Semiotics of international law trade and translation

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SEMIOTICS OF INTERNATIONAL LAW Law and Philosophy Library VOLUME 91 Series Editors: FRANCISCO J LAPORTA, Department of Law, Autonomous University of Madrid, Spain FREDERICK SCHAUER, School of Law, University of Virginia, U.S.A TORBEN SPAAK, Uppsala University, Sweden Former Series Editors: AULIS AARNIO, MICHAEL D BAYLES† , CONRAD D JOHNSON† , ALAN MABE, ALEKSANDER PECZENIK† Editorial Advisory Board: AULIS AARNIO, Secretary General of the Tampere Club, Finland HUMBERTO ÁVILA, Federal University of South Brazil, Brazil ZENON BANKOWSKI, Centre for Law and Society, University of Edinburgh, United Kingdom PAOLO COMANDUCCI, University of Genoa, Italy HUGH CORDER, University of Cape Town, South Africa DAVID DYZENHAUS, University of Toronto, Canada ERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft, Johannes Gutenberg Universitat, Mainz, Germany RICCARDO GUASTINI, University of Genoa, Italy JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York, U.S.A PATRICIA MINDUS, Università Degli Studi di Torino, Italy YASUTOMO MORIGIWA, Nagoya University, Japan and University of Edinburgh, United Kingdom GIOVANNI BATTISTA RATTI, “Juan de la Cierva” Fellow in Law, Faculty of Law, University of Girona, Spain WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy HORACIO SPECTOR, Universidad Torcuato Di Tella, Argentina ROBERT S SUMMERS, School of Law, Cornell University, U.S.A MICHEL TROPER, Membre de l’Institut Universitaire de France, France CARL WELLMAN, Department of Philosophy, Washington University, U.S.A For further volumes: http://www.springer.com/series/6210 SEMIOTICS OF INTERNATIONAL LAW Trade and Translation by Evandro Menezes de Carvalho Getúlio Vargas Foundation (FGV), Rio de Janeiro, Brazil Translation by Luciana Carvalho Fonseca 123 Dr Evandro Menezes de Carvalho Fundaỗóo Getỳlio Vargas (FGV) Praia de Botafogo, 190 13o andar 22250-900 – Rio de Janeiro Brazil evandro.carvalho@fgv.br ISSN 1572-4395 ISBN 978-90-481-9010-2 e-ISBN 978-90-481-9011-9 DOI 10.1007/978-90-481-9011-9 Springer Dordrecht Heidelberg London New York Library of Congress Control Number: 2010935811 © Springer Science+Business Media B.V 2011 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) To my parents José Maria and Maria Neusa Preface The statement that one cannot reflect or think but through words surprises no one Each word corresponds to an idea, expresses a concept, and describes an action or thing In information theory, it has a meaning But this same theory teaches us that there are polysemous words, which have more than one meaning Among the many meanings words have, in the field of the law, they acquire specialized meanings, thus having different shades of meaning from those employed in colloquial language Defendant is a word used to designate the party against which an action is brought However, to the lay people on the street, defendant is someone who has been accused of a crime It is true that a person can be accused of a crime, and after, when being represented in court, play the role of a defendant Nevertheless, to the legal profession, the meaning is broader and encompasses a number of different situations The language of the law has, therefore, specific meanings, and these may have different shades within each field of the law It is the field’s respective meaning that shall predominate in the decisions and in the interpretations arrived at in a particular field It is for no other reason that in reading the decisions of the World Trade Organization’s Appellate Body, we find numerous references to the dictionary of the Real Academia de Madri, to the Larousse, the Robert, the Oxford Shorter Dictionary, and to other dictionaries, that are used in interpreting WTO Agreements But words are not employed alone in the Law They are embedded in sentences that describe actions, define sanctions, give commands, etc In turn, sentences – and the words that form them – are part of a bigger context, the Agreement, which, in turn, is part of the body of Agreements Words are, therefore, the bricks with which interpreting and the concepts applied to the Marrakech Accords are built They are thus bound to the concept that inspired the Agreements They have to be harmonious with the goals of the text that they shape Doctor in International Law from the University of São Paulo (USP), Brazil Professor of International Law at the Getúlio Vargas Foundation Law School (FGV Direito Rio) and at the School of Law of the Fluminense Federal University (UFF) in Rio de Janeiro, Brazil vii viii Preface When we think that WTO Agreements are a result of the joint will of more than one-hundred States, and that the delegates, during negotiations, with very few exceptions were using languages other than their native languages, and that there are three original versions to the Agreements, and that these versions – in Spanish, French and English – are deemed equally authentic, we can only attempt to account for the many different possibilities of meaning This is very reason why Evandro Menezes de Carvalho’s investigation of the legal and decisional discourse of the World Trade Organization, from the perspective of semiotics, is so important The topic is relevant, the approach so original and creative, that we expect he does not stop here, but develops and expands it to other situations in a near future In this book, he starts by analysing the decision-making discourse of the Appellate Body of the WTO, firstly, by examining how interpreting takes place therein, and, secondly, by determining which are the problems raised and the solutions given when interpreting international treaties that are drafted in three equally authentic versions There is an agreement among the different languages in which the treaties have been drafted, and this agreement reveals the true intention of the authors of the treaties Interpreting is always carried out by the Appellate Body aimed at establishing one single and precise meaning for the contentious term or phrase in a given context, and this meaning conveys the exact idea that all the authors of the Treaty had in mind In other words, interpretation aims at finding the real and precise meaning of a given contextualized word or phrase The kind of interpretation that Evandro Menezes de Carvalho calls dictionarybased interpretation, and the way he addresses how the different language versions are compared, are expressed clearly and very useful The rare need of comparing the different language versions does not mean they are less important, but rather that the potential polysemous nature of terms and phrases in the same language and across languages, must always be taken into account It is only when there are doubts concerning the real meaning of a certain word or phrase that one needs to look to the other versions for something that is missing in another In Portuguese, for instance, “shall” in English, can mean poderia (could) or poderá (will), deveria (should) or deverá (must), but which of these meanings was the intended meaning at the time the treaty was drafted? In Spanish or in French, the verb tense is clearly expressed by the lexeme: “pourrait”, “could”, conditional, is not “pouvra”, “will”, future “Devra” (stronger should) different from “devrait” (weaker should) It is easier to recognize the difference between the conditional and the future, both in Spanish and French Therefore, the polysemous nature of “shall” can be clarified by terms and phrases in other languages that refer to one or another meaning For most terms and phrases, there will be no need to resort to language diversity in order to obtain unity of meaning On the other hand, as Evandro Menezes de Carvalho strongly highlights, legal culture and language are two concepts that form the screen on which the Law is designed One cannot forget that history, in its widest sense as political, economical and cultural history, is the path that leads to a legal Preface ix culture and a language, both being seen as taking place in the space and time of the interpreter The position of language in space and time is also important Any Spanish speaker knows there are differences between traditional Castilian Spanish and the Spanish spoken in Argentina, Uruguay, Mexico, Venezuela or the Philippines The same applies to many words that are used both in Portuguese spoken in Brazil and Portuguese spoken in Portugal, but that have completely different meanings; likewise the English spoken in Australia is different from North-American English The differences are also felt across different historical moments This is the reason behind the pursuit of a single meaning for the words and phrases used in WTO Agreements, which is the meaning that the drafters chose to employ based on consensus (even when sometimes it was not what one drafter or another actually wanted) Precision in meaning is so important for legal stability that the rule that the members of the Appellate Body cannot add to or take away rights or obligations from the Members is understood I believe that the course of globalization will some day possibly lead to the unification of meanings in languages used globally People would speak a neutral English, which is not the English spoken in California or Texas, or Australian or Scottish English It would be a language in which there would be a single meaning for technical or commercial terms It would be a unified language, which would not be the lingua universalis, but a language in which the meaning is common a common one in certain contexts Today, there are different dialects or varieties of English, French, Spanish, etc It is among the meanings of words that differ in general language that one attempts to retrieve a meaning common to all the speakers This meaning will be built progressively from negotiations and the practice, where one single meaning resulting from a common will would be applied to the general use of the language and to the pursuit of an authentic interpretation in the legal field This is why we must take into account that in the process of building the WTO decision-making discourse, the hands-on experience of interpreting a case will provide semantic content and the precise meaning of each word or phrase employed in the Treaties Studies as Evandro Menezes de Carvalho’s are essential to those who wish to work in the field of International Trade Law, not only because they can be directly applied to a semiotic analysis of the reports of the Appellate Body, but also because of how much they represent as a method of research and thought within the other areas of International Trade Law For this reason, I highly recommend this book as a necessary tool to those working in International Trade Law By doing so, I am not relying on the excellent relationship I developed with Evandro during the time I was his supervisor, a period in which I learnt to admire his intellectual and personal qualities, nor am I being blinded by our friendship Rather, I am doing what my vocation, which drew me to the field of the Law in the first place, imposes on me: to strive to justice Nevertheless, I hope that despite the poverty of my ideas, justice is done to Evandro Menezes de Carvalho’s excellent work .. .SEMIOTICS OF INTERNATIONAL LAW Law and Philosophy Library VOLUME 91 Series Editors: FRANCISCO J LAPORTA, Department of Law, Autonomous University of Madrid, Spain FREDERICK SCHAUER, School of. .. International Trade Law at the University of São Paulo Law School Former member of the WTO Appellate Body (2001–2009) Member of the Permanent Court of Arbitration at The Hague since 1996, and of the International. .. with the goals of the text that they shape Doctor in International Law from the University of São Paulo (USP), Brazil Professor of International Law at the Getúlio Vargas Foundation Law School (FGV