CAPÍTULO II: MARCO TEÓRICO
2.1. Bases teóricas relacionadas con el tema
2.1.4. Sensores de humedad del suelo (tensiómetro)
2.1.4.2. Metodos y técnicas para medir la humedad del suelo
The degree to which SCM disciplines should be relaxed to provide “special and differential treatment” for developing countries has long been a source of debate among WTO members. While current S&D provisions do not significantly affect the already limited impact of current SCM rules on fishing subsidies, developing-country provisions will need to be included in any new fishing subsidies disciplines (see¶ V.H). A quick review of the current status of S&D provisions thus provides some useful background:
IV.C.1 Synopsis of the SCM’s current S&D provisions:
Article 27 of the SCM sets out several provisions giving developing countries special treatment, including, inter alia(i) exemption from the prohibition on export subsidies of least developed countries, and of other developing countries for a period of eight years,157subject to certain
conditions (i.e., export subsidies may not be increased) and phase-out provisions; (ii) exemption from the prohibition on domestic supply subsidies for five years (eight
years for least developed countries);
(iii) application of a nonexpedited timetable to challenges to otherwise prohibited developing-country subsidies;
(iv) exemption of all developing-country members from the burden-shifting “dark amber” provisions;
(v) limitation of amber light causes of action against developing countries;158
(vi) protection of certain subsidies associated with privatization programs from amber light attack; and
(vii) limitation of national countervailing duty (CVD) actions against developing countries.
IV.C.2 The growing link between the green light and S&D issues:
As is evident from the foregoing, current SCM provisions treat “non-actionable” subsidies in a manner that is quite distinct from the accommodations made for developing countries. As debate has developed over the future of these provisions, however, the sets of issues have become somewhat intertwined. As discussed in the following paragraphs, these linkages have grown mainly out of proposals made by some developing countries for theimprovement and institutionalization of certain S&D concepts. However, from the
157.That is, until December 31, 2003. The “transition period” for certain developing-country export subsidies (especially export processing zones) under SCM Article 27.4 has, however, been conditionally extended until December 31, 2007. SeeWT/MIN(01)/17 (Ministerial Decision of 14 November 2001), ¶ 10.6; and G/SCM/39 (November 20, 2001).
158.SCM Art. 27.9 appears to limit amber light actions against developing countries in two ways. First, it restricts the use of the “serious injury” test to those situations which otherwise would have triggered the “dark amber”
presumptions of Art. 6.1, while removing the presumption itself (i.e., complaining members must prove boththe facts giving rise to at least one of the Art. 6.1 situations andthe existence of serious injury according to the various tests enumerated in Art. 6.3). See Indonesia—Certain Measures Affecting the Automobile Industry, ¶ 14.158 (under Formal WTO Documents/WTO and GATT Cases in References). Second, Art. 27.9 appears to limit claims for nullification or impairment to cases in which a complaining member’s exports into a developing country’s market have been impeded or displaced. This would, among other things, prohibit “non-violation” nullification or impairment claims against developing countries (see¶ V.F.3(e)). There does not appear to have been any WTO case interpreting the
“nullification or impairment” language of Art. 27.9. Claims under the “injury” test of Art. 5(a) do not appear to be limited by Art. 27.9.
perspective of sustainable development the increasing linkage also makes sense, since subsidies that favor sustainable development must by definition support both environmental stewardship and economic development.
(a) Nonactionable subsidies and the “implementation” issues:Many developing- country WTO members have long felt that the “non-actionable” provisions of SCM Article 8 worked to the exclusive benefit of wealthier developed-country members. Many (although perhaps fewer) have also felt that the S&D provisions of Article 27 were insufficient. Accordingly, among the implementation issues brought to Doha by developing countries was a call for certain Article 27 protections to be expanded and made permanent, including by making developmentally positive subsidies nonactionable under Article 8.159The Doha mandate explicitly requires negotiators
to address the question of nonactionable subsidies for developing countries,160and
two delegations have recently called for an exploration of Article 8 as a basis for doing so.161It is interesting that environmentally positive subsidies are among the
developmental subsidies for which green light protection has been sought.162
(b) Continuing skepticism and linkages all around:In parallel with the calls for nonactionable developmental subsidies have come calls for renewing protections for environmentally positive subsidies generally.163These calls have been greeted
with skepticism on the part of some delegations,164and reminders by others that
Article 8 had originally been accepted in conjunction with the now-expired “dark amber” provisions of SCM Article 6.1.165Meanwhile, the United States and the
European Union have clearly reiterated the view that the special treatment of developing-country subsidies in Article 27 should be temporary.166
Current WTO Rules: Overview and Gap Analysis
P A R T I V
IV.C.1–IV.C.2
159.See Compilation of Outstanding Implementation Issues Raised by Members (JOB(01)152/Rev.1, October 27, 2001),
Tiret 64 (under Formal WTO Documents/Other Committees and Processes in References).
160.See(under Formal WTO Documents/Other Committees and Processes in References) Ministerial Decision on
Implementation-Related Issues and Concerns (WT/MIN(01)/17, November 20, 2001), ¶ 10.2, which reads in part:
[The Ministerial Conference] [t]akes note of the proposal to treat measures implemented by developing countries with a view to achieving legitimate development goals, such as regional growth, technology research and development funding, production diversification and development and implementation of environmentally sound methods of production as non-actionable subsidies, and agrees that this issue be addressed in [the context of the Doha Round negotiations].
161.TN/RL/W/41rev.1 (Venezuela and Cuba, March 10, 2003).
162.Seethe text of Ministerial Decisionquoted in fn. 160; see also Compilation(cited in fn. 159), p. 6, third bullet of “Proposals by Least Developed Countries, 22 October 2001.”
163.SeeTN/RL/W/30 (European Communities, November 21, 2002) § 5 (“[I]t may be necessary to address the environmental dimension of subsidies and, in particular, to consider further how to approach subsidies aimed at the protection of the environment, following the expiry of the‘green light’”).
164.See, e.g., TN/RL/W/57 (Egypt, February 10, 2003) (noting the tension between India’s view of Art. 8 and
Venezuela’s readiness to move forward using Art. 8 as a starting point); TN/RL/W/79 (Egypt,March 24, 2003), § 5; TN/RL/W/40 (India, December10, 2002), pp. 1–2.
165.See, e.g., TN/RL/M/2 (Summary Report of Meeting Held on 6 & 8 May 2002), ¶ 7. The summary does not
identify the delegation making this observation, but it is worth recalling that the United States was one of the principal
demandeurswith regard to Art. 6.1, a position it took as a quid pro quo for the EC’s demand for Art. 8. See Inside U.S.
Trade(December 17, 1999).
166.TN/RL/W/30 (European Communities, November 21, 2002), p. 5 (E.C. is willing to consider additional S&D treatment “for a strictly temporary period”); TN/RL/W33 (United States, December 2, 2002). The U.S. paper calls S&D provisions in the SCM “temporary deviations,” and concludes: “We do not believe... it is necessary to expand the special and differential treatment provisions of the Subsidies Agreement. Id.p. 3.
The bottom line:The linkages among the issues surrounding environmental subsidies, developmental subsidies, nonactionable subsidies, and special and differential
treatment will likely be a factor in the rules group negotiations generally, and the negotiations over fishing subsidies in particular, particularly with regard to any proposals for resurrecting a nonactionable category of subsidies.