In our previous entries (here and here) in GlobalHigherEd we introduced the World Trade Organization (WTO) and explained the content and implications of the liberalization negotiation within the General Agreement on Trade in Services (GATS). The liberalization negotiation is the most well known activity within the scope of GATS. In fact, very often the GATS and education literature restricts the content of the agreement to its liberalization disciplines (that is, market access and national treatment).
However, other negotiations that are equally relevant to the future of higher education are also taking place, and specifically the negotiations on Domestic Regulation (DR) and Norms.
Discussion on these topics takes place as the logical consequence of the fact that the GATS is an incomplete agreement. In the Uruguay Round, the GATS was designed and signed, but member countries did not reach a consensus in sensitive issues, such as Domestic Regulation (Article VI) and the so-called Norms (Articles X, XIII and XV). So, after Uruguay, two working groups – composed by all WTO member countries – were established with the objective of concluding these articles.
Domestic regulation negotiations
Article VI establishes that the national regulation cannot block the “benefits derived from the GATS” and calls member countries to elaborate disciplines and procedures that contribute to identify those national regulations that states’ impose on foreign services providers that are ‘more burdensome than necessary’. The regulations in question include those associated with:
- qualification issues (for instance, certificates that are required by education services providers),
- technical standards (which can be related to quality assurance mechanisms), and
- licensing requirements (which, in some countries and sectors might refer to conditions and benchmarks on access to the service).
One of the procedures that is being discussed in the framework of the Working Group on DR is a polemical ‘necessity test’. If this instrument is approved, Member States will have to demonstrate, if asked, that certain regulatory measures are totally necessary to achieve certain aims, and that they could not apply any other less trade-restrictive alternative.
In the framework of the Working Group on Rules, three issues are being discussed:
- Emergency Safeward Mechanisms (Article X): These mechanisms, when settled, would permit to countries to retrieve some liberalization commitments – without receiving any sanction – in case that it can be demonstrated that the liberalization experience has had very negative effects. Southern countries are more interested in the achievement of strong mechanisms, while developed countries pushes for softer disciplines.
- Government procurement (Article XIII): The Working Group examines how government procurement could be inserted in the GATS framework. Therefore, transnational services corporations could become public procurement bidders in foreign countries. Developed countries are most interested in strong disciplines in relation to this rule.
- Subsidies (Article XV): In this case, Members are elaborating disciplines to avoid the “distortion to trade” provoked by subsidies.
DR and Rules negotiations are different to the liberalization negotiations in the sense that the former are not developed progressively (i.e. round after round). On the one hand, once each country reaches an agreement, consecutive negotiations on these areas will not be necessary. On the other hand, DR and Norms affect all sectors indiscriminately because, in contrast to liberalization negotiations, they are not negotiated sector by sector.
The outcome of the Working Groups on DR and Rules will thus modify the balance between the legitimate capacity of the states to prosecute certain social objectives (for instance, in relation to the access and quality of public services such as education) and the obligation to guarantee a free trade environment for transnational services providers.
Given the importance of these ‘other’ negotiations in the GATS, our view is that the education community should make sure that they also keep a watchful eye on them. GlobalHigherEd readers might find the information in the periodic publication TradeEducation News, launched by Education International, a useful way of doing this.
Antoni Verger and Susan Robertson