The science or doctrine of semioticsFootnote 1 has been applied throughout history to study the meaning of signs and symbols in numerous fields, such as linguistics, theology, philosophy, literature, architecture, mathematics and logic, medicine, psychiatry and psychology, economics, biology and ecology, as well as learning and education.Footnote 2 The term semiotics comes from the Greek semeiotikos ‘significance’,Footnote 3 or ‘observant of signs’,Footnote 4 semeiosis ‘indication’,Footnote 5 as well as semeioun ‘interpret as a sign’ and ‘to signal’,Footnote 6 and semeion ‘sign’.Footnote 7 A similar word, semeiotics, referred to the branch of medicine dealing with the interpretation of symptoms in 1670, and earlier in 1588 under the adjective semeiotical.Footnote 8 The term ‘semiotics’ was acknowledged as the study of signs and symbols in English as early as 1641 in the works of Bishop John Wilkins, the first secretary of the Royal Society.Footnote 9 It is presently defined as ‘[t]he science of communication studied through the interpretation of signs and symbols as they operate in various fields’,Footnote 10 and ‘[t]he branch of knowledge that deals with the production of meanings by sign systems in various fields’.Footnote 11
Law comprises infinite chains of icons and representations, or ‘legisigns’,Footnote 12 that underpin the foundations of society, and thus constitutes an especially pertinent area of study for semiotics. Yet scholars and semioticians have yet to agree on a definition of semiotics-of-law, semiotics-in-law or legal semiotics and often refer to these expressions interchangeably. Tiefenbrun defines semiotics of law as ‘a specialized study of sign systems underlying legal informational exchanges’, while Broekman, Mootz and Pencak refer to the subject of legal semiotics as ‘the scientific approach that regards law as a system of signs and meanings’.Footnote 13 Some consider that legal semiotics constitutes a special branch dedicated to the study of law within the science of semiotics, others view it as a subdiscipline within legal theory and others as an interdisciplinary method to explore the legal realm.Footnote 14 Moreover, legal semiotics comprises semiotics-of-law and semiotics-in-law. Semiotics of law examines legal information exchanges via the study of sign systems, whereas semiotics in law considers law as a system of signs. The concept of legal semiotics comprises three central elements: 1) studies the legal realm as an infinite sign system, 2) offers a method or methods to perform this ambitious undertaking, which will be discussed and applied in the present book and 3) provides a common language for scholars, practitioners and the general public.Footnote 15 The ‘common language’ element of legal semiotics is crucial as legal terminology constitutes a language of its own – separate and yet closely connected to everyday idioms – which was until recently only accessible to a privileged few. As noted by Hargitt, ‘[w]hile based on ordinary language, legal language is a jargon primarily characterized by a complex and specialized lexicon, which requires interpretation to be understood and often makes the language completely foreign and incomprehensible’.Footnote 16 Exploring the meaning(s) in law constitutes, for semioticians, an exercise in translation, as legal terms and concepts are not readily known by the general public and require an interpretation in layman’s terms. This is particularly important in human rights law because the content of international treaties and domestic legislation should be easily accessible to all individuals so they be informed of and exercise their rights. Already in 1947, Dr Chang, the Chinese representative to the drafting committee of the UDHR (1948), underscored the importance of ensuring that international instruments are easily comprehended by all persons: ‘[a] declaration of human rights should be brief and readily understandable by all. It should be a document for all men everywhere, not merely for lawyers and scholars.’Footnote 17 Accordingly, the use of specialized or ambiguous terminology constitutes a critical obstacle to the realization of human rights and fundamental freedoms, especially for subordinate identity groups that do not master this language, such as girl children.
Legal semiotics therefore allows for an examination of the triadic relationship between 1) authority or ‘master signifiers’,Footnote 18 2) the language of law and 3) the general public. Indeed, ‘master signifiers’ – notably lawyers, judges, scholars and policymakers, hence influential individuals in a given society – play a central role in constructing and interpreting the language of the law and its many meanings. Wessel argues in this regard that ‘the language of international law is nothing but a rhetorical device of the powerful’.Footnote 19 As noted by Cyran:
The reality of legal discourse is that an institution (government) is achieving its goals by using language and employing functionaries, or ‘authoritative figures’, [to] (sic) define meaning. The authorities consist of courts (through judges) and legislatures (through legislators). Thus, unlike in a natural discourse where anyone can participate in the decision-making process of meaning through communication, in an artificial discourse, only those who communicate with the functionaries can actually influence the meaning of signs.Footnote 20
This language, in turn, holds significant power in shaping our understanding of society. Semioticians can thereby deconstruct the ‘master discourse’ and its impact on the social order, especially as concerns the most vulnerable groups in society, including girl children. Wagner refers to the ‘discourse of power’ and the necessity to question its content and origins, especially when it creates inequalities: ‘[o]nce citizens become aware of the fact that they are speakers of a specific discourse, they are indeed empowered to speak differently – to each other as well as to their respective social institutions’.Footnote 21 Legal semiotics therefore allows for a critique of the symbols employed in legislation and courts, notably their substance and raison d’être. Kevelson defines legisigns as ‘provisional judgements, held and acted on as if they were truths’, although they are in fact the product of an ‘ad hoc community that comes together out of a common purpose’.Footnote 22 As shall be examined in this monograph, there is a significant gap between, on the one hand, the ‘master signifiers’ in international law, that is, those who engage in the drafting of human rights treaties, notably government representatives, legal experts and UN officials, and on the other hand, the object of those treaties, thus individuals exposed to violations. Since girl children occupy a subordinate position in society on account of their sex and age, they are not only absent from the drafting process, but also oftentimes unacquainted with the content of treaties, the legal terminology and the modus operandi of treaty bodies. In many cases, they are oblivious to the international legal framework altogether. Accordingly, girl children are passive objects of the very master discourse of international law that should promote and protect their rights.
While the science of semiotics is a useful method to decode international law, legal scholars nevertheless tend to adopt a traditional approach to interpretation and often examine treaty law separately from linguistics, and even more so, from semiotics. In their interdisciplinary publication, Smolka and Pirker combine their respective fields of linguistics and law to argue that ‘legal interpretation … should no longer be considered merely a legal afterthought – as if meaning were “all in the text”’.Footnote 23 Kevelson’s seminal work at Penn State University, pursued successfully by Broekman, Catá-Backer and Mootz,Footnote 24 has instilled a growing awareness of the relevancy of legal semiotics within academia. Yet very few lawyers, judges and law professors engage with this science. In this regard, Tiefenbrun notes that ‘[s]emiotics is only at the infant stage in its adoption by the legal community as a workable theory and method’.Footnote 25 She further argues that only ‘a courageous few’ have delved into this doctrine.Footnote 26 The present book adopts the novel legal semiotics approach, and thus the principles and methods of the science of semiotics, to interpret and decipher the meaning of signs in the legal field, more specifically in international law. The next section will firstly present the origins of semiotics and key schools of interpretation within semiotics theory, notably decodification semiotics and interpretation semiotics as they relate to our analysis of the girl child. We shall thereafter examine the second element of legal semiotics, that is, the ‘methods’ or ‘frameworks’ employed to examine the law. For this purpose, we will describe the ‘signific’ and ‘semioethic’ methodologies applied in this book to ‘decode’ the provisions of international treaties and examine whether they sufficiently protect the girl child.
I Origins and Meaning
In order to understand the concept of semiotics, it is important to examine the notions of sign and symbol. The term ‘sign’ is defined as ‘[a] basic element of communication, either linguistic (a written or spoken word) or non-linguistic (an image, article of clothing, etc.) consisting of two indivisible elements the relation between which is arbitrary (signifiant [signifier] and signifié [signified]), and which derives its meaning only from its relationship to other signs within the same sign system’.Footnote 27 Instead, the expression ‘symbol’ comes from the Greek sumbolon, a ‘mark, token, watchword, outward sign’ and refers to a material object representing an abstract concept or quality.Footnote 28 The science of semiotics therefore examines the meaning of all forms of communication, both verbal signs, namely language, and nonverbal signs, such as images and sound, and their symbolic as well as concrete implications. In this regard, Tiefenbrun observes that the process of interpretation or ‘decoding’ signs constitutes a ‘systematic process of finding keys to hidden codes that unlock the doors to meaning’.Footnote 29
The origins of semiotics as a discipline in the western world can be traced back to Mesopotamia in 3000 bce and thereafter in ancient Greece, where signs were interpreted for divinatory and medical purposes.Footnote 30 In Mesopotamia, divinatory tablets were structured along a combination of signs which allowed one to ‘infer something hidden or non-present from something perceptible or present’, and in Greece, signs were perceived as ‘the instrument of mediation between the total knowledge of the gods and the more limited knowledge of humankind’.Footnote 31 The process of semiotics also finds its origins in medical symptomology, uncovered in the Corpus Hippocraticum, the collection of very varied texts illustrating medical theory and practice during the fifth and fourth centuries BCE,Footnote 32 which operates a threefold analysis of symptoms as signs to be interpreted in patients: 1) anamnesis (analysis of the causes), 2) diagnosis (analysis of the sickness) and 3) prognosis (oriented towards the future).Footnote 33 In fact, it is noteworthy that the Greek term semeion refers to both ‘signs’ and ‘symptoms’,Footnote 34 and that semiotics is described as ‘the branch of medical science relating to the interpretation of symptoms’,Footnote 35 for, as shall be discussed in this chapter, the doctrine of semioethics reproduces this convergence by examining signs as ‘symptoms’ of social illnesses within the communication order.
Semiotics has been criticized in recent years as a gnoseological science claiming neutrality and objectivity, applied to conduct an abstract and descriptive analysis of signs, that ignores the wider context in which they are created and interpreted, as is the case with the Saussurian binary model of signs which shall be examined in the next section. However, various schools of thought emerged within what is now identified as ‘modern semiotics’, and which progressively addressed the reductive view of signs to acknowledge their inevitable axiological reading, from the triadic or ‘interpretation approach’ adopted by Peirce, Welby, Bakhtin and Rossi-Landi to the significs theory devised by Welby, and followed by Morris, which considers the relationship between signs and values. Ponzio and Petrilli expanded Welby’s significs theory and Sebeok’s ‘Global Semiotics’ to create the field of semioethics that explores the meaning of signs and language for the purpose of addressing societal issues.Footnote 36
II Decodification Semiotics
The first phase of modern semiotics, also identified as the discipline of semiology or ‘study of signs’,Footnote 37 is founded upon the binary sign model elaborated by Ferdinand de Saussure in his Cours de linguistique hénérale (Writings in General Linguistics), and thereafter published by students of his course in 1916.Footnote 38 The Saussurian model is binary on two counts. First, each sign is dyadic: it comprises both the sign vehicle, the ‘signifier’ (for example, a word) and the content of the sign, the ‘signified’ (the concept conveyed by the word). Each signifier may stand for more than one concept. For instance, as shall be examined in Chapter 2, the signifier ‘girl’ can refer to female children but also to domestic workers and even prostitutes, or simply to young women. Likewise, each signified (concept) may be represented by various signifiers (words). The concept of girlhood can be signified by the expressions ‘young girls’, ‘teenage girls’, ‘teen girls’, ‘adolescent girls’, ‘young women’ as well as ‘youths’ and ‘juveniles’. The Saussurian model is also binary for signs relate to each other: the first sign is understood in relation to another sign. For example, the meaning of a word is understood by contrasting its meaning with another word, as the term ‘girl’ might be identified by contrasting it with ‘boy’, ‘woman’ or ‘man’.
The Saussurian sign model was heavily criticized by several semioticians on the grounds that it operates an artificial ‘equal exchange logic’ whereby the signifier and the signified, and signs more generally, are conceived as static entities that relate to each other in a mechanical manner. In this context, signs are perceived as mere signals that are recognized and decoded.Footnote 39 Bakhtin and Voloshinov argued that the Saussurian matrix was too restrictive for it failed to acknowledge the central role played by the interpretant: individual and collective responses to signs. Saussure examined signs separately from the signifying process and thereby neglected to account for the ‘specificity of human communication interaction … the capacity for plurilingualism or heteroglossia, for plurivocality, ambiguity, polysemy, dialogism and otherness’.Footnote 40 Indeed, the Saussurian approach was largely inspired by the School of Lausanne on pure economics and the theory of equal exchange value which considers an object of analysis outside its larger context. Consequently, it applied the categories developed by pure economics whereby laws regulating the market economy are studied outside the social relations of production and common structures. In this regard, Rossi-Landi devised the ‘postal package theory’,Footnote 41 to illustrate that, in his view, Saussure conceives signs as merely postal packages sent off from one postal office and received by another, and communication as solely a collection of signs assembled by the sender and identified by the receiver. Rossi-Landi stressed that under the Saussurian approach, ‘the receiver needs only to register the content of the message, that is, decodify the message without interpreting it’.Footnote 42 The Saussurian model is described as ‘decodification semiotics’ and ‘the semiotics of the code and message’,Footnote 43 for it is based on the premise that signs are recognized and decoded in an objective and systematic manner.
III Interpretation Semiotics: Peirce’s Triadic Approach
Interpretation semiotics appears to address the weakness of the binary model for it acknowledges that signs may be interpreted differently by various individuals and in different contexts. It is particularly relevant in international law because human rights treaties constitute ‘signs’ that may be attributed several meanings globally. Interpretation semiotics was developed before the Saussurian model, notably in the works of Charles Peirce and Victoria Welby, during the second half of the nineteenth century and early twentieth century, although it became commonly known much later, in the 1930s, and is therefore identified as the second phase of modern semiotics. Peirce, who is widely acclaimed as the forefather of contemporary semiotics, developed a triadic analysis of signs, inspired by the work of the Conimbricenses in the Latin Age,Footnote 44 which considers that the sign has three components: 1) the object, 2) the ‘sign’ or representamen and 3) the interpretant – that interact to create an understanding of any object, real or virtual.Footnote 45 The first sign component is the object, or ‘dynamical object’: the object as it is in reality, the ‘material’ object. The second sign component is the sign or representamen, that is, the ‘interpreted object’: the object as it is represented by the sign. Lastly, the interpretant is the meaning that is given to the object through interpretation. This triadic approach is also described as ‘object-interpreted-interpretant’.Footnote 46 Hence, if one were to apply Peirce’s triadism to examine the semiotics of the concept ‘girl’: 1) the ‘real object’ of study is the conceptual notion of the girl child, 2) it is represented by the word ‘girl’ (the sign representamen) and 3) its definitions in dictionaries and how it is understood by individuals constitute the interpretant.Footnote 47 In the Peircean perspective, every interpretant is in turn dependent upon other interpretants, for any definition is based upon the definitions of each word it comprises.Footnote 48 For example, the conceptual notion of girl child rights is defined by several representamen, such as claims, liberties, privileges, powers and immunities,Footnote 49 and each of these signifiers has its own definition and definitions, composed of signifiers which in turn are also defined in dictionaries. In this regard, interpretation semiotics is also referred to as ‘semiosis’, which is the ‘process, or relation, or situation, in which something carries out the role of the sign’: the sign stands for another sign, and thereby creates another sign.Footnote 50 The interpretant, that is, definitions in dictionaries and what individuals and communities understand it to mean, has the potential of engendering another sign indefinitely, in an ‘unending chain of deferrals from one interpretant to another’,Footnote 51 a phenomenon entitled ‘infinite semiosis’.Footnote 52
Peirce developed another triad comprising the immediate, dynamical and final interpretants. The immediate interpretant concerns the meaning normally given to a sign, the dynamical interpretant refers to the meaning of a sign in a specific context and the final interpretant relates to ‘the sign as it appears at the extreme limits of its interpretative possibilities, that is, it concerns all those possible responses that signs may provoke in the unlimited chain of interpretants’.Footnote 53 This triad is particularly relevant for the analysis of the content of international treaties as it underscores that while a number of concepts may be universally acknowledged and understood, certain notions are interpreted differently according to various sociological, cultural, regional and economic factors. Hence, the terminology employed to define the girl child and describe her rights must be sufficiently clear so as not to be misinterpreted, especially in its extreme limits, in ways that could diminish her rights.
Although Peirce recognized the important role played by the interpretant, his triadic approach was nevertheless criticized on the grounds that it operates a unilateral and abstract analysis of signs and fails to account for human influence on the conception of signs as well as its corresponding impact.Footnote 54 Firstly, Peirce overlooked the intention behind the conception of signs and the choice of signifiers. He disregarded the motivation – what we shall refer to as ‘meaning-intention’ – of the master signifiers who create signs and select the representamen, as well as the power relations involved. Secondly, Peirce failed to examine the concrete and symbolic outcomes of the use of concepts and sign vehicles. While he acknowledged that signs may be interpreted differently according to various contexts, and thus shall have diverse impacts in different communities, he nevertheless neglected to account for the valutative aspect of signs: the repercussions of the final interpretation on human beings and society. While Peirce demonstrated interest in the relationship between signs and values in his later works,Footnote 55 his triadic approach did not encompass an ethical component, and thus disregarded the axiology of signs, that is, the theory of their value. Accordingly, this valutative aspect of semiotics was thereafter also neglected by Peircians.Footnote 56 This may appear as somewhat surprising since Peirce’s research was greatly influenced by the works of Victoria Welby, who emphasized the role of interpretation in the doctrine of semiotics, and with whom he corresponded regularly over the course of decades.Footnote 57 In fact, Welby expanded the science of semiotics as conceived by Peirce to address the relation between signs and values, an approach which was thereafter followed by Charles Morris.
IV The Victoria Lady Welby Significs Theory
Lady Welby occupied a privileged position within English society as the goddaughter of Queen Victoria and was, therefore, able, in spite of her subordinate status as a woman at the time, to publish many articles in newspapers and scientific journals as well as books and essays in the fields of philosophy, science, mathematics, anthropology, education and social issues, as well as share her theories through an epistolary network of over 450 leading personalities of her time.Footnote 58 Lady Welby’s approach to semiotics constitutes a landmark for, in addition to studying the meaning of signs and symbols, she conceived a new discipline, coined ‘significs’, to explore their intentional or volitional aspect, and ultimate significance. Her definition of significs was enshrined in the 1911 edition of the Oxford English Dictionary (OED) as ‘a proposed science and educational method based upon the importance of realizing the exact significance of terms and conceptions, and their influence on thought and life’.Footnote 59 Welby chose to name this new approach ‘significs’ in reference to the ‘unconsciously philosophical question’ which initiates the analysis of meaning: ‘What does this signify?’ which encapsulates questions such as ‘“What is the sense of … ?”, “What do we intend by … ?”, “What is the meaning of …?” (…) “Why do we give value to experience?”’Footnote 60 She wished to distinguish her approach from the general semiotics doctrine of her time, and noted that as a new term ‘significs’ presented the advantage of not having been used and thus did not have technical associations, contrary to terms such as ‘semantics’ which refers generally to ‘the study of the meaning of signs’,Footnote 61 and ‘sensifics’ which could be associated with ‘sense’.Footnote 62
Welby’s numerous travels throughout her childhood, in countries spanning four continents, such as Canada, the United States, Mexico, Italy, France, Morocco, Turkey and Syria,Footnote 63 opened her linguistic and cultural horizons, and she became aware, at a young age, of the diversity of interpretations that signs and words could have within different political, social, cultural and economic contexts. In this regard, she criticized the presumption of certain semioticians and British scholars of her time that signs have the same meaning for all individuals and interpretants. Welby coined the expression ‘plain meaning’ to refer to this restrictive approach:
[w]e have been postulating an absolute Plain Meaning to be thought of, as it were, in capital letters. We have been virtually assuming that our hearers and readers all share the same mental background and atmosphere. We have practically supposed that they all look through the same inferential eyes.Footnote 64
She was particularly concerned with the ‘widespread belief that a text can evolve into a single reading, into an absolute and definitive interpretant valid for all times’.Footnote 65 As previously mentioned, her work falls within interpretation semiotics and it is noteworthy that well before Saussure’s decodification semiotics, she had already identified the latter’s central shortcoming: the myth of the single universal meaning of terminology.
Welby developed the Threefold Laws of Meaning – Sense, Meaning, and Significance – as a framework to examine the import of all forms of human expression. She explained this Meaning Triad in the following terms:
[T]he one crucial question in all Expression, whether by action or sound, symbol or picture, is its special property, first of Sense, that in which it is used, then of Meaning as the intention of the user, and, most far-reaching and momentous of all, of implication, of ultimate Significance.Footnote 66
Welby’s theory of significs seems particularly suitable to examine the semiotics of terminology in the international legal realm as concerns girl children, for in addition to studying the sense of words, it enables an analysis of the reason behind the selection of terms to define the girl child and phrase her rights, and their ultimate significance. In this regard, it appears more appropriate than Peirce’s ‘immediate-dynamic-final interpretant’ triad, which does not consider the ‘meaning-intention’ and ‘ultimate significance’ of signs. Welby’s Threefold Laws of Meaning allow for the examination of the significance of terminology and thus its possible interpretations according to diverse political, economic, social and cultural factors, which is crucial when studying the content of international treaties adopted by states worldwide. This book shall therefore apply Lady Welby’s Meaning Triad as a framework to examine whether the content of international law sufficiently protects the girl child.
1 Sense
The Meaning Triad comprises three levels of analysis that shall be examined in this book. The first level of meaning, sense, corresponds to the textual meaning of the provisions of international human rights treaties relevant to girl children. Sense refers to the words used to describe the girl child and the content of her rights and fundamental freedoms in treaty provisions, and what they are understood to signify within the international legal framework. This first step is reflected in the ‘General Rule of Interpretation’ established in the Vienna Convention on the Law of Treaties (1969) under article 31(1), which considers word analysis as the starting point of treaty interpretation: ‘[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.Footnote 67 In this perspective, Welby’s sense element corresponds to the ‘textual approach’ of the Vienna Convention based on the assumption that the text has an intrinsic meaning, independently from the circumstances of its drafting, similar to Saussure’s equal exchange logic between the signifier (the treaty text) and the signified (the agreement between the parties). Since the Vienna Convention is the central international instrument codifying the rules of treaty interpretation, its recognition of the primacy of the text, or sense, is particularly relevant to our analysis. This book shall refer to the ordinary meaning of the terms employed in relevant international treaties, unless it could be argued that the drafters intended a special meaning. Indeed, article 31(4) of the Vienna Convention places the burden of proof on those arguing that the term has a special meaning: ‘[a] special meaning shall be given to a term if it is established that the parties so intended’. In this regard, Gardiner contends that should the context be technical or specialized, words shall be interpreted accordingly.Footnote 68 While in fields such as intellectual property and in complex contracts, treaties should be examined in light of the special meaning of the terms employed, it is argued that human rights treaties belong to a different category. For rights to become universal, their ‘representamen’ and ‘signifier’ – the treaty provisions – must be easy to comprehend and thus accessible to all human beings, across cultures, and regardless of socio-economic status. Accordingly, provisions should be clearly formulated so that all individuals can understand their meaning, including the final interpretant(s). This concern for clarity and accessibility is embedded in the text of the UDHR,Footnote 69 and the international community thereafter avoided specialized legal terminology in human rights treaties, although as shall be discussed in the next chapters, ambiguous terms and concepts are still employed. Hence, this book shall analyze the ordinary meaning of terms in treaties relevant to the girl child, except when there is a clear indication that the drafters gave them special meaning. The sense of the terminology employed to identify the girl child and describe her rights shall be assessed by examining the definitions offered within international instruments and English dictionaries. As noted by Kadelbach: ‘[t]he emphasis on “ordinary meaning”, understood as the common use of the term, is probably the reason for the use of dictionaries of all sorts in order to determine an everyday understanding’.Footnote 70 This book shall primarily refer to the OED and the Webster; however, it will also turn to other dictionaries providing a more comprehensive historical perspective of terms.
The examination of the sense of international treaties nevertheless involves certain limitations. Firstly, it is acknowledged that the exploration of the sense element through interpretative semiotics can become a form of infinite semiosis, since the recourse to dictionaries to elucidate the ordinary meaning of words can become a never-ending process where definitions carry out the role of the sign. As noted by Barthes, dictionaries are ‘vertiginous’ objects in which each word is defined in relation to other terms, which in turn are also defined in reference to other terminology.Footnote 71 However, in the case at hand, we shall restrict our analysis to the first and second levels of the definitions of terms examined, for instance, we shall explore 1) the terminology ‘girl child’ and 2) relevant terms employed to describe this concept in dictionaries, as well as pertinent synonyms and antonyms, such as woman, man and boy; however, we shall not embark on a boundless analysis of each term thereafter. Moreover, our study is not restricted to dictionaries, as it primarily focuses on definitions offered in international treaties and is thus more circumscribed.
Secondly, the ‘ordinary meaning’ or textual approach is complicated by the historical meaning of terminology: certain terms adopted during the drafting of the treaty might not have the same sense today, or tomorrow. In this regard, it is worthy of note that several terms referring to the child, and the girl child, have been re-examined since the drafting of relevant international instruments pertaining to children. For instance, the expression ‘juvenile’, employed in the UN Standard Minimum Rules for the Administration of Juvenile Justice (1985), as well as in the CRC General Comment on Juvenile Justice (2007),Footnote 72 is today recognized as having negative connotations, since the commission of an offence suddenly becomes the central identity vector defining the child, including the girl child. Accordingly, expressions such as ‘girls in conflict with the law’, ‘young people’ and ‘youths’ are preferred.Footnote 73 The present author recommended the use of the expression ‘child justice’ in 2007,Footnote 74 and the CRC Committee adopted this new terminology in its general comment replacing the expression ‘juvenile justice’ in 2019.Footnote 75 This book shall thus consider historical meaning while examining treaty provisions, and notably refer to the travaux préparatoires to elucidate the drafters’ intentions.
Thirdly, the concept of ‘ordinary meaning’ itself raises questions. Professor McDougal, in his legendary criticism of the textual approach during the drafting of article 31 of the Vienna Convention, questioned whether one could identify a plain meaning of words:
In reality, words had no fixed or natural meaning which the parties to an agreement could not alter. The ‘plain and ordinary’ meanings of words were multiple and ambiguous and could be made particular and clear only by reference to the factual circumstances of their use.Footnote 76
Moreover, the Special Rapporteur of the International Law Commission, Waldock, recognized that ‘[w]ith regard to the expression “ordinary meaning”, nothing could have been further from the Commission’s intention than to suggest that words had a “dictionary” or “intrinsic” meaning in themselves’.Footnote 77 This criticism of the ordinary meaning echoes Welby’s concern of the ‘plain meaning’ of words which led her to devise her theory of significs and The Meaning Triad, notably the second and third elements of ‘meaning’ and ‘significance’.Footnote 78 The textual approach has been criticized on the grounds that it appears to examine the text in a vacuum and fails to acknowledge the intention of the master signifiers, that is, the treaty drafters, and the role of the interpretant. During the Vienna Conference, some delegates noted that interpreting ‘words in accordance with dictionary definitions … might conflict with the will of the parties’.Footnote 79 Others observed that words could be interpreted differently by different individuals and institutions.Footnote 80 This latter statement is aligned with Peirce’s third triadic element: the interpretant. Peirce underscores that ‘no man’s interpretation of words is based on exactly the same experience among different persons’.Footnote 81 Kolb argues that the ‘subject of interpretation’, that is, the person or institution interpreting the treaty, is a considerable factor to consider, and notes in this regard that ‘le qui l’emporte souvent sur le comment’ (‘the person who interprets often has precedence over the means employed to interpret’, my translation).Footnote 82 As previously noted, each individual may attribute different meanings to the same sign, and the final interpretant may push this divergence to the extreme. For example, as shall be discussed in this book, certain concepts, such as the ‘best interests of the child’ principle enshrined in the CRC, may be perceived by certain States parties or individuals as sanctioning harmful practices, such as child marriage or FGM, in the name of the girl’s ‘best interests’.Footnote 83 Since the textual approach may lead to diverse interpretations, it can also allow States parties to act in bad faith when implementing treaty provisions. Hosseinnejad argues that ‘to assume that words have a “plain” meaning independent from the tradition within which the word is used permits interpreters to interpret legal texts according to whatever seems suitable to them’.Footnote 84 This is particularly problematic as concerns the human rights and fundamental freedoms of the girl child since States parties may choose to interpret provisions so as not to protect her rights fully. Accordingly, in order to address these shortcomings, the present book shall examine the sense of the ‘ordinary meaning’ of terms under an extra-textual or ‘teleological’ approach which gives effect to the object and purpose of the treaty as indicated in article 31(1) of the Vienna Convention, and as supported by several of the Vienna Convention drafters.Footnote 85 In some cases, it will be acknowledged that the word examined might have only one meaning, or at least, one main ordinary meaning.Footnote 86 While the treaty text is the basis of our interpretation, other elements shall also be examined to clarify the context, object and purpose of the treaty, as stated in the Vienna Convention:
31(2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty
b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
In the semiotic analysis conducted in this book, we shall refer to the preamble of treaties to clarify the content of provisions, where relevant. Moreover, as stipulated under article 31(2)a) of the Vienna Convention, together with the context, we shall consider ‘any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty’ and in line with article 31(3) of the Vienna Convention, we shall consider subsequent agreements ‘between the parties regarding the interpretation of the treaty’ and ‘subsequent practice in the application of the treaty’. For example, we shall refer, where relevant, to subsequent agreements, such as the Optional Protocols to the CRC, even though the latter were not ratified by all States parties to the Convention, for they indicate an intention by several parties to address specific issues, notably children in armed conflict and sexual exploitation.Footnote 87 Finally, our analysis will not be limited to the text and the object and purpose of the treaties examined, for we shall also consider Welby’s second triadic element: the ‘meaning-intention’ of the parties.
2 Meaning
The second level of Welby’s Triad is the meaning of the word employed, ‘the intent which it is desired to convey – the intention of the user’.Footnote 88 This level corresponds to the intention behind the selection of a term, the ‘meaning-intention’.Footnote 89 The meaning of terminology in international law is the intention of the drafters when choosing specific terms to describe rights as well as States parties’ duties under the treaty. It shall be investigated in this book by studying the travaux préparatoires of international treaties, notably the CRC, CEDAW and ICCPR, which describe the negotiations leading to the selection of terminology to formulate rights during the drafting processes. The UN Institute for Training and Research (UNITAR) emphasizes that the travaux préparatoires enable us to:
trace the origin of each significant word and phrase and, in addition, identify proposals which were made in the course of negotiations, but which were not implemented … and which for this very reason can shed light – albeit sometimes a negative one – on the meaning of the text adopted.Footnote 90
One can argue that the second triadic element ‘meaning-intention’ is reflected under article 32 of the Vienna Convention which stipulates that ‘[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion’. Lauterpacht famously noted that the travaux constitute a fundamental element, perhaps the most important, of treaty interpretation, and is an essential tool to identify the intention of the parties.Footnote 91
While the travaux offer essential insight to identify the meaning-intention of the drafters, they nevertheless comprise some limitations which should be acknowledged. The first issue is what we mean by travaux préparatoires: what is included in these documents? For instance, do they comprise the declarations of agreement, instructions to negotiators, diplomatic exchanges and documents emanating from international agencies? It is notable that the drafters of the Vienna Convention chose not to offer a definition of the travaux préparatoires, so as not to restrict their content.Footnote 92 This begs the question whether the travaux solely incorporate discussions that occurred during official meetings, or also communications and statements made outside this context. Many negotiations occur both behind closed doors during private meetings and outside closed doors during ‘informal’ conversations. Indeed, as noted by Ris: ‘crucial deliberations … often occur in private and thus never appear in the negotiation record’.Footnote 93 This uncertainty as to the content of the travaux has the additional shortcoming that any statement made during the framing of the treaty could be considered a part of the preparatory work, including in informal settings. It also raises the following question: at which time do comments made by delegates matter? Moreover, states’ interventions during official meetings can be misleading. As noted by the Brazilian delegation during the Vienna Conference:
Although the preparatory work must undoubtedly be borne in mind, the utmost caution was necessary. States sometimes concealed their real views on the questions under discussion at conferences or resorted to friendly States to express them. A certain degree of confusion was thereby created, and gave rise to mistrust.Footnote 94
In the case at hand, since state representatives are aware that their interventions are recorded in the travaux préparatoires, they may prefer not to formally disagree with a formulation of rights that would protect girl children, and instead pressure other states, including those that share common political and commercial interests, to voice their opposition. A government delegation may even request other states to present its suggestions in their own name. One must also bear in mind that since the drafting process spans over a decade, as with the CRC and CEDAW, and two decades for the Twin Covenants, several states undergo significant regime changes during these time periods.Footnote 95 The same state may send different representatives to the working group over the course of a decade or two, and in some cases, give them completely opposite instructions. This may account for the fact that some states strongly support a certain vision of human rights, or in the case at hand, of girl child rights, at the beginning of the drafting process, and thereafter adopt a completely different approach. Hence, the contributions of states may vary significantly throughout the course of treaty preparation, thereby preventing consistency and thus a reliable diagnosis of their meaning-intention.Footnote 96
Furthermore, a state, acting in bad faith, could purposely bring out an issue during the official meetings, in the hopes that such a declaration will later be used to interpret treaty provisions. This issue was raised during the Vienna Conference: ‘it was only too easy for a State wishing to evade its obligations to inject an element of uncertainty by referring to preparatory work’.Footnote 97 Hence, the travaux préparatoires cannot offer a complete depiction of the drafting process and must be read in light of the abovementioned limitations. In this book, we shall restrict our analysis to the discussions that occurred between the drafters as reported in the travaux préparatoires of the CRC, CEDAW and ICCPR, including the preliminary drafts of provisions, while acknowledging that these official documents cannot offer an exhaustive account of negotiations and debates, such as confidential agreements taking place behind closed doors, in hallways, at receptions and other informal venues.
The second issue to be considered is that the semiotic reading of the travaux préparatoires is affected by historical subjectivism.Footnote 98 Indeed, one cannot examine the past objectively, and reference to history in international law will inevitably be political. As noted by Klabbers:
[W]hile relying on history, we do not adopt it wholesale: we pick out the bits and pieces, and the versions of history, that are convenient for whichever argument we happen to be making … whereas we ignore the less useful or welcome aspects and versions … what matters is not whether to look at history generally, but which history to look at, and whose history to look at.Footnote 99
A semiotic analysis of the travaux préparatoires which were drafted over thirty (CRC) to seventy years ago (Twin Covenants) undertaken in a modern perspective may not account for the historical dynamics of that era. Likewise, such an analysis might be influenced by the semiotician’s own awareness of events that took place afterwards and which were not considered by the drafters at the time. Additionally, as is the case with treaty provisions, the travaux may be read in contemporary or instead historical language, which adds an additional layer of interpretation. Linderfalk argues that the former refers to language conventions ‘adhered to at the time the treaty is interpreted’, and the latter ‘adhered to at the time the treaty was concluded’.Footnote 100 In the former case, the semiotician might neglect to take into consideration the meaning of terms at the time they were selected, and in the latter, s/he might fail to examine the impact of that terminology today. The semiotician might also question whether the meaning of the terms selected was meant to evolve according to future schools of thought and international developments, or whether they were fixed once enshrined in the treaty.Footnote 101 Accordingly, a semiotic analysis of the travaux préparatoires constitutes a transformation or transmutation of historical documents. Moreover, the travaux themselves are the product of the interpretation, by their authors, of the discussions that took place during the drafting process. These authors also have a meaning-intention which may have influenced the final product, thereby creating a new sense of the travaux préparatoires. Consequently, a semiotic analysis involves two levels of transformation of the travaux: that of their authors, and that of semioticians, both acting as Peirce’s ‘immediate’ and ‘dynamical’ interpretants, thereby adding their own subjective layers of interpretation.Footnote 102 In this regard, it is worthy of note that several scholars criticize the claim of objectivity in interpretation. Zarbiyev notes that ‘[i]nterpretation represents a danger to the integrity of law, implying that it does a certain level of discretion, which is antithetical to certainty that is seen as an essential part of any legal system’.Footnote 103
The third issue to be considered is that the sense of the travaux préparatoires may differ when they are translated into other languages. For instance, the English version of the propositions submitted by delegates may differ from its French version, which adds another layer of uncertainty.Footnote 104 In this book, we shall thus consider these factors, and while our analysis shall be conducted in the contemporary English language, we shall also acknowledge the sense that was given to certain terms at the time they were selected by the drafters, including by referring to dictionaries. The travaux préparatoires nevertheless constitute an essential element of interpretation, both to elucidate the sense of the treaty text, and its meaning-intention. As regards the former, the Vienna Convention confirms that the travaux préparatoires constitute an element of treaty interpretation for they may assist in understanding the context or textual environment of the terms of the treaty. The decision to locate the travaux in article 32, separately from article 31 which enshrines the General Rule of Interpretation, constitutes a sign in itself, especially as article 32 refers to ‘[s]upplementary means of interpretation’, thereby implying that the travaux are subordinate to the text of the treaty. As previously noted, the Vienna Convention gives precedence to the textual ordinary meaning of a word rather than the intent of the drafters when elucidating the sense of the treaty. Kadelbach underscores that the ICJ, ‘along the lines of the [Vienna Convention], has moved towards preference of the textual over the original intent approach’.Footnote 105 This does not signify that reference to the travaux is not pertinent to elucidate the sense of treaty provisions. Presently, UNITAR notes that individuals who accept professional responsibility in interpreting treaties, such as States parties, members of treaty bodies, judges and lawyers, hence the master signifiers ‘will not normally feel able to rely exclusively upon the interpretation which someone else has placed upon the preparatory work’.Footnote 106 In this regard, UNITAR emphasizes that ‘[n]o lawyer would feel satisfied about his identification of a meaning of a treaty unless he had examined the preparatory work’.Footnote 107
Lady Welby’s first two laws of meaning, that is, the examination of the sense of terms and the investigation of the meaning-intention of the drafters, constitute two distinct although interconnected components of the semiotic analysis, and are equally important to establish the significance of international treaties. Whereas in the rules of interpretation of the Vienna Convention, the intent of the drafters is examined solely for the purpose of identifying the sense of the treaty provisions, and solely as a subsidiary element, this book examines the travaux préparatoires to uncover the meaning-intention of the delegates in choosing a term as it sheds light on the power struggles between delegates – and the competing interests they may represent – in shaping the symbolic and concrete significance of treaty provisions as concerns the girl child. As noted by Klabbers:
The travaux préparatoires somehow connect the stultified text of a treaty to the real world of politics, of intercourse between states with their powers and their weaknesses, their sympathies and antipathies, their motivations and intentions.Footnote 108
The travaux allow us to identify treaty provisions that were reached unanimously, and those that instead triggered significant debates, in some cases, over the course of decades. This second element of The Meaning Triad is particularly useful to ascertain which girl child rights encountered the most resistance from certain States parties, and thus which are less likely to be implemented at the domestic level.
3 Significance
The third level of meaning, significance, is the ultimate, covert or overt, import of the language used to phrase rights under international law. Welby underscores:
Significance is always manifold, and intensifies its sense as well as its meaning, by expressing its importance, its appeal to us, its moment for us, its emotional force, its ideal value, its moral aspects, its universal or at least social range.Footnote 109
The significance of terminology in international law is that it moulds the substance of rights, their scope, as well as the extent of States parties’ obligations. In this regard, terminology shapes the notion of rights and their potential universal recognition and implementation at the domestic level, and conversely, their possible denial, dismissal or violation. The significance of terminology shall be explored in this monograph by analyzing the consequences of the formulation of rights in treaties on their substance as well as on the corresponding obligations of States parties. We shall endeavour to answer the following questions: is the girl child clearly identified under international law? Who is protected under the umbrella of the ‘girl child’ identity vector? Is the boundary for the beginning, and for the end of girlhood, clearly delineated in the international legal framework? What happens to young women located at the frontiers of girlhood and womanhood? Are the rights of girl children phrased in sufficiently clear terms? Could they be (mis)interpreted by the dynamical and final interpretants? Do provisions, as formulated, take into consideration the obstacles that girl children face in exercising their rights? Do treaties tackle specific human rights abuses experienced by girl children, such as child marriage? Do treaties tend to focus only on certain forms of abuse, thereby disregarding other issues, such as the over-sexualization of girls and unrealistic beauty ideals? Are the rights phrased in a paternalistic approach or do they truly empower girl children? Do treaty provisions protect girl children in both the Global South and Global North, the West and East and across social classes? Finally, do treaty provisions address the intersectional discrimination experienced by girls on account of class, race, religion, culture, (dis)abilities and sexual orientation as well as girls in specific circumstances, such as armed conflict, detention and girl child refugees?
4 The Lady Welby Legacy
Welby’s study of the meaning and value of signs was followed by Charles Morris who underscored that the science of semiotics could not be studied separately from axiology, defined as the ‘study of the nature, and criteria of values and of value judgments especially in ethics’.Footnote 110 Morris argued that every sign has not only meaning in terms of ‘linguistic meaning’, the approach followed by Peirce and Saussure, but also an intrinsic social and ethical meaning. In this regard, he stated that: ‘[i]n many languages there is a term like the English term “meaning” which has two poles: that which something signifies and the value or significance of what is signified’.Footnote 111
Although influential, Lady Welby’s contribution to the semiotics discourse was neglected, in part because she often published anonymously to ensure her work be recognized on its own merit, noting that ‘the only honor she valued was that of being treated by workers as a serious worker’.Footnote 112 Moreover, when Lady Welby did sign her work, she tried to remove her title: ‘may I confess that in signing my book “V Welby” I hoped to get rid as far as possible of the irrelevant associations of my unlucky title? … You will understand my desire to be known as simply as possible’.Footnote 113 Finally, it is noteworthy that most (male) semioticians failed to acknowledge her work in their publications, even though they underscored her influence on their discoveries within their correspondence to her.Footnote 114 For instance, although Ogden’s research was significantly inspired by Welby’s work – exchanging over sixty letters with her discussing significs theory, and staying at her home, with access to her library and papers – he mentions her only once and briefly in his book The Meaning of Meaning: A Study of the Influence of Language upon Thought and the Science of Symbolism.Footnote 115
Victoria Welby’s theory of significs nevertheless had a strong bearing on the development of legal semiotics in The Netherlands through Jacob de Haan, who applied her Meaning Triad as a framework to analyze legal language, notably in his 1916 doctoral dissertation. It is worthy of note that it took 100 years for The Meaning Triad to be applied again in the legal field, in another dissertation in law, this time at the University of Oxford, by the present author. This 100-year gap could be explained by de Haan’s early departure. Although de Haan was extremely prolific in his lifetime as he held the first Chair of Legal Significs at the University of Amsterdam, published two books and over forty articles, and coined the expression ‘legal significs’, his work unfortunately came to an end when he moved to Jerusalem and was assassinated, on political grounds, shortly thereafter.Footnote 116
Welby was only recently recognized as the foremother of modern semiotics, notably through the works of Thomas Sebeok and Susan Petrilli.Footnote 117 Sebeok described Welby as ‘the legendary foremother and prime mover of “significs” and “sensifics” species of turn-of-the-century (and subsequent) semiotics’.Footnote 118 In fact, since Welby’s Threefold Laws of Meaning only received attention recently by semiotic scholars, it has as yet not been formally criticized. One could argue that the weakness of Welby’s theory is that while it allows for an examination of the significance of signs, and the ‘deconstruction’ of their content, it does not propose a methodology to modify them to avoid potential negative outcomes, thereby ‘rebuilding’ their structure. Welby’s analysis of the value of meaning and its ultimate significance, as well as her concern for ‘the effects, consequences and implications of the conjunction between signs and values for human behaviour’Footnote 119 nevertheless paved the way for the discipline of semioethics elaborated one century later, which addresses this shortcoming.
V Semioethics and Responsibility
The semioethics approach was introduced by Ponzio and Petrilli in 2003. It ‘critiques the reification and hypostatization of signs and values and, instead, investigates the processes that produce them’.Footnote 120 Initially coined ‘ethosemiotics’ by Ponzio, to refer to Aristotle’s concept of ethos (ethical appeal) and ‘teleosemiotics’, from the term ‘teleo’ which signifies ‘end’, it was finally identified as ‘semioethics’ to underline the interconnectedness between semiotics and ethics.Footnote 121 This new approach expands the ancient medical semiotics of symptomology found in the Corpus Hippocraticum – which studied physical and mental symptoms in patients triadically in terms of anamnesis, diagnosis and prognosis – to examine current symptoms of the globalized world, in all fields of human behaviour, for the purpose of 1) uncovering their causes, 2) offering a diagnosis and 3) identifying potential remedies. Petrilli explains:
[S]emioethics proposes to examine symptoms – in our case symptoms of the worldwide social malaise – generated by the current communication order and its passive reproduction. Semioethics proposes a critical reading of the world-as-it-is and is committed to the search for possible remedies and improvements.Footnote 122
The semioethics matrix was greatly influenced by Sebeok’s global semiotics theory,Footnote 123 which aims to examine signs in a multidisciplinary and holistic manner. Global semiotics is a ‘metascience concerned with all academic disciplines as sign-related’ that recognizes the ‘universal role of signs in creating the reality of human consciousness’.Footnote 124 Petrilli notes that global semiotics ‘unites what other fields of knowledge and human praxis generally keep apart either for justified needs of a specialized order, or because of a useless and even harmful tendency towards short-sighted sectorialization’.Footnote 125 The semioethics approach ‘interrogates the human world today on the assumption that it is not the only possible world, that this world has not been established definitely, once and for all, by some conservative ideology’.Footnote 126 In this regard, this book adopts a semioethics approach for it does not perceive the predicament of the girl child as a fatality that cannot be addressed, nor does it consider international treaties as static entities one cannot amend to clarify the wording of rights.
1 Ethical Responsibility
The semioethics approach, in line with the global semiotics theory, underscores the responsibility of semioticians in analyzing signs and their significance. It considers that signs should be evaluated not solely for the purpose of offering a diagnosis, but also for identifying possible avenues to address societal problems and humanize the communication order. In this regard, semioethics aims for ethical responsibility:
As a scientific method and philosophical vision of life, semiotics is adequately equipped to contribute to the quest for social change – hence the invitation to eventual ‘semioticians’, or if you please ‘semioethicians’, whether by profession or simply as actors on the stage of life, to take up the challenge.Footnote 127
Semioethics addresses Welby’s critique of semioticians who passively reproduce problematic signs and ambiguous terminology rather than attempt to question and deconstruct their meaning:
The question is, whether this state of things is quite so inevitable as most of us seem to think. Certainly, so long as we are content to live in the fool’s paradise of supposing that only the … prejudiced … or the ignorant can possibly mistake our meaning, and that our misreading of others are simply due to their obscurity … or literary incapacity, we shall ourselves contribute to the hopelessness of the situation. But this is a subject which cannot be dealt with in an incidental way; it is rather a hope for the future, that one of the most practically serviceable of subjects – that of Meaning, its conditions and its changes – shall be seriously taken up’.Footnote 128
The present book adopts a semioethics approach for it not only examines the sense, meaning and significance of provisions enshrining the rights of the girl child in international treaties, but also proposes to amend the wording of these provisions, where necessary, to strengthen the protection of the girl child. It studies the content of international human rights treaties, which constitute important elements of the communication order, to identify potential remedies to the current predicament of the girl child. It notably recommends terminology that will clarify the status of the girl child in the CRC and the CEDAW to avoid misinterpretations by States parties, international and national institutions, individuals and communities and the girl child herself. In this regard, it takes into consideration the various conceptions of girlhood worldwide stemming from sexism and childism so that the provisions of international treaties unambiguously protect the girl child. The proposed reformulation of key provisions aims to ensure that rights are clearly stated, even when read by Welby and Peirce’s ‘final interpretants’, that is, States parties, communities and individuals who do not consider girl children as rights holders.
The semioethic theory is novel and commentators have not, as yet, developed a critique of this approach. One can identify two potential shortcomings of the semioethic approach. First, it is important to bear in mind that the first phase of semioethics whereby one detects potential weaknesses in language within the communication order, does not automatically ensure the second phase of semioethics, that is, it does not signify that one can find the proper terminology to replace it. Welby stresses that ‘[i]t is, unfortunately, one thing to see the needless traps of which language is full and quite another to succeed in avoiding them’.Footnote 129 Hence, while this book shall endeavour to suggest amendments to provisions to strengthen the protection of the girl child under international law, it will also underscore the limitations of those recommendations.
Second, one can contend that a potential risk of the semioethic theory would be to consider that establishing a diagnosis of the impact of signs and modifying them accordingly suffices to address social problems. Indeed, the modification of the wording of provisions enshrining the rights of the girl child shall not guarantee that violations of her rights will cease. As explained in the Introduction, many factors impact the protection of girl child rights in the international legal framework. We therefore undertake a semioethic approach while acknowledging that modifying the formulation of provisions shall not in itself ensure that girls’ rights be respected at the domestic level. It is nevertheless argued that a major step to advancing the rights of the girl child rests in the terminology employed to phrase her rights. Accordingly, the semioethic analysis of international law constitutes an essential endeavour to improve her condition worldwide.
VI Semiotic Analysis of Treaties in English
This book conducts a semioethic analysis of the content of international treaties in English, which is one of the six official languages of the UN, along with Arabic, Chinese, French, Russian and Spanish,Footnote 130 and a working language of all UN treaty bodies.Footnote 131 It is worthy of note that English holds precedence over other official and working languages in everyday UN proceedings,Footnote 132 and that the drafting of international treaties occurs predominantly in this language.Footnote 133 Furthermore, the vast majority of doctrinal work on the interpretation of treaties is conducted in English, and several leading periodicals have recently switched to this language in order to increase their readership and influence.Footnote 134 In this regard, Bohlander notes that ‘English has become the lingua franca in international legal academic and practical dialogue’.Footnote 135 However, while English may occupy a privileged position within the six official languages of the UN, all are placed on an equal footing as authentic languages of the international human rights treaties examined in this volume, such as the CRC and CEDAW,Footnote 136 and to the exception of Arabic, in the ICCPR and ICESCR.Footnote 137 This signifies that the treaty text is equally authoritative in each of these languages.Footnote 138 It is acknowledged, in this regard, that the semiotic investigation of the sense of treaty provisions conducted in this monograph might not account for differences that exist in other authentic languages of these treaties.Footnote 139 Each language carries a unique identity and may convey concepts that cannot be fully translated or transmuted into other languages, notably across distinct legal traditions.Footnote 140 In this regard, the International Law Commission underscores:
[F]ew plurilingual treaties containing more than one or two articles are without some discrepancy between the texts. The different genius of the languages, the absence of a complete consensus ad idem, or lack of sufficient time to coordinate the texts may result in minor or even major discrepancies in the meaning of the texts.Footnote 141
The discrepancies are compounded by the number of authentic languages, time constraints and limited translation support.Footnote 142 One could surmise that if the analysis of the sense of provisions is circumscribed to English, it is also restricted as concerns its significance for the protection of the girl child. However, it is argued that the conclusions drawn from the semiotic analysis of a treaty in the English language are significant on three grounds. Firstly, it impacts States parties and individuals whose official language is English,Footnote 143 and secondly, states whose official language is a language other than the authentic languages of the treaty, as they may choose to refer to the English version. Presently, close to half of the states in the world have an official language other than the UN official languages, and nearly 4.8 billion people do not have as a mother tongue or second language any of the UN official languages.Footnote 144 Any of these States parties may refer solely to one authentic language, such as English. In this regard, if a weakness were identified in the wording of rights in English, it could impact the interpretation of human rights on any continent, even if other authentic texts did not present such a problem. Thirdly, given the equal authority of each authentic language, states whose official language is an authentic language other than English – that is, Arabic, Chinese, French, Spanish and Russian – can also choose to refer to the English version, and could thereby invoke weak wording in the English text to limit their duty to protect girl children. Hence, the English text also impacts the interpretation of the other authentic texts of the treaty even if the provisions of the latter are formulated in strong terms. At the same time, it is acknowledged that the suggestion to amend the English wording of treaties will not in itself suffice to improve the protection of the girl child in the international legal framework, for authentic texts in other languages, such as French and Spanish, could also comprise weaknesses not addressed in this book. A similar semiotic and semioethic exercise, conducted in the other authentic languages of the UN, would thus be appropriate, and could be the object of another study.
