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Are Korea’s Import Bans on Japanese Foods Based on Scientific Principles? Comments on Reports of the Panel and the Appellate Body on Korean Import Bans and Testing and Certification Requirements for Radionuclides (WT/DS495)

Published online by Cambridge University Press:  11 November 2019

Taro HAMADAOpen the ORCID record for Taro HAMADA[Opens in a new window] and
Yoshimichi ISHIKAWA
Rights & Permissions [Opens in a new window]

Abstract

This study focuses on the dispute over Korea’s import bans and the additional testing and certification requirements for Japanese foods and analyses the relevant findings of the reports of the Panel and the Appellate Body of the World Trade Organisation’s dispute settlement mechanism (DSM). Although the Panel had found that Korea’s measures were inconsistent with the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), the Appellate Body reversed most of these findings. Korea notified that it had completed the implementation of the reports of the Panel and the Appellate Body. However, the DSM has failed to contribute in settling this dispute positively and meaningfully, since it remains uncertain whether Korea’s import bans are based on scientific principles. Furthermore, the Appellate Body failed to complete its legal analysis of the inconsistency of Korea’s measures based on fact-findings and the facts uncontested between both disputing parties.

Information

Type
Case Commentaries
Information
European Journal of Risk Regulation , Volume 11 , Issue 1 , March 2020, pp. 155 - 176
Copyright
© Cambridge University Press 2019

I. Introduction

This study focuses on the dispute over Korea’s import bans and the additional testing and certification requirements for Japanese foods. It aims to critically analyse the relevant findings of the reports of the Panel and the Appellate Body of the WTO DSM and to contribute to secure a positive solution to the dispute.

The Great East Japan Earthquake, which registered 9.0 on the Japanese seismic intensity (Richter) scale, was the largest earthquake in Japanese history. It struck the coast of Japan in the early afternoon on 11 March 2011. The earthquake triggered a tsunami which caused widespread devastation, particularly along Japan’s northeast coast. Just after the earthquake, a tsunami reached the Fukushima Daiichi Nuclear Power Plant (FDNPP). This caused substantial damage to the operational and safety infrastructure of the FDNPP. The explosions in the reactor buildings, and the venting of materials – including radioactive materials – into the environment, contaminated the environment by releasing radioactive materials in the air, land, and ocean water.

One month after the FDNPP accident, the Japanese authorities formally declared an International Nuclear and Radiological Event Scale (INES) rating of Level 7. Following the accident, there were several incidents of leaks and release of contaminated water into the ocean. Neighbouring countries, including the Republic of Korea, are in dispute with Japan over these events and the amount of radioactive material released into the ocean.

Under these circumstances, Korea imposed import bans and additional testing and certification requirements for certain food products, including fishery and livestock products, imported from Japan following the FDNPP accident, supposedly to protect human health from the adverse effects of radionuclides present in Japanese foods. It was announced that these measures were aimed at ensuring food safety. While the Japanese authorities began to lift domestic restrictions on a number of products from certain prefectures after the accident, the Korean authorities tightened their existing measures by instituting import bans on Japanese fishery products and by extending additional testing and certification requirements for radionuclides to include all Japanese food products, including fishery and livestock products, as they became ever more concerned about the direct and continuous leaking of radioactive material into the ocean.

This study consists of the following sections: Section I is the introduction; Section II briefly summarises the relevant facts of the dispute over Korea’s import bans and the additional testing and certification requirements for Japanese food; Section III summarises relevant findings of the report of the Panel and the Appellate Body of the DSM; Section IV analyses them; and Section V draws a conclusion.

II. Relevant facts

The Panel in this case examined the volume of radionuclides released, including the source term, based on certain estimates of the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR), the International Atomic Energy Agency (IAEA), and Japan’s data.Footnote 1 While there was no definitive calculation of the amount released; the Panel, as a matter of the fact, found that the estimates of the direct release of contaminated water varied. Some estimates were between 1–6 PBq (petabecquerel) of contaminated water by direct release and discharges of caesium137 into the ocean, while others reported between 2.3–26.9 PBq.Footnote 2

Just after the FDNPP accident, Japan adopted its own domestic restrictions on certain products from the most affected prefectures on an emergency basis in the absence of a risk assessment.Footnote 3 Korea adopted additional testing and certification requirements on certain agricultural products and processed foods, except livestock products (which the Panel referred to as “non-fishery products”), imported from Japan. This was done to detect the presence of certain radionuclides including strontium and plutonium if trace amounts of iodine and caesium were found in these products (2011 additional testing requirements).

Korea adopted product-specific import bans on two fishery products: Alaskan pollock from Fukushima; and Pacific cod, from five prefectures – Aomori, Fukushima, Ibaraki, Iwate and Miyagi – (product-specific import bans) to mirror the domestic restrictions imposed by Japan. Based on an assessmentFootnote 4 by its Food Safety Commission on the levels of radiation in food, Japan then removed these measures.

Deeply concerned about the continuous leaks of radioactive material into the ocean, in 2013 Korea imposed a blanket import ban on all Japanese fishery products from eight prefectures – Aomori, Iwate, Miyagi, Fukushima, Ibaraki, Chiba, Gunma, and Tochigi – (blanket import ban). They also expanded additional testing and certification requirements to all Japanese food products, including fishery and livestock produce, to determine the presence of certain radionuclides, including strontium and plutonium if trace amounts of iodine and caesium were detected (2013 additional testing requirements).

On 21 May 2015, Japan requested consultation on Korea’s measures, including: (a) the 2011 additional testing requirements; (b) the product-specific import bans; (c) the import bans on 28 fishery products out of the blanket import ban from the eight prefectures; (d) the 2013 additional testing requirements; (e) a number of alleged less favourable, unnecessary and unreasonable operations of the 2011 and 2013 additional testing requirements; and (f) a number of alleged omissions concerning transparency obligations under the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement).Footnote 5 Japan claimed that these measures, ie the measures listed in (a)–(f) (Korea’s measures) were inconsistent with the SPS Agreement.

On 28 September 2015, the Dispute Settlement Body (DSB) established a Panel, at Japan’s request. Japan claimed that Korea’s measures were inconsistent with Articles 2.3, 4, 5.5, 5.6, 7, 8 and Annexes B and C of the SPS Agreement by its request of the establishment of a Panel.Footnote 6 However, Japan made claims under Articles 2.3, 5.6, 7, and 8, as well as Annexes B and C of the SPS Agreement to the Panel. Japan did not invoke Articles 2.2, 3.1, 3.2 and Article 5.1. On 22 February 2018, the Panel Report was circulated to WTO Members. The Panel found that some of Korea’s measures were inconsistent with certain obligations under the SPS Agreement.

On 9 April 2018, Korea notified the DSB of its decision to appeal to the Appellate Body on certain issues of law and with respect to certain legal interpretations in the Panel Report, and on 16 April 2018, Japan notified the DSB of its decision to cross-appeal. On 8 June 2018, the Appellate Body advised that it would not be able to circulate its report on this appeal within the timeframe provided in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).Footnote 7 On 11 April 2019, the Appellate Body report was circulated to all WTO Members. The Appellate Body reversed most of the Panel’s findings.

At the meeting on 26 April 2019, the DSB adopted the Reports of the Appellate Body and the Panel, as modified by the Appellate Body, as the recommendations and rulings of the DSB. At this meeting, a Japanese representative criticised the Report of the Appellate Body and pointed out that the Appellate Body had failed to resolve the dispute.Footnote 8

On 4 June 2019, Korea informed the DSB that it had completed the implementation of the recommendations and rulings of the DSB by republishing the details of its relevant measures.

III. Relevant decisions of the panel and the appellate body

After examining the objective of Korea’s measures and their direct and indirect effects on international trade, the Panel found that the measures at issue were sanitary and phytosanitary (SPS) measures as defined by Article 1.1 and Annex A(1)(b) of the SPS Agreement. No parties appealed the Panel’s finding.

1. Whether Korea’s measures are more trade-restrictive than required (Article 5.6)

Article 5.6 of the SPS Agreement provides: when establishing or maintaining sanitary or phytosanitary measures to achieve the appropriate level of SPS protection (ALOP), WTO Members shall ensure that such measures are no more trade-restrictive than required to achieve their ALOP, taking into account technical and economic feasibility. The footnote to this provision provides that a measure is not more trade restrictive than required unless there is another measure that achieves the ALOP and is significantly less restrictive to trade.

The Appellate Body repeatedlyFootnote 9 noted the prerogative and implicit obligation of WTO Members to determine their own ALOP.Footnote 10 The Appellate Body also repeatedlyFootnote 11 noted that if a WTO Member fails to determine its own ALOP, or does so with insufficient precision, then the ALOP may be established by the Panel on the basis of the totality of the arguments and evidence on the record, which may include the level of protection reflected in the SPS measures actually applied.

As the Panel concluded, despite sufficient information being available at the time when it adopted the blanket import ban and the extension of the additional testing requirements to fishery and livestock products in 2013, Korea had not completed a risk assessment with respect to its measures.Footnote 12 As a consequence, Korea did not officially declare its ALOP determined in accordance with SPS Agreement at the time of the establishment of the Panel.

Japan claimed that Korea’s ALOP was to limit the radioactivity levels in food consumed by Koreans to 1 mSv (millisieverts)/year. In this dispute, Korea described its ALOP as levels that exist in an ordinary environment, ie in the absence of radiation from a major nuclear accident, and thus maintained levels of radioactive contamination in food that were “as low as reasonably achievable” (ALARA). Korea maintained that its ALOP was not a fixed quantitative threshold, but, instead, aimed to achieve a high to very high level of protection below the 1 mSv/year dose limit.

The Panel accepted Korea’s articulation of the relevant ALOP as one containing the following elements, with respect to the radioactivity levels in food consumed by Korean consumers: (i) the levels that exist in the ordinary environment; (ii) the ALARA; and (iii) the quantitative dose exposure of 1 mSv/year.Footnote 13

However, the Panel recalled that the overall limit for all radionuclides set by the Codex Alimentarius Commission (Codex) in the Codex General Standard for Contaminants and Toxins in Food and Feed (CODEX STAN 193-1995) was 1 mSv/year.Footnote 14 According to the Panel, although the SPS Agreement does not oblige WTO Members to put forth a quantitative ALOP, their ALOPs must not be so vague or equivocal as to evade their obligations.Footnote 15 The Panel accepted that Korea’s ALOP was to limit radioactivity levels to those that exist in an ordinary environment, ie an ALARA, below the 1 mSv/year radiation dose limit.Footnote 16

Then the Panel examined whether the alternative measure proposed by Japan achieved Korea’s ALOP in the light of the level of risk posed by the concerned products, based on relevant scientific evidence on the record. In this dispute, Japan proposed a single alternative measure to achieve Korea’s ALOP with respect to Korea’s SPS measures – a testing requirement for caesium in imports of Japanese products to verify that the products’ caesium content did not exceed Korea’s tolerance level of 100 Bq/kg to control food contamination from radionuclides.

Japan monitored certain foods, which were more likely to exhibit higher levels of radioactive caesium in the environment including seawater. Under these circumstances, Panel determined that the data provided by Japan could serve as a reasonable basis for conclusion.Footnote 17 According to the Panel, the data produced from the 28 banned fishery products in 2013 showed that few samples had been found to contain caesium in excess of the 100 Bq/kg tolerance level. The data from 2014 and 2015 also showed a steady decline of the caesium concentration level over that time.Footnote 18

The Panel, as a matter of the fact, found that the various test results produced by Japan provided statistically valid support for the contention that agricultural and fishery products containing less than 100 Bq/kg of caesium would contain other additional radionuclides below or far below Codex tolerance levels.Footnote 19

As to the expected dietary exposure of Korean consumers, according to the Panel various kinds of evidence supported the conclusion that a 100 Bq/kg of caesium tolerance level for food consumption would result in a dose below 1 mSv/year. This would be true even if 100% of the food consumed was of Japanese origin, and even if the market share of Japanese food were to return to 0.37%, as at the time prior to the FDNPP accident, taking into account the particularities of the Korean diet.Footnote 20

On the basis of the totality of the arguments and evidence on the Panel record, the Panel concluded that Japan’s alternative measure achieved the Korean ALOP at the time of the adoption of the 2013 additional testing requirements. The Panel also reached to the same conclusion with respect to all fishery products being subject to the 2012 product-specific import ban and the blanket import ban, except Pacific cod from Fukushima and Ibaraki. Therefore, the Panel found that Korea’s 2011 additional testing requirements and the 2012 product-specific import ban would not be more trade-restrictive than required once adopted. However, at the time of the establishment of the Panel, all these measures were more trade-restrictive than required under Article 5.6 of the SPS Agreement.Footnote 21

The Appellate Body noted that the Panel accepted Korea’s ALOP as one consisting of quantitative and qualitative elements. According to the Appellate Body, while the Panel accepted Korea’s articulation of this multi-faceted ALOP, its analysis effectively focused on the quantitative element of 1 mSv/year.Footnote 22 Thus, the Appellate Body concluded that the Panel erred by not accounting for all these elements of the ALOP in its assessment under Article 5.6. The Appellate Body, therefore, reversed the Panel’s finding that Korea’s measures were inconsistent with Article 5.6 for being more trade-restrictive than required to achieve its ALOP. The Appellate Body decided that it was impossible to complete its legal analysis of the inconsistency of the Korea’s measures based on these limited fact-findings of the Panel.Footnote 23

2. Whether Korea’s measures arbitrarily and unjustifiably discriminated between Japanese products and those of other WTO Members (Article 2.3)

The first sentence of Article 2.3 of the SPS Agreement clearly states that the WTO Members shall ensure that their SPS measures do not arbitrarily or unjustifiably discriminate between WTO Members where identical or similar conditions prevail, as well as between their own territory and that of other WTO Members.

The Panel, consistent with the jurisprudence of the Appellate Body in India – Agricultural Products,Footnote 24 cumulatively considered the three elements of the first sentence of Article 2.3: whether the measures discriminate, whether the discrimination was arbitrary or unjustifiable, and whether similar conditions prevailed.Footnote 25

With respect to the third element, which logically provides a good starting point to address a claim under Article 2.3 in accordance with the Appellate Body in India – Agricultural Products,Footnote 26 the Panel compared the potential for food products to be contaminated with caesium and other radionuclides from Japan with other origins, as well as the potential health risks.Footnote 27 The Panel concluded that food products from Japan and from other origins have a similar potential for containing caesium and other radionuclides below their respective tolerance levels due to the release of radioactive materials into the atmosphere by nuclear weapons testing and accidents such as Chernobyl accident etc. This conclusion was drawn with respect to the adoption of the 2013 additional testing requirements.Footnote 28 Having examined the relevant data submitted by Japan, the Panel noted that, at the time the requirements were adopted, less than 1% of the samples were found to exceed the caesium tolerance level of 100 Bq/kg for all product categories from all prefectures in Japan.Footnote 29

Regarding the first element, it was undisputed between the parties that only Japanese products were subject to the product-specific and blanket import bans.Footnote 30 The Panel found that Korea failed to show the point-of-sale testing and pre-marketing testing on domestic products to be considered equivalent to the additional testing administered on Japanese products at the Korean border. Korea failed to rebut Japan’s prima facie case of discrimination.Footnote 31

Regarding the second element, taking into account the inconsistency of Korea’s measures under Article 5.6, the levels of caesium and other radionuclides measured in the relevant Japanese fishery products and other food products were found to be well below Korea’s tolerance levels. The Panel concluded that this discrimination was arbitrary and unjustifiable. The Panel also concluded that the origin of a product decided on the basis of the place where it is packaged or processed, and harvested by a Japanese flagged ship, does not necessarily mean contamination levels of a product. According to the Panel, there was no rational connection between the measures (import bans and additional testing requirements) and the stated objectives of the measures (to protect human health from adverse effects arising from the presence of radionuclides in foods), due to the high degree of trade-restrictiveness in the measures.Footnote 32

The Panel, thus, concluded that by adopting the 2013 additional testing requirements and the blanket import bans on the 28 fishery products from eight prefectures, except Pacific cod from Fukushima and Ibaraki, and by maintaining the product-specific and blanket import bans on the 28 fishery products from eight prefectures at the time of the establishment of the Panel, Korea acted inconsistently with the first sentence of Article 2.3 in the SPS Agreement.Footnote 33

Korea appealed, claiming, inter alia, that the Panel erred in finding that “similar conditions prevail” in Japan and other WTO Members by erroneously treating the risk present in these products as the only relevant “condition” under Article 2.3, to the exclusion of conditions in the territories of different WTO Members.

According to the Appellate Body, while the analysis of Article 2.3 may include consideration of the conditions present in the products of different WTO Members, the Panel concluded that Article 2.3 permits consideration of the risks present in products from international trade by failing to give appropriate weight to all other relevant conditions under Article 2.3. Article 5.2 of the SPS Agreement requires WTO Members to consider “relevant ecological and environmental conditions” in their risk assessments. According to the Appellate Body, the proper analysis under Article 2.3 entails consideration of all these relevant conditions for different WTO Members, including territorial conditions that may not yet be manifested in products but are relevant in light of the regulatory objective and specific SPS risks at issue.Footnote 34 The Appellate Body thus reversed the Panel’s findings under Article 2.3. The Appellate Body did not address whether evidence before the Panel or the fact uncontested between parties could support a conclusion that the potential for contamination in Japanese and non-Japanese food products was sufficiently similar or dissimilar for the purposes of applying the requirements of Article 2.3.Footnote 35

3. Whether Korea violates transparency obligations under the SPS Agreement (Article 7 and Annex B)

Japan alleged that Korea failed to notify its import bans and additional testing requirements in a manner that allowed interested WTO Members to become acquainted with them, and that Korea’s enquiry point did not provide relevant information to Japan. The Panel found that Korea failed to announce and publish the product-specific and the blanket import ban in such a manner as to enable Japan to become acquainted with them.Footnote 36 The Panel concluded that press releases announcing the 2011 and 2013 additional testing requirements, which did not include the entire content of the regulations, were insufficient for Japan to know the conditions that would be applied to its goods.Footnote 37 Thus, the Panel found that Korea acted inconsistently with Annex B(1) and Article 7.Footnote 38

The Appellate Body, albeit for different reasons, upheld the Panel’s finding since Korea failed to publish the full product scope of the blanket import ban and failed to publish scientific information that would enable Japan to become acquainted with the requirements of the 2011 and 2013 additional testing requirements.Footnote 39

The Panel noted that incompleteness of an answer or a failure to provide a particular document within a response was not necessarily enough to establish an inconsistency with Annex B(3). However, the Panel found that, based on Korea’s enquiry point’s failure to respond to all of Japan’s follow-up queries and its earlier failure to relate the answers and documents provided and their relevance for the questions Japan had posed, Korea acted inconsistently with Annex B(3) and Article 7.Footnote 40

The Appellate Body, however, reversed the Panel’s finding that Korea had acted inconsistently with Annex B(3) and Article 7, since a single failure of an enquiry point to respond in and of itself would automatically result in an inconsistency with Annex B(3). According to the Appellate Body an assessment of whether “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” is rather required within the meaning of Annex B(3).Footnote 41

4. Where the operation of Korea’s additional testing requirements was less favourable, unnecessary, and unreasonable considering its obligations under Article 8 and Annex C

Japan alleged that Korea’s additional testing requirements were inconsistent with subparagraphs (a), (c), (e), and (g) of Annex C(1) and Article 8. The Panel found that Japan had failed to demonstrate that Korea had acted inconsistently with the above provisions.Footnote 42 The Panel found that Japan had failed to demonstrate that domestic and imported products are like for the purposes of assessment under subparagraph (a).Footnote 43 The Panel concluded that Japan did not properly address the necessity of the information requirements for the operation of the procedure which is an obligation contained in subparagraph (c).Footnote 44 The Panel disagreed with Japan’s contention that a measure can be inconsistent with subparagraph (e) if the requirements were not limited to what is necessary to achieve Korea’s ALOP. Japan argued that an inconsistency with subparagraph (e) was established as a consequence of an inconsistency with Article 5.6 if the challenged measure was a control, inspection and approval procedure. The Panel did not see such a relationship between subparagraph (e) of Annex C(1) and Article 5.6 that Japan alleged.Footnote 45 According to the Panel, Japan’s arguments addressed what happened to the sample after it had been selected, while subparagraph (g) governed the types of measures set forth in the rules for how particular samples are chosen to be tested as representative of the whole.Footnote 46

Therefore, the Panel found that Japan had not demonstrated that Korea acted inconsistently with its obligations under Article 8 and Annex C of the SPS Agreement with respect to the adoption and maintenance of the 2011 and 2013 additional testing requirements.

Japan appealed, claiming that Korea’s measures were inconsistent with subparagraph (a) of Annex C(1) and Article 8. The Appellate Body upheld the Panel’s findings because the 2011 and 2013 additional testing requirements did not distinguish between Japanese and Korean products based solely on origin.

5. Whether Korea’s measures were taken as provisional measures pursuant to Article 5.7 of the SPS Agreement

Korea argued that its SPS measures had been taken pursuant to Article 5.7 of the SPS Agreement. Article 5.7 provides that WTO Members may adopt and maintain provisional SPS measures without basing them on a risk assessment that conforms to Article 5.1, so long as the four requirements set forth therein are satisfied. Whenever one of these four requirements is not met, the measure at issue is deemed to be inconsistent with Article 5.7.Footnote 47 The Panel found that Korea bore the burden of proof that Article 5.7 was applicable to its measures, since Japan did not assert Article 5.7 in its request for the establishment of the Panel.Footnote 48

Regarding the first requirement of insufficient scientific information to conduct a risk assessment, the Panel agreed that the 2011 additional testing requirements were adopted on an emergency basis shortly after the FDNPP accident, in a situation where there was insufficient scientific evidence.Footnote 49

However, the Panel then turned to the measures adopted immediately after the FDNPP accident. According to the Panel, Korea adopted product-specific import bans to mirror the domestic restrictions imposed by Japan. Japan imposed these measures and then removed them, based on an assessment from its Food Safety Commission, on the levels of radiation in food.Footnote 50 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 all foods, including fishery and livestock products. The Panel concluded that there was enough scientific evidence to conduct a risk assessment with respect to the product-specific import bans, the blanket import bans, and the extension of additional testing requirements to fishery and livestock products.Footnote 51

Regarding the second requirement, the Panel noted that the obligation in Article 5.7 was to base measures on pertinent information available. The Panel noted that Korea’s 2011 additional testing requirements and the product-specific bans were adopted shortly after the FDNPP accident and closely mirrored Japan’s own measures.Footnote 52 According to the Panel, however, this was not the case for the blanket import ban and the 2013 additional testing requirement.Footnote 53

Regarding the final two requirements, Korea did not seek out additional information from Japan, nor did they review the measures within a reasonable period of time.Footnote 54

In summary, Korea failed to establish that there was insufficient scientific evidence with respect to the product-specific import bans, the blanket import ban, and the 2013 additional testing requirements. Korea did not demonstrate that it based the blanket import ban and the 2013 additional testing requirements on available pertinent information. It failed to review any of its measures within a reasonable period of time. The Panel determined that Korea had not shown that the measures at issue fell within the scope of Article 5.7 of the Agreement.Footnote 55

According to the Appellate Body, Japan had not made a claim of inconsistency under Article 5.7 before the Panel, and Korea did not invoke Article 5.7 as a defence. Thus, the Appellate Body considered that by making these findings under Article 5.7, the Panel exceeded its mandate, thereby acting inconsistently with Articles 7.1 and 11 of the DSU. The Appellate Body declared the Panel’s findings under Article 5.7 moot and of no legal effect.Footnote 56

IV. Comments

1. Whether Korea’s measures are based on scientific principles

Japan claimed that Korea’s measures were inconsistent with Articles 2.3, 5.6, 7, and 8; paragraphs 1 and 3 of Annex B, and paragraphs (a), (c), (e), and (g) of Annex C(1) of the SPS Agreement at time of the establishment of the Panel. Earlier, it had claimed that they were inconsistent with other provisions, including Articles 2.2, 4, 5.1, 5.2, 5.5, 5.7, and 5.8 of the SPS Agreement, in the course of consultation between the parties. However, Japan made claims under Articles 2.3, 5.6, 7, and 8, as well as Annexes B and C of the SPS Agreement to the Panel. Japan did not invoke Articles 2.2, 3.1, 3.2 and Article 5.1. There is a striking difference between this and other SPS disputes, since Japan did not claim that there was violation of the science-based provisions of the SPS Agreement in this dispute.

The SPS Agreement is explicit and unique in the WTO, in its turn to science.Footnote 57 The science-based provisions of the SPS Agreement have been subject to more virulent criticism than any other.Footnote 58 They contain five key science-based obligations in accordance with Articles 2.2, 3.1, 3.3, 5.1, and 5.7.Footnote 59 Article 2.2 requires that SPS measures of the WTO Members shall be applied only to the extent necessary to protect human, animal, or plant life, or health and be based on scientific principles. Article 3.1 requires that SPS measures of the WTO Members shall be based on international standards. Article 3.3 requires that if they intend to introduce or maintain SPS measures that result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, there shall be a scientific justification as a consequence of the level of protection. The level of protection would be determined to be appropriate in their SPS measures in accordance with their proper risk assessment requirements. Article 5.1 requires that SPS measures of the WTO Members shall be based on risk assessment.

While Japan did not invoke these science-based provisions in this dispute, it complained of trade-restrictive measure (Article 5.6) and of discrimination (Article 2.3).Footnote 60 Moreover, it is remains uncertain whether Korea’s import bans are based on scientific principles.

In past major disputes over SPS issues, experts have expressed concern about excessive limits imposed by the WTO agreements, including the SPS Agreement, and its DSM, on the sovereign right of WTO Members to take necessary SPS measures for the protection of human, animal, or plant life, or health, and to legitimate the power or ability to regulate economic activities in the public interest, namely to ensure food safety.Footnote 61 To fully understand this concern, the Appellate Body carefully examined whether the Panel had made an objective assessment of the matter, including an objective assessment of the facts of the case and its applicability to and conformity with the SPS Agreement, especially whether the Panel had taken a holistic approach to the totality of the evidence provided to it, and whether it had provided a reasoned and adequate explanation of its findings. By doing so, the Appellate Body would duly respect and value Korea’s discretionary powers in this matter.Footnote 62 Article 2 sets out the basic principles of the SPS Agreements, permitting WTO Members to adopt SPS measures provided they comply with the requirements set out by the SPS Agreement.Footnote 63 The fundamental importance of this article is also emphasised by the Preamble of the SPS Agreement. It is reasonable to say that the WTO Members have legitimate discretionary powers in adopting and maintaining SPS measures, provided they comply with the requirements set out by the SPS Agreement.

2. Member’s prerogative to set an ALOP in the context of food contamination (Article 5.6)

a. Deriving radioactivity levels in foods from an ALOP

The government sets the radioactivity levels in foods which serve as the basis for shipping or intake restrictions by the following process. First, it sets an acceptable level of risk (ie ALOP) regarding the adverse effects on the human body caused by radiation exposure through the intake of food contaminated with radioactive material. These adverse health effects of internal exposure are called “stochastic effects” (eg cancer, leukaemia), which are expressed in units of Sv.Footnote 64 Second, it derives the radioactivity levels in foods in units of Bq given other assumptions (eg annual food intake, contamination rate) so as not to exceed the ALOP.

For example, almost one year after the Fukushima accident, Japan set its ALOP for radiation exposure from food intake at 1 mSv/year, and derived the radioactivity levels in foods for shipping or intake restrictions (eg 100 Bq/kg of caesium for general foods) from its ALOP.Footnote 65 According to the International Commission on Radiological Protection (ICRP), radiation exposure to the effective dose of 100 mSv increases lifetime cancer mortality rate by about 0.55% for the whole population.Footnote 66 This is the level of risk that Japan accepted for internal exposure from food intake. The SPS Agreement clearly confirms the distinction between an ALOP (mSv/year) and radioactivity levels in food as a SPS measure (Bq/kg) that achieves the ALOP.Footnote 67

The above explanation also applies at the international level. For example, the Codex derived the guideline levels (GLs) in 2006 for radionuclides in foods for use in international trade. The Codex set the intervention exemption level of “around 1 mSv/year” recommended by the ICRP in 1999Footnote 68 as an ALOP, and then derived the GLs from it on the specific assumptions (among others) that the annual food intake for adults is 550 kg and the contamination rate is 10%.Footnote 69

b. Critical analysis of the appellate body’s decision

The Panel in Korea – Radionuclides described Korea’s application of the “ALARA principle” in deriving the radioactivity levels in food from ALOP as a manifestation of Korea’s “qualitative ALOP”.Footnote 70 Nevertheless, the Panel was clear that Korea’s ALOP was quantitatively set at the 1 mSv/year dose limit,Footnote 71 and then examined whether the alternative measure proposed by Japan, ie testing for only caesium at a level of 100 Bq/kg, would achieve a level of exposure below 1 mSv/year.Footnote 72 According to the Appellate Body, the Panel had failed to examine whether the alternative measure proposed by Japan would also achieve Korea’s qualitative ALOP even though the Panel had accepted that Korea’s ALOP consists of both quantitative (ie 1 mSv/year) and qualitative aspects (ie the ALARA principle, radioactivity levels in the ordinary environment).Footnote 73 In conclusion, the Appellate Body overruled the Panel’s decision, upholding Japan’s claim under Article 5.6 of the SPS Agreement.Footnote 74

Therefore, based on the Panel’s (inappropriate) usage of the term “qualitative ALOP” that appeared only once in its Report, the Appellate Body understood that the Panel had accepted Korea’s articulation that its ALOP consisted of not only quantitative but also qualitative aspects. Regarding the Appellate Body’s understanding of the Panel’s position on ALOP, it is worth noting the following three points.

First, when deriving the radioactivity levels in food from an ALOP, safety factors are often considered to ensure the reliability of ALOP. For example, if all foods consumed are contaminated with radioactive materials, the derived values will be necessarily smaller than the ones calculated under less stringent assumptions. The Panel described Korea’s application of the ALARA principle in deriving the radioactivity levels in food as a manifestation of Korea’s qualitative ALOP. However, it is irrelevant to the setting of an ALOP; rather, it is only a guide to be considered in designing an SPS measure that achieves the ALOP.

Second, the Panel’s attempt to understand Korea’s ALOP in qualitative terms with respect to radioactive contamination should be addressed. As repeatedly confirmed in jurisprudence, a WTO Member is not obliged to set its ALOP in quantitative terms,Footnote 75 although it has been considered preferable to express an ALOP in quantitative rather than qualitative terms.Footnote 76 In addition, even if an ALOP is set in qualitative terms, it cannot be expressed “with such vagueness or equivocation” so that “the application of the relevant provisions of the SPS Agreement, such as Article 5.6, becomes impossible”.Footnote 77

It is true that ALOP has often been identified in qualitative terms in the past disputes,Footnote 78 especially in the context of animal and plant quarantine. For example, the Panel in India – Agricultural Products identified India’s ALOP regarding the risk of entry, establishment, and spread of bird flu within India through the importation of agricultural products as “very high or very conservative”.Footnote 79 In other words, an ALOP is not assumed to be set quantitatively for quarantine risks.Footnote 80

On the contrary, for food contamination (eg Korea – Radionuclides), or veterinary drug residues in food (eg EC – Hormones), an ALOP is usually set in quantitative terms that take the form of “tolerable daily intake (TDI)” or “acceptable daily intake (ADI)”.Footnote 81 Especially, in the field of radiological protection, the ICRP has put extensive efforts into quantitatively assessing the adverse effects of radiation exposure to the human body, and then made quantitative recommendations based on this assessment. Therefore, it would be reasonable to require a Member claiming that its ALOP for food contamination is set in “qualitative” terms to specify the detailed content of its ALOP and its relationship with the SPS measure at that time. As noted by the Appellate Body, “a responding Member is generally better placed than the complainant to know what objective it has set in terms of the level of SPS protection it wishes to achieve”.Footnote 82 We are suggesting that the Appellate Body could have been a little more cautious about identifying Korea’s ALOP in qualitative terms, in the context of food safety, especially radioactive contamination.

Third, it should be emphasised that Korea did set the radioactivity levels in food, in quantitative terms. In response to the Panel’s question on this issue, Korea answered as follows:

Based on dietary surveys conducted, as well as available technology, the MLs [maximum levels] for general foods have been set at 100 Bq/kg of Cs-134 + 137 and 300 Bq/kg for I-131. The MLs for baby foods are set at 50 Bq/kg Cs-134 + 137 and 100 Bq/kg of I-131. The ML for beverage and potable water is 10 Bq/kg of Cs-134 + 137. The MLs for the other radionuclides are applied according to the guideline levels specified in Codex Stan 193-1995.Footnote 83

Given the general process of deriving the radioactivity or GLs in food from an ALOP, as explained at the beginning of this section, it is difficult to describe how these quantitative values could be derived from the vague ALOP set by Korea in qualitative terms.Footnote 84 However, we are not proposing that the prerogative granted to WTO Members to set an ALOP in qualitative terms in the context of radiation contamination be denied. Rather, we suggest that it would be reasonable to request the WTO Members alleging its ALOP in qualitative terms to explain the relationship between the ALOP and the SPS measure at issue, especially in the context of radioactive contamination. The Panel in Korea – Radionuclides did not do so in relation to Korea because the Panel firmly understood Korea’s ALOP to be the 1 mSv/year dose limit in quantitative terms. In light of the above, it is fair to say that the Appellate Body should have been more careful in identifying Korea’s ALOP in qualitative terms.Footnote 85

In summary, the Appellate Body held that the Panel had accepted Korea’s articulation that its ALOP consisted of both quantitative and qualitative aspects for radiation exposure from food intake. Considering the reasons explained above, however, it appears that the Appellate Body wrongly understood the Panel’s fact-finding regarding Korea’s ALOP, and then based its finding on what the Panel did not actually mean. This might lead to inconsistency with Article 17.6 of the DSU, which limits the scope of the Appellate Body’s review only to “issues of law covered in the Panel Report”.Footnote 86 The Appellate Body should have been refrained from identifying de novo the qualitative aspect of Korea’s ALOP in this dispute de novo.

c. Past decisions on setting an ALOP

The Appellate Body found inconsistency with Article 5.6 only in India – Agricultural Products. The Appellate Body dismissed the Panel’s finding of inconsistency with Article 5.6 due to a misunderstanding in the interpretation of two cases, Australia – Salmon and Australia – Apples.

The Panels and the Appellate Body concluded that regionalisation pursuant to the Terrestrial Animal Health Code or the OIE code) (L’Office international des epizooties, International Epizootic Office, or World Organisation for Animal Health) is a less trade-restrictive measure, suggested by the complaining party to achieve the ALOP of the defending party in three recent cases of animal quarantine:Footnote 87 India – Agricultural Products, the United States – Animals and Russia – Pigs.Footnote 88 OIE is recognised as the source for international standards in Annex A(3) of the SPS Agreement.

It should be noted that only two compliance panels concluded that another less trade-restrictive measure suggested by the complaining party, which did not adhere to international standards, successfully achieve the ALOP of the defending party in Australia – Salmon Footnote 89 and Japan – Apples.Footnote 90 The Panel in Australia – Salmon found that evisceration, a substitute measure proposed by Canada, achieved Australia’s ALOP. The Panel in Japan – Apples found the export of mature, symptomless apples to be a substituting measure proposed by the United States to achieve Japan’s ALOP. No parties appealed the finding of the compliance Panels.

To date, the Appellate Body and the Panel have not found another less trade-restrictive measure suggested by the complaining party that is not based on international standards and still achieves the ALOP of the defending party.

d. Another measure

The Appellate Body in this case reversed the Panel’s finding that the testing requirement suggested by Japan – 100 Bq/kg of caesium tolerance level for food consumption – was another measure to achieve Korea’s ALOP: a maximum upper limit of 1 mSv/year for total consumption of man-made radionuclides from all sources. The Codex GLs – for both infant and other foods – of caesium 134 and 137 are set at 1000 Bq/kg, ten times lower than the tolerance level for food consumption proposed in this case.Footnote 91

Thus, the Appellate Body reversed the Panel’s finding that Korea’s measures were inconsistent with Article 5.6 since the Panel failed to appropriately establish Korea’s ALOP and compare it to alternative measures.

It is reasonable to conclude that the Appellate Body abstained from finding another less trade-restrictive measure suggested by the complaining party because the Appellate Body respects and values the discretion of the defending party to take SPS measures necessary for the protection of human, animal, or plant life, or health under the limited mandate of the Appellate Body in the current review process in accordance with Article 17.6 of the DSU

However, under the current multi-faceted Korean ALOP, considering the levels that exist in the ordinary environment, Korea’s ALARA, and the qualitative element of the Korea’s ALOP, questions still arise as to whether the testing requirement suggested by Japan of 100 Bq/kg caesium tolerance level for food consumption, ten times higher than the international tolerance level for food consumption, will meet Korea’s ALOP.

3. Whether Korea’s measures arbitrarily and unjustifiably discriminate between Japanese products and those of other WTO Members (Article 2.3)

Three recent cases of animal quarantine set a precedent in the interpretation of Article 2.3. The Appellate Body in India – Agricultural Products supported the Panel’s finding that risks associated with low pathogenicity notifiable avian influenza (LPNAI), which India is facing, constitute conditions similar to those in other WTO Members, including the United States. Following the analytical approach of the Panel in India – Agricultural Products, the Panel in Russia – Pigs also examined whether African Swine Flu (ASF) was present in the territories of the WTO Members, as well as the risks associated with that disease. The Panel in the United States – Animals found that identical or similar conditions prevailed in Northern Argentina and Uruguay on one hand, and Patagonia, Santa Catarina, and Chile on the other, when comparing the levels of foot-and-mouth disease (FMD) and the risks posed by imports of fresh (chilled or frozen) beef from Northern Argentina and Uruguay. The Panel found this while assessing the presence of FMD or otherwise, in either region – taking note of the OIE FMD status assigned to such regions – and assessing the credibility of the sanitary measures put in place to prevent and control FMD.

It should be noted that the OIE FMD status assigned to these regions and regionalisation pursuant to the OIE code played a central role in finding inconsistencies with Article 2.3 in all three cases. The Panel, in this case, found that food products from Japan and from other origins have a similar potential for contamination with relevant radionuclides below their respective Codex tolerance levels, holistically assessing the totality of the evidence provided to the Panel, including the data provided by both the parties and international organisations, as well as comments by experts who the Panel selected in accordance with Article 13.2 of the DSU.

The Appellate Body reversed the Panel’s finding that Korea’s measures were inconsistent with Article 2.3, since the Panel erred in its interpretation of Article 2.3 by considering that relevant “conditions” under this provision may be exclusively limited to “the risk present in products”, to the exclusion of other conditions, including territorial conditions, that have the potential to affect the products at issue.

Just as importantly, in abstaining from finding less trade-restrictive measures, the Panel respected and valued the discretion of the defending party to take SPS measures necessary for the protection of human, animal, or plant life, or health. It is reasonable to conclude that the Appellate Body abstained from finding the existence or non-existence of present and potential risks and from comparing the risks between WTO Members without official and formal findings of the said risks and without the international standards declared by the relevant international standard-setting organisations, eg the official disease status by the OIE and OIE codes.

4. Suggested unrealistic tough standards with respect to the provisional measures pursuant to Article 5.7 of the SPS Agreement

To date, a WTO Member has never successfully adopted provisional measures pursuant to Article 5.7 of the SPS Agreement. The Panel noted that Korea adopted the 2011 additional testing requirement on an emergency basis in the absence of a risk assessment, with insufficient scientific evidence present at that time.

The Panel found that Korea based its 2011 additional testing requirement and the product-specific import bans on available pertinent information and did seek out additional information from Japan. However, Korea did not review the measures within a reasonable time. According to the Panel, the blanket import ban and the 2013 additional testing requirements were not based on available pertinent information. The panel in Japan – Agricultural products II and the Appellate Body also found inconsistency with Article 5.7 in this regard, since a party that wished to invoke Article 5.7 did not obtain the information necessary for a more objective assessment of risk and review measures within a reasonable period of time.Footnote 92

The Panel recognised that there was uncertainty and dispute between parties about the total amount of radioactive materials that continued to be released into the ocean. The Japanese authorities disclosed every leakage event reported from the Tokyo Electric Power Company (TEPCO), the operator of the FDNPP, and informed the public of their suspicions, if any. A certain amount of scientific information was still available, including a New York Times article as well as a National Geographic article, published prior to Korea’s adoption of the blanket import ban and the 2013 additional testing requirements. The Panel recalled that scientific evidence need not be 100% complete or perfect to be sufficient to form the basis for an objective assessment of the risk. The application of Article 5.7 is triggered not by the existence of scientific uncertainty but rather by the insufficiency of scientific evidence.

As Japan had not made a claim of inconsistency under Article 5.7 and Korea did not invoke Article 5.7 as a defence, the Appellate Body declared the Panel’s findings under Article 5.7 to be moot and of no legal effect. In this sense, it is reasonable that the Appellate Body made this declaration, since the Panel misleadingly interpreted the provisional measures pursuant to Article 5.7 of the SPS Agreement. However, as Cai and Kim rightly pointed out, the rigorous examination of four requirements by the Panel in line with the jurisprudence of past panels and the Appellate Body made it very difficult, if not impossible, for the WTO Members to adopt and maintain provisional measures.Footnote 93 It remains an open question as to which measures an importing county may adopt as provisional measures pursuant to Article 5.7 of the SPS Agreement.

5. Remand authority of the appellate body

Only the Panel can examine and find issues of fact. Parties to the dispute may only appeal issues of law covered in the Panel report and legal interpretations developed by the Panel. The Appellate Body may only uphold, modify, or reverse the legal findings and the conclusions of the Panel. The limitation of appeals to issues of law, coupled with the absence of remand authority, has led the Appellate Body to seek resolution using a technique it has called “completing the analysis”.Footnote 94

However, in the aforementioned Australia – Salmon and Australia – Apples, the Appellate Body was unable to complete legal analysis in accordance with proper interpretation modified by the Appellate Body due to the insufficiency of the factual findings of the Panel and of facts that are undisputed between the parties.Footnote 95 It is unusual for the Appellate Body to successfully complete its legal analysis on the basis of fact-findings of the Panel and facts undisputed between the parties.

In the present case, the Appellate Body noted that no parties challenged the level of contaminants in Japanese food products, the relationship and ratios of different radionuclides based on releases from the FDNPP, and the potential dietary exposure of Korean consumers to radionuclides in food products.Footnote 96 As was the case with Australia – Salmon and Australia – Apples, the Appellate Body in this case found that certain findings of the Panel and the interpretative analysis embodied therein, constituted errors in legal interpretation and accordingly reversed them. The Appellate Body did not address whether evidence before the Panel could support a conclusion that the potential for contamination in Japanese and non-Japanese food products was sufficiently similar or dissimilar for purposes of applying the requirements of Article 2.3.Footnote 97

As explained above, the Panel cumulatively considered three elements of the first sentence of Article 2.3 in line with the jurisprudence of the Appellate Body in India – Agricultural Products. However, the Appellate Body in this case substantially modified its jurisprudence of Article 2.3 by finding that the relevant conditions under Article 2.3 must be identified subject to the particular nature of the measure and the specific circumstances of the case.Footnote 98 It should be noted that both parties and the Panel had not foreseen this substantial modification of the jurisprudence of Article 2.3 by Appellate Body. It is evident that both parties failed to allege, enter and develop a compelling argument on all relevant conditions in different WTO Member States, including territorial conditions that may not yet be manifested in products but are relevant in light of the regulatory objective and specific SPS risks at issue. It is clear that the Panel also failed to make a relevant finding, either factual or legal, on this issue since both parties failed to allege, enter and develop a compelling argument in this regard.

Article 3.7 of the DSU clearly states that the aim of the DSM is to secure a positive solution to a dispute. The Appellate Body left a substantive issue undecided, with an unsatisfactory result for complaint. This result does not seem to be consistent with the objective of achieving positive and meaningful solutions to the dispute; rather, it leads to a denial of justice for parties to a dispute.Footnote 99

In these circumstances, the WTO DSM fails to contribute in settling the dispute positively and meaningfully since the Appellate Body failed to complete its legal analysis on the inconsistency of the Korea’s measures on the basis of the fact findings and the facts uncontested between both disputing parties. In this regard, it proves a strong case that the Appellate Body should have remand authority to return the case to original Panel to secure a positive and meaningful solution to a dispute in the WTO DSM.

V. Conclusion

In this dispute, Japan did not insist that Korea import Japanese radiation-contaminated food containing more than Korea’s tolerance level of 100 Bq/kg of caesium. Japan agreed that Korea’s import ban was on Japanese food that contained more than 100 Bq/kg of caesium. They also did not claim that Korea’s tolerance level in food was not based on the Codex standards. Japan was moot as to whether Korea had conducted an appropriate risk assessment in accordance with the SPS Agreement.

Under these circumstances, the Appellate Body followed jurisprudence that respected and valued Members’ discretion to take SPS measures necessary for the protection of human, animal, or plant life, or health and, by doing so, reversed most of the Panel’s findings that Korea’s measures were inconsistent with the SPS Agreement.

However, since Japan did not invoke science-based provisions in the SPS Agreement in this dispute, it continues to be an open question as to whether Korea’s measures were based on scientific principles.

As for the reversals of the Panel’s findings on inconsistency with Article 5.6, the Appellate Body should have been more careful in identifying Korea’s ALOP in qualitative terms. The Appellate Body reviewed the factual aspects of the Panel Report regarding Korea’s ALOP and based its decision on what the Panel did not actually mean to find. One might consider that this is inconsistent with Article 17.6 of the DSU, which limits the scope of the Appellate Body’s review only to issues of law covered in the Panel Report.

As for the reversals of the Panel’s findings on inconsistency with Article 2.3, the Appellate Body failed to complete its legal analysis of the inconsistency of the Korea’s measures based on the fact-findings and the facts uncontested between both disputing parties. Since, the Appellate Body could not reach a satisfactory result, a substantive issue was left undecided. Moreover, the objective of achieving a desired solution remains unfulfilled and the disputing parties are denied justice.

Since the Appellate Body lacks the remand authority to return the case to the original Panel in the current DSU,Footnote 100 Japan has no choice but to start from the beginning of WTO DSM and it has to begin by requesting consultation on the continuing maintenance of Korea’s measures after the establishment of the original Panel, inconsistent with the relevant provisions of the SPS Agreement. The financial implications of repeating the process is huge and it leads to the wastage of time and resources. Moreover, overlap with earlier disputes could create procedural difficulties for the complaint, in the sense that at least part of the complaint may have already been heard and the decision may have been reached.Footnote 101 However, by starting the WTO DSM again, Japan may appeal a strong case that the Appellate Body should have remand authority to secure a positive and meaningful solution to a dispute in the WTO DSM. Even so, a considerable period of time may go by before this dispute is settled.

Footnotes

We are deeply grateful to the anonymous reviewer(s) for useful comments and suggestions on this article. This work was supported by Japan Society for the Promotion of Science.

1 Panel Report, Korea – Import Bans, and Testing and Certification Requirements for Radionuclides, WT/DS495/R, 26 April 2019, paras 2.44–2.46.

2 Footnote ibid, para 2.51.

3 Footnote ibid, para 7.84.

4 Footnote ibid, para 7.86.

5 Agreement on the Application of Sanitary and Phytosanitary Measures, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493.

6 WTO, “Korea – Import Bans, and Testing and Certification Requirements for Radionuclides: Request for the Establishment of a Panel by Japan, WT/DS495/3, 21 August 2015.

7 Understanding on Rules and Procedures Governing the Settlement of Disputes, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 UNTS 401.

8 Statement by Japan at the DSB, available at <www.mofa.go.jp/press/release/press4e_002439.html>, accessed 15 October 2019.

9 Appellate Body Report, India – Measures Concerning the Importation of Certain Agricultural Products, WT/DS430/AB/R, 4 June 2015, para 5.203; Appellate Body Report, Australia – Measures Affecting the Importation of Apples from New Zealand, WT/DS367/AB/R, 29 November 2010, para 342; Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/DS18/AB/R, 20 October 1998, para 199.

10 Appellate Body Report, Australia – Salmon, supra note 9, para 206.

11 Appellate Body Report, India – Agricultural Products, supra note 9, para 5.221; Appellate Body Report, Australia – Salmon, supra note 9, para 207.

12 Panel Report, Korea – Radionuclides, supra note 1, paras 7.341, 7.354.

13 Footnote ibid, para 7.172.

14 Footnote ibid, para 7.165.

15 Footnote ibid, para 7.158.

16 Footnote ibid, para 7.172.

17 Footnote ibid, para 7.220.

18 Footnote ibid, para 7.222.

19 Footnote ibid, para 7.226.

20 Footnote ibid, paras 7.228–7.237.

21 Footnote ibid, paras 7.253–7.256.

22 Appellate Body Report, Korea – Import Bans, and Testing and Certification Requirements for Radionuclides, WT/DS495/AB/R, 11 April 2019, paras 5.26–5.37.

23 Footnote ibid, paras 5.38–5.39.

24 Appellate Body Report, India – Agricultural Products, supra note 9, para 5.261.

25 Panel Report, Korea – Radionuclides, supra note 1, para 7.259.

26 Appellate Body Report, India – Agricultural Products, supra note 9, para 5.261.

27 Panel Report, Korea – Radionuclides, supra note 1, para 7.283.

28 Footnote ibid, paras 7.291–7.298.

29 Footnote ibid, para 7.305.

30 Footnote ibid, para 7.324.

31 Footnote ibid, para 7.332.

32 Footnote ibid, paras 7.341–7.355.

33 Footnote ibid, para 7.360.

34 Appellate Body Report, Korea – Radionuclides, supra note 22, paras 5.64–5.65.

35 Footnote ibid, para 5.90.

36 Panel Report, Korea – Radionuclides, supra note 1, paras 7.476, 7.487.

37 Footnote ibid, paras 7.501–7.502.

38 Footnote ibid, para 7.503.

39 Appellate Body Report, Korea – Radionuclides, supra note 22, paras 5.189–5.199.

40 Panel Report, Korea – Radionuclides, supra note 1, para 7.520.

41 Appellate Body Report, Korea – Radionuclides, supra note 22, paras 5.216–5.219.

42 Panel Report Korea – Radionuclides, supra note 1, para 7.447.

43 Footnote ibid, para 7.408.

44 Footnote ibid, para 7.414–7.415.

45 Footnote ibid, para 7.421.

46 Footnote ibid, para 7.444.

47 Panel Report, Japan – Measures Affecting Agricultural Products, WT/DS76/R, 22 February 1999, para 89.

48 Panel Report, Korea – Radionuclides, supra note 1, para 7.75.

49 Footnote ibid, para 7.84.

50 Footnote ibid, para 7.85. It should be noted that the Panel does not refer to Japan’s assessment at issue as a risk assessment taken pursuant to Article 5.1 of the SPS Agreement.

51 Footnote ibid, para 7.96.

52 Footnote ibid, para 7.98.

53 Footnote ibid, para 7.99.

54 Footnote ibid, para 7.107.

55 Footnote ibid, para 7.111.

56 Appellate Body Report, Korea – Radionuclides, supra note 22, para 6.5.

57 J Scott, The WTO Agreement on Sanitary and Phytosanitary Measures: A Commentary (Oxford University Press 2009) at 3; J Peel, Science and Risk Regulations in International Law (Cambridge University Press, 2011) at 5. Both remarkably criticise that the SPS Agreement introduces the science-based requirements, which are so loose as to be essentially unworkable in their own terms.

58 Scott, supra note 57, at 77.

59 Scott explains that there are four key science-based obligations. However, taking into proper consideration the recent development of SPS disputes, there should be five key science-based obligations. Art 3.1, requiring that SPS measures be based on international standards, has received considerable attention in recent years: Footnote ibid, at 81.

60 According to Kawase, Japan made a well-balanced policy decision not to invoke these science-based provisions in this dispute: T Kawase, “‘3.11’ and ‘Food Safety’ in International Trade: Review of the WTO Case on Korea – Radionuclides” (in Japanese) RIETI Column, 9 March 2018, available at <www.rieti.go.jp/jp/columns/a01_0494.html>, accessed 15 October 2019. It is a wisdom of hindsight that Japan should have invoked these science-based provisions in this dispute: T Kawase, “A re-examination of Korea – Radionuclides: After the Appellate Body Report” (in Japanese), RIETI Column, 16 April 2019, available at <www.rieti.go.jp/jp/special/special_report/105.html>, accessed 15 October 2019.

61 But cf Arcuri and Gruszczynski, who concluded that the Appellate Body had carefully balanced the needs of trade liberalisation with the respect to other values, such as the protection of safety, which were embedded in the principle of regionalisation in Russia – Pigs. See more, A Arcuri and L Gruszczynski, “Pigs, African Swine Fever and the Principle of Regionalisation: Comments on the Appellate Body Report in the Russia – Pigs Dispute” (2018) 9(1) EJRR 137. This conclusion is definitely rational. More generally, see Scott, supra note 57, at 3–4, 77–80.

62 Kawase, supra note 60.

63 A Seibert-Fohr, “Article 2 SPS” in R Wolfrum, PT Stoll and A Seibert-Fohr (eds), WTO-Technical Barriers and SPS Measures (Brill 2007) 392 at 393.

64 Health hazards caused by radiation exposure can generally be classified into those having “deterministic effect” and those having “stochastic effect”. High doses of radiation cause the killing of cells, resulting in irreversible destruction of human tissue. Such effects are termed “deterministic effects” or “tissue responses” (eg hair loss, cataracts, skin disorders). DNA damaged by radiation exposure sometimes fails to repair its lesions leading to the mutation of somatic cells. The proliferation of such cells may cause adverse effects on the human body (eg cancer). Such effects are termed “stochastic”. See, for example, A Martin et al, An Introduction to Radiation Protection, 7th edn (CRC Press 2019) at 25–35.

65 Ministry of Health, Labour and Welfare of Japan, “New Standard Limits for Radionuclides in Foods”, 2012, available at <www.mhlw.go.jp/english/topics/2011eq/dl/new_standard.pdf>, accessed 15 October 2019.

66 ICRP, The 2007 Recommendations of the International Commission on Radiological Protection, ICRP Publication 103. Ann. ICRP 37 (2 − 4) (2008), para 83.

67 See, for example, Appellate Body Report, Australia – Salmon, supra note 9, para 200 (noting that “[t]he ‘appropriate level of protection’ established by a Member and the ‘SPS measure’ have to be clearly distinguished. They are not one and the same thing. The first is an objective, the second is an instrument chosen to attain or implement that objective”).

68 ICRP, Protection of the public in situations of prolonged radiation exposure, ICRP Publication 82. Ann. ICRP 29 (1–2) (1999), para (y).

69 Codex Alimentarius Commission, Codex Guideline Levels for Radionuclides in Foods Contaminated Following a Nuclear or a Radiological Emergency for Use in International Trade. CAC/GL 5-2006 (2006).

70 The term “qualitative ALOP” appears only once in its Report: Panel Report, Korea – Radionuclides, supra note 1, para 7.247.

71 Footnote ibid, para 7.172.

72 Footnote ibid, paras 7.173, 7.245.

73 For example, the Appellate Body noted that the Panel had accepted that Korea’s ALOP “consists of both qualitative and quantitative aspects”: Appellate Body Report, Korea – Radionuclides, supra note 22, paras 5.26, 5.37.

74 Footnote ibid, paras 5.38–5.39.

75 See eg Appellate Body Report, Australia – Salmon, supra note 9, para 206.

76 Panel Report, India – Measures Concerning the Importation of Certain Agricultural Products, WT/DS430/R, 14 October 2014, para 7.562. See also SPS Committee, Guidelines to Further the Practical Implementation of Article 5.5, G/SPS/15, 18 July 2000. It is noted that “[t]he use of quantitative terms, where feasible, to describe the appropriate level of protection can facilitate the identification of arbitrary or unjustified distinctions in levels deemed appropriate in different situations.”

77 Appellate Body Report, Australia – Salmon, supra note 9, para 206. See also Appellate Body Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, 16 October 2008, para 523.

78 For example, the Panel in US – Animals noted that “[as] expressions of a general objective, ALOPs are often set forth in a qualitative and generic manner”: Panel Report, United States – Measures Affecting the Importation of Animals, Meat and Other Animal Products from Argentina, WT/DS447/R, 24 July 2015, para 7.380.

79 Panel Report, India – Agricultural Products, supra note 76, paras 7.567–7.570. The panel in US – Animals also recognised the ALOP set by the US regarding the risk of entry, establishment or spread of foot-and-mouth disease within the US as “being higher than that achieved by the Terrestrial Code and somewhere between low and zero risk.” Panel Report, US – Animals, supra note 78, paras 7.377–7.382, 7.387.

80 See L Gruszczynski, Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement (Oxford University Press 2010) at 118. As to ALOP in the SPS Agreement, see PC Mavroidis, The Regulation of International Trade: The WTO Agreements on Trade in Goods (MIT Press 2016) at 479–482.

81 For example, the panel in EC – Hormones held that “[a] level of protection can thus, inter alia, be expressed by way of setting a maximum amount of residues allowed for daily intake by humans over a lifetime (often defined as acceptable daily intake or ADI)”: Panel Report, European Communities – Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, WT/DS26/R/USA, 18 August 1997, para 8.74.

82 Appellate Body Report, India – Agricultural Products, supra note 9, para 5.221.

83 Panel Report, Korea – Radionuclides, supra note 1, para 7.164.

84 Yamashita also pointed out that “[in] practical terms as well, it is questionable how such a vague ALOP can serve as a basis for conducting risk assessments and establishing SPS measures. K Yamashita, “Did Tokyo Lose to Seoul in the WTO’s Ruling on the Import Ban on Marine Products from the Areas Affected by the Nuclear Accident?: The Course of Action that Japan Should Take” (in Japanese), RONZA, 4 June 2019, available at <www.canon-igs.org/en/column/macroeconomics/20190604_5822.html>, accessed 15 October 2019.

85 Kawase, supra note 60.

86 Art 17.6 of the DSU reads that “[a]n appeal shall be limited to issues of law covered in the Panel Report and legal interpretations developed by the panel.”

87 See more precisely well-analysed case reviews: L Gruszczynski, “United States: Certain Measures Affecting Imports of Poultry from China – Just Another SPS Case?” (2011) 2(3) EJRR 432; Arcuri and Gruszczynski, supra note 61.

88 Panel Report, Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union, WT/DS475/R, 19 August 2016; Appellate Body Report, Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union, WT/DS475/AB/R, 23 February 2017.

89 Panel Report, Australia – Measures Affecting Importation of Salmon – Recourse to Article 21.5 of the DSU by Canada, WT/DS18/RW, 18 February 2000.

90 Panel Report, Japan – Measures Affecting the Importation of Apples – Recourse to Article 21.5 of the DSU by the United States, WT/DS245/RW, 23 June 2005.

91 According to Japan, Japan regulates overall dose exposure by using the 100 Bq/kg limit for caesium as a proxy for the other radionuclides without specifically testing for them in light of the characteristic of the FDNPP accident. See more, Panel Report, Korea – Radionuclides, supra note 1, para 2.28.

92 Panel Report, Japan – Agricultural Products, supra note 47, para 92.

93 Y Cai and E Kim, “Sustainable Development in World Trade Law: Application of the Precautionary Principle in Korea – Radionuclides” (2019) 11(7) Sustainability 1942 at 13.

94 A Yanovich and T Voon, “Completing the Analysis in WTO Appeals: The Practice and its Limitations” (2006) 9(4) JIEL 933 at 937.

95 Appellate Body Report, Australia – Salmon, supra note 9, para 213; Appellate Body Report, Australia – Apples, supra note 9, para 385.

96 Appellate Body Report, Korea – Radionuclides, supra note 22, para 5.37.

97 Footnote ibid, para 5.90.

98 Footnote ibid, para 5.59.

99 F Pierola, “The Question of Remand Authority for the Appellate Body” in A Mitchell (ed), Challenges and Prospects for the WTO (Cameron May 2005) 193 at 208.

100 Yanovich and Voon, supra note 94, at 937.

101 Footnote ibid, at 947. However, since Japan did not invoke science-based provisions in the SPS Agreement in this dispute, these procedural difficulties may be alleviated to some degree.

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