12 Apr How to Draft a Maritime Boundary
Here is an amusing example of the type of legal drafting nearly unique to international lawyers:
The delimitation shall extend from the junction of the line that is equidistant from the low water line of Barbados and from the nearest turning point of the archipelagic baselines of Trinidad and Tobago with the maritime zone of a third State that is to the west of Trinidad and Tobago and Barbados. The line of delimitation then proceeds generally south-easterly as a series of geodetic line segments, each turning point being equidistant from the low water line of Barbados and from the nearest turning point or points of the archipelagic baselines of Trinidad and Tobago until the delimitation line meets the geodetic line that joins the archipelagic baseline turning point on Little Tobago Island with the point of intersection of Trinidad and Tobago’s southern maritime boundary [. . .] with its 200 nm EEZ limit. The boundary then continues along that geodetic line to the point of intersection just described.
Did you get that? It’s an excerpt from an award by an arbitral tribunal constituted under Article 287 of the U.N. Convention on the Law of the Sea on a dispute beween Trinidad and Tobago and Barbados. Here is a rough graphical version of that portion of the award.
From Wikipedia, we learn that ‘Legalese is a term, usually used pejoratively, for legal writing that is difficult for lay people to understand. Legal writing tends to have very long sentences with many carefully phrased clauses, and the features of legal writing that make it resistant to misinterpretation when read by legal professionals also often make documents difficult to read or even deceptive for those without legal training.
The issue stems from the motivation inherent in legal writing to be unambiguous and comprehensive. Unlike prose or other forms of writing aimed at the general population, legal writing is aimed at a highly specialized group that uses a specialized vocabulary, containing both unusual terms and common terms imbued with technical meanings. The desire of the author to cover all contingencies overrules brevity, a problem compounded by the tendancy of legal writers to re-use tested stock verbiage rather than writing new documents from scratch. This often leads to legal documents being quite lengthy.’
Therefore it is not surprising that this award reads like it does. What is more, the selection you highlighted is necessarily technical, given the subject matter, other parts of the award are not nearly as technical and readily decipherable by the educated layperson (the sort of individual who would not, typically, need to read this stuff anyway). The pertinent question is whether or not the legal language can be interpreted in colloquial or conventional terms understandable by the relevant parties, those doing the fishing for instance, and I suspect it can.
I routinely read in my daily paper of legal cases taking several years or more to be heard, for a decision, an appeal, what have you, so it’s not at all surprising, given the nature of what is at stake here and the long-term impact or effect it should have, that this case took as long as it did.
I have a hard time deciphering many a paper in physics or economics, but there are some science writers and economists or social critics who can read the technical works in these fields and translate their findings and significance for the rest of us. Knowledge domains/fields of intellectual inquiry in general have become increasingly specialized (Nicholas Rescher has written about this), making polymaths ever more rare and the virtues of trans- or inter-disciplinarity that more difficult to realize. It seems silly to ask the scientists and economists to abandon their technical language (‘jargon’) inasmuch as it has largely evolved or been crafted to suit their needs of exposition. To be sure, there can be excess and insularity here, especially in the latter field, in which case someone like Deirdre McCloskey comes along and criticizes the rhetoric in economics that is needlessly arcane, formal, obfuscatory, and so forth. But that hardly means economics will abandon the technical jargon that marks it off as a unique field of intellectual inquiry. Similar critiques have been applied to the legal profession (e.g., Peter M. Tiersma’s Legal Language, 1999), and thus I would say that it is closer to the truth that the tribunal’s award is an example of the type of legal drafting generally found in the law. If one specializes, say, in the law of the sea, the technical legal language becomes, for better and worse, commonplace. What is paramount here is that techincal language can be translated, when necessary, into a language broader publics are conversant in without too much being lost in translation. That this frequently happens in intellectual and legal domains is evidenced, for example, when scientists testify in public hearings, or go on the lecture circuit. On such occasions, we’re rightly indignant and intolerant if the speaker sticks to the jargon of his or her field.
In short, a bloke like me outside the legal profession is neither amused nor troubled by by the tribunal’s award.
Incidentally, Sir Arthur Watts KCMG QC is no slouch either (i.e., he too is an international law heavyweight). And he is eminently capable of writing about international law in a manner comprehensible and convincing to the rest of us. See, for instance, his eloquent essay, ‘The Importance of International Law,’ in Michael Byers, ed., The Role of International Law in International Politics: Essays in International Relations and International Law (New York: Oxford University Press, 2000).