1. Introduction
The current pandemic (COVID-19) has raised the level of public alert and sensitivity on the conditions of sanitation, including the sanitary conditions applied to imported food products. There is no evidence that COVID-19 can be contracted by handling or consuming food,Footnote 1 but major importing countries, such as China, have reinforced inspections on imported meat and seafood.Footnote 2 The relevant legal disciplines of the World Trade Organization (WTO), the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), stipulate the regulatory criteria for trade measures adopted by governments that impose the sanitary and phytosanitary conditions to be met by imports (SPS measures), including testing and certification requirements.Footnote 3 Thus, the rules of the SPS Agreement (SPS rules) set the regulatory parameters for governments wishing to safeguard public health by adopting SPS measures. There has been constant tension between the sovereign right of WTO member countries (Members) adopting SPS measures and the regulatory constraints inherent in the application of SPS rules on these measures.Footnote 4
The SPS Agreement serves two functions: one is to affirm a Member's discretion to set its own appropriate level of protection (ALOP),Footnote 5 which is essential to meet public interests in sensitive public health issues, and the other is to minimize the adverse effects of SPS measures on trade by encouraging the harmonization of SPS measuresFootnote 6 and requiring science-based justification for specific SPS measures.Footnote 7 The determination of the ALOP is important as it sets the parameters of SPS measures: SPS measures can not be justified unless they are deemed relevant to achieve the ALOP. The ALOP may consist of verifiable quantitative elements (quantitative factors), such as maximum contamination levels, as well as non-numerical, qualitative elements (qualitative factors), such as those reflected by the expression ‘as low as reasonably achievable’ (the ALARA principle). The quantitative elements are relatively straightforward, but the qualitative elements may require interpretation, and this interpretation will be determinative of whether the SPS measures are within the parameters set by the ALOP and ultimately justified.
The recent WTO dispute case, Korea–Radionuclides,Footnote 8 illustrates this point. In this case, Japan challenged Korea's SPS measures on its food exports, which were adopted in the aftermath of the 2011 East Japan Earthquake and subsequent release of radioactive materials. Japan alleged that Korea's ALOP was informed by a numerical threshold, with the effect of restricting the parameters of Korea's SPS measures to meet its own ALOP: specifically, Japan argued, Korea's ALOP, that required beyond testing for the set numerical threshold, were inconsistent with its obligations under the SPS Agreement, and Japan's alternative proposal would be less trade-restrictive.Footnote 9 The WTO dispute settlement Panel upheld Japan's position and found Korea's ALOP inconsistent with its obligations under the SPS Agreement.Footnote 10 On appeal, the Appellate Body disagreed and found that the Panel had failed to consider the qualitative elements of Korea's ALOP appropriately under the requirements of the SPS Agreement.Footnote 11
This article examines the implications of this Appellate Body decision for a Member's regulatory autonomy under the SPS Agreement. The Appellate Body reversed the Panel decision that had constrained the scope of Korea's ALOP to its numerical threshold and had found its SPS measures inconsistent with the SPS rules for exceeding testing for the numerical threshold, but the decision did not resolve the substantive questions, such as whether Korea's ALOP was clear enough to render the SPS Agreement applicable and whether Korea's SPS measures were consistent with SPS rules.Footnote 12 This article addresses these unresolved questions. The next section reviews the Korea–Radionuclides and its key substantive decisions. Section 3 analyzes the interpretative issues of the ALOP concerning its qualitative elements. Section 4 considers the implications of the Appellate Body decision for a Member's regulatory autonomy under the SPS Agreement and proposes a rational basis test. Section 5 draws conclusions.
2. A Hung JuryFootnote 13 on Korea–Radionuclides?
2.1 A Case Overview
This case originated from one of the worst environmental accidents in the twenty-first century: the Great East Japan Earthquake, which resulted in the release of radionuclides from the Fukushima Dai-ichi Nuclear Power Plant (FDNPP). On 11 March 2011, a tsunami caused by the Great East Japan Earthquake triggered explosions in the reactor buildings of the FDNPP – explosions which released radioactive materials into the surrounding environment, including the ocean.Footnote 14 The accident raised significant concern for the adjacent countries, particularly South Korea (Korea), because in the process of handling the crisis, massive amounts of contaminated cooling water were released into the ocean,Footnote 15 further contaminating a wide range of marine animals, including fisheries, that are exported for consumption. Radionuclides found in the contaminated food products pose detrimental health effects when consumed,Footnote 16 and even a low dose can produce adverse effects such as an increased risk of cancer.Footnote 17
In response to growing concern, Korea implemented SPS measures, including additional testing and certification requirements, on certain agricultural products and processed foods (except livestock products) imported from Japan.Footnote 18 Korea implemented these new measures to determine the presence of certain radionuclides, including strontium and plutonium if trace amounts of iodine or caesium were detected.Footnote 19 Korea also set the maximum allowable level of caesium at 100 becquerels per kilogram (Bq/kg), as that level would result in exposure to Korean consumers of less than 1 millisievert per year (mSv/yr).Footnote 20 Additionally, in 2012, Korea adopted product-specific import bans on two fishery products: Alaskan pollock from Fukushima and Pacific cod from five prefectures (Aomori, Fukushima, Ibaraki, Iwate, and Miyagi). The latter measures mirrored domestic restrictions imposed by Japan.Footnote 21
Concern about the continued leak of radioactive materials into the ocean prompted Korea to tighten its SPS measures: in 2013, Korea imposed an import ban on all fishery products from eight Japanese prefectures (Aomori, Iwate, Miyagi, Fukushima, Ibaraki, Chiba, Gunma, and Tochigi). Korea also expanded testing and certification requirements to all Japanese food products, including fishery and livestock produce.Footnote 22 Japan's seafood export to Korea declined substantially as a result of these measures – from over 81,850 tons in 2010 to 26,660 tons in 2014,Footnote 23 which caused Japan to challenge Korea's measures at the WTO. Notably, the international community shared Korea's concern regarding the safety of imported food from Japan: more than 50 countries banned food items from Fukushima immediately following the incident, although the number has since dwindled to roughly 20.Footnote 24 Some of the major trading countries, such as China and Taiwan, as well as Korea, maintain total bans at the time of writing.Footnote 25
On 21 May 2015, Japan requested consultation on Korea's SPS measures, including (i) additional testing requirements for non-fishery products (except livestock) implemented in 2011;Footnote 26 (ii) product-specific import bans implemented in 2012 on Alaska pollock from Fukushima and on Pacific cod from five other prefectures including Fukushima;Footnote 27 (iii) additional testing requirements for fishery and livestock products (when caesium or iodine is detected) implemented in 2013;Footnote 28 and (iv) a blanket import ban implemented in 2013 on all fishery products from eight prefectures for 28 fishery products.Footnote 29 The consultation, initiated as a step required by the WTO dispute settlement process,Footnote 30 did not result in a mutually agreeable solution between the two countries. Japan did not challenge similar SPS measures adopted by other countries, in spite of the fact that other WTO Members, such as China, also maintained import bans. On 28 September 2015, the Dispute Settlement Body (DSB) established a panel at Japan's request.Footnote 31
In its complaint, Japan argued that (i) Korea's testing requirements and import bans violate transparency requirements set forth in Article 7 and paragraphs 1 and 3 of Annex B to the SPS Agreement; (ii) the import bans on 28 fisheries products and additional testing requirements violate Articles 2.3 and 5.6 of the SPS Agreement; and (iii) the additional testing requirements do not conform with Article 8 and paragraphs 1(a), 1(c), 1(e), and 1(g) of Annex C to the SPS Agreement.Footnote 32 Japan's main substantive claims are the alleged violations of Articles 2.3 and 5.6 of the SPS Agreement, as the other claims concerning Articles 7 and 8 are mostly procedural, limited to the issues of transparency and control, inspection, and approval procedures.Footnote 33 The remainder of this section focuses on Japan's claims under Articles 2.3 and 5.6 of the SPS Agreement.
2.2 Claims under Articles 2.3 and 5.6
The two major substantive issues of Korea–Radionuclides are (i) whether Korea's measures are more trade-restrictive than required under Article 5.6 of the SPS Agreement and (ii) whether the ‘similar conditions prevail’ in Japan and other Members under Article 2.3 of the SPS Agreement. If so, Korea's SPS measures – additional testing requirements as well as import bans – applied only to food imports from Japan, would not be justified under the SPS Agreement. This sub-section explains the claims under Articles 5.6 and 2.3, respectively, and the Panel decisions. As noted above, the Appellate Body reversed most of the Panel decisions, and the following sub-section examines the rationale for this reversal and its implications. The author supports the Appellate Body decisions under Articles 5.6 and 2.3 as discussed in subsequent sections.
2.2.1 Whether Korea's measures are more trade-restrictive than required under Article 5.6 of the SPS Agreement
Article 5.6 of the SPS Agreement requires that the establishment and maintenance of SPS measures must not be more trade-restrictive than required to achieve the ALOP.Footnote 34 It provides in relevant part:
[W]hen establishing or maintaining sanitary or phytosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection.
Under Article 5.6, an SPS measure, even if it affectively achieves the ALOP, may not be justifiable if there exists an alternative measure that is less trade-restrictive but still achieves the ALOP.Footnote 35 Japan proposed an alternative measure,Footnote 36 which test for only caesium in excess of 100 Bq/kg, as doing so would ensure that the other contaminants would be within acceptable limits.Footnote 37 Japan's proposed measure is less trade-restrictive than Korea's testing requirements, and its challenge will be successful if its alternative measure achieves Korea's ALOP.Footnote 38 Thus, whether Japan's alternative measure achieves Korea's ALOP hinges on the interpretation of Korea's ALOP. Interpretation would be a relatively straightforward task if the ALOP consisted of measurable, quantitative criteria, but Korea argued that its ALOP included qualitative elements, rather than a fixed quantitative threshold,Footnote 39 comprised of radiation exposure to be ‘as low as reasonably achievable’ and ‘a level that exists in the ordinary environment’ that was ‘below 1 mSv/year’.Footnote 40
To determine whether Korea's measure was more trade-restrictive than required under Article 5.6 and whether the alternative, less trade-restrictive measure would meet the ALOP, the Panel examined: (i) the identification and characterization of the contaminants at issue; (ii) the levels of contaminants in Japanese food products; (iii) the extent to which Korean consumers would be exposed to radionuclides through their diet if Japan's alternative measure was adopted; and (iv) risk characterization.Footnote 41 The Panel identified caesium as the primary contaminant released as a result of the FDNPP accident, with iodine, strontium, and plutonium being released as well.Footnote 42 These radionuclides were also regulated by Korea's challenged SPS measures.Footnote 43 In examining the levels of contaminants, the Panel considered the standards developed by the International Commission on Radiological Protection (ICRP) and applied by the Codex Alimentarius Commission (Codex).Footnote 44 The Panel reviewed data from Japanese food monitoring programs and concluded that food products that tested below the 100 Bq/kg limit for caesium would necessarily be within the guidelines developed by the ICRP and Codex (Codex guidelines) for the other contaminants.Footnote 45
The Panel then assessed the extent to which consumers would be exposed to contaminants from Japanese food products. It concluded that even if a consumer maintained a diet only of Japanese origin, the resulting dose would still be less than the ALOP of 1 mSv/year, and likely much lower.Footnote 46 The Panel characterized the risk as low, because the limit of 1 mSv/year was included in Korea's ALOP and was also in line with Codex guidelines for safe consumption.Footnote 47 Products from Japan containing less than 100 Bq/kg of caesium, the Panel found, ‘would also contain less than Korea's specific maximum levels for strontium, plutonium, and the other Codex radionuclides’.Footnote 48 This conclusion is premised on the determination that the quantitative element of Korea's ALOP is the determinant factor.
Based on these findings, the Panel concluded that Korea's SPS measures were more trade-restrictive than necessary to achieve the ALOP. Specifically, (i) additional testing requirements from 2011 and 2012 product-specific import bans were not more trade-restrictive than required when implemented;Footnote 49 (ii) those same challenged measures were maintained inconsistently with Article 5.6 because they had become more trade-restrictive than required at the time the Panel was constituted in September 2015; (iii) additional testing requirements from 2013 were implemented and maintained inconsistently with Article 5.6 because they were more trade-restrictive than required; (iv) the adoption of the blanket import ban was more trade-restrictive than necessary and inconsistent with Article 5.6 (except ban on Pacific cod from two prefectures); and (v) the blanket import ban concerning all 28 fishery products from all eight prefectures was maintained inconsistently with Article 5.6 because it was more trade-restrictive than necessary.Footnote 50
2.2.2 Whether ‘similar conditions prevail’ in Japan and Other Members under Article 2.3 of the SPS Agreement.
Article 2.3 of the SPS agreement provides:
Members shall ensure that their sanitary and phytosanitary measures do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members. Sanitary and phytosanitary measures shall not be applied in a manner which would constitute a disguised restriction on international trade.
Article 2.3 prohibits a Member from adopting an SPS measure that arbitrarily or unjustifiably discriminates against imports from another Member. The controversy under Article 2.3 centered on whether ‘identical or similar conditions’ prevailed in the territories of Japan and other WTO Members. Japan argued that Korea's measures were in this prohibited category because the conditions of Japanese food products and those from other places posed similar threats in terms of the verifiable radiation level; thus, the prevailing conditions should be considered similar.Footnote 51 Korea disagreed and argued that the relevant conditions were not similar between other Members and Japan, and that Korea's measures had been applied exclusively to products from Japan precisely because of that difference in relevant conditions.Footnote 52 The disagreement was on the scope of relevant conditions.
To resolve this issue, the Panel assessed ‘the risk present in products in international trade’ to determine whether the prevailing conditions were similar in the territories between Japan and other WTO Members.Footnote 53 The Panel also considered that ‘the regulatory objective of a measure’ determines relevant conditions to be compared under Article 2.3.Footnote 54 In other words, if imported products from a Member show a level of contamination below the level specified by the ALOP, as measured by a specific quantifiable criteria, there is no justification under Article 2.3 to adopt an additional SPS measure against the Member. The Panel determined that the objective of Korea's measures was to protect Korea's population from potential adverse effects from consumption of food contaminated with radionuclides.Footnote 55 The Panel then found the relevant conditions to be (i) whether products from Japan and other Members have a similar contamination potential; and (ii) whether contamination levels would be below Korea's tolerance levels.Footnote 56
The Panel reviewed data from Japan and acknowledged the presence of radioactive contamination everywhere in the world, concluding that both Japanese and non-Japanese products had the potential to be contaminated below Korea's tolerance level, at least in 2013 and onwards.Footnote 57 Based on this reasoning, the Panel also concluded that similar conditions existed in Japan and in other Members with regard to the 2013 additional testing requirements and the import ban (except for Pacific cod from two prefectures), as well as to the maintenance of Korea's blanket ban on the 28 fishery products and the 2011 additional testing requirements at the time the Panel was formed.Footnote 58 Korea's measures were also found to constitute ‘arbitrary or unjustifiable discrimination’ under Article 2.3, as the Panel found no rationale relationship between the measures and their objective of protecting Koreans against the risk arising from consumption of contaminated food products.Footnote 59 The Panel also found a ‘disguised restriction on international trade’ on this reasoning.Footnote 60
However, there seems to be a contradiction in the Panel's reasoning. The Panel recognized the unprecedented nature of the FDNPP accident as ‘the largest release of radionuclides from a nuclear accident into the marine environment’ to ever occur and also noted major releases of radionuclides and contamination of the marine environment prior to that accident.Footnote 61 The Panel reviewed evidence concerning the release of radionuclides in general and the process of contamination of plants, animals, and fungi (‘radionuclide uptake’) and concluded that ‘past releases of radionuclides to the environment continue to affect food products and mean that food from anywhere in the world has the potential to be contaminated with radionuclides’.Footnote 62
This conclusion and the Panel's decision to focus on the contamination levels in products seems to be inconsistent with its earlier observation that acknowledged territorial differences in contamination depending on the source: the Panel recognized that ‘radionuclides can be more concentrated close to the source of contamination’.Footnote 63 The Panel also noted that some of the radionuclides released from the FDNPP would be expected to have settled in sediments off the Fukushima coast, observing that ‘[t]his would also be true for areas close to the other primary sources of contamination’.Footnote 64 Thus, by reaching the conclusion that the risk of food contamination from radionuclides exists everywhere, and by confining the scope of comparison to the measurement of actual contamination levels in the food product, the Panel seems to have failed to account for ‘any degree of contamination or differentiating the relative potential for contamination in different territories’ as the Appellate Body later indicated.Footnote 65 The next sub-section further reviews the analysis of the Appellate Body.
2.3 The Reversal by the Appellate Body: A Hung Jury?
The Appellate Body, as discussed further below, reversed most of the Panel decisions, citing the interpretative errors made by the Panel. The Appellate Body decisions, however, did not clarify whether Korea's measures were substantively compliant with SPS rules.Footnote 66 The reversal preserved Korea's SPS measures against imports from Japan, albeit with some adjustments, but it did not resolve the substantive questions of compliance. This sub-section examines the Appellate Body decisions and clarifies the interpretative issues left unresolved.
2.3.1 The Claim under Article 5.6
The Panel decision under Article 5.6 was premised on the finding that Japan's alternative, less trade-restrictive measure would meet Korea's ALOP. The Appellate Body enumerated the requirements under Article 5.6. A complainant must establish that an alternative measure: (i) is reasonably available, taking into account technical and economic feasibility; (ii) achieves the Member's ALOP; and (iii) is significantly less restrictive to trade than the contested SPS measure.Footnote 67 The Appellate Body opined that these cumulative elements entail an assessment of a proposed alternative measure that serves as ‘a conceptual tool to be used for the analysis under Article 5.6’.Footnote 68 In this case, the core question was whether Japan's alternative measure met Korea's ALOP.Footnote 69 The technical or feasibility of the alternative or the trade benefit of the alternative measure was not questioned.
On appeal, Korea challenged the Panel's interpretation of Korea's ALOP, contending that the Panel compared Japan's proposed alternative measure against an incorrect quantitative standard, which it erroneously accepted as representative of Korea's ALOP.Footnote 70 Korea asserted that the actual standard of its ALOP, which includes qualitative elements, not just a fixed numerical threshold, is ‘radiation exposure as low as reasonably achievable below 1 mSv/year at a level that exists in the ordinary environment’.Footnote 71 Japan countered that the Panel had correctly determined and applied Korea's ALOP for the purpose of comparing the proposed alternative measure.Footnote 72 According to Japan, the Panel correctly found that the first two qualitative elements of Korea's ALOP (ordinary environment and ALARA) informed Korea's determination of the third element (dose exposure limit of 1 mSv/year),Footnote 73 rendering the latter to be a correct comparative standard.
The Appellate Body disagreed and found that the Panel committed an error by narrowly focusing its comparison of Japan's proposed alternative measure on the quantitative element that made up only a part of Korea's ALOP.Footnote 74 The quantitative element, 1 mSv/year, comprised a part of Korea's ALOP but did not replace its qualitative elements, ‘radiation exposure as low as reasonably achievable’ and ‘a level that exists in the ordinary environment’. The Appellate Body opined that the Panel incorrectly assumed that the quantitative factor was governed by the qualitative factors of the ALOPFootnote 75 and did not resolve whether the quantitative limit of 1 mSv/year fully accounted for the ALARA and ‘ordinary environment’ principles.Footnote 76 Based on this reasoning, the Appellate Body found that the Panel failed to adequately consider two of the three factors that made up Korea's ALOP.Footnote 77 The interpretation of Korea's ALOP, particularly its qualitative elements in relation to the quantitative threshold, was a critical element of an analysis under Article 5.6.Footnote 78
Consequently, the Appellate body reversed the Panel findings against Korea's measures under Article 5.6: (i) the implementation of the blanket import ban (except ban on Pacific cod from 2 prefectures) and the 2013 additional testing requirements; and (ii) the maintenance of all of Korea's measures.Footnote 79 The Appellate Body decision, however, did not determine substantively whether Korea's SPS measures would be consistent with the requirements under Article 5.6.Footnote 80 In other words, the Appellate Body's decision did not contemplate whether Korea's measures would have been upheld under Article 5.6, as they were, had the Panel considered the qualitative elements, instead of focusing on the quantitative factor. There is a question of how to interpret the qualitative elements to determine the consistency of the SPS measure under Article 5.6. These are the key questions that were not resolved by the Appellate Body decision. Section 3, following the discussion on the claim under Article 2.3, examines these issues.
2.3.2 The Claim under Article 2.3
The other major substantive challenge to Korea's SPS measures was the alleged violation of Article 2.3, which was affirmed by the Panel decision. The issues on appeal were whether the Panel erred in its interpretation and application of Article 2.3 in finding that: (i) similar conditions existed in Japan and in other Members regarding the adoption of Korea's measures; (ii) the import bans and the additional testing requirements arbitrarily or unjustifiably discriminated; and (iii) Korea's measures were applied in a manner which would constitute a disguised restriction on international trade.Footnote 81 The determination of the first issue – whether or not similar conditions existed in Japan and in other Members – would control the second and the third, because Korea's exclusive SPS measures against the imports from Japan would indeed prove discriminatory and constitute a disguised restriction trade unless there existed a difference in relevant conditions that would justify the adoption of Korea's SPS measures.Footnote 82
Korea claimed that the Panel applied an incorrect standard to determine whether similar conditions existed. According to Korea, the Panel adopted a ‘product-based’ approach that incorrectly focused on product contamination levels instead of other relevant conditions, such as the environmental and ecological conditions in Japan and the status of the FDNPP.Footnote 83 Korea claimed that by failing to consider these conditions of Japan in comparison with those of other Members, the Panel erroneously found that similar, relevant conditions existed.Footnote 84 Korea also pointed out that the Panel failed to take account of continuous releases of radionuclides after the FDNPP accident and the difference in conditions created by the fact that there was an active source of radionuclide contamination in Japan.Footnote 85 Japan argued that all relevant factors were taken into account, as evidenced by the Panel's assessment of the amount of radioactive contamination worldwide.Footnote 86 The Panel simply ‘attached different weight to certain evidence’, Japan explained, and in doing so did not commit legal error.Footnote 87
The Appellate Body disagreed and found that the Panel's conclusion under Article 2.3 – that the Article permits consideration of the ‘risk present in products in international trade as the relevant condition’ – was erroneous because it did not give weight to other relevant conditions such as ‘territorial conditions that may not yet have manifested in products but are relevant in light of the regulatory objective and specific SPS risks at issue’.Footnote 88 According to the Appellate Body, the Panel correctly recognized that the regulatory objective of a measure should inform the determination of the relevant conditions under Article 2.3,Footnote 89 but the Panel's assessment did not allow a meaningful comparison between territories and their potential for food contamination.Footnote 90 The Appellate Body also found that the Panel did not explain why contamination levels from separate territories were similar if they were under 100 Bq/kg.Footnote 91 Based on this reasoning, the Appellate Body concluded that the ‘Panel failed to account for relevant territorial conditions and therefore erred in its application … of Article 2.3’Footnote 92 and reversed the relevant Panel decision under Article 2.3.Footnote 93
With its ruling, the Appellate Body provided a guideline as to the interpretation of the scope of comparison under Article 2.3. The decision rejects the narrow product-based approach adopted by the Panel and affirms a wider interpretative scope that includes broader environmental and ecological conditions affecting the potential for food contamination.Footnote 94 This decision is in line with the decision under Article 5.6 (discussed above) in that both decisions look to the qualitative elements, as well as quantitative ones with clear numerical thresholds. This decision does not provide a clear guide as to precisely what environmental or other conditions Members are required to measure and compare, but it nevertheless creates regulatory space for a Member that wishes to adopt SPS measures against imports from another Member affected by a major environmental crisis creating a substantial risk of food contamination, but which may not necessarily be manifested by the actual test of contamination in imported food samples. This point is further discussed in Section 4.
3. Qualitative Standards for the ALOP
3.1 The Relationship between the Qualitative and Quantitative Factors
The Appellate Body decision in Korea–Radionuclides leaves an unresolved question: whether Korea's SPS measures are substantively consistent with the SPS rules. The Appellate Body reversed the Panel decision, citing its erroneous interpretation of Korea's ALOP but without making any determination as to the rule-consistency of the Korea's SPS measures.Footnote 95 The Appellate Body decision, however, does not completely lack interpretative guidance; by indicating what the Panel overlooked in its interpretation of Korea's ALOP, it offered a guide – albeit indirectly – as to how the ALOP should be interpreted for the assessment of the measure's consistency.
In Korea–Radionuclides, Korea articulated its ALOP as ‘radiation exposure as low as reasonably achievable below 1 mSv/year at a level that exists in the ordinary environment’.Footnote 96 The Panel accepted this articulation and analyzed this Korea's ALOP as having one quantative element of ‘below 1 mSv/year’, and two qualitative elements which are the principles of ‘as low as reasonably achievable’ and ‘a level that exists in the ordinary environment’.Footnote 97 According to the Appellate Body, the Panel had failed to assess whether the same qualitative principles that informed the Codex dose limit (1 mSv/year) were the same as those that informed the 1 mSv/year limit that Korea used as a quantitative factor in setting the ALOP.Footnote 98
If the quantitative factor of Codex guidelines accounted for the same qualitative factors as Korea used in its own ALOP, the Appellate Body would have approved the Panel decision, provided that the Panel had examined those qualitative factors for the Codex guidelines and Korea's ALOP and determined that the factors were identical.Footnote 99 The question is whether these qualitative factors are indeed identical. The Panel noted that the Codex dose limit of 1 mSv/year was informed by the ALARA principle, as well as the principle that ingestion of man-made radiation ‘should not add significantly to doses from background exposure and other sources’.Footnote 100 Despite the use of identical terminology – the ALARA principle – it is not clear whether the relationship between the qualitative factors and quantitative factor is identical between the Codex guidelines and Korea's ALOP’. In the Codex context, the ALARA principle provides justification for its numerical threshold. For Korea's ALOP, however, the principle may work as a separate element, distinguished from the numerical threshold setting only the upper limit as Korea argued.Footnote 101
This means that an articulation of the ALOP, particularly its qualitative factors, is subject to interpretative questions and a potential dispute. Thus, it will be in the interest of the national authorities to draft their ALOP and clarify the relationship among the constituent elements more explicitly, particularly if they intend to use the numerical threshold as an upper limit and do not wish to be bound by this threshold as a determinative standard for the admissibility of imports. The question then is whether the qualitative elements of the ALOP, reflected by the term, ‘as low as reasonably achievable’, would be precise enough to constitute an element of the ALOP that allows an application of the SPS Agreement.Footnote 102 The inclusion of indeterminate qualitative terms as part of the ALOP may induce abusive use of SPS measures as a disguised trade protection, while stringent numerical thresholds may strain the discretion of the national authorities to set their ALOPs excessively. This dilemma may require a degree of clarity in qualitative terms, as further discussed in the next sub-section.
3.2 The Required Clarity
Under the SPS Agreement, a Member enjoys the autonomous right to set a level of protection different from that implicit in the international standard and to implement that level of protection in a measure not based on the international standard.Footnote 103 The Appellate Body decision has long recognized this autonomy,Footnote 104 and commentators also agree that ‘what constitutes an allowable risk’ under the ALOP will ‘ultimately reflect the social values of a particular society at a particular stage of development’Footnote 105 The ALOP may include both quantitative elements, such as numerical thresholds, and qualitative elements, the identification of which, in relation to the quantitative factors, may raise complex interpretative issues. The Appellate Body decision acknowledges a qualification to the discretion that Members enjoy in setting the ALOP with respect to its qualitative standards. In Australia–Salmon, the Appellate Body found that Members are obligated to set their ALOP with certain clarity:
We do not believe that there is an obligation to determine the appropriate level of protection in quantitative terms. This does not mean, however, that an importing Member is free to determine its level of protection with such vagueness or equivocation that the application of the relevant provisions of the SPS Agreement, such as Article 5.6, becomes impossible. It would obviously be wrong to interpret the SPS Agreement in a way that would render nugatory entire articles or paragraphs of articles of this Agreement and allow Members to escape from their obligations under this Agreement.Footnote 106
In Korea–Radionuclides, the Appellate Body, by indicating that the Panel failed to determine whether the qualitative factors Korea included in its ALOP were ‘insufficiently precise or otherwise incapable of serving as elements of Korea's ALOP’,Footnote 107 confirmed the requirement for Members to set their ALOP with clarity. If the Panel had engaged in this analysis and found the qualitative factors too vague to be an effective means of establishing an ALOP, judging the suitability of the alternative measure based solely on the quantitative factor would have been justified. But by failing to examine (i) whether the qualitative factors informed the quantitative factor and (ii) whether the qualitative factors were ‘insufficiently precise or otherwise incapable’ of constituting the ALOP, the Panel ‘effectively subordinated’ the qualitative elements to the quantitative element, which rendered its analysis incompatible with its acceptance of Korea's ALOP at the outset.Footnote 108
Despite the declaration of the requirement for clarity, the case history does not show invalidation of a seemingly unprecise ALOP for vagueness. In Australia–Salmon, Australia's ALOP was not explicitly set, but Australia subsequently articulated that its ALOP was ‘a high or very conservative level of sanitary protection aimed at reducing risk to very low levels, while not based on a zero-risk approach’.Footnote 109 The Compliance Panel found that Australia's ALOP was a ‘somewhat vaguely determined level’ but indicated it would still carry out its task of assessing compliance under Article 5.6.Footnote 110 In several other cases (Japan–Apples, India–Agricultural Products, US–Animals, Russia–Pigs, and Japan–Agricultural Products II) where the terms of ALOP also included imprecise qualitative terms such as ‘very high or very conservative’, the relevant ALOPs were not found to be vague enough to render application of the SPS rules unfeasible.Footnote 111
This case history informs the present question as to whether the qualitative elements of Korea's ALOP – ‘as low as reasonably achievable’ and ‘a level that exists in the ordinary environment’ – are not precise enough or otherwise incapable of being an element for the ALOP.Footnote 112 Arguably, these qualitative factors that Korea used for its ALOP, although not as precise as numerical, quantitative thresholds, are still ascertainable and can ‘carry out its task of assessing compliance under Article 5.6’. First, the first qualitative element – ‘as low as reasonably achievable’, the ALARA principle is a widely used concept in determining food safety standards, including the Codex guidelines, and can be determined from empirical data. The second element, ‘a level that exists in the ordinary environment’ can also be ascertained by comparing relevant data in multiple locations across the world. It is, therefore, feasible and does not violate the terms of the SPS Agreement to set a numerical upper limit, such as 1 mSv/year, but apply measures to achieve a lower rate of contamination if it is achievable by adopting the ALARA principle and ascertainable by comparing contamination rates in multiple locations across the ordinary environment. Applying this rationale, Korea's ALOP allows for application of the provisions of the SPS Agreement, including Article 5.6, and determination as to whether the alternative measure will also meet the ALOP.
If Korea's ALOP is to be upheld (i.e., the qualitative factors of Korea's ALOP are not dismissed due to vagueness) and if the qualitative factors are distinct and not subordinated to the quantitative criteria, as discussed above, Japan's alternative measure – only testing for caesium – is unlikely to meet Korea's ALOP, even if it may be consistent with the Codex guidelines.Footnote 113 The reason is that the measure of caesium at or under 100 Bq/kg, which the Japan's alternative measure aims to test in accordance with the Codex guidelines, does not meet the requirements of Korea's qualitative elements: radiation exposure to be ‘as low as reasonably achievable’ and at ‘a level that exists in the ordinary environment’. Korea's ALOP is evidently higher than the Codex guidelines (due to the potential risk associated with the nuclear crisis), and 1 mSv/year only serves as an upper limit.Footnote 114 Achieving the numerical threshold is, therefore, not a sufficient condition to meet Korea's ALOP. Without an alternative measure that meets Korea's ALOP in place, Korea's SPS measures are likely to be upheld under the SPS Agreement.Footnote 115
3.3 The Need for Consistency
One other factor that informs the ALOP, although not an explicit issue in Korea–Radionuclides, is the consistency requirement under Article 5.5 of the SPS Agreement. It provides in relevant part:
[E]ach Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade.
This provision requires that a Member's ALOP be consistent and not discriminatory in different situations so as to result in discrimination or disguised trade restriction. The Appellate Body has demonstrated sensitivity and deference to a Member's ALOP in interpreting the consistency requirement, finding that this requirement does not establish a general legal obligation of consistency in the application of an ALOP but regulates ‘arbitrary or unjustifiable inconsistencies’Footnote 116 that can be negated by reasonable and plausible justifications for different levels of ALOP in comparable circumstances.Footnote 117 Applying dissimilar qualitative standards for the ALOP may result in such discrimination, perhaps less explicitly than quantitative factors, as they are less straightforward and can create more maneuvering room for the Member applying the measure. As maintaining consistency is important to legitimize a Member's ALOP, it is necessary to clarify as to what constitutes a violation of the consistency requirement.
According to the Appellate Body in Australia–Salmon, three elements must be demonstrated to sustain a violation of the consistency requirement.Footnote 118 First, the Member adopts different ALOPs in several different situations (where a different level of protection is not warranted). To avoid adopting a different ALOP in different situations, levels of protection must be comparable – they must involve a similar risk to that they are aiming to prevent. Second, the ALOP differences are arbitrary or unjustifiable. Differences in ALOP can be arbitrary or unjustifiable when a Member establishes a higher ALOP for a risk of less magnitude. Lastly, the differences result in discrimination or a disguised restriction on international trade.Footnote 119 Disguised trade restrictions or discrimination may be evidenced by any one of several non-exclusive factors, such as an absence of controls on the movement of products within a Member's territory as compared to the affected Member's importation and unexplained changes in conclusions about maintaining SPS measures despite reports claiming a measure is not fully necessary.Footnote 120
To enhance consistency, the Compliance Panel in Australia–Salmon called for quantifiable levels of protections from Members because ‘a more explicit and in particular a quantitative expression of a Member's ALOP would greatly facilitate the consideration of compliance with not only Article 5.6 but with other provisions of the SPS Agreement as well’.Footnote 121 In line with this position, the Panel in Korea–Radionuclides also subordinated qualitative elements to the quantitative threshold and used only the latter as the base to determine the suitability of the alternative measure.Footnote 122 Obviously, the use of quantitative thresholds, rather than qualitative factors, will enhance clarity with the ALOP. The following four metrics used for setting the qualitative factors in an ALOP do not remove inherent imprecision: (i) quantified expression (e.g. required mortality in disinfestation measures to provide safety as a ban); (ii) relative expression (e.g., by reference to the OIE standard, stating that the ALOP is higher or lower than the point of reference); (iii) goal-based expression (status as a pest-free country); and iv) categorical expression in terms of risk classification (zero risk, low risk, conservative level).Footnote 123
Despite this inherent imprecision, the qualitative standards are an integral part of the ALOP that facilitates a Members’ sovereign right to set its own ALOP, and there is no regulatory justification to remove them, as confirmed by the Appellate Body decisions.Footnote 124 The difficult question is how to achieve the appropriate balance between this right and the prevention of abuse of SPS measures, which can be exacerbated by the application of the qualitative standards inherently less clear than qualitative, numerical thresholds. The balance can be achieved by requiring Members to demonstrate a certain nexus between the qualitative standards adopted and the objective that the Member seeks to achieve by applying the ALOP. This point is further discussed in the context of a Member's regulatory autonomy under the SPS Agreement.
4. Regulatory Autonomy under the WTO SPS Agreement
4.1 A Rational Basis Test
The SPS Agreement seeks to achieve the regulatory balance between the sovereign right to set an ALOP and the international community's interest in preventing the abuse of SPS measures. To ensure the former, it is imperative that the SPS Agreement provides regulatory flexibility for Members to set their own ALOP. The SPS Agreement provides such flexibility, but with the qualification that it cannot be so vague or equivocal as to render the application the SPS Agreement impossible.Footnote 125 The ALOP in the latter category may not have been found explicitly in previous cases, but the lack of precision, which is inherent with qualitative elements, raises interpretative questions as in Korea–Radionuclides. Commentators have observed that panels have been ‘allowed to infer the ALOP in cases of insufficient precision or discrepancy between what is stated and the specific facts of a case’.Footnote 126
Regulatory balance can be better achieved by requiring that a Member adopt qualitative elements in its ALOP to provide in greater detail exactly how those elements could be evaluated. If a quantitative factor is being claimed as an upward acceptable boundary, as it was in Korea–Radionuclides, and if the qualitative elements serve as additional consideration, then that Member should (i) clarify the relationship between the qualitative and quantitative factors in the ALOP in explicit terms and (ii) demonstrate that the qualitative factors of an ALOP, which must be reasonably clear and ascertainable, rationally relate to the objective of the protection.Footnote 127 The qualitative factors included in a Member's ALOP should only be dismissed in favor of a strictly quantitative element when it is found that the qualitative elements on the ALOP are not rationally related to the objective. The absence of such a rational relationship will render the qualitative elements ‘otherwise incapable of serving as elements’ of the ALOP.Footnote 128
A criticism could be raised that the proposed rational basis test sets a threshold too low, and a question has been advanced as to how it is then possible to show that such a qualitative element of the ALOP is not rationally related to the regulatory objective.Footnote 129 A lack of a rational relationship can be shown in cases where an ALOP sets qualitative standards that are not rationally related to the risk of health, such as standards that mandate exclusion of food that may have been exposed to a virus, regardless of the time of exposure, where there is no proof that the virus can be transmitted to a human body through consumption of food. There will be no rational relationship between such standards and the regulatory objective of protecting public health. There is also a question whether this analysis can be embedded in the recent developments of other agreements such as GATT Article XX ‘necessity test’.Footnote 130 The level of scrutiny applied by the proposed rational basis test to the ALOP is not identical to that applied to the ‘necessity test’ under GATT Article XX and the chapeau, where the contribution of an applied measure is compared to the contribution of an alternative measure.Footnote 131 The higher scrutiny for the necessity test is justified because Article XX measures must qualify as an exception whereas setting the ALOP is not; thus, the scrutiny for the latter should be lower as a Member has the autonomous right to set a level of protection different from that implicit in the international standard.Footnote 132
The proposed standard has indeed been adopted to assess requirements under the SPS Agreement. The Appellate Body in EC–Hormones found that to justify an SPS measure, a rational relationship must exist between the measure and the risk assessment required under Article 5.1.Footnote 133 In other words, the results of the risk assessment must reasonably support the SPS measure at stake.Footnote 134 It was also found that a rational relationship must exist between the SPS measure and the available scientific information if there was to be a ‘scientific justification’, as required under Article 3.3 of the SPS Agreement.Footnote 135 In Japan–Agricultural Products, the Appellate Body upheld the Panel ruling that Japan had not established a rational link between that risk and the rigorous Japanese testing requirements even if there was a risk of introducing codling moths that cause severe agricultural damage.Footnote 136 The rational relationship is considered no more than ‘a minimal relevancy test’.Footnote 137
The proposed ‘rational basis test’ is deferential to Members applying SPS measures and protective of their regulatory autonomy to set their own ALOP. It also seeks to restrain abuse and promotes regulatory balance by requiring Members to demonstrate that the qualitative elements within the ALOP rationally relate to the achievement of the purpose for which the SPS measure was implemented. This requirement will incentivize a Member to adopt only the qualitative elements of the ALOP that it can justify, rather than measures with overly vague or imprecise qualitative elements that can provide cover for discrimination against certain countries. The level of proof is such that a Member is required to demonstrate a rational relationship (i.e., the minimal relevancy) of the qualitative elements to the objective of the protection, rather than conclusive evidence of causation or proof of necessity to achieve the objective.Footnote 138 It would be a modest requirement that protects regulatory autonomy and prevents abuse.
This rational basis test can be applied to analyze the qualitative elements in Korea–Radionuclides. One of the qualitative elements in Korea's ALOP was ‘as low as reasonably achievable’.Footnote 139 The ALARA principle has been described as an obligation of means, rather than an obligation of results, because it assesses the processes, procedures, and judgments that go into ensuring that products are not contaminated, rather than simply offering a given value of exposure.Footnote 140 Under this proposed standard, Korea must establish a rational relationship between the application of the ALARA principle and the objective that is to protect against food contaminated with radionuclides. Korea can do this by providing reasoned explanation that the processes and procedures required by the ALARA principle must be in place to ensure food safety against the potential risk of the nuclear incident, since each product cannot be tested individually. Such an explanation accompanied by data or information on the processes and procedures would meet the rational basis test.
As to the second qualitative element, ‘a level that exists in the ordinary environment’,Footnote 141 Korea can establish its rational relationship to the objective of the protection by comparing the rates of contamination in the territories between Japan and other WTO Members. Korea may present data showing the contamination of similar products in other WTO Members unaffected by a nuclear accident. It can even provide the contamination levels of the same Japanese products prior to the nuclear accident. Such information will demonstrate that the product may be below the quantitative threshold but is still more contaminated than it is in an environment not recently affected by a nuclear accident, and Korea could establish a rational basis between the second element and its objective of protecting against contaminated food. The presentation of such information, with reasoned explanation, would demonstrate that qualitative factors rationally support the objective of the protection.
The proposed rational basis test will reduce the potential for a dispute as to the interpretation of an ALOP. The proposed rational basis test can be used to assess whether the qualitative factors of an ALOP are overly vague or ‘otherwise incapable of serving as elements of the ALOP’, as it will be difficult to establish the rational relationship between a vague qualitative factor and the objective of protection. Requiring a Member to demonstrate a rational relationship with reasoned explanation is not an explicit requirement under the SPS Agreement, but the national authorities may adopt this test voluntarily to ensure the required clarity in their own ALOPs. This proposed standard preserves the Member's ability to set its own ALOP, because the regulatory threshold for the proposed test – establishing a rational relationship – is only a moderate task, and it removes some of the uncertainty and interpretative issues with respect to its qualitative factors.
4.2 The Question of Potential Contamination
The Appellate Body decision in Korea–Radionuclides recognized the broad regulatory autonomy under Article 2.3 of the SPS Agreement, which prohibits arbitrary and discriminatory SPS measures, by allowing a Member to consider broad territorial conditions, including environmental conditions, in the application of an SPS measure.Footnote 142 The decision enables a Member to apply an SPS measure exclusively against imports from a Member facing a major environmental incident without breaching the provisions under Article 2.3, even if the harm is not yet manifested by the level of contamination detected in the exported food products. The Panel had limited the scope of comparison to the contamination of the relevant products.Footnote 143 This narrower construction would have posed a considerable challenge to a Member facing a need to adopt SPS measures in response to the environmental disaster in adjacent countries, such as the nuclear crisis in Korea–Radionuclides. An environmental disaster of this magnitude necessitates that other Members adopt SPS measures on a precautionary basis, often under considerable public pressure, in response to the environmental concerns affecting public health and safety, even without proof of contamination in the food imports.
The Appellate Body supports this position and found that the Panel erred when it decided that risk present in products was the only relevant condition for comparison under Article 2.3.Footnote 144 According to the Appellate Body, a proper interpretation under Article 2.3 includes all relevant conditions, such as territorial conditions that may not have yet manifested in products but are relevant on account of the regulatory objective and specific SPS risks at issue,Footnote 145 and allows the comparison of potential risks as well as actual contamination. As the Appellate Body pointed out, the Panel incorrectly framed the issue as whether products from Japan and the rest of the world have similar potentials for contamination. This approach does not account for specific source of contamination or relative degree of potential contaminations.Footnote 146 The Panel decision was reversed on the basis that it made no distinction between Members and failed to consider factors or differences pertaining to the FDNPP accident as they relate to potential contamination in food.Footnote 147 The Panel failed to account for degrees of potential contamination or explain how contamination within certain quantitative levels would be determinative of ‘similar’ potential for contamination.Footnote 148
The Appellate Body decision is consistent with the regulatory intent of Article 2.3, which is to prevent arbitrary or discriminatory measures. The impact of a major environmental crisis may not be immediately manifested by the level of contamination in the tested products, but the risk associated with such an incident may well justify Members’ adoption of precautionary measures to protect their public health and safety, without waiting to find ‘evidence’ of contamination in the products. This creates an inherent conflict of interests: a Member with export interests in the product may push for the narrower comparison under Article 2.3, as Japan did in Korea–Radionuclides,Footnote 149 whereas importing Members would favor the broader comparison, which will give them a regulatory space. On balance, the latter position has stronger justification, as a major environmental crisis generates broad effects that may or may not be manifested immediately by the measure of contamination in the tested products.Footnote 150 Public safety will be better safeguarded by allowing broader comparison of environmental conditions in the application of an SPS measure, as it allows a comparison for potential risk.
Lastly, commentators have argued that the Appellate Body modified WTO jurisprudence by finding that the relevant conditions under Article 2.3 must be identified subject to the particular nature of the measure and the specific circumstances of the case.”Footnote 151 The rationale of this argument is unclear because the Panel in Korea–Radionuclides also took the same analytical approach as the Appellate Body: although they point out that the Panel had followed a three-part test established by the Appellate Body in India–Agricultural Products: (i) whether the measures discriminate, (ii) whether the discrimination was arbitrary or unjustifiable, and (iii) whether similar conditions prevailed,Footnote 152 the Panel also concluded that its determination of the relevant conditions under Article 2.3 ‘should be informed by the regulatory objective of the challenged measures and the justification relied upon by the Member in light of ‘the character of the measures and specific circumstances of the case.’Footnote 153
These commentators seem to misunderstand WTO jurisprudence: none of the previous Appellate Body decisions suggest that the comparison under Article 2.3 must be made narrowly on the conditions (e.g., contamination levels) in the products between different territories, without consideration of the particular nature of the measure and the specific circumstances of the case. In fact, these commentators cite previous decisions that contradict their argument. Cases such as Russia–Pigs and United States–Animals show that comparisons were made on relevant conditions, such as the occurrence of the levels of disease in the compared territories, taking full account of the circumstances of the cases and the nature of the adopted measures.Footnote 154 This seems to be no different from the approach taken by the Appellate Body and the Panel in Korea–Radionuclides, and the Appellate Body decision did not modify the existing jurisprudence, but rather affirmed, perhaps more explicitly, the broader basis for comparison under Article 2.3, facilitating a Member's regulatory space and autonomy.
5. Conclusion
The outcome of the recent WTO dispute case, Korea–Radionuclides, affirmed the significant regulatory autonomy enjoyed by a Member under the WTO SPS Agreement,Footnote 155 despite the recent case history that suggests otherwise.Footnote 156 In this moment where social concern for the pandemic and public health is stronger than ever, governments are under substantial public pressure to take timely actions, such as SPS measures, to safeguard public health and safety. The affirmation of regulatory autonomy by the recent Appellate Body decision is, therefore, a welcome development that responds to the public concern. Commentators, such as Hamada and Ishikawa, have raised criticism about the Appellate Body's reversal of the Panel decision without explicitly finding on the rule-consistency of Korea's SPS measures,Footnote 157 but the criticism is largely misplaced in the sense that the Appellate Body can legitimately reverse Panel decisions by indicating analytical error, without having to clarify what would have been an outcome had the Panel not committed error. Procedurally the Appellate Body did not have to address this issue, because Korea appealed the Panel's finding under Article 5.6 and did not ask for a completion of the legal analysis.Footnote 158 The Appellate Body acted properly within the scope of appellate review.Footnote 159
This article addresses some of the questions left unresolved by the Appellate Body's decision, particularly with regard to the issues under Articles 5.6 and 2.3 of the SPS Agreement. The qualitative factors of the ALOP, approved under the SPS Agreement, can be subject to interpretative questions due to their inherent imprecision. The imprecise qualitative factors may allow misuse of SPS measures beyond the objective of the protection; thus, it is necessary to achieve the regulatory balance between a Member's discretion to set its own ALOPs as protected under the SPS AgreementFootnote 160 and international interest in preventing abuse of SPS measures. To that end, this article proposes a rational basis test that requires a Member adopting an SPS measure to demonstrate a rational relationship between the qualitative factors of its ALOP and the objective of the protection.
Hamada and Ishikawa have also questioned whether Korea's import bans are based on scientific principles.Footnote 161 The relevant provisions of the SPS Agreement are Articles 2.2, 3.1, 3.3, 5.1, and 5.7, but Japan did not invoke any of these articles, and consequently, the Panel and the Appellate Body did not examine this issue.Footnote 162 This alleged uncertainty, however, does not seem to weaken the justification of Korea's SPS measures because they were adopted in response to the significant public concern and the potential risk associated with the major nuclear crisis in Japan. The risk assessment required under Article 5.1 is not a pure science; rather, it incorporates policy or value judgments as well as the real life circumstances.Footnote 163 Thus, these judgments and circumstances, rather than strict adherence to pure scientific evidence (such as the level of contamination in the imported food products), could play an important role in setting the measures. The SPS Agreement envisages such a response, as allowed on a precautionary basis under Article 5.7,Footnote 164 which is necessary to meet the public concern and the potential risk that is created by such an environmental crisis but may not be imminently detectable in the food products.Footnote 165 Other countries in the region, such as China and Taiwan, share these concerns and currently maintain import bans against Japan.
There are multiple policy implications of the Appellate Body decision. First, the decision affirms a broad discretion granted to Members in setting their ALOPs in response to the heightened public concerns about SPS issues, which have been intensifying since the outburst of the current COVID-19 pandemic.Footnote 166 The outcome of this case may encourage Members to set broad ALOPs to ensure food safety, particularly during the pandemic; China, for example, has suspended meat imports from processing plants in the United States, Brazil, and the European Union based on COVID-19 infections among plant employees.Footnote 167 Second, the Appellate Body decision recognizes a Member's right to construct ALOPs with elaborate qualitative and quantitative elements whose evaluation against the relevant WTO provisions will be more complex. As a result, challenge against them will become more difficult. The decision also raises a call for the WTO dispute settlement process reform: the Appellate Body has been criticized for failing to engage in a substantive review of Korea's measure.Footnote 168 Such review will necessitate consideration of facts, but the Appellate Body does not have this mandate under the relevant provisions of the Understanding of Dispute Settlement (DSU): its review is limited to ‘issues of law covered in the panel report and legal interpretations developed by the panel’.Footnote 169 The Appellate Body's mandate will have to be expanded through DSU reform to enable such review.Footnote 170
The article concludes with a note of a concerning development that took place in the aftermath of the Appellate Body decision in Korea–Radionuclides. Shortly after the circulation of the decision, Japan announced tightening of inspections on seafood imports from Korea, which was expected to cause substantial difficulty for Korean exporters.Footnote 171 Japan's Ministry of Health, Labor, and Welfare stated that the new measure was adopted due to an increase in the rate of food poisoning in the previous summer.Footnote 172 There is no definitive evidence that suggests otherwise, but food poisoning tends to increase in summer seasons, and it had not resulted in regular adoptions of similar measures in the past. This led to an observation that the measure was likely retaliation in response to the adverse decision from the WTO.Footnote 173 In fact, in 2019 Japan adopted another suspect retaliatory trade measure against Korea on an unrelated political reason.Footnote 174 The repeated use of trade measures in a retaliatory manner is a violation of Article 23.2 of the DSU that requires Members to refer a trade dispute to the DSB for adjudication, not to adopt their own retaliatory measures unauthorized by the latter.Footnote 175 Such a measure may also invite a like response, continually evoking retaliation and a spiraling downward trade trend, which is a concern for international trade relations today.Footnote 176
