[WTO Case Review Series No.35] Korea – Import Bans, and Testing and Certification Requirements for Radionuclides (WT/DS495): Issues under the SPS Agreement regarding certain trade regulations by Korea on Japanese food products based on radioactive contamination concerns

This case (DS495) is the first WTO case in which the consistency of SPS measures imposed to manage and control certain contaminants, namely radionuclides, was challenged. A variety of technical and scientific issues including the general nature of radioactive contamination, the specific character of the accident in question, and the relationship between radionuclides and health risks in general, were discussed and analyzed by the WTO Panel and Appellate Body for the first time. When the Fukushima Dai-ichi Nuclear Power Plant accident occurred on March 11 2011, Korea introduced and applied a series of import bans and additional testing and certification requirements for radionuclides on certain Japanese food products in response to domestic concerns about food safety. Japan brought the case before the WTO's Dispute Settlement Body arguing that Korea's measures are inconsistent, particularly with Article 2.3, 5.6, 7, 8, as well as Annex B and C of the SPS Agreement. While the Panel found that Korea's measures are inconsistently adopted and maintained with most of those provisions, the Appellate Body reversed most of the Panel's findings. As a result, Korea's measures on certain Japanese food products were not ruled out and are still maintained. This article highlights the main legal issues raised in this case, such as the decision of the ALOP (Appropriate Level of Protection) in the interpretation and application of Article 5.6; the meaning of "territory" in the interpretation and application of Article 2.3; and the applicability of Article 5.7.