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Commentary - Authentic texts
    [p.1119] Article 102 -- Authentic texts


    General remarks

    3877 first of all, this article provides that the original of the Protocol will be deposited with the depositary the primary function of which is by definition to keep custody of this document. (1) The depositary will transmit certified true copies [p.1120] thereof to the Parties to the Conventions; only they can become Parties to the Protocol. (2)

    3878 In the past, most multilateral treaties were written in only one or two languages, but nowadays most are written in several languages and universal treaties are usually written in the six official languages of the United Nations -- viz., Arabic, Chinese, English, French, Russian and Spanish.

    3879 Until 1929 the Geneva Conventions were written in French only. The 1949 Conventions were drafted simultaneously in English and French; their common Article 55 /54 /133 /150 declared the two languages to be equally authentic and instructed the depositary to arrange for official translations in the Russian and Spanish languages.

    3880 The ICRC draft proposed keeping the same formula while leaving open the list of languages in which an official translation would be made. The present wording omits all mention of official translations and retains as authentic texts the versions in the six official languages of the United Nations. It was adopted by consensus in the Working Group, in Committee I and in the plenary Conference. (3)

    The differences in status of versions in different languages

    ' Authentic texts '

    3881 A treaty may be authenticated, i.e., recognized as a true original, in one or several languages, depending on the decision of the body in which the treaty is adopted. In general, these will be the languages in which the body concerned conducted its work or, at least, in which it adopted the treaty. However, there are two possible exceptions.

    3882 The treaty may provide that one of the authenticated texts (in principle, authentication takes place by signature of the Final Act) will prevail in case of divergence; this possibility is provided for in Article 33 ' (Interpretation of treaties authenticated in two or more languages) ' of the Vienna Convention on the Law of Treaties of 23 May 1969. The Protocol did not adopt such priority for any particular text, as shown by the expression "are equally authentic".

    3883 On the other hand, the CDDH did in fact resort to the second exception envisaged by the same article in the above-mentioned Vienna Convention. In fact, although the six official languages of the United Nations did become at different times (4) official languages and working languages for the CDDH, (5) the Chinese language was not used in the documentation of the Conference. However, the delegation of the host country informed the relevant Working Group that
    provisions had been taken to prepare a Chinese version of the [p.1121] Protocol within a reasonable period of time, in collaboration with the Chinese authorities; therefore the Working Group adopted this article by consensus. The Chinese version was communicated by the depositary to States Parties to the Conventions on 12 October 1977.

    3884 Thus the six languages listed are equally authentic -- or, according to another traditional formula, bear equal authority. This means that all these versions have exactly the same meaning and that each of them faithfully represents the provisions as adopted by the Diplomatic Conference.

    3885 It must be recognized, however, that the two statements made in the previous sentence are too categorical and that they have rather the character of a presumption: according to Article 33 of the Vienna Convention to which we referred, "The terms of the treaty are presumed to have the same meaning in each authentic text". If a comparison of the authentic texts discloses a difference in meaning and, as is the case with the Protocol, there is no particular text that prevails in case of divergence, Article 33 provides the following rule:

    a) apply the two foregoing articles of the same Convention: Article 31 (General rule of interpretation) and Article 32 (Supplementary means of interpretation);
    b) if the difference in meaning cannot be removed thereby, the meaning must be adopted which best reconciles the texts, having regard to the object and purpose of the treaty.

    3886 Having several authentic texts may therefore create problems in case of divergence or contradiction; on the other hand, it may help to make interpretation easier by comparing the different versions, and this will rather more often be the case. Apart from the need to resolve any differences that may arise between authentic texts in accordance with the rules and means of interpretation as referred to above, such differences may also give rise to a correction procedure when there is occasion to do so. (6)

    ' Official translations '

    3887 A treaty may provide that, in addition to the authentic texts, official translations will be made; as we saw, it was so provided in the Conventions. The main purpose of such official translations is to avoid different versions being made in the same language.

    3888 They are official in that they are issued by the same body which adopted the treaty, or by a body designated for that purpose, e.g., the depositary. If there are discrepancies, the authentic texts prevail over the official translations. And these should not be confused with official ' national ' translations which we will deal with below under the heading "Other translations".

    [p.1122] 3889 This brief note is prompted by the singular linguistic situation of the Conventions and the Protocol: two of the versions (English and French) are authentic texts both for the Conventions and for the Protocol; another two versions (Russian and Spanish) are official translations in the case of the Conventions but authentic texts for the Protocol; yet another two versions (Arabic and Chinese) have no special status in the case of the Conventions, but are authentic texts for the Protocol. In interpreting the Conventions and the Protocol these differences in status of the various versions have to be taken into account.

    ' Other translations '

    3890 The domestic law of each Party to the Protocol will determine in which languages that Party will have to have the Protocol translated. (7) Such translations are official in so far as they are established or recognized by a State; they should not be confused ith official translations produced in accordance with the provisions of the treaty itself, as defined above.

    3891 Only the authentic texts are authoritative and they prevail over all translations. The Protocol provides, however, that the Parties should exchange their official translations as soon as possible, so as to keep each other informed. (8)

    3892 We should also point out the case of languages which two or more countries have in common; it would be useful if, for each of these languages, the countries concerned would try to co-operate as far as possible and adopt a common official translation.

    ' B.Z. '


    NOTES (1) [(1) p.1119] For a summary of the depositary's functions, cf. commentary Art. 100, supra, p. 1114;

    (2) [(2) p.1120] Cf. commentary Arts. 92 and 94, supra, pp. 1068-1069 and 1076;

    (3) [(3) p.1120] Cf. O.R. X, p. 245, CDDH/405/Rev.1, Annex III (CDDH/I/350/Rev.1), paras. 28-29; O.R. IX, p. 474, CDDH/I/SR.76, para. 7; O.R. VII, p. 35, CDDH/SR.47, para. 106;

    (4) [(4) p.1120] For further details, cf. the second paragraph of the introductory note in each volume of the Official Records;

    (5) [(5) p.1120] Cf. O.R. II, p. 13, CDDH/2/Rev.3 (Rules of procedure), Rule 51;

    (6) [(6) p.1121] Cf. the above-mentioned Vienna Convention, Art. 79 -- Correction of errors in texts or in certified copies of treaties. See also commentary Art. 100, supra, p. 1114;

    (7) [(7) p.1122] Such a translation may be based on any one of the six authentic texts; however, a more reliable translation will undoubtedly result if two or more of the authentic texts are compared;

    (8) [(8) p.1122] The same applies to other laws and regulations adopted to ensure the application of the Protocol; cf. commentary Arts. 80 and 84, supra, pp. 929 and 969;