The lingering consequences of the Fukushima disaster are now taking a new form ― trade agreements and international dispute settlement proceedings. Japan is now formally contesting the import ban imposed by the Korean government against fishery products from eight prefectures due to the consumer concern over contaminated water along the Fukushima coastline. The possibility of Japan filing a suit with the World Trade Organization is also being mentioned. If this plan materializes, this will be the third bilateral trade dispute brought to the WTO, after the laver quota dispute (2005) and the DRAM countervailing duty dispute (2006). As Korea was the complainant in these two previous disputes, this would be the first case brought by Japan against Korea. 

Last week’s visit of the Japanese government’s delegation indicated that Japan’s contention is apparently based on the WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures (“SPS Agreement”). This agreement allows a country to adopt an import restriction measure to guard against health risks and concerns, but only subject to fulfillment of specific homework ― (i) gathering relevant scientific evidence and (ii) conducting a scientific risk assessment before a measure is taken. Japan thus challenges whether Korea has completed these requirements.

The agreement carves out one exception, though. Article 5.7 permits a country to take an emergency import restriction (called a “provisional measure”) even if scientific evidence is insufficient, on the condition that the country continues to seek to obtain additional scientific information. Given the paucity of information and the urgency of the situation, Korea’s measure appears to have relied upon this provision at the moment. The provision, however, also imposes an affirmative obligation on the importing country, after a provisional measure is taken, to continue to gather scientific evidence and conduct a risk assessment in accordance with the SPS Agreement. So, even if Korea’s measure falls under the category of a provisional measure, the agreement still imposes specific homework to be completed.

In short, either before or after an import ban is put in place, an importing WTO member is obligated to carry out its conventional requirements of collecting scientific evidence and assessing the risk. Since 1995, there have been 11 WTO disputes involving the SPS Agreement, and the core issue posed consistently, in a nutshell, has been whether these requirements have been indeed fulfilled. Detailed guidelines have been developed from these precedents. So any prospective SPS dispute between the two countries will examine whether Korea, as an import ban imposing country, has checked off all the boxes.

What is meant by the scientific evidence principle of the SPS Agreement is that mere fear and public emotion, without the support of scientific justification, do not offer, at least among WTO members, legitimate basis for an import restriction. Invocation of such grounds has been consistently found insufficient in previous SPS disputes.

Responding to the consumers’ food safety concerns is of utmost importance to any government. But the relevant trade agreement stipulates detailed substantive and procedural requirements that each government should follow in the course of imposing an import prohibition in a WTO-consistent manner. Following the Sept. 6 import ban, some research institutes and consumer groups advocate the expansion of the ban: for instance, the National Assembly Research Institute proposes a total ban on fishery products from Japan mentioning cost-efficiency. Hopefully, these suggestions and proposals are based on the clear understanding of the web of rules imposed by the trade agreements.

Setting aside whether Japan’s measures have been sufficient to allay concerns of the consumers in the neighboring countries, once an import restriction measure is imposed it is Korea’s obligation to touch all the bases enumerated in the trade agreements. It is not about whether a concern is legitimate. It is just a starting point. Once an import ban is applied, it is now about whether the enumerated homework under the treaty has been adequately checked off. 

By Lee Jae-min

Lee Jae-min is a professor of law at the School of Law at Hanyang University. Formerly he practiced law as an associate attorney with Willkie Farr & Gallagher LLP. ― Ed.