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NOTE ON THE USE OF THE WORD “SHALL”

The English Language group of the Drafting Committee first drew attention to the word “shall” in its preliminary harmonization report.¹ It indicated its general preferences that references to imperative duties and obligations, positive or negative, should contain a word “shall”. It also reported that in other cases, the word “shall” should not be used where the present tense adequately conveys the meaning.” It gave as examples a provision for elaborating rights, and one for describing the effect of one rule on another.

In the early stages of the harmonization process, the Drafting Committee reported that:

The main issue here concerns the use of “shall”. It is generally agreed that “shall” denotes as imperative and expresses an obligation. The text, as the examples show, in English, Russian and Spanish tends to be indiscriminating in its use of “shall” vis-à-vis the present tense. There is certainly a case for consistency in the use of this auxiliary.²

The Drafting Committee also reported that the coordinators of the language groups were continuing to consult on this aspect. It noted that the Secretariat had prepared a paper on the use of the word “shall” in the English text, which would form the basis for further discussions in the language groups.

In 1980, the English language group refined its position, providing the following observations:

1. The Group recalled its earlier recommendation that references to imperative duties and obligations, positive or negative, should contain the word “shall”. It observed, however, that the problem was more complex than the simplicity of the rule suggested. For example, where the reference actually includes either the word “shall” or “obligation”, use of “shall” may be unnecessary. Accordingly the group will consider the matter further as part of [the] textual review [the concordance process].

2. In principle the word “shall” should not be used where the present tense adequately conveys the meaning:

(a) In a number of articles, but not others, “shall” is now used in the English text to describe the operation of one rule or another, as for example in the clauses, “Nothing in this Part shall affect …”, and “Article ___ shall apply to …”.

(b) In other articles “shall” is used in the course of elaborating rights or in declaring the existence of rights or duties: “State shall have the right to …”.

The Group will consider separately the use of “shall” in provisions which establishes institutions, such as those in Part XI and annexes II, III, IV and VI.

The Group’s general preference will be implemented in the course of the textual review.³

The Secretariat subsequently summarized the position of the other language groups which reported on the matter:

In French, the use of “s’applique” [the present tense] posed no problem for the French language group.

The Russian language group commented that the translation of the English word ”shall” creates problems in the Russian text. Where the wording of the Geneva Conventions is used in the Russian text, the word “shall” is generally conveyed by the word “dolzhny”. In the vast majority of other articles, the present tense of the verb is used, which is the modern method of expressing this concept. The impression may therefore arise that some articles referred to an imperative obligation and some to something less. In order to avoid difficulties in interpretation, the Russian text should no longer use the language of the Geneva Convention and should use the present tense, except where the structure of the Russian language requires the use of the word “dolzhny”.

The Spanish language group pointed out that in Spanish the future tense should be used articles containing definitions and descriptions, and also in articles establishing general principles.⁴

There were no corresponding comments from the Arabic or Chinese language groups.

On that basis, the work of concordance and the general article-by-article scrutiny of the text was conducted.

In the commentaries, attention will be drawn to the changes made in the text, whereby inserting or by removing the word “shall” in the English text of the Convention. The legislative history and the context will establish the extent to which a given provision establishes an imperative duty and obligation, positive or negative, or carries some other connotation.

1

ELGDC/1 (1978, mimeo), sections 28 and 29, at 3.

2 A/CONF.62/L.40 (1979), sections XXVIII and XXIX Off. Rec. 95, 104 (Chairman, Drafting Committee). The Secretariat drew attention to a remark by Sir Hamphrey Waldock, special Rapporteur of the International Law Commission on the law of treaties, in which he stated that ”in English the ”shall” form was used in statute law to devote imperative rules.” See 872^nd meeting of the Commission, para. 20, I YB ILC 1966, Part II, at 199.

3 ELGDC/5 (1980, mimeo.), Part III, section B, at 2.

4 Informal Paper 4 and Rev. 1 and 2 (1980, mimeo.), Section 29.