On 21 May 2015, the Japanese government referred measures taken by the Korean government to the World Trade Organization (WTO). Since Sept. 6 2013, the Korean government has restricted the import of Japanese fisheries products from eight prefectures including Fukushima, where a nuclear-power-plant disaster occurred in 2011.
According to the Korean government, import restrictions are indispensable for food safety reasons, while the Japanese government argues that its products are safe for humans to consume.
The Agreement of Sanitary and Phytosanitary Measures (SPS Agreement) provides that members have the right to take SPS measures necessary for the protection of human, animal or plant life or health.
However, members must ensure that any SPS measure is applied only to the extent necessary to protect human, animal or plant life or health, and is not maintained without sufficient scientific evidence, based on a risk assessment under the SPS Agreement (Art. 2).
Since the risk assessment under the SPS Agreement is "the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs," (Annex A, para.4 emphasis added) risk assessments based on the minority scientific opinion can be used as justification for measures taken by South Korea, as long as there is any possibility of adverse effects on human health.
Most man-made radionuclides emitted from atomic energy incidents were classified as carcinogenic to humans (Group 1) by the International Agency for Research on Cancer (IARC) in 2001.
The international standard recommended by the CODEX Alimentarius Commission is 1,000Bk/kg for cesium (Cs) 134/137, reflecting the maximum acceptable level for human health.
The Commission, however, proposed that radionuclides in foods should be maintained to a level that is "as low as reasonably achievable."
According to the SPS Agreement, members may maintain SPS measures resulting in a higher level of protection than the relevant international standards, if there is a scientific justification, or a member determines to be appropriate in accordance with Article 5 (Art.3.3).
Regarding Cs 134/137 in foods, many members including South Korea (100Bq/kg), the European Union (100Bq/kg), Taiwan (370Bq/kg), China (90~800Bq/kg) and Japan (10~100Bq/kg) have, therefore, maintained higher levels of protection than recommended by CODEX.
Under Article 5.7 of the SPS Agreement, South Korea can take provisional measures to restrict the importation of the Japanese products, if relevant scientific evidence is insufficient.
Given the on-going nature and unprecedented magnitude of Fukushima disaster, it is doubtful whether Japan has provided South Korea with sufficient information regarding the actual conditions of radioactive contamination after the disaster and whether a complete risk assessment estimating the adverse effects of radionuclides on human health will be currently possible.
Since South Korea and Japan failed to settle the trade dispute through consultation, under the Understanding on Rules and Procedures Governing the Settlement of Disputes, the dispute is due to be referred to the Panel.
During the Panel process, Japan must prove that there have been no more additional emissions of man-made radionuclides into the environment after the disaster, and provide the Panel with sufficient scientific evidence supporting the food safety of Japanese marine products.
The writer is professor at the Kyung Hee University Law School.