John Jackson, the Gentle Giant of International Trade Law

by Joel P. Trachtman

John Jackson died on Saturday, November 7, 2015, at the age of 83. He had an incredibly productive and creative career, with achievements enough for several lifetimes, and, despite that, he was a lovely and gentle man, who exuded true modesty. In this brief memorial, it would take too long to do justice to his achievements. The highlights of his career, including many important publications, coveted awards and honors, and other major milestones, are summarized nicely by Georgetown Law Centre, where he taught since he left Michigan in 1998.

During the permanent political silly season we are experiencing in the U.S., where bluster and puffery often pass for leadership, it is comforting to think of John Jackson’s authentic, modest, and altruistic leadership of the field of international trade law. He did not seem to intend to lead. Rather, I believe that he moved step-by-step, as his own intellectual curiosity and public spirit drove him at each turn. In doing so, he cultivated a field by writing leading books and articles, educating and mentoring its leading scholars and practitioners, writing important laws, founding the leading journal in the field, and designing a world-improving international organization. He did not cultivate this field to advance his own career, but rather was driven by a spirit of inquiry and of public service. In doing so, he made a major contribution to global society.   For those who would like to see Jackson speak, or hear his own views about some aspects of his contribution, this 2012 interview is a good place to start.

The world can pay no greater tribute to a legal scholar than to adopt his or her ideas. I will provide a vignette of Jackson’s achievements by focusing on the most remarkable of these tributes bestowed on Jackson, the 1995 establishment of the WTO in substantially the form that Jackson recommended in 1990. Perhaps the formation of the WTO, on the cusp of the 21st century and the third millennium, will be regarded in the future as an act of great historical significance. Jackson was present at the creation, and in fact, he was one of the creators.

In his 1990 monograph, Restructuring the GATT System, Jackson set out a critique and a prescription for institutional reform of the GATT: he provided the reasons for, and the design of, the WTO. Jackson put aside the particular trade concessions being negotiated in the Uruguay Round, in favor of “longer-term” and “more fundamental” issues of institutional and, he dared to say, constitutional, structure. Just as only Nixon could have “opened” China, only someone so pragmatic and so immersed in the doctrine, politics, and day-to-day mechanics of the GATT could open up the idea that what was needed was “constitutional.”

Jackson laid out the foundations of his prescription carefully, examining the (unfortunately termed) “birth defects” of the GATT itself, as well as the stillborn International Trade Organization (ITO), the third of the Bretton Woods triplets. He cataloged the GATT’s institutional problems in decision-making, amendment, balkanization by side agreements, dispute resolution, and secretariat services. He saw the rectification of this system as part of a broader evolution: “To a large degree, the history of civilization may be described as a gradual evolution from a power oriented approach, in the state of nature, towards a rule oriented approach.”

Thus, Restructuring the GATT System, based on thirty years of observation and analysis, formed the basis for Jackson’s advice to the government of Canada regarding institutional issues in the Uruguay Round. Jackson explicitly took a “problem-solving” approach. However, he made the jump from addressing specific problems to a more comprehensive, forward-looking and “fundamental” approach. Jackson saw that the charter of the new organization must be simple and discrete, “focused on the institutional and procedural issues, largely leaving substantive rules and obligations to other treaty instruments such as the GATT which would be served and ‘sheltered’ by the broader organization.” This intuition was the result of a combination of vision and modesty. Jackson saw the need for an overarching organization, but recognized the lack of political support for a complex organization that required more extensive substantive rules and locked them in place. Jackson named the “World Trade Organization” and specified that it would function to support not just the GATT but also, inter alia, an agreement on services and an agreement on intellectual property. Jackson then outlined the WTO charter, covering the fundamental topics actually agreed four years later.

Of course, the structure of the WTO is only the most publicly visible of Jackson’s contributions. It is possible that this contribution will be equaled or exceeded by his contribution to the education and mentoring of practically all the world’s trade law scholars and practitioners, often directly, but otherwise through his publications.

John Jackson dealt not only in punctilious scholarship, rigorous education, careful policy prescription and incisive and creative analysis, but did so with the greatest integrity and humanity. We will miss him, but we will remember him in gratitude for the work he did and the example he set.

http://opiniojuris.org/2015/11/12/john-jackson-the-gentle-giant-of-international-trade-law/

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