Abstract
The preceding chapter discussed the concept of sign and examined the codification and decodification process of text in order to point out the underlying structural conditions for the interpretive act. We have seen that text interpretation can, due to the chain of interpretants, lead us to an unlimited semiotic process. However, interpretation in the communication relationship is not a mere exercise of semiosis. After having examined the semiotic mechanisms involved in interpreting a text, this chapter is devoted to investigating the relationship among the interpreter, the text, and the author of the text. We will see how semiotic concepts of Model Author and Model Reader have shed new light on the traditional view that interpretation is aimed at unveiling the author’s intention. We will see that more than highlighting the interpreter’s role in the construction of the meaning of the text, the semiotics help us see that the text has an own intention. Finally, we will see how this intention should be taken into consideration during the interpretation process.
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- 1.
There is no difference between a text written in the first or third person from the point-of-view of the subject of the utterance. The subject is never excluded and its presence is always presupposed, although such subject may not exactly correspond to the one that may appear in the utterance.
- 2.
Benveniste (1971), at. 169.
- 3.
Ibid., at. 171.
- 4.
Data extracted from the Almanaque Abril (2005).
- 5.
Preamble of the Agreement Establishing the WTO.
- 6.
The circumstances of the utterance have a considerable influence of the choice of Model-Author, that is, in formulating a hypothesis on the will of the empirical subject of the utterance.
- 7.
When referring to the Author and Reader models, the words start with a capital. Words written in lower-case refer to the empirical author and reader.
- 8.
U. Eco, Lector in fabula, op. cit., at. 54.
- 9.
Ibid., at. 57.
- 10.
Ibid., at. 62. Regarding the concept of Author and Reader-Model as interpretive hypotheses, Eco wrote: “If the Author and the Model-Reader are two text strategies, we are faced with two situations. On one hand, […] the empirical author, as the subject of textual utterance, formulates a hypothetical Model-Reader and, by translating this hypothesis into a strategy, the author shapes himself as the subject of the utterance, according to equally ‘strategic’ terms, as a way of operating the text. But, one the other hand, the empirical author again, as a concrete subject of the cooperation efforts, must establish for himself a hypothetical Author, which is created based on text strategy data. The hypothesis formulated by the empirical reader concerning the Model-Author, seems to be more stable than the one the empirical author formulates concerning the Model-Reader. In fact, the latter has to postulate something which currently does not exist and carry it out as a series of textual operations; the former, on the other hand, forms a type-image of something that has taken place before as an utterance and is textually present as an utterance.” (U. Eco, Lector in fabula, op. cit., at. 62).
- 11.
U. Eco, O conceito de texto, op. cit., at. 98.
- 12.
U. Eco, O conceito de texto, op. cit., at. 100.
- 13.
Article 3.2 of the DSU.
- 14.
This would be the case of the empirical reader refusing to accept the presuppositions of the author’s discourse. In line with the reasoning of Ducrot, Barros calls attention to this respect: “[…] by presupposing certain content, the utterer determines his acceptance as a condition for maintaining the ‘dialog’, thus attaining the right of speech of the recipient and establishing limits of what can and cannot be said so the discourse may continue. If the recipient refuses the assumption, the discourse can no longer continue, and a controversial situation is created. Such refusal puts in check the right of the utterer to organize his discourse to his convenience – a right that is part of the linguistic regulations for social interaction. One may discuss, deny or not accept what has been uttered, the content made explicit, but one may never do the same with what is presupposed, since this would bean disqualifying the utterer and stopping discourse from continuing.” Teoria of the discurso: fundamentos semióticos, 2. ed. (São Paulo: Humanitas/FFLCH/USP, 2001) at. 100. The presupposed content is the set of reputedly shared beliefs and knowledge among communicating subjects, in which discourse should proceed. Therefore, the presupposition that countries, by signing a multilateral treaty for commerce, intend to establish a legal regulatory framework based on the principles of free trade and market economy cannot be denied. Thus, to sustain that the legal norms of the WTO should promote more cooperation and less competition means not understanding the presuppositions at the foundations of the legal discourse of the WTO. Notwithstanding, one can always consider the act of presupposing a kind of argument strategy.
- 15.
Virally (1997), at. 137. This is called an authentic interpretation, that is, one emanating from the authors of the act to be interpreted, according to the classical maxim ejus est interpretari cujus est condere: the duty to interpret belongs to the author. Still according to Virally, in this type of interpretation, “the author(s) of the document to be interpreted generally feel more comfortable with the document than any other interpreter; consequently, they can better avoid the confusing boundaries that separate clarifying from modifying the meaning of a text; the meaning that can be deduced from uttering [said text].” (Loc. cit.). According to Dinh, one of the reasons why resorting to intergovernmental organizations can be unsatisfactory is because the interpretation of the treaties is carried out based on the prevailing political views instead of being based on legal arguments. Cf. N. Q. Dinh, Droit international public, op. cit., at. 259. In the WTO, many interpretive texts were adopted simultaneously with the Accords of Marrakesh. For example: Understanding on the Interpretation of Articles II:1.b, XVII, XXIV, XXVIII and XXXV, besides the Understanding on the Balance-of-payments provisions and the Understanding in respect of Waivers of Obligations, all of which are related to the GATT 1994. Article 1 of the Understanding on the Interpretation of Article XVII of the GATT 1994 establishes, for example, that the content of |state trading enterprises| is the following: “governmental and non-governmental enterprises, including marketing boards, which have been granted exclusive or special rights or privileges, including statutory or constitutional powers, in the exercise of which they influence through their purchases or sales the level or direction of imports or exports”.
- 16.
Rousseau states that there are two types of international interpretation, which should be distinguished: interpretation by the very signatory States acting by common accord (international governmental interpretation), and interpretation by international institutions – tribunals and international arbitrators – “called to examine a case regarding the meaning and reach of a treaty”, which the author calls international jurisdictional interpretation. Cf. Rousseau (1953), at. 48.
- 17.
Article 3.2 of the DSU, in fine.
- 18.
Article 19.2 of the DSU.
- 19.
The line dividing the power to interpret from the power to modify treaties is not so easily identifiable, especially when the two are found within the same entity. This implies admitting a significant degree of difficulty in any attempt to rigorously determine the authority of the authors of the legal-diplomatic text to exercise these powers. According to Article IX of the Agreement Establishing the WTO, the Ministerial Conference and the General Council hold the sole authority to adopt interpretations of this Agreement and any other Multilateral Trade Agreements if the decision to do so is obtained with a three-quarter majority of the Members. However, the Ministerial Conference may also submit proposals for amending the provisions of the Multilateral Trade Agreements. This is provided under Article X of the Agreement Establishing the WTO. The required quorum, in these cases, is higher-than-majority.
- 20.
An important study on authentic interpretation of international treaties was carried out by Ioan Voïcu (1968).
- 21.
Simon (1981), at. 97 et seq.
- 22.
Ibid., at. 97, emphasis added. Interpretation would be a linguistic activity of decoding a message issued by the author of the treaty. According to Simon, “the text, a true ‘sacred circle where all is said’, contains a set of rules formulated in the language of the negotiators of the treaty, that the interpreter must ‘translate’ into the language of the litigants, carefully avoiding, as any translator, betraying the intentions of the original drafters: in fact, the judge is the intermediary, a ‘spokesperson’, a link in the chain between the author of the norm and addressee.” (Ibid., at. 80, Emphasis added). The international judge is, therefore, a translator in the communicative relation established between the sender-author (signatory State) and the final recipient (States parties to a dispute) of the text of the convention.
- 23.
Brotons (1987), at. 308. Brotons clarifies further that, “in practice, the preparatory work is the set of documents that make up the diplomatic correspondence, official minutes, amendments of the Conferences and the organizations where the negotiation developed.” (Ibid., at. 314–315).
- 24.
U. Eco, Lector in fabula, op. cit., at. 51, 52 and 53.
- 25.
Ibid., at. 52.
- 26.
One can therefore question Cornu when stating, “the communication is under the almost exclusive influence of the sender.” Certainly, Cornu refers to the communicative relation between the agent of expression, one who is an expert in the language of law, and the citizen who is the addressee and who has no knowledge of this language. However, “almost” means the measure of awareness that the recipient also plays an important role in attributing meaning to legal text. Cf. Linguistique juridique, op. cit., at. 25.
- 27.
Phrase used by Eco to refer to the system of cultural and historical expectations held by the addressee of a certain message. Cf. Los límites de la interpretación, op. cit., at. 26.
- 28.
Eco (1993), at. 48. The strength of the subjective and objective approaches is weakened in the absence of a single, shared and clear intention of the contracting parties, in regard to the content of the convention provisions in question.
- 29.
D. Simon, L’interprétation judiciaire des traités d’organisations internationales, op. cit., at. 116.
- 30.
Kelsen warned against the impossibility of a certain method bringing out, from among all various possibilities of meaning, the ‘correct’ meaning of a norm. Kelsen (1998), at. 391. With this statement, Kelsen is not advocating the idea of unlimited semiosis of norms or an exaggeration of the rights of the interpreter. The “various verbal meanings” alluded to are not all those meanings covered by an entire series of interpretants ad infinitum, but the “possible meanings”. (Cf. loc. cit.). Kelsen attributes to what he calls “scientific interpretation” the duty of describing, and not prescribing, all the meanings attributable to a norm. Losano understands – and we agree – that it is impossible to attain the intended interpreter neutrality required by Kelsen’s scientific interpretation. This would require a subject immune to all historical circumstances. Cf. Losano (1981), at. 115–116. A Pure Theory of Law does not proceed with the examination of the processes of interpretation that would reveal which would be the possible meanings of a norm. More than the process, Kelsen is concerned with the result of the interpretation, which would be derived from the will of entity enforcing the law. (H. Kelsen, Teoria pura of the direito, op. cit., at. 392). The problems regarding the intentions of the author and of the reader cast a shadow over the silence of Kelsen’s doctrine and remain as an uncomfortable absence in his theory insofar as they are put in check by the ‘scientific nature’ of an interpretation termed legal and scientific.
- 31.
According to Timsit, the norm “is the result of – a silent, but real − ‘dialog’ that continually takes place between the author, subject of the norm, and reader: ‘dialogism’ of the law, co-determination of the norm … This co-determination is common to the set of legal norms” (Timsit, 1991), at. 105.
- 32.
U. Eco, Lector in fabula, op. cit., at. 46. We understand that this obfuscation occurs precisely because the reader, influenced by perceptions or prejudices regarding the subject of the utterance, creates an idea of the Model-Author that does not correspond to the subject of the utterance.
- 33.
Ibid., at. 62. The author reinforces this position by affirming that “textual cooperation is a phenomenon that takes place, we repeat, between two discursive strategies and not between two individual subjects” (Ibid., at. 63).
- 34.
U. Eco, Interpretação e superinterpretação, op. cit., at. 29.
- 35.
See also Eco (1998), at. 29 et seq.
- 36.
S. Collini, “Introdução: interpretação terminável e interminável.” In: U. Eco, Interpretação e superinterpretação, op. cit., at. 11. For example, to say that |subsidy| has the qualities of «government financial support», «benefit» and «specificity» is not the interpreter’s personal decision, since, objectively, these qualities have already been attributed to the term and have been incorporated into the reader’s cultural inventory. The interpreter building the content for |subsidy| is not something that takes place at the interpreter’s sole discretion.
- 37.
U. Eco, Interpretação e superinterpretação, op. cit., at. 76.
- 38.
The Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations, May 21, 1986.
- 39.
M. G. Kohen, “La codification du droit des traités: quelques éléments pour un bilan global” Revue Génerale de Droit International Public 104/3 (2000), at. 598.
- 40.
Decision of the ICJ, Affaire du Différend Territorial (Jamahiriya Arabe Libyenne/Tchad), February 3, 1994, paragraph 41; see also Affaire de la Délimitation Maritime et des Questions Territoriales entre Qatar et Bahreïn (Qatar c. Bahreïn), ICJ, Arrêt of February 15, 1995, paragraph 33; Affaires des Plates-formes Pétrolières (République islamique d’Iran c. Etats-Unis d’Amérique), preliminary exception, arrêt, December 12, 1996, ICJ., paragraph 23; Affaire de L’Île de Kasikili/Sedudu (Botswana/Namibie), arrêt, ICJ., December 13, 1999, paragraph 18. After highlighting that the provisions of the Vienna Convention on the Law of Treaties may be applied analogously to cases of interpretation of statements of unilateral acceptance of jurisdiction, the ICCJ affirmed that all interpretation “must be interpreted as it is presented, taking into account the words as actually employed” (Anglo-Iranian Oil Co., preliminary exception, arrêt, ICJ, Recueil 1952, at. 105. Emphasis added.).
- 41.
The ICJ confirmed this understanding when examining the dispute between Indonesia and Malaysia concerning the sovereignty over Ligitan and Sipadan Islands: “the Court does not consider it necessary to resort to supplementary means of interpretation […]to determine the meaning of that Convention; however, as in other cases, it considers that it can have recourse to such supplementary means in order to seek a possible confirmation of its interpretation of the text of the Convention”Affaire Relative à la Souveraineté sur Pulau Ligitan et Pulau Sipadan (Indonésie/Malaisie). ICJ, Arrêt December 17, 2002, paragraph 53.
- 42.
D. Simon, L’interprétation judiciaire des traités d’organisations internationales, op. cit., at. 107.
- 43.
(WT/DS/8/R – WT/DS/10/R – WT/DS/11/R. Japan – Taxes on Alcoholic Beverages. Panel’s Report of July 11, 1996, footnote n. 87, at. 140). It must be noted however that the preparatory work and the historical circumstances serve as means of confirming the interpretations given by the Appellate Body. For example, in Canada – Certain Measures Concerning Periodicals, regarding the interpretation of Article III:8, b, of the GATT 1994 (WT/DS31/AB/R, at. 38. Report adopted by the DSB on July 30, 1997); and in European Communities – Customs Classification of Certain Computer Equipment, the Appellate Body expressed: “The application of these rules in Article 31 of the Vienna Convention will usually allow a treaty interpreter to establish the meaning of a term. However, if after applying Article 31 the meaning of the term remains ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable, Article 32 allows a treaty interpreter to have recourse to: ‘… supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion.’ With regard to ‘the circumstances of [the] conclusion’ of a treaty, this permits, in appropriate cases, the examination of the historical background against which the treaty was negotiated.” (WT/DS62/AB/R – WT/DS67/AB/R – WT/DS68/AB/R, paragraph 86. Emphasis added. Report adopted by the DSB on June 22, 1998.). According to Canal-Forgues, these and other cases do not express the preference of the Appellate Body and of the panels of referring to preparatory work. Cf. Le règlement des différends à l’OMC, op. cit., at. 99.
- 44.
See paragraph 4 of Article 31 of the Vienna Convention of 1969: “A special meaning shall be given to a term if it is established that the parties so intended.”
- 45.
Additionally, the author states that “it is not possible, on the other hand, to ask the preparatory work what they cannot provide: to overcome the obscurity or ambiguity in a text when the parties created them on purpose, even if aimed at furthering negotiations or leaving open escape routes. On the contrary, resorting to preparatory work may serve only to render the interpreter more blind.” A. R. Brotons, Derecho internacional público, op. cit., at. 315, original emphasis. According to Brotons, the Vienna Convention of 1969 intended to block recourse to unequal, heterogeneous, or even contradictory materials, accumulated in the long process of negotiation, in order to rebut a clear and reasonable interpretation resulting from the text of the treaty.
- 46.
J. Combacau; S. Sur, Droit international public, op. cit., at. 176. According to Dinh, “ it is interesting to find that, although it can reflect the intentions of the parties, the preparatory work that, due to particularities of the procedures of international negotiations, is chaotic, confidential, and have little probative force; it intervenes only to confirm an interpretation obtained by other means, or when these means do not enable a ‘useful effect’ be extracted.” N. Q. Dinh, Droit international public, op. cit., at. 261–262.
- 47.
J. Combacau; S. Sur, op. cit., at. 176.
- 48.
Id., loc. cit.
- 49.
In this paper, the phrase “ordinary meaning” can also be used as “common”, “actual” or “usual meaning”. It is important to point out that in the search for the ordinary meaning the interpreter should pay attention to the cases in which the expression has a specific or technical meaning.
- 50.
Emphasis added. Affaire du Temple de Préah Vihéar, exceptions préliminaires, Arrêt, May 26, 1961, at. 32.
- 51.
A. R. Brotons, Derecho internacional público, op. cit., at. 310. The ‘view’ of the context enables the interpreter to choose one among the possible meanings of an expression. Furthermore, context prevents the interpreter from making the mistake of confusing the ordinary meaning with the vulgar meaning of a term. According to Brotons, “the ordinary meaning of a term in the legal context, conventional or specialized, will often be technical or specialized.” (Ibid., at. 310).
- 52.
U. Eco, Semiotics and the Philosophy of Language, op. cit., at. 22.
- 53.
G. Timsit, Les noms de la loi, op. cit., at. 139.
- 54.
D. Simon, L’interprétation judiciaire des traités d’organisations internationales, op. cit., at. 135. Timsit also discusses what can be considered context: “When a text has an objective reference to another text – an explicit reference or applied text, for example, – or is objectively connected to another text – a common insertion of two texts in the same set making a formal unit: a same law or a same code (in the traditional and legal meaning of the word) –, one can consider the texts in question form each others’ context. The situation is, often, much less marked. There is no objective reference, or any connection enabling one to objectively decide on the size of the context. In this case, the interpreter/enforcer of the norm must decide which elements should be considered in the context of reading the text.” Les noms de la loi, op. cit., at. 139.
- 55.
Article 31, § 2 of the Vienna Convention of 1969. It is important to point out that in the terms of paragraph 3 of the same Article, together with the context, the following also must be taken into account: “(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties.”
- 56.
U. Eco, O conceito de texto, op. cit., at. 96. The author explains that “the way the text establishes which properties should be disregarded and which should be taken into account, is not part of the semantic representation of terms, but of some strategies according to which the text prescribes the topic of the very text, and the set of pre-text and intertext assumptions that will apply and act in order to make the operation of narcotizing and blowing up sememes possible and establish textual coherence in the amalgam of chosen and relevant sememes.” (Loc. cit.).
- 57.
Idem. Interpretação e superinterpretação, op. cit., at. 76.
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de Carvalho, E.M. (2011). The Authors of Legal-Diplomatic Discourse: Interpreters and Intentions. In: Semiotics of International Law. Law and Philosophy Library, vol 91. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9011-9_10
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