Steger, Debra P.

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A Tribute to John Jackson

University of Michigan School of Law

Michigan Journal of International Law Volume 20 Issue 2 1999 A Tribute to John Jackson Debra P. Steger World Trade Organization Follow this and additional works at: https://repository.law.umich.edu/mjil  Part of the International Trade Law Commons, and the Legal Biography Commons Recommended Citation Debra P. Steger, A Tribute to John Jackson, 20 MICH. J. INT'L L. 165 (1999). Available at: https://repository.law.umich.edu/mjil/vol20/iss2/12  This Tribute is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. A TRIBUTE TO JOHN JACKSONDebra P. Steger*It is indeed daunting to be asked to contribute to this tribute toProfessor Jackson. He has been described by Professor David Kennedyas "presid[ing] over the field of trade law in the United States," as"largely invent[ing] the field," and as "founding and developing a fieldor school of law."' In addition to his formidable accomplishments inhaving international trade law recognized as a field of study, he isknown predominantly for his role as an educator. His former studentsare everywhere in international trade law practice: in Europe, the UnitedStates, Canada, Japan, Southeast Asia and Latin America. At the WorldTrade Organization ("WTO") Secretariat, where several key legal postsare held by his former students, we are often referred to as the"Michigan Mafia." It is no surprise that John's students are soughtafter-they come with a guaranteed seal of approval!I first met John at a conference in Vancouver, Canada in 1979. Thatmeeting inspired me to attend the University of Michigan Law Schoolin 1980 to study towards an LL.M. Although I came to the University ofMichigan with the objective of specializing in antitrust law and gov-ernment regulation of business, generally, I left with an all-consumingpassion to study and practice in the field of international trade law. Themain source of my inspiration was the seminar I took with John.As an educator, he is unequalled. In his classes, as in his numeroustext books, he demonstrates an uncanny ability to reduce extremely dif-ficult concepts or problems to simple, comprehensible forms. Hisreadable, comprehensive texts have served not only to put internationaltrade law on the map as a legitimate legal discipline, but also to educatelegions of government officials and lawyers in the United States andaround the world about the complexities of the General Agreement onTariffs and Trade ("GATT") and now, the WTO.For me, the seminal book on the study of the GATT is his 1969 text,World Trade and the Law of GATT. 2 In that book, he took an extremelycomplex set of issues and documents on the workings of the GATT andcreated a new field of international law. His book, The World Trading* Director of the Appellate Body Secretariat, World Trade Organization. Formerly,Canada's Senior Negotiator on the Establishment of the WTO and Dispute Settlement in theUruguay Round, as well as General Counsel, Canadian International Trade Tribunal.1. David Kennedy, The International Style in Postwar Law and Policy, 1994 UTAH L.REv. 7 (1994).2. JOHN H. JACKSON, WORLD TRADE AND THE LAW OF GATT (1969).Michigan Journal of International LawSystem: Law and Policy of International Economic Relations,3 firstpublished in 1989 with the second edition published in 1997, has helpedto cement the study of the GATT as a legitimate field of public interna-tional law.Although John is very well-known for his accomplishments as a le-gal academic, his achievements in shaping and designing the worldtrading system are less well-known. Indeed, he can be credited withhaving sown the seeds of the idea to establish a World Trade Organiza-tion. Strengthening and improving the institutional structure of theGATT system has long been a passion of John's. At the end of the To-kyo Round, he warned us about the problems that the fragmentation ofthe Tokyo Round Codes and the GATT would bring.' In 1989, he wrotean important treatise entitled Restructuring the GAT System,5 whichoutlined the structural weaknesses of the GATT system and called for anew "constitution" for the world trading system based on the establish-ment of the WTO as an international organization. In the fall of 1989,the Royal Institute of International Affairs (the publisher of his treatise)held a conference in London to discuss his ideas. This book, and theconference, caught the attention of key Ambassadors in Geneva as wellas the then Director-General of the GATT, Arthur Dunkel.Inspired, once again, by John's convincing and eloquent prose, Iwrote a paper advocating some of the ideas put forward in his bookwhich was circulated to certain officials in the Department of ExternalAffairs and International Trade in Canada, including to certain advisorsin the office of the then Minister for International Trade, the HonourableJohn Crosbie. Although most of the Canadian government officials in-volved in the Uruguay Round took the view initially that these ideaswere far too ambitious and would never be accepted by the UnitedStates or Japan, the idea of establishing an international organizationcaught the attention of the Minister, Mr. Crosbie. Convinced of the needto have a rules-based system with a strong institutional structure, he alsobelieved that establishing a WTO would enhance the image and im-prove public understanding of the world trading system.I was asked by the Canadian Senior Coordinator for the MTN,Germain Denis, to draft a Canadian position paper explaining why aWorld Trade Organization was necessary in order to administer the3. See JOHN H. JACKSON, THE WORLD TRADING SYSTEM: LAW AND POLICY OF INTER-NATIONAL ECONOMIC RELATIONS (1989) (2d ed. 1997).4. See, in particular, John H. Jackon, The Birth of the GATF-MTN System: A Constitu-tional Appraisal, 12 LAW & POL'Y INT'L Bus. 21 (1980); and John H. Jackson, GovernmentDisputes in International Trade Relations: A Proposal in the Context of GATT, 13 J. WORLDTRADE L. 1 (1979).5. See JOHN H. JACKSON, RESTRUCTURING THE GATT SYSTEM (1989).[Vol. 20:165Tribute to Professor John Jacksonagreements resulting from the Uruguay Round as well as to prepare adraft charter for a new international organization. In performing thesetasks, I sought the assistance of my former professor and mentor, JohnJackson. He very quickly agreed to act as a consultant for the Govern-ment of Canada, both in preparing a document outlining the basicreasons for establishing an international organization and in drafting amodel organizational agreement. John contributed significantly, both inwriting and personally, to the Canadian Government's formulation of itsproposal to create a World Trade Organization. John was the "guru ofhonour" at a special brainstorming meeting hosted by Minister Crosbie,and attended by Sylvia Ostry and a few high-level Canadian officials, inSaint John, Newfoundland, in the Spring of 1990.Two of the background papers I prepared, one setting out the rea-sons for why it was imperative to establish a World Trade Organizationand another on the need for an integrated dispute settlement system,were circulated as Canadian proposals at a G-13 Ministerial Meeting inMexico in May 1990, the first of several high-level meetings held in thelead-up to what was supposed to be the concluding Ministerial Meetingfor the Uruguay Round in Brussels that November. That was followedby a Quadrilateral Senior Officials Meeting (consisting of Canada,United States, Japan and the European Community), hosted by Canada,which took place at Ambassador John Weekes' residence in Geneva inJuly of 1990. At that meeting, three Canadian papers: on the reasons forestablishing a WTO, on the need for an integrated dispute settlementsystem, and on the difficulties of implementing the Uruguay Roundagreements within the existing structure of the GATT system, were dis-cussed.On a parallel, but separate track, certain officials within the Euro-pean Community were also beginning to think seriously about theseinstitutional issues. The Italian Trade Minister at the time, Renato Rug-giero, currently Director-General of the WTO, made public statementsin early 1990 supporting the idea of establishing an organization for in-ternational trade as part of the Uruguay Round agenda. The EuropeanCommunity officially circulated a proposal dedicated to establishing aMultilateral Trade Organization in the fall of 1990, prior to the Novem-ber Ministerial Meeting in Brussels.Promoted vigorously by both Canada and the European Community,the idea of establishing a World Trade Organization, or a MultilateralTrade Organization, as part of the Uruguay Round negotiations provedto be a hard sell initially with other countries. The most that Canada andthe European Community were able to achieve at the Brussels Ministe-rial Meeting, which later failed largely over the agricultural talks, was aWinter 1999]Michigan Journal of International Lawcommitment in the Draft Final Act to negotiate an agreement leading tothe establishment of an organization for the new trading system after theUruguay Round was over. However, as the Uruguay Round negotiationswere not concluded at Brussels in 1990, the idea was picked up in thenegotiations in Geneva in 1991, and a draft Agreement Establishing theMultilateral Trade Organization was included in the Dunkel Draft FinalAct which was produced in late 1991. In the fall of 1991, the then Di-rector-General, Arthur Dunkel, established an Institutional Group,combining the previous Negotiating Groups on Dispute Settlement andFunctioning of the GATT System ("FOGS"), which was chaired byAmbassador Julio Lacarte-Mur6 of Uruguay (now a Member of theWTO Appellate Body and its first Chairman). At Ambassador Lacarte'sinsistence, officials from the European Community and Canada pre-pared a draft text of an Agreement Establishing the MTO, which servedas the basis for negotiations in the Institutional Group in December1991. Professor Jackson contributed a comprehensive draft text of aninstitutional charter to the Canadian Government late that year, but, un-fortunately, by that time, the other text was already in play. TheCanada-EC text was co-sponsored by Mexico, but several other coun-tries (most notably the United States and Japan) were extremelyreluctant about the idea of establishing an organization as part of theUruguay Round package. They also disagreed strongly with some of theprovisions in the Canada-EC draft text, in particular, those relating todecision-making, waivers, amendments and non-application of agree-ments.Institution-building is not easy in the complex system of multilat-eral trade negotiations. After some further refinements of the draftAgreement Establishing the MTO in the Legal Drafting Process con-ducted from January to May 1992, the idea of establishing aninternational organization began to attract wider acceptance among theparticipants in the Uruguay Round. When the United States, under theinfluence of a new administration in December 1992, decided that itcould not support the idea of establishing an international organization,because of domestic concerns about sovereignty, almost all of the otherUruguay Round participants took the firm position that the draftAgreement Establishing the Multilateral Trade Organization was a fun-damental part of the Uruguay Round package and could not be tinkeredwith. Thus, what was only a "glimmer in the eye" of Canada and the ECbefore the Brussels Ministerial Meeting came to be supported by allUruguay Round participants (except for the United States and Switzer-land) by December 1992.[Vol. 20:165Tribute to Professor John JacksonThe two institutional agreements we negotiated in the final years ofthe Uruguay Round: the Marrakesh Agreement Establishing the WorldTrade Organization and the Understanding on Rules and ProceduresGoverning the Settlement of Disputes ("DSU") are not perfect agree-ments. Indeed, if we had taken more of John's suggestions, I am surethat the WTO would have, for one thing, a more workable system formaking important decisions, such as amending the agreements or addingnew agreements. However, we cannot re-write history, and we are veryfortunate that John continues to write and to put forward ideas that offerpragmatic solutions to difficult institutional problems facing the WTO.An early advocate for the development of a "constitution" for theworld trading system, John continues to be the leading legal academicpromoting further constitutional refinements in the WTO. In particular,he has emphasized that the rules for amending the provisions of theWTO Agreement and for adding new agreements require too high athreshold of acceptance by WTO Members to be workable. Also, he hasquestioned whether the rules on decision-making, in particular, the em-phasis on consensus decision-making as a rule may lead to possiblestalemate and inability to act. While the decision-making rule of con-sensus ensures inclusiveness-i.e., that all WTO Members are includedin most decisions, it can also lead to deadlock. Another institutionalweakness of the current system is the lack of an adequate managementstructure that would allow the Ministerial Conference or the GeneralCouncil to establish negotiating priorities and to manage issues in aneffective manner.Never one to rest on his laurels, John continues to be on the cuttingedge of new ideas and new ways to improve the multilateral tradingsystem. He was one of the first to recognize the critical importance ofthe relationship between trade and environmental policies to ensure thatthey are coordinated and not conflicting. He also has been a leadingvoice in the American Bar Association for participation of private coun-sel in WTO dispute settlement proceedings, greater transparency inWTO matters generally, and enhanced participation of "stakeholders"other than Member governments, including non-governmental organi-zations.Not satisfied with having developed a new field of internationallaw, and having been the inspiration behind the establishment (after al-most fifty years) of the World Trade Organization, John is now activelyworking towards integrating, more effectively, the fields of internationaltrade law and public international law. As a true internationalist, Johnhas been instrumental, first, in establishing international trade law as arecognized field of study, and, second, in bringing international tradeWinter 1999]170 Michigan Journal of International Law [Vol. 20:165law into the mainstream of public international law. He is now turninghis efforts towards developing a more integrated international legalsystem, with fewer, more effective, governing bodies and tribunals. Atthe close of this century, it is truly fitting that we pay tribute to a manwho has devoted his life to internationalism and the development of in-ternational economic law.

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A Tribute to John Jackson

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