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

Published online by Cambridge University Press:  11 June 2021

Rachel Brewster  and
Carolyn Fischer
Rachel Brewster*
Affiliation:
The Jeffrey and Bettysue Hughes Professor of Law and Co-Director of the Center for International and Comparative Law at Duke Law School
Carolyn Fischer
Affiliation:
Canada 150 Research Chair in Climate Economics, Innovation, and Policy, University of Ottawa Department of Spatial Economics, Vrije Universiteit, Amsterdam Resources for the Future, Washington, DC
*
*Corresponding author: Email: [email protected]
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Abstract

The 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.

Keywords

WTOSPS AgreementAppropriate Level of Protection
Type
Original Article
Information
World Trade Review , Volume 20 , Special Issue 4: WTO Case Law , October 2021 , pp. 524 - 532
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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References

British Broadcasting Corporation (BBC) (2019) ‘Japan Beer Exports to Korea Hit Zero Amid Trade Spat’, 28 November 2019.Google Scholar
Bown, C.P. (2005) ‘Participation in WTO Dispute Settlement: Complainants, Interested Parties, and Free Riders’, The World Bank Economic Review 19(2), 287–310.CrossRefGoogle Scholar
Brazinsky, G. (2019) ‘How Japan's Failure to Atone for Past Sins Threatens the Global Economy’, Washington Post, 11 August 2019.Google Scholar
Cai, Y. and Kim, E. (2019) ‘Sustainable Development in World Trade Law: Application of the Precautionary Principle in Korea-Radionuclides’, Sustainability 11(7), 1942–1960.CrossRefGoogle Scholar
Cramer, L. and Bunge, J. (2020) ‘Food Exporters Resist China's New Coronavirus Restrictions’, Wall Street Journal, 25 June 2020.Google Scholar
European Commission Press Release (2011), ‘Food Safety: The EU Reinforces Controls on Imports from Japan’, 24 March 2011.Google Scholar
Harding, R. and White, E. (2019) ‘Divided by History: Why Japan-Korea Ties Have Soured’, Financial Times, 23 October 2019.Google Scholar
Fiorini, M., Hoekman, B., Mavroidis, P.C., and Nelson, D. (2020) ‘Stakeholder Preferences and Priorities for the Next WTO Director General’, Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS, 43.Google Scholar
Loew, C. (2019) ‘WTO Appellate Body Upholds Korean Restrictions on Japanese Food Imports’, SeafoodSource, Osaka, Japan.Google Scholar
McMurray, J. (2019) ‘Fukushima Fisherman Concerned for Future Over Release of Radioactive Water’, The Guardian, 15 September 2019.Google Scholar
Rich, M. and Inoue, M. (2019) ‘Japan Wants to Dump Nuclear Plant's Tainted Water: Fishermen Fear the Worst’, New York Times, 23 December 2019.Google Scholar
Sang-Han, C. and Gladstone, R. (2018) ‘How a World War II-Era Reparations Case Is Roiling Asia’, New York Times. 30 October 2018.Google Scholar
Sekiguchi, T. and Jun, K. (2014) ‘Japan, Korea Ban Each Other's Fishing Boat’, Wall Street Journal, 4 July 2014.Google Scholar
Shepard, C. and Zhou, E. (2020) ‘China Targets Frozen Good After Brazilian Chicken Test Positive’, Financial Times, 14 August 2020.Google Scholar
Sohlberg, M. and Yvon, A. (2019) ‘Korea – Import Bans, and Testing and Certification Requirements for Radionuclides (Korea–Radionuclides (Japan)), DS495’, World Trade Review 18(3), 533–535.CrossRefGoogle Scholar
The Japanese Times (2019) ‘Japan Pitches Safety of Food from Fukushima and Tohoku in Wake of WTO Ruling for Korea’, 12 April 2019.Google Scholar
The Japanese Times (2020) ‘Fukushima Localities Speak Out Against Dumping Radioactive Water in Sea’, 17 July 2020.Google Scholar
Treich, N. (2001) ‘What is the Economic Meaning of the Precautionary Principle?’, The Geneva Papers on Risk and Insurance. Issues and Practice 26(3), 334–345.CrossRefGoogle Scholar