Can the custom of public international law function as a sufficient source of law when regulating the justiciability of iure imperii acts?

Villarreal García J.F.; Santa Ana I.S. · Revista Aequitas (2024)

Resumen

The present article intends to prove that, contrary to what certain doctrine maintains, the custom of public international law cannot be understood as the main source of law-and much less exclusive and excluding with respect to others-by virtue of which to determine the condition of being or not justiciable a sovereign act executed in the exercise of the latter's iure imperii competences. In this sense, this paper argues that such hermeneutic impossibility can be explained on the grounds that even in those legal systems that ascribe to monism, custom itself must be interpreted in accordance with principles of domestic public law which, as such, prevent understanding such custom as a determining or univocal criterion when it comes to accept or exclude the justiciability of the sovereign's act. To this end, this paper will appeal to a comparative examination of various leading cases of both European continental law and common law jurisprudence, examining, in this sense, the relationship between the provisions of domestic and public international law, especially those relating to jus cogens norms.

Instituciones: Universidad San Ignacio de Loyola; Universidad Continental