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
22 Pages Posted: 19 Sep 2014 Last revised: 26 Dec 2015
Date Written: September 17, 2014
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
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