International law through the national prism: the impact of judicial dialogue

This project will contribute to our understanding of how national courts engage in the interpretation, application and development of international law through transnational judicial ("court-to-court") dialogue. The project is induced by the widespread exchange of views on the interpretation of international standards between states and regions. Domestic courts are at the heart of this development. They engage in "judicial dialogues", by referring to decisions of international and foreign courts. Transnational judicial dialogues can strengthen the rule of law, allowing domestic courts to arrive at the best responses to shared problems and clarifying shared normative frameworks. The phenomenon of judicial dialogues raises several questions, however. Unless conducted in accordance with sound criteria, transnational dialogues could undermine the role of courts as guardians of the rule of law. The project will provide a systematic empirical analysis of the extent of judicial dialogues on international law. It will uncover methodologies of courts, as well as their motivations to engage in such dialogues. It will identify "best practices" for determining when and how domestic courts should rely on foreign and international interpretations. The project will provide critical information to scholars, practitioners and policymakers in the field of the rule of law and human rights.

This project focused on the existence and impact of judicial dialogue on the formation of international law. The connection of this international research project with the database "International Law in Domestic Courts" (ILDC), of which the project manager became co-editor-in-chief in 2014 and to which both project assistants have considerably contributed, allowed the pursuit of a broad comparative perspective on the role of domestic courts in the shaping of international law. The first project-related conference on Transnational Judicial Dialogue of Domestic Courts on International Organizations, held at the University of Vienna in 2012, specifically addressed the existence and extent of transnational judicial dialogue on questions concerning the legal personality and the privileges and immunities of international organizations.This conference and the ensuing publication of The Privileges and Immunities of International Organizations in Domestic Courts by Oxford University Press in September 2013 provided the groundwork for the large-scale commentary on the two Conventions on the Privileges and Immunities of the United Nations and its specialized agencies which was published in spring of 2016 as an "Oxford Commentary" also by Oxford University Press. Finally, the question of judicial dialogue is central to finishing the remaining research task of the project which is the editing of a Handbook on International Law in Domestic Courts. This book will contain annotated chapters analyzing the way how national courts are addressing international law questions and will thereby contain a description of international law as understood and formed by domestic courts.