructed the Secretary-General to appoint a special coordinator for issues of multilingualism throughout the Secretariat.30 The tasks of the institution, which were originally performed by a senior officer of the Secretariat, have now been entrusted to a higher-ranking personality, an Under-Secretary-General.31

Notwithstanding these efforts, it appears that in particular the English language has won a decisive edge over all other official languages within the un system. Drafting of international acts takes mostly place in English. Arabic and Russian have definitively fallen behind, and documents are many times available only in English. Many of the websites provided by the New York Secretariat exist only in English. May it suffice to give a few examples. The database that collects all the data concerning the treaties registered with the United Nations is available only in English. For the student it is rather difficult to obtain precise information about the names of all treaties with their authentic denominations in other languages. Likewise, the database relating to the work of the International Law Commission, a most useful tool for any kind of research in the field of international law, is maintained only in English. Apparently, the requisite work power for establishing perfect parallel systems in all the other official and working languages is simply lacking. The scarcity of financial resources trumps all formal rules in the full light of the day. The two inconsistencies just mentioned could be supplemented by a tremendous amount of other discrepancies where a gap has arisen between what is politically desirable and indeed set forth as legal command, and what can be achieved in practice. Quite obviously, the assumption is made that anyone engaged in the business of international relations must be able to work in the English language. No easy remedy is at hand to overcome this restraint – except for candidates by trying to attain a perfect command of the English language.

For obvious reasons, the linguistic regime introduced for the International Court of Justice (icj) under its Statute, which is an integral component of the Charter (Article 92), could not follow the model conceived for the un itself. In judicial proceedings, it would be extremely difficult, even outright impossible, to work within the framework of six equivalent languages. It was also clear at the time of the founding conference in San Francisco that neither the Soviet Union nor China had any sufficient experience with international adjudication. No one could foresee how these two countries would handle their responsibilities in respect of the icj. The Western powers could not avert the entry of Chinese or Russian judges into the Court but they were certain that the acceptance of Chinese or Russian as procedural languages would be tantamount to a death sentence for the future icj. Fortunately, an easy answer could be found by agreeing that, with slight modifications, the provisions of the Statute of the pcij would be chosen as the Statute of the icj.32

This choice has been maintained for more than 70 years. To date it has never been seriously contested. However, with regard to the international criminal tribunals critical voices have recently suggested that French should be given up as one of the procedural languages. It has been argued that French is “unfit as a common working language” due to the bias that it creates against Asian and Latin American nations.33 This far-reaching suggestion provoked an angry reaction on the part of the French ambassador to the Netherlands who vigorously upheld the specific advantages of the French language:

The benefits of the French language, including within international criminal justice, that are so quickly swept aside, are real and are here to stay in accordance with the intentions of the Rome Statute negotiators.34

That French remains a privileged language for the purposes of international adjudication constitutes a precious asset not only for France, but for the entire international community. To have two languages at one’s free choice guarantees a certain space of freedom of action in political terms. The use of a foreign language for the vindication of legal objectives is not just a bureaucratic decision but may involve highly delicate political overtones. Whoever considers himself distant from the Anglo-Saxon culture may wish to find an alternative – the only one before the world court being French. The retention of French should therefore be defended as an option in order to avoid, to the extent possible, an absolute dominance of the English language with all of its attendant consequences. A different appraisal may be warranted with regard to international criminal jurisdictions operating within an environment that has no connection whatsoever with the French cultural space.

For the maintenance of French as a procedural language it is essential always to have Francophone lawyers on the bench of the icj. Of course, no such person needs to be a French national. The territorial extension of the Francophonie reaches far into Africa and has also firm foundations on the American continent (Canada, Haiti). Nonetheless, to date France has consistently endeavoured to send a French lawyer to the Court. All the permanent members of the Security Council are convinced that they possess a natural right to a judgeship post in The Hague. Neither the Charter nor the Statute of the Court, however, set forth such a rule. Accordingly, the permanent members of the Security Council cannot be sure that the seat of one of their nationals will automatically be passed on to another one of their nationals. It is undeniable that the linguistic regime of the un has repercussions that go far beyond the technicalities of such a regime.

2.2 The European Level

2.2.1 The Council of Europe

The first regional organisation that emerged in Western Europe after World War ii was the Council of Europe (CoE). At that time the name given to the new entity was more a promise than a firm reality since the states of Central and Eastern Europe, placed under Soviet control, were not allowed by their socialist regimes to adhere to a coalition of countries that had embraced the principles of liberal Western democracy. Without any great discussion, English and French, the national languages of the main victorious powers of World War ii and at the same time the classic languages of diplomatic intercourse, were adopted as the official languages of the organisation.35 The Federal Republic of Germany could not join the first group of states that signed the Statute on 5 May 1949, a few days before the entry into force of the Basic Law (23 May 1949) that made the new form of the German state36 operative. Given these circumstances, German had no chance of being introduced as an official language of the CoE. After the ratification of its Statute on 13 July 1950, the Federal Republic of Germany was first admitted as an associate member, a status that was converted into full membership on 1 May 1951. No change of the official language policy took place after Austria, Switzerland and Liechtenstein had become members of the CoE, and not even the accession of the German Democratic Republic to the Federal Republic of Germany in 1990 led to a recognition of German as the third official language, although by now the group of native German speakers was by far the largest among the members of the CoE. Efforts undertaken by the federal government for a review of the bilingual monopoly have been of no avail. The federal government has never supported its request by a sufficiently high degree of pressure.37 Currently, no relevant diplomatic activity can be observed. The argument seems to have won the upper hand that the activities of the CoE would become enormously complex through a third official language and that considerably higher costs would be entailed which a majority of the members would not be prepared to bear.38

2.2.2 The Organisations of the European Integration Process

2.2.2.1 The European Coal and Steel Community

When the European integration process started, the states parties had an option that never had existed at the world-wide level: they could agree on a linguistic model that would recognise all the relevant national languages as official languages. Within the universal framework, such an option would have meant from the very first moment Babylonian confusion. No governmental structure is imaginable that would be able to accommodate more than one hundred languages. At their start in 1951, the Europeans could go that way, being a community of six nations and just four national languages.39 Yet they began their journey with an unfortunate misstep by determining that only one copy of the Treaty Establishing the European Coal and Steel Community,40 the first one of the integration entities, would be produced (Articles 99, 100) and that the instruments of ratification would have to deposited with the government of the French Republic. It was not said explicitly that this copy would be drafted in French and that it would provide the only authentic version of the Treaty but that was clearly the connotation of the two articles.

Obviously, this determination had a symbolic importance. On the one hand, after having overcome many doubts, France had consented to become an ordinary member of the European Coal and Steel Community without any preferential status vis-à-vis the other member states.41 In contradistinction to this approach of conciliation six years after Germany’s surrender, France may have wished to manifest that, as one of the victorious nations, in political terms it stood at a higher level than its partners. Germany had to accept this surge of former grandeur, and Italy, likewise debilitated by the war, was not in a position to object to the French position. On the other hand, the three Benelux countries had no interest in intervening in such diplomatic finesses. They were satisfied that the ecsc had been brought about as a visible sign of reconciliation and peaceful cooperation.42 On the other hand, it should be observed that at the same time a well-balanced agreement was reached on the linguistic regime under which the ecsc would operate in full respect of the principle of sovereign equality. All four national languages of the states parties were recognised as working languages of the new organisation.43 The initial appearance of an ambition of hegemonic dominance44 was thus refuted by the French government itself that was perfectly aware of the damage that the regime of control over the Ruhr area under the regime introduced by the Treaty of Versailles in the 1920s had caused not only to Germany but ultimately also to France itself.45

2.2.2.2 The European Communities from 1958 Onwards

When in 1957 the two successor treaties to the first European integration treaty of 1951 were elaborated, any return to the former linguistic model was excluded from the very first moment. France could not legitimately claim any preferential status. Likewise, the notion of introducing German as the only authentic language would have appeared even more absurd. After the excesses of the national-socialist Hitler tyranny, Germany was happy to be treated again on a perfect level of parity with its other five partners. Accordingly, the four languages of the participating states were recognised as fully equivalent. The Rome treaties on the Establishment of the European Economic Community and on the Establishment of the European Atomic Energy Community were issued in four authentic versions (eec Treaty, Article 248; eaec Treaty, Article 225). Additionally, on the basis of Article 217 of the eec Treaty a language regime was framed that took fully account of the basic determination that the four languages of the treaties would at the same time be the working languages of the institutional and administrative machinery of the two new Communities.46

Initially, it was not only fairly easy to live with a regime of perfect equality of the four official languages of the founding nations, but it was also dictated to a great extent by the specific characteristics of the revolutionary class of ‘Community law’. Indeed, Community law had features which ordinary rules of international law are simply lacking. In their great majority, they directly address the individual citizen, conferring rights and imposing duties that require no support or mediation by the domestic law of the states parties. In accordance with a proviso in the ecsc Treaty characterising the High Authority (Article 9), it was generally called ‘supranational’ law. Given this specific feature, it was – and is – indispensable for the ordinary citizen to be able to read him/herself the relevant texts. Under the rule of law, all legal prescriptions must be accessible and understandable for everyone. Accordingly, the system of implementation chosen, mostly direct applicability, required that all the texts of secondary legislation must be available in the national languages of all states parties. Therefore, all proposals suggesting to make English the common language of Europe are just illusionary.47 No other international organisation has ever established such a sophisticated multilingual system whose complexity continued growing with the admission of numerous new member states, the culmination point having been reached in 2013 with the accession of Croatia to the European Union.48

It stands to reason that in the European Parliament (ep) effective equality of languages is also dictated by the functional necessities of this democratic institution. Persons elected as members of the ep must be able to express themselves freely without any hindrance. To force them to make use of another language than their home language would infringe their mandate as trustees of the people who elected them. Rightly, in an official note, the ep declares: “It would be unreasonable to require meps to have a perfect command of one of the more frequently used languages, such as French or English”.49 The Rules of Procedure of the ep provide therefore for absolute freedom to make use of any of the 24 official languages of the eu (Rule 158). This is not the place to engage in a critical investigation as to whether the lofty principle of parity is always respected. Understandably, to work on a daily basis with 24 official languages places a heavy burden on the administrative services of the ep. Although from time to time complaints have been voiced, the system seems on the whole to work in a satisfactory manner.

The specificities of Community law had consequences also for the judicial system. From the very outset the restriction of the official languages to a hard core of two as practiced by the two world courts had to be rejected. Contrary to the pcij and the icj the Luxembourg Court was established as a court open to everyone feeling aggrieved by an alleged encroachment of his/her rights. At diplomatic level it may be fully justifiable to permit the use only of two leading languages; for a people’s court like the Court of Justice of the European Communities (now: Court of Justice of the European Union), such limitations would have been tantamount to an illegitimate departure from the internationally recognised right to a remedy. Therefore, all the official languages of the member states were recognised as procedural languages for all intents and purposes.50

With the extension first of the European Communities, later of the European Union, managing a linguistic system with currently 24 official languages became progressively more delicate. Almost by necessity translations were not always accurate. Many writings have deplored the discrepancies between the different versions of judgments. On the whole, however, the Court has succeeded admirably well in performing its judicial tasks in so many different clothes. One specific practice has ensured, above all, the unity of the jurisprudence. The internal working language of the Court is French,51 including the internal deliberations of the judges, and the original working copy of a decision is invariably drafted in French. The enlargement of the Communities/Union, which has strengthened the English-speaking elements of the Court, has not led to an abandonment of that early practice. After the (yet uncertain) Brexit, there will even be fewer grounds to relinquish the French language in favour of English.

Notwithstanding the official status of parity of all official national languages of the eu member states, the practice has evolved in a different sense in some areas. All the official documents designed to apply throughout the eu are drafted in all 24 languages. In particular, the Official Journal of the eu is issued in 24 different language editions. However, in the work of some of the institutions, it has turned out that perfect equality cannot be maintained. This applies in particular to the Commission, the main executive arm of the eu. The Rules of Procedure of the Commission52 do not mention any specific adjustments of the linguistic regime to the needs of the workload to be tackled on a daily basis. Yet, according to informal arrangements English, French and German have been designated as the working languages of the Commission. Here again, some differentiation has taken place. English is resorted to most frequently, while French has to content itself with the second position. German, on the other hand, has fallen back in daily practice although it is the most widely spoken language used by the European citizens. This is a factual development which in the long run may have negative repercussions for the legal status.53 Many complaints have been raised in Germany concerning this development. Yet no effective remedy is available against such encroachments of statutory rules. The states and the persons concerned themselves must engage their best efforts with a view to defending their linguistic positions.

2.3 National Adjustment to English

The continuous progression of English has also led some national institutions to switch to English in order to ensure that their activity receive broader international attention. Thus, the German Federal Constitutional Court, after some not very fortunate early attempts at least to provide some of its most important judgments of the past in the English language,54 has begun a practice of publishing, at the time of the delivery of a seminal decision, at the same time a translation into English.55 Regarding disputes over legal issues relating to European and international law, great care is now taken to publish almost all relevant decisions. Thus, crucial judgments on developments in the European integration process expected by political circles everywhere in Europe are immediately made available to the public not only at home but also abroad. Significant examples in point are the judgments on the constitutionality of the Lisbon Treaty on European Union,56 on the requirement of a parliamentary decision for military rescue operations in emergency situations,57 and on the compatibility of the policies of the European Central Bank with the limitations of those policies imposed by the Lisbon Treaty.58

The Venice Commission of the Council of Europe has also established since 1993 a database called ‘codices’ where the most important decisions of the constitutional courts of all the member states of the organisation can be found in their original version and additionally in translations into English or French.59 Thus, judgments are brought into the public fore that otherwise very few people beyond the relevant national borders could have taken note of.

3 Languages Used in Scholarly Communication Processes

The preceding considerations have focused on the official legal regimes within different organisations, in particular the United Nations, the Council of Europe and the European Union. As far as societal initiatives are concerned, no such system of fixed rules is conceivable. Everyone has the right to express him/herself in the language chosen by him/her on any ground, whether rational or capricious. To speak the language of one’s own choice is an essential element of personal freedom. To interdict the use of the language of a specific ethnic community amounts to a grave curtailment of elementary human rights.60 Under the relevant international instruments, freedom of expression includes the right to articulate one’s opinion in the form deemed most suitable by its author.

In the relations between governmental authorities and private individuals states may edict rules to render contacts smooth and effective. Every state has its official language that, in principle, both nationals and aliens must use as they request any kind of governmental benefits. In society, however, everyone may act according to personal preferences and predilections. German authors may write books in English or French, and foreigners may reciprocate by writing texts in the German language. This is not a rare phenomenon today inasmuch, in particular, as English has become the lingua franca in large parts of research and investigation. The tendency towards publishing in English may be seen as a positive step towards true globalisation or may be criticised as treason to the detriment of the patria. These are sociological judgments that have their full legitimacy but lack a legal background. From the viewpoint of law, scholars like any other writers act in full independence when publishing the results of their work.

On the other hand, the question must be allowed also for a lawyer: what does it mean if academic discourse abandons massively linguistic diversity by pursuing its course under the cover of one preferential language? Does one just have to accept the new tendency as irreversible, showing concern or applause according to personal taste, or does the ‘Englishisation’ deserve at least some reflection on its origins and its possible outcomes?

The questions just raised will be discussed in the following in more detail with regard to the literature on international law. No attempt will be made to discuss the issue across the board with regard to all disciplines of modern science. The present author is obviously not qualified to look, e.g., into medicine or engineering. International law is a discipline which, by its very nature, requires being taken care of by lawyers from all the regions of the world, without any discrimination or preference. A national system of international law would be a contradictio in adiecto although powerful countries have from time to time felt tempted to proclaim their own conception of international law as being the true frame of reference for international relations. Thus, today’s Russia has not yet totally abandoned its imperialist theories about the near abroad or the permissibility of intervention with a view to rescuing like-minded political regimes against their will. Smaller states would know from the very outset that they cannot escape from the cage of rules of international law in the elaboration of which other states have played a more significant role. In any event, it is worthwhile enquiring how the authors in that field communicate with one another and what role the languages used play in creating a common ground of discussion or establishing instead special areas of discussion separate from one another. Particular attention will be devoted to the ascendance of the English language in recent decades.

3.1 The Traditional Language Pattern in International Law

One famous series of publications has not changed for almost 100 years, as it seems. The Collected Courses of the Hague Academy of International Law are published alternatively in English or French since their inception in 1928. In a certain sense, the Collected Courses constituted a mirror image of the practice of the pcij where English and French had been established as official languages a few years earlier. No other language has been admitted as a teaching language in The Hague although the Hague Academy has turned to organising courses in other continents where indeed other languages could have been resorted to as appropriate. Currently, many lawyers prefer to give their courses in English, being concerned that their teachings in the French language might find less attention in juristic circles. This preference for English has not deterred the Academy from continuing on its path of an equilibrium between English and French. It appears, on the other hand, that the Academy has a broader choice of candidates when it organises a specific course in English.

3.2 The New Trend: Switching to English

Regarding other periodicals, it is striking how considerably the English language has gained ground. The European Journal of International Law was founded in 1990 as a bilingual publication. English and French were the two languages chosen to ensure the best outreach to the community of international scholars. However, a few years later, in 1998, the publication moved from a consortium of European publishers to a single publisher, Oxford University Press. On that occasion, French was thrown out as an appropriate form of publication – without any word of explication from the editors61 who apparently found it self-evident that a publisher from the United Kingdom could not possibly promote legal texts written in French. Since that time, juristic articles on issues of general international law drafted in French can find a home only in the Annuaire français de droit international, the Revue générale de droit international public or the Revue belge de droit international.

In Germany, the publishers became aware fairly early of the necessity to switch totally or partially to the English language in order to secure a broader dissemination for pieces written by German authors. The Jahrbuch für Internationales Recht, founded in 1948, was transformed into the German Yearbook of International law (as from volume 19 in 1976), which is now completely reserved for articles in English. The leading German periodical, the Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV), issued by the Heidelberg Max Planck Institute for International and Comparative Public Law, appears since 1989 (volume 49) with the sub-title ‘Heidelberg Journal of International Law’, preferring to carry articles in the English language but not excluding articles in German. It thus remains in the precarious situation of a bilingual periodical that many librarians delete from their lists of subscriptions. Likewise, the traditional periodical Die Friedens-Warte (Peace Monitor), which got its somewhat dusty title in 1899 when a strong peace movement challenged the inconsiderate policies of the imperial German government, also has given itself a sub-title (Journal of International Peace and Organization) in order to appeal more to readers of our modern times. The trend seems to be unstoppable. Only the Archiv des Völkerrechts has kept its sole title in German but has also switched to publishing articles in English and on some rare occasions also in French.62 In general, however, the French language seems to be drying up in all of the German periodicals of international law.

The German scholarship thus follows a trend which started much earlier in smaller European states with national languages that can find only a limited circle of readers. In the Netherlands, the Nederlands Tijdschrift voor Internationaal Recht, born in 1953, disappeared in 1974 to be reborn as Netherlands International Law Review. During its existence of 21 years, the Tijdschrift had pursued an open policy by publishing together with pieces in Dutch also articles in English and French (apparently never in German). The same fate happened to the Nordisk Tidskrift for International Ret as a consequence of World War ii. From 1930 to 1946 (Volume 17) the Tidskrift appeared under its Scandinavian title.63 In 1947, the editors must have felt that the time had come for a fundamental change, the world having turned against the small countries, not being prepared any longer to listen to them in their original voices. As from that date, the same periodical in continuous numbering calls itself Nordic Journal of International Law.

It is striking that some publications that first appeared in French were eventually translated into English since it could not be overlooked that the French version received little attention in international legal circles. The most prominent case in point is the commentary on the Vienna Convention on the Law of Treaties. The French edition appeared in 2006;64 the English edition followed several years later.65 It has been received much better and belongs now to the textbooks of international law that every international lawyer uses on a daily basis. Once again the equivalence of French and English as languages of international law was put into doubt.

The list of advances of the English language in the field of international law could be extended almost ad libitum. We will confine ourselves to mentioning only a few spectacular examples. Not even proud old languages have been able to resist the forces pressing for adjustment to the needs of modern society. In Italy, the project of an Italian Yearbook of International Law started in 1975. Forty years later, it has attained 24 volumes. For a large part of Italian lawyers to write in English is particularly depressing because for them ‘la dottrina’ plays a key role in legal discourse. The intricacies of many of the disputes fought between the different ‘schools’ cannot be reflected easily in the English language. Thus the articles written by Italian authors, if published in the Italian Yearbook, have become much simpler regarding their linguistic form – and better to read for those for whom Italian is not the mother tongue. Thus, by establishing this new publication, the Italian scholarship has increased its influence in international relations. At the same time, the existence of the Italian Yearbook can be interpreted as a sign of resignation, acknowledging that the brilliant Rivista di diritto internazionale will be confined, under the current circumstances, to a small group of experts familiar with the Italian language, many times out of love for the country and its people.

Polish has never been a widely acknowledged language of international relations. Therefore, it was logical for Poland to found a Polish Yearbook of International Law to make its voice heard in the international community. Otherwise, Poland would have remained a black spot on the map of knowledge. One has the impression, though, that more attention should be devoted to those voices from the eastern centre of Europe.

For a country that in political terms plays a leading role in the world it would appear to be essential to consolidate its policies by legal arguments, in particular if those policies are pursued at the borderlines of right or wrong. Thus, Russia should have a vivid interest in presenting to the world its positions on many issues that concern its relationships with its neighbours. If criticised in political fora, Russia can always put up a rhetorical defence, and whoever knows the practice of the un institutions only a little bit knows how vigorously the Russian Federation normally reacts when being attacked on legal grounds. But this is not enough. A country must also try to win the minds of legal scholars throughout the world for its position. In this regard, Russia finds itself in a true dilemma. Very few international lawyers are able to read original Russian texts. What is published in the Russian language remains therefore confined to a small circle of specialists. On the other hand, Russian lawyers, like I.I. Lukashuk or A.L. Golodkin, both members of the International Law Commission, have been slow to react to this calamity by turning to Western periodicals. The Moscow Journal of International Law, originally a publication in Russian, tried to bring out some of its issues in English but according to available information only a digest of what thus appeared in 2000 and 2001 was produced.66 This is for Russia a deplorable state of affairs. Of course, scholarly periodicals should never serve as instruments of political propaganda. A national review of international law may, however, be employed most usefully in an objective way to provide a picture of the international law practice of the country concerned, which is not only useful for the country itself but also for any other actor with whom it entertains official contacts. The American Journal of International Law,67 the British Yearbook of International Law, the Annuaire Français de droit international,68the Revue générale de droit international public 69 and the (German) Heidelberg Journal of International Law all take care to provide an overview of their national practice. The usefulness of such panoramic balance sheets is enormous. They provide an opportunity for self-justification but permit at the same time the outside world to make a critical assessments of the legal reasons put forward officially on major issues of legal policy. In this regard, the Russian Federation is way behind. It has not developed the potential resources which it has at its disposal.

China became aware a couple of years ago that international law should not be neglected as an important tool in the processes of international cooperation, which are at the same time an international power game. The Chinese Journal of International Law was founded in 2002. In a programmatic declaration at the launch of this review, the editors stated, underlining the fact that in China hitherto no legal periodical was published in English, that the

international community would need to have access to viewpoints and materials from and about China …We do hope that the views published in the Journal will be a force to reckon with in other parts of the world, and this will help to strengthen the scholarship and decision making around the world.70

Thus, from the very first moment, the editors emphasised that they were not only keen on presenting materials from China and Chinese viewpoints on international law, but that they saw the Chinese voice as an important element in promoting international law as a universal discipline relating all nations to one another.

When going through the issues of the Chinese Journal of International Law that have hitherto come out, one finds out that as a matter of principle China accepts the system of international law as it has evolved up to the present time. The writings authored by Chinese scholars are exempt from any anti-colonialist bias. In many articles, authoritative Chinese representatives71 and scholars72 formally acknowledge the core principles of international law. Moreover, the Chinese Journal of International Law graciously offers its pages more often than not to Western authors who reason along the traditional lines of the discipline. On the other hand, the complaint is voiced that the discourse on international law is largely dominated by a closed group of scholars:

The development of international legal theory proceeds within a tight geographic space. Normative dimensions are primarily explored on both sides of the Atlantic, including Continental /Western Europe … countries not considered part of the inner ‘circle’ of the modern global system … are marginal contributors to this undertaking, both in terms of intellectual input and incorporation of their experience into the analytical framework … China has scarcely featured in international legal discourse of a theoretical nature … There are virtually no references to Chinese behaviour in the literature on reputation and compliance with international law.73

The observer can acknowledge that the Chinese Journal of International Law is articulated in a sober tone, trying generally to follow the methodological paths of the current doctrine of international law. When organising, e.g., an Agora on the secession of Kosovo74 the editors addressed a topic that has great relevance for China, being threatened by secessionist movements in some of its Western provinces. By inviting to the symposium renowned Western lawyers,75 they showed a high degree of objectiveness. One cannot fail to note, however, that the articles on matters of maritime law have a strong tendency to accentuate the views of China on the legal status of the South Chinese Sea.76 However, even such pleadings are without any exception delivered without any polemical overtones. The views defended by the authors may be partly wrong, as shown by the award of the arbitral tribunal in the matter of the South China dispute.77 However, they are framed in such artful terms that they must be taken into account with the greatest care.

In sum, it can be said that the appearance of the Chinese Journal of International Law constitutes a constructive supplement to the literature on international law. The Journal has made available to the world voices that would never have been listened to by the majority international lawyers outside China. Thus, the Journal helps significantly in legitimating international law as a truly universal discipline.

Regarding the ‘classic’ (old) languages of international law the question is a different one. No years of hard and occasionally frustrating learning are required to obtain a good command of French, German or Italian at least for purposes of reading. The problem is that publications in those languages are often simply neglected. When references are made, e.g., to sources in German they mostly concern ‘classic’ authors like Immanuel Kant or, in the more recent past, Jürgen Habermas. In particular in the Anglophone world, a consensus has emerged that no one can be charged with not working lege artis by ignoring that part of the European heritage. It was already pointed out that German and Italian lawyers have switched to writing in English whenever they wish to make a contribution to the international debate on specific issues that should be taken into account generally by the international community of scholars.

Spanish is territorially much closer to the English world than any other of the European languages. But it cannot be satisfied with its present status. Although the South American continent is economically and politically on the rise, it has not yet been able to give birth to a high standing and generally acknowledged periodical in international law. As far as the Revista espaňola de derecho internacional is concerned, it plays only a marginal role, not being one of those journals whose intellectual harvest is broadly discussed in international scholarly fora. The Spanish teachers of international law have therefore thought it useful, too, to create the Spanish Yearbook of International Law in the English language (Vol. 1 1991).

3.3 The French Practice

The Revue générale de droit international public (rgdip) may rightly claim to be, in the French language, the leading periodical on international law. Like the American Journal of International Law (ajil), the rgdip has the ambition of probing into the axiomatic premises of international law. A comparison shows that both journals do indeed address key issues that have captured the attention of international diplomacy and governmental elites. Sometimes, the articles complement one another in a useful way but it is striking that from the side of the authors writing in the ajil normally no sign is discernible that the corresponding French article has been taken note of. Generally, the authors of the rgdip demonstrate that they are familiar with the literature in the English language. But such gestures of dialogue find generally no echo.

The openness of the rgdip contrasts with the general approach of the Annuaire français de droit international. In this publication, the editors wish to show, inter alia, the living presence of international law in the relevant French fora. The articles focus mostly on sources in French without becoming blind to relevant other materials. Essentially, however, the afdi is conceived as a monument of French scholarship, a reminder that indeed the French language can legitimately claim to be number two in the science of international law.

3.4 The American Journal of International Law

Obviously, it is particularly instructive to review the editorial practice of the American Journal of International Law, the leading periodical on a world-wide scale.78 The ajil has a readership in no less than 113 countries79 and subscribers in 110 countries.80 Its influence surpasses therefore the outreach of all other periodicals in the area, setting the tone in many debates. It attempts to follow significant developments closely, organising for that purpose on many occasion discussion fora (Agora). What it highlights is invariably on the international agenda. Yet it has lost its original approach of providing generally, to the extent possible, a broad overview of the current problems by taking into account voices from all of the regions of the world. Lori Fisher Damrosch refers to the original aim of the ajil to be “the only journal in the English language exclusively devoted to the interests of international law”. From this perspective, the board of editors comprised originally alongside American scholars many non-Americans. This cosmopolitan vision has largely disappeared in the current practice of the ajil. As far as the board of editors is concerned, these days French scholar Laurence Boisson de Chazournes stands out as the only representative of continental Europe. Otherwise, names from the us constitute an overwhelming majority.81

Unfortunately, many American authors remain deliberately within the cage of the Anglophone literature without ever looking beyond their own home-grown sources. From a review that comprises the years from 2006 to 2016, we will confine ourselves to giving a few examples. Jacob Katz Cogan, an author of recognised scholarship, relies almost exclusively on English sources in an article on the internal structures of international organisations, a topic which requires to be looked at from many different angles and certainly not only from an American viewpoint.82 Some articles are almost shocking in restricting their focus to materials written in the English language. Thus, Galit A. Sarfaty, assistant professor at the Wharton School of the University of Pennsylvania, devotes a study to “cultural matters in international institutions”, complaining that human rights have been reduced to a marginal role at the World Bank.83 However, although advocating a cosmopolitan concept of human rights, he sticks stubbornly to English sources in developing his subject. One is almost compelled to gain the impression that for him human rights belong to the exclusive heritage of the Anglophone world.84 Not a single source in any other language is referred to, and the few authors of other nationalities mentioned by him have all been absorbed into the Anglophone maelstrom of science and knowledge.

Many other examples could be given of an almost claustrophobic attitude where the research carried out ends at the boundaries of the Anglophone communication space. Only two additional articles may be indicated where the exclusive concentration on the available materials in English reaches disturbing dimensions. Gráinne de Búrca, a writer of Irish origin now living in the United States, co-author of a widely acclaimed textbook on the law of the European Union,85 contributed in 2011 an article to the ajil in which she criticised the lack of determination of the eu institutions in fostering human rights on a worldwide scale.86 The main lines of that article may be irreproachable. The author provides an overview of the progressive emergence of a human rights regime within the European Community / Union. But the underlying legal culture of the member states is left aside. France, which is proud of being the mother of human rights in Europe with the Déclaration des droits de l’homme et du cityen of 1789, is not mentioned. And not a single word is said about the role of the German Federal Constitutional Court, which in its famous Solange I decision87 brought forcefully to the fore the importance of human rights in an alliance of states that initially were in the grip of an exclusivity of economic thinking. This is a fatal deficit since it was that Court which opened the eyes of the Luxembourg Court for the necessity of underpinning the doctrine of supremacy of Community / Union law by an effective parallel system for the protection of human rights at the supranational level. Thus the linguistic one-sidedness led at the same time to blindness for relevant developments at the front of substantive law.

Another article that would have gained in depth and thoroughness is the essay of Robert D. Sloane on the concept of necessity in the law of state responsibility.88 This is an impressive essay, robustly anchored in relevant precedents. Once again, however, the absence of any materials from the French linguistic area is striking. The author refers to the remote Torrey Canyon incident but omits any discussion of similar French experiences in the Amoco Cadiz, Erika and Prestige cases.89 The reader is unable to perceive that in particular the French doctrine also has contributed to giving sharper contours to the concept of necessity.90 All in all, the article remains confined in the world of opinions, facts and figures reflected in the English language without looking beyond that closed garden.

An illustrative example of self-referentiality was the discussion launched a few years ago by the ajil on methods in international law. In their introductory essay, Steven R. Ratner and Anne-Marie Slaughter identified seven “major methods of international legal scholarship today”.91 These were, according to their views, 1) legal positivism, 2) the New Haven School, 3) international legal process, 4) critical legal studies, 5) international law and international relations, 6) feminist jurisprudence, and 7) law and economics. All of these methods have their roots in American conceptions of international law, some only partly, others almost exclusively. It was overlooked, on the other hand, that in the meantime other methodological approaches had become infinitely more important, in particular the school of Third World Approaches to International Law (twail).92 More recently this phenomenon has received the attention it deserves at the crevice between the developed industrialised world and the emerging developing countries.93 Obviously, language and method are not to be confused but language may render those who sit comfortably in the cosy corners of their discipline blind for developments outside their well-known academic battlegrounds.

Generalisations should of course be avoided. But it is striking that whenever a non-American author gets the opportunity to publish an article in the ajil, it becomes immediately visible that the method of exploring the subject matter is a different one: the one-sided look onto the American practice and other materials from the Anglophone world is avoided.94 A couple of American authors with intimate connections to foreign developments constitute an exceptional group whose writings exceed the parochial boundaries of unconscious self-referentiality.95

The above observations are not meant to call into question the scientific quality of the ajil. The ajil is and will remain the leading, or at least one of the leading, law journals in the field of international law. It does not shy away from raising crucial issues regarding the state of international law96 beyond and besides commenting on current affairs. In sum, the ajil has achieved a hegemonic position in the literature of international law and will undoubtedly be able to maintain it. Yet a specific tendency emerges from the research carried out in respect of the last decade of the periodical. The ajil has turned away from its original objective to promote the interests of international law as such by providing a channel for voices from all the regions of the world. Progressively, the ajil has become essentially a forum for the Anglophone world, authors believing that their own space of communication is self-sufficient and does not need any input from other countries where the language used for exchange of views is different from English. Partly, this narrowing of the area of research is understandable inasmuch as the wealth of ideas and information developed in the Anglophone world has no perfect parallel anywhere else. And yet the danger arises that relevant developments outside the traditional venues of international law are overlooked so that the perfection of the scholarly debate blocks at the same time new avenues. In particular the French language, which opens up different perspectives into Africa and the Middle East, should be taken into account as an equivalent partner or competitor.

At the initial stage, one may think that the omissions criticised here are just a matter of semantics. But in the long run, a substantive gap may open up, bringing the unity of international law to a breaking point. When appearances seem to indicate that the system of international law becomes monopolised by a specific groups of lawyers and the political powers standing behind them, the requisite bases of legitimacy are being eroded. International law is not just a normative construction. It essentially needs the support of all those to whom it is addressed – in the world at large.

4 Conclusions

The findings displayed above are in a certain sense trivial. The English language is continually progressing as the main language of communication in international relations, in particular since the demise of socialism as a political concept in 1990. The focus of this article has been directed on matters of international public law. In the field of private international law (conflict of laws) the results would not have been different. No signs are visible to suggest that the current trend could be reversed. Lawyers just have to accept this state of affairs without being able to escape from its grip.

On the one hand, the predominance of English as the primary language of international relations is to be welcomed. Communication between the different parts of the world may take place without any major linguistic barriers. At the universal level, the Europeans have to acknowledge that their classic languages French, German and Italian have become symbols of a past that was largely overshadowed by colonial prejudices. This finding does not detract from the advisability for an international layer to learn those languages at the least for purposes of reading. Only with the assistance of those analytical tools will he/she be able to protrude to the treasures – and deficits – of the past. Although still being privileged as one of the official languages of the United Nations and of the international judicial system, the position of the French language is being structurally threatened by the decline of the French influence in the world. Efforts should be undertaken with a view to mitigating this decline. The English language cannot be displaced from its position of number one in the world. Yet it should not be permitted to achieve a monopoly as the means of communication in international relations. On many grounds, speakers may be unwilling to use the English language in the exercise of their right to manifest their opinions. To be able to speak and write in a language different from English constitutes one of assets of personal freedom and cultural variety in world society.

Cultural considerations are not the only ground why a monopoly of the English language should be resisted. To be endowed with a national language that at the same time is recognised as a universal language constitutes at the same time a position of power, both in a political and a cultural sense.97 English, because of its national background, does not have the same neutral quality as Latin during the middle ages until the threshold of our modern times. Our cursory glance at the ajil has shown that linguistic dominance translates easily into intellectual and political self-insulation, wittingly or unwittingly. Documents and writings established in other languages than English are more often than not pushed to the side-lines or simply discarded. Linguistic uniformity has therefore an unfortunate tendency to streamline and impoverish the creative intelligence of those participating in public discourse.

Those for whom the English language is the mother tongue should be aware of the need to spread their net of research as widely as possible in order to catch the practices and moods on a world-wide scale. By so doing, they contribute to strengthening the legitimacy of international law that should not be susceptible of being blamed as a chasse gardée of the former European powers. Openness to voices from Africa and Asia is a particular necessity in order to solidify the acceptance of international law that should not be seen as one of the remnants of an unequal world of the past. Admittedly such openness goes to the limits of the capacity of individual scholars. In a world of 193 states the literary production has reached such dimensions that physical limitations of what can be reasonable analysed and digested are soon be reached in any research project. And yet, the principle should be maintained that dominance or hegemony should not degenerate into monopoly.

As far as scholars from other countries than Anglophone ones are concerned, they find themselves in a true dilemma. Where they wish to intervene in a debate on issues of world-wide importance, they are factually compelled to express themselves in English. Otherwise they would not reach the group of those with whom they wish to exchange ideas. The notion of publishing national yearbooks of international law in the English language is therefore an appropriate one. On the other hand, non-Anglophone scholars also have a duty vis-à-vis their own nationals, in particular their practicing lawyers and judges with whom they have to share their knowledge. If the intricacies of international law are not understood in national frameworks, the implementation process will be seriously hampered. English may be the language of those who participate actively in international transactions of any kind. However, English is not the language of the peoples of the world.

1

United Nations, International Law as a Language for International Relations (Kluwer Law ­International, The Hague, 1996).

2

J. Mowbray, ‘Language in the un and eu: Linguistic Diversity as a Challenge for Multilateralism’, 8 New Zealand Journal of Public and International Law (2010) p. 91.

3

Accordingly, W. G. Grewe, The Epochs of International Law (Walter de Gruyter, Berlin, 2000) pp. 279–285, speaks of the “age of French predominance”. Same classification in his earlier documentary work Sources Relating to the History of the Law of Nations, Vol. 2: 1493–1815 ­(Walter de Gruyter, Berlin, 1988) p. xiii.

4

Reproduced in Grewe, Sources, ibid., Vol. 3/1: 1815–1945 (1992) p. 3.

5

See, e.g., G. F. de Martens, Précis du droit des gens moderne de l’Europe (Dieterich, ­Göttingen, 1801); J.L. Klüber, Europäisches Völkerrecht, Vol. I (Cotta, Stuttgart, 1821); August Wilhelm ­Heffter, Das Europäische Völkerrecht der Gegenwart (E.H. Schroeder, Berlin, 1844).

6

The concept of “enemy state” as present in Articles 53 and 107 of the un Charter has long since become obsolete, see un General Assembly (unga) Resolution 60/1, 16 September 2005, para. 177.

7

Constant jurisprudence, see echr, Engel and Others v. Netherlands, 23 November 1976, Series A, Vol. 22, para. 81; König v. Germany, 28 June 1978, Series A, Vol. 27, para. 88; Buzadji v. ­Moldova, application 23755/07, 5 July 2016, para. 103.

8

cjeu, Flachglas Torgau, C-204/09, 14 February 2012, para. 37; Fish Legal and Shirley, C-279/12, 19 December 2013, para. 42; Axa Belgium, C-494/14, 15 October 2015, para. 21; Dworzecki, C-108/16 ppu, 24 May 2016, para. 28.

10

See, e.g., concluding observations of the Human Rights Committee, un doc. ccpr/C/usa/co/3, 15 September 2006, para. 13.

11

See M. Hilf, Die Auslegung mehrsprachiger Verträge. Eine Untersuchung zum Völkerrecht und zum Staatsrecht der Bundesrepublik Deutschland (Springer, Berlin , 1973) p. 27; Lord McNair, The Law of Treaties (Clarendon Press, Oxford, 1961) p. 30.

12

See Hilf, ibid., p. 14.

13

See F.F. Schoell, ‘La Langue Française à la Société des Nations’, 3 The French Review (1929) pp. 5, 6.

14

the present treaty, of which the French and English texts are both authentic, …”

15

See Schoell, supra note 13.

16

See A.P. Fachiri, The Permanent Court of International Justice (Clarendon Press, Oxford, 1925) p. 107.

17

Ibid.

18

See in this sense the Report of the un Secretary General on Multilingualism, un doc. A/61/317, 6 September 2006, p. 3, para. 3.

19

See Hilf, supra note 11, p. 31.

20

See M. Kotzur, Comments on Article 111 un Charter, in: B. Simma et al. (eds.), The Charterof the United Nations. A Commentary, third edition, Vol. ii (Oxford University Press, ­Oxford, 2012) p. 2257, margin note 7.

21

See J.-P. Jacqué, ‘Comments on Article 111 un Charter’, in: J.-P. Cot, A. Pellet and M. Forteau, La Charte des Nations Unies. Commentaire article par article, 3rd ed., vol. 2 (Economica, Paris, 2005) p. 2231; Kotzur, ibid.

22

unga Res. 3190 (xxviii), 18 December 1973.

23

unga Res. 3355 (xxix), 18 December 1974: “some official documents of the General Assembly and of resolutions and decisions of the Security Council and the Economic and Social Council”.

27

See Mowbray, supra note 2, p. 94.

28

Rules of Procedure, un doc. E/5715/Rev.2, http://www.un.org/en/ecosoc/about/pdf/rules.pdf, Rule 32.

29

unga Res. 65/311, 19 July 2011.

30

unga Res. 54/64, 6 December 1999.

31

Currently the Ethiopian national Tegegnework Gettu, see un doc. sg/A/1581, 30 June 2015.

32

See R. Jennings and R. Higgins, ‘General Introduction’, in: A. Zimmermann et al. (eds.), The Statute of the International Court of Justice, 2nd ed. (Oxford University Press, Oxford, 2012) p. 1, 4 margin note 4.

33

P.J. Laverack, ‘The Rise of Asia and the Status of the French Language in International Law’, 14 Chinese Journal of International Law (2015) p. 567.

34

L. Pic, ‘Letter to the Editors’, 15 Chinese Journal of International Law (2016) p. 215.

35

The leading monograph in the German language, K. Carstens, Das Recht des Europarats (Duncker & Humblot, Berlin, 1956) does not even mention the language issue. On the other hand, at an early stage already attention was drawn to the fundamental divergence between the English and the French text in the key provision of Art. 1 defining the aim of the Council of Europe. While the English text speaks of achieving “a greater unity between its members”, the French text expresses the aim as “réaliser une union plus étroite entre ses membres”, see A.H. Robertson, ‘The Council of Europe, 1949–1953-I’, 3 iclq (1954) p. 235, 236.

36

The government of the Federal Republic of Germany, forcefully supported by the German Federal Constitutional Court, had continually taken the view that the German Empire, founded in 1871 as a person under international law, had never ceased to exist and that the Federal Republic of Germany, the West-German state, continued its existence in “partial identity” (perfect identity was excluded because of the emergence of the German Democratic Republic).

37

See S. Nißl, Die Sprachenfrage in der Europäischen Union (Herbert Utz Verlag, Münich, 2011) pp. 109–113.

38

It stands to reason, however, that in the Assembly of the CoE German has a full status of parity with all other languages of the member states.

39

Dutch, French, German and Italian.

40

Of 18 April 1951.

41

See P. Reuter, La Communauté européenne du charbon et de l’acier (Librairie générale de droit et de jurisprudence, Paris, 1953) pp. 23–24.

42

See G. Van Calster, ‘The eu’s Tower of Babel – the Interpretation by the European Court of Justice of Equally Authentic Text Drafted in More Than One Official Language’, 17 Yearbook of European Law (1997) pp. 364, 371–373.

43

See H.P. Ipsen, Europäisches Gemeinschaftsrecht (J.C.B. Mohr [Paul Siebeck], Tübingen, 1972) p. 83.

44

One may also explain the choice of the French language as the only authentic one as a recognition of France’s role in launching the integration process by the so-called Schuman Plan declaration of the French government of 9 May 1950, reproduced in: 13 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, now Heidelberg Journal of International Law (1950/51) p. 651.

45

See summary observations by R. Vernon, ‘The Schuman Plan’, 47 ajil (1953) p. 183, 185 note 2.

46

eec Council, Regulation No. 1 determining the languages to be used by the European Economic Community, Official Journal 17, 6 October 1958, p. 385.

47

In this sense former eu Commissioner for Education Androulla Vassiliou, http://www.debatingeurope.eu/2014/12/09/should-english-be-the-only-official-language-of-the-eu/#respond.

48

For comments on that complexity see, e.g., P. Berteloot, ‘Recht auf Sprache in Europa. Die Sprachen des Europäischen Rechts und die Rechte der Unionsbürger’, in: R Schulze and G. Ajani (eds.), Common Principles of European Private Law (Nomos, Baden-Baden, 2003) pp. 357 et seq.; M. Derlén, ‚’In Defence of (Limited) Multilingualism: Problems and Possibilities of the Multilingual Interpretation of European Union Law in National Courts‘ in A.L. Kjaer and S. Adamo (eds.), Linguistic Diversity and European Democracy (Ashgate, Farnham, 2011) pp. 143 et seq.; E. Paunio, Legal Certainty in Multilingual eu Law. Language, Discourse and Reasoning at the European Court of Justice (Ashgate, Farnham, 2013); R. Phillipson, ‘The eu and Languages: Diversity in What Unity?’, in: Kjaer and Adamo (eds.), ibid., pp. 57 et seq.; D. Shelton, ‘Reconcilable Differences?, The Interpretation of Multilingual Treaties’, 20 Hastings International and Comparative Law Review (1996–1997) pp. 611 et seq.

50

See now Article 36 of the Rules of Procedure of 25 September 2012, Official Journal L 265, 29 September 2012, with later amendments: “The language of a case shall be Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovene, Spanish or Swedish”.

51

See note ‘Languages and interpreting at the Court of Justice of the European Union in Luxembourg’, doc. Rev. 1/2010-en, http://eulita.eu/sites/default/files/Interpreting%20at%20the%20Court%20of%20Justice%20of%20the%20EU.pdf.

52

Official Journal of the eu, L 308, 8 December 2000, with later amendments.

53

In 1972, Ipsen, supra note 43, p. 1001, observed that the then predominant position of the French language in the daily work of the Communities could not be rated positively from the viewpoint of integration policy.

54

Decisions of the Bundesverfassungsgericht – Federal Constitutional Court – Federal Republic of Germany, Vol. 1/ii: International Law and Law of the European Communities (Karlsruhe & Baden-Baden, Nomos, 1992); see criticism by C. Tomuschat, ‘The English Translations of the Case Law of the German Federal Constitutional Court’, 29 Human Rights Law Journal (2008), pp. 398–400.

55

The second decision of that kind was the judgment of 28 May 1993, 88 Entscheidungen des Bundesverfassungsgerichts 203, about the protection of unborn life against abortion. English translation:, online at http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/1993/05/fs19930528_2bvf000290en.html.

56

See 123 Entscheidungen des Bundesverfassungsgerichts 267, 30 June 2009; English translation: online at http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2009/06/es20090630_2bve000208en.html.

57

See 140 Entscheidungen des Bundesverfassungsgerichts 160, 23 September 2015; English translation: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2015/09/es20150923_2bve000611en.html.

60

See Art. 27 of the International Covenant on Civil and Political Rights, with General Comment No. 23 (50) by Human Rights Committee, un doc. ccpr/C/21/Rev.1/Add.5, 26 April 1994, para. 5.3.

61

See 9 ejil (1998) p. iii.

62

See B. Kuźniak and P. Turek, ‘Le droit des organisations internationales: modèle et moteur du droit international’, 53 Archiv des Völkerrechts (2015) pp. 390 et seq.

63

The present author has been unable to find out whether the title was an all-Scandinavian title or simply a child of the Swedish language.

64

Les Conventions de Vienne sur le droit des traités (Bruylant, Bruxelles, 2006), 3 volumes.

65

The Vienna Conventions on the Law of Treaties (Oxford University Press, Oxford, 2011), 2 volumes.

66

The Russian publishers do not even protect their website against abusive hijacking.

67

Currrently, the contemporary practice of the us relating to international law is selected under the responsibility of K. Daugirdas and J. Davis Mortenson.

68

See the latest report that is electronically accessible: F. Coulée and H. Picot, ‘Pratique ­française du droit international’, Annuaire français de droit international (2011) pp. 757 et seq.

69

The Revue générale de droit international public carries a section on French jurisprudence on matters of international law, currently under the responsibility of B. Tranchant.

70

W. Tieya and S. Yee, ‘Forword’, Chinese Journal of International Law 1(2002) p. xii.

71

J. Wen, ‘Carrying forward the Five Principles of Peaceful Coexistence in the Promotion of Peace and Development’, 3 Chinese Journal of International Law (2004) p. 363, 367: ‘China will never threaten any one. It will never pursue expansion or seek hegemony’. J. Wen was the Premier of the State Council of the People’s Republic of China.

72

D. Huang, Y. Kong and H. Zhang, ‘Symposium on China’s Peaceful Development and International Law’, 5 Chinese Journal of International Law (2006) p. 261, 262: ‘As a member of the international community, China’s peaceful development shall inevitably be bound by international law’.

73

R. Mushkat, ‘State Reputation and Compliance with International Law: Looking through a Chinese Lens’, 10 Chinese Journal of International Law (2010) pp. 703, 723–4.

74

8 Chinese Journal of International Law (2009) pp. 1 et seq.

75

Rein Müllerson and Peter Hilpold.

76

See J. Shen, ‘China’s Sovereignty over the South China Sea Islands: A Historical Perspective’, 1 Chinese Journal of International Law (2002) pp. 94 et seq.

77

pca case No. 2013–19, The Republic of the Philippines v. the People’s Republic of China, 12 July 2016, online at https://pca-cpa.org/wp-content/uploads/sites/175/2016/07/PH-CN-20160712-Award.pdf.

78

For reasons of space, the research could not be extended to the British periodical Internal and Comparative Law Quarterly.

79

D.J. Bederman, ‘Appraising a Century of Scholarship in the ajil’, 100 ajil (2006) p. 20, 63.

80

L. Fisler Damrosch, ‘The “American” and the “International” in the ajil’, 100 ajil (2006) p. 2, 3.

81

See the list of names published in the issues of volume 2016.

82

J. Katz Cogan, ‘Representation and Power in International Organization: The Operational Constitution and its Critics’, 103 ajil (2009) pp. 209–263.

83

G.A. Sarfaty, ‘Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank’, 103 ajil (2009) pp. 647–683.

84

But see the significant reference to A. Acharya, ‘How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism’, 58 International Organization (2003) pp. 239–275.

85

P. Craig and G. de Búrca, eu Law. Text, Cases, and Materials, 6th ed. (Oxford University Press, Oxford, 2015).

86

G. de Búrca, ‘The Road not Taken: The European Union as a Global Human Rights Actor’, 105 ajil (2011) pp. 649–693.

87

37 Entscheidungen des Bundesverfassungsgerichts 271, 29 May 1974; for an English translation see https://law.utexas.edu/transnational/foreign-law-translations/german/case.php?id=588.

88

R.D. Sloane, ‘On the Use and Abuse of Necessity in the Law of State Responsibility’, 106 ajil (2012) pp. 447–508.

89

For a comprehensive overview see J. Just and V. Bou, ‘After the Prestige Oil Spill: Measures taken by Spain in an Evolving Legal Framework’, 10 Spanish Yearbook of International Law (2004) pp. 1–37.

90

See the colloquium organized by the Société française pour le droit international in Grenoble, June 2006: La nécessité en droit international (Pedone, Paris, 2007) with numerous contributions on all the fields of international law addressed also by Sloane.

91

S.R. Ratner and A.-M. Slaughter, ‘Appraising the Methods of International Law: A Prospectus for Readers’, 93 ajil (1999) p. 292, 293.

92

See, e.g., B.S. Chimni, ‘The World of twail: Introduction to the Special Issue’, 3 Trade, Law and Development (2011) pp. 14–25; J.T. Gathii, ‘twail: A Brief History of Its Origins, Its Decentralized Network and a Tentative Bibliography’, ibid., pp. 26–64.

93

See G. Shaffer and T. Ginsburg, ‘The Empirical Turn in Legal Scholarship’, 106 ajil (2012) p. 1, Not a single word is otherwise lost by the authors on the methods writers fromcontinental Europe rely upon in their work.

94

See, e.g., E. Benvenisti, ‘Sovereigns as Trustees of Humanity? On the Accountability of States to Foreign Stakeholders’, 107 ajil pp. 295 et seq.; T. Ruys, ‘The Meaning of “Force” and the Boundaries of the Jus ad Bellum: Are “Minimal” Uses of Force Excluded from un Charter Article 2(4)?’, 108 ajil (2014) pp. 159 et seq.

95

See, e.g., M. Langer, ‘The Diplomacy of Universal Jurisdiction: The Political Branches and theTransnational Prosecution of International Crimes‘, 105 ajil (2011) pp. 1 et seq.; J. Davis Mortenson, ‘The Travaux of Travaux: Is the Vienna Convention Hostile to Drafting History?’, 107 ajil (2013) pp. 780 et seq.; I. Würth, ‘Pinochet’s Legacy Reassessed’, 106 ajil (2012) pp. 731 et seq.

96

See, e.g., A. d’Amato, ‘Groundwork for International Law’, 108 ajil (2014) pp. 650 et seq.

97

See, e.g., criticism by M. Boussebaa and A.D. Brown, ‘Englishization, Identity Regulation and Imperialism’, 37 Organization Studies (2016).

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