Indiana University Bloomington (IUB)
Since the creation of the World Trade Organization (WTO), the education community has been reacting harshly against the inclusion of education in the General Agreement on Trade in Services (GATS). That community alleges that the GATS should exclude education from the coverage of the agreement, because the GATS contains an exception for “services supplied in the exercise of governmental services.” Additional criticisms suggested that the GATS would threaten the capacity of WTO Members to provide public funding for domestic higher education, oblige Members to allow foreign education institutions to supply courses and oblige Members to automatically recognize foreign diplomas. To discuss these points, this paper has three main parts: (I) a historical contextualization of the creation of the GATS and the inclusion of the education in it; (II) the conundrum about the legal interpretation of the GATS; and, (III) more briefly, the political context of the higher education liberalization at the WTO. While the first part introduces the topic, in the second part I suggest that, according to the ordinary meaning, a likely interpretation of “services supplied in the exercise of governmental services” will not render higher education out of GATS scope. Nevertheless, the agreement contains mechanisms that allow Members to nullify or mitigate all the alleged negative effects of the GATS. In the final and third part, I show the distinct stands of WTO Members and point out that they have adopted careful positions in their list of GATS commitments concerning education.
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