CAN PUBLIC INTERNATIONAL LAW CUSTOM SERVE AS A SUFFICIENT SOURCE OF LAW WHEN REGULATING THE JUSTICIABILITY OF ACTS IURE IMPERII?

Villarreal J.F.; Barruto O.C. · Revista Juridica (2024) · DOI: 10.26668/revistajur.2316-753x.v3i80.7346

Resumen

Objectives: This article aims to demonstrate that, contrary to what certain doctrinal perspectives hold, customary international law cannot be understood as the principal source of law — much less an exclusive and exclusionary one — by which to determine whether a sovereign act executed in the exercise of its iure imperii competencies is justiciable. Methodology: To this end, the present work will appeal to a comparative examination of various leading cases from both continental European law and common law jurisprudence, focusing on the relationships between domestic law provisions and public international law, particularly regarding ius cogens norms. Results: The results indicate that, even in legal systems that adhere to monism, custom must be interpreted in accordance with principles of internal public law which, as such, prevent understanding such custom as a determining or unequivocal criterion when accepting or excluding the justiciability of a sovereign act. Considerations: The final considerations emphasize the complexity of the relationship between domestic law and public international law, highlighting the need for a careful interpretation of the norms governing the justiciability of sovereign acts, in light of the principles of internal public law.

Instituciones: Universidad Nacional Mayor de San Marcos; Universidad de San Martín de Porres; Universidad Continental