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The Interpretation of International Law by Domestic CourtsUniformity, Diversity, Convergence$
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Helmut Philipp Aust and Georg Nolte

Print publication date: 2016

Print ISBN-13: 9780198738923

Published to Oxford Scholarship Online: March 2016

DOI: 10.1093/acprof:oso/9780198738923.001.0001

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Judicial Dialogue as a Means of Interpretation

Judicial Dialogue as a Means of Interpretation

(p.72) 5 Judicial Dialogue as a Means of Interpretation
The Interpretation of International Law by Domestic Courts

Antonios Tzanakopoulos

Oxford University Press

This chapter discusses whether judicial dialogue on international law between domestic courts may be conceptualized 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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