Interpretive Function

The interpretive function is the most commonly employed use of general principles and, according to Bassiouni, “the one that is evidently the most needed and useful”.243 Raz concurs that this function is “of the utmost importance since it is a crucial device for ensuring coherence of purpose among various laws bearing on the same subject.”244 As such, it is also an important means of responding to fragmentation and performing the unification function of general principles. Though the “extent to which one can resort to ‘General Principles’ for interpretive purposes has never been

established”245, these principles have nonetheless “been primarily used to clarify and interpret international law.”246

Some general principles are specifically interpretive in nature, such as the principle which dictates that special laws prevail over general ones (lex specialis derogate legi generali).247 Meanwhile other principles, such as the general principle of respect for human dignity, identified by the ICTY in the Furundzija case as “the basic underpinning and indeed the very raison d’être of international humanitarian law and human rights” was employed by that court to help interpret the international laws relating to rape.248 This use of general principles in Furundzija exemplifies Bassiouni’s assertion that “[t]hey are useful for interpreting words not susceptible to an ordinary or common meaning interpretation”.249

243 _{Bassiouni, supra note 152 at 776.} 244 _{Raz, supra note 166 at 840.} 245

Bassiouni, supra note 152 at 776.

246 _{Bassiouni, ibid at 776.} 247 _{Boas, supra note 17 at 107.} 248

Prosecutor v Furundzija (Trial Judgement), IT-95-17/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 10 December 1998, available at:

http://www.refworld.org/docid/40276a8a4.html at 183. [hereinafter Furundzija]

Equally important when considering the interpretation of international law is the Vienna Convention on the Law of Treaties [VCLT].250 Article 31(3) of the VCLT requires subsequent agreements, practices and rules of international law to be taken into account when interpreting a treaty.251 The ILC Study on Fragmentation devoted some time to discussing Article 31(3)(c) of the VCLT, which reads as follows:

There shall be taken into account together with the context: … (c) any relevant rules of international law applicable in the relations between the parties.252

The ILC refer to this article as an expression of a principle it calls the principle of “systemic integration”. The principle “points to the need to take into account the normative environment [of the obligations in question] more widely.”253

The aim is to ensure that provisions are interpreted “so as to see the rules in view of some

comprehensible and coherent objective, to prioritize concerns that are more important at the cost of less important objectives.”254 This systemic nature of international law, integral to both interpretation and the unification of international law, can be anchored on this provision of the VCLT.255 It is important to note that, though the provision “refers to rules of international law in general, the words cover all the sources of international law,

250 _{VCLT, supra note 21.}

251 _{VCLT, ibid at Article 31(3). Article 31 reads: Article 31 General rule of interpretation 1.A treaty shall}

be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2.The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3.There shall be taken into account, together with the context: (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. 4. A special meaning shall be given to a term if it is established that the parties so intended.

252

VCLT, ibid at Article 31(3)(c).

253 _{ILC Study, supra note 219 at 209.} 254 _{ILC Study, ibid at 211.}

including custom, general principles, and, where applicable, other treaties”.256 While, at first glance, there may seem to be confusion by the use of the term “rules”, in the

following sentence the ILC clarifies that this is inclusive of custom and general

principles, not merely rules founded in conventions.257 The ILC Study further elaborates that the “general principles of law recognized by civilized nations perform a rather similar task in locating the treaty provision within a principled framework”.258

Within a fragmented international legal system consisting of so many specialized institutions, law must not be employed in isolation “only as an instrument for attaining regime-objectives.”259 Rather, “law is also about protecting rights and enforcing obligations, above all rights and obligations that have a backing in something like a general, public interest.”260

The ILC emphasizes that “[w]ithout the principle of

‘systemic integration’ it would be impossible to give expression to and to keep alive, any sense of common good of humankind, not reducible to the good of any particular

institution or ‘regime’.”261 The interpretation, and often by association the unification, functions of general principles are crucial to the exercise of international law and the preservation of the coherence of international law.