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Law and Language in EU and International Law Workshop

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Workshop: Law and Language in EU and International Law University of Fribourg

Date: 17 May 2019

Location: Salle Jäggi (MIS 4112), Miséricorde Building, University of Fribourg Av de l’Europe 20, 1700 Fribourg

Overview

On 17th May 2019 I attended this wonderful workshop hosted by Fribourg University. 

*DISCLAIMER**Not a linguist!*

I must point out that this workshop was targeted at linguists. I am in no way a linguist. So, there were quite a few points to which I was like … hmm I’m not sure if I fully get this.?

Despite this, I’ve tried to give an accurate write up of the presentations and therefore, if you’re interested in the ideas – I’ve given links to the presenters to get in touch with them directly about the research.

If your interested in forthcoming Legal English events check out my events page.

Workshop Introduction 

The workshop was opened by Thomas Probst, Vice-Dean of the Law Faculty, who explained that the very room we were in, the ‘Salle Jaggi’, named after Peter Jaggi, one of the most important Swiss lawyers of the twentieth century, was a good fit for a workshop which brought together experts in the legal-linguistics field.

Thomas then headed off to assist with the student moot competition taking place simultaneously to the workshop, giving the sense that the university is buzzing with activity and a lively place to study (not to mention that it’s the world’s only bilingual French-German university and apparently diverse departments are situated next to each other to stimulate innovation).

Benedikt Pirker, Faculty member of the University of Fribourg Law Department, and workshop co-organiser, then took over the introduction, giving a quick overview of the workshop schedule, and highlighting that although this event was the first of its kind for the university, the organisers were keen to foster collaborations. If you’re interested, drop Benedikt an email.

  • If you’re interested in my Couchsurfing experience whilst attending the conference read this post
  • If you’re interested in finding out how I stayed in Fribourg for 4 days for approx. £80 read this post

 

Workshop presentations

Karen McAuliffe (University of Birmingham): Mixed-Method Empirical Research in Law and Language: The Law and Language at the European Court of Justice Project

Discussant: Marie-Louise Gächter (University of Fribourg)

Twitter: @dr_KMcA

Karen presented her project which looks into the impact of language on the workings of the European Court of Justice (ECJ).

The project has three sub projects:

  1. Investigating the nature of a multilingual legal system by analysing the process behind the production of the ECJ’s multilingual jurisprudence.
  2. Exploring the role that language may play in the development of a de facto ‘precedent’ in ECJ judgments.
  3. Exploring the role of the Advocate General at the ECJ and the processes behind the production of opinions in the mother tongue of the AG and in other languages.

In this presentation she focused solely on the third sub-project.

Karen gave some context to the project and how the ECJ works with language. She explained that the ECJ’s working language is French which then gets translated into other languages and the official language of a judgment depends on the origin country of the case. Therefore, the ‘authentic’ judgments are translations from French – clearly the translators have a very powerful role to play here.

Important constitutional ECJ cases get an Attorney General’s (AG) opinion. AG opinions are not legally binding but instead guide ECJ decisions. The non-binding nature gives scope for the AG opinions to be creative, to test out new legal principles and ideas which may get picked up later by the ECJ and developed into principles of European Law.

Prior to 2004, AG opinions were drafted in each AG’s own native language. However, since a change in policy in 2004, many AGs now draft in a pivot language of either English, German, Italian, Spanish, which is not their mother tongue. In order to find an answer to the question of what impact this change has had, Karen and her team carried out a systematic literature review of the role of the AG and the value of AG opinions at the level of the ECJ and in wider EU scholarship as well as corpus linguistic analysis of AG opinions before and after 2004. She also gathered observational and interview data, physically going to the ECJ and interviewing personnel involved in drafting and translating AG opinions.

The interviews seemed to contain contradictions, the interviewees saying on the one hand that they did not perceive any impact of the 2004 change, but on the other hand, going on to state examples of major impacts.

Based on the corpus linguistics analysis and the other empirical data, Karen found that since the 2004 change, the language of the AG opinions has become stylistically simpler and more closely corresponded (linguistically) to the ECJ’s Lego-style of writing in seemingly copy and paste blocks.

Karen believes that due to the stylistically simpler language style the AG opinions may become less ‘persuasive’, as defined in the literature on the value of AG opinions. This could mean that the 2004 change has wide implications on the development of legal principles within the EU.

 

 

In the discussion, Anne Lise Kjaer raised the point that Karen assumed that simpler language is less persuasive, whereas many would contend that simpler language is in fact more influential, which may put into question Karen’s hypothesis.  Karen pointed to an earlier section of the LLECJ project which deals with the Lego-like language of the ECJ, where complex ideas and legal reasoning are expressed in a formulaic language and style and joined together with clunky, stylistically simple linking phrases – i.e. ‘simple’ in the sense of stylistics of language at the ECJ does not necessarily mean clearer or easier to follow.  Karen then discussed the literature review carried out, which focuses largely on the ‘persuasiveness’ of AG opinions: it is generally accepted in the literature that that a large part of ‘persuasiveness’ is related to the discursive, academic nature of AG opinions, which have an important role in persuading not just the ECJ but in developing wider academic discourse.  The real question, Karen said, was to decide what the most important role of the AG is – if it is merely to persuade the ECJ in specific cases, then the fact that the language style is becoming similar to that Court’s judgments is probably not going to matter much.  If, however, the importance of AG opinions lies in the influence they have in wider EU scholarship, then maintaining the discursive, academic style of text is probably more important.

Find further information on the project here including EUCLCORP – a standardised, multidimensional and multilingual corpus containing all judgments of the Court of Justice of the European Union (ECJ) and judgments delivered by constitutional and/or supreme courts of (currently) seven EU member states.

Download Karen’s slides here. 

Wolfgang Alschner (University of Ottawa): Semantic Analysis of International Treaties

Discussant: Stefan Höfler

Twitter: @w_alschner

Wolfgang’s presentation gave an interesting insight into the language used in bilateral treaties. He wanted to know which countries were most ‘successful’ in negotiating treaties and why this was the case, from a linguistic perspective, and to do so he carried out a thorough analysis of the language used in treaties. 

He noted that many states come to the negotiation table with pre-defined treaty templates and that each party tries to get the other party to agree to their own terms. Therefore, if a state has many consistent treaties, using the same language, it could be said that this consistency shows that the state has ‘succeeded’ in getting the other state to agree to its own template.

He determined ‘success’ to mean that the state had persuaded the other stated to agree to its own terms. (A definition questioned by one of the discussants, who pointed out that a successful treaty was one which was more of a meeting of minds rather than a forcing of one state to surrender to pre-defined terms).

Wolfgang analysed over 3000 bilateral treaties and presented them in very beautiful graphs, which in the words of David Best (President, EULETA) ‘Give tartan a whole new meaning’.

 

 

The results from the data showed that the UK has a ‘winning’ negotiating style. (Difficult right now in light of Brexit to imagine how this possible). He proposed that this could be for a number of reasons, for example:

  • the UK’s negotiators are negotiating in their mother tongue
  • the UK’s treaties are less legalistic than German treaties
  • the UK’s treaties are less complex than the US style.

In the discussion, points were raised such as, maybe the British have a different view of what treaties are, and that the British often use very vague language, which could make it easier for states to concede to the terms.

Karen McAuliffe highlighted the importance of vagueness for the success rate of treaties. She drew a distinction between the styles of the Good Friday Agreement, a peace agreement between the British and Irish governments which managed to end 25 years of conflict, compared to the Brexit withdrawal agreement, the disastrous attempt at the UK withdrawing from the European Union, which is incredibly rigid, legalistic and doesn’t leave much room for interpretation.

Download Wolfgang’s slides here. 

Anne Lise Kjaer (University of Copenhagen): Values in European Law: A Rhetorical Analysis of International Courts’ Language of Justification

Discussant: Wolfgang Alschner

Twitter: @KjrAnne

Anne presented a project she has been working on in which she analyses the language used by international courts to justify themselves.

Anne gave context to her study, explaining the decision-making process of the European Court of Human Rights (ECtHR). She explained that often the ECtHR talks about ‘consensus cases’ when it makes decisions about human rights. This is based on the idea that if there is consensus among member states on a particular human rights issue (shown through domestic case law), then the ECtHR is able to make a legitimate decision, to bring in a new law, based on this consensus. Equally where no consensus exists, this justifies the ECtHR decision to refuse to change the law or adapt the interpretation on a particular human rights issue.

In her analysis, Anne picked out a number of ECtHR cases and carried out a corpus-linguistics and rhetorical study of the way in which the ECtHR justifies itself and the decisions it makes, in a constant attempt to balance the ‘common interest’ on the one hand, and on the other what it defines as ‘consensus cases’.

Anne’s hypothesis was that:

  1. Identical phrases can have different meanings
  2. the claim that different phrases don’t have different meanings doesn’t hold

To test her hypothesis she carried out an analysis on case law looking at the collocations with the words ‘consensus’ and ‘trend’.

 

 

Her findings were that these terms collocate differently – the #1 collocation with ‘consensus’ was ‘emerging’ for example, whereas for ‘trend’ the #1 collocation was ‘current’. Her findings showed that often trend was used when talking about an international context whereas consensus was more common when referring to the European Union.

Further info here.

Zuzanna Godzimirska (University of Copenhagen): International Courts and the Language of Legitimation

Discussant: Odile Ammann

Twitter: @ZGodzimirska

Zuzanna Looked at the issue of legitimation in international courts. Her research focused on the WTO Appellate Body (AB), and even though some discussants raised the questions of whether the AB is indeed a court, Zuzanna defended the definition stating that it has most of the features of a court. She pointed out that the AB is considered a successful ‘court’ and compliance rates are considerably high. Therefore, she was interested to find out how the AB legitimises and built such support for itself in its judgment.

She based her study on the theoretical framework, whereby Weber points out that ‘every such system attempts to establish and to cultivate the belief in its legitimacy’ and that to do this they use (according to Theo Van Leeuwen’s theory and model of legitimation):

  • Authorisation
  • Moral evaluation
  • Rationalisation

She looked at a body of data from the first reports of the AB in 1996 – 2016, equating to 105 reports, which were then broken down into paragraphs to analyse. This data was then manually categorised into those with:

  1. Presence of legitimation
  2. Absence of legitimation

She then compared the two sets of data and the results of words present in the first category. The results were too vast and vague to gain any kind of meaning. She then manually went through the words finding the key terms in category 1.

 

 

She found that authorisation played a key role in the language used. The AB used its own authority such as its own decisions, impersonal authority such as legislation, and personal authority of other bodies such as the WTO.

Further info here.

Jennifer Smolka (Canton of Valais) & Benedikt Pirker (University of Fribourg): The Pragmatics of Interpretation in International Law: Lessons for International Lawyers

Discussant: Zuzanna Godzimirska

This was a joint presentation about the prgmatics of interpretation in international law. Jennifer had an excellent way of explaining complex linguistic matters in a simple way, so that even I could follow!

Jennifer began by giving an overview of some key categories of linguistics. She hastened to add that the material for the overview she was using, is often presented to first year students. Although this was probably not helpful to the seasoned academics who made up the majority of the workshop audience, it was certainly helpful to me – being a total non-linguist and being clueless as to much of the legal-linguistic terminology being casually batted about!

I am now proud to have increased my knowledge of some of the sub fields of linguistics by 100% and can confidently say that:

  • Neurolinguistics – is for people interested in brains and language
  • Corpus linguistics – is for people interested in analysing words and texts
  • Semantics – is for people who like definitions
  • Pragmatics – is for practical people who want to look at how context affects the meaning of language

Jennifer and Benedikt went on to highlight that they were looking at international law and the pragmatics/semantics divide and used relevance theory. Their study was focused on the actual intended meaning rather than the actual meaning of words.

Relevance theory holds that communicating involves much more than simply encoding, transfer, and decoding of messages, for non-linguists:

  • Encoding: basically creating a message
  • Transfer: sending the message e.g. saying it
  • Decoding: Interpreting the message

It also involves inference, a.k.a a process of reasoning, and context, a.k.a the surroundings of the message.

Jennifer highlighted that if someone asks her to pass the salt, she can infer that someone is

  1. Demanding the salt (as opposed to asking whether she is physically able to pass the salt – although I imagine, this could be inferred differently if she had, for example, no arms)
  2. Perhaps implying that the food tastes bad without salt (maybe, like me, she lives in Italy where salt ‘al punto giusto’ is the constant challenge to any English person)
  3. Eating too much salt (eating too much salt is bad, I shouldn’t pass you the salt).

This is of course, if the context is the dinner table. If, on the other hand, the request came whilst climbing a mountain, Jennifer would likely be very confused and would struggle to make any inferences.

The presentation went on to highlight that in some legal documents sometimes the wording itself is symbolic of a broader intention which must be inferred, which is not obvious from simply reading the words literally.

As a side note – I can add that when I teach contract drafting through my online classes, I always highlight that often when the wording of a contract is vague or ambiguous, the courts have a tough job of trying to infer the meaning looking at the parties’ intention and the context of the contract. This is why firstly, ambiguity should only be used intentionally, and otherwise the intention of the parties and the context should be made clear, in for example, the recitals.

Benedikt pointed out an example of a treaty where inference played an important role and which a colleague had told him about. It was a treaty between Israel and Egypt containing two contradictory clauses. One clause states that the Egyptian’s have the right to inspect Israeli ships in a particular area. The other clause states that the Israeli’s have the right to refuse inspection. The literal meaning of the words here is irrelevant, but the treaty represents through inference and context, according to Benedikt, a willingness of the parties to cooperate.

Odile Ammann (University of Zurich): Language Bias in International Law

Discussant: Benedikt Pirker

Twitter: @odileammann

Odile, in her presentation, asked the question – ‘Is international law really international?’ She raised the important point that there is a deep language bias towards English in international law and this impacts its development and interpretation.

To hammer home the dominance of English in international law, Odile referred to a guest post published on Opinio Juris 8 April 2015 entitled ‘How Many International Law Books are Published in a Year?’. This article showed that out of a total of 401 ‘international law books’ published in 1 year, 340 books were in English, compared with 36 in French and 19 German. And that many books only refer to cases written in English.

She went on to highlight that the dominance of English is not limited to books, but extends to organisations – who now present themselves in English, journals – which are now solely published in English, and research – which is carried out mainly in English.

She pointed out that although domestic court decisions contribute to customary international law, much case law is being disregarded if not reported in English.

She presented her findings about the International Law in Domestic Courts Casebook. The book promises to present

‘…the most important cases along with a commentary to give a holistic overview of the use of international law in national courts…”

and yet showed a bias towards the English language with 45% cases from the US or Europe.

 

 

Similarly, another source of international law coverage, the International Law Reports, showed, according to Odile’s research, a huge bias in favour of anglophone countries.

Odile also mentioned that the UN, despite having 193 member states, has just 6 official languages and the EU, with 28 member states, uses predominantly French and English as its working languages.

These language limitations present intellectual problems, constraining legal thought, and moral dilemmas, as international law is a far cry from being so. She argued that language is being used as a tool of power, exclusion and disenfranchisement.

One of the discussants raised the point that she may have a future working on de-colonialization through language. Watch this space.

Stefan Höfler (University of Zurich): EU Law: Text-Linguistic Challenges for Legislative Drafting in Switzerland

Discussant: Anne Lise Kjaer

Stefan’s presentation focused on the plain language drafting style used in Swiss legislative drafting, looking at the problems EU law creates for drafting in Switzerland.

He gave context to the presentation explaining the background and history of Swiss drafting. I was impressed to learn that the Swiss have a long history of using plain language drafting, dating back to 1848 when the modern Swiss state was founded and Eugen Huber authored the Swiss civil code.

There are a few main reasons why Swiss legal texts use plain language:

  1. Direct democracy: All Acts of Parliament can be subject to a referendum and therefore they must be drafted in a way which is understandable, in order for the public to make informed decisions.
  2. Multilingualism: There are 3 official languages in Switzerland– German, French, Italian (to a lesser extent Romansh) therefore texts need to be easily translated and each version is equally authentic.
  3. Legality: Using plain language ensures legal certainty and equal treatment under the law.
  4. Efficacy: There is an economic argument for plain language drafting, that it is more efficient and effective to administer.

So how does legislation get drafted? Stefan went on to explain that the Drafting Committee of the Swiss Federal Administration, made up of language and legal experts, examines all legislation for clarity. The committee must be consulted early on in the drafting stages and then repeatedly throughout the whole process. The committee doesn’t have any power to make decisions and so must convince the drafters of changes. In his opinion this has the advantage that the committee must put a strong case in favour of any amendments which generates discussion and thorough analysis.

Stefan went on to explain that although Switzerland is not a member state of the EU, the EU-Swiss relationship is defined by:

  1. Swiss-EU bilateral agreements
  2. ‘Autonomous alignment’ where Switzerland decides by itself to do as the EU does.

Regarding the second point, autonomous alignment involves transferring the EU law as closely as possible into Swiss law.

In order to do this, drafters can:

  1. Rephrase the law – rewrite the law as closely as possible but to fit in the Swiss context
  2. Reference the law – write a law which makes reference to the EU, with a recitals and definitions sections which states the appropriate changes to be made to the original law to make it fit in the Swiss context e.g. ‘Where the EU law states ‘Member State’ read ‘Swiss Confederation’’

 

 

Each option has different pros and cons. Whilst rephrasing is clearer and more coherent, referencing is more time and cost efficient. Whilst redrafting ensures consistency with the Swiss style, inevitably it throws up many problems. The EU style is notably complex, difficult to understand using definitions, long preambles and many annexes in contrast to the Swiss approach, which is plain, down to earth and uses fewer definitions, annexes and no recitals.

To highlight the stylistic differences, Stefan showed an example of a comparison whereby an EU law had been rephrased to fit the Swiss style. A very interesting comparison and one which could be used by Legal English teachers when highlighting more traditional legal writing styles to plain language approaches.

Example of EU legislative-drafting style

Example of Swiss legislative-drafting style

In the discussion, there was some adversity towards ‘plain language’ with it being misinterpreted as being only ‘simple’ language, despite it encompassing so much more, to cite but one example –  drafting in the active rather than the passive voice.

Download Stefan’s slides here. 

UIf Linderfalk (Lund University): Good Faith as a Principle of International Legal Pragmatics

Discussant: Thomas Probst (University of Fribourg)

Someone always has to be last in the conference programme, when concentration is waning, and thoughts start wandering towards dinner! I certainly have experienced it myself when I presented on ‘The Use of Podcasts in Teaching and Learning Legal Vocabulary’ at the LEXESP V conference in Alicante. It’s not an easy slot! 

Luckily for everyone, due to Bendikt’s good time keeping skills, the workshop was pretty much still running on time and everyone had a chuckle when Ulf said something along the lines of – ‘I’m sure you’ll all forgive me if at this point in the day I remain seated!’

Ulf proposed that a better understanding of the principle of good faith can help to better understand the general principles of international legal discourse. He argues that good faith is a principle of international legal pragmatics (for non-linguistics remember that pragmatics is about understanding words in context, and how the same words can potentially have different meanings depending on context).

 

 

Ulf stated that for many lawyers, there is no question that good faith is a clear principle of international law, generally speaking, most legal systems have some form of the concept of good faith in their own legal systems. And, if it is a principle then the International Court of Justice should apply such principle when deciding international disputes, according to Article 38 of the Statute of the International Court of Justice.

But rather than good faith being a clearly defined principle, Ulf argued that the meaning of good faith is not so obvious, it is vaguely about fairness and justice and allows the effective communication in a value-pluralist legal order, where differing state values exist being equally correct and yet in conflict.

Ulf highlighted how good faith is used in international law. For example it features in the Vienna Convention on Law of Treaties:

Article 26. “PACTA SUNT SERVANDA”

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 31, GENERAL RULE OF INTERPRETATION

  1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

Ulf also gave some examples of good faith outside of the application and interpretation of treaties, for example the Nuclear Tests (1) case, in which the ICJ discusses good faith.

For further info you can read Ulf’s paper here.

 

Download Ulf’s slides here. 

Conclusion

The workshop was well organised with plenty of coffee breaks to keep energy up and opportunities to network. It ran pretty much on time and left me with the impression that the Swiss do things well. One thing to note – the workshop used a format I had not seen before – after a speaker had presented, they were given very thorough feedback on their work and questioned from a peer ‘discussant’ who had, prior to the conference, reviewed the presenter’s paper. 

In my opinion, this conference was geared more towards academic linguists rather than for practising translators or teachers. However, I learnt more about the linguistics field and areas of research which in one way or another will probably feed into the work I do. The greatest take away I had from the workshop was learning about the impressive Swiss focus on plain language drafting and Stefan’s comparison between EU and Swiss legislation – these examples could be useful for Legal English teachers who teach contract drafting or legal writing and who want to highlight and compare different styles of writing.

Post conference, I was happy to spend a few days Couchsurfing enjoying the fantastic city of Fribourg, appreciating cheese, chocolate and a church concert… I stayed a total of 4 days and managed to spend approx. £80 on EVERYTHING. Yes, including accommodation and travel. Yes, in one of the most expensive countries in the world. Find out how to attend a conference on a shoestring budget here.

Don’t forget to stay up-to-date with future Legal English events by keeping an eye on my events page and if you know of any forthcoming events let me know about them!