The method of negotiation adopted by the GATS regime does not lend itself to public scrutiny and openness as the direction in which negotiations may go is determined by how closed-door give-and-take parleys proceed. For example, was the decision of the GOI to place higher education on the GATS list in a “revised offer” after expiry of the deadline for making offers prompted by the promise of a concessionary period for further negotiations regarding agricultural subsidies?
The gravity of this secrecy was highlighted by the Wikileaks exposure in April and July 2014 of the Trade in Services Agreement (TiSA). The absolutely secret negotiations organized under the banner of the Really Good Friends of the Services are taking place outside the WTO-GATS framework since 2012 and are already into their 13th Round! These plurilateral negotiations between 32 countries including the United States of America and the European Union are aimed at strengthening the corporate character of the international trade regime and then imposing it as a fait accompli on the rest of the world. Already there is pressure among some bureaucrats and academicians that India too should join the TiSA negotiations rather than being forced to accept whatever is agreed among the existing countries. However it is also true that Uruguay and Paraguay have recently walked out of the negotiations.
The fact that the working agenda of the Nairobi 10th Ministerial Conference is yet to be communicated has led to the suspicion that the Doha Round will be allowed to lapse with no settlement on its `developmental’ agenda items, like agriculture, which are crucial for developing countries. The development provisions and special conditions listed in GATS for developing countries are not repeated in the leaked core text of TiSA. A totally fresh set of issues generated during plurilateral negotiations would then appear to be imposed internationally.
The terms of the TiSA are harsher than the existing GATS framework.
- Before any commitment GATS requires that a country positively lists/offers a particular sector. TISA stipulates that unless sectors are explicitly excluded by limitation, everything is included. This places a country’s future regulatory capacity at risk of error, omission, unforeseen or unforeseeable conditions, or even a highly liberalising government which can be used to bind the hands of successor governments.
- The definition of `public services’ was already unclear and contestable under GATS. There can be no “discrimination” through public funding and subsidies in favour of public services that are also provided commercially. TiSA demands that any exceptions for health, education, environment, public order and morality etc., are to be established as a defence against a complaint by a service provider and are subject to difficult and time-consuming tests. These have proved to be ineffective safeguards in the WTO.
- The "Necessity test" makes it incumbent on a government to prove that it took the "least restrictive measures" to secure public services. For example, it would have to show that universalisation of essential services, like education or health, is not more "burdensome than necessary".
- Since TiSA presumes that all services, and all ways of supplying them (unless explicitly excluded) are covered by its rule, a "Stand still" clause makes NT and MFN clauses draconian in character. Present and even future trade decisions would have to be determined by past agreements, with any given country, that are already in place. So not only are countries bound by their historical past, but also no trade-restrictive revisions can be made in future even if it is felt that they would be socially beneficial. This makes the TISA agreements virtually irreversible.
- A `Ratchet’ provision further ensures that any future liberalisation of a sector or de-regulatory measures would automatically become part of TISA in terms of NT. Therefore, even "experiments" with TISA de-regulations could not be reversed.
- The leaked Transparency draft reveals that corporations are now demanding not only access to laws, regulations, and rules, but prior access to such information and a “reasonable opportunity” to comment on them before the relevant government body which must respond by providing the rationale for the rules. In this way foreign corporates would be able to directly intervene in domestic policy-making in the host country.
- Investor-State Dispute Settlement (ISDS) Mechanism. Under GATS the fear of being slapped with crippling compensatory payments already intimidates governments from rescinding earlier commitments. TiSA proposes to strengthen the defence of the corporate "right to profit" by allowing corporations to directly sue and bring host countries before an elite, secretive three-person court. If the proposal goes through, countries could perhaps sometimes avoid losing but could never really ‘win’ before such a court. In such a situation governments would be unable to defend the constitutional rights of the people even if they wanted to.
It is clear that the WTO-GATS framework is fundamentally undemocratic. The terminology employed is one of negotiation and consultation but the goal of privatising and de-regulating public services, of subordinating people’s rights to the unrestrained pursuit of profit: a goal that cannot be achieved “democratically”. The productive, socio-cultural and intellectual activities which are the life activities of all communities are fragmented into a series of “services” that are privatized and provided by, or outsourced to, corporate entities. The GATS lists all of these as tradable commodities, making every aspect of human life activity the target of closed-door commercial negotiations. Through a regime of trade agreements, which is today trying to control almost 90% of these services, the WTO-GATS makes it possible for the control over our lives, societies and governments to pass into the hands of the corporations. The leaked TiSA documents leave no room for doubt as to the intent and direction of such “agreements”.
Higher education is a critical area for the success or failure of this enterprise. Since the neoliberal push towards privatisation and commercialisation of education has gained momentum over the past three decades, there has been a concerted effort to bend course structures and syllabi towards acquiring market-oriented skills and managerial competences focused on “learning aims and outcomes”. Critical thinking, which allows one to challenge and radically alter basic assumptions, is being downgraded. The economic crisis engendered by the jobless growth model of development is being used not to oppose the model itself but as the reason for moulding students into a labour force that is being tailored more and more narrowly to meet market needs.
Bringing knowledge as a tradable commodity and education as a tradable service within the GATS regime is a crucial step in this process which must be resolutely opposed. The Indian government must immediately withdraw the offer to commit higher education to the GATS. The policy of privatising and commercialising education and other essential public services must be reversed and the struggle for popular democratic control over the provision and regulation of these basic rights must be strengthened and expanded.
(The author, one of our regular columnists, is also a Member Presidium, of the All India Forum for the Right to Education (AIFRTE)