In the Name of Sovereignty? The Battle over In Dubio Mitius Inside and Outside the Courts

Contrary to some prominent legal scholars’ predictions, the principle of in dubio mitius, that is, the principle of restrictive interpretation of treaty obligations in deference to the sovereignty of states, has not disappeared. Worse, the Appellate Body (AB) of the World Trade Organization (WTO) has carried it into the 21st Century, reigniting the ideological debate dividing the legal doctrine over the conception of what the relationship between domestic and international law should be. Therefore, after retracing the history of this principle during which key legal figures opposed one another, this article examines the divergent positions defended by the proponents and opponents of in dubio mitius, including domestic and international courts, to demonstrate the isolation and weakness of the AB’s position towards this principle to the detriment of its legitimacy. To this end, this article contributes to the broader discussion concerning states’ regulatory autonomy and the relevance of the concept of sovereignty in today’s globalizing society.