So let's say Antigua goes ahead with retaliating against the U.S. in the Gambling case. How might the U.S. respond? Here's one suggestion:
A lawyer for a group on intellectual property rights warned on Monday that the tiny island nation of Antigua could face retaliation for ignoring U.S. copyrights.
"If Antigua moves forward, we will work to ensure that its eligibility to participate in any U.S. trade assistance or benefit is withdrawn," Michael Schlesinger, a lawyer for the International Intellectual Property Alliance, said in a phone interview.
I take that to mean the U.S. might, for example, withdraw tariff preferences currently given to Antigua under the Caribbean Basin Initiative.
But can they do that? The tariff preferences themselves would normally violate GATT Article I:1, but they are permitted under a WTO waiver. (The waiver document is G/C/W/611 -- I'm not sure how to link to specific WTO documents under the new WTO docs online system. If anyone knows how, feel free to mention it!). In its Preamble, the waiver refers to the Enabling Clause, in the following way:
Bearing in mind also the 1979 Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries ...;
The Enabling Clause was interpreted in the EC - Tariff Preferences case, and puts some limits on differential treatment of developing countries pursuant to tariff preference programs. Does the reference here to the Enabling Clause mean that in implementing the Caribbean Basin Initiative pursuant to the waiver, the U.S. can't discriminate against particular countries? More specifically, is the U.S. allowed to remove a country from the program due to IP violations?