К вопросу о толковании международно-правового обычая: продолжение дискуссии

An analysis of contemporary doctrinal developments indicates the emergence of a new line of research in international law, focusing on the interpretation of international custom. Despite a growing scholarly consensus in favour of recognising that international custom is susceptible to interpretation, some works also advocate the opposite position. Contributing to this debate, the present article attempts a critical analysis of a recent study by O. Pomson regarding the methodology for identifying customary international law applicable to cyber operations (Pomson, O. (2023). Methodology of identifying customary international law applicable to cyber activities. Leiden Journal of International Law, 36(4), 1023–1047). Although the title of Pomson’s article does not explicitly address the interpretation of customary international law, the author examines it in detail, adopting a position that epitomises the classical approach: customary international law is not subject to interpretation. Based on the analysis, this article concludes that scholarly debate often shifts focus from the substance of the issue to related questions, including the methodological aspects of determining the precise meaning of a customary international law rule, the relationship between international lawmaking and the evolutionary interpretation of international law, and the legal nature and identification of international custom. The primary argument advanced by those who oppose recognising the interpretation of international custom is that doing so could undermine the two-element approach to identifying customary international law. However, an analysis of relevant scholarly works suggests that recognising the interpretability of international custom does not negate the dual-element approach, but rather builds on contemporary doctrinal developments concerning the formation and identification of international custom. Furthermore, recognising the possibility and necessity of interpreting international custom facilitates a better understanding of the means and limits of the evolution of its content over time and offers a number of advantages. This includes the ability to take into account the objectives, principles, and values embedded in the international legal order when assessing state practice and opinio juris, as well as the possibility of interpreting international custom harmoniously by drawing on the customary-law equivalent of systemic integration in the interpretation of international treaties. This, in turn, helps preserve the coherence of the international legal system.