John Jackson and the Rule of Law

Abstract

It is a great honor to offer this tribute to John Jackson as part of the volume that celebrates his immeasurable contributions to international economic law. Those contributions included his magisterial 1969 work on World Trade and the Law of GATT, which became the indispensable legal treatise on the General Agreement on Tariffs and Trade (GATT); his pathbreaking 1977 casebook on Legal Problems of International Economic Relations, now in its sixth edition, which established international economic law as a part of law school curricula worldwide; his tireless promotion of the argument that a new organizational structure for international trade rules was critical, which finally bore fruit with the establishment of the World Trade Organization (WTO); and his legions of students from Michigan and Georgetown, who have played key roles as diplomats, officials, academics, and private practitioners dealing with GATT and WTO issues. My own debt to John is immense. His invitation in 1985 to join his casebook as a co-author at the outset of my academic career launched me on a fascinating path, for which I will ever be grateful beyond expression. Here, I will focus on John’s contributions to the idea that the rule of law applies in international trade under GATT and the WTO. Throughout much of its history, GATT had an ambiguous relationship with the idea of the rule of law. GATT was an agreement, negotiated over several years and with detailed discussions of the meanings of its various provisions. However, it had never come into full force and was applied only ‘provisionally’ until it was terminated after almost fifty years of existence following the formal establishment of the WTO. The officials running the Secretariat, some of whom were lawyers, preferred not to hire lawyers as lawyers, but only as general counsellors. Important GATT parties took the view that GATT was not really an agreement with rules that had to be followed, but rather an agreement to resolve trade disputes through bargaining in good faith. Indeed, the second Director-General of GATT, Olivier Long, who served from 1968 to 1980, authored a book entitled Law and Its Limitations in the GATT Multilateral Trade System that argued in this direction. However, as the GATT dispute settlement system became more active, there was a realization that there was a