Personal Recollections

Eduardo Jimenéz de Arechaga

A.C.: Who was the international lawyer who most influenced your thinking at the beginning of your scholarly activity?

E.J.: You may be a bit disappointed to know that it was Hans Kelsen.

A.C.: Why disappointed? I think he was a great international lawyer.

E.J.: Yes. Of course, but I am not a Kelsenian in any respect. When I was about to finish my law studies, I was appointed to give lectures on international law to young students who wanted to enter law school in Montevideo. And I wrote a book called Introducion a derecho (Introduction to Law), which is Kelsenian. At that time I also contacted Kelsen. He came to visit South America, Argentina and then Uruguay. He had a great intellectual influence in Mexico, and right throughout Latin America. His invitation came from an Argentinian philosopher of law, Cossio, who thought he had invented something that went beyond Kelsen; he called it the `ecological doctrine of law'. He wrote some interesting books, but he went a bit too far. So when Kelsen came to Montevideo I asked him what he thought of Cossio's philosophy of law. And Kelsen, who was speaking in French, replied: `Ce n' est pas de l'écologie, c' est de l'égolatrie'.

Later, when I had become a practising lawyer, I was in contact with him during my first case when I had to deal with topics of international law. It is strange, at that time I was not specializing in international law, but the cases that came my way always had an international law aspect. One of them concerned the Italian Peace Treaty. In that treaty there was a clause according to which Italy renounced claims against the states which had broken off relations with it during the war. My country had declared war on Japan and Germany but not on Italy, although it had broken diplomatic relations with the Fascist regime during the war. Italian ship-owners made a claim in our courts against the state for having utilized two ships which were sunk by Axis' submarines. I was at that time advising the national authorities who had taken over the ships (they were the respondent). When the Peace Treaty was published in the American Journal of International Law I said: `There is a stipulation here in favour of Uruguay, it's a third party stipulation.' At that time the claimant got the support of a well-known Argentinian international lawyer, Podesta Costa, who had been counsel for the League of Nations. This was 1948 or 1949. In order to strengthen my opinion, I asked Kelsen for an opinion on the subject and he wrote a magnificent opinion on third party stipulations in favour of sovereign states, saying that the renunciation applied in casu; the case was settled on the basis of that consultation. Kelsen was so modest that when I asked him how much he would charge for his opinion (20-pages) he asked for 1,000 dollars. It was not very much, even at that time. When later on I told this story to one of my colleagues in the Barcelona Traction case, he said `Mais ce Monsieur crée des difficultés pour notre gagne-pain.'

A.C.: Did Kelsen publish his opinion afterwards?

E.J.: No, he did not. But it has been published because from that case I wrote a 50-page booklet and there I transcribed Kelsen's opinion in full (he wrote in English and I translated it into Spanish).

I must add that when I read Kelsen's book on the UN Charter I felt discouraged because I recalled the comment Hersch Lauterpacht had made about it. He said: `It is a desperate effort to strike the maximum amount of fault from an admittedly imperfect instrument. You should not interpret the Charter of the United Nations as if it were an insurance contract.' This was a book review by Lauterpacht.

A.C.: There were other book reviews criticizing Kelsen's formalism, his sort of bookish attitude to a political document.

E.J.: Some people attribute Kelsen's attitude on the drafting of the Charter to the fact that he was not a friend of Pawlosky, who had been the Legal Adviser to the State Department in Dumbarton Oaks. Kelsen had not been consulted. You know, he had written a book on the drafting of the Covenant of the League of Nations. It has been stated that he was not sufficiently consulted, he was not taken into consideration by Pawlosky and that is why he was so critical of the drafting of the UN Charter.

A.C.: You mean just for personal reasons. Was he so mean?

E.J.: No, I don't think so.

A.C.: In what respect were you influenced by Kelsen?

E.J.: In my lectures to the younger students I had to explain the definition of law, objective law, subjective rights and in these areas I followed Kelsen's formulation.

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