There are no WTO definitions of “developed” and “developing” countries. Members announce for themselves (the so-called “self-election” principle) whether they are “developed” or “developing” countries. This is considered as a consequence of the principle of sovereignty which includes the right of states to proclaim that they are developing countries and the ensuing obligation of the international community to respect such a unilateral declaration.
However, the WTO website (which is not authoritative), adds surprisingly that :
There are no WTO definitions of “developed” and “developing” countries. Members announce for themselves whether they are “developed” or “developing” countries. However, other members can challenge the decision of a member to make use of provisions available to developing countries.
To our knowledge, such a challenge has never happened in WTO case-law. Moreover, it is doubtful that such a possibility exists. Apart from situations where a List is annexed to a WTO Agreement (e.g. Annex VII of the SCM which defines certain subsets of developing countries for specific purposes), there is no WTO provision which could provide a legal basis for such a challenge nor for a defense against such a challenge. Let us recall that Article 6 of the DSU requires a complainant to “provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly”.
In the Korea Beef case, following the Appellate Body’s report condemning Korea’s practices, the EU, during the discussions at the DSB, noted with surprise that Korea had been treated by the Panel as a developing country for the purposes of the Agreement on Agriculture. The EU underlined its disagreement with Korea’s self-characterization as a developing country. The EU, however, was not a complaining party to this dispute and WTO Panels do not have the legal capacity to decide motu proprio on an issue which the complaining party did not raise.
As we know, following the Buenos-Aires Ministerial Conference, this vexing issue will not magically disappear off the radar in the following years. Whatever one may think of this issue, one thing seems sure presently: The WTO Dispute Settlement Process is not able (on the basis of the present WTO texts) to provide an answer to this issue.