US tries to regulate Caribbean business... againWednesday, March 1, 2006
by Anthony L. Hall
The Bush Administration seems afflicted by congenital tone deafness that has caused it to make a series of embarrassing political missteps at home – including its failure to heed distress calls from victims of Hurricane Katrina in a timely manner, and its reluctance to reveal details about VP Cheney’s accidental shooting of his hunting buddy in Texas.
It’s worth noting, however, that the Bush Administration is not entirely averse to correcting its missteps – as it did recently by retreating from its heavy-handed role as chief enforcer of the OECD’s onerous off-shore banking regulations, which made banking for many Caribbean natives a daily nightmare.
Indeed, given this retreat, one would’ve thought the administration would be loath to assume the role of chief regulator of our gaming operations. Nonetheless, that’s exactly what it’s trying to do, despite Antigua and the WTO. And here’s how:
I do not know who Cohen’s peers were but their advice made both common and legal sense. Unfortunately, the U.S. government thought otherwise and charged him with conspiracy and substantive offenses in violation of 18 U.S.C. § 1084, which prohibits, inter alia, “the use of wire communication facilities to transmit wagers in interstate or foreign commerce.”
Cohen was convicted in 2000 and sentenced to 21 months in jail after his appeal was rejected by the Second Circuit, which held that:
“Defendant violated this statute by using both the Internet and telephones to transmit calls from bettors in New York, where gambling is illegal, to World Sports Exchange in Antigua, where gambling is legal, during which transmissions bets were placed.”
As a Caribbean native, I am concerned about what happened to Mr Cohen. (Although he was probably ill-advised to go on the most popular news program in America, 60 Minutes, to gloat about how his gambling business was affording him a carefree life of easy riches in Antigua.)
I’m even more concerned, however, about what ramifications United States v. Jay Cohen portend for Antigua and every other Caribbean nation where gambling is legally sanctioned.
Because, just last year, Antigua won a “David v. Goliath” decision before the World Trade Organization (WTO), which held not only that Antigua acted within its sovereign authority in granting Cohen his gambling license but also that the U.S.’s “restrictive policies towards online gaming” violated global market access - in so far as they prohibited customers from engaging in a legal commercial activity in a foreign jurisdiction.
Now, if the U.S. had any regard for international law or comity amongst nations, that would have been the end of this matter. Instead, it has refused to comply with the requirements of the WTO decision and show no intention of doing so.
(Indeed, with lobbyists for domestic gaming swarming the halls of Congress handing out campaign contributions, it’s doubtful there’ll be any change in the U.S. position on Internet gambling anytime soon.)
But the government of Antigua should not consider this a national slight. After all, the U.S. government has a notorious record of showing arbitrary and capricious regard for the rule of international law.
For example (and with due deference to its invasion of Iraq), the U.S. violated the Vienna Convention on Consular Relations, which it ratified, when it refused to acknowledge claims by Mexican citizens on death row in America that they were denied the right to meet with Mexican diplomatic officials upon arrest - as mandated by this Convention.
(Mexican national Javier Suárez Medina was executed in 2002 despite the Mexican government’s efforts to vindicate his rights.)
And, the U.S. is currently in violation of WTO trade rules by refusing to ratify the Kyoto Protocol; even though it’s reaping the benefits of these rules by engaging in trade with other countries who are competing under the restrictions imposed by the Protocol.
But I digress…. Except that U.S. intransigence on Kyoto and it’s penchant for ignoring the requirements of international law, demonstrate how pathologically self-interested the U.S. can be in its conduct of international affairs.
Moreover, this record of unilateralism would seem to disabuse any country (especially a relatively small one like Antigua) of any expectation that challenging the U.S. to abide by its international trade obligations would produce anything except condescending indifference.
Yet challenge the U.S. is exactly what Antiguan Ambassador to the WTO, Dr John Ashe, did in his 16 February 2006 letter to U.S. Trade Representative, Rob Portman. Ambassador Ashe entreated the U.S. to comply with the WTO ruling by complaining, in part, that:
“As of today…with less than two months remaining on an 11 month and two week compliance period, to our knowledge no legislation has been introduced into the Congress that would seek to bring the United States into compliance with the recommendations. Further, your government has given no indication to Antigua and Barbuda as to how the United States intends to effect such compliance.”
Frankly, I suspect that Mr. Portman filed the Ambassador’s letter behind all of the other pleadings he’s received from countries around the world complaining about America’s failure to comply with bilateral and international trade obligations.
Even so, I do not think it’s helpful to make veiled threats about taking further actions to “ensure that our people reap the benefits of this historic decision” – as the Ambassador did in this very daring act of public diplomacy. Because it only incites the potentially do or die question:
So, what are ya gonna do?
Alas, the WTO’s decision might prove a hollow victory for Antigua. Because, with the U.S. insisting that online gaming in the Caribbean is a criminal enterprise, banks will refuse to process payments originating from and going to these businesses and Americans will be less inclined to patronize them.
Therefore, here’s what I think is the only pragmatic way Antigua could have dealt with this dispute: It must be recognized from the outset that if Antigua were a member of a properly integrated community of Caribbean nations, the U.S. would have been far more likely to comply with the requirements of the WTO ruling.
Indeed, Dominica, St Vincent and St Lucia would have fared far better against the U.S. in the Banana wars if CARICOM nations could have leveraged integrated power to induce the U.S. to help them negotiate better trade terms for their banana exports vis-à-vis their Latin American competitors - who commanded virtually all of America’s considerable support during theses wars.
Likewise, The Bahamas and other Caribbean countries would have fared far better in dealing with the U.S. and other OECD countries - in negotiating more equitable regulations for off-shore and domestic banking - if CARICOM nations were properly integrated.
Because, just as CARICOM nations leveraged their power and voted en bloc to help Venezuelan President Hugo Chavez elect his preferred candidate, José Miguel Insulza of Chile - as OAS president - over President George Bush’s preferred candidate, Luis Ernesto Derbez of Mexico, so too could they have leverage integrated power to negotiate a more equitable and speedy resolution to this gaming dispute, which ultimately, is a regional, not just an Antiguan, problem.
But Antigua’s pleading alone to get the U.S. to change its position is rather like a flea pricking the butt of an elephant to get it to change its course.
Because unless a country (or a group of countries) can telegraph how its political or economic power can adversely affect the U.S.’s hegemonic interest (e.g. on illegal immigration or drug trafficking), it would be lucky to get even diplomatic niceties in response to such a plea.
Regrettably, the WTO has no power to enforce its rulings. Therefore, the only effective way to force compliance is for countries to implement retaliatory tariffs. And, here again, this leverage is hardly available to a small country, like Antigua, acting alone.
NOTE: Even without CARICOM to pressure the U.S. to comply, it would have been prudent for Antigua to enlist other Caribbean countries like The Bahamas - with a national interest in this dispute - to join it in retaining counsel to counter the lobbying efforts of U.S. (casino) gaming in Washington.
Moreover, given its own considerable online gaming industry, one wonders why the British did not join Antigua in the original WTO case or assisted it in seeking enforcement of the judgment against the U.S. (if only to make amends for showing such ineffectual support for its former colonies during the Banana wars)?Back...