Chinese Burlesque, Magazine Covers, and Treaty Interpretation

by Chris Borgen

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How am I going to tie these together, you ask? Just watch…

Foreign Policy Passport reports the following:

The editors at MaxPlanckForschung, flagship journal of Germany’s Max Planck Institute, got a little more than they bargained for with an example of “classical” Chinese calligraphy they used on the cover of their latest issue. The idea was to evoke an image of China, which was the focus of the issue. But instead of arousing interest in cutting-edge science, Chinese readers discovered the calligraphy was titillating in other ways.

Language Log provides the following rough translation:

With high salaries, we have cordially invited for an extended series of matinées

KK and Jiamei as directors, who will personally lead jade-like girls in the spring of youth,

Beauties from the north who have a distinguished air of elegance and allure,

Young housewives having figures that will turn you on;

Their enchanting and coquettish performance will begin within the next few days.

Interesting, perhaps, but not what the folks at the Max Planck Institute were going for. When the editors realized the gaffe, they issued a statement of apology including the following paragraph:

Prior to publication, the editorial office had consulted a German sinologist for a translation of the relevant text. The sinologist concluded that the text in question depicted classical Chinese characters in a non-controversial context. To our sincere regret, however, it has now emerged that the text contains deeper levels of meaning, which are not immediately accessible to a non-native speaker.

OK, there is a point here that is relevant to the work of international lawyers. (I think.)  It is this whole issue about “deeper levels of meaning, which are not immediately accessible to a non-native speaker.” The question of translation is, of course, of interest to anyone who has had to negotiate or interpret a text (such as a contract or a treaty) that may be written in a language that is foreign to one or more of the parties. The problem is the question of when there may be implications to the text in one language that may not exist in a version of the text in another language.

The most simple answer to this is to have a single controlling language. So, for instance, a contract may be executed in English and in French, but only the English language version will be legally controlling. This, however, may put the francophone parties at somewhat of a disadvantage. (And, to quote Steve Martin, “Boy, those French have a different word for everything!”) This makes the contribution of counsel who have English–in this example–as their native language all the more important.

Another response would be to have the English and French versions each be legally effective. This can lead to its own problems. In regard to treaties, Article 33 of the Vienna Convention on the Law of Treaties addresses this situation:

Article 33
Interpretation of treaties authenticated in two or more languages

1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall
prevail…

3. The terms of the treaty are presumed to have the same meaning in each authentic text.

4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32  [the general rules and supplementary means of interpretation] does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

Not a perfect solution (there are limits to how well one can discern purpose from an unclear text) but it at least provides a specific technique that the drafters can consider when drafting the treaty itself and include, for example, recitals at the begining of the text that could clarify the purpose of the treaty and thus assist anyone using purposive interpretation.

Anyway, as for the editors at the Max Planck Institute, they ultimately replaced the cover with another text:

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According to Language Log, this text is the title of a book by the Swiss Jesuit, Johannes Schreck, “Illustrated Explanations of Strange Devices… with information about the publication of the particular edition in question.”

http://opiniojuris.org/2008/12/12/chinese-burlesque-magazine-covers-and-treaty-interpretation/

2 Responses

  1. Brilliant, Chris, yes I wondered how you were going to tie all those together! – look, if I need some legal help if ever I am indicted for, I don’t know, selling public office, I want you to be my counsel.

  2. It seems to me that there should be more than enough data in the negotiation history of most treaties to answer these kinds of questions fairly clearly.  But in the rare cases where investigating those documents for the treaty’s meaning is insufficient, it seems like it would violate the principle of state consent to expect a state to adhere to a provision that they had understood differently during the ratification process.

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