Abstract

1. Introduction

This article discusses the importance of language as an institutional design choice (what I call “linguistic design”) for European and international courts. What exactly is at stake in the choice of language for a court? Linguistic design matters because it causes professionals with specific linguistic skills, cultural values, and expectations to work at multinational courts. This has far-reaching consequences for a judicial body’s composition, staffing, and internal organizational culture, possibly even influencing the substantive law produced. French judicial culture, for instance, percolates at the international level in part through the continued use of French as a court language. In spite of its declining importance, French is still used at today’s major international and regional courts, tribunals, and dispute-settlement bodies, which usually include it among their official languages.¹ This is true of three of the most influential multinational courts in the Western world: the Court of Justice of the European Union (CJEU),² the European Court of Human Rights (ECtHR),³ and the International Court of Justice (ICJ).⁴

This article is an exercise in mid-level theorizing, which brings together institutional design theory, the sociology of organizations, and a microanalysis of three courts.⁵ Its primary claim is that the choice of French as both an official and working language of the CJEU, the ECtHR, and the ICJ has had enduring effects on the organizational culture of each court, affecting the balance of powers within each institution and leading French lawyers and judicial culture to disproportionately influence the courts’ inner workings. This is what I call the “French capture.” The article has broader implications for institutionalism in legal scholarship in that it identifies the importance of language as a design choice. What are the relative roles of functional pressures and founding-moment politics in shaping the linguistic design of courts? Is it the case that geopolitical forces set the initial direction, but functional pressures keep the institution on the same path? I argue that far from reflecting pure symbolic politics, the choice of language for a multinational court is likely to lock in a certain type of work culture and a set of decision-making habits.

The discussion proceeds in three parts. Section 2 explains the methodology and what I mean by “French capture.” Section 3 retraces the historical origins of the French capture at the three courts under examination. Finally, Section 4 offers a sociological institutionalist explanation to account for the enduring influence of the French model despite the worldwide decline of French and French law. It claims that linguistic design has ongoing effects through courts’ staffing and entrenched writing conventions.

2. The French capture

I use the term “French capture” with two ideas in mind. The first is capture in the sense of prevalence, i.e., the fact that French is used more frequently than any language other than English at multinational courts. The second is a sense of control and preservation: lawyers trained in the French tradition defined broadly (by which I mean either lawyers trained in France or lawyers who have been acculturated into French legal culture, including those from Francophone countries) have exerted a pervading influence on regional and international courts’ decision-making processes. Although there is a lot to be said about French law’s buy-in on European and international adjudication in terms of jurisdiction, remedies, and legal doctrines, this article is part of a bigger project focused on courts’ organizational cultures rather than on substantive legal outcomes.

The French capture illustrates the very path-dependency historical institutionalists have sought to identify.⁶ Following that approach, this article contextualizes the CJEU, the ECtHR, and the ICJ within the historical context of their creation, suggesting that linguistic design has had lasting effects on court actors’ behaviors and outputs. An adequate understanding of linguistic design would be limited, however, without reference to the sociology of organization, i.e., without examining courts as complex organizations, with attention to interactions among members and the consequences of organizational structure and design on internal work cultures and organizational adaptation.⁷ As a result, the article combines historical analyses with “thick descriptions” adopting social science methods.⁸

A conventional legal doctrinal approach focusing on institutionalized rules, procedures, principles, and legal concepts would be incomplete given the paucity of law on the books on this issue. Legal sociology and comparative law are essential to the pro ject: comparative law provides an indispensable resource of detailed doctrinal and institutional characteristics of different languages and their corresponding legal cultures, while legal sociology looks to a diversity of legal (and other) experiences from which to gather empirical material to support the main claim. The methodology I employ could therefore be described as “qualitative comparative legal research.” I use qualitative data collection (interviews, field observations) together with doctrinal, archival, and secondary sources, to generate theories and hypotheses about the way in which decision-making practices have developed in different courts.⁹ More specifically, the research involved twenty-eight in-depth, semi-structured interviews with current or former judges, clerks, staff lawyers, and translators at the CJEU, the ECtHR, the ICJ, and the French supreme courts.¹⁰

This article presents three case studies of the French capture: the CJEU, the ECtHR, and the ICJ. I selected these courts because each is the judicial organ of a prominent international organization—respectively, the CJEU for the European Union, the ECtHR for the Council of Europe, and the ICJ for the United Nations. Each court is also assumed to be a truly regional or international judicial body, granting equal voice to the various legal cultures it represents by following its own, idiosyncratic procedures. At their inception, each adopted French as an official language as well as French judicial mannerisms in the production of judgments. These choices were hardly surprising at the time, given the fact that the various legal actors involved in designing multinational courts naturally tend to fall back on established templates.¹¹ When designing new courts and court procedures, treaty negotiators, drafters, and the first cohorts of judges look to preexisting international bodies or influential domestic courts.

My hypothesis is that the status of French as an official language has contributed to the maintenance of a French-like internal organizational culture, which I have called elsewhere “theex ante model,” and which manifests itself at the three courts under consideration in the modalities of staffing and opinion-writing.¹²Ab initio, the choice of language and institutional culture can be explained by similar path-dependent historical factors as well as symbolic politics of constitutional design. As this article explains, When the three courts were created, French and French legal culture enjoyed a leading position, French being alingua franca and French law, a donor system still exporting legal concepts to other jurisdictions. But I argue, over time, the CJEU, the ECtHR, and the ICJ have retained aspects of the French judicial model despite the worldwide decline in influence of French law and the fact that French has become a minority language in international affairs, in part because of the long-lasting effects of using French as a court language.

How does linguistic design influence decision-making overtime? As Peter Haas and Anne-Marie Slaughter have proposed, international judges can be seen as forming “epistemic communities,” in the sense that they are knowledge-based experts who share certain beliefs and values.¹³ In the three courts in question it appears that French legal culture has informed court members’ common aims and ideas, particularly considering that appointment and staffing decisions have often turned upon the knowledge of French. A lawyer’s command of a language often goes hand in hand with socialization in a given legal system, especially when that language, such as French, is no longer a major vehicular language used to communicate among people not sharing a mother tongue. How can one distinguish between the influence of lawyers trained in French law and the influence of French itself as an institutional design choice? Is language theexplanation or merely asymptom? There is no easy answer to that question. Because languages are inseparable from their speakers, it is very difficult, perhaps even impossible, to isolate linguistic design as an independent explanatory variable.

Though I do not assume some kind of causality between language and organization, in what follows I distinguish two different time frames:ab initio and diachronically.Ab initio: When the courts were created, the same political-cultural context and lawyers who presided over the choice of French as a court language also impressed an internal institutional design inspired by the French judicial process. Diachronically: The continuing influence of the French model can be explained in part by the impact French has had on recruiting the courts’ personnel and shaping their writing habits.

3. The French language and legal culture at the courts

Various historical and sociological-institutional reasons, which I analyze in turn, explain why the French language and the French judicial model have been embraced by the two European high courts as well as, albeit to a lesser extent, by the ICJ.

3.1. The CJEU

Initially, the Luxembourg court heard cases in the four languages of its founding member states: German, French, Italian, and Dutch.¹⁴ The court’s attitude toward multilingualism, however, has always been split between its official language policy in relation to the European public and its internal working language. Externally, linguistic pluralism remains the rule. Cases may be brought in any of the European Union’s twenty-four official languages.¹⁵ Judgments are translated into all of these.¹⁶ Internally, however, the court has long adopted the practice of using a single working language—French.¹⁷ A CJEU judge I interviewed confirmed this, “everything is in French, it’s the internal language and all member states accept it as a customary constitutional rule.”¹⁸

From the beginning, French has been the language of the court in its internal deliberations.¹⁹ To be sure, English has steadily gained traction—especially following the recent enlargement of the EU from fifteen to twenty-eight members in two successive waves in 2004 and 2007. Yet, so far, French remains the language of deliberation and the language in which internal documents are drafted. Advocates general retain some discretion as to the language of their opinions, but judges and their legal assistants (theréférendaires) are still required to draft judgments in French.²⁰

This French regime is the product of the European Union’s history. French legal culture dominated the EU’s ancestor, the European Coal and Steel Community (ECSC), created in 1950. Although, initially, the French were opposed to the establishment of a permanent court, fearing that it would paralyze the work of the High Authority, the new organization’s executive body, they came to play a leading role in the court’s design.²¹ Three of the six original founding members (France, Belgium, and Luxembourg) are French-speaking countries. Four of the six (Belgium, Italy, Luxembourg, and the Netherlands) have legal systems partly modeled after French law due to having been conquered in the Napoleonic campaigns in the nineteenth century. Even before the European project was initiated, Belgium, Italy, Luxembourg, and the Netherlands had already adopted characteristic features of French public law, in particular a supreme court for administrative law on the model of the Conseil d’État.²² As a result, French judicial culture could function as alingua franca for the purposes of designing a new court.²³ In fact, the CJEU (or rather its predecessor, the Court of the ECSC, which existed from 1952 until 1958) embraces two typical traits of the Conseil d’État: the prohibition on separate opinions and the peculiar position of the “Advocate General” as an independent legal advisor to the judges.²⁴

What about other legal cultures? Could Western Germany, the sixth founding member, not boast an esteemed legal tradition and a prominent language? In the early 1950s, because of its recent Nazi past, Germany lacked the legitimacy and bargaining power to impose its legal identity or language upon the nascent European institutions. As a formerréférendaire and administrator of the court declared of German and Italian, “naturally, one was not going to learn the language of a defeated country.”²⁵ Another crucial reason for French’s dominance was the absence of the common law from the European project in its first instantiation. Unlike the ECtHR and the ICJ, the CJEU was designed free of common-law influence until the UK and Ireland’s accession in 1973. De facto, the French legal system enjoyed a cultural monopoly for over twenty years.

3.2. The ECtHR

The Strasbourg court’s official languages are English and French. Like litigants at the CJEU, applicants to the ECtHR can send their initial applications in one of the dozens of languages of the Council of Europe’s forty-seven member states.²⁶ Unlike the CJEU, however, French is not the sole internal working language. ECtHR judges and their legal assistants must theoretically be able to communicate in both French and English orally as well as in writing. They can use either language during the deliberations. In practice, the two languages are not always on equal footing within the different judicial panels (or “sections”) to which judges are assigned.²⁷ One of the judges I interviewed explained, “I belong to section . . . of the court, which is considered the ‘English section’ because nearly all draft opinions, 95 percent, are written in English. All the judges speak English during deliberations. . . . In the other sections French is much more commonly used.”²⁸

A few insiders would like to see this all-English trend generalized to the entire court but doubt that it would be politically feasible. As a high-ranking registry lawyer, who had been working at the ECtHR for the past twenty-five years, noted, “even if today you could conduct deliberations in English because all judges understand English well enough, it’s not the case for French. So long as some people will want and will need to express themselves in French, interpretation will be necessary.”²⁹

The court’s most important judgments—those decided by the grand chamber as well as a few “section judgments” rendered by seven-judge panels—are published simultaneously in English and French. However, the bulk of its decisions are issued either in French or in English without translation into the other language.³⁰ As a staff lawyer pointed out, the court abandoned its practice of issuing all of its judgments in two languages for budgetary reasons in the face of skyrocketing caseloads.³¹ In terms of caseloads and manpower, the ECtHR differs from the CJEU. Last time I visited Strasbourg, in the summer of 2014, the court’s linguistic unit included twenty-eight staffers, which is a far cry from the CJEU’s hundreds of lawyer-linguists and translators who translate all of the judgments—written in French—into the twenty-four EU languages. Unlike the ICJ which, due to its very small caseload, can afford to publish all of its advisory opinions, orders, and judgments simultaneously in both French and English, the ECtHR’s crushing docket has led to rationing bilingualism.

In other respects, the story of French at the ECtHR bears striking similarities to that of the CJEU and the ICJ, which were both established earlier and served as sources of inspiration for the Strasbourg court’s design. Every organ of the Council of Europe uses French along with English as its official languages.³² The Council of Europe’s foundational legal text, the European Convention on Human Rights (ECHR), was written in French and English. Thetravaux préparatoires for the Convention, in particular when discussing the future court’s official languages, repeatedly cite the ICJ and CJEU statutes and rules of procedure.³³ Like the European Union, the Council of Europe’s linguistic regime was a natural outcome of World War II, the politics of the time, and the fact that the original countries that signed the statute of the Council of Europe in 1949 were: Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the United Kingdom. The founding members can be divided into three main constituencies: (1) continental civil law countries using French or deeply influenced by French legal culture (Belgium, France, Italy, Luxembourg, the Netherlands); (2) common law countries using English (Ireland and the UK); and (3) Scandinavian countries (Denmark, Norway, and Sweden), which are generally regarded either as a subgroup of civil law or as a legal family of their own, where English is widely spoken as a second language. French and English were natural choices, given the composition of the Council.

French lawyers had a heavy hand in the design of the ECtHR. It was a French lawyer, Pierre-Henri Teitgen, who set out the first proposal for a European Convention on Human Rights in 1949 and most actively lobbied for a court to act as the treaty guardian.³⁴ The framers were mostly influenced in their design by other international tribunals, but the French judicial model also played a major role. Significantly, the French Cour de cassation and the Conseil d’État are the only domestic high courts referred to in thetravaux préparatoires.³⁵ One of the ECtHR’s most widely used standards of review, the “margin of appreciation doctrine,” which means that member states a permitted a degree of discretion in the area of a Convention right, originates in French administrative law.³⁶ While the ECtHR famously differs from French courts in allowing separate opinions, for the most part, its bureaucratic functioning is typical of the French judicial model. As a former ECtHR judge told me, “the origins of this court are the French Conseil d’État and the Conseil constitutionnel in the sense of the working matters.”³⁷

The ECtHR, as we know it, that is, as a permanent, full-time court, is a latecomer to the international scene. The original dual system of a commission and a court, devised in 1959, did not give way to a single Court of Human Rights until 1998. When the new court was redesigned in the 1990s, the linguistic status quo was left untouched. There was some discussion of adding Russian as a third official language, given its status as a language of communication in post-Soviet states and the court’s hope to see its jurisprudence grow in influence in the East.³⁸ The idea was soon abandoned, partly out of fear that other member states would demand that their language be included, which in turn might have pressured other Council of Europe institutions to expand their official languages.

3.3. The ICJ

The French capture is also palpableab initio in the history of the ICJ, albeit for slightly different reasons.³⁹ Although the ICJ was set up in June 1945 under its present institutional structure as the principal judicial organ of the United Nations, the court derives from the Permanent Court of International Justice, established in 1922 and attached to the League of Nations. The old Permanent Court used English along with French as its official languages. That had been a close call, however. In the 1920s, French was still the language of diplomacy, international relations, and high culture. If not for Lord Balfour’s protestations, the court would have functioned exclusively in French.⁴⁰ The transformation of the Permanent Court into the ICJ in 1945 engendered a debate as to whether additional official languages should be added. The French delegate at the Committee of Jurists entrusted with the design of the new court, Jules Basdevant, requested that French remain a working language of the Committee on the ground that the old statute, drafted in both languages, would be the basis of the new court’s statute. His proposal was unanimously approved.⁴¹ As a former legal officer for the ICJ put it: “The two official languages are French and English. Note I saidFrench and English,not English and French.”⁴² A native French speaker himself, he meant to emphasize by this order the historical preeminence of French over English.

The choice of French and English at the old Permanent Court had a colonial—and later at the ICJ, a post-colonial—flavor. These were the languages of the two leading imperial states. Though dubbed the “World Court,” the old Permanent Court’s composition was overwhelmingly Western European, North American, and Latin American. Before World War II, most of Asia and Africa were not represented, given that a handful of colonial states held the lion’s share of these continents as colonies or mandates. The composition of the ICJ did not widen until the late 1950s. Throughout the first years of the United Nations it was still considered a “European” tribunal.⁴³ The two historical languages, French and English, remain the court’s languages even though the United Nations, the ICJ’s parent organization, chose a total of five, and later six, official languages.

To this day, the ICJ strives to preserve bilingualism: it is one of the few international courts that drafts its judgments and conducts its deliberations simultaneously in two languages. Judges debate both language versions of their judgments, which are published side by side (en regard). This requires the constant assistance of translators and interpreters—even the most trivial comment added to a draft by a court member must be translated into the other language. This continued commitment to bilingualism may be understood as another symptom of the French capture. Non-francophone judges typically speak fluent English and could function in an English-only environment. A number of francophone judges, however, could not. Like at the ECtHR, it is mainly because francophone judges take advantage of the status of French to work in their native tongue that a complicated machinery of translation and interpretation must operate at the ICJ.

Having seen how the French language and judicial model were introducedab initio, I now turn to French’s continuing effects on the three courts’ daily functioning and decision-making process.

4. Why linguistic design matters over time

Why does the French judicial model still have traction at a time when the use of French and French law is declining internationally in favor of an English language and common law-centric working environment?⁴⁴ The French language and French legal culture are clearly becoming peripheral, yet one can still detect a number of French judicial practices in place at international and regional courts.⁴⁵ Of course, the perpetuation of these practices may simply be due to path dependence. Inertia doubtless plays an important part in this story, but so does it in most every institutional trait of an organization. As the final section argues, the status of French as an official language is a major contributing factor to the longevity of French judicial practices because picking a court language entails importing a set of personnel and writing conventions that live on even as the institution becomes more cosmopolitan.

There are three main causes for the contemporary marginalization of French and French legal culture in the international legal community. In the European Union and the Council of Europe, it is substantially due to successive enlargements. The accession of new, non-Francophone member states whose legal systems were not inspired by the French has radically shifted the balance between French and English and between French law and other legal cultures. The thirteen new EU countries, which joined in 2004, 2007, and 2013, are predominantly Eastern European. The same can be said of the Council of Europe and the United Nations’ newest members, which have joined since the 1990s after the fall of communist regimes. A senior ECtHR staff lawyer involved in recruiting staff thus noted, “an increasing number of our lawyers from the East express themselves in English and less so in French.”⁴⁶ Another factor is a generational one, which plays out equally at the three courts. Due to a host of factors, including decolonization, France’s diminished stature on the international scene, a reputation for rigid laws and bureaucratic judges, a sluggish economy, commercial laws which are not very business-friendly, French legal culture has ceased to inspire other countries. New generations of lawyers learn English as a second language, not French.⁴⁷ Top students tend to study abroad for their Master’s degrees. Common-law jurisdictions, particularly the United States, are the most popular destination.

In ourZeitgeist, the French capture increasingly feels like a “capture.” The prevailing Anglo-Americanization of international law corresponds to lawyers natural drift toward English and common-law cultures. Yet the staying power of the French judicial model at international courts is a symptom of the long-lasting impact of linguistic design. Over time, the French regime has had two major effects: the first on the courts’ personnel and the second on the writing conventions followed in drafting judgments.

4.1. Effect on Staffing

(a) Screening for French

How does a court’s linguistic design affect its internal organization over time? The most palpable effect of a language regime appears in the process of selecting and recruiting the court’s staff. In principle, international courts represent diverse national legal cultures.⁴⁸ They draw judges, law clerks, registry lawyers, translators, and other personnel from a variety of national educational and professional training patterns.⁴⁹ French’s continuing status as an official language, however, causes the courts to screen for candidates based on linguistic ability in addition to requisite technical competence—a practice that could be characterized as “adaptive” hiring.⁵⁰ Though each organization has its own selection process, which differs for judges and other court personnel, some form of linguistic screening occurs at all three courts. Language proficiency plays a particularly salient role in the hiring of non-judicial personnel, i.e., lawyers, clerks, secretaries, and obviously translators. Judges are usually only required to be fluent in one of the courts’ languages, while staffers are expected to master both.⁵¹ At the ECtHR, some of my sources complained about new recruits’ mediocre French and noted that “intensive language courses” are offered to remedy the problem.⁵² While judges are free to take advantage, or not, of the French lessons specifically catered to them, staffers are sometimes hired on a probationary basis with the requirement that they achieve a certain level of proficiency by a given deadline.⁵³ Judges’ incentive to improve their French seems to depend on the court’s leadership. A former CJEUréférendaire explained that upon their arrival at the court judges “have private tutors who come teach them one to two hours per day. They are more or less obliged [to take the lessons] because the [court’s] president is very attached to deliberations conducted in French.”⁵⁴

CJEU expert and herself a former lawyer-linguist for the court, Karen McAuliffe points out thatréférendaires must have “at least a reasonable knowledge of French. Although they are not required to have a ‘perfect’ command of that language, if aréférendaire is not sufficiently competent in the French language it can cause problems for the judge or advocate general in whose cabinet he/she works.”⁵⁵ Similarly, a senior registry lawyer at the ECtHR, involved in the hiring of staff lawyers, claims: “we are all Francophone and Anglophone these days; it’s even a requirement. We have so many applicants that we reject applications from people who aren’t fluent in French and English.”⁵⁶ The European Union and the Council of Europe’s enlargements have placed an additional premium on the command of French in recruitment. New member states have few qualified lawyers or academics specifically trained in European law, making language an ever more critical consideration in hiring. The same might be true in The Hague: a former ICJ legal officer confided, “I know that one of the essential reasons why I was hired in the face of competition was my capacity to write in the two [court] languages.”⁵⁷

What is the effect of screening for French on the profile of the staff? French is no longer alingua franca systematically used as a second language for communication between people not sharing a mother tongue. Qualified international or European lawyers who speak French tend to either come from Francophone countries or to have spent a significant amount of time living, studying, or working in a Francophone environment. As a formerlecteur d’arrêt andréférendaire at the CJEU explained, French-speaking staffers “often learned it [French] through their study, many of them studied at French universities or went to law school at the college of Europe [a Belgium-based, highly competitive graduate school specialized in European studies where classes are taught in English and French].”⁵⁸

In contrast, fluency in English is more likely to be disconnected from acculturation in a particular legal system. Choosing English as a court language doubtless has repercussions on staffing, on writing styles, and, therefore, on a court’s judicial culture. Yet, chances are that the impact of English is both less extensive and less visible than that of French. Less extensive, because the majority of fine lawyers around the world speak English without necessarily having been socialized in the Anglo-American legal tradition. Requiring the command of English for hiring purposes does not automatically give a leg up to those who are from or have studied in a common law jurisdiction. Less visible, because we have become so accustomed to English’s global dominance that its effects on the functioning of international organizations tend to be inconspicuous. In practice, when a court’s official languages include along with English less widely spoken languages such as French, this leads to screening candidates based on that language, not English. People tend to bring their training with them, and one can assume that, by and large, French-speaking lawyers are familiar with French legal culture. Thus those most likely to embrace French judicial culture are also those most likely to wind up working at the courts. A former ICJ legal officer describes how his supervisor, a senior legal officer came to the court: “when he was recruited in 1969, it was because of his linguistic, not legal qualifications. He was English and had studied in France. He had written a dissertation in French-English comparative law, not in international law.”⁵⁹

To be sure, court members’ proficiency ranges from native speakers to those who speak French fluently to those who are merely adequate. Working in a non-native language imposes costs on the personnel. It makes non-native speakers’ work harder by slowing them down or diminishing their argumentative ability. Conversely, working in one’s native language confers advantages. Judges and staffers who are truly bilingual can work directly from the pleadings, the court documents, and the oral proceedings without having to wait for translations. They find it easier to interact with their colleagues. They are more likely to take the lead in the decision process, volunteering to write judgments or separate opinions more often than others. Judges and staffers whose native language is neither French nor English must invest time and energy in learning a new language and may still communicate with difficulty, which results in less participation in decision-making or at least in drafting. A former CJEUréférendaire thus recounts that the judge she clerked for did not speak French when he first arrived in Luxembourg: he “rapidly attained a level [of French] at which he didn’t have problems understanding. As far as expressing himself, though, he was never as comfortable. So in terms of weighing in on the discussions, etc., it [was] a little frustrating.”⁶⁰

In theory, language competence should not impinge on judges’ capacity to influence court decisions, and much of the opinion writing is left to staff lawyers and clerks. At the ECtHR and the ICJ, though, judges are supposed to write their separate opinions on their own. This may constitute a deterrent, or at least a heavy burden for judges whose mother tongue is not one of the court’s official languages.

(b) More power to the staff

Regional and international courts house complex communities whose administrative arms, made up of non-judicial personnel, have taken on a life of their own. To some extent, multilingualism shifts some of the power to define and maintain decision-making norms from judges to the staff, in particular judges’ assistants and translators.

Judicial assistants (be they the CJEU’sréférendaires, the ECtHR’s registry lawyers, or the ICJ’s legal officers) enjoy substantial leadership, especially when the judges they support are not native French or English speakers. As a formerréférendaire notes à propos the CJEU: “Judges must write in French. So you can imagine the weight and im portance ofréférendaires when the judge is not Francophone or isn’t proficient enough, or still when, at the beginning, a judge isn’t yet comfortable with EU law.”⁶¹ Along the same lines, a former ECtHR judge told me: “If you have ajuge rapporteur who does not speak the language or who is not well versed in the situation or the legal system of the country, it means the registry practically decides the case and the judge has very limited possibility to control it.”⁶² Much like domestic high court judges, international judges delegate a great deal of the opinion writing to their assistants. However, unlike domestic judges, they may not be as comfortable revising and editing drafts written in a language which is not their own. This means that judicial assistants may not only have the first, but also the last word.

Translators also play a crucial part in international courts’ operations. Each of the three courts has its own translating service staffed by a corps of translators who often also have legal training—tellingly, they are called “lawyer-linguists” at the CJEU. These translators do more than simply translate. They have a role in policing the courts’ case law by ensuring that judgments employ already sanctioned expressions. This is key to enabling the international legal community to recognize concepts and connect cases. A mistranslated word or a deviation in terminology could consign a judgment to oblivion by severing it from a line of precedents and diminishing its searchability in databases. ECtHR translator Martin Weston thus writes that there are “linguistic precedents” at the Strasbourg court.⁶³ There, translators hold periodic “terminology meetings” to discuss and settle upon standardized translations for given words and expressions.⁶⁴ These translation constraints are very much present in the mind of those, judges and non-judicial personnel, drafting opinions.

The two European high courts have a dedicated linguistic safeguarding mechan ism in place, called the “language check” unit (contrôle linguistique) at the ECtHR and the “judgment readers” (lecteurs d’arrêt) at the CJEU.⁶⁵ Native speakers proofread and revise opinions—including separate opinions at the ECtHR—with an eye to consistency of style and terminology. There are two tiers of linguistic check. Before thejuges rapporteurs circulate their proposed opinions to colleagues in preparation for the conference meeting, this specialized staff edits the drafts. A second and final editing stage also takes place after judges have deliberated and collectively decided upon an opinion. This review can have repercussions on substance, however. Readers not only flag inconsistencies pertaining to content, but may also request changes that have an impact on the judgment.⁶⁶ A CJEU judge thus notes, “the titlelecteur d’arrêt is an understatement because they [thelecteurs d’arrêt] make very helpful editorial propositions even when the original drafter was a Francophone. They too are lawyers . . . so they take charge of the case, examine whether all arguments have been addressed.”⁶⁷ At the ICJ, legal officers ensure that the language used in judgments is consistent and conforms to the court’s dedication to “quaint” terminology in French and to “very British” English.⁶⁸

Judges working in multilingual courts, therefore, must relinquish some of the control domestic judges typically enjoy over the wording of their opinions. They delegate a greater share of their work to assistants and translators, thus giving more power to the staff. But at the CJEU, the ECtHR, and the ICJ this delegation is inseparable from the influence of the French judicial style, which values consistency and repetitive terminology above all else. As I argue below, granting French the status of official language has had significant consequences on the style of judgments.

4.2. The effect on writing

The main duty of courts of last resort—be they national, regional, or international—is to resolve disputes by issuing written judgments. Requiring that this task be conducted in specific languages or multiple languages has influenced not only staff interactions, but also the type of writing conventions adopted by courts.

(a) The French judicial style

It has been argued that official languages have a “vehicular” status, fostering the transfer of ideas from one legal order to another. Former ICJ legal officer Gleider Hernandez has thus claimed that “[t]he influence of the official languages of international law is profound, in that it also privileges the transfer of concepts and ideas from municipal legal orders into international law.”⁶⁹ I am not concerned here with legal transplants in Alan Watson’s sense of the borrowing of substantive legal concepts from one system by another.⁷⁰ My purpose is to analyze, in the vein of sociology of organizations, how legalpractices, rather than substantive legal concepts, migrate.

The use of French as a court language has fostered a continued reliance on the French judicial style, which is characterized by impersonal, formulaic, and collegiate judgments. From the beginning, the ICJ, the CJEU, and the ECtHR have delivered composite judgments typical of the French tradition. CJEU judgments famously mimic the French deductive form of reasoning: despite undergoing considerable evolutions over the years, they remain relatively terse and usually follow an established template.⁷¹

ECtHR judgments are longer and more discursive, but their numbered paragraphs follow a French-like format, similar to the CJEU’s, from the procedural history to the facts to the legal analysis and the formal holding. Both the CJEU and the ICJ judgments have adopted French mannerism in opening paragraphs or sections with phrases such as “it follows” or “consequently” to convey a sense of logical progression. One of the ICJ legal officers I talked to, who is originally from France, stressed that the French judicial style can “be found everywhere in the case law and in the structure of decisions, which use the Conseil d’État’s ‘whereas’ [considérants, i.e., the logical phrase used by Conseil d’État judges to introduce each portion of their judgment]. This syllogistic form was very present [when the ICJ was created].”⁷² The very first ECtHR judgments followed this formula too, but later abandoned it.⁷³

International and regional courts’ judgments tend to be longer and more explanatory than the typical terse French opinion. Over time, the CJEU’s judgments have evolved away from their initial “cryptic, Cartesian style.”⁷⁴ Unlike French courts, the ICJ and the ECtHR allow separate opinions. Still, these courts’ stylistic inspiration has been predominantly French.⁷⁵ They have resolutely rejected the common-law tradition of delivering separate, individual judgments due to the fear that personalized judgments openly invoking policy arguments would threaten their fragile legitimacy. Certain aspects of the French style have appealed to international judges: in particular, structured judgments rendered by the court as a single unit, presented in a deductive form, and providing limited insight into the underlying political controversies. In the case of the three courts in question, the list of judges who sit on the deciding panels is published—and in the case of the ICJ, their votes disclosed. Those not privy to the deliberations, however, do not know which judge is responsible for what aspect of the decision. Judgments are written in a detached and impersonal style and are not signed by the individual judges.

ECtHR and ICJ judges do sign their separate opinions, which they write in their own voice. Unlike the traditional British judicial decision, however, the ECtHR and the ICJ deliver a unitary judgment of the court rather than separate, seriatim judgments.⁷⁶ There are no “majority” opinions versus “minority” opinions; a judgment of the court is issued, on the one hand, without the individual contributions to the drafting being identified, and, on the other hand, with no separate opinions. Notably, all the judges sitting on the panel, including the dissenters, participate in drafting the court’s judgment.⁷⁷ This inclusive approach is typical of the Frenchmodus operandi and must feel alienating to some common-law judges.⁷⁸ French high judges who disagree with their colleagues are not excluded from the court’s writing process. On the contrary, because disagreements cannot be made public through dissents or concurrences, they tend to be worked out privately, typically by negotiating compromise judgments that take into account the dissenters’ objections. In a similar vein, international judges who write separately partake in the articulation of the court’s reasoning until the end. The converse is also true at the ICJ, where “the Court has the power, which is seldom exercised, to request deletions or changes in separate opinions.”⁷⁹ In that scenario, the “majority” participates in the drafting of the “minority” opinion. In The Hague, therefore, dissenting and concurring judges must to some extent relinquish control over their separate opinions.

The norm of collegiate judgments exerts specific constraints in a multilingual work environment, reinforcing certain aspects of the French style, such as its predilection for a consistent judicial lexicon and the practice of citing word for word from precedents.

(b) Cutting and pasting and court idioms

French judgments constantly quote precedents, but they typically do so word for word, without quotation marks or even pinpoint citation. The language of the controlling precedents is simply reproduced as is. Because at multinational courts judges and the support personnel involved in the drafting of opinions do not always use their native tongue, they have an increased incentive to follow the French practice of reproducing the exact wording. As a former French CJEUréférendaire recognized, “when you draft judgments, you do a lot of copying and pasting; the structure of the judgment always stays the same.”⁸⁰ Particular phrases which have passed muster are retained and reused, rather than taking the risk of devising a new language.⁸¹ One way in which that happens is through what Jan Komarek has described in the context of the CJEU as the “cut-and-paste” effect of multilingualism.⁸²Référendaires who are not native French speakers are at an obvious disadvantage when drafting opinions and other documents. To overcome that hurdle, they have resorted to cutting and pasting the reasoning from previous cases or to using set phrases. They have even been known for putting together “glossaries” of important or recurring concepts to streamline their drafting.⁸³

This cut-and-paste effect can also be seen in judgments of the ICJ and the ECtHR. Viewed from the perspective of registry lawyers, who actually do most of the drafting at the Strasbourg court, the practice is described in the following way: “when it’s a classic line of case law, what we do is . . . copying and pasting . . . when we start drafting we fill in a ready-made judgment skeleton. Some formulas are repeated, repetitive, they’re always there.”⁸⁴

One corollary of cutting and pasting has been the development of a distinctive set of concepts and court idioms. Working in non-native languages has caused the staff of international courts to generate their own pidgins or simplified common languages. At the CJEU, there is “Court French.” At the ICJ and the ECtHR, simplified English coexists alongside simplified French. These court idioms rely on repetitive formulas and expressions drawn from the jargon specific to the court’s case law. What is lost in nuance is gained in translatability. As a ECtHR judge notes, “if it is a French judgment written by a French lawyer in this wonderful French, then it is simply untranslatable into other languages because it is too complicated. It is the same with the UK.”⁸⁵ Court idioms have flourished in part to overcome this problem.⁸⁶

A similar phenomenon can be observed at the ECtHR where so-called “Convention French” and “Convention English” have developed. A senior registry lawyer explains that new recruits must be trained in those idioms: “we have our style . . . for two years, we are taught that style, so there is a Convention English and a Convention French, a registry lawyer way of drafting.”⁸⁷ Paradoxically, the development of “Court French” may be one of the few effects of the French capture to turn against native French speakers. At the CJEU, for instance, McAuliffe reports that French speakers complain that the Court French feels as alien to them and as remote from “real” French as a foreign language would be. As a result, in order to stick to the court idiom, Francophone staffers tend to do a lot of cutting and pasting as well.⁸⁸

To sum up, both the historical origins of the CJEU, the ECtHR, and the ICJ, and the sources of institutional change—namely, their staff and their work product in the form of opinions—seem to have conspired to maintaining the French capture over time. Linguistic design yields a high degree of path dependence. It becomes self-reinforcing by encouraging the hiring of certain types of people and the commitment to certain work methods. Initial choices also increase the cost of adopting once-possible alternatives, such as an all-English working environment and truly discursive and personalized judicial opinions.⁸⁹

5. Conclusion

What effect does the French capture have on the questions of legitimacy? Perhaps there is more to the persistence of the French capture than history and organizational norms. Multinational courts are the result of states’ negotiations and are parts of political organizations—in my sample, the European Union, the Council of Europe, and the United Nations. Judges’ interpretation of the law may conflict with the interests of their country of origin. Yet judges are appointed by their national governments for fixed terms and often return to domestic careers in their home countries after their terms of service. A major challenge for European and international courts, therefore, is to protect judges’ independence and impartiality. Multinational courts are relatively new judicial bodies and must still prove themselves to the world. They need mech anisms which both ensure that judges will decide cases involving their government impartially and preserve the appearance that they are free from their national origin or allegiance. Indulging in idiosyncratic forms of expression might run contrary to these aims. The French judicial model is an attractive solution to address this challenge. An internal organizational culture that privileges superficial unanimity and double talk is particularly well suited to transnational adjudication. The French conventions of collective decisions issued on behalf of the court and standardized terminology provide a useful measure of empowerment for judges who can avoid problems of politics by avoiding multiple and personalized decisions. At the ECtHR and the ICJ, judges get the best of both worlds given that they use unitary judgments, all the while retaining the opportunity to write separately should it be pertinent—or politically opportune.

If this legitimacy component of the French capture is real, the link between linguistic design and the French judicial model may prove to be more attenuated than I have assumed. Should French disappear from European and international adjudication in the face of English’s global dominance, some aspects of the French judicial model might not. In other words, some of the conclusions suggested in this article may not be specific to situations where French is the dominant language; in fact, they may prove true in any court where the judges have different linguistic backgrounds and where only a limited subset of their native languages is employed in the decision-making process.

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