As recently discussed by Inu Manak in this blog, the US and the EU have both proposed using objective criteria to clarify the term "developing Member" in the WTO. Of course, these are simply proposals. Developing Members will certainly resist strongly, and insist on the principle of self-selection, so any immediate outcome to such discussions is unlikely at best.
There is however one area where the initial determination does not rest with the invoking country: trade remedies. Under the SCM Agreement (Article 27.10), an imposing Member must apply a higher (2%) de minimis subsidy rate, and a higher negligible import volume, to developing Members. And under the Agreement on Safeguards (Article 9.1), small developing Member suppliers must be excluded from the scope of a measure. Accordingly, I though it might be interesting to see what approaches were taken by users of trade remedies when defining who is (and is not) a developing Member. Here is what I came up with.
The United States position is well known. For CVD purposes, it excludes from its list World Bank “high income” countries (such as Barbados), countries with greater than 0.5% of world trade (such as Brazil, India, Indonesia, Malaysia, Thailand & Viet Nam), OECD members and applicants (such as Chile), G20 members (e.g., Argentina and South Africa), former NMEs (e.g., Armenia & Ukraine) and EU member States (e.g., Romania and Bulgaria).
According to a recent CVD determination on Trout from Turkey (para. 61), the European Union uses its GSP eligibility list (Annex II to Regulation No 978/2012). That list excludes both “high” and “upper-middle” income countries, and in that respect is more restrictive than the US (“upper middle income” countries include Argentina, Brazil, China, Mexico, South Africa, Thailand & Turkey). But it does not use trade shares, G20 or OECD member status as a basis to exclude. Notably, the EU also excludes countries with which it has a “preferential market access arrangement”. Since the EU has a growing number of FTAs with developing countries (such as Vietnam), this exception is significant.
For safeguard purposes, India has its own list of developing countries. Although the list does not explain how the countries were selected, World Bank “high income” countries (such as Barbados, Chile, Equatorial Guinea, Oman, Trinidad & Tobago and Uruguay) are excluded. By contrast, upper-middle income countries like Brazil and Mexico still qualify. It thus appears that this list is based upon World Bank classifications, although the exclusion of Argentina, for example, leaves me a bit perplexed. Perhaps this reflects the fact that the World Bank categories shift over time?
According to the SIMA Handbook (p. 189), Canada "will regard any country as “developing” for trade remedy purposes if it is listed as a least developed country, other low income country or lower middle income country or territory in the OECD DAC (Development Assistance Committee) List of ODA (official development assistance) Recipients." Since the OECD list is based upon World Bank classifications, Canada's approach, like that of the EU, focuses on GNI per capita, and excludes "upper middle income" countries like Argentina, Brazil, Mexico, and South Africa from the list. (Information on Canada updated to reflect helpful input from a reader).
There is certainly a great deal of diversity here. To date, the dispute settlement system has not been required to resolve a debate about developing Member status in order to resolve a dispute, nor is it clear how it could. Hopefully it will never be faced with the issue. It is however clear that the current ad hoc approach is a source of legal uncertainty.