Windows to Worlds: Eduardo Jiménez de Aréchaga’s Teachings at the Hague Academy
Year: 2024
Type: article
Abstract: The assertion that most international institutions and prominent centres of international law have historically been confined to, or run by, elites is neither novel nor provocative. The Hague Academy of International Law is no exception. The characteristics of elites, however, vary across different contexts and times. One common feature of the Latin American lecturers at the Academy during the 20th century, themselves a minority in a North Atlantic-dominated community, was their identity as ‘gentlemen politicians of the law’.1 This concept, coined to describe jurists who bore a ‘dual heading of political notables and international legal experts’,2 represents an archetype of Latin American jurists whose careers traversed the realms of the academic, diplomatic and political. Eduardo Jiménez de Aréchaga was one of these men.3 Many international lawyers may not be familiar with Jiménez de Aréchaga’s life beyond his role as a judge at the International Court of Justice (ICJ). Born in Montevideo, Uruguay, to a family of prominent lawyers, Jiménez de Aréchaga began his career at the Emergency Advisory Committee for Political Defense, created by American states during World War II to combat activities by Axis nationals, agents or sympathizers. He was later appointed under-secretary of state for foreign affairs and, subsequently, secretary to the National Council of Government that ruled Uruguay. He also occupied prominent positions abroad, serving at the United Nations (UN) Secretariat division assisting the UN Security Council (UNSC), the Uruguayan delegations to the General Assembly and the UN Conference on the Law of Treaties and as member of the International Law Commission. He returned to his native Uruguay for a brief stint as minister of interior and, at the same time, successfully ran as a candidate for the ICJ. After his tenure at the Court, of which he was also president, he continued to expand his practice portfolio, serving as counsel and judge ad hoc at the ICJ, arbitrator and president of the World Bank Administrative Tribunal. He held professorships at the Universidad de la República and Universidad Católica del Uruguay and authored important scholarly works throughout the course of his career. When reading Jiménez de Aréchaga’s Hague Academy lectures, it is difficult not to cast him as an exemplary doctrinal jurist. He delivered two special courses and the general course, all maintaining a largely technical viewpoint. In 1954, he addressed the handling of international disputes by the UNSC,4 and, 10 years later, he explored the coordination between regional and universal systems in the peaceful settlement of disputes and collective security.5 His general course assessed the transformations in international law from 1945 to 1978, including the changes brought about by the abolition of colonialism, the acceptance of jus cogens and the emergence of community interests.6 His lectures largely emulated the approach and style of European positivists,7 and he himself claimed that his political experience remained ‘completely separate’ from his legal analysis.8 However, appearances can be deceptive. Beneath the technical and often colourless discussions, the teachings of gentlemen politicians of the law like Jiménez de Aréchaga at the Hague Academy present windows into the national, regional and global contexts in which they operated as well as the role(s) of international law within these settings. These teachings also have the potential to reveal the political commitments of their authors. Jiménez de Aréchaga, like other gentlemen politicians of the law, was not impassive to the different interpretations of international law and the impact that these could have on his region, his country or himself. This review essay, therefore, centres on Jiménez de Aréchaga’s views on dispute settlement, peace and security and the intersection of regional and universal orders, which were distinctive due to his overlapping roles as an international servant, domestic politician and academic. This essay begins by setting Jiménez de Aréchaga’s teachings within the regional context and the developments that influenced his analyses. Section 2 presents his teachings as a window into the regional history of the Americas during the 1950s and 1960s, a Cold War theatre largely unexplored by international law scholarship.9 Section 3 examines his courses as a window into the politics underpinning his doctrinal readings of international law. This examination moves beyond the binaries sometimes used to describe the thinking of jurists operating outside Europe, such as universalist versus particularist and doctrinal versus non-doctrinal, as these can reveal little of jurists’ political commitments. Finally, section 4 identifies the lessons offered by these windows into the past. It argues that Jiménez de Aréchaga’s doctrinal perspectives provide analytical and historiographical counterpoints on the maintenance of peace that are often overlooked in today’s scholarship on international dispute settlement. This approach invites readers to explore the worldviews introduced by the Hague Academy’s lecturers to disrupt ossified understandings of international dispute settlement and international law more broadly. In his first two Hague Academy courses, Jiménez de Aréchaga addressed the coordination between the universal and regional systems in maintaining peace and security under the UN Charter during a moment of Cold War clashes in the Americas. His point of departure drew from a perspective that, 70 years later, Anne Orford would declare to have been overlooked by contemporary international lawyers: the negotiation of the UN Charter marked the establishment of regionalism as a vital component of the international legal order, thanks to the granting of legal powers to regional arrangements.10 The dual consecration of authority of states and regional arrangements would not work out smoothly as tensions ‘between universal aspirations, regional alliances, and imperial ambitions’ were doomed to arise.11 In the Americas, where Latin American countries and the USA had formalized their long-standing collaboration through the establishment of the Organization of American States (OAS) just three years after the creation of the UN, such interests and aspirations did not take long to clash. An instance of such clashes took place in international dispute settlement dynamics. Between the late 1940s and the mid-1960s, OAS member states primarily brought their interstate disputes or conflicts to the regional organization.12 This behaviour contrasts with today’s dominant practice, where a significant number of conflicts between Latin American and Caribbean states end in the docket of the ICJ;13 Latin American states and the USA resorted to the regional collective security arrangement to channel conflicts that did not necessarily involve security matters.14 These situations included disputes over the granting of asylum or the activities of exiles operating from foreign territories to effect political change in their home countries, territorial disputes between Latin American states and, in line with reigning Cold War dynamics, conflicts concerning the alleged expansion of communism in the region. This trend generated different types of friction, one of which was the friction between states wishing to reserve the option of resorting to the UN if the regional arrangement did not provide a satisfactory response and those countries – most notably, the USA – that wanted to keep regional business regional. Jiménez de Aréchaga leveraged the prestigious platform of the Hague Academy to assess the legality of regional practices. In particular, he highlighted the precedent of Guatemala. On that occasion, 10 states had invoked the regional collective security mechanism (established by the Inter-American Treaty of Reciprocal Assistance, commonly known as the Rio Treaty) against Guatemala, arguing that intervention by the international communist movement in Guatemala disrupted American continental peace.15 Jacobo Árbenz, then president of Guatemala, was a democratically elected leader,16 and no evidence linked him with communist movements abroad.17 However, he was the driving force behind socially orientated reforms – most notably, an agrarian bill that redistributed large portions of uncultivated land,18 benefiting the country’s impoverished peasants and the Indigenous population. The US government viewed Árbenz’s influence over the rural population with apprehension.19 Moreover, the United Fruit Company, a US-based multinational corporation and one of Guatemala’s largest landowners,20 lost 64 per cent of its idle lands to expropriation.21 Suspecting the fate that the case built against Guatemala would have in the regional system, the government of Árbenz turned to the UNSC.22 The USA successfully blocked the motion to put Guatemala’s complaint on the UNSC’s agenda. As part of its arguments, it asserted that Guatemala should first turn to the OAS under Article 52 of the UN Charter (which establishes a best efforts obligation to settle local disputes through regional arrangements) and Article 20 of the OAS Charter (which, back then, required disputes between American states to be submitted to OAS procedures before approaching the UNSC).23 A coup backed by the Central Intelligence Agency overthrew Árbenz before the regional and global mechanisms could advance further.24 Jiménez de Aréchaga described the Guatemalan episode as an ‘extremely dangerous precedent’ for American states and all member states of regional bodies.25 He was not the only voice from the region condemning it – for instance, he joined Mexican jurist Jorge Castañeda, who also criticized the legality of the so-called ‘priority thesis’, according to which OAS member states were obliged to first turn to regional proceedings.26 Jiménez de Aréchaga’s rebuttal was rooted in a doctrinal interpretation of the UN Charter. In his view, a correct reading of this instrument, and Article 52(2) in particular, indicated that states could not be deprived of direct access to the UN, even temporarily. He developed his thesis in relation to American states, whose obligations went beyond those under Chapter VIII of the UN Charter and included regional treaties that established a preference for regional procedures.27 In his eyes, states should only make bona fide efforts to settle local disputes through regional means;28 nonetheless, they continued to have direct access to UN organs when a party to the dispute considered that regional methods were not, or could not be, effective in settling the case in question.29 Jiménez de Aréchaga grounded this interpretation on Article 52(4), which states that the legal prerogatives of regional arrangements do not impair Article 35. Described as the ‘principle of indivisibility of peace’, Article 35 provides that UN member states have the right to bring any dispute to the attention of the UNSC or the General Assembly. This set of obligations, he concluded, prevailed over regional treaties by virtue of the supremacy clause established in Article 103 of the UN Charter.30 Analysing Jiménez de Aréchaga’s courses in context reveals that his interventions were not merely academic exercises but also legal responses to contemporary conflicts. The Guatemala coup formed the backdrop for his first special course in 1954.31 A decade later, during his second appearance at The Hague, he revisited the coordination between regional and universal legal systems as new conflicts among American states reached the UNSC.32 These lectures represent examples of a jurist using an authoritative platform to exert an impact on the regional order.33 What the political commitments underlying these interventions were will be the focus of the next section. One might be tempted to explain Jiménez de Aréchaga’s interpretation of the UN Charter as a reflection of his commitment to a universalist approach to international law, particularly because of his support for maintaining the United Nations as a recourse for countries in the region. However, Jiménez de Aréchaga’s political commitments were more complex than a simple defence of universalism.34 They reveal underlying fractures in how Latin Americans perceived both the regional and global international orders, as well as the power inequalities within the regional organization. To illustrate this, this section examines Jiménez de Aréchaga’s articulation of the relationship between the OAS and the UNSC in maintaining peace and security, with a focus on the legality of sanctions adopted by the OAS under the UN Charter. Jiménez de Aréchaga appreciated regional autonomy; he understood the pains Latin American states had endured in construing a relationship with the USA on (at least a formally) equal footing, but he foregrounded the dangers of protecting regional autonomy at all costs. He maintained that the ‘true American tradition’ consisted of strengthening the regional system, ‘not as a closed and exclusive enclosure, locked in an unacceptable “Monroism”, but as part of a whole, as an element forming an integral part of humanity’.35 In this context, he was critical of those Latin American jurists who advocated circumscribing regional affairs to the inter-American system, only for the sake of guarding the region’s autonomy.36 Guided by this belief, Jiménez de Aréchaga constructed a legal interpretation of the powers of the UNSC in the handling of disputes that sought to preserve both values: regional cooperation with the USA, and participation in the global system. Direct recourse to the UNSC would not impact the freedom of action of regional entities if disputes of a regional nature were brought to the UNSC’s attention. If the UNSC considered that regional procedures could still be useful, it had the duty to refer the dispute back to the regional entity.37 Equally, this did not mean leaving parties unprotected, as a referral could not occur if one party feared bias from the regional organization.38 Moreover, even if parties consented to a regional referral, the UNSC would have the power to maintain regional conflicts on its agenda, and thus would be kept informed of the progress and outcome of the regional procedures. It could also make recommendations on the settlement of disputes if it considered that regional mechanisms had failed, or the situation escalated to a breach of peace or an act of aggression.39 However, Jiménez de Aréchaga’s commitments to a balanced relationship between the UN and the OAS had a limit. At The Hague, he defended the idea that it was legal for regional organizations to collectively adopt diplomatic and economic sanctions without prior authorization of the UNSC insofar as ‘there is no monopoly or centralization in the Security Council of the economic or diplomatic measures of the type indicated in Article 41’ of the UN Charter.40 According to him, it followed from this that, what states were free to do individually, they could also action as a group. Jiménez de Aréchaga also dismissed suggestions that diplomatic and economic sanctions of a collective character could severely impact sanctioned states with an argument based on logic. He that it would be to that state of a regional had than a of states not in such a this reading of the Jiménez de Aréchaga as legal the diplomatic and economic sanctions that the OAS adopted against the in and in in and His interpretation built on however, was not it other of international law that sanctions could if by a state or of countries, such as a of the of Jiménez de Aréchaga’s political commitments when with other diplomatic of the region. An in point is which had developed a foreign and international legal approach on a defence of the of Jiménez de Aréchaga in the regional Mexican the of international in a international organizations could as an against interventions of more states in Jiménez de Aréchaga and Mexican both the precedent set by the UNSC in Guatemala, their Mexican rooted their in a reading of Article 52 of the UN Charter in of the of to Castañeda, the than right to refer disputes to the as a different interpretation would member states of regional organizations in a of other In Jiménez de Aréchaga’s was rooted in a doctrinal interpretation of the of the UN the same under which he OAS sanctions to be Moreover, his was influenced by which in two in the Guatemala Jiménez de Aréchaga criticized the UNSC for not including the on its agenda, but he did not necessarily the of the collective security against the alleged expansion of His communism was more in his legal of the where the OAS went beyond economic and diplomatic sanctions and measures force to that would not from the powers and in from a The legality of this under Article of the UN Charter was to as the UNSC had not the of the Jiménez de Aréchaga also the built on the of However, he the measures insofar as they were and, by the other of the or the grounded on the of – in particular, the of but – would be used by international lawyers to the of they would not necessarily with Jiménez de Aréchaga’s or of for doctrinal should not with his work as his teachings for This section that Jiménez de Aréchaga’s lectures at the Hague Academy provide two perspectives in today’s scholarship on international dispute a of international institutions and peace on the one and into Cold War dispute settlement dynamics, on the In this Jiménez de Aréchaga’s teachings doctrinal lessons and they as for international dispute settlement arrangements and their in international law Jiménez de Aréchaga addressed the peaceful settlement of disputes with a on the of the UN Charter. 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DOI: 10.1093/ejil/chae060
Author: Justina Uriburu
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W4405666118