Theft and power by any other name

Antigua’s WTO delegation released a delicious statement yesterday, calling the US to task for its failure to eliminate its Internet gambling ban, as called for in a 2005 WTO decision. I’ll quote it at length:

We would like to draw the attention of the DSB to certain matters expressed by the United States in its statement at the DSB [Dispute Settlement Body] meeting on 28th January. These statements, taken in the context of the US continued non-compliance, now assume alarming proportions. In its statement, the United States said: “if Antigua does proceed with a plan for its government to authorize the theft of intellectual property, it would only serve to hurt Antigua’s own interests. Government-authorized piracy would undermine chances for a settlement that would provide real benefits to Antigua. It also would serve as a major impediment to foreign investment in the Antiguan economy, particularly in high-tech industries.”

We are left to ask ourselves why the United States delegation would employ terms such as “theft of intellectual property” and “Government-authorized piracy” relating to the lawful and expressly authorised use of trade remedies provided for in the WTO agreements. We believe that the intemperate and dismissive language used in this very forum by the delegation of the United States, where the lawful judgment of the Dispute Settlement Board was characterized as theft and its rulings called piracy, is a fundamental challenge to the WTO by its most powerful member. If we were in a different setting, Mr. Chairman, this would be contempt of court.

I don’t know if the Antigua legal team has any critical legal studies students on its staff, but this certainly makes it seem so.

First, there’s the dueling rhetorical battles over what can constitute property and theft. First, the U.S. deems intellectual creations as “property”, even though the notion only exists because of a massive government intervention in the free market. Second, having defined property thusly, the US argues that breaking copyrights is theft. Finally, Antigua rebuts that something can’t be theft if a governance body has authorized it. At the risk of sounding like a grad student (ahem), I will note that this exchange perfectly captures the nature of property as a social construction, which can be and is contested socially.

Second, there’s the debate over the intersection of law and power. The US participated in the 2003-05 case brought by Antigua, presumably because it wants developing countries to consider the WTO dispute settlement process as a type of binding law. But, then, the US doesn’t follow the law. (Let’s set aside for a moment that it’s very odd to have trade tribunals ordering a country’s executive branch to eliminate non-trade regulations approved and defended by the legislative branch.) Antigua then attempts to defend its legal rights, and the US responds with a not-too-subtle extra-legal coercive threat to block investment in Antigua. Antigua cleverly calls the US out on this rhetorical gambit, calling it “a fundamental challenge to the WTO by its most powerful member.”

So is this a law game, or a politics game? Antigua to US: your move.

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