Is That a Fish in Your Ear?

by David Bellos

  Because Mensch cannot be translated directly into English without saying either more or less than the original, it became customary to refer to Menschenrechte in English as Human Rights, even though the phrase “Rights of Man” had been made famous by Thomas Paine’s pamphlet of 1791. The English formula of a generalizing adjective plus a plural noun (human + rights) is the third alternative form of a concept that began as a plural noun plus a singular noun phrase linked by a genitive (droits + de + l’homme) that had transited by way of a noun-plus-noun compound of which both parts are plural (Menschenrechte ). These changes in grammatical form engendered subtle shifts in implication that became apparent only in later times. “Human rights” was intended as a “translation” of les droits de l’homme et du citoyen, but it was something more, and something less. It went on to acquire a life—and a power—all its own.

  From the inception of the United Nations Organization in 1945, Eleanor Roosevelt, the widow of the U.S. president, devoted her energies to promoting the declaration of a World Charter of Human Rights, which was duly adopted in 1948. In its official French version it is called Déclaration universelle des droits de l’homme. But one major thing had changed since the phrase droits de l’homme had first been monumentalized in 1789: in 1946, Frenchwomen became entitled to vote and were now citizens in the same sense (or almost the same sense) as men. The traditional use of the masculine homme to mean Mensch began to seem discriminatory. By the 1970s, French feminist campaigners were clamoring for a parallel declaration of les droits de la femme, even though such a thing, if it had ever been made, would most likely have excluded women from the provisions of the Universal Declaration of Human Rights—which would have been counterproductive, to say the least.

  The German Menschenrechte would have solved the problem for everybody, but German is not an official UN language.3 So it was the English adjectival formulation that was transported back into nearly all other European languages of the Germanic and Romance families—Italian diritti umani, Spanish derechos humanos, Swedish mänskliga rättigheter, and so on.

  In French, however, the expression droits humains has a real problem: humain means, indistinctly, what we mean by human and what we mean by humane. Consequently, to call human rights droits humains in standard French puts them closer to humanitarian concerns, which are not the principal objects of laws on human rights.

  These areas of ambiguity have led to the exclusion of the term human rights from many international instruments that deal with them: the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Elimination of Discrimination Against Women (1979), and the Convention Against Torture (1984) all avoid the term, and even Europe, home of the original formulation, felt the need to complement it in the title of its European Convention for the Protection of Human Rights and Fundamental Freedoms (1953). With the passage of time and because of the spread of the ideas that it conveyed, human rights slowly ceased to be a term of law. As it percolated into general use, it found itself expelled from juridical language. Which is precisely what the systematic nature of legal language would require.

  This has created an awkward issue for French. The historical priority of the revolutionary decree of 1789 has made France unwilling to dispense with what it still regards as the classical, transparent formulation of the idea.

  The solution found was to change the language to make the old formulation still fit for use. The word Homme written with an uppercase letter now refers to men and women indistinctly and is the declared exact written equivalent of the German Mensch; whereas homme with a lowercase initial letter refers only to males. Although legally enforceable, the distinction is hard for people to remember. I’ve read many newspaper articles where upper- and lowercase homme are used in alternation, as substitutes for each other.

  Russian, on the other hand, retains even in its current constitution a form of words copied directly and somewhat unnaturally from eighteenth-century French: , “rights and freedoms of man and citizen,” with the masculine serving for the general and the word for “human being” being used in place of the more plausible , “humanity.”

  Despite this French-style solution to the problematic status of a phrase that began life in French but has come back to plague it, the adjective-plus-noun version of “human rights” has continued to spread across all European languages—even in German, where it is hardly needed. In journalism and general usage, menschliche Rechte, patterned directly on human rights, is now used as an uncontentious alternative to Menschenrechte, which remains the proper term. Despite French language laws, moreover, droits humains is heard more and more often as the functional equivalent of droits de l’Homme. Rama Yade, French secretary of state “chargée des droits de l’Homme” from 2007 to 2009, was frequently called (and also called herself) the minister for droits humains.

  It’s quite likely that this new use of humain in French will shunt its parallel sense of “humane” into the cognate word hu-manitaire and cause a minor reorganization of the lexical and semantic environment.

  With the assistance of San Marino, the smallest member state of the UN, the Commission for Human Rights (UNCHR) encourages and disseminates translations of the Universal Declaration into all languages. The set currently exceeds three hundred, from Abkhaz to Zulu, and what is obvious from the effort so far is that, with only a few possible exceptions to add to Russian, the source language for translation is not French but English.

  The intellectual, political, moral, and other consequences of the homogenization of languages into a single structure for the semantic field of “the human” is beyond the scope of this book. What we can say, however, is that the history and present state of the translation of human rights provides clear evidence that international law tends to create a language of its own. In this instance, which is undoubtedly typical, the language of international law—whatever language it seems to be in—is increasingly calibrated to English-language norms.

  It could be seen as historical revenge, for England was under the thumb of Law French for many centuries. French was the language of law imposed by the Norman Conquest in 1066, but it was understood only by the ruling class. It continued to be used for centuries in the courts, in spite of or probably because of the fact that the majority of the population didn’t have a clue as to what was being said. But Law French underwent its own process of contamination from below over a period of six hundred years, adopting phrases, words, and grammatical structures from the actually dominant tongue. By the seventeenth century, the official language of English justice sounded like something out of the late Miles Kington’s comic column for The Times (London):

  Richardson, ch. Just. de C. Banc al Assises at Salisbury in Summer 1631. fuit assault per prisoner la condemne pur felony que puis son condemnation ject un Brickbat a le dit Justice que narrowly mist, & pur ceo immediately fuit Indictment drawn per Noy envers le Prisoner, & son dexter manus ampute & fix al Gibbet sur que luy mesme immediatement hange in presence de Court.4

  Quite different problems arise when a court of law seeks not only to prosecute defendants speaking a different tongue but to do so in a jurisdiction that has authority in a transnational sphere. The idea of there being an international law—universal norms of legitimate behavior not determined by any one sovereign state—is very recent. It first dawned in horrified reaction to the sufferings of troops in the Crimean War in 1857–58, then took its initial form in the various Geneva conventions about the rules of combat. The first major institution resting on an idea of international law was the League of Nations, set up in the aftermath of the First World War. But it was only the Second World War and awareness of the unspeakable persecutions carried out by the Nazi state that finally prompted sovereign nations to abandon their historical prerogatives and to establish a jurisdiction that sat above them all.

  Translation was at the heart of the International Military Tribunal that opened
in Nuremberg, Germany, in November 1945. What had to be established first was the overall legal procedure to be used, and that was no straightforward task. Two of the victorious Allies used a common-law system, and the other two, France and the U.S.S.R., like defeated Germany, had different but related versions of what is called civil law. In civil-law systems, defendants make opening and closing statements but do not participate in any other part of their own trial. They sit in a special place and cannot be subject to further examination, since that is supposed to have been conducted exhaustively by the examining magistrates, who brief the prosecuting team. In the common-law tradition, on the contrary, a defendant is held to be innocent until found guilty and is therefore treated formally as just another witness to the crime. That’s the reason American courtroom dramas are so much more exciting than French versions of the same genre. The Nuremberg court adopted a mixed system: it was not a jury trial, as it would have been had it been conducted entirely within British or American systems, but a tribunal judged by an international panel of judges. But it did impose cross-examination on the defendants, who were called to the witness box in German. However, in German, “witness” is Zeuge, and a Zeuge cannot give testimony at his own trial. The arguments about how to proceed at the Nuremberg Trials were not only about language but about the incommensurable differences among the languages, institutions, and customs of different languages of law. Law translation in international affairs always runs up against huge obstacles of that kind: law words do not mean the same thing when translated, and the institutions they serve are not the same.

  Over the last sixty years, the scope and implementation of international law has expanded at a prodigious rate. The sought-after effect—sought after by political will but implemented by legal translation teams—is to bring the different meanings of words belonging to incommensurable systems of law into greater harmony, or, as critics of this process protest, to homogenize and standardize the idea of what the law is. Karen McAuliffe reports that lawyer-linguists working at the European Court of Justice are aware that European Union law is a legal system “built from approximations of law and language from different legal cultures and different legal languages, which come together to form a new supranational legal system with its own language.”5

  This is exactly what the Saussurean theory of the sign would entail. What language scholars rarely take into account is that, given sufficient effort and political will, new systems can be made.

  TWENTY-ONE

  Ceci n’est pas une traduction: Language Parity in the European Union

  This Treaty, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States. Pursuant to the Accession Treaty of 1994, the Finnish and Swedish versions of this Treaty shall also be authentic. Pursuant to the Accession Treaty of 2003, the Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese, Polish, Slovak and Slovene versions of this Treaty shall also be authentic.

  So reads a recent version of the basic language rule of the European Union. It was originally laid down in Article 248 of the Treaty of Rome, which first set up the European Economic Community in 1957: that body, and any offices under its authority, was to communicate with the governments of each of the member states in the language of the member state in question. It sounds a modest requirement, but it was actually a revolution. Unlike all previous empires, communities, treaties, and international organizations, the European Union has no one language and no finite set of languages, either. It speaks in all the languages that it needs, whatever they may be. An act of political will made the previously ungrammatical expression “a single original in Danish, Dutch, English …” an authoritative rule.

  To begin with, there were six states—Belgium, France, the Netherlands, Luxembourg, Germany, and Italy—and four languages involved: French, Dutch, German, and Italian. The EU has grown meanwhile and now has twenty-seven states using twenty-four different languages. But whether we are dealing with four or twenty-four languages, the revolutionary meaning of the basic rule, ill understood when adopted and not widely acknowledged even now, is that in the whole huge mass of paper put out by the EU, there are no translations. Everything is the original, already.

  Each language version of a law, regulation, directive, or letter emanating from the commission or any of its institutions has the same force, the same authority, the same validity as any other. Nothing is a translation—except that everything is translated. This has been the unprecedented language rule under which increasingly large numbers of people have now lived and worked for more than fifty years.

  You might think it would have made a difference to what people say about translation, but for the most part it has not. Since it is theoretically impossible to have more than one original of a text in the long-standing traditions of literary study and language teaching, people have tended to disregard the language reality of the EU, to denigrate it as a waste of a huge amount of money, or have uttered dire warnings of the risks it incurs. However, I’ve yet to meet a translator who has turned down a well-paid job in Brussels or Strasbourg on language-theoretical grounds.

  The language rule of the Treaty of Rome was obviously not thought up by philosophers, linguists, or translators, let alone by theorists. It arose from the need to make all members of this daring new venture feel they had equal respect and equal rights—to abolish what I have dubbed translation UP and DOWN. It was invented by politicians for eminently political reasons. What’s more, those politicians and several generations of their successors have been prepared to devote substantial sums of money to making the language-parity rule work. DG Translation (the translation division of the European civil service) currently employs 1,750 linguists and 600 support staff, and spends vast amounts of money to produce millions of pages of administrative and legal prose every year—probably more than has ever been spent on translation by any community ever before.1

  From the 1960s it became fashionable to think, in a manner attributed to Michel Foucault, that language is power and that all power is language. The EU language story, like George Orwell’s polemical invention of “Newspeak” in Nineteen Eighty-Four, doesn’t invalidate that entirely—but it does go to show that, in the last analysis, power is power. Language is no less a possible object of political will than any other human activity.

  The language-parity rule has many interesting consequences. It means that no official EU text can be faulted or dismissed or even queried on grounds of it having been incorrectly translated from the original, since every language version is in the original. Faced with a single original in twenty-four different languages, none of the inherited and traditional issues of translation commentary has much purchase. You could call this a political fiction. But it is not theoretical. It exists.

  Paired texts in different languages each having equal force are nothing new, in fact. The Rosetta stone bears a decree written in 196 B.C.E. in honorific legalese to record a tax amnesty granted to temple priests in Egypt. It was carved on a slab of basalt in koiné Greek, in demotic Egyptian, and in hieroglyphics.

  The decree was clearly intended to have the same force for three different groups of people among its potential addressees. Commonly treasured as the source of the clues that led to the decipherment of hieroglyphic script, the Rosetta stone should also be taken as proof that the founders of the EU were not seeking the impossible when they adopted the language-parity rule.

  The written history of the two main languages of the original EU also began with a bilingual edict. The Oath of Strasbourg was sworn in 842 C.E. by two grandsons of Charlemagne who ganged up on a cousin they suspected of trying to elbow them out of their inheritance. Charles and Louis spoke different languages—the one having an early dialect of German, the other
an early dialect of what would become French. Each swore allegiance to the other in the language of his ally. This was not just feudal politeness. The oath was written down so it could be copied and taken around and read out to the armies of Charles and Louis. Louis did not need it to tell his own people not to fight Charles, nor did Charles need it to tell his own people not to fight Louis’s men. Each needed to give assurance to the other side that he was no longer an enemy but an ally in the common fight against the cousin, Lothaire. That is why they produced a bilingual screed, with the texts in the two languages in parallel columns, each intended not to say exactly the same thing, but to have exactly the same force when read aloud to bands of illiterate soldiers. The Strasbourg Oath, the founding document of two languages and also the key to the geographical shape that European nations have taken since then, is also the founding document of the EU’s language norm.

  But there is a catch. It’s unlikely that the signatories of the oath actually spoke to each other in either of the languages written down. They probably used Latin for face-to-face negotiation of the terms of the treaty and then left their scribes to find a way of writing down the agreement in the (previously unrecorded) languages of their troops. So although there is no explicit original of the Oath of Strasbourg, it is very likely there was an implicit master text that would have been the out-turn of a bargaining session in learned Latin that was probably translated by scribes or educated slaves into Old High German and Old French, respectively.

  It’s an open secret that the EU also possesses an interlanguage for most practical uses in the corridors of the Berlaymont building, in the canteens and private meeting rooms—and it’s English. However, it is definitely not the case that EU texts are first written in English and then translated. Things work in an altogether more interesting way. A panel or subcommittee meets to draft a regulation. It uses one of the four official working languages of the EU—German, French, English, Italian—but there are always other language drafters present. The first draft is argued over not only for content but also for how it is going to be expressed in the other working languages. The draft is then translated and the committee reconvenes with the drafters to smooth out difficulties and inconsistencies in the different versions. The drafters are indistinguishably language professionals and civil servants participating in the development of the substantive text of EU regulations. The back-and-forth movement of the draft between the committee and the drafting departments produces, in the end, a text all consider equal in all its versions, and in that sense the “language fiction” of the EU’s rule of parity is not fictional at all.