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Defending the Society of StatesWhy America Opposes the International Criminal Court and its Vision of World Society$
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Jason Ralph

Print publication date: 2007

Print ISBN-13: 9780199214310

Published to Oxford Scholarship Online: September 2007

DOI: 10.1093/acprof:oso/9780199214310.001.0001

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International Society—Consent and Custom as Sources of Law

International Society—Consent and Custom as Sources of Law

(p.29) 2 International Society—Consent and Custom as Sources of Law
Defending the Society of States

Jason Ralph (Contributor Webpage)

Oxford University Press

This chapter examines why legal positivism emphasises the importance of sovereign consent and relates it to the pluralist conception of international society introduced in the previous chapter. This is contrasted with a solidarist conception that identifies sources of law in processes that override the principle of sovereign consent. The chapter also examines the specific and contested role that peremptory norms play in the constitution of international society. Finally, it relates this debate to the contemporary critique of customary international law within American academia and within certain parts of the political and judicial branches of US government. It illustrates this with reference to the debate on the Alien Tort Claims Act and to documents claiming executive privilege in the war on terror.

Keywords:   Vattel, legal positivism, sovereign consent, pluralist, solidarist, consensus, peremptory norms, customary international law, Alien Tort Claims Act, war on terror

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