Korea — Radionuclides (DS495)

WTO case memo
Korea – Import Bans, and Testing and Certification Requirements for Radionuclides (DS495)

Photo: Fukushima Dai-ichi Nuclear Power Plant
General case information
Panel report
Appellate Body report
Complainant
Japan
Respondent
Republic of Korea
Third parties
United States; European Union; Norway; New Zealand; India; Russian Federation; Chinese Taipei; China; Guatemala; Canada; Brazil
Request for consultations
21 May 2015
Panel request
20 August 2015
Panel established
28 September 2015
Panel report
22 February 2018
Appellate Body report
not circulated
Measures at issue
After the Fukushima Dai-ichi Nuclear Power Plant (FDNPP) accident on 11 March 2011, the Republic of Korea adopted a number of measures to prevent the entry of contaminated products into the South Korean market. Japan challenged only some those measures, namely (2.112 — 2.114*):
* Hereinafter in parentheses are references to corresponding paragraphs in the panel report.

1. Additional testing requirements dated 2011 for non-fishery products (except livestock) when trace amounts of caesium or iodine are detected.
2. Additional testing requirements dated 2013 for fishery and livestock products when trace amounts of caesium or iodine are detected.
3. Product-specific import bans dated 2012 on Alaska pollock from Fukushima and on Pacific cod from 5 prefectures (Aomori, Iwate, Miyagi, Ibaraki and Fukushima).
4. Blanket import ban dated 2013 on all fishery products from 8 prefectures (Aomori, Chiba, Fukushima, Gunma, Ibaraki, Iwate, Miyagi and Tochigi) for 28 fishery products.

The next table summarizes the chronology of the measures (2.115):


The next figure shows the chronology of the measures in a graphic form. The measures in red below the line are those challenged by Japan (2.116).
Japan's legal claims
Article 5.6 SPS Agreement
The measures at issue are more trade-restrictive than required to achive Korea's appropriate level of protection.

Article 2.3 SPS Agreement
The measures at issue arbitrarily discriminate between WTO Members where similar conditions prevail.

Article 7 SPS Agreement; Annex B(1) and B(3) to SPS Agreement
Announcement of measures by posting press releases on government websites is not enough to discharge Korea's transparency obligations in Annex B(1). In addition, Korea's Enquiry Point's responses did not fulfill Korea's obligations under Annex B(3).

Article 8 SPS Agreement; Annex C to SPS Agreement
The additional testing requirements are in violation of Korea's obligations in relation to procedures:
a) Annex C(1)(a) (non-discrimination in procedures)
b) Annex C(1)(c) (information requirements must be limited to what is necessary);
c) Annex C(1)(e) (no excess requirements for individual specimens);
d) Annex C(1)(g) (non-discrimination in criteria for the siting of facilities and selection of samples).
SPS Agreement
Article 5. Assessment of Risk and Determination of the Appropriate Level
of Sanitary or Phytosanitary Protection
[…]
6. Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary or phytosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility3.

3 For purposes of paragraph 6 of Article 5, a measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade.
[…]
SPS Agreement
Article 2. Basic Rights and Obligations
[…]
3. Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade.
[…]
SPS Agreement
Article 7. Transparency
Members shall notify changes in their sanitary or phytosanitary measures and shall provide information on their sanitary or phytosanitary measures in accordance with the provisions of Annex B.
SPS Agreement
Annex B. TRANSPARENCY OF SANITARY AND PHYTOSANITARY REGULATIONS
Publication of regulations
1. Members shall ensure that all sanitary and phytosanitary regulations5 which have been adopted are published promptly in such a manner as to enable interested Members to become acquainted with
them.

5 Sanitary and phytosanitary measures such as laws, decrees or ordinances which are applicable generally.
[...]
Enquiry points
3. Each Member shall ensure that one enquiry point exists which is responsible for the provision
of answers to all reasonable questions from interested Members as well as for the provision of relevant
documents regarding:
(а) any sanitary or phytosanitary regulations adopted or proposed within its territory;
(b) any control and inspection procedures, production and quarantine treatment, pesticide tolerance and food additive approval procedures, which are operated within its territory;
(с) risk assessment procedures, factors taken into consideration, as well as the determination of the appropriate level of sanitary or phytosanitary protection;
(d) the membership and participation of the Member, or of relevant bodies within its territory, in international and regional sanitary and phytosanitary organizations and systems, as well as in bilateral and multilateral agreements and arrangements within the scope of this Agreement, and the texts of such agreements and arrangements.
[...]
SPS Agreement
Article 8. Control, Inspection and Approval Procedures
Members shall observe the provisions of Annex C in the operation of control, inspection and approval procedures, including national systems for approving the use of additives or for establishing tolerance for contaminants in foods, beverages or feedstuffs, and otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement.
SPS Agreement
Annex C. CONTROL, INSPECTION AND APPROVAL PROCEDURES7
7 Control, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification.
SPS Agreement
Annex C. CONTROL, INSPECTION AND APPROVAL PROCEDURES7
7 Control, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification.

1. Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that:
(а) such procedures are undertaken and completed without undue delay and in no less favourable manner for imported products than for like domestic products;
[...]
SPS Agreement
Annex C. CONTROL, INSPECTION AND APPROVAL PROCEDURES7
7 Control, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification.

1. Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that:
[...]
(с) information requirements are limited to what is necessary for appropriate control, inspection and approval procedures, including for approval of the use of additives or for the establishment of tolerances for contaminants in food, beverages or feedstuffs;
[...]
SPS Agreement
Annex C. CONTROL, INSPECTION AND APPROVAL PROCEDURES7
7 Control, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification.

1. Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that:
[...]
(e) any requirements for control, inspection and approval of individual specimens of a product are limited to what is reasonable and necessary;
[...]
SPS Agreement
Annex C. CONTROL, INSPECTION AND APPROVAL PROCEDURES7
7 Control, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification.

1. Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that:
[...]
(g) the same criteria should be used in the siting of facilities used in the procedures and the selection of samples of imported products as for domestic products so as to minimize the inconvenience to applicants, importers, exporters or their agents;
[...]
Panel's main substantive findings
I. Korea's measures do no fall within the scope of Article 5.7 SPS Agreement as none of the 4 measures meets all the requirements of the Article

Although the first measure (the additional testing requirements in respect of non-fishery products, except livestock, imposed in 2011 soon after the accident) was adopted in a situation where there was insufficient scientific evidence (7.84), it was not reviewed within a reasonable period on time in accordance with information obtained within that period (7.110).

The remaining three measures (the product-specific bans of 2012 on imports from 5 prefectures, the blanket import ban of 2013 on imports of 28 fishery products from 8 prefectures, and the additional testing requirements of 2013 in respect of fishery products and livestock) were adopted in a situation where there was not insufficient scientific evidence to conduct a risk assessment (7.96, 7.108) and were not reviewed within a reasonable period of time (7.110).

In addition, the blanket import ban of 2013 and the additional testing requirements of 2013 in respect of fishery and livestock products were not based on available pertinent information (7.109).

More about the parties' arguments and the panel's reasoning on this issue
SPS Agreement
Article 5. Assessment of Risk and Determination of the Appropriate Level
of Sanitary or Phytosanitary Protection
[…]
7. In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.
[…]
Do Korea's measures fall within the scope of Article 5.7 SPS Agreement?

Korea argued there was insufficient scientific evidence to conduct an adequate assessment of the risks of consuming Japanese food products contaminated with radionuclides released from the FDNPP. Korea did not argue that there was insufficient scientific evidence to determine the risk of radionuclides to human health or how to test for radionuclides in food products to ensure they are below established levels, but rather that the information is insufficient to know the extent of the release of radionuclides during and after the Fukushima Dai-ichi accident (7.79).

In particular, Korea pointed to the insufficiency of the following data (7.80):
  • the amount and types of radionuclides (particularly radionuclides other than caesium) released during the FDNPP accident;
  • the amount and type of radionuclides released since the FDNPP accident;
  • the types and amount of radionuclides remaining at the FDNPP;
  • the status of the radioactive material remaining in the FDNPP;
  • the likelihood of future releases of radioactive materials into the ocean;
  • the amount and type of radionuclides on land and in the ocean off the coast of Japan;
  • the amount and type of radionuclides in the seabed;
  • the amount and type of radionuclides ingested by marine species living in the ocean off the coast of Japan;
  • the relationship between caesium and other radionuclides.
Korea further argued that the data collected as part of Japan's food monitoring programme were of limited usefulness and representativeness for purposes of conducting a proper risk assessment. Korea argued that information on radionuclides other than caesium was insufficient due to the unique features of the FDNPP accident, including ongoing spills of liquid radioactive waste, making Japan's estimates of amounts of strontium, based on the assumption of a constant ratio between Sr-90 and Cs-137, unwarranted (7.81).

Japan submitted that there was no relevant uncertainty or insufficiency in the scientific evidence that would justify discrimination against Japanese food products or that would render necessary the trade restrictions imposed on these products. According to Japan, Korea has failed to assess the relevant scientific evidence and 'seems intent on ignoring the extensive scientific evidence'. Japan cites reports from UNSCEAR (United Nations Scientific Committee on the Effects of Atomic Radiation), from the IAEA, and from the WHO, as well as a joint review by the IAEA and the FAO. According to Japan, Korea's choice not to consider the available scientific evidence does not refute the existence of that evidence (7.82).

The panel deemed that, since situation with sufficiency of evidence evolved over time, it should examine such sufficiency for each specific measure at the time of its adoption (7.83). Noting that regulators were uncertain about the extent of the accident and in particular, what radionuclides had been released into the environment and in what amounts, the panel agreed with Japan that the additional testing requirements of 2011 in respect of non-fishery products, except livestock, had been adopted in a situation where there was insufficient scientific evidence (7.84).

The panel reminded that the product-specific import bans imposed by Korea in 2012 (namely those on Alaska pollock from Fukushima and Pacific cod from Aomori, Iwate, Miyagi, Ibaraki, and Fukushima) mirrored those internal restrictions imposed by Japan. Japan imposed (and then removed) these measures based on an assessment from its Food Safety Commission on the levels of radiation in food that would have an impact on health in combination with monitoring data on the specific products in specific prefectures. Korea itself, states that it relied on Japan's conclusions in crafting its measures (7.86).

In 2013, Korea tightened its existing measures by instituting a blanket import ban on all fishery products from eight prefectures as well as extending the additional testing requirements to fishery and livestock products. These measures were a response to the disclosure, in July 2013, of leaks at the FDNPP. Both parties agree that there have been leaks at the FDNPP since the initial accident in March 2011 (7.87).

Korea argues that there are undisclosed amounts of leaks of radionuclides and that this uncertainty about the total amount released means that there is insufficient scientific evidence to conduct a risk assessment (7.88).

However, the experts resorted to by the panel reiterated that the best way to know what is in food consumed is by testing it. Uncertainty about the amounts of radionuclides and relative share of different radionuclides released in the FDNPP accident is not an important issue as it is far more useful to perform measurements on the foods. Models extrapolated from measured levels in the environment should only be used if measurement in food is not possible. Also, because the total amounts of later releases were much smaller than the initial release, the uncertainties surrounding them are much smaller as well. Such uncertainties could not prevent sound conclusions being reached about the potential levels of contamination in foods (7.92).

The panel
deemed that the same reasoning applied to Korea's arguments with respect to uncertainty about:
  • the amounts of radionuclides remaining in the reactor;
  • environmental contamination levels in seawater, sediment, soil and air;
  • if there was a significant new leak;
  • the potential presence of caesium-rich microparticles in soil;
  • radionuclide deposits in river catchments, marine estuaries, and coastal areas.
The experts all indicated that such information is not critical to an assessment of the risk to humans from consumption of food containing radionuclides. The panel recalled that Korea's measures were not meant to protect from environmental exposure to radionuclides, but rather to protect Korean consumers from exposure to products containing levels of radionuclides in excess of Korea's appropriate level of protection as expressed through its established tolerance levels. Therefore, Korea's concerns are not directly related to Korea's ability to conduct a risk assessment for the risk being addressed – exposure to radionuclides through consumption of contaminated food. The experts confirmed unanimously that such environmental information is irrelevant to a determination of the contamination levels in particular food products (7.93).

Korea also referred to insufficiency in scientific evidence that is not related to existing contamination, but about potential future contamination. For example, Korea argues that the evidence is insufficient with respect to the types, amount and status of radionuclides remaining in the FDNPP and the likelihood of future releases of radioactive materials into the ocean (7.95).

The panel said it was sensitive to Koreas fears in this respect, but pointed out that, first, Japan provides detailed, frequent, and public seawater monitoring data that is available around the FDNPP port in addition to the publicly available food monitoring data and ERD (Environmental Radioactivity Database) data; it would therefore be expected that any significant new leak would be detected quickly and enable Japanese and Korean authorities to respond appropriately. And second, that such a risk is not limited to Fukushima Dai-ichi, but may happen to any nuclear power plant at any time. This is precisely the kind of inherent and permanent uncertainty that Article 5.7 was not meant to address as this uncertainty does not relate to the science necessary to assess the risks associated with the consumption of contaminated food, but rather to the inherent uncertainty of life. At the same time, if another incident were to occur, Korea would be within its rights to re-evaluate the sanitary risk posed by food products affected by that incident and impose appropriate SPS measures (7.95, 7.108).

The panel also found that, contrary to what a WTO Member imposing an SPS measure would have to do in order for Article 5.7 to apply, Korea:
  • did not base the blanket import ban and the 2013 additional testing requirements on available pertinent information (7.109);
  • did not review any of the measures within a reasonable period of time (7.110).
As none of the four measures adopted by Korea and challenged by Japan meets all of the requirements of applicability of Article 5.7 (in particular, even the additional testing requirements of 2011, which, as the panel found, had been adopted in a situation of insufficient scientific evidence, was not reviewed within a reasonable period of time), these measures do not fall within the scope of Article 5.7.
II. At the time of panel establishment (28 September 2015 г.) all the 4 measures at issue were, and continue to be, inconsistent with Article 5.6 SPS Agreement

Japan proposed a single alternative measure with respect to all the challenged measures imposed by Korea – namely, testing for caesium to verify that the products' caesium content does not exceed Korea's level of 100 Bq/kg (as a means to control both caesium contamination and contamination from additional radionuclides) and refusing entry to products with caesium content above 100 Bq/kg (7.120).

In other words, Japan's proposed alternative implies dropping the additional testing requirements and, even more so, the import bans.

The panel found that Korea's ALOP could be formulated as follows: 'To maintain radioactivity levels in food consumed by Korean consumers at levels that exist in the ordinary environment – in the absence of radiation from a major nuclear accident – and thus maintain levels of radioactive contamination in food that are "as low as reasonably achievable" (ALARA), below the 1 mSv/year radiation dose limit' (7.172).

The panel concluded that the alternative measure proposed by Japan is:
1. technically and economically feasible;
2. significantly less trade-restrictive;
3. since 2013 года (but not sooner — due to insufficiency of scientific evidence immediately after the accident in 2011 and sufficiency of evidence in 2012 to conclude that products at issue from some prefectures were not safe) would have achieved Korea's appropriate level of protection (exposure to radiation from food at a level below 1 mSv/year, and likely significantly lower) – with one exception. The panel noted that throughout 2013, Japan maintained distribution restrictions on Pacific cod from Fukushima and Ibaraki, because Japan considered it to be unsafe for distribution. For this reason, the panel found that Japan's proposed alternative would not have achieved Korea's ALOP with regard to Pacific cod from Fukushima and Ibaraki (7.251).

In view of this, the panel found that:

1. Korea's 2011 additional testing requirements and 2012 product-specific import bans were not more trade-restrictive than required when adopted. However, at the time of the establishment of the Panel (28 September 2015), they were maintained inconsistently with Article 5.6 of the SPS Agreement because they are more trade-restrictive than required (7.254).

2. The 2013 additional testing requirements were adopted and maintained inconsistently with Article 5.6 of the SPS Agreement because they were and are more trade-restrictive than required (7.255).

3. The blanket import ban at the time of its adoption (with the exception of the bans on Pacific cod originating from Fukushima and Ibaraki) and at the time of panel establishment (without exceptions) was, and continues to be, inconsistent with Article 5.6 of the SPS Agreement because it was, and continues to be, more trade-restrictive than required (7.256).

More about the parties' arguments and the panel's reasoning on this issue
Becquerel
A derived unit of radioactivity in the International System of Units (SI). Bq/kg is the unit of radioactivity per one kilogram of radioactive material.
Sievert, millisievert
A derived unit of ionizing radiation dose in the International System of Units (SI).
Whether Korea's measures are more trade-restrictive than required to achieve Korea's appropriate level of protection (violation of Article 5.6 SPS Agreement)

To answer this question, the panel is to establish, for each of the measurs at issue, whether an alternative measure exists which:
  • is reasonably available to Korea, taking into account technical and economic feasibility;
  • achieves Korea's appropriate level of sanitary protection; and
  • is significantly less restrictive to trade than the sanitary measure contested (7.116)
Japan proposed a single alternative measure with respect to all the challenged measures imposed by Korea – namely, testing for caesium to verify that the products' caesium content does not exceed Korea's level of 100 Bq/kg (as a means to control both caesium contamination and contamination from additional radionuclides) and refusing entry to products with caesium content above 100 Bq/kg. According to Japan, testing for caesium alone would be sufficient to ensure that Korean's exposure to radionuclides through the consumption of food would be below 1 mSv/year so long as caesium levels in Japanese imports were below 100 Bq/kg. Japan had calculated that applying this limit to imports would result in an estimated maximum exposure dose of 0.8 mSv/year (0.94 mSv/year in the worst case scenario) (7.120).

  • Technical and economic feasibility
The panel stated that, since Korea already undertakes caesium and iodine testing on randomly selected samples from every consignment of Japanese products that cross its border, in the absence of any refutation of Japan's prima facie case that Korea is perfectly capable technically and economically of conducting caesium and iodine testing on every consignment of Japanese food products, Japan has established that the proposed alternative measure is technically and economically feasible (7.149).

  • Whether Japan's proposed alternative measure is significantly less trade-restrictive than Korea's measures
Korea did not contest that Japan's alternative measure would be less trade restrictive than an import ban. However, Korea did argue that the proposed alternative was not significantly less trade restrictive than the additional testing requirements in place (7.150).

In this respect, Japan challenged the requirement to test for additional radionuclides if the caesium or iodine content is more than 0.5 but below 100 Bq/kg. In Japan's view this additional testing is unnecessary from a sanitary protection point of view and is trade restrictive because of the additional time and cost associated with the testing. Japan argueed that it amounts to a de facto prohibition on imports (7.151).

Japan provided the Panel with evidence (based on a press release from Korea's Ministry of Oceans and Fisheries) to support its claim that the cost of the additional testing if conducted in Korea would be roughly half the value of the average consignment of fishery products exported from Japan to Korea (8,000 USD). Japan argued that exporters would incur increased storage costs in Korea while awaiting test results or a more likely alternative to avoid deterioration of perishable goods would be for them to opt to ship the consignment back to Japan for sale on the domestic market. Thus, Japan argued that the additional testing requirements makes it virtually impossible to market fresh food products in Korea, in which trace amounts of caesium and iodine have been detected (7.154).

The panel noted that the above mentioned press released indeed says that testing for other radionuclides takes more than six weeks and due to increased storage costs and deterioration of merchantability, the item is generally shipped back (footnote 681). According to the panel, the facts referred to in the press release confirm the highly trade-restrictive nature of the additional testing requirements (7.154).

The Panel found, in the absence of any refutation of Japan's prima facie case as to the additional cost and time required for the additional testing that the proposed alternative measure is significantly less trade restrictive than the additional testing requirements (7.156).

  • Whether Japan's proposed alternative achieves Korea's appropriate level of protection (ALOP)
Korea's ALOP
Japan averred that Korea's ALOP is 1 mSv/year (7.161).

Korea described its ALOP as to maintain radioactivity levels in food consumed by Koreans "at levels that exist in the ordinary environment – that is, in the absence of radiation from a major nuclear accident – and thus maintain levels of radioactive contamination in food that are "'as low as reasonably achievable' (ALARA)" (7.162).

Korea maintained that its ALOP 'is not a fixed quantitative threshold but instead aims to achieve a high to very high level of protection below the 1 mSv/year dose limit'. The 1 mSv/year dose limit is not its ALOP, but rather the upper bound of the 'tolerable' level of risk while its ALOP is a level below that limit that is reflected by the ALARA principle (7.163).

The panel ultimately found that Korea's ALOP could be formulated as follows:
'To maintain radioactivity levels in food consumed by Korean consumers at levels that exist in the ordinary environment – in the absence of radiation from a major nuclear accident – and thus maintain levels of radioactive contamination in food that are "as low as reasonably achievable" (ALARA), below the 1 mSv/year radiation dose limit'. (7.172).

Level of protection achieved by Japan's proposed alternative
The panel said that in determining whether Japan's proposed alternative measure achieves Korea's ALOP, the Panel would examine (7.178):
  • the identification and characterization of the contaminants at issue;
  • the levels of contaminants in Japanese food products;
  • the extent to which Korean consumers will be exposed to radionuclides through their diet if Japan's alternative measure is adopted;
  • risk characterization.
As part of this analysis, the experts resorted to by the panel unanimously stated that various test results produced by Japan provide a statistically valid support for the contention that agricultural and fishery products containing less than 100 Bq/kg of caesium would contain the additional Codex radionuclides below or far below their tolerance levels. One of the experts noted that the sampling frequency and the relative coverage of the different food products exceeds by far what is foreseen in Europe for the case of surveillance 5 years after a nuclear accident. (7.205, 7.225).

The experts also stated that, even if the market share of Japanese products in the Korean food market were to return to the level before the accident (0.37%), the data supports a conclusion that this would still result in a dietary exposure of less than 1 mSv/year. Specifically, even if Japanese imports to Korea increase, such that all fishery products come from Japan, the dose from consumption of these products will still be very low (7.237).

Based of, inter alia, these data, the panel made the following conclusions:
  • Since, as the panel had established, at the time of the adoption of the 2011 additional testing requirements insufficient data were available to reach conclusions on the levels of radionuclides in Japanese products (in particular, the data were not sufficient to support the conclusion that levels of strontium and plutonium would normally have been lower than levels of caesium in products and that testing for 100 Bq/kg of caesium would have ensured that the levels of the other radionuclides were below their Codex Alimentarius guideline levels), the panel cannot conclude that at the time the 2011 additional testing requirements were adopted Japan's alternative measure would have ensured human exposure below the 1 mSv/year dose limit (7.242).
  • Likewise, since, as the panel had established, the evidence was sufficient to justify imposition of the product-specific bans in 2012 (in particular, Japan had conducted its own risk assessment and determined that the products were not safe for distribution)1, the evidence does not support a conclusion that Japan's alternative measure would achieve 1 mSv/year in 2012 for Alaska pollock and Pacific cod from the five relevant prefectures (7.242).
  • However, at least since 2013, testing for caesium and prohibiting imports with caesium content above 100 Bq/kg is sufficient to prevent imports of products containing other radionuclides at levels above tolerance. In particular, the data of actual measurements of levels of radionuclides in foods confirm that caesium is consistently present in greater quantities than strontium and that plutonium is extremely low and unable to be distinguished from pre-existing background levels in the Pacific from weapons testing. Since it is impossible to test every fish, a measure such as the one proposed by Japan can be considered as reasonable once there is sufficient confidence that the monitoring data shows that levels are consistently low such that testing of samples from every consignments will be sufficient to detect any shipments containing products in excess of the limits or that the number of products in excess will be so low as to have no significant impact on the exposure dose (7.243).
  • Therefore, utilizing Japan's alternative measure would result in a dose below 1 mSv/year even if 100% of food consumed was of Japanese origin. Given that Japanese food products represent a small share of the Korean market, their expected contribution to Korean consumers' dose would be significantly lower (7.244).
1 The panel had not mentioned earlier in its report that the evidence was sufficient to justify imposition of the product-specific bans in 2012. It had only found that the scientific evidence in 2012 'was not insufficient' for a risk assessment.

General conclusion on ALOP
The panel
concluded that since 2013 Japan's alternative measure would achieve a maximum level of exposure below 1 mSv/year and likely significantly lower with respect to the products subject to the additional testing requirements (both those adopted in 2011 and in 2013) as well as for all the fishery products subject to the product-specific bans and the blanket import ban, with one exception. The panel noted that throughout 2013 Japan maintained distribution restrictions on Pacific cod from Fukushima and Ibaraki, because Japan considered it to be unsafe for distribution2. For this reason, the panel found that Japan had established that the suggested alternative measure achieves Korea's ALOP with regard to the adoption of the 2013 additional testing requirements and import bans on the 28 fishery products, with the exception of Pacific cod from Fukushima and Ibaraki (7.251).

2 Another unexpected observation not mentioned in the report earlier.

General conclusion on Article 5.6
The panel
concluded that Japan had proposed another measure that is technically available and economically feasible and is significantly less trade restrictive than Korea's measures at issue. The alternative measure would not have met Korea's level of protection at the time the 2011 additional testing requirements and the product-specific bans were adopted. Similarly, it would not have achieved Korea's ALOP for Pacific cod from Fukushima and Ibaraki at the time the 2013 blanket import ban was adopted. With respect to the 2013 additional testing requirements and the other fishery products and prefectures subject to the blanket import ban, Japan's alternative measure would have achieved Korea's ALOP at the time the measures were adopted.
In any event, for all the measures, Japan's alternative measure would have achieved Korea's ALOP at the time of the establishment of the Panel and continue to do so to this date (7.253)

Therefore:
  1. Korea's 2011 additional testing requirements and 2012 product-specific import bans were not more trade-restrictive than required when adopted. However, at the time of the establishment of the Panel, they were maintained inconsistently with Article 5.6 of the SPS Agreement because they are more trade-restrictive than required (7.254).
  2. The 2013 additional testing requirements were adopted and maintained inconsistently with Article 5.6 of the SPS Agreement because they were and are more trade-restrictive than required (7.255).
  3. The blanket import ban at the time of its adoption (with the exception of the bans on Pacific cod originating from Fukushima and Ibaraki) and at the time of panel establishment (without exceptions) was, and continues to be, inconsistent with Article 5.6 of the SPS Agreement because it was, and continues to be, more trade-restrictive than required (7.256).
III. At the time of panel establishment (28 September 2015 г.) all the 4 measures at issue were, and continue to be, inconsistent with Article 2.3 SPS Agreement

The panel deemed that in this case, the relevant conditions to be compared between Members for the purpose of determining whether conditions are similar within the meaning of Article 2.3 is whether products from Japan and the rest of the world have a similar potential to be contaminated with the 20 Codex Alimentarius radionuclides, in particular with caesium, iodine, strontium and plutonium (the main radionuclides released into the environment as a result of the FDNPP accident), and whether the levels of contamination would be below Korea's tolerance levels (7.283).

The panel found that Japan had failed to meet its burden of proof with respect to the existence of similar conditions in Japanese and non-Japanese products at the time of adoption of the 2011 additional testing requirements for agricultural products (except livestock), processed foods and food additives — among other things, because Japan admitted that during that period caesium levels in food from the most affected areas of Japan had 'increased considerably' (7.301).

Similarly, Japan did not meet the burden of proof to establish its factual assertion that the potential for radionuclide contamination in Pacific cod and Alaska pollock from the relevant prefectures in 2012 were below Korea's tolerance levels. This is because, in particular, that Korea's restrictions of 2012 had followed Japan's introduction of its own internal restrictions on distribution of these two fishery products from the same prefectures because caesium levels detected in samples had been in excess of the tolerance level of 100 Bq/kg. (7.302).

However, at the time of panel establishment in 2015, similar conditions existed in Japan and in other Members for all food products, including the 28 fishery products (7.321). In particular, the experts confirmed that the data provided by Japan reasonably supported a conclusion that by 2015 the levels of caesium concentration in Japanese food had generally returned to levels below 100 Bq/kg. Korea admitted in that regard that none of over 188,000 consignments of Japanese food imported into Korea contained caesium in excess of 100 Bq/kg (7.309).

In these conditions, the maintenance of the product-specific bans on Pacific cod and Alaska pollock, as well as the 2013 blanket import ban for all 28 fishery products from all 8 prefectures, afford discriminatory treatment to Japanese products (7.325). Since these bans, in the view of the panel, have no rational connection with the measures' stated purpose of protecting Korean consumers against the risk posed by radionuclides in food in excess of Korea's tolerance levels, this discrimination is arbitrary or unjustifiable (7.343, 7.349) and is therefore in violation of Article 2.3 SPS Agreement (7.360).

Similarly, the maintenance of the additional testing requirements is discriminatory because:
(a) while every consignment of Japanese food, in which more than 0.5 Bq/kg of caesium or iodine has been detected, is subjected to additional testing regardless of the type of food involved, only the 150 most frequently consumed products of other origins undergo additional testing (7.329, 7.330);
(b) Japanese products may be tested both at the border and at the point of sale, while products of other origins are tested only at the point of sale, which doubles the burden on Japanese imports as compared to Korean and third-party products (7.330).

Since, in the view of the panel, there is no rational conntection between this discrimination and the stated regulatory objective of the measure, this discrimination is arbitrary or unjustifiable (7.352-7.355) and is therefore in violation of Article 2.3 SPS Agreement (7.360).

More about the parties' arguments and the panel's reasoning on this issue
Whether Korea's measures arbitrarily or unjustifiably discriminate between WTO Members where identical or similar conditions prevail (violation of Article 2.3 SPS Agreement)

Japan claimed that Korea's import bans and additional testing requirements are inconsistent with Article 2.3 of the SPS Agreement, because they arbitrarily or unjustifiably discriminate against Japanese products and they constitute a disguised restriction on international trade. Japan maintains in that regard that the conditions of food products imported from Japan and products of other origins, though not identical, are nonetheless similar, because they pose similar SPS risks regulated by Korea's measures (7.258). Specifically, products from Japan and from other origins have similar absolute contamination levels that fall well within Korea's chosen tolerance limits (7.277).

Korea, on the other hand, contended that the relevant conditions are not similar between Japan and other Members and any distinction drawn by the measures is rationally connected to the differences in the conditions prevailing in the territories of the Members concerned (7.258). According to Korea, the appropriate basis of comparison is the conditions prevailing in the territory of Japan and other countries, rather than whether products imported from Japan and other countries pose similar risks (7.264).

The panel recalled, however, that prior panels had found that the relevant conditions could be determined by the product risk being addressed as described in the objective of the challenged measure (7.266, 7.270). The panel deemed that in this case, the relevant conditions to be compared between Members for the purpose of determining whether conditions are similar within the meaning of Article 2.3 is whether products from Japan and the rest of the world have a similar potential to be contaminated with the 20 Codex Alimentarius radionuclides, in particular with caesium, iodine, strontium and plutonium (the main radionuclides released into the environment as a result of the FDNPP accident), and whether the levels of contamination would be below Korea's tolerance levels (7.283).

The panel noted that prior to the FDNPP accident, there were major releases of man-made radionuclides, which contaminated the global environment. The fallout from nuclear weapons testing is responsible for the most radioactive material distributed globally. The accident in the Chernobyl nuclear power plant in 1986 was another major source of global radioactive contamination, although it had a particularly strong impact on Europe. The radioactive material, mainly caesium, released to the atmosphere from the FDNPP also contributed to global contamination levels, although the fallout has affected the East and North of Japan the most. Caesium and, to a much lesser extent, strontium and plutonium discharged to the ocean from the FDNPP were largely dispersed by sea currents and added to existing concentration levels in the Northern Pacific. Given their properties, it is expected that some amounts of these radionuclides were bound to particles, sunk and settled in sediments off the Fukushima coast. This would also be true for areas close to the other primary sources of contamination. In sum, although radionuclides can be more concentrated close to the source of contamination, the radioactive material originating from all of these events has been dispersed across the world depending on the atmospheric transport, precipitation, sea currents, as well as physical and chemical characteristics of specific isotopes (7.291).

In light of this, the Panel concluded that past releases of radionuclides to the environment continue to affect food products and mean that food from anywhere in the world has the potential to be contaminated with radionuclides (7.298).

Having made this conclusion, the panel went on to examine the specific measures and the products they apply to.

The panel found that Japan had failed to meet its burden of proof with respect to the existence of similar conditions in Japanese and non-Japanese products at the time of adoption of the 2011 additional testing requirements for agricultural products (except livestock), processed foods and food additives — among other things, because Japan admitted that during that period caesium levels in food from the most affected areas of Japan had 'increased considerably' (7.301).

With respect to the adoption of the product-specific import bans on Pacific cod and Alaska pollock from five Japanese prefectures in 2012, the panel noted that they had followed Japan's introduction of its own internal restrictions on distribution of these two fishery products from the same prefectures because caesium levels detected in samples had been in excess of the tolerance level of 100 Bq/kg. The Panel therefore found that Japan had not met the burden of proof to establish its factual assertion that the potential for radionuclide contamination in Pacific cod and Alaska pollock from the relevant prefectures in 2012 were below Korea's tolerance levels (7.302).

With regard to the adoption by Korea of the blanket import ban in 2013, the panel, having reviewed the sampling data provided from MAFF (Ministry of Agriculture, Forestry and Fisheries) and MHLW (Ministry of Health, Labour and Welfare) for the 28 fishery products for each of the affected prefectures, concluded that the caesium content measured in all fishery products covered by Japan's claim, except Pacific cod, was at that time consistently below the tolerance level of 100 Bq/kg. As regards Pacific cod specifically, 4 samples from Fukushima and 2 from Ibaraki tested in the three quarters preceding adoption of the blanket import ban exceeded Korea's tolerance level. At the same time, Japan maintained its own restrictions on Pacific cod from those two prefectures. Therefore, the Panel found that the potential caesium contamination of 27 of the fishery products from all 8 prefectures and Pacific cod from Aomori, Chiba, Gunma, Iwate, Miyagi and Tochigi was below the 100 Bq/kg tolerance level. However, Japan has not met its burden of proof to establish the same factual assertion with regard to Pacific cod from Fukushima and Ibaraki in 2013 (7.303).

Finally, in 2013 the additional testing requirements were extended to fishery and livestock products. Thus, since September 2013 the measure applies to essentially all food – fishery, livestock, and agricultural products; processed food; and food additives (7.304). At the time the measure was adopted, in general, less than 1% of samples were found to exceed the caesium tolerance level of 100 Bq/kg for all product categories from all Japanese prefectures taken as a whole and for most of the different classes of food the measures apply to, taken individually, the main exception being game meat. The panel therefore concluded that, at the time of adoption of the addiitonal testing requirements in 2013, in general, the levels of caesium contamination in all Japanese food products were below 100 Bq/kg (7.305-7.306).

With respect to the maintenance of the import bans, the MHLW and MAFF data shows that since 3 October 2013, none of the tests of the 28 fishery products covered by Japan's claim from any Japanese prefecture detected caesium in excess of the 100 Bq/kg level. A single sample of Pacific cod was measured to contain 100 Bq/kg in March 2014, but the vast majority of samples of the 28 fishery products tested since October 2013 contained between 0 and 25 Bq/kg of caesium. The Panel recognized that on certain occasions, the radionuclide content measured in samples of Japanese fish was higher than Korea's tolerance levels. However, several of these fishery products (black porgy, sea bass, stone flounder, and masou salmon) are not subject to Japan's claim and will remain banned regardless of the outcome of this dispute (7.307).

The experts confirmed that the data provided by Japan reasonably supported a conclusion that by 2015 the levels of caesium concentration in Japanese food, generally, returned to levels below 100 Bq/kg. Korea admitted in that regard that none of over 188,000 consignments of Japanese food imported into Korea contained caesium in excess of 100 Bq/kg (7.309).

The panel agreed with Korea that some samples out of the hundreds of thousands of samples tested through late 2015 had caesium levels in excess of 100 Bq/kg. The Panel said it took account of these small amounts of products that exceed tolerance levels in its analysis, however, it did not change its overall conclusion that the potential for Japanese food products to contain caesium in excess of 100 Bq/kg is low (7.310). One of the experts explained that one will always (not only as a consequence of the Fuskushima accident) find food items exceeding the 100 Bq/kg, but as the annual exposure due to caesium depends on the general caesium activity concentration in the food, even some not detected food items exceeding 100 Bq/kg would not endanger the conformity of the food with Korea's 1 mSv/year dose limit (7.311).

Moving on to comparing Japanese products and products of other origins, the panel observed that the test results available for non-Japanese food products show particularly high levels of caesium in the food categories expected to have high concentration of radionuclides, such as mushrooms, berries and their derivatives. With regard to fishery products, caesium concentration levels were within a range of 0.23 and 16 Bq/kg. The Panel concluded that the majority of both Japanese and non-Japanese products have potential to contain caesium in amounts below the 100 Bq/kg tolerance level. One of the experts, while recognizing that the risk of higher absolute contamination levels is of course larger in a really contaminated area, explained that 'the data available shows that the probability of finding such levels in traded Japanese food is not higher than in non-Japanese food (due to Japan's restrictions on production/fishing)'. On the other hand, certain product categories, especially wild animals and plants, have the potential to contain caesium in excess of 100 Bq/kg, whether they originate from Japan or other Members (7.314).

In a similar fashion, the panel found that products from Japan and from other origins have similar potential for containing strontium and plutonium below their respective tolerance levels (7.319).

In light of these conclusions, the panel found that:
  • with regard to adoption of the 2013 additional testing requirements; and
  • with respect to adoption of the blanket import ban (for the 27 fishery products covered by Japan's claim and for Pacific cod originating from Aomori, Chiba, Gunma, Iwate, Miyagi, and Tochigi prefectures
similar conditions existed in Japan and in other Members.

As regards maintenance of Korea's measures, similar conditions existed in Japan and in other Members for all food products, including the 28 fishery products, at the time of establishment of the panel (7.321).

In these conditions, the maintenance of the product-specific bans on Pacific cod and Alaska pollock, as well as the 2013 blanket import ban for all 28 fishery products from all 8 prefectures, afford discriminatory treatment to Japanese products (7.325). Since these bans, in the view of the panel, have no rational connection with the measures' stated purpose of protecting Korean consumers against the risk posed by radionuclides in food in excess of Korea's tolerance levels, this discrimination is arbitrary or unjustifiable (7.343, 7.349, 7.350) and is therefore in violation of Article 2.3 SPS Agreement (7.360).

Similarly, the maintenance of the additional testing requirements is discriminatory because:
  • while every consignment of Japanese food, in which more than 0.5 Bq/kg of caesium or iodine has been detected, is subjected to additional testing regardless of the type of food involved, only the 150 most frequently consumed products of other origins undergo additional testing (7.329, 7.330);
  • Japanese products are tested both at the border and at the point of sale, while products of other origins are tested only at the point of sale, which doubles the burden on Japanese imports as compared to Korean and third-party products (7.330).
Since, in the view of the panel, there is no rational conntection between this discrimination and the stated regulatory objective of the measure, this discrimination is arbitrary or unjustifiable (7.352-7.355) and is therefore in violation of Article 2.3 SPS Agreement (7.360).
IV. Japan did not demonstrate that the additional testing requirements are inconsistent with Korea' obligations in relation to procedures under Article 8 and Annex C SPS Agreement

The panel, after concluding that the additional testing requirements of 2011 and 2013 are procedures to check and ensure the fulfillment of Korea's SPS measures within the meaning of Article 8 and Annex C (namely, that the requirements aim to ensure that the concentration levels of radionuclides in food imported from Japan do not exceed Korea's tolerance levels and, as a result, to ensure that the exposure of Korean consumers to radionuclides in food products as low as reasonably achievable below 1 mSv/year for all man-made radionuclides), found that Japan had failed to substantiate any of its legal claims under Article 8 and Annex X (7.381, 7.384, 7.409, 7.415, 7.423, 7.445).

More about the parties' arguments and the panel's reasoning on this issue
As part of its legal claim under Annex C(1)(a) (discrimination of Japanese products), Japan did not elaborate why imported and domestic products should be considered to be like (7.407).

With respect to its legal claim under Annex C(1)(c) (excessive information requirements), Japan's arguments were aimed at addressing the obligation in Article 5.6 not to apply measures that are more trade-restrictive than required to achieve the ALOP, instead of addressing the necessity of information requirements for the operation of the procedure, which is the obligation in Annex C(1)(c). The panel concluded that, as Japan's arguments did not address the obligation in subparagraph (c), they were insufficient to establish an inconsistency under that provision and are more properly brought under Article 5.6 (7.414).

As part of its legal claim under Annex C(1)(e) (requirements for specimens not limited to what is reasonable and necessary), Japan's argument was, according to the panel, a way to reformulate its claim under Article 5.6 and to establish an inconsistency with Annex C(1)(e) as a consequence of an inconsistency with Article 5.6 if the challenged measure is a control, inspection and approval procedure. The Panel did not see such a relationship between the two provisions. In the panel's view, Japan's arguments could not serve as a basis for a finding of inconsistency under Annex C(1)(e) (7.421).

With respect to the legal claim under Annex C(1)(g) (discrimination of Japanese products in the selection of samples of imported products), Japan's arguments did not address discrimination in the selection of samples, but what happens to the sample after it is selected – namely what contaminants it is tested for and when. Japan failed to identify in its arguments any elements of Korea's sample selection criteria that are different for Japanese products than for Korean ones (7.444). Therefore, the panel found that Japan had failed to substantiate its claim under Annex C(1)(g) (7.445).
V. Korea acted inconsistently with its transparency obligations under Article 7 and Annex B SPS Agreement

In publishing announcements of all the 4 measures, Korea acted inconsistently with Article 7 and Annex B(1) SPS Agreement (7.476, 7.487, 7.498, 7.501, 7.502) because:

— It did not demonstrate that the web address on which the press release announcing the product-specific import bans of 2012 had been published was available on the day when Korea announced the measures and did not provide evidene as to what content was available on that day. In addition, Korea did not provide any evidence to demonstrate that at the time of adoption of the measure interested Members would have known to look to that website for information on SPS measures governing these products (7.474);

— The press release of 2013 announcing the blanket import ban on the import 28 fish products from 8 prefectures failed to specify the products covered. Therefore, Korea did not publish the full content of the regulation (7.477-7.483). Moreover, Korea did not publish the blanket import ban in such a manner as to enable Japan to become acquainted with the measure (7.485). Consequently, the Panel found that, with respect to the blanket import ban, Korea acted inconsistently with Annex B(1) and Article 7 (7.487);

The press release of 2011 announcing the additional testing requirements did not include the entire content of the measure, either (7.492). For the same reasons as in the case of the product-specific bans, the panel found that Korea had not published the measures in a manner so as to enable Japan to become acquainted with the challenged measures. Therefore, Korea had acted inconsistently with Annex B(1) and Article 7 (7.498, 7.501).

— The press release of 2013 announcing the extension of the additional testing requirements to fishery and livestock products did not contain full information about the measure, either (7.494). The panel concluded that Korea did not publish the measures in a manner so as to enable Japan to become acquainted with the challenged measures (7.498). Therefore, Korea acted inconsistently with Annex B(1) and Article 7 (7.502).

The panel also found that Korea had acted inconsistently with Article 7 and Annex B(3) because its enquiry point did not respond to one of Japan's queries (7.517-7.519).

More about the parties' arguments and the panel's reasoning on this issue
Whether Korea violated its transparency obligations under Article 7 and Annex B

Japan claimed that Korea had acted inconsistently with its transparency obligations because it had announced the import bans and additional testing requirements by posting press releases on government websites, which, according to Japan, was insufficient to discharge the transparency obligations (7.449, 7.465).

The panel pointed out that Annex B(1) requires publication of something more than an announcement that the regulation exists: according to the text in its context and in light of Annex B(1)'s object and purpose of achieving transparency, the obligation in Annex B(1) is to publish the content of the SPS regulation – not an announcement of its existence or a brief summary. However, publication of the regulation itself does not necessarily ensure that the information in it is sufficient to enable Members to acquaint themselves with the measure. The obligation in B(1) requires the importing Member to ensure that the publication of its regulation contains sufficient elements to allow interested Members to know what conditions would apply to their goods, including the specific principles and methods applicable to the products. Producers in exporting Members cannot adapt their products and methods to the requirements of the importing Member if they do not understand them in sufficient detail (7.461-7.463).

The panel found that the press releases announcing the product-specific import bans of 2012 did contain the content of the regulation itself. They listed the goods (the specific fish species), the origin (the 8 prefectures), and the conditions applicable (a complete ban) (7.472). However, the panel said it had no way of knowing whether the corresponding web address had been available on the day Korea announced the measures and what the available content was on that day. Moreover, Korea did not provide any evidence to demonstrate that at the time of adoption of the measure interested Members would have known to look to that website for information on SPS measures governing these products. Therefore, Korea did not publish the measures in a manner so as to enable Japan to become acquainted with the challenged measures (7.474). Consequently, with respect to the product-specific import bans, Korea acted inconsistently with Annex B(1) and Article 7 (7.476).

The press release of 2013 announcing the blanket import ban on the import 28 fish products from 8 prefectures, in turn, failed to specify the products covered because the exact scope of the phrase 'all fishery products' is vague. The notification to the WTO provides more details on the product scope than the press release and includes products such as algae. Similarly, Japanese exporters could lack clarity on whether the scope is limited to a more traditional understanding of fishery products or also extends to the products of such animals as whales, dolphins, porpoises, seals and sea lions. Therefore, Korea did not publish the full content of the regulation. Moreover, for the same reasons as in the case of the product-specific bans, Korea did not publish the blanket import ban in such a manner as to enable Japan to become acquainted with the measure (7.477-7.483, 7.487). Consequently, the Panel found that, with respect to the blanket import ban, Korea acted inconsistently with Annex B(1) and Article 7 (7.487).

The press release of 2011 announcing the additional testing requirements did not refer to any Codex radionuclides other than strontium and plutonium and did not contain any reference to the tolerance levels. The press release does not refer to the levels of caesium or iodine that would trigger the additional testing, which specific radionuclides will be tested, nor the maximum levels for those radionuclides that would result in products being rejected. The press release thus did not include the entire content of the measure. (7.492). For the same reasons as in the case of the product-specific bans, the panel found that Korea had not published the measures in a manner so as to enable Japan to become acquainted with the challenged measures. Therefore, Korea had acted inconsistently with Annex B(1) and Article 7 (7.498, 7.501).

The press release of 2013 announcing the extension of the additional testing requirements to fishery and livestock products does not refer to the levels of caesium that would trigger the additional testing, which specific radionuclides will be tested, nor the maximum levels for those radionuclides that would result in products being rejected. The press release does not provide information on the procedure and location of the testing required for the additional radionuclides (7.494). The panel also concluded that, for the same reasons as in the case of the product-specific bans, Korea did not publish the measures in a manner so as to enable Japan to become acquainted with the challenged measures (7.498). Therefore, Korea acted inconsistently with Annex B(1) and Article 7 (7.502).

The panel also found that Korea had acted inconsistently with Article 7 and Annex B(3) because its enquiry point did not respond to one of Japan's queries (7.517-7.519).

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