import ban on Japanese fish products held WTO-illegal
Published in SUNS #8629 dated 26 February 2018
Geneva, 23 Feb (Kanaga Raja) - A dispute panel at the World Trade
Organisation (WTO) has largely ruled that South Korea's imposition
of import bans on certain fishery products as well as additional testing
and certification requirements on all imported food products from
Japan in the wake of the Fukushima Dai-ichi Nuclear Power Plant (FDNPP)
accident in March 2011 were inconsistent with Korea's obligations
under the WTO.
In a ruling issued on 22 February (WT/DS495/R), the Panel found that,
to the extent that the measures at issue are inconsistent with Articles
5.6, 2.3, 7 and Annex B(1) and B(3) of the SPS (Sanitary and Phytosanitary
Measures) Agreement, they have nullified or impaired benefits accruing
to Japan under that agreement.
The Panel recommended that Korea bring its measures into conformity
with its obligations under the SPS Agreement.
The ruling appears largely to rely on the views of external experts
consulted by the Panel relating to the "safety" of food
products, and the acceptable level of content of cancer-causing radionuclides
(such as isotopes of Caesium, Iodine, Strontium and Plutonium) in
the food products, rather than levels of such elements and their continued
leakage from the Fukushima Dai-ichi nuclear power plant.
BACKGROUND AND SOME FACTUAL ASPECTS
Japan had requested consultations with Korea on 21 May 2015, and consultations
were held on 24 and 25 June 2015, but these failed to resolve the
On 20 August 2015, Japan requested the establishment of a panel in
the dispute, and at its meeting on 28 September 2015, the Dispute
Settlement Body (DSB) agreed to established a panel.
In conducting its analysis in this dispute, the Panel consulted several
scientific experts and international organizations.
According to the Panel report, the Panel contacted the Codex Alimentarius
Secretariat, the United Nations Food and Agriculture Organisation
(FAO), the International Atomic Energy Agency (IAEA), the International
Commission on Radiological Protection (ICRP), the United Nations Scientific
Committee on the Effects of Atomic Radiation (UNSCEAR), and the World
Health Organisation (WHO) and sought their assistance in identifying
scientific or technical experts in the following areas:
(i) release of nuclear materials into the environment (by accident
or by other means); (ii) radionuclide contamination in food including
testing methods and any differences in contamination based on the
source of contamination (air, groundwater, or naturally occurring);
and (iii) radionuclides in marine environments including issues of
radionuclide deposits in the ocean and levels of radioactivity in
According to the Panel report, radionuclides - nuclides that are radioactive
- are a source of ionizing radiation. Radionuclides occur in both
natural and man-made forms throughout the world and humans are exposed
to them on a continuous basis. Natural sources of ionizing radiation
can be found in soil, water, or vegetation; certain X-rays and medical
devices are a source of human-made ionizing radiation.
They can also occur as a consequence of nuclear weapons usage or testing
or following accidental events in nuclear facilities.
The common radionuclides in food are potassium-40 (K-40), radium-226
(Ra-226) and uranium 238 (U-238) and their associated progeny. In
general, K-40 is the most commonly occurring natural radionuclide
When large amounts of radioisotopes are discharged into the environment,
they can affect foods by either falling onto the surface of foods
like fruits and vegetables or animal feed as deposits from the air
or through contaminated rain or snow. Radioactivity in water can also
accumulate in rivers and the sea, depositing on fish and seafood.
Radionuclides generated in nuclear installations that could be significant
for the food chain include radioactive hydrogen (H-3), carbon (C-14),
technetium (Tc-99), sulphur (S-35), cobalt (Co-60) strontium (Sr-89
and Sr-90), ruthenium (Ru-103 and Ru-106), iodine (I-131 and I-129),
uranium (U-235) plutonium (Pu-238, Pu-239 and Pu-240), caesium (Cs-134
and Cs-137), cerium (Ce-144), iridium (Ir-192), and americium (Am-241).
Korea informed Japan that the twenty radionuclides listed in the Codex
Alimentarius Commission General Standard for Contaminants and Toxins
in Food and Feed, CODEX STAN 193-1995 (CODEX STAN 193-1995), were
the subject of Korea's concerns with respect to food-borne radionuclides.
Because of prior release events resulting from the Chernobyl accident
and nuclear weapons detonations, these 20 radionuclides - most of
which are man-made - can be found at varying levels, everywhere in
The Panel said there are six radionuclides that are particularly referenced
in this dispute: caesium (Cs-134 and Cs-137), strontium (Sr-90), plutonium
(Pu-239 and 240) and radioactive iodine (I-131).
As to the radioactive contamination from FDNPP, the Panel noted that
based on estimates, approximately 17.5 PBq of Cs-134 and 15 Pbq of
Cs-137 were released via the atmospheric fallout, 5 PBq of Cs-137
was directly discharged into the environment, 15-20 TBq/year of Cs-137
is released via ongoing groundwater discharge, and 10-12 TBq/year
is released through ongoing river runoff. The total atmospheric release
of I-131 was estimated to be approximately 150-160 PBq. In total,
approximately 1.0-2.4 x 109 Bq of Pu-239 and 240 was released into
the environment from the FDNPP reactors.
Most of the Sr-90 released from the FDNPP was directly discharged
into the North Pacific, with estimates of total inventories ranging
from 0.04 to 1.0 PBq.
"Estimates to this day have varied and there is no definitive
calculation of the amounts released," it said.
"It is undisputed that exposure to ionizing radiation can have
detrimental impacts on human health. The types of adverse health effects
depend on whether the exposure is to high doses (a deterministic effect)
or to low doses (stochastic effects)," said the Panel.
It is the risk of these stochastic effects from the potential presence
of radionuclides in food exports from Japan that Korea states it is
addressing through the measures at issue. One of the most significant
adverse health effects of low radiation doses is radiation-induced
The Panel noted that Japan does not challenge all of the measures
Korea has imposed in response to the FDNPP accident and its aftermath.
For example, Japan does not challenge Korea's requirement to provide
a certificate of origin with all products imported into Korea from
Japan. Japan does not challenge Korea's requirements that all consignments
from Japan, regardless of product or prefecture of origin, be tested
for caesium at the border.
Japan also does not challenge any of Korea's non-fishery product-specific
import bans. As of the Panel's establishment on 28 September 2015,
27 non-fishery products from 13 prefectures are subject to product-specific
In these dispute proceedings, Japan challenges the additional testing
requirements dated 2011 for non-fishery products (except livestock)
and dated 2013 for fishery and livestock products when trace amounts
of caesium or iodine are detected.
Japan also challenges two types of import bans: (a) the product-specific
import bans dated 2012 on Alaska pollock from Fukushima and on Pacific
cod from Aomori, Iwate, Miyagi, Ibaraki and Fukushima; (b) the blanket
import ban dated 2013 on all fishery products from 8 prefectures for
28 fishery products.
On whether Korea's measures are SPS measures, the Panel found that
Korea's import bans and additional testing requirements are applied
to protect human health from the risks arising from the presence of
contaminants in foods. These measures directly affect international
trade. Therefore, the measures are SPS measures within the meaning
of Article 1 of the SPS Agreement.
The Panel addressed the measures adopted after the immediacy of the
accident. In that regard, Korea argued that there continues to be
insufficient scientific evidence on the amount and types of radionuclides
released during and since the accident.
Korea adopted the product-specific import bans that are the subject
of Japan's claim (namely those on Alaska pollock from Fukushima and
Pacific cod from Aomori, Iwate, Miyagi, Ibaraki, and Fukushima) to
mirror 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.
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
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. Korea pointed
to news articles from July 2013 to argue 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.
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.
The Panel said that Korea is correct that it is unknown whether another
accident could happen at the FDNPP that would release even more radioactive
contamination into the environment - on land or water - and in what
amounts and combinations. The Panel is sensitive to Korea's fear that
an additional accident could increase the levels of radionuclides
contaminating food products in international commerce.
The Panel further noted that 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
After careful analysis, the Panel found that while there was an insufficiency
of scientific evidence with respect to the 2011 additional testing
requirements, this was not the case for the product-specific bans,
the blanket import ban, or the 2013 additional testing requirements.
Although there is an uncertainty with respect to the potential for
future nuclear accidents at the FDNPP or elsewhere, 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, it said.
The Panel said even if it finds in favour of Japan, if another accident
were to happen and contamination of food products were to increase,
nothing in this report would prevent Korea from imposing new measures
to ensure that its limits for radionuclides were enforced.
The Panel also found that Korea has based its 2011 additional testing
requirements and product-specific bans on available pertinent information.
However, this was not the case for the blanket import ban and the
2013 additional testing requirements.
In sum, Korea has failed to establish that there was insufficient
scientific evidence with respect to the product- specific bans, the
blanket import ban, or the 2013 additional testing requirements.
Korea has not demonstrated that it based the blanket import ban or
the 2013 additional testing requirements on available pertinent information.
Moreover, it has failed to review any of its measures within a reasonable
period of time. As none of the measures fulfils all four cumulative
elements of Article 5.7, the Panel found that Korea's measures do
not fall within the scope of Article 5.7.
On whether Korea's measures are more trade-restrictive than required,
the Panel noted that in the present dispute, Korea argues that, for
the additional testing requirements, the alternative measure proposed
by Japan is not significantly less trade restrictive than the current
Japan proposes a single alternative measure that it argues can achieve
Korea's appropriate level of protection (ALOP) with respect to the
challenged measures that Korea is currently imposing on all products.
Japan proposes 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
On whether Japan's proposed alternative measure is significantly less
trade restrictive than Korea's measures, the Panel noted that Japan
does not challenge the requirement for pre-export testing or that
randomly selected samples from all consignments from Japan be tested
for caesium and iodine, but rather the testing 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 provided the Panel with evidence as to 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) or in Japan. Japan also argues that it can take up to
six weeks for the tests to be conducted.
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.
The Panel also concluded that Japan has established that the proposed
alternative measure is technically and economically feasible.
The Panel noted that rigorous environmental and seawater monitoring
is in place in addition to the food monitoring programme in Japan.
Data from monitoring points in the harbour is available on an hourly
basis and publicly available.
It also noted that both parties use all the Codex guideline levels
for all the radionuclides except caesium. Both Japan and Korea have
adopted a level of 100 Bq/kg of caesium, which is 10 times lower than
the Codex standard.
In sum, said the Panel, Japan has proposed another measure that is
technically available and economically feasible and is significantly
less trade restrictive than the measures Korea currently applies.
With respect to whether Japan's alternative measure achieves Korea's
level of protection, the Panel found that it 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, the Panel found
that it would not have achieved Korea's ALOP for Pacific cod from
Fukushima and Ibaraki at the time the 2013 blanket import ban was
With respect to the 2013 additional testing requirements and the other
fishery products and prefectures subject to the blanket import ban,
the Panel found that Japan's alternative measure would have achieved
Korea's ALOP at the time the measures were adopted.
The Panel found that 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.
Therefore, the Panel found that 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.
The Panel found that 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.
It found that the blanket import ban (with the exception of the bans
on Pacific cod originating from Fukushima and Ibaraki) was adopted
in a manner inconsistent with Article 5.6 of the SPS Agreement because
it was more trade-restrictive than required.
The Panel found that the maintenance of the blanket import ban, with
respect to all 28 fishery products from all 8 prefectures, is inconsistent
with Article 5.6 of the SPS Agreement because it is more trade-restrictive
The Panel addressed Japan's claims 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 of other origins are similar, because they
pose similar SPS risks regulated by Korea's measures.
Japan argues that food from all over the world contains some amounts
of caesium and other Codex radionuclides due to past releases of radioactive
material to the atmosphere. Japan maintains that, as a result, Japanese
and non-Japanese food poses similar potential of containing caesium.
On whether Korea's measures discriminate between Japanese products
and those of other members, the Panel noted that between October 2012
and February 2015, Japan lifted its restrictions on Pacific cod and
Alaska pollock pursuant to its internal guidelines.
"Nevertheless, as already noted, Korea continues to maintain
its own bans and has not reviewed them as of the date of establishment
of the Panel. Indeed, instead of reviewing the product-specific bans
with an eye to removing them, in September 2013, Korea expanded its
import bans to cover all fishery products from eight Japanese prefectures,"
said the Panel.
Korea argues that the discriminatory treatment is justified. However,
Korea's arguments focus, once again, on the environmental conditions
in Japan and an array of hypothetical fears about future contamination,
the Panel added.
The Panel recalled that it has concluded that the potential contamination
of Japanese products is similar to that of products from the rest
of the world in that the caesium content is below 100 Bq/kg. Indeed,
in 2013 when the blanket import ban was adopted, all samples of the
28 fishery products from the 8 prefectures subject of Japan's claim,
except for 6 samples of Pacific cod from Fukushima and Ibaraki, were
found to contain well below 100 Bq/kg of caesium. The same conclusion
can be drawn for all of these 28 fishery products, including Pacific
cod, with respect to the maintenance of the blanket and the product-specific
The Panel also recalled its finding that most of samples of the 28
fishery products tested since October 2013 contained between 0 and
25 Bq/kg. As regards strontium and plutonium, the Panel recalled its
findings that their contribution to the risk of radiation exposure
from consumed food was minimal.
In light of very low levels of caesium and additional Codex radionuclides
detected in Japanese food, the Panel said it fails to see a rational
connection between an absolute import ban on these products and the
measure's stated purpose of protecting Korean consumers against the
risk posed by radionuclides in food in excess of Korea's tolerance
levels. In the Panel's view, Korea's import bans constitute the type
of "rigid and unbending requirement", which applies regardless
of the risk profile of imported products.
In addition, the Panel noted that Korea does not apply similar bans
to non-Japanese products expected to be highly contaminated, including
in excess of Korea's tolerance levels. Instead, for those products,
Korea applies a caesium tolerance level of 100 Bq/kg.
This, in the Panel's view, is a strong indication that the distinction
drawn by the measure is not rationally related to the stated regulatory
objective. Importantly, the Panel recalled its finding that another
measure exists which is technically and economically feasible, significantly
less trade restrictive, and achieves Korea's ALOP. The inconsistency
of the import bans (product specific and blanket) with Article 5.6
is a strong indication that any distinction in treatment is not rationally
related to the stated regulatory objective, but rather a further warning
signal that the discrimination resulting from Korea's import bans
is arbitrary or unjustifiable.
Following its analysis, the Panel concluded that Korea's maintenance
of product-specific bans on Alaska pollock from Fukushima and Pacific
cod from Aomori, Fukushima, Ibaraki, Iwate and Miyagi, as well as
of the blanket import ban on 28 fishery products from 8 Japanese prefectures
amounts to arbitrary or unjustifiable discrimination.
Likewise, the Panel found the discrimination resulting from the adoption
of the blanket import ban on 27 fishery products from the 8 prefectures,
and on Pacific cod from 6 prefectures (i.e. excluding Pacific cod
from Fukushima and Ibaraki), to constitute arbitrary or unjustifiable
The Panel also found that there is no rational connection between
the discrimination resulting from applying the additional testing
requirements to Japanese food products and the stated regulatory objective
of the measure.
Therefore, the Panel considers the discriminatory treatment afforded
by the additional testing requirements when they were adopted in 2013
as well as the maintenance of both the 2011 and the 2013 additional
testing requirements to constitute arbitrary or unjustifiable discrimination.
In conclusion, the Panel found that the 2013 additional testing requirements
and the blanket import ban with respect to the 27 fishery products
subject to Japan's claim from the 8 prefectures and Pacific cod from
6 prefectures, i.e. excluding Pacific cod from Fukushima and Ibaraki,
were inconsistent with Article 2.3, first sentence of the SPS Agreement
when Korea adopted them and, as a consequence, also with Article 2.3,
Moreover, by maintaining the product-specific and blanket import bans
on the 28 fishery products from the 8 prefectures and the 2011 and
2013 additional testing requirements on Japanese products, Korea acted
inconsistently with Article 2.3, first sentence of the SPS Agreement
and, as a consequence, with Article 2.3, second sentence.
The Panel exercised judicial economy on Japan's alternative reasons
for inconsistency of the measures with second sentence of Article
OVERALL FINDINGS AND RECOMMENDATIONS
The panel found that Korea's measures - the 2011 additional testing
requirements, the 2012 product-specific import bans on Alaska pollock
and Pacific cod from five prefectures, the 2013 additional testing
requirements, and the 2013 blanket import ban - are SPS measures within
the meaning of Article 1.1 and Annex A(1)(b) of the SPS Agreement
and thus, are subject to the obligations therein. Furthermore, the
Panel found that the measures do not fulfil the four requirements
in Article 5.7.
The Panel made the following findings on Japan's specific requests:
With respect to the obligation not to establish or maintain SPS measures
in a manner that is more trade-restrictive than required to achieve
their appropriate level of protection:
a. Korea's 2011 additional testing requirements and 2012 product-specific
import bans were not more trade- restrictive than required when adopted.
b. The Panel found that, at the time of the establishment of the Panel,
the 2011 additional testing requirements and 2012 product-specific
import bans were maintained in a manner inconsistent with Article
5.6 of the SPS Agreement because they were more trade-restrictive
c. The Panel found that the 2013 additional testing requirements were
adopted and maintained in a manner inconsistent with Article 5.6 of
the SPS Agreement because they were and are more trade-restrictive
d. The Panel found that the blanket import ban (with the exception
of the ban on Pacific cod originating from Fukushima and Ibaraki)
was adopted in a manner inconsistent with Article 5.6 of the SPS Agreement
because it was more trade-restrictive than required.
e. The Panel found that the blanket import ban with respect to all
28 fishery products from all 8 prefectures is maintained in a manner
inconsistent with Article 5.6 of the SPS Agreement because it is more
trade-restrictive than required.
With respect to the basic obligation in Article 2.3 for Members to
ensure that their SPS measures do not arbitrarily or unjustifiably
discriminate between Members where identical or similar conditions
prevail and to not apply SPS measures in a manner which would constitute
a disguised restriction on international trade:
a. The Panel found that the 2013 additional testing requirements and
the blanket import ban with respect to the 27 fishery products subject
to Japan's claim from the 8 prefectures and Pacific cod from 6 prefectures,
i.e. excluding Pacific cod from Fukushima and Ibaraki, were inconsistent
with Article 2.3, first sentence of the SPS Agreement and, as a consequence,
with Article 2.3, second sentence, when Korea adopted them.
b. The Panel found that, by maintaining the product-specific and blanket
import bans on the 28 fishery products from the 8 prefectures and
the 2011 and 2013 additional testing requirements on Japanese products,
Korea acted inconsistently with Article 2.3, first sentence of the
SPS Agreement and, as a consequence with Article 2.3, second sentence.
c. The Panel exercised judicial economy with regard to the other grounds
raised by Japan for inconsistency of Korea's measures with Article
2.3, second sentence.
With respect to the obligations in Article 8 and Annex C with respect
to the operation of control, inspection and approval procedures, the
Panel found that Japan has failed to establish that Korea acted inconsistently
with the provisions of Annex C(1), sub-paragraphs (a), (c), (e) and
(g) and, as a consequence, with Article 8 of the SPS Agreement in
respect of the adoption and maintenance of the 2011 and the 2013 additional
With respect to the transparency obligations in Article 7 and Annex
a. The Panel found that Korea has acted inconsistently with Annex
B(1), and as a consequence Article 7 of the SPS Agreement, with respect
to the publication of all of the challenged measures.
b. The Panel found that Korea's SPS Enquiry Point's failure to respond
at all to Japan's follow-up request in conjunction with its earlier
failure, is sufficient to establish that Korea acted inconsistently
with the obligation in Annex B(3) and as a consequence Article 7 of
the SPS Agreement.