Judge Philip Caryl Jessup
- Late Prof. (Dr.) S.R.S. Bedi
Former Prof. of Law
Rajiv Gandhi National University of Law, Punjab
Judge Philip Caryl Jessup, a former judge of the International Court of Jurist (1961 – 1970) was an American diplomat, scholar, and jurist from New York, born on 5 January 1897.
A law graduate from Yale Law School and having obtained his Ph.D. from Columbia Law School, he was a Professor of International Law and Diplomacy at the CLS from 1925-1946. From 1946 to 1961 he was Hamilton Fish Professor of International Law and Diplomacy at the same law school. Meanwhile, he also had the honor and privilege of serving and participating in: (i) Assistant Secretary-General of the United Nations Relief and Rehabilitation Administration (UNRRA) Conference in 1943; (ii) a delegate to the United Nations Monetary and Financial Conference, popularly known as the "Bretton Woods" conference) (in 1944); and (iii) as a technical advisor to the American delegation to the San Francisco United Nations charter conference in 1945.
Respect for human dignity was at the very core of Judge Jessup’s legal thinking. As far back as 1947-1948, even before the Universal Declaration of Human Rights came into existence, Jessup strongly suggested in his 1948 publication of A Modern Law of Nations that in order to have a truly progressive development of international law -- which he chose to call as “a modern law of nations” as the very title of his book-- must accord individuals a “high priority.” And, in order to promote and materialize this “high priority” for individual human dignity, he opposed the unilateral use of force by States and instead proposed (i) force monopoly of international community; (ii) an “international government;” and (iii) that “collective will” of States must prevail over “individual will” of state. In this vein he emphatically stated in the same book as follows:
· “Those who still preach the traditional license of absolute sovereignty as an excuse for disregarding the interest of the world community, sound a discordant note…”
Throughout his legal career he maintained the same view about law, governance and human dignity. At the same lecture, Prof. Jessup described the nature and significance of relation between law and governance in the following words:
The same reflects in the individual opinions appended by Judge Jessup to the following famous ICJ Judgments and in his following classic publications and two celebrated seminar lectures at the prestigious Hague Academy of International Law:
In Judgments
· Separate Opinion of Judge Jessup, South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Judgment of 21 December 1962 on Preliminary Objections, ICJ Reports 1962 pp. 357-436.
· Declaration of Judge Jessup, Northern Cameroons (Cameron v. U.K.), Judgment of 2 December 1963, ICJ Reports 1963 p. 40.
· Declaration of Judge Jessup, Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Judgment of 24 July 1964 on Preliminary Objections, ICJ Reports 1964 pp. 49-50.
· Dissenting Opinion of Judge Jessup, South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966,ICJ Reports 1966 pp. 325-442.
· Separate Opinion of Judge Jessup, North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/ Netherlands), Judgment of 20 February 1969, ICJ Reports 1969 pp. 66-84.
· Separate Opinion of Judge Jessup, Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, ICJ Reports 1970 pp. 161-221.
In Publications:
· A half-century of efforts to substitute law for war, in Recueil des cours, Volume 99 (1960-I), pp.1-20.
· To form a more perfect United Nations, in Recueil des cours, Volume 129 (1970-I), pp. 1-23.
It is beyond the scope of this short article to deal with all the cases Judge Jessup participated at the ICJ Bench. However, the most prominent among the joint cases of South West Africa, dealing with the issue of apartheid – a gross violation of human right to equally and an insult to human dignity – will briefly be mentioned.
His strong sense of respect for human dignity categorized the World Court majority position as “completely unfounded in law.” Judge Jessup declaredthat international law should not be treated as an outdated collection of dead rules, from some bygone era of world history; but that “the standard to be applied by the Court must take account of the views and attitudes of the contemporary international community.” He was obviously referring to the contemporary standards of human rights and human dignity.
While voting in favour of the 1962 judgment on jurisdictional issue, Judge Jessup, together with Judge Bustamante, made some human rights additions. While so doing he embraced the question of States having interest in the violation of human rights and wrote: “International law has long recognised that states may have legal interests in matters which do not affect their financial, economic or other “material”, or any, “physical” or tangible” interests. By so indicating that the legal interests of Ethiopia and Liberia in the situation in South West Africa, created by the discriminatory policies of the government of South Africa, Judge Jessup promoted the principle that serious violations of human dignity, no matter in which State of international community, is a conscientious and legal interest of any other State. Describing this as a recognized principal of international law he found it necessary to illustrate the principle in the following words:
Appending an exhaustive dissenting opinion to 1966 Judgment in the same cases, Judge Jessup greatly emphasized the universality of the principle of equality and equal rights as follows:
“The virtual universally accepted description of other legal characteristics of this actual modern world is written in the Charter of the United Nations. It is a world in which “friendly relations among nations” are to be “based on respect for the principle of equal rights and self-determination of peoples”, and in which there is to be international co-operation both in solving international problems “of an economic, social, cultural, or humanitarian character”, and “in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”( South West Africa, ICJ Reports, 1966, pp. 440-441). (emphasis added).
Prof. Mc Whinney has aptly appreciated the historical value of Judge Jessup’s dissenting opinion in the jurisprudence of human rights and human dignity:
Prof. Dr. S. R. S. Bedi
Late Prof. (Dr.) S.R.S. Bedi had written this Article for Human Dignity International, before his untimely demise in Oct 2012.
Former Prof. of Law
Rajiv Gandhi National University of Law, Punjab
Judge Philip Caryl Jessup, a former judge of the International Court of Jurist (1961 – 1970) was an American diplomat, scholar, and jurist from New York, born on 5 January 1897.
A law graduate from Yale Law School and having obtained his Ph.D. from Columbia Law School, he was a Professor of International Law and Diplomacy at the CLS from 1925-1946. From 1946 to 1961 he was Hamilton Fish Professor of International Law and Diplomacy at the same law school. Meanwhile, he also had the honor and privilege of serving and participating in: (i) Assistant Secretary-General of the United Nations Relief and Rehabilitation Administration (UNRRA) Conference in 1943; (ii) a delegate to the United Nations Monetary and Financial Conference, popularly known as the "Bretton Woods" conference) (in 1944); and (iii) as a technical advisor to the American delegation to the San Francisco United Nations charter conference in 1945.
Respect for human dignity was at the very core of Judge Jessup’s legal thinking. As far back as 1947-1948, even before the Universal Declaration of Human Rights came into existence, Jessup strongly suggested in his 1948 publication of A Modern Law of Nations that in order to have a truly progressive development of international law -- which he chose to call as “a modern law of nations” as the very title of his book-- must accord individuals a “high priority.” And, in order to promote and materialize this “high priority” for individual human dignity, he opposed the unilateral use of force by States and instead proposed (i) force monopoly of international community; (ii) an “international government;” and (iii) that “collective will” of States must prevail over “individual will” of state. In this vein he emphatically stated in the same book as follows:
- “…until the world achieves some form of international government in which a collective will takes precedence over the individual will of the sovereign state, the ultimate function of law , which is the elimination of force for solution of human conflicts, will not be fulfilled.”
· “Those who still preach the traditional license of absolute sovereignty as an excuse for disregarding the interest of the world community, sound a discordant note…”
Throughout his legal career he maintained the same view about law, governance and human dignity. At the same lecture, Prof. Jessup described the nature and significance of relation between law and governance in the following words:
- “We lawyers do not have the arrogance to assert that the path of the law is the only way to peace. We do confidently assert that no human society has ever discovered an ordered substitute for violence save through the use of law and legal institutions whether the law in question be secular or religious. It is the same in international community. Those who look realistically at what often seems to be an international anarchy and who suggest the solutions of economics, of political or of science, come first or last to rely upon some agreement, some treaty, even though they may ignore the fact that a contractual obligation is essentially one of the simplest and one of the most pervasive manifestations of the acceptance of the very spirit of law.Whatever form of organisation they propose, it must be in structure and in operation a legal phenomenon, because law can be defined as a description of the way people organise and act.”(emphasis added).
The same reflects in the individual opinions appended by Judge Jessup to the following famous ICJ Judgments and in his following classic publications and two celebrated seminar lectures at the prestigious Hague Academy of International Law:
In Judgments
· Separate Opinion of Judge Jessup, South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Judgment of 21 December 1962 on Preliminary Objections, ICJ Reports 1962 pp. 357-436.
· Declaration of Judge Jessup, Northern Cameroons (Cameron v. U.K.), Judgment of 2 December 1963, ICJ Reports 1963 p. 40.
· Declaration of Judge Jessup, Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Judgment of 24 July 1964 on Preliminary Objections, ICJ Reports 1964 pp. 49-50.
· Dissenting Opinion of Judge Jessup, South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment of 18 July 1966,ICJ Reports 1966 pp. 325-442.
· Separate Opinion of Judge Jessup, North Sea Continental Shelf (Federal Republic of Germany/ Denmark; Federal Republic of Germany/ Netherlands), Judgment of 20 February 1969, ICJ Reports 1969 pp. 66-84.
· Separate Opinion of Judge Jessup, Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second Phase, Judgment of 5 February 1970, ICJ Reports 1970 pp. 161-221.
In Publications:
- Elihu Root (Dodd, Mead & Co., 1938)
- A Modern Law of Nations (Macmillan Co., 1948)
- Transnational Law (Yale University Press, 1956)
- The Birth of Nations (Columbia University Press, 1974)
· A half-century of efforts to substitute law for war, in Recueil des cours, Volume 99 (1960-I), pp.1-20.
· To form a more perfect United Nations, in Recueil des cours, Volume 129 (1970-I), pp. 1-23.
It is beyond the scope of this short article to deal with all the cases Judge Jessup participated at the ICJ Bench. However, the most prominent among the joint cases of South West Africa, dealing with the issue of apartheid – a gross violation of human right to equally and an insult to human dignity – will briefly be mentioned.
His strong sense of respect for human dignity categorized the World Court majority position as “completely unfounded in law.” Judge Jessup declaredthat international law should not be treated as an outdated collection of dead rules, from some bygone era of world history; but that “the standard to be applied by the Court must take account of the views and attitudes of the contemporary international community.” He was obviously referring to the contemporary standards of human rights and human dignity.
While voting in favour of the 1962 judgment on jurisdictional issue, Judge Jessup, together with Judge Bustamante, made some human rights additions. While so doing he embraced the question of States having interest in the violation of human rights and wrote: “International law has long recognised that states may have legal interests in matters which do not affect their financial, economic or other “material”, or any, “physical” or tangible” interests. By so indicating that the legal interests of Ethiopia and Liberia in the situation in South West Africa, created by the discriminatory policies of the government of South Africa, Judge Jessup promoted the principle that serious violations of human dignity, no matter in which State of international community, is a conscientious and legal interest of any other State. Describing this as a recognized principal of international law he found it necessary to illustrate the principle in the following words:
- “One type of illustration of this principle of international law is to be found in the right of a state to concern itself, on general humanitarian grounds, withatrocities affecting human rights in another country. In some instances states have asserted such legal interests on the basis of some treaty, as for example, some of the representations made to the Belgian Government on the strength of the Berlin Act of 1885, concerning the atrocities in the Belgian Congo in 1906-1907. In other cases, the assertion of the legal interest has been based upon general principles of international law, as in remonstrances against Jewish pogroms in Russia around the turn of the century and the massacre of Armenians in Turkey.” (emphasis added).
Appending an exhaustive dissenting opinion to 1966 Judgment in the same cases, Judge Jessup greatly emphasized the universality of the principle of equality and equal rights as follows:
“The virtual universally accepted description of other legal characteristics of this actual modern world is written in the Charter of the United Nations. It is a world in which “friendly relations among nations” are to be “based on respect for the principle of equal rights and self-determination of peoples”, and in which there is to be international co-operation both in solving international problems “of an economic, social, cultural, or humanitarian character”, and “in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion”( South West Africa, ICJ Reports, 1966, pp. 440-441). (emphasis added).
Prof. Mc Whinney has aptly appreciated the historical value of Judge Jessup’s dissenting opinion in the jurisprudence of human rights and human dignity:
- “History may well record that the American member of the Court, Judge Philip Jessup, more correctly sensed the “winds of change” in Africa and the general movement of world history when, in his dissenting opinion, he refused to evade the substantive issue of the legality or otherwise ofgovernmentally-practised racial differentiation or discrimination at international law. In categorizing the World Court majority position as “completely unfounded in law,” Judge Jessup insisted that international law should not be treated as an outdated collection of dead rules, from some bygone era of world history; but that “the standard to be applied by the Court must take account of the views and attitudes of the contemporary international community.”
Prof. Dr. S. R. S. Bedi
Late Prof. (Dr.) S.R.S. Bedi had written this Article for Human Dignity International, before his untimely demise in Oct 2012.