2.1. Binding international law
A word is in order regarding what I mean when I speak of international law. The last twenty years or so have seen an increase in the production of many kinds of
international documents that have to do with minority rights, including language rights. They tend to bear impressive names that suggest great advances in
international law: the Declaration on the Rights of Indigenous Peoples, the Universal Declaration on Cultural Diversity, the Universal Declaration of Linguistic Rights, and so forth. As grandiose as they sound, these documents are not very relevant for current purposes. First of all, because they are not treaties, they are not binding.
Consequently states can—and often do—ignore them at will. Second, they are not descriptive per se, so they are of little help as a reflection of the real world. (If they were descriptive, this could be enlightening from a scholarly perspective, but they are not intended to be.) Therefore, when looking at national translation policies as guided by international law, it is helpful to understand what “hard” international law really is. In that regard, consideration must be given to the sources of
international law and to the role of international and regional tribunals in the understanding of international law.
Generally speaking, international law can be conceived of as the rules and principles binding on the relationships between states. However, as will be explained in the next two paragraphs, international law no longer limits itself to the
relationships between states. Because of that, I lean on a definition of international law as the “rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or judicial” (American Law Institute,3 section 101, italics in the original).
3 The American Law Institute is an independent, non-profit organization that engages in several activities, including the production of scholarly work to help legal practitioners better understand the law. I rely on the American Law Institute’s definition of international law because it is particularly
A word on terminology. Traditionally speaking, there have been two types of international law. There is public international law, which deals with the way nations interact with each other (Carter, B. E., Trimble, P. R., & Weiner, A. S. 2007, 1). Dispute resolution between nations and the law of the sea are examples of public
international law. There is also private international law, which deals with the activities of individuals, corporations, and other private organizations as they move across borders (ibid., 1-2). This often takes the form of conflict-of-law rules to be applied when there is a commercial conflict (ibid., 2). For our purposes, we are concerned with public international law, inasmuch as public international law deals with the conduct of states. For example, human rights’ instruments, with their implications for language, deal with the conduct of states toward individuals. Thus, in this study the term “international law” refers to public international law.
2.2. The sources of international law
In order to know where to look for the rules of principles of international law, one must understand the sources of such a type of law. An important statement on the sources of international law is to be found in the Statute of the International Court of Justice (ICJ) (see Slomanson 2011, 27). The Statute is the part of the Charter of the United Nations that creates the ICJ. Article 38 recognizes the following sources of norms: “a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. […] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law” (ICJ Article 38). The order of Article 38 seems to suggest a hierarchy of sources (Slomanson 2011, 27). This hierarchy, while not undisputed, should be borne in mind when looking for rules of international law.
well suited to the purposes of this chapter. (It should go without saying that this definition is not the interpretation of the US government of what international law is. The interpretation of the US government may or may not coincide with this one, but I do not know what it is nor find it relevant for this discussion.)
A little more needs to be said about these sources of international law.
Regarding international conventions, they are simply multilateral agreements or treaties. These treaties create international legal obligations, and they may even create domestic obligations. Precisely because of that fact, treaties are important for purposes of this writing. Regarding customary international law or international custom, it is the practice of States, which creates a sense of duty, in matters of
international concern (Carter et al.: 152; Buergenthal & Murphy 2006, 22-23). Because much of customary international law has been codified in the treaties, I will not consider it further in this study.
When looking at Europe specifically, there are some further sources that need to be explored. The rise of the EU has resulted in very specific sources of
international law that apply to EU member states only. Of course, the treaties that have gradually created the legal, political, and institutional framework of the EU are a source of international law for the states party to those treaties. These treaties have higher status than legislation made through normal legislative procedures (Nugent 2006, 284). They are, consequently, the primary legislation for the EU. They often deal with, among other things, broad policy principles (ibid.).
Below them sit the specific enactments that implement the general principles found in the treaties, which can therefore be conceived of as secondary legislation (ibid., 285). According to the treaties, secondary legislation can take the following forms in the EU: regulations, directives, decisions, and recommendations and
opinions (ibid.). Recommendations and opinions are not binding, so they are not law in the sense that states do not have to abide by them (ibid., 287). Therefore, the three types of EU secondary legislation which can be a source of international law
throughout all of the EU are decisions, regulations, and directives. These will be briefly described now.
Regulations are binding, generally applicable, and directly effective, i.e., they become effective in all member states without any national measures of
implementation (ibid., 285). This means that regulations become the law of each member state upon issuance even if the regulations contradict national law (Folsom 2011, 97). Directives, on the other hand, are binding as to results but not method
(Nugent 2006, 285). Directives are usually concerned “with the laying down of policy principles that member states must seek to achieve but can pursue by the appropriate means under their respective national constitutional and legal systems” (ibid., 286).
Appropriate means to implement directives at the national level include new
statutes, presidential decrees, administrative acts, or even constitutional amendments (Folsom 2011, 55). In practice, the line between directives and regulations is
sometimes blurred4 (Nugent 2006, 286). Decisions are addressed to specific member states, and are only binding to those to whom they are addressed (ibid., 287).
However, “framework decisions” are used by the EU to implement common policies across the Union, and member states have relatively short periods of time to
implement the decisions into national law (Peers 2006, 384), thus being similar to directives. The result is that these three types of EU legislation can have a powerful impact in shaping national policies.
When dealing with international law, national policies may be affected by the judicial decisions of international and regional tribunals. Besides the ICJ, there are a number of international courts, including the International Criminal Court, the Inter-American Court of Human Rights, the European Court of Human Rights (ECtHR), and several ad hoc tribunals. For this study I need to highlight those tribunals that have a more direct effect in European states.
The ECtHR, established by the CoE, is a unique enforcement mechanism for some elements of international law in Europe (Wästfelt 2010, 31). All states party to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) “have submitted to the compulsory jurisdiction of the court [ECtHR] and have agreed to abide by its decisions, which have normally been accepted and implemented” (Carter et al. 2007, 19). Every state in the EU plus other European states, such as Turkey, are party to the Convention (Folsom 2011:1).
4 For example, because directives are in essence instructions for implementation of policies, they come with specified time periods for compliance. If the time period runs out, individuals in the EU may ask the ECJ in a given member state to give direct effect to the directive, which basically turns the
directive into a regulation (Folsom 2011, 97-98).
Another important tribunal in Europe is the European Court of Justice (ECJ), established by the EU. The ECJ deals in practice with issues considered of major importance to the EU’s legal order (Nugent 2006, 298)5. Case law in the EU usually arises out of the ECJ, making the ECJ’s interpretations a source of law for the EU (ibid.). This happens in part due to the fact that EU legislation is often vague or incomplete, so in interpreting the legislation, the ECJ fills in gaps, clarifies, and extends the law6 (ibid.). Thus, international jurisprudential activity can also have a hand in shaping domestic policies.7
Such jurisprudential activity often focuses on general principles of law. We will briefly mention two of them in this study, so it makes sense to explain what they are. They come up when judges in an international court find a situation where there is no apparent legislation (through treaty or otherwise) to provide rules that govern that situation. This situation would be very unusual, due to the high volume of treaties. However, if it does come up, judges can resort to general principles of law (Carter et al. 2007, 152). While general principles of law can be somewhat uncertain (Wouters, J., Coppens, D., & Geraets, D. 2011, 4-5), it is generally understood that they refer to principles shared—“recognized” in the parlance of Article 38—by states or legal traditions (Carter et al. 2007, 152).
5 The EU has also created the General Court, known as Court of First Instance before 2009, which deals with more routine matters, such as employment and non-contractual liability disputes, and some of its judgments can be appealed to the ECJ (Nugent 2006, 298; Folsom 2011, 126-127). Additionally, there is an EU Civil Service Tribunal that deals with staff cases (Nugent 2006, 305). Collectively, these three courts are known as the Court of Justice of the European Union. As far as this study is concerned, the ECJ is the most important court of the EU because it helps shape domestic policies.
6 That a court makes law is taken for granted by legal professionals in the common-law tradition, but may make their civil-law counterparts flinch. Even so, the ECJ “emerged […] as a powerful law-maker” from the beginning (Folsom 2011, 82). Thus, while its procedures and methods are firmly grounded in the French, civil-law tradition, the ECJ has embraced the law-making role of common-law courts (ibid.).
7 The process, of course goes both ways. States (which have their own domestic interests) participate in the construction of new rules which are then interpreted and edited by domestic actors for the domestic context (see Mörth 2003, 159-178). These two process are not at odds with each other; rather, they are complimentary.
Having established the parameters about what the most relevant sources of international law are for current purposes, I can now list the following places where I will look for rules that affect translation policy in Europe (not strictly in this order):
international treaties; EU decisions, regulations, and directives; judicial decisions by the ECtHR and ECJ; 8 and general principles of law.