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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 HAMADA Open the ORCID record for Taro HAMADA [Opens in a new window]  and
Yoshimichi ISHIKAWA
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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.

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

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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.

References

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 ibid, para 2.51.

3 ibid, para 7.84.

4 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 ibid, para 7.172.

14 ibid, para 7.165.

15 ibid, para 7.158.

16 ibid, para 7.172.

17 ibid, para 7.220.

18 ibid, para 7.222.

19 ibid, para 7.226.

20 ibid, paras 7.228–7.237.

21 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 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 ibid, paras 7.291–7.298.

29 ibid, para 7.305.

30 ibid, para 7.324.

31 ibid, para 7.332.

32 ibid, paras 7.341–7.355.

33 ibid, para 7.360.

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

35 ibid, para 5.90.

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

37 ibid, paras 7.501–7.502.

38 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 ibid, para 7.408.

44 ibid, para 7.414–7.415.

45 ibid, para 7.421.

46 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 ibid, para 7.84.

50 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 ibid, para 7.96.

52 ibid, para 7.98.

53 ibid, para 7.99.

54 ibid, para 7.107.

55 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: 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 ibid, para 7.172.

72 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 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 ibid, para 5.90.

98 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 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.