The ‘other GATS negotiations’: domestic regulation and norms

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.

Rules
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

GATS, TRIPS and higher education: projects, politics and prospects

The World Trade Organization (WTO) and two of its agreements, the General Agreement on Trade in Services (GATS) and the Trade Related Intellectual Property Services (TRIPS), have emerged as important features of the global higher education landscape.

However, despite the importance of the WTO and its Agreements, many of us working in the sector have either very little, or at best very sketchy, knowledge about GATS and TRIPS as projects, their politics and what might be the likely prospects for the future. Even our sketchy knowledge tends to be shaped by media images largely around the biennial Ministerial Meetings for the WTO; from clashes with riot police in Seattle in 1999 (see below) to more recent arrests in Hong Kong in 2005.

GlobalHigherEd will carry a series of feature pieces on the WTO’s GATS and TRIPS Agreements, beginning here with a brief outline of the World Trade Organization and the emergence of the GATS and TRIPS Agreements in 1995.

Although the WTO is a new international organization, its origins are rooted in the General Agreement of Trade and Tariffs (GATT) of 1947. In the Uruguay Round of the GATT (1986-1994), it was decided that the international trade rules should pay more attention to the trade of “invisibles”, such as intellectual property, services and knowledge. These elements were more and more important for the world economy and were not covered by the GATT’47. To manage these new complexities, a single trade agreement was not enough. So, it was necessary to create an international organization, the WTO, which contemplated new trade agreements to fill the GATT gap: the TRIPS and the GATS. Currently, the WTO has 151 member countries. These countries have committed themselves to respect the norms and disciplines of the WTO agreements, as well as to promote progressive trade liberalization in the areas covered by the agreements.

In addition to the scope, another important difference between the GATT and the WTO is related to the dispute settlement procedure. The dispute settlement system of the WTO is regarded as much more efficient than the old system because of new procedural innovations. This also makes the WTO more powerful in enforcing trade agreements and consequently obliges member countries to be careful about respecting the content of the trade agreements.

Finally, another important difference between the GATT and the WTO can be found in its political character. In the framework of the WTO, the liberalization principle is stronger than in the original GATT. This Agreement, created in the post-WWII context, instituted a commercial regime of Keynesian embedded liberalism. But the WTO, created in a moment of neoliberal climax, clearly breaks the balance between the global liberalization objective and the capacity of states to deliver their legitimate social purpose. The fact that the WTO covers public services, such as health and education, as well as other public goods such as knowledge, significantly increases the social implications of this political shift in the international trade regime and one that GlobalHigherEd will be exploring in detail.

Both the presence and the politics of the WTO and its embrace of education–including higher education–as a new tradeable services sector is not only far reaching, but has important implications for academics’ everyday work and for how the sector is constructed and regulated. For these reasons, those working in the sector should have at least a working knowledge of the GATS and TRIPS processes so that they can either mediate or intervene in debates. We hope this series  will help you contribute to this debate.

Susan Robertson and Antoni Verger