Judicial Dialogue as a Means of Interpretation

THE INTERPRETATION OF INTERNATIONAL LAW BY DOMESTIC COURTS: UNIFORMITY, DIVERSITY, CONVERGENCE, pp. 72-95, Helmut Philip Aust and Georg Nolte, eds, Oxford University Press, 2016

Oxford Legal Studies Research Paper No. 71/2014

22 Pages Posted: 19 Sep 2014 Last revised: 26 Dec 2015

Date Written: September 17, 2014

Abstract

This chapter discusses whether judicial dialogue on international law between domestic courts may be conceptualised as a new means of interpretation -- beyond the Vienna Convention on the Law of Treaties. After defining 'dialogue' and presenting its various potential iterations, the chapter argues that in fact judicial dialogue between domestic courts is required under international law, including the Vienna Convention. This is because domestic court decisions on international law may constitute subsequent practice which is to be taken into consideration when interpreting a treaty, in accordance with Article 31(3)(b) VCLT. But domestic court decisions may also constitute practice and/or reflect opinio juris, which domestic courts must find in order to determine the existence and content of customary international law. As such, domestic courts must engage with the relevant decisions on international law by domestic courts in other jurisdictions. They must engage in judicial dialogue as a means for interpreting international law.

Keywords: judicial dialogue, subsequent practice, interpretation, VCLT, article 31, article 32, treaties, customary international law

Suggested Citation

Tzanakopoulos, Antonios, Judicial Dialogue as a Means of Interpretation (September 17, 2014). THE INTERPRETATION OF INTERNATIONAL LAW BY DOMESTIC COURTS: UNIFORMITY, DIVERSITY, CONVERGENCE, pp. 72-95, Helmut Philip Aust and Georg Nolte, eds, Oxford University Press, 2016; Oxford Legal Studies Research Paper No. 71/2014. Available at SSRN: https://ssrn.com/abstract=2497519

Antonios Tzanakopoulos (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/people/antonios-tzanakopoulos

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