Civil Society Debate
The intention of GATS is to remove those domestic regulations of major services that are viewed by corporations as ‘constraints’ or barriers to trade. Civil society groups view the agreement as, ‘designed to facilitate international business constraining democratic governance’.31 The WTO defends itself by arguing that:
GATS expressly recognizes the right of members to regulate the supply of services in pursuit of their own policy objectives, and does not seek to influence these objectives. Rather, the agreement establishes a framework of rules to ensure that services regulations are administered in a reasonable, objective and impartial manner and do not constitute unnecessary barriers to trade.32
However, cursory examination of civil society concerns over GATS reflects the perceived disingenuous nature of WTO assurances.33 They are critical of the way in which GATS curtails governments’ regulatory powers and secondly the way in which the agreement may transform the provision of public services that many citizens consider to be the primary role of the state. The Senate Foreign Affairs, Defence and Trade Committees Inquiry into the General Agreement on Trades in Services and the United States Free Trade Agreement found that:
The main argument made by those who are unconvinced about the scope of the exception in Article 1:3 (believing it will be applied narrowly rather than broadly) is that in the economies of most developed countries, a range of public services supplied by governments, such as education and health, are often delivered alongside private sector entities providing similar services or in competition with the government supplier.34
The submission to the inquiry from the Monash University Castan Centre for Human Rights has argued that Article 1:3 only applies to government run monopolies that do not run at a profit and do not provide any charge for any service. This is to avoid the operation of ‘commercial basis’. The Castan Centre states that this will have a significant impact upon the realisation and enjoyment of human rights in Australia as the agreement would thus affect water and power utilities, sewerage and waste disposal, health services, education, telecommunications, prisons and detention centres and security services.35 Further according to the Australian Free Trade and Investment Network:
There is discussion of whether public funding should be treated as unfair subsidies and whether private corporations should have access to public funding through competitive tendering.36
The inquiry also found that the use of ‘nor’ in Article 1.3(b) may indicate that to be exempt from GATS it is required that the service is provided neither on a commercial basis nor in competition with other service providers. The recommendation from the inquiry was that the government clearly defines and makes public its broad interpretation of Article 1:3 of the GATS so that the public is aware of the basis on which future negotiations are undertaken.
Many argue that the GATS is a renovated form of the equally controversial and ill fated Multilateral Agreement on Investment that was negotiated by the OECD members and aimed at significant liberalisation of investment and services:37
it is a duplication of the Multi-lateral Agreement on Investment in many important respects, there’s no question that the hands of government will be tied, that the rights of private sector providers will be massively extended in precisely the way that it was envisaged under the Multilateral Agreement on Investment.38
Australia and the EU, however, continue to counter civil society concerns about privatisation of public services. The EU is comparatively proficient in answering to civil society concerns about its commitments under GATS. It has posted a discussion paper similar to Australia, countering the assertion that it seeks to dismantle public services:
The requests do not seek to dismantle public services, nor to privatise state-owned companies. EU requests… in no way undermine or reduce governments’ ability to regulate pricing, availability and affordability of water supplies as they choose.39
The WTO Secretariat similarly does not shirk from charges that agreements like GATS equate to a loss of policy making capacity in domestic governance. They do not regard GATS as an incursion upon democracy, positing:
Ultimately what counts is whether the balance between some loss of policy space at the national level and the advantages of cooperation and the rule of law at multilateral level is positive or negative. Our view is that it is already a positive for all WTO members and will increasingly be so in the future.40
However, such platitudes are little consolation for service providers such as health services or public libraries. The concern for public libraries is that they are operated on the basis of public funds. Public libraries fall under the UN classification Division 96 Recreational, Cultural and Sporting Services. These UN classifications are the way in which members make GATS commitments (libraries, archives, museums and other cultural services). Some libraries may provide services at cost that may include fees for documents, fees for courses, fees for research services, access to databases or links on web pages or use of library name. It is not clear how such services would be considered in the context of Article 1: 3.
For example, it is difficult to countenance how the services of libraries can be measured against commercial service providers of ostensibly similar services:
Would the GATS consider a for-profit market-research corporation to be in competition with a public library’s reference department? Secondly, a public library provides a basic level of access to information to all sectors of society, regardless of income. A fee based information service provider does not. Can the two entities really be considered in competition with each other when their markets and mandates are so different?41
Recent significant technological developments in libraries also complicate the analysis of the impact of GATS upon public libraries. New technologies in libraries have and will transform the way in which public libraries operate.
Development in technology has brought to the libraries new kind of resources. Digital works such as books, periodicals and other materials are now in libraries’ collections.42
Indeed public libraries have already begun to countenance the implications of these new technologies with the WTO TRIPS agreement and the United States—Australia Free Trade Agreement.
Although traditional library services are not supplied in competition with private suppliers, the picture becomes complicated with regard to the supply of online or digital library services:
the bricks and mortar more traditional library services may be excluded as supplied in the exercise of government authority while on-line and digital information services are not. This coincides of course with the areas of competition with private sector suppliers of e-book and e-library services.43
Canadian Public Libraries have been particularly organised and active in their concerns regarding the impact of GATS upon their services. Canada has listed as their commitments online information and database retrieval, electronic data interchange, and online information and/or data processing (including transaction processing). Though library services have not been listed per se, the commitments of technology and research and development such as research and experimental development services on social sciences and humanities, mean that GATS is likely to have some impact upon library services.44
Similarly, Australian libraries are situated in all levels of educational institutions. They exist in government departments and in judicial institutions such as the High Court, Bar Associations and Supreme Court buildings. Furthermore, public libraries are situated in most Australian cities and towns and are significant community institutions. These public community libraries, for example, provide many services from provision of and free accessibility to information, use of research databases, inter-library borrowing services as well as providing free facilities and resources for community groups and organisations such as the University of the Third Age. It is not inconceivable that future public libraries will involve possibly entry and access fees, or alternatively free entry but a fee-based access to databases and collections. This would transform the nature of public libraries and the role that they play in the Australian community both at the grassroots and in the context of educational institutions. Australia has not made as direct a commitment as Canada on library services, however, from the outset Australia has made broad commitments in private secondary education and tertiary education.