Antigua attorney speaks out on landmark WTO case
DOJ, USTR keep heads in sand
And what about our other trading partners - the Europeans, the Japanese, and the Chinese? You mentioned at GIGSE that you were in contact with the Europeans on this. Have you talked to the Japanese representative, or the Chinese?
We have spent some time talking to a number of other countries who are either allies or with which we share some common interests. I led a group meeting of the European Union, Japan, Macao, Costa Rica, Canada and India this past week to discuss our joint interests in this case, and in particularly the threats to the system that the United States behaviour poses. For a wee tiny country, we have actually gotten quite a bit of important support in the WTO. While a number of members aren't so hot on the whole issue of gambling, very clearly this case poses a test of the fairness of the overall system, and virtually everyone is following it closely.
The US has really taken the nuclear option on this. I'm sure it's as hard for you to believe as it is for me - I mean, the US spent years negotiating GATS, and they were difficult negotiations. What is left of GATS if the US decides to redefine its own commitments? How far can other nations go in redefining their commitments? I really can't believe that the USTR would throw all that hard work away- there are probably some career guys in there that worked on those negotiations.
Yes, as I noted earlier, it really is unbelievable that the United States would risk the whole system over this case - again, particularly where some ground for compromise existed. A number of countries we have talked to are angry about the hypocrisy on display - in the current Doha round of treaty negotiations, the Americans are apparently really leaning on some smaller countries to liberalise their services commitments, but at the same time, the United States is wanting to limit their own services commitments because a small country has won a WTO case based upon those commitments! The absurdity does not go unnoticed.
What role does the DOJ play in this? The USTR represents the US at the WTO, but they still work with the DOJ on establishing the legal position of the US government, correct? The DOJ has taken a very hardline position on the internet gambling industry, and that seems to be reflected in this case.
In the hours I have spent thinking about this case and the intransigence of the United States I have been searching for a key to why they have chosen this case to be the one where they risk everything they have invested in the WTO's dispute resolution process. And believe me, the process has been very much a "net-winner" to American economic interests. Why risk scuppering something that has worked so well for you and, in fact, is rightly viewed as the most successful International judicial body ever, over this issue?
Again, it really isn't a moral issue. Although you hear a bunch of that nonsense from the halls of Congress, all you need to do is look at gambling in America to know that the morality thing, if it ever was an issue, has long been thrown out the window.
In some ways it is a federalist issue, as the United States is almost unique among nations today in the powers it gives to its member states. On the other hand, the WTO agreements are member-to-member only and countries like Antigua are entitled to look to the central government for redress. That being said, it drawing its commitments schedule to the GATS, the United States could have addressed the gambling issue on a state-by-state basis, as it did in other areas such as financial services and legal services. But here, it did not do that, so whatever a state says about gambling is, from a completely legal perspective, irrelevant to Antigua and its rights under the GATS.
Although I could very easily be wrong, what I have finally concluded is that this case is almost 100 per cent about the DOJ. One or more DOJ members have been present at almost every meeting we have held with the United States over the past four years, at almost every WTO session - their footprint is big in this case. This may sound odd, but I think that this issue - remote gambling - has been hijacked of sorts by a kind of dated old crowd in the DOJ who are still lost in the days of Bugsy Malone and smoky backrooms, when gambling was run by the mob.
Seriously, the one DOJ guy who has been a lingering presence in this case from the beginning even looks and talks like he stepped off a movie set about 50s-era gambling. I think this crowd has gotten the ear of senior DOJ officials, and are not going to budge one bit. And nobody else in the administration has had the courage, fortitude, or perhaps just the interest to take them on over this.
This is particularly more interesting given that until 1998, the official DOJ position was completely different. The official DOJ spokesman said on many occasions in the mid- to late-1990s that United States laws did not cover this kind of gambling service offered from and under the sanction of government in foreign countries. In fact, as we told the WTO as late as 1997, the United States government was affirmatively working with the Antiguan government on ways to ensure the fairness of gaming services and protection of American consumers. For some reason, that all changed in 1998 and this gambling crowd at DOJ has been very successful at establishing the myth of America having "had strong laws against this activity" since forever. As regards licenced, regulated services from foreign countries, the current United States policy is less than ten years old.
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