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Philip Jessup’s Life and Ideas

Published online by Cambridge University Press:  27 February 2017

Oscar Schachter
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Extract

Philip Jessup’s life was richly varied. Scholar, practitioner, teacher, administrator, diplomat, judge, prolific writer—he moved from role to role, displaying in each his abundant gifts of character and intellect. Every new job, each fresh subject was a challenge met with zest and high spirits. As a scholar, he was drawn to the issues of the day. He never hesitated to take sides when he felt he had good grounds to do so. In his classes and writings, he was as concerned with practical action as with new ideas. Endowed with a commanding presence, a remarkably resonant voice and a talent for lucid and lively expression, Jessup had no difficulty in getting the attention of an audience. He used concepts sparingly, but effectively, and he avoided windy rhetoric. On the whole, he favored narrative exposition, particularly highlighting the aims and predicaments of the individual actors. People, it seems clear, were more real to him than the abstractions of law or political theory. He was a stickler for thorough and detailed research, as his judicial opinions and books show. Concrete, unique facts were important to him; he had to get them right. Historical detail and revealing quotations were used by him with telling effect.

Type
Research Article
Information
American Journal of International Law , Volume 80 , Issue 4 , October 1986 , pp. 878 - 895
Copyright
Copyright © American Society of International Law 1986

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References

* Of the Board of Editors.

1 Acheson, , Philip C. Jessup: Diplomatist in Transnational Law, in Transnational Law in a Changing Society: Essays in honor of Philip C. Jessup 3, 6 (Friedmann, W., Henkin, L. & Lissitzyn, O. eds. 1972)Google Scholar.

2 See Philip Jessup, Jr.’s reminiscences, infra at p. 909.

3 See statement of Jessup in The Nomination of Philip Jessup: Hearings Before the Subcomm. on Nominations of the Senate Comm. on Foreign Relations, 82d Cong., 1st Sess. 162–63 (1951) [hereinafter cited as Hearings]. The hearings on Jessup’s nomination as a U.S. representative to the United Nations contain much detailed biographical information. In addition to his own submissions, they include reprints of articles on him as well as many letters. See Hearings at 155– 302, 443–634, 890–945. Many of the details on Jessup’s career in this article have been taken from these materials.

4 Senator Irving Ives, a classmate at Hamilton College, described Jessup as the outstanding man in the college at the time, recalling that he was the leading actor, captain of the track team, No. 1 debater, Rhodes Scholar-elect and “dater of the best looking girls.” Ives was quoted in an article on Jessup by Davidson, infra note 7. See Hearings, supra note 3, at 672.

5 On Root’s life and views, see P. Jessup, Elihu Root (1938).

6 These facts are in Jessup’s statements to the Senate subcommittee, Hearings, supra note 3.

7 See Davidson, , The Surprising Mr. Jessup, Collier’s, July 30, 1949, reprinted in Hearings, supra note 3, at 668, 672 Google Scholar. Davidson reports that Jessup’s treatise was known as “The Bootleggers’ Guide.” He relates that a rumrunner, Bill McCoy (known as “the Real McCoy”), threatened a libel suit because Jessup had held him up to ridicule by saying the Coast Guard had captured him, whereas in fact he had “captured the Coast Guard” (that is, when the Coast Guard officers had boarded his vessel, he made off with them). When Jessup wrote a correction for the newspapers, McCoy dropped the action and gave Jessup his picture dedicated to “a Square Shooter.”

8 Volume I was written by Jessup and Deák and volume IV by Jessup alone. The other two volumes were written by others under the editorial guidance of Jessup and Deák.

9 Treaty Provisions Defining Neutral Rights and Duties, 1778–1936 (P. Jessup & F. Deák eds. 1937).

10 A Collection of Neutrality Laws, Regulations and Treaties of Various Countries, 2 vols. (P. Jessup & F. Deak eds. 1939).

11 Jessup, P., The United States and the Stabilization of Peace: A Study of Collective Security (1935)Google Scholar.

12 See note 5 supra.

13 See Fox, , Jessup, Philip C., Scholar of International Politics, 24 Colum. J. Transnat’l L., at xv (1986)Google Scholar.

14 See Hearings, supra note 3, at 17–21, 196–224.

15 See Acheson, note 1 supra.

16 The New York Times Book Review carried a first-page review of the book by Supreme Court Justice Robert H. Jackson who was also the U.S. judge at the Nuremberg trials. Jackson lauded the book, observing that Jessup “rendered a genuine service in treating international law . . . as a living force in practical international affairs.” N.Y. Times, Mar. 14, 1948, §7 (Book Review), at 1. The book also received highly favorable reviews in newspapers and journals of general circulation as well as in professional publications.

17 N.Y. Times, Nov. 28, 1948, §8 (Magazine), at 32. These quotations and those following it from the N.Y. Times are taken from Gellhorn, , Philip C. Jessup: An International Diplomatist, 24 Colum. J. Transnat’l L., at ix (1986)Google Scholar.

18 N.Y. Times, Feb. 11, 1949, §1, at 22, col. 2.

19 Id., Feb. 18, 1949, §1, at 19, col. 2.

20 Acheson, supra note 1, at 6–7.

21 Jessup, , Parliamentary Diplomacy: An Examination of the Legal Quality of the Rules of Procedure of Organs of the United Nations, 89 Recueil des Cours 185 (1956 I)Google Scholar.

22 Jessup described the book as “a joint venture” with his wife, Lois K. Jessup. Her letters and scrapbooks were among the prime sources used and she worked extensively on other sources and editing the manuscript. Jessup, P., The Birth of Nations, at ix (1974)Google Scholar.

23 Id. at 261–88.

24 Id. at 289–97.

25 Id at 298.

26 Id. at 343 n.23.

27 For histories of McCarthyism, see Oshinsky, D., A Conspiracy So Immense (1983)Google Scholar; and Cook, F., The Nightmare Decade (1971)Google Scholar. The details of McCarthy’s charges and Jessup’s replies are most fully set forth in Hearings, supra note 3.

28 See Report of Senate Subcomm. on State Department Loyalty Board Investigations [Tydings Committee], S. Rep. No. 2108, 81st Cong., 2d Sess. (1950).

29 McCarthy charged that the IPR was “Jessup’s organization” and that through the institute’s publication Far Eastern Survey, Jessup had “pioneered the smear campaign against Nationalist China and Chiang Kai-shek.” In fact, Jessup had no direct connection with the Far Eastern Survey. However, he was linked because as Chairman of the IPR Research Advisory Committee, he had approved of researchers whose subsequent writings appeared in the Survey. Jessup was also attacked as a supporter of Owen Lattimore, a prominent Far Eastern scholar, who edited the IPR journal Pacific Affairs. Lattimore had become a prime target of McCarthy who called him the No. 1 Soviet agent in the United States, a charge generally regarded as absurd in the light of Lattimore’s record and writings and the testimony of those who knew him well. See F. Cook, supra note 27, at 209–39; D. Oshinsky, supra note 27, at 147–55.

30 Hearings, supra note 3, at 259–79. A sample of McCarthy’s evidence of Communist links was his suggestion that the American Law Students Association (of which Jessup was one of a number of faculty advisers) had used the same printer as some “Communist front” organizations and that Jessup must have been aware of that. Also indicative of McCarthy’s standards was the charge that Jessup helped Communist Chinese by his membership in the China Aid Council. In fact, Jessup was not a member of that council; Mrs. Jessup was. The Aid Council, moreover, was founded and headed by Madame Chiang Kai-shek to help war orphans; it included prominent Nationalist leaders. See Hearings, supra note 3, at 254–74. See also Anderson, J. & May, R., McCarthy 229 (1953)Google Scholar.

31 That Jessup had opposed the Communist line in 1941 did not impress William F. Buckley, Jr., who thought it “may have been protective coloration.” See Buckley, W. Jr., & Bozell, L., McCarthy and his Enemies 122 (1954)Google Scholar. These writers, generally supportive of McCarthy, conceded that some of McCarthy’s charges may have been “overstated” and that Jessup may not have been a Communist sympathizer in 1949–1951, but that in previous years he had contributed “actively and passively to the communist cause.” Id. at 123. Since he refused to acknowledge this, Buckley and Bozell declared he was not fit to hold a government post. Id. at 123–24.

32 Id. at 102–03. For Jessup’s reply, see Hearings, supra note 3, at 196–213, 460–61.

33 Hearings, supra note 3, at 278–85.

34 Acheson wrote “that in spite of the abuse directed at this document... it has stood up admirably for thirty years as the definitive factual history of the period. This is due to Jessup’s editing and supervision.” Acheson, supra note 1, at 8.

35 Hearings, supra note 3, at 631–32.

36 Id. at 685 et seq.

37 Stassen said this was told to him by Senator Vandenberg who had since died. Id. at 740.

38 Id. at 891–96.

39 Id. at 722.

40 Stassen insisted he was presenting facts and not opinions, but the record shows persistent attempts by him to draw damaging inferences from Jessup’s denials as well as from Jessup’s positions prior to World War II. Some commentators regarded Stassen as motivated in his attacks on Jessup by a political debt to McCarthy or by political opportunism. See F. Cook, supra note 27, at 204; J. Anderson & R. May, supra note 30, at 231–32. The hearings, however, suggest that Stassen had a strong animus against both Jessup and Acheson and genuinely believed his accusations to be well founded. When Stassen was an official in the Eisenhower administration, he clashed with McCarthy, to the latter’s surprise, but then backed down on orders of the President. McCarthy told the press that Dulles had served him “Stassen-meat.” See D. Oshinsky, supra note 27, at 295–97.

41 Hearings, supra note 3, at 632–37.

42 Id.

43 Id. at 150, 302–03.

44 The New Republic headlined the story “Not Guilty—Fired.” See D. Oshinsky, supra note 27, at 213. See also Hearings, supra note 3, at 646, 733, 737. Truman apparently was persuaded that he could not win confirmation in the Senate since several Democratic senators were reluctant to appear to support the Acheson policies.

45 Buckley and Bozell, writing in 1954, observed (“happily”) that Jessup was “finished” and forced out of public life by his failure to win Senate confirmation. W. Buckley, Jr., & L. Bozell, supra note 31, at 96.

46 It had earlier been reported that he had been considered at various times for the presidency of Yale, Stanford and Columbia. See Davidson, supra note 7.

47 James N. Hyde and Richard R. Baxter were particularly active in this effort.

48 See Hyde’s memoir, infra pp. 905–06.

49 Jessup was first elected as a member of the Journal’s Board of Editors in 1929 and he remained an active member until his election to the International Court. After leaving the Court in 1971, he rejoined the board as an honorary member and was active in evaluating manuscripts and writing editorial comments and book reviews.

50 See, e.g., The Use of International Law (1958) and The Modern Law of Nations, ch. 1 (1948) [hereinafter cited as Modern Law].

51 Barcelona Traction, Light & Power Co., Ltd. (Belg. v Spain) (New Application), 1970 ICJ Rep. 4, 162–221 (Judgment of Feb. 5) (Jessup, J., sep. op.).

52 North Sea Continental Shelf Cases (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 77–85 (Judgment of Feb. 20) (Jessup, J., sep. op.).

53 P. Jessup, Modern Law, supra note 50, chs. V and VI.

54 See Kennedy, , Dedication, 62 Colum. L. Rev. 1123 (1962)Google Scholar. President Kennedy’s “dedication” was in the Columbia Law Review issue in honor of Jessup.

55 Root, , The Outlook for International Law, 9 ASIL Proc. 7–9 (1915)Google Scholar.

56 South West Africa Cases (Ethiopia v. S. Afr.; Liberia v. S. Afr.), Preliminary Objections, 1962 ICJ Rep. 319, 425–33 (Judgment of Dec. 21) (Jessup, J., sep. op.).

57 Id. at 425–29.

58 South West Africa (Ethiopia v. S. Afr.; Liberia v. S. Afr.), Second Phase, 1966 ICJ Rep. 6, 373–74 (Judgment of July 18) (Jessup, J., dissenting).

59 Barcelona Traction, 1970 ICJ Rep. at 32.

60 South West Africa, 1966 ICJ Rep. at 441.

61 Id.

62 Jessup, , Diversity and Uniformity in the Law of Nations, 58 AJIL 341 (1964)CrossRefGoogle Scholar; Jessup, , Non-Universal International Law, 12 Colum. J. Transnat’l L. 415 (1973)Google Scholar.

63 Non-Universal International Law, supra note 62, at 423–29.

64 1970 ICJ Rep. at 164.

65 Jessup, P., Transnational Law (1956)Google Scholar.

66 Jessup, , The Present State of Transnational Law, in The Present State of International Law and Other Essays 339 (Bos, M. ed. 1973)CrossRefGoogle Scholar.

67 See Oliver, , Philip C. Jessup’s Continuing Contribution to International Law, 62 Colum. L. Rev. 1132 (1962)CrossRefGoogle Scholar.

68 Jessup, P. & Taubenfeld, H., Controls for Outer Space and the Antarctic Analogy 222–82 (1959)Google Scholar.

69 Id. at 171–90.

70 Id. at 140–53.

71 P. Jessup, Modern Law, supra note 50, at 87–89. Jessup was strongly criticized in the U.S. Senate for his view that the Charter imposed legal obligations in respect to human rights. 97 Cong. Rec. S11, 744–48 (daily ed. Sept. 18, 1951).

72 P. Jessup, Modern Law, supra note 50, at 92.

73 P. Jessup, The Use of International Law, supra note 50, at 46–62.

74 Jessup, P., The Price of International Justice 61–70 (1971)Google Scholar.

75 Id. at 76–80. Jessup attributed the idea to a comment of Lauterpacht, H. in the latter’s Decisions of Municipal Courts as a Source of International Law, 10 Brit. Y.B. Int’l L. 65, 95 (1929)Google Scholar.