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 ~NORDIC
NORDIC JOURNAL OF INTERNATIONAL LAW JOURNAL

86 (2017) 119-124 LAW

BRILL
NIJHOFF brili.com/nord

Introduction: Language and International Law

Verbal language is at the core of most of the activities that engage international
lawyers. On the one hand, language is the primary tool used for the communi-
cation of propositions about international law. When an international lawyer,
in whatever capacity, engages in legal activities, and in so doing asserts or chal-
lenges the existence of international law, practices and upholds international
law, criticises, systematically analyses or codifies international law, when he or
she makes international law or conducts international legal proceedings - on
each such occasion, the international lawyer will be reliant on the spoken and
written language. There can be few legal activities without verbal language.
Hence, legal activities are heavily dependent on the instrumentality of lan-
guage, just as international law is dependent on the international community
in which this law operates.
On the other hand, language identifies the craft of the international legal
profession. Because of the particular nature of human language - more spe-
cifically, because of its generality, ambiguity and multi-instrumentality - the
communication of legal propositions requires particular skills. Such skills - to
interpret, explain, define, argue, advise, negotiate, draft, characterize, report,
etc. - define the international lawyer qua lawyer, and distinguish him or her
from the political scientist, the international relations expert or the diplomat.
Using language in a particular way is what international lawyers do, and it is
precisely that which makes them international lawyers.
Ideally, this intimate relationship between language and the craft of the in-
ternational lawyer should reflect on the work of the international legal scholar.
It does not - not to the extent that the practical importance of the issue would
seem to deserve. The great majority of international scholars performs as if
questions of language and international law were in some way limited to the
project of establishing intended meanings of international lawmakers. A large
part of the work accomplished is preoccupied with questions such as that of
the ontology, in Articles 31-33 of the 1969 Vienna Conventions on the Law of
Treaties, of the intention of treaty parties, and the proper way to establish
such an intention in concrete cases. It tends to forget that communication is
an activity that involves not only an utterer (or more concretely, a writer or
speaker), but also an addressee (a reader or listener) - hence the complaint.
What happens at the other side of the line of communication is an equally
interesting question worth engaging with in scholarly work.

( KONINKLIJKE BRILL NV, LEIDEN, 2017 1 DOI 10.1163/15718107-08602008

 LINDERFALK

For a concrete example, take an important legal term such asjus cogens.
What can an utterer accomplish by using this term when addressing a particu-
lar audience? Sincejus cogens serves as an intermediate link in legal inferences
between, on the one hand, the criteria that identify a norm asjus cogens, and,
on the other hand, the legal consequences that ensue from having so catego-
rized a norm, the answer that you would get from many international lawyers
is thatjus cogens serves to economize the description of law - it potentially
helps international lawyers to think and talk about international law in a more
economic fashion. Clearly, however, such answers provide only part of the pic-
ture. As this editor has suggested elsewhere, there are many ways in which
an utterance ofjus cogens may affect the beliefs, attitudes or behaviour of a
legal audience.1 For example, the utterance may help the utterer to convince
the audience of the correctness of his argument; it may help to convince the
audience that the utterer is in fact in possession of knowledge that allow him
to give a fairly good description of the lex lata; it may help to prevent the audi-
ence from questioning the intents of the utterer; it may help to muster agree-
ment for arguments about thejus cogens character of a norm independently of
any understanding of states. 2 Understanding this potential ofjus cogens is key
to understanding much of the many statements made by international lawyers
drawing on this term.
Similarly, take the frequent reference by international criminal tribunals
to human rights practice and to the jurisprudence of the European Court of
Human Rights. In the Kunaracjudgments, 3 for example, the Trial Chamber of
the International Criminal Tribunal for Former Yugoslavia (ICTY) brought its
understanding of the laws and customs of war to bear on a concept of torture,
4
which it had previously inferred from international human rights instruments.
Sociolinguistics would describe this as a case of language-interaction. 5 They
would conceive of international human rights law and international human
rights law (IHL) as distinct communities of practice - much like odontology,
archaeology or mountaineering - having each their own socially constrained
language patterns. Such patterns include, among other things, a distinct ter-
minology, that is, a set of terms, the meanings of which remain more or less

i U. Linderfalk, 'All the Things That You Can Do WithJus Cogens: A Pragmatic Approach to
Legal Language', 56 German Yearbook ofInternationalLaw(2013) pp. 351-383.
2 Ibid.
3 Prosecutorv. Kunaracand others, IT-96-23-T & IT-96-23/1-T, Judgment of 22 February 2001,

available at the webpage of the Tribunal: <www.icty.org>.

4 Ibid., para. 467 etseq.
5 See e.g. J. Holmes, An Introduction to Sociolinguistics,3rd edition (Pearson, New York, 2008).

NORDIC JOURNAL OF INTERNATIONAL LAW 86 (2017) 119-124

INTRODUCTION: LANGUAGE AND INTERNATIONAL LAW

dependent on their specific social context. 6 On this understanding, it would

seem very unlikely that the definition of a term such as 'torture' can be alto-
gether transposed from human rights law to IHL, without further adaptation.
The contexts of the two legal regimes are very different. As explained by the
ICTY Trial Chamber:

In the human rights context, the state is the ultimate guarantor of the
rights protected and has both duties and a responsibility for the obser-
vance of those rights. In the event that the state violates those rights or
fails in its responsibility to protect the rights, it can be called to account
and asked to take appropriate measures to put an end to the infringe-
ments. In the field of international humanitarian law, and in particular
in the context of international prosecutions, the role of the state is, when
it comes to accountability, peripheral. Individual criminal responsibility
for violation of international humanitarian law does not depend on the
participation of the state and, conversely, its participation in the com-
mission of the offence is no defence to the perpetrator. Moreover, inter-
national humanitarian law purports to apply equally to and expressly
bind all parties to the armed conflict whereas, in contrast, human rights
law generally applies to only one party, namely the state involved, and its
7
agents.

What remains to be clarified is the relative importance of the alleged general

concept of torture and the specific context of IHL for the understanding of the
laws and customs of war. This clarification is key to understanding the form of
reasoning practiced in Kunaracand other cases.8
What the two examples have in common is the nature of the questions that
they are raising. These questions have little to do with the intention of any
international lawmakers. They concern, in both cases, the potentiality of legal
language and the role of the context for the understanding of law and legal
utterances. The examples help to illustrate the assumption that drives the en-
tire project of putting this special issue together - the assumption that there
is a lot left for international legal scholars to explore in the field of language
and international law. The objectives of the issue have been set accordingly.

6 Ibid
7 Kunarac,supra note 3, para. 470, footnotes are omitted.
8 For further reading on this topic, see U. Linderfalk, 'Navigating the Legal Landscape between
the General and the Specific: General Concepts as Tools of Legal Reasoning, 19 International
Community Law Review (forthcoming 2017).

NORDIC JOURNAL OF INTERNATIONAL LAW 86 (2017) 119-124

 LINDERFALK

The issue should highlight the importance of the topic of language and inter-
national law; it should help to pinpoint some of the key issues at stake; and it
should serve as an impetus and a source of inspiration for future research in
this field. The five articles, of which this issue is composed, do precisely this,
each in their own way.
The article contributed by J6rg Kammerhofer engages with the issue of
treaty interpretation. More specifically, it analyses the nature and intended
function of the rules of interpretation laid down in Articles 31-33 of the 1969
Vienna Convention on the Law of Treaties and the concept of interpretation
that these rules assume. As argued, contrary to "the international legal ortho-
doxy's particular conception of 'interpretation", the rules do not - indeed,
they cannot - regulate cognitive processes. They are not rules of interpreta-
tion, proper. In the context of the Vienna Convention, consequently, interpre-
tation stands for something other than the "giving of meaning to a treaty" or
the "finding out what the text of a treaty means". The article pores over possible
other applicable definitions of the concept.
The article by Wouter Werner brings another issue of interpretation to the
table. It explores the effects of repetition (or literal reproduction) of language
used for resolutions adopted by the Security Council of the United Nations.
The way in which the concept of legal interpretation is often depicted is that
it is a process aiming to establish the intention of the author of a legal text.
Whether a reader will ever succeed to capture this intention depends on the
particular contextual assumption or assumptions that he or she brings to bear
on the process of understanding. Pragmatic theory has shown how authors
may partly control the understanding of their texts by making contextual as-
sumptions available to a reader. Werner's article illustrates how, in the case
of UN Security Council resolutions, repetition can be used to serve precisely
this purpose. As argued, acts of repetition create narrative structures. They
"convey important information about the way in which present and future is-
sues should be understood". As a critical mind would put it: in Security Council
resolutions, repetition serves as a rhetorical devise.
Maks Del Mar, approaching the issue of language and international law in
a similar critical spirit, has contributed an article about the role and value of
metaphor in international legal inquiry. As the article conceives of metaphor,
when used in verbal utterances, its role is dependent on some very specific
cognitive abilities on the part of the addressee. Thus, the use of metaphor can
be seen as an invitation to the addressee to suppose the existence of a relation
of some sort between two images viewed from a certain perspective. A crucial
element of any utterance using metaphor is the clash of images, like in the ex-
pression "man is a wolf". Such clashes tend to engage addressees emotionally,

NORDIC JOURNAL OF INTERNATIONAL LAW 86 (2017) 119-124

INTRODUCTION: LANGUAGE AND INTERNATIONAL LAW

which explains why metaphor may help to cause legal change. To illustrate
this proposition, Del Mar calls attention to metaphorical uses in the practice
and doctrinal literature concerning the formation of customary international
law. As argued, when, in the late 196os, single judges and international scholars
stopped using the metaphor of 'the path, and started to refer instead to the
customary law creating-process in terms of 'ripening' and 'crystallisation, they
paved the way for a general change in the approach of international legal doc-
trine to the understanding of this entire source of law.
The article by Christian Tomuschat addresses a topic of wide-ranging im-
portance: the role of the English language for present-day communication of
international legal propositions. The article makes a detailed account of the
practice of states and international organisations, but also, interestingly, of
the publishing habits of the international community of scholars. Adopting
a more critical attitude, the article ends with a series of observations, which
for especially scholars seem well worth reflecting upon. Say, for example, that
you are among the unfortunate few who happen to speak a small language
like Swedish. You naturally feel obliged to publish the greater part of your re-
search in English. As Tomuschat argues, such a systematic deference to the
English language will inevitably come at a certain price. Single scholars may
stress, themselves, the higher ranking of English-speaking publishing houses
and journals, and that, as an academic, you have to do what you can to pro-
mote your researcher career. However, that that can never be the end of all dis-
cussion. There are some difficult ethical and political questions that will also
have to be considered and accounted for. Tomuschat's article helps to bring out
those questions more clearly.
The article by Benedikt Pirker and Jennifer Smolka ties this Special Issue
together very nicely. The language of international lawyers, much like the lan-
guage developed by other professional groups, is clearly not self-sufficient. On
the contrary, it remains to some extent parasitical on the language spoken by
the layman. It would seem natural, therefore, to think that at least some of the
many issues engaging international scholars, appertaining to the peculiarity
of legal language or the conditions for verbal communications in an interna-
tional law setting, could be profitably approached by drawing on knowledge
acquired within the field of linguistics. International law scholars who wish
to further explore the potential of such a cross-disciplinary approach would
have to proceed in two steps. First, they would have to obtain at least a rough
idea of the kind of knowledge that linguistics can offer. Second, they would
need to take up the task of identifying legal issues that can be analysed and
better understood by drawing on the study of language. The article by Pirker
and Smolka, in a way, manages to do both. It explains the fundamentals of

NORDIC JOURNAL OF INTERNATIONAL LAW 86 (2017) 119-124

 LINDERFALK

Relevance Theory - the pragmatic theory developed by linguistics and cogni-

tive scientists Dan Sperber and Deirdre Wilson. It also makes a case for the
integration of this influential theory in the study of international legal inter-
pretation by outlining the benefits that this would offer.
With that said, I will allow, now, the five articles to speak for themselves.
I do hope that readers of this Issue will find them as much a pleasure to read as
I did and everyone else involved in putting the Issue together.

UlfLinderfalk
Professor of International Law, Faculty of Law, Lund University
Editor-in- Chief,NordicJournalofInternationalLaw
ulflinderfak@jur.luse

NORDIC JOURNAL OF INTERNATIONAL LAW 86 (2017) 119-124