I've been following for a while now the controversy that my neighbors Mitu Gulati and Curtis Bradley have stirred with their article, "Withdrawing from Custom," which appeared in the Yale Law Journal last year.
It's a sign of the importance of their project that the Yale Law Journal on-line now has four responses up --by Carlos M. Vázquez , Leah Brilmayer and Isaias Yemane Tesfalidet, William S. Dodge, and David Luban. Gulati and Bradley now have a response to the responses up on ssrn, "Mandatory versus Default Rules: How Can Customary International Be Improved?"
As I've said before, this is really outside of my area of expertise and knowledge -- except the part that relates to nineteenth century US history. And what sort of surprises me about the debate is the extent to which history, particularly the pre-Civil War history, has become a battle ground. As I see this, the pre-Civil War history is on Mitu's and Curtis' side -- that is, there was a sense that states were weak and that the equal dignity of states, as well as practical reality, required a weak system of international law. This is one of the reasons why pre-Civil War southerners were so enamoured of Vattel and why they so frequently returned to international law as a model for Constitutional practice within the United States.
Given this history -- and the fact that historical practice is so frequently on the side of conservativism -- I'm not surprised that Curtis and Mitu turn to it. It provides an important model for the world they want, of weak enforcement of international law. What surprises me, though, is that people who respond to Mitu and Curtis are returning to that world. I would have thought that they'd have labeled the era of Vattel and the pre-Civil War as the bad old days and instead focus on the post-Civil War story and say that we're in a different and more enlightened world now. At least if I were responding to Curtis and Mitu, that's what I would have argued.
All of this is most interesting, to see how history is wielded as part of advocacy. And on that I hope to have some more thoughts at a later point.