Nicaragua Before the International Court of Justice by Edgardo Sobenes Obregon & Benjamin Samson

Author:Edgardo Sobenes Obregon & Benjamin Samson
Language: eng
Format: epub
Publisher: Springer International Publishing, Cham

2.2 The In Dubio Mitius Principle: State Sovereignty and Treaty Interpretation

The Court in the Navigational and Related Rights also took up the in dubio mitius principle (sometimes also referred to as in dubio pro mitiore or pro libertate). This ‘restrictive interpretation’ principle may be used in treaty interpretation in deference to the sovereignty of states. For a long time it was considered, or at least it was argued, that treaty interpretation should be geared towards upholding the sovereignty of the States parties to any given treaty43 in accordance with the general, traditional presumption in favour of sovereignty.44 The principle provides that in cases where the meaning of a term is ambiguous, that interpretation is to be preferred which is less onerous and restrictive with respect to the party assuming an obligation, as it is this interpretation that interferes less with its sovereignty.45 The principle can be traced back to SS ‘Wimbledon’, and PCIJ jurisprudence can be seen as having consistently embraced it in order to resolve ambiguities in the language of a provision.46 However, it was evident already back then that the principle was to be approached with caution and perhaps even some suspicion. The PCIJ characteristically found that it cannotaccept the […] contention that, the text being doubtful, the solution should be adopted which imposes the least restriction on the freedom of States. This argument, though sound in itself, must be employed only with the greatest caution. To rely upon it, it is not sufficient that the purely grammatical analysis of a text should not lead to definite results; there are many other methods of interpretation, in particular, reference is properly had to the principles underlying the matter to which the text refers; it will be only when, in spite of all pertinent considerations, the intention of the Parties still remains doubtful, that that interpretation should be adopted which is most favourable to the freedom of States.47

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