WTO Appellate Body upholds Korean restrictions on Japanese food imports

On 11 April, the Appellate Body of the World Trade Organization (WTO) reversed a previous decision on South Korean restrictions and testing on Japanese food imports, finding that the ban on food products from Japanese prefectures potentially affected by radiation from the Fukushima Daiichi accident was not overly restrictive. 

The decision overturns a previous WTO Dispute Settlement Body decision, where a panel found that the maintenance of certain measures implemented by South Korea in the wake of the Fukushima accident was inconsistent with the country’s obligations under the SPS (Sanitary and Phytosanitary Measures) Agreement. South Korea has put restrictions on imports which apply to all fishery products from Fukushima Prefecture as well as the prefectures of Ibaraki, Gunma, Miyagi, Iwate, Tochigi, Chiba and Aomori, and additionally requires testing of products from other prefectures.

Prior to the ban, in 2012, South Korea imported 5,000 metric tons of fishery products from eight affected prefectures, out of a total of 40,000 metric tons of seafood imports from Japan. 

In May of 2015, Japan requested consultations with South Korea regarding import bans on certain food products, additional testing and certification requirements regarding the presence of certain radionuclides, and a number of alleged omissions concerning transparency obligations under the SPS Agreement. 

Initially, the WTO Dispute Settlement Body’s panel found that while South Korea’s testing requirements and product-specific import bans in 2011 and 2012 were neither discriminatory nor more trade-restrictive than required when adopted. However, the Panel found that the maintenance of these measures, as well as the adoption and maintenance of the 2013 additional testing requirements, was inconsistent with South Korea's obligations under the SPS Agreement. The Panel also found that South Korea failed to comply with transparency obligations under of the SPS Agreement.

This latest ruling by the appellate body reverses the panel's previous conclusion, which found that it erred in only considering contamination in food products, without also considering territorial conditions affecting the potential for contamination of food.

The new ruling also reversed the panel's finding that South Korea's measures were more trade-restrictive than required to achieve South Korea’s appropriate level of protection because it used a measure proposed by Japan that only considered quantity, while South Korea’s ALOP also has a quality component that was not considered.

The ruling did agree with the panel that South Korea had not properly informed the details of its bans to Japan, giving incomplete information through press releases, without instructions on where to find detailed information. It also found that the panel had correctly concluded that South Korea’s measures did not distinguish between products solely based on origin (which is not allowed), as a presumption of likeness between the Japanese and South Korean products could not be assumed with regard to safety under the SPS.

The latest ruling means that South Korea can continue to maintain a ban, and other countries with similar bans – like Hong Kong, Macau, Taiwan, and China – will likely face less pressure to lift bans.