Fishy SPS Measures? The WTO's Korea – Radionuclides Dispute

Rachel Brewster,Carolyn Fischer

doi:10.1017/s1474745621000112

Abstract

AbstractThe Korea–Radionuclides case addresses Korean SPS measures imposed on Japanese fishery products after the Fukushima Dai-ichi nuclear plant meltdown in 2011. Japan challenged these measures as more restrictive than necessary under the SPS Agreement. The panel agreed with Japan, but this ruling was largely reversed by the Appellate Body. Korea's victory at the Appellate Body was based on procedure. The panel accepted Korea's appropriate level of protection (ALOP), which included both quantitative and qualitative elements. However, the Appellate Body found that the panel only addressed the quantitative aspect of Korea's ALOP and reversed on that basis. The Appellate Body's ruling did not affirmatively find that Korea's SPS measures were legal under WTO rules. Instead, the Appellate Body found that panel had not sufficiently addressed Korea's arguments and, thereby, the panel could not determine that the SPS measures were more restrictive than necessary. The case highlights the need for the Appellate Body to be able to conduct its own factual analysis, a power it could be given if the dispute settlement system is reformed. Without independent fact-finding power, the Appellate Body cannot correct panels’ mistakes, and respondents can prevail based on panel error.

Highlights

The Appellate Body’s report (AB report) in the Korea-Radionuclides decision provided Korea with a legal victory in its dispute with Japan regarding SPS measures on the imports of seafood
The AB report nullified the panel report’s findings without deciding whether the Korean measures were consistent with the SPS Agreement or not
Japan effectively lost this case because of the erroneous findings of the panel, not because the Appellate Body found the Korean measures to be justified under WTO rules

Summary

Introduction

The Appellate Body’s report (AB report) in the Korea-Radionuclides decision provided Korea with a legal victory in its dispute with Japan regarding SPS measures on the imports of seafood. The Appellate Body reversed the panel report’s most important findings for Japan that Korea’s SPS measure was more restrictive than necessary not on its merits, but because the panel did not fully consider Korea’s claim that its appropriate level of protection included both qualitative and quantitative elements. The panel report was not repudiated on substantive grounds, so Japan may still be able to prevail in claims against other WTO members This possibility may make some countries more willing to lift restrictions on Japanese imports through negotiations rather than engage in WTO adjudication, the effects of the continued clean-up of the Fukushima Dai-ichi nuclear power plant may complicate these negotiations. The AB report raises questions about how concrete an appropriate level of protection must be formulated for WTO review This issue may become more relevant as China and possibly other states impose new restrictions on food imports based on COVID-19 risks. The report highlights whether dispute settlement reform (if any is forthcoming) should include a consideration of expanding the power of the Appellate Body to make the factual determinations necessary to complete its legal analysis

The Fukushima Disaster and Subsequent Trade Measures

The Panel and Appellate Body Reports

Findings

Implications for Japanese Bargaining to Lift Other Country’s SPS Measures