[1] It seems impossible to find any single English phrase which gives the meaning of Materialien in this context. In the Materialien of a statute is comprised everything officially put on record concerning it between the time the draftsman undertakes to draft the measure and the time it is placed on the statute-book. For instance, the commentary which a draftsman on the Continent always adds to his draft, giving the reasons for the provisions of the Bill; the discussions in Parliament about the Bill; and the like.—Translator.
Controverted interpretation of the Declaration of London an example.
[48.] A good illustration of the factors under consideration was furnished by the movement in England against the ratification of the Declaration of London, and the discussion evoked thereby in the press and in Parliament. It was asserted that many rules of the Declaration were so indefinitely framed as to lie open, castle and keep, to the arbitrary inroads of a belligerent interpreter. And when the advocates of ratification pointed to the official 'General Report presented to the Naval Conference by its Drafting Committee', which gave a satisfying solution to the issues raised, the answer came that neither a belligerent nor the International Prize Court would be bound by the interpretation of the Declaration contained in this General Report. It was asserted that the ratification of the Declaration would refer only to the text itself, and that the General Report, not being thereby ratified, would not be binding; only by express extension of the ratification to the General Report could the latter bind.
Continental jurisprudence, if my conception of it be correct, would stand shaking its head at the whole of this discussion. It would ask how there could be any talk of ratifying a report, ratification having only to do with agreements. And as regards the question of the binding character of the General Report, there might indeed be some objection on the Continent to the epithet 'binding', but, on the other hand, there would be no doubt that the interpretation of the Declaration given in the Report must be accepted on all sides. The Report expressly says:
We now reach the explanation of the Declaration itself, on which we shall try, by summarizing the reports already approved by the Conference, to give an exact and uncontroversial commentary; this, when it has become an official commentary by receiving the approval of the Conference, would be fit to serve as a guide to the different authorities—administrative, military, and judicial—who may be called on to apply it.
Seeing that the Conference unanimously accepted the Report, there is expressed in it and by it the real and true meaning of the individual articles of the Declaration as the Conference itself understood and intended it. Every attempt to procure an inconsistent interpretation must come to grief on this fact, and so the Report is in this sense 'binding'. The ratification of a treaty extends, of course, not only to the words themselves, but also to their meaning, and if the Conference which produces an agreement itself unanimously applies a definite meaning to the words of the agreement, there cannot remain any doubt that this is the meaning of the verbal text. Nevertheless, the contrary was maintained in England by a party of men of legal eminence, and the explanation of this is only to be found in the fact that these English lawyers were applying to the interpretation of the Declaration the rules which govern the interpretation of English statutes. The only way to enable the English Government to ratify the Declaration seems to be a statement by the Powers at the time of ratification that the interpretation of the Declaration expressed in the General Report is accepted on all sides.
Some proposals for the avoidance of difficulties in interpretation.
[49.] However this may be, the illustration adduced is sufficient proof that the interpretation of international enactments creates a difficulty of its own for international legislation. International legislators must bring even greater solicitude than municipal legislators to the expression of their real meaning in rigid terms. And this aim can only be attained by the most assiduous preparation and consideration of the contents of the enactment. It would be best if these contents were published and thereby submitted to expert discussion before they were finally accepted at the Conferences. The national jurisconsults of the participant states would thus be enabled to criticize the proposals and to indicate the points which especially need clearing up. It might also be possible to consider the enactment, by convention, of an international ordinance containing a series of rules for the interpretation and construction of all international statutes. This much is sure, that the interpretation of international statutes must be freer than that of municipal statutes, and must therefore be directed rather to the spirit of the law than to the meaning of the words used. This is all the more requisite because French legal language is foreign to most of the states concerned, and because it is not to be expected that before ratification they should obtain minute information about the meaning of every single foreign word employed.